On the face of it, the "Devyani Khobragade" affair was most definitely Uncle Sam's biggest botch up in Indo-US diplomatic relationships since December of 1971, when Richard Nixon dispatched Task Force 74 with its first nuclear powered carrier, the USS Enterprise, into the Bay of Bengal as a show of strength against India's naval blockade of what was then East Pakistan.
So what provoked the kind of treatment (a very public arrest, a strip search and imprisonment) meted out to Ms Devyani Khobragade, India's Deputy Consul General in New York?
Apparently, it was on multiple counts, among others, "visa fraud", "human trafficking" and "slavery"?
The "visa fraud' charge was apparently a confusion about an item in the nanny's visa application (a DS-160) wherein a monthly salary of $4500 was indicated. And the confusion was whether this amount pertained to the nanny or her employer! I dont have immediate access to a DS-160, so I will rest this matter here.
The "human trafficking" and "slavery" charge, on the other hand, was about international relocation of domestic staff at low wages, that is, little pay and long work hours.
How is "human trafficking" defined?
The UN office on Drugs and Crime (UNODC) defines trafficking in Article 3, paragraph (a) of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, as the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.
Is the United States of America a signatory to the UNODC?
Yes, it is, but with some reservations including the following:
The United States of America reserves the right to assume obligations under this Protocol in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to conduct addressed in the Protocol. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, such as the Thirteen Amendment's prohibition of "slavery" and "involuntary servitude," serves as the principal legal regime within the United States for combating the conduct addressed in this Protocol, and is broadly effective for this purpose.
And what exactly constitutes "involuntary servitude"?
"Involuntary servitude" is a US legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs.Involuntary servitude does not necessarily connote the complete lack of freedom, and can also refer to other forms of "unfree labor", where people may be employed against their will by the threat of destitution, detention, violence, lawful compulsion or other extreme hardship to themselves or to members of their families.
"Lawful compulsion" implies the use of legal (or soverign?) authority, influence, or other power to force (compel) a person or persons to act, often despite negative consequences.
So here, in short, is the full legal construct: lawful compulsion -> unfree labor -> involuntary servitude -> Thirteenth Ammendment -> Federal and State Criminal laws.
So under these laws, can any ordinary expat living in the United States, who did what Devyani Khobragade did, be arrested? The answer is, of course, a resounding "Yes".
So what is the problem?
The problem is only that Devyani Khobragade is not just another ordinary expat working in the US. She is a member of an exclusive club called "consular staff", that too, of a strategically important and friendly democracy, a club whose privileges and immunities are covered, not under the laws of the receiving state, but under the UN's "Vienna Convention on Consular Relations", adopted by 95 countries (including the US, albeit conditionally, as we shall see) at the associated plenary on 24 April 1963.
The Vienna Convention consists of 79 articles, most of which provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country. A few other articles specify consular officials’ duties when citizens of their country face difficulties in a foreign nation.
Of particular interest for the right of individuals is Article 36, providing for certain obligations for competent authorities in the case of an arrest or detention of a foreign national, in order to guarantee the inalienable right to counsel and due process through consular notification and effective access to consular protection.
So under this provision, Devyani Khobragade is, to the extent provided in the article, protected. To what extent? Well, at least until "due process" was completed. And even thereafter, the maximum provision, under the treaty, did not allow an arrest or any consequent process.
Was the prescribed "due process" completed?
Of course, not!
Let us change tack for a moment and ask another question.
Was Article 36 of the Vienna convention ever challenged?
Of course it was.
By whom?
Mostly, by the United States of America!
For many years (if not decades), the right to consular notification and access provided for in the Vienna Convention has increasingly been raised in proceedings not only at the domestic and regional levels, but also in international courts.
Coming back to the episode under discussion, we can see that Devyani Khobragade was not accorded the inalienable right to counsel nor due process through consular notification nor effective access to consular protection. While "diplomatic immunity" under Article 29 of the "Vienna Convention on Diplomatic Relations 1961" would have conferred immunity from "any form" of arrest or detention, Devyani, as consular staff, was only eligible for "due process". However, that "due process" was not accorded.
What is of interest is that, the "maximum option" available to US authorities in cases where "diplomatic immunity" exits, is to declare the individual a persona non grata ("unwelcome person"), thereby forcing the sending state to recall the person within a "reasonable time limit".
