Does diplomatic law really protect? Part three

This is the third and final blog post in a series looking at diplomatic law, privileges and immunities. The blogs are written by Diplo lecturer Alan Franklin in follow-up to his 20 May webinar. Part one looked at breaches of the VCCR and VCDR in relation to interception of communications, and Part two looked at whether the protection afforded by the VCDR and the VCCR is intended to be absolute, or subject to qualifications and exceptions.

Part 3: The Khobragade incident in the USA

Issue 1: Are the VCDR and the VCCR part of US law?

Facts of the case:

Devyani Khobragade, Indian Deputy Consul General in New York, was arrested and indicted in relation to visa fraud regarding her nanny in December 2013.

1. She was arrested by the USA despite the clear protections given by Articles 40 and 41 of the VCCR.
2. She was strip searched, incarcerated, and then released on bail of USD 250 000. These actions are all contrary to the VCCR.   

Article 40 of the VCCR states:

Protection of consular officers

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.

Article 41 of the VCCR states:

Personal inviolability of consular officers

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.Except in the case specified in paragraph 1 of this article, 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.

3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 43 of the VCCR states:

Immunity from jurisdiction

1.Consular 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.

2.The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either

(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

On the other hand, the US State Department instructions regarding immunity issues seriously water down any concept of immunity.

You may ask how the Khobragade incident could happen, when the conduct was clearly contrary to the VCCR.

The USA has a dualist system in regard to international treaties. This means that a treaty signed and ratified by the USA is binding on the USA in relation to other states, but is not generally binding inside the USA (i.e. it does not form part of the US law that the courts and the police must respect) until a statute or law has been passed by the US Congress making that treaty part of the US domestic legal system. 

In the USA, the VCCR is not implemented in US law by statute, whereas the VCDR is. Therefore, the fact that the VCCR specifies that as a consular officer, Khobragade should not be arrested, was not sufficient to protect her in the USA. The police and the courts are not required to pay attention to the VCCR since it is not part of US law.

This concept of dualism is not unique to the USA, but applies to most common law countries worldwide. The main reason behind the concept of dualism is that in common law countries, the power to make treaties is vested in the executive branch (the prime minister or president, and the foreign ministers). Signature of treaties need not be reviewed or approved by the legislative branch of the country (with the exception of the USA –see the note below). In such a situation, if a treaty were to be automatically considered part of domestic law, it would allow the executive branch of the government to make laws for the country. This is prohibited by the concept of division of power: only the legislative branch can make laws.  Therefore, in order for a treaty to become binding as domestic law, the national legislature must pass a law to make that treaty part of domestic law.

The situation is the USA is somewhat different: the US Constitution (Article 2, clause 2)allows the president to sign treaties with the advice and consent of two thirds of the Senate. Therefore, the US system engages one of the Houses of Congress in the treaty-making power; as a result there is some legislative body input into treaties. In fact, certain treaties become part of US law automatically – the so-called self-executing treaties. 

What is meant by a self-executing treaty? In the case of Brazak v United Nations, 597 F. 3rd 107 (2nd Circuit 2010) the court had to decide whether the Convention on Privileges and Immunities of the United Nations (13 February 1946) was self-executing. The court looked at whether the treaty contains stipulations which require no legislation to make them operative.  If so, they have the force and effect of a legislative enactment. In this case, the court determined that the Convention was self-executing and therefore part of US law without the need for legislation to implement that treaty.

This decision was very interesting for several reasons:

1. The court found that Brazak was entitled to diplomatic immunity –pursuant to the US Diplomatic Relations Act of 1978. This was based on the fact that Brazac had been appointed to the UN as a special agent for India. This is interesting because the immunity of a representative to the UN is provided for under the Convention on the Privileges and Immunities of the United Nations, not the VCDR.
2. The VCCR was referred to, but since it was not part of US law, it was not the central focus.
3. The fact that the VCCR prohibits arrest, detention, and search of a consular officer was ignored by the judge.

Issue 2: Why did the USA take such actions against Khobragade – is there another reason to justify what happened in this case?

