Could the India-US Diplomatic Incident Be Resolved in the ICJ?

by Julian Ku

I’ve been working hard this break teaching in Hofstra’s winter program in Curacao. But I couldn’t resist stepping away from the beach and posting on the India-US flap over the arrest of an Indian diplomat in New York. Dapo Akande at EJIL Talk! has two great posts on the consular and diplomatic immunity legal issues.  I have nothing to add, but wanted to focus on how the ICJ could actually play a role in resolving (or not resolving) this dispute.

As those following the incident may know, Devyani Khobragade, India’s deputy consul-general in New York, was arrested and charged with lying on her visa applications about the salary she was paying the maid she had brought from India.  As a consular official, Khobragade could only assert functional rather than absolute immunity. Most of the outrage in India is about her treatment after arrest (which does seem excessive to me as well), but the legal issues mostly have to do with her immunity from arrest.

As Dapo points out, India may now be asserting that at the time of the arrest, Khobragade had already been transferred to India’s U.N. Mission.  This might entitle her to the broader protections of U.N. diplomatic immunity as oppose to mere consular immunity. According to Dapo, Section 11(a) of the Convention on the Privileges and Immunities of the United Nations may grant her absolute immunity from arrest (but not from prosecution).  India may also argue shifting her to the UN mission now gives her immunity from arrest going forward, even if she wasn’t a UN diplomat at the time of her arrest. Thus, on this theory, Khobragade could at least leave the U.S., or even wander New York free from the possibility of arrest or detention, even though the criminal prosecution would go forward.

Much of this would turn on whether Khobragade would need U.S. consent to acquire diplomatic status within the U.N.  Again, I am far from expert on this but it seems a murky legal issue at best with plausible arguments for both sides based on  the U.S./UN Headquarters Agreement and the Convention on Privileges and Immunities of the United Nations.

Sounds like a case for international dispute settlement! It turns out there are mandatory dispute settlement procedures under both agreements.  The U.S./UN Headquarters Agreement allows the U.N. to take the U.S. to compulsory arbitration pursuant to Section 21. This would require the U.N. to side with India’s view on Khobrogade’s diplomatic status, but this is hardly impossible or even improbable that they would support a broad view of UN diplomatic rights and immunities.

Interestingly, India could also take the U.S. to the ICJ under Article VIII, Section 30 of the Convention on Privileges and Immunities of the United Nations.

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement.

Somewhat surprisingly, both India and the U.S. have signed on to the Convention without trying to limit the effect of this provision through a reservation (as China and others have done).  Such a reservation may be of little effect anyway, but at least it would be an argument against ICJ jurisdiction.   So I think that India could bring an ICJ case seeking a provisional measure guaranteeing Khobragade’s immunity from arrest under Article 11(a).

It is possible the U.S. would simply ignore any ICJ order, but this is not quite the same as the Medellin cases.  First of all, it is the federal government rather than the state governments involved here, and the President probably has authority to order federal agents NOT to arrest Khobragade.  Furthermore, the U.S. interest here is far weaker than in the Medellin case, which involved individuals who had been convicted of murder.  In this case, the U.S. may be upset over allowing an alleged visa-fraudster to walk, but it is of a completely different magnitude than giving a new hearing to a convicted murderer.

In my view, it would be a perfectly legitimate exercise of presidential power to order executive branch officials to refrain from further action in this case. An ICJ provisional measures might provide a clearer justification for the President’s decision, although I think he probably has the authority right now to stop all of this.  But the ICJ might provide a face-saving way for both sides to resolve this deeply fractious incident.

In any event, it will be interesting to see if India chooses the ICJ route. Or if the US even invites an ICJ resolution of this conflict. Indeed, if India goes to far in its retaliations against US diplomats, the U.S. might take India to the ICJ under the Vienna Convention on Diplomatic Relations!

The current ICJ even has one Indian judge, and one U.S. judge. One problem for India is that its legal position is hardly flawless, and it could very well fail in the ICJ.  But if India thinks it has strong legal arguments (and they do look fairly strong to me), it seems like a textbook case for the ICJ. Indeed, since neither side shows any sign of backing down, I think the ICJ might actually be useful here.

http://opiniojuris.org/2013/12/30/india-us-diplomatic-incident-resolved-icj/

5 Responses

  1. Does the “shall be referred” language go far enough? it seems to create an obligation on States Parties to refer disputes to the ICJ when they arise (I.e. by special agreement). It does not seem to grant jurisdiction to the court in the absence of a further referral. Anyone have examples of similar clauses grounding jurisdiction before an international tribunal? One could argue that Maffazini is an instance, albeit controversial, where an obligation to consent to jurisdiction was understood as the consent itself.