Clearly, Uncle Sam was in full breach. The "evacuation" of the nanny's family from New Delhi, of course took the cake. It clearly highlighted what Uncle Sam thought about the judicial system in India, where the case was already subjudice. Uncle Sam sure has a lot of explaining to do. Luckily, someone in the US administration has seen reason, and the latest reports emanating out of Washington DC indicate that a review of the lapses that happened in this high-profile case is already in process. There is hope.
But what about India. Do we come out of this episode smelling like a bunch of roses? Of course not. We have our own bag of (to put it lightly) "misdemeanors", and we will do well to review the prevailing culture of our diplomatic and consular staff and many, many others, both within the country or serving in a foreign land.
Can we expect to see that happen sometime in the foreseeable future? Of course not! Not with the current dispensation anyway. What about 2014 and beyond? A law governing domestic labour is long overdue. But given how well entrenched our bureaucrats are (and the foreign service are the "upper castes" within the bureaucracy), I won't hold my breath.
Some food for thought: Compare and contrast the response of the government (and the diplomatic community in particular) to this episode (essentially, a misguided interpretation of the jurisdiction & precedence of two laws), with its response to the beheading of an Indian soldier on the Line of Control in Kashmir by soldiers of another country (essentially, an act of war) in January 2013.
Then again, what was India's response to the terror assault on Mumbai in November of 2008. Who is writing the postscript to that episode and how will the end game play out? Will it be more of the "fizzle and pop" to which we have been inured? The term of the current government anyway ends in 2014. So it is obvious that the current dispensation has washed its hands off the matter.
Why is a state, with its self-indulgent vision of grandeur as a great world power, failing to protect its citizens again and again in one context, while going completely overboard in another?
Where does the fatal flaw lie?
So what provoked the kind of treatment (a very public arrest, a strip search and imprisonment) meted out to Ms Devyani Khobragade, India's Deputy Consul General in New York?
Apparently, it was on multiple counts, among others, "visa fraud", "human trafficking" and "slavery"?
The "visa fraud' charge was apparently a confusion about an item in the nanny's visa application (a DS-160) wherein a monthly salary of $4500 was indicated. And the confusion was whether this amount pertained to the nanny or her employer! I dont have immediate access to a DS-160, so I will rest this matter here.
The "human trafficking" and "slavery" charge, on the other hand, was about international relocation of domestic staff at low wages, that is, little pay and long work hours.
How is "human trafficking" defined?
The UN office on Drugs and Crime (UNODC) defines trafficking in Article 3, paragraph (a) of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, as the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.
Is the United States of America a signatory to the UNODC?
Yes, it is, but with some reservations including the following:
The United States of America reserves the right to assume obligations under this Protocol in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to conduct addressed in the Protocol. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, such as the Thirteen Amendment's prohibition of "slavery" and "involuntary servitude," serves as the principal legal regime within the United States for combating the conduct addressed in this Protocol, and is broadly effective for this purpose.
And what exactly constitutes "involuntary servitude"?
"Involuntary servitude" is a US legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs.Involuntary servitude does not necessarily connote the complete lack of freedom, and can also refer to other forms of "unfree labor", where people may be employed against their will by the threat of destitution, detention, violence, lawful compulsion or other extreme hardship to themselves or to members of their families.
"Lawful compulsion" implies the use of legal (or soverign?) authority, influence, or other power to force (compel) a person or persons to act, often despite negative consequences.
So here, in short, is the full legal construct: lawful compulsion -> unfree labor -> involuntary servitude -> Thirteenth Ammendment -> Federal and State Criminal laws.
So under these laws, can any ordinary expat living in the United States, who did what Devyani Khobragade did, be arrested? The answer is, of course, a resounding "Yes".
So what is the problem?
The problem is only that Devyani Khobragade is not just another ordinary expat working in the US. She is a member of an exclusive club called "consular staff", that too, of a strategically important and friendly democracy, a club whose privileges and immunities are covered, not under the laws of the receiving state, but under the UN's "Vienna Convention on Consular Relations", adopted by 95 countries (including the US, albeit conditionally, as we shall see) at the associated plenary on 24 April 1963.
The Vienna Convention consists of 79 articles, most of which provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country. A few other articles specify consular officials’ duties when citizens of their country face difficulties in a foreign nation.