The case against Khobragade related to alleged abuses of her nanny in the USA. This issue of abuses of nannies by diplomats and consular officers has struck a very serious chord in the international community. The Parliamentary Assembly of the Council of Europe published a report entitled ‘Domestic Slavery’ (Strasbourg, 2001, Doc. 9102). The report deplored ‘the fact that a considerable number of victims work for diplomats or international civil servants, who, under the Vienna Convention of 1962, enjoy immunity’.

Similarly, in 2010, Kalayaan, a British charity which engages with the rights of domestic workers, produced a report to the UN Special Rappporteur on Contemporary Forms of Slavery indicating that 6.9% of domestic workers in diplomatic household in the UK are victims of trafficking for domestic servitude.

Another instance of the issue of abuse of domestic workers was raised in 2010. Neena Malhotra, posted at the Indian consulate in New York, along with her husband, were directed by a New York court in 2012 to pay USD 1.5 million for ‘barbaric treatment’ of their domestic help Shanti Gurung, who had accused the couple of ‘slavery’. (For more details see L’Affaire Khobragade – The Indo-US Revenge Cycle, in Outlook India, December 2013.) Subsequent to the Khobragade affair, a lawsuit has also been filed against the Bangladeshi Consul General in New York for allegations of abuse of his nanny.

Note that the cases against the Bangladeshi Consul General and Neena Malhotra, former Indian Consul General, were both civil suits rather than criminal suits. Article 43 of the VCCR does not provide protection for consular offices in civil suits of this nature. However, these cases illustrate the context in which the Khobragade affair took place. (Some caution is needed in reading reports regarding these types of incidents, as the media often fails to differentiate between criminal charges and civil charges, and between diplomats and consular officers).

Is human rights the issue in these cases?

It is often said that human rights are of a higher level or norm than diplomatic or consular immunity rights. They form part of jus cogens, which refers to norms or rules of international law that bind all states, regardless of whether the state actually consented to such rules. The Vienna Convention on the Law of Treaties specifically states in Article 53:

Treaties conflicting with a peremptory norm of general international law (‘jus cogens’)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Based upon this article, the VCCR and the VCDR, to the extent that they may conflict with jus cogens, could be considered invalid!! However, the interpretation that provisions of a treaty which contradict Article 53 of the Law of Treaties are void, rather than the entire treaty, is probably preferable.

The US system regarding diplomatic immunity

In the USA, the executive branch possesses exclusive jurisdiction to determine whether an alien in the USA has diplomatic immunity under Article 11, Paragraph 3 of the US Constitution. The Secretary of State exercises that power. The power to confer or deny immunity is strictly a political determination and is not subject to judicial review.

The most extreme example of this power was demonstrated in the case of Abdulaziz v Metropolitan Dade Country. In that case, a Saudi prince living in Florida was alleged to have servants who were forced to work twenty hours a day without contact with the outside world and for slave wages. The police investigated the matter, obtained search warrants, and went to the house, but found no evidence of slavery. The prince sued the county law enforcement officials, and the officials counterclaimed for damages in tort. The prince tried to withdraw his claim, in order to stop the counterclaim against him, but the counterclaim was maintained by the police. The US State Department conferred full diplomatic immunity on the prince in order to prevent the counterclaim from continuing. The court upheld this diplomatic immunity which had been retroactively conferred.

However, in the Khobragade case, the US government argued that Khobragade was not entitled to diplomatic immunity. The court, on the other hand, concluded that she was, notwithstanding the opinion provided by the US State Department.

The Diplomatic Relations Act of 1978 was passed by the US Congress, which brought US diplomatic law into conformity with the VCDR. However, the Act also added two provisions in an attempt to provide victims of torts (civil wrongs) committed by diplomats with compensation. First, the Act requires members of diplomatic missions to purchase liability insurance. Second, the Act provides a direct right of action for injured parties against the insurer of an immune diplomat. However, since diplomats have immunity from the law, the requirement to provide insurance cannot be enforced against a defaulting diplomat.

However, the point is that the US, through its legislation, can make changes to the protections afforded to a diplomat under the VCDR. Another piece of legislation, entitled the Diplomatic Abuse Protection Act, was introduced to Congress in 1987 to deal with some of the problems with diplomatic crime. However, it has been stalled for years in Congress.