Devyani Khobragade issue: Vienna Convention

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WHAT IS THE ISSUE
On December 12, Devyani Khobragade (India’s deputy consul general in USA), was arrested by USA’s security officials for committing fraud in the United States Visa application for her maid, Sangeeta Richard.
The diplomat was handcuffed and arrested in public & later released on bail of $250,000 which she would be needing to pay if she fails to attend the proceedings of the court.
All this started when Mrs. Richard asked the diplomat if she can work outside.
Mrs. Richard was brought to America by the diplomat for her domestic work. The visa for the same was applied by her.
But in June this year she went missing. Diplomat at this time blamed Mrs. Richard of extortion & theft. Even a written complaint was given to the police department but they were not able to find her.
After some days all the family member of Mrs. Richard who lives in India were evacuated to America. This amounts to intervention in the state affairs by USA.
The maid allegedly demanded $10,000 from the diplomat as the extortion money. It is by rule that extra amount of money needs to be given to the domestic helper. It is something around $10 per hour. The diplomat was giving her $6 per hour. Probable the maid was using this problem as the leverage for extortion.
WHAT ARE THE REACTIONS ?
It is being argued that she should be well protected as she is the diplomat.
Some also argue that while thinking of her as diplomat it should also be kept in mind that she did injustice to her maid.
VIENNA CONVENTION ON CONSULAR RELATIONS (VCCR)
It enlists the provisions of protecting a diplomat or consular.
Article 41(1) of the VCCR states that: 1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. 2) consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect (i.e. a consular officer can’t be put in jail).
But USA is using that Article 43(1) of the VCCR. It states that [c]onsular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
This means the US does not consider the appointment of personal employees by a consular official important to the execution of consular functions.
Vienna convention was a reaction against the unlimited immunity that had been enjoyed by diplomats until then.
Many of the immunities enjoyed – abused – by diplomats were not conceived of by the drafters of the Vienna convention and the treaty was not meant to extend to such actions.
The logic behind restrictive interpretation of functional immunity is that while a diplomat definitely needs to be protected from any distraction to aid his purpose, it is equally true that the diplomat should respect the law of the land where he is residing.
Also it should be noted that USA has issued charges against Khobragade only for Visa fraud & not for violation of US labour law.
The main question arising is that whether a domestic help to a diplomat helps in better functioning of that diplomat. If the answer is yes then Khobragade is going to get full immunity from the case.
The US does not recognise domestic help as rendering services to the sending state. The US A-3 visa, for example, is reserved for “personal employees” of diplomats.
THEORIES OF DIMPLOMATIC IMMUNITY
Popularly there are three theories for the same.
1. Personal Representation 2. Extraterritoriality 3. Functional necessity
1. Personal Representation: It suggests that a diplomat in a sense, the personification of the sovereign he represents;
2. Extraterritoriality: It argues that diplomats’ offices, residences, and persons are to be treated as if they are always on their home soil;
3. Functional Necessity: This theorises that immunity should be extended to diplomats only to the extent that they may be able to carry out their duties without hindrance.
With the passage of time and shifts in the nature of diplomatic venture, the first two theories have been abandoned for various reasons in favour of the third.
WHAT STEPS DID INDIA TAKE IMMEDIATELY AFTER THE ARREST
India took a muscular stand on the issue partly because it was the question of its diplomats & partly because of the coming elections.
India stripped US diplomats in India of Identification Cards that give them diplomatic benefits
India also removed the security barriers outside the US embassy in New Delhi
WHAT USA HAS TO SAY ?
A tit for tat policy should not be used against USA diplomats in India.
This case is an isolated incident & should be treated as such. No need to treat every diplomat the same way.
Has asked India that it will follow the obligations under the Vienna Convention.
Mrs. Khobragade enjoys “consular immunity”. It’s a limited diplomatic immunity applicable only to her official duties.
Under the 1963 Vienna Convention on Consular Relations, consular officials can still be arrested for acts committed outside the official job functions.
Standard procedures were followed by the diplomatic security that arrested Khobragade. Even the intake and detentions were in accordance with its policies.
Proper investigation is being done for the intake procedures (i.e. investigation of the process of arrest). It will be seen that proper procedures were followed & every courtesy was extended to the diplomat.
WHAT INDIA HAS TO SAY ?
It was shocking to see that Khobragade the mother of two was handcuffed by US security officials when she was dropping her daughters to school even knowing that She is a diplomat.
The arrest was handled with shocking insensitivity.
US security officials could have simply asked the diplomat to submit & she would have done that. It is very unlikely that she was going to run away.
WHAT INDIA IS DOING TO AVIOD SUCH PROBLEMS IN FUTURE
India is thinking of discouraging diplomats to take people from India for domestic help in the posted country.
But it is equally true that taking domestic help in developed countries is very expensive.
If the US is going to be a stickler for rules, the MEA should think twice about allowing diplomats the privilege of taking domestic workers from India to America when they can’t afford to pay them US minimum wages.
India is also thinking of creating a pool of servants to help diplomats in foreign countries.
RADICAL VIEW ON THIS ISSUE
This issue raises an important question - what kind of people is India’s Ministry of External Affairs hiring to be the country’s face to the world?
Khobragade’s name had even appeared in relation to the Adarsh Cooperative Housing Society Scam.
Then why did Ministry of External Affairs appointed such an individual with questionable background to such an important post.
Is the IFS so short-staffed that they need to appoint people with questionable backgrounds to important posts in other countries?
It is highly unlikely the MEA or Khobragade were unaware of US visa or labour laws. In effect, the diplomat knowingly and wilfully violated the laws of a foreign power, one is tempted to say, with the same hubris shown at home.
Practice Questions
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