India-US Strategic News and Discussion

member_22733 · Post by **member_22733** » 24 Dec 2013 05:46

Sigh:) I feel like talking to a wall, but then I am known to be crazy so here goes

Wonder if the Amrikans ever consider what people of India think of their custodial rape of a citizen and more importantly a diplomat?

What is the impression of India among the Americans on this "visa violation" is just half of an irrelevant question (maybe relevant to some people, but not in strategic affairs). If the Americans are so worried about that, then they should also think about what the Indian's impression of the Americans are as well. Why does that not happen? Considering the fact that we are so friendly, so strategically allied, hainji? America just does not care what Indian's (or Indian businessmen) think.

EDIT: When USofA bombed Iraq and turned it into a "parking lot", did they ever stop to "think" what the rest of the world was saying or what impact it had on the businessmen of various countries?

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 06:10

Sridhar wrote:A_Gupta,

The legislation you have pointed to only lays down the conditions under which the A3 visas can be issued. It does not say who an A3 visa should be issued to and who an A2 visa can be issued to. It does not say for instance, that drivers get A2 visas and domestic workers should get A3 visas. That is an executive decision. My argument is that this is an arbitrary distinction, and in contravention of the Vienna conventions.

That said, whether it is a the outcome of legislation or an executive order is immaterial to the country sending the diplomats. It is for the US to figure out how it can adhere to a treaty it has signed. And the courts have ruled repeatedly on that. If a country signs an international treaty, it has to bring its own legislation (and in some cases its Constitution) in compliance with that treaty. It cannot use domestic legislation or executive decisions as a reason to not be in compliance with the treaty obligation, since the latter supersedes all domestic legislation.

Got your point, thanks!

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 06:20

Jarita wrote:This is very damning. It is DK's father all the way

http://m.outlookindia.com/article.aspx/ ... BK742kTNUY

His plea was dismissed on July 19, according to Adeeb, because the high court claimed “no jurisdiction on a crime committed on foreign soil”.

To me it sounds like the petition was withdrawn.
http://delhihighcourt.nic.in/dhcqrydisp ... 44&yr=2013

PS: the court ruled that DK v Richard was for an Indian court to decide.
http://delhihighcourt.nic.in/dhcqrydisp ... 20&yr=2013

PPS: in the Shanti Gurung vs Neene Malhotra case, too, the Indian court claims jurisdiction, even though a New York court has awarded Gurung $1.5million. I therefore think Adeeb is not correct.

Victor · Post by **Victor** » 24 Dec 2013 06:32

Theo_Fidel wrote:Your could have asked any NRI/PIO who has been in USA for some time. It is not hard to figure out how GOI would pan out. Esp. when it is clearly in the wrong as here.

Don't disagree with bolded part but the legality or otherwise is not what most of us are burned up about. The beef we have is with the avoidable manner of handling an Indian lady which was intentionally crude and very likely in contravention of international laws.
------------------------------------------------------

For NRI/PIO types the most degrading encounters often occur at the Indian consulates. There are a few good people there but a sizable fraction are self-centered bullies and out to humiliate those who have kept their Indian passports. God forbid you need a passport renewal within 2 weeks. It is hard to withhold judgment when you have seen just how prone to lying and making up stuff folks in the consulate are. American tourist types in particular are abused to the hilt as they are clueless on how to deal with the system. I once flew down to Houston consulate because the officer there demanded that I come down if I want my renewal in 3 weeks. Only once I got there I was told that they do not meet applicants in person. The official then has a temerity to say that I should wait in Houston till he was available. Several American tourist types were in the same situation.

Never been a huge fan of our consulate staff and its service ethic but I have never seen this type of behavior except with customers who invited it by their own. They have rarely displayed an overly helpful attitude but they have never come even close to being abusive. I have at times dialed the senior-most people and they have picked up and chatted with me.