  2. Daniel, 
    While I cannot supply any ready authorities, I see Art. VIII, Section 30 as a jurisdictional clause for the ICJ. This is nothing unusual, as several treaties provide that “disputes of a given class” shall (or may) be submitted to the ICJ (http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=4), thereby conferring jurisdiction upon the Court.
    As the above link to the Court’s website notes, appropriate disputes under a given jurisdictional clause may be initiated either by way of a unilateral application or by special agreement, depending on the actual wording of the clause. To address this, in addition to the “shall be referred” language of Section 30, I also consider important the “unless in any case” part (as text or context, as you wish). To me, the effect of this second part of Section 30 is that an agreement may be concluded by the State parties to refer the dispute to “another mode of settlement”, but, in the absence of such an agreement, the default position is that a State party may initiate a dispute by a unilateral application before the ICJ. 
     

  3. Response…Was the maid underpaid?? Or is the Maid an illegal immigrant being helped by some self righteous and self serving US lawyers seeking publicity and a hefty settlement.
     
    The US Prosecution is mistaken on salary of the maid and will be sued for wrongful arrest.
     
    Other things that need to be corrected in Indo-US relationship
     
    Read below:
     
     
     
     
    Question: Was the Maid’s Salary of US 4500 $ or 1450 $ a month?? Was she underpaid?? or not??
     
    NYC minimum wage is US 7.25 $ per hour
     
    http://jobsearch.about.com/b/2013/12/27/new-york-minimum-wage-increases-2014.htm
     
     
     
    So if the Maid worked 8 hours a day and 25 days a month this works out to
     
    8 hours * 7.25 $ * 25 days = 1450 US $ per month is her salary
     
    The Salary due is only 1450 US $ and not 4500 $ a month as per US laws.
     
     
     
    Of this the maid was paid 500 $ a month in cash
    Shortfall is 950 US $ = which was paid to her in KIND.
    Compute the value of:
     
    1. Free stay in Manhattan – with electricity, water and heating.
    2. Free food 3 meals each day.
    3. Cell phone, tv etc.
    4. Free travel from India
    5. Free medical care in the USA
     
     If you monetize the cost of these perks – it would EXCEED the value of 1450 $.
     
    IF the maid had rented her own apartment – travelled to and from work and paid for her food   then she would have been spending her entire 1450 $ salary.
     
    Instead she was given everything free (food, stay, travel etc) and 500 $ in cash.
    So the maid was compensated well ABOVE the minimum wage in NYC.
    So what underpayment are we talking about??
     
    Question: Was the Maid underpaid:??
    Ans: Most certainly not.
    If you compute all the perks and the cash given to her – she was paid well above the minimum wage.
     
     
     
    Immigration to the USA:
     
    The Maid went to the USA on a Indian Govt. passport – which is issued to Govt. Employees and not to an average Indian citizen. The condition is that she will work in the consulate and cannot work outside the Indian official premises. This is a US requirement and not an
    Indian requirement in order to prevent visa fraud and illegal immigration.
     
     
     
    The maid got greedy, she absconded from her place of work and went to a lawyer.
     
    The American lawyer tried to first BLACKMAIL the Indian diplomat asking for 10,000 $ cash and a Blue (ordinary) passport so the maid would get money and run away in America.
     
     
    If the Indian diplomat had acceded to the 10,000 $ payment and issued a Blue passport – she would have been guilty of US Visa fraud as she would have paid money to the maid and
    helped her become an illegal immigrant in the USA.
     
     
    The correct thing to do in this case is to send the maid back to India; cancel the white Govt. passport. 
     
    If the maid wants to come back to the USA she should first return to India and then get an ordinary (blue) passport and apply to the US consul in India for a NEW visa stating her actual income and job and reason to visit the USA.
    She should not a use Govt. issued white passport with an existing visa give to her by the US embassy which thinks the Maid is going for Indian Govt. work.
     
     
    The diplomat reported this matter to the US police and to the Indian court. A warrant was issued to the Maid for appearance in India by an Indian court. The family of the maid was questioned by the Indian police to trace the maid in USA to file a missing person complaint as that is a requirement of US law.
     