Of particular interest for the right of individuals is Article 36, providing for certain obligations for competent authorities in the case of an arrest or detention of a foreign national, in order to guarantee the inalienable right to counsel and due process through consular notification and effective access to consular protection.
So under this provision, Devyani Khobragade is, to the extent provided in the article, protected. To what extent? Well, at least until "due process" was completed. And even thereafter, the maximum provision, under the treaty, did not allow an arrest or any consequent process.
Was the prescribed "due process" completed?
Of course, not!
Let us change tack for a moment and ask another question.
Was Article 36 of the Vienna convention ever challenged?
Of course it was.
By whom?
Mostly, by the United States of America!
For many years (if not decades), the right to consular notification and access provided for in the Vienna Convention has increasingly been raised in proceedings not only at the domestic and regional levels, but also in international courts.
- The first United States case relating to article 36 of the Vienna Convention was Breard v. Greene (523 US 371, 1988), followed by numerous claims in United States federal circuit courts of appeals, state supreme courts, and the United States Supreme Court. Interpretations have varied widely, from the non-recognition of fundamental rights conferred by article 36, where no appropriate remedy is available, to the possibility of individually enforcing those rights.
- In 1999, the Inter-American Court of Human Rights issued an advisory opinion, recognizing that article 36 creates individual rights, as a “notable exception to what are essentially States’ rights and obligations accorded elsewhere” in the Convention (Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99), para. 82).
- In 2001, the International Court of Justice in LaGrand (Germany v. United States of America) found that where a violation of article 36 occurs, a remedy is due consisting of “review and reconsideration by United States courts of convictions and sentences”, in light of the breach of the Convention.
- The Avena and other Mexican Nationals case (Mexico v. United States of America) marked a turning point regarding article 36 jurisprudence. The International Court of Justice’s unprecedented decision of 2004 expressly recognized the interdependence of both individual and State’s rights, by asserting that “violations of the rights of the individual under article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual” (ICJ Reports 2004, p. 36).
Coming back to the episode under discussion, we can see that Devyani Khobragade was not accorded the inalienable right to counsel nor due process through consular notification nor effective access to consular protection. While "diplomatic immunity" under Article 29 of the "Vienna Convention on Diplomatic Relations 1961" would have conferred immunity from "any form" of arrest or detention, Devyani, as consular staff, was only eligible for "due process". However, that "due process" was not accorded.
What is of interest is that, the "maximum option" available to US authorities in cases where "diplomatic immunity" exits, is to declare the individual a persona non grata ("unwelcome person"), thereby forcing the sending state to recall the person within a "reasonable time limit".
Clearly, Uncle Sam was in full breach. The "evacuation" of the nanny's family from New Delhi, of course took the cake. It clearly highlighted what Uncle Sam thought about the judicial system in India, where the case was already subjudice. Uncle Sam sure has a lot of explaining to do. Luckily, someone in the US administration has seen reason, and the latest reports emanating out of Washington DC indicate that a review of the lapses that happened in this high-profile case is already in process. There is hope.
But what about India. Do we come out of this episode smelling like a bunch of roses? Of course not. We have our own bag of (to put it lightly) "misdemeanors", and we will do well to review the prevailing culture of our diplomatic and consular staff and many, many others, both within the country or serving in a foreign land.
Can we expect to see that happen sometime in the foreseeable future? Of course not! Not with the current dispensation anyway. What about 2014 and beyond? A law governing domestic labour is long overdue. But given how well entrenched our bureaucrats are (and the foreign service are the "upper castes" within the bureaucracy), I won't hold my breath.
Some food for thought: Compare and contrast the response of the government (and the diplomatic community in particular) to this episode (essentially, a misguided interpretation of the jurisdiction & precedence of two laws), with its response to the beheading of an Indian soldier on the Line of Control in Kashmir by soldiers of another country (essentially, an act of war) in January 2013.
Then again, what was India's response to the terror assault on Mumbai in November of 2008. Who is writing the postscript to that episode and how will the end game play out? Will it be more of the "fizzle and pop" to which we have been inured? The term of the current government anyway ends in 2014. So it is obvious that the current dispensation has washed its hands off the matter.
Why is a state, with its self-indulgent vision of grandeur as a great world power, failing to protect its citizens again and again in one context, while going completely overboard in another?
Where does the fatal flaw lie?
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