Again, the point is not to beat up Indian diplomats but question and confront the boorish behavior from the NYC law folks, including Pretty Paratha.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 06:36

Read the allegations in the Gurung case:
http://cdp-ny.org/wp-content/uploads/20 ... dgment.pdf

The 17-18 year old Gurung says they starved her, she went from 147 lb to 84 lb.

Neena Malhotra did not show up at court so lost by default.

Philip · Post by **Philip** » 24 Dec 2013 06:40

Pratik,the US is actively supporting the BNP in the BDesh elections,doing everything to unseat Hasina,against Indian advice.US diplomutts have tried to pass off the terrorist thugs and goons of the BNP as harmless to their Indian counterparts and there is much angst in Delhi.We fear that we will have an "eastern terrorist front" similar to what we're experiencing on the western front,and the real threat is a concerted link up between the Chinese and BDeshis to cut off the NEast.That threat was made some time ago.

In Afghanistan too the US wants India to hand over control of the country to Paki interests ,so that it can retreat without having its tail,firmly tucked in between its legs,set on fire.The shameless regime of "Surrender Singh",is pandering to US diktats even in its last days by going slow on Karzai's fervent request for arms to defend himself. The snake-oil mendicant has run India as if it were a vassal state of the US,that was willing to hand over to the US whatever it asked for.In all our foreign and defence policies,pandering to Washington has been the rule.No individual could've done as much harm for India as our shameless PM has done.Ever since the Devyani issue erupted,we know how much US diplomutts have been pandered too with especial favours by the UPA regime.There is open talk that some vital defence decisions are being scuttled by the US,to make us weaker and more dependent upon US mil hardware which will be useless in any crisis if sanctions are applied.In the subcontinent,it is the US policy to castrate and emasculate both India and Pakistan and turn them into neutered nations that can be looted of their family jewels with a servile compromised leadership.Under the mendicant's Sancho Panza,"Money-Talk" S,the nation's economy has been devastated with the rupee devalued by 25% under the UPA era. In fact,it is Sancho Panza who has played the most insidious role in destabilising India's economy.

This is now so evident by the US actions against its bogus "strategic partner"! While Salman-the-Kursed tries to save the day in backroom bargaining,Devyani's UN status being seen as the best way to protect her and avoid the US's racist laws,the genie has escaped from the bottle.Indo-US relations have taken a severe jolt.The next non-Congress govt. in Delhi will not be as servile as the "Last days of the Roman Empire".

PS:Workers in AP shut down the Coca-Cola plant at Atmakuru in Guntur Dt.,in a flash strike protesting at Devyani's humilaition! The plant management tried to get govt. help to stop the strike fearing large losses,but were unsuccessful."Losses of 60,000 lts. was less than the humiliation suffered by Devyani",said the workers!

The way to go guys! Actions like these will hurt the US more than any protestations by our toothless and impotent MEA Min.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 06:42

An article from 2012:
http://india.blogs.nytimes.com/2012/03/ ... case/?_r=0

Generally, at least from what I have observed, Indian employers who do not follow laws in the United States do not think they are doing something wrong. In fact, they often think they are doing their help a favor, giving them an opportunity to build their savings quickly. But even after factoring in the free room and board, it’s hard to see this compensation meeting requirements or market rates.

I certainly do not want to suggest that all help brought over from India does not receive pay deemed acceptable by American standards. I have also seen several instances of them being treated exceptionally well by their employers who in addition to fair wages, will pay for their medical care, their children’s schooling in India and even annual trips back home where the time off is fully paid

.

Prasad · Post by **Prasad** » 24 Dec 2013 06:45

saip wrote:How about social security deductions? How about fed and state taxes? Were these deducted? Did she get medical insurance?

Exempt

Gus · Post by **Gus** » 24 Dec 2013 06:47

Theo_Fidel wrote: This is a country that is willing to broker a deal with Al Qaeda.

BS.

this is country that had its panties in a knot on iran.

and still has about cuba. great pragmatism and less emotion there..