     
    Now we know the background – who then is guilty of visa fraud? the Maid or the Diplomat??
     
    Question: Is the maid guilty of visa fraud
    Answer: Most certainly yes – aided by her lawyer in the USA she has been able to manipulate the system in the USA.
     
     
     
    Question: IS the Indian diplomat guilty of Visa fraud:
    Answer: Certainly Not.
    She reported the matter to the US and Indian authorities and tried to get the maid
    back to India to PREVENT the Maid from abusing the Indian Govt. passport and the visa issued by the Embassy of US.
     
     
     
    US Action:
    Instead of arresting the maid for illegal immigration and black mail – the US police arrested the Indian diplomat without ascertaining the correct facts of the case!!!! Then they
    stripped her and cavity searched her. This in India culture is considered a
    grave insult. As women are given respect. No Indian courts condone such acts to women in India.
     
     
     
    The US establishment in New York is guilty of a false arrest.
    The US consul in New Delhi is guilty of aiding and abetting in the illegal immigration of the maid and her family in the false plea of under payment of wages.
     
     - This is laughable as there is NO underpayment of wages in the first place.
     
     
     
    Question: Did the US Authorities apply their mind in the arrest.
    Answer: Most certainly not. Instead of talking to the Indians and understanding their point of view they went ahead and arrested the diplomat and humiliated the symbol of India in
    the USA.
    The lady is a diplomat and she is not going to run away.
     
     
    India needs to sue the New York Police / State Dept. for illegal confinement, torture, negative publicity, aiding and abetting in illegal immigration to the USA; and misinterpretation of the law to harass an Indian diplomat.
     
     
    Other Things that India should do to the US for targeting Indian Diplomats – as this is now a TREND in USA.
     
    1. Find US officials guilty of breaking laws in India and prosecute them – the way they prosecute Indians in USA for apparently breaking US laws.
     
    2. Removal of security barriers is a FIRST step.  The US removed barriers from the Indian embassy in Washington DC and they have been repaid in the same coin.
     
    If US Embassy does NOT feel safe in New Delhi the fault lies with their policies and funding of
    Pakistan and Afghanistan who are the terrorists.
    American Embassy is welcome to leave New Delhi and relocate in Pakistan along with their F-16′s and another give another 5 billion $ aid package to Pakistan.
     
    3. Asking for working details and tax and salaries of US embassy and consulates is another step. This effectively is a notice to the US embassy by the Indians. Prosecution should logically follow when the replies are submitted for all the tax evasions the US embassy
    has been doing in India.
     
    4. Indian courts need to US Consul a notice asking how a visa was issued to the maid’s family for ‘evacuation’ from India? Why is the US is evading Indian Justice?
    The maid is the illegal immigrant. Not the Diplomat.
    Instead of allowing the case of the maid to be examined in Indian courts – the US embassy is actually conspiring against the Indian justice system.
     
    5. Prosecution for giving the family a tax exempt air-ticket should happen. This facility should be withdrawn for the US Embassy. They should be made to pay tax with retrospective
    effect on this as they have been abusing this system.
     
    6. Indian IT workers pay US $ 1 billion to US social service each year and get nothing back. A special tax needs to be levied on US companies working in India to equalize this loss to
    India. If the Americans tax Indians we need to tax them back.
     
    7. All Defence deals need to be reviewed.
    If the US will arrest Indian diplomats in such flimsly pretext it shows they are NOT to be TRUSTED.
    The next time India has a war the US will surely stop supplies to India.
    Stop purchasing arms from the USA and do it from countries like Russia or France of Israel which will not let India down in the event of a war and are not a fair weather friend like the USA.
     
     
     
    It is good the US arrested and stripped and Indian Diplomat
     
    This action has lead to the AWAKENING of India waking to the REALITY of America
     India Govt. should work in the interest of India rather than putting the Americans in a pedestal and giving them undue advantage in so many issues.
     
