30 Dec Could the India-US Diplomatic Incident Be Resolved in the ICJ?
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.
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.
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.
[…] The major confusion here is whether Devyani is an Indian Diplomat (or Consul. Yeah they are separate offices!) or whether she is…! […]
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… Read more »
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… Read more »