Business Standard

<b>Sarosh Zaiwalla:</b> International human rights trump diplomatic immunity

Global law should encourage countries like India, where a culture of servitude dating back to a colonial period persists, to change their view

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Sarosh Zaiwalla
Indian deputy consul general Devyani Khobragade was arrested last week charged with the serious offence of visa fraud, resulting in heightened tensions between the United States and India to a level not seen in many years. Many people in India were upset because they believed Khobragade had diplomatic immunity protecting her from arrest and prosecution. This is, however, not accurate in this particular case.

Khobragade, as deputy consul general, did not in fact have full diplomatic immunity but instead had a similar status called consular immunity, which offers some protections, but not as extensive. Under the 1963 Vienna Convention on Consular Relations, consul officials are not afforded absolute immunity as they can be arrested and prosecuted for matters not in connection with their official duties. The hiring of a maid was not part of Khobragade's job and is a situation in which US prosecutors are able to pursue charges if there is evidence that the local US law is being broken.

There has also been a notable lack of emphasis on the serious nature of the crimes allegedly committed. The complaint alleges Khobragade tried to evade the US law that has been designed to protect domestic employees from exploitation and abuse. Specifically, she is accused of forcing the alleged victim and her spouse to attest to false documents, lying to government officials. Additionally, Khobragade is said to have paid the victim far below the legal minimum wage and to have made her work above the 40 hours per week she was contracted to, exceeding the limit imposed by the alleged victim's visa application. It would not have been right for US officials to have knowingly ignored this case once they became aware of the accusations, as they have a duty to protect the civil rights of the victim as well as to ensure US law is being followed. Additionally, any government would take action in a case involving the submission of false documents in order to bring immigrants into the country.

Despite this, Khobragade's lawyers are pleading not guilty on the grounds that she enjoys diplomatic and consular immunity from prosecution within the US jurisdiction. The very notion of diplomatic immunity will, no doubt, be the subject of debate, and prosecutors will be sure to analyse the scope and limitations of this particular status. What should be understood, though, is that diplomatic immunity is not a licence to abuse the law in a host country and, in this case, only extends to the actions of Khobragade in relation to her job with the Indian Consulate. Regardless, this will be a good opportunity to revisit international diplomatic immunity treaties and laws. The Vienna Convention on Diplomatic Relations, 1961 actually uses the term "private servant" in relation to people in the "domestic service of a member of the mission". This vocabulary is no longer appropriate in a post-colonial era, so aspects like this should be revisited promptly.

Diplomatic immunity itself is a principle of international law of long pedigree. It reflects the principle that sovereign nations should not exercise power over each other. Centuries ago, sovereign states discovered it was not possible to maintain useful diplomatic relations with other nations if their diplomatic envoys had to live in fear of being thrown into prison for real or imagined offences by the host state. It was realised they needed real protection and security in order to accomplish their work.

International treaties give modern embodiment to this principle. One of the most significant of these treaties is the 1961 Vienna Convention on Diplomatic Relations, which guarantees various privileges and immunities to diplomats serving abroad. This principle is of tremendous importance in the international system. In addition to diplomatic missions, a foreign state may maintain one or more consular missions. Consular agents enjoy similar types of immunities, but only in relation to their specific consular duties, according to the Convention.

Although diplomats enjoy these immunities, both treaties declare that it is their duty to respect the laws and regulations of the receiving State. It is wrong to believe that simply because one has diplomatic immunity, he or she has a licence to disregard the law in the receiving State. There is also no reason that diplomatic immunities should trump fundamental principles of human rights.

In an age of increasing globalisation, states should be seen to be setting a good example on the international stage, regardless of immunities and privileges. Much of the debate in this case has focused on the distinction between these different types of immunities and the particular treatment Khobragade received at the hands of the US Marshal Service. Sadly, this ignores an equally important principle of international law: respect for human rights and dignity.

There is no reason in this age for diplomatic immunities to trump fundamental principles of human rights. In today's global world, a diplomat who commits an unlawful act ought to be treated no differently than an ordinary citizen. Over the past few decades, we have seen a number of developments in this direction at the international level. Additionally, international law should encourage countries like India, where a culture of servitude dating back to a colonial period persists, to change their view. The Indian government would be serving its less privileged citizens better by legislating to protect the rights of domestic servants then protecting an Indian diplomat, who is alleged to have broken the law of the host country.

The writer is Senior Partner of Zaiwalla & Co Solicitors. He was the first Asian to set up a city law firm in London.
 
Disclaimer: These are personal views of the writer. They do not necessarily reflect the opinion of www.business-standard.com or the Business Standard newspaper

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First Published: Dec 23 2013 | 9:46 PM IST

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