     
    Was the maid underpaid?? Or is the Maid an illegal immigrant being helped by some self righteous and self serving US lawyers seeking publicity and a hefty settlement.
    The US is mistaken on salary of maid and will be sued for wrongful arrest.
    Other things that need to be corrected in Indo-US relationship
    Read below:
     
     
    Was the Maid’s Salary of US 4500 $ or 1450 $ a month?? Was she underpaid?? or not??
    NYC minimum wage is US 7.25 $ per hour
    http://jobsearch.about.com/b/2013/12/27/new-york-minimum-wage-increases-2014.htm
     
    So if the Maid worked 8 hours a day and 25 days a month this works out to
    8 hours * 7.25 $ * 25 days = 1450 US $ per month is her salary
     
    The Actual Salary due is only 1450 US $ and not 4500 $ a month.
     
    The maid was paid 500 $ a month in cash
    Shortfall is 950 US $ = which was paid to her in KIND.
     
    Compute the value of:
    1. Free stay in Manhattan – with electricity, water and heating.
    2. Free food 3 meals each day.
    3. Cell phone, tv etc.
    4. Free travel from India
    5. Free medical care in the USA
     
    If you monetize the cost of these perks – it would EXCEED the value of 1450 $.
    IF the maid had rented her own apartment – travelled to and from work and paid for her food  then she would have been spending her entire 1450 $ salary.
    Instead she was given everything free (food, stay, travel etc) and 500 $ in cash.
    So the maid was compensated well ABOVE the minimum wage in NYC.
     
    So what underpayment are we talking about??
    Question: Was the Maid underpaid:
    Ans: Most certainly not.
     
     
    Immigration to the USA:
    The Maid was sent overseas on a Indian Govt. passport – which is issued to Govt. Employees and not to an average Indian citizen. The condition of her employment is that she will work as a  maid and cannot work otherwise and not outside the Indian official premises. This is a US requirement and not an Indian requirement in order to prevent visa fraud and illegal immigration.
     
    The maid got greedy, she absconded from her place of work and went to a lawyer so she could make out an immigration case.
    The American lawyer first tried to BLACKMAIL the Indian diplomat by asking for 10,000 $ cash and a Blue passport so the maid would get money and run away in America.
     
    If the Indian diplomat had acceded to the 10,000 $ payment and issued a Blue passport – she would have been guilty of US Visa fraud as she would have paid money to the maid and helped her become an illegal immigrant in the USA.
     
    The correct thing to do in such a case is to send the maid back to India; cancel the white Govt. passport and the visa on which she came to India.
    If the maid wants immigrate to the USA she should first return to India; get a private (blue) passport and apply to the US consul in India for a new visa stating her actual income and job and reason to visit the USA. She should not a use Govt. issued white passport and Govt. sponsored visa.
     
    The diplomat reported the matter to the US police and to the Indian court. The US police said that the Diplomat could not file a missing person report – only the family could. So the maids husband in India was asked to file a missing complaint to the US police.
    When it became apparent that the maid’s lawyer was trying to black mail the Diplomat for money and a visa – she filed a case in the Indian court. A warrant was issued to the Maid for appearance in India by an Indian court. The family of the maid was questioned by the Indian police to trace the maid in USA.
     
    Question: Is the maid guilty of visa fraud
    Answer: Most certainly yes – aided by her lawyer in the USA she has been able to manipulate the system in the USA.
     
    Question: Is the Indian diplomat guilty of Visa fraud:
    Answer: Certainly Not. She reported the matter to the US and Indian authorities and tried to get the maid back to India.
     
    US Action:
    Instead of arresting the maid for illegal immigration and black mail – the US police arrested the Indian diplomat without ascertaining the correct facts of the case!!!! Then they stripped her and cavity searched her. This in India culture is considered a grave insult. As women are given respect. And no Indian court would condone such an act.
     
     
     
     
    The US establishment in New York is guilty of a false arrest.
    The US consul in New Delhi is guilty of aiding and abetting in the illegal immigration of the maid and her family in the false plea of under payment of wages.
     - This is laughable as there is NO underpayment of wages in the first place.
     
    Question: Did the US Authorities apply their mind in the arrest.
    Answer: Most certainly not. Instead of talking to the Indians and understanding their point of view they went ahead and arrested the diplomat and humiliated the symbol of India in the USA.
     
    India needs to sue the New York Police / State Dept. for illegal confinement, torture, negative publicity, aiding and abetting in illegal immigration to the USA; and using a misinterpretation of the law to harass an Indian diplomat.
     
