Law versus diplomacy

Arrest of Devyani Khobragade & enforcement of visa & labour laws by US has led to a diplomatic row with India.

Though law and diplomacy often go hand in hand, sometimes, the enforcement of law can lead to disruptions in diplomatic relations. With the arrest of a female Indian diplomat posted in New York, Devyani Khobragade, the enforcement of US visa and labour laws has led to a diplomatic row that threatens to destabilise the US-India relationship. Nations often must walk a tightrope between applying the rule of law equally to all of its inhabitants while respecting diplomatic ‘courtesies’, and as with all tightropes, one should expect the occasional dramatic fall.

In response to Khobragade’s arrest, the Indian government removed security barriers in front of the American embassy in Delhi and Indian politicians cried ‘murder most foul’. US officials have responded that the arrest of the deputy consular was in accordance with international law concerning diplomatic immunity. They argue that under the Vienna Convention on Consular Relations, a consular official is only immune from prosecution for official acts.

According to allegations, the diplomat falsely reported the pay rate and working conditions for her domestic worker, Sangeeta Richards, in order to fraudulently obtain a worker’s visa from the US government. This likely falls into the category of personal acts, not official acts, meaning the US technically had the right to prosecute, especially in the wake of American labour laws.

However, many allege that the US is acting hypocritically by applying such a narrow interpretation of the Vienna Conventions when it comes to prosecuting foreign diplomats, since the same US government requests a wide interpretation of immunity for its diplomats stationed abroad. One need only refer to the Raymond Davis affair, where the US government originally argued for a very wide interpretation of consular immunity for Davis, so that he could avoid prosecution in Pakistan.

By arresting Khobragade, the US government risks exposing its own diplomats to unfriendly court proceedings, since diplomatic immunity is based on the principle of reciprocity. Furthermore, regardless of the procedural nature of strip searches, by subjecting an official of the Indian government to a strip search, the US has opened the door for its diplomats to be mishandled by the police abroad under the guise or excuse of ‘administrative searches’.

As such, critics argued that rather than arresting Khobragade, the US government should have followed diplomatic custom and informed the Indian government about Richards, allowing it to handle the matter internally. This is often the procedure followed by the US when its law enforcement officers are contacted by domestic workers for help against their embassy or consular employer.

While the actual reasons remain unclear, there are several reasons why the Department of Justice and the State Department may have taken action in this case. The first is that the diplomatic procedure described above has been continually used to deny legal remedies for victims of employment-abuse, as foreign governments usually attempt to protect their diplomatic staff from foreign lawsuits.

Therefore, by arresting the Indian consular official, the US government could be attempting to send a message to all consular staff that they are required to abide by American labour laws for their domestic employees.

Another reason for the US approach in this case could be associated with the government’s suspicions that Khobragade would not be properly prosecuted by India, if the case was referred to the Indian government. This is bolstered by the fact that Richards’s family was allegedly threatened by government officials in India, in order to silence her claims against Khobragade. A few days before Khobragade’s arrest, a Delhi court submitted an arrest warrant to the State Department for Richards. The US government’s underlying suspicion that this case would not be properly adjudicated in India is evidenced further by the fact that Richards’s family has been granted visas to move to the US a few days within Khobragade’s arrest.

Whether the US was defending a worker’s rights or acting as an imperial bully remains to be decided by the public jury at large. However, with this arrest, foreign diplomats in Washington, DC and New York City are now on notice that they could face prosecution in the US if they mistreat their staff.

Published in The Express Tribune, December 28^th, 2013.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.