    Other Things that India should do to the US for targeting Indian Diplomats
     
    1. Find US officials guilty of breaking laws in India and prosecute them – the way they prosecute Indians in USA for apparently breaking US laws.
    2. Removal of security barriers is a good first step.  The US removed barriers from the Indian embassy in Washington DC and they have been repaid in the same coin.
    If US Embassy does not feel safe in New Delhi the fault lies with their policies and funding of Pakistan and Afghanistan. The Americans are welcome to leave New Delhi and relocate in Pakistan along with their F-16′s and another 5 billion $ aid package.
    3. Asking for working details and tax and salaries of US embassy and consulates is a great step. This is a notice to the US embassy by the Indians. Prosecution should logically follow when the replies are submitted for all the tax evasions the US embassy has been doing in India.
    4. Indian courts need to send them a notice asking how a visa was issued to the maid’s family for ‘evacuation’ from India? Why the US is evading Indian Justice? The maid is the illegal immigrant. Not the Diplomat.
    5. Prosecution to Embassy for giving the family a tax exempt air-ticket should happen. This facility to be withdrawn for US Embassy. They should be made to pay TAX with retrospective effect on this as they have been abusing this system.
    6. Indian IT workers pay US $ 1 billion to US social service each year and get nothing back. A special tax needs to be levied on US companies working in India to equalize this loss to India. If the Americans tax Indians we need to tax them back to recover our money in the USA.
    7. All US Defence deals need to be reviewed with a view to cancellation and giving it to non-US suppliers. If US will arrest Indian diplomats for no justifiable reason. In the next war they will SURELY stop supplies to India on some pretext. To prevent this from happening  – stop purchasing from the USA and do it from countries like Russia, France or Israel which will not let India down in the event of a war and are not a fair weather friend like the USA who sell weapons to both sides and arrest Indian diplomats on trumped up charges.
     
    From one perspective: It is GREAT the US arrested and stripped an Indian lady Diplomat
    IF this action leads to India WAKING up to the REALITY of the US; rose tinted glasses will fall. They will work in the Indian interest rather than put the Americans in a pedestal and give them undue advantage in so many issues.
    I hope that this is legacy of the diplomats illegal arrest – that the Indians begin to view the US more rationally and less emotionally. 

  4. My understanding is that the Indian Govt. is objecting to the strip-search. They interpret this as a violation of diplomatic immunity on the basis of reciprocity and arising out of some supposed ‘strategic partnership’ the two countries enjoy. In other words, the Indians are saying the State Dept should have issued a statement of interest and certified immunity from criminal, not civil, charges if those criminal charges would result in a ‘strip search’ which, for cultural reasons, is unacceptable to India- more especially as the lady in question is from an oppressed community. The Indians are retaliating against American Consular and Diplomatic personnel and taking other political measures. If their diplomat is arrested again, they will arrest her counterpart and negotiate on that basis.
    The fact is, American courts accept the State Dept’s certification in all such matters. It appears that no such certification is currently forthcoming. Still, Devyani’s lawyer could argue that she had personal immunity as a matter of substantive and procedural due process on the basis of U.N accreditation. Interestingly, the Judge is free to accept this even in the face of a State Dept. representation to the contrary because only the Judge can determine what violates Fifth Amendment due process rights. This would mean her arrest and charging was unlawful. However, fresh Civil charges could be brought in relation to her actions prior to U.N accreditation. But, she might also be free to ask for (perhaps more than offsetting) damages for wrongful arrest in her personal capacity.
    It is difficult to see what role the ICJ could play in all this. The Indian Supreme Court already has its own highly idiosyncratic interpretation of the relevant statute and the Indian Justice Ministry won’t want to tread on the toes of the irascible Honble Supreme Court. America certainly won’t want to go to the ICJ because then whatever they have to concede to India they will have to concede to Togo and Tonga.
    In nuce, had Devyani been subpoenaed in the ordinary way, India would have waived any immunity they considered her to possess. However, the strip search changed things- it represented an offence against the person of an Indian career diplomat which damaged vital Indian National interests. Thus, India insists she has full immunity and is prepared to retaliate on a tit for tat basis. If the State Dept fails to issue a statement of interest to stop her prosecution or a further warrant for her arrest then India will either have to eat crow or begin arresting American Consular officials and subjecting them to the rigors of the Indian penal system.

Trackbacks and Pingbacks

  1. […] The major confusion here is whether Devyani is an Indian Diplomat (or Consul. Yeah they are separate offices!) or whether she is…! […]