Yagnasri · Post by **Yagnasri** » 24 Dec 2013 07:08

It is how political forces in USA run their policy. self political future be it Cuba, India, Saudi, Iran, afghan relations.

One thing they are all scared to hell is body bags. That is why removing barriers in Delhi is much more effective message.

member_22733 · Post by **member_22733** » 24 Dec 2013 07:19

^^^ Bodybags can do a lot of political damage. That is why all their covert (and sometimes overt) missions are all done with mercenaries like the Bakis, Saudis etc.

That is the reason why they go for shock and awe and drone style warfare against a technologically weaker opposition. The stomach is not present to go to war with a full-fledged technologically strong enemy, in which case mercenaries like Bakis will be used liberally.

Vayutuvan · Post by **Vayutuvan** » 24 Dec 2013 07:30

A_Gupta wrote:The "jump ship" part I am fine with. Damaging someone's (of some nation's) reputation by making unfounded allegations is not fine.

I am also fine with "jump ship" part.

But the real question is were those allegations unfounded? Ms. Richards' letter looks very neat and excellently thought out. If the case is never tried then we will never know whether there exists such a letter in the original. Not casting any aspersions on either Dr. DK or Ms. Richards - just an observation.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 07:41

FYI, here is a specimen contract from bringing in a domestic help to Hong Kong.
http://www.immd.gov.hk/en/forms/forms/id407_detail.html

Some of the salient features:
1. The employer will pay at least the Hong Kong minimum wage.
2. The employer shall provide accomodation, free of charge, including power and light, water, toilet and bathing facilities.
3. The employer shall provide food, free of charge; or else pay an additional food allowance.
4. The employer will take care of all health care charges.
5. The employer will provide free travel and a traveling allowance of HK$100 a day to and from the employee's place of origin.

Therefore, the US laws which require minimum wage for domestic help with no deductions for health, accomodation, etc., are not unique.

Theo_Fidel · Post by **Theo_Fidel** » 24 Dec 2013 07:44

Gus wrote: BS.

this is country that had its panties in a knot on iran.

and still has about cuba. great pragmatism and less emotion there..

This is only for public consumption.
There are many agreements in effect between Cuba & USA and now Iran as well.

Suraj · Post by **Suraj** » 24 Dec 2013 07:46

A_Gupta wrote:FYI, here is a specimen contract from bringing in a domestic help to Hong Kong.
http://www.immd.gov.hk/en/forms/forms/id407_detail.html

Some of the salient features:
1. The employer will pay at least the Hong Kong minimum wage.
2. The employer shall provide accomodation, free of charge, including power and light, water, toilet and bathing facilities.
3. The employer shall provide food, free of charge; or else pay an additional food allowance.
4. The employer will take care of all health care charges.
5. The employer will provide free travel and a traveling allowance of HK$100 a day to and from the employee's place of origin.

Therefore, the US laws which require minimum wage for domestic help with no deductions for health, accomodation, etc., are not unique.

The problem with this is that Ms.Richard was on an official Indian passport and therefore is a member of consular staff. Consular staff are exempt from local laws by Article 47 of the Vienna Convention on Consular Relations, as Sridhar mentioned.

The issue is not whether there are local laws for domestic help, but whether or not the laws apply to consular and diplomatic personnel. According to the Vienna Convention, it does not.

Theo_Fidel · Post by **Theo_Fidel** » 24 Dec 2013 07:52

The vienna convention is fairly primitive and in sore need of an over haul by itself.

That said, here is article 47. What is being violated.

Exemption From Work Permits

Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.
Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

Suraj · Post by **Suraj** » 24 Dec 2013 08:04

Theo_Fidel wrote:The vienna convention is fairly primitive and in sore need of an over haul by itself.

Why is it primitive and in need of an overhaul ? What overhaul do you propose ?

arun · Post by **arun** » 24 Dec 2013 08:04

US Embassy availed benefit of exemption of Service Tax levied by India for purchase of tickets for Sangeeta Richards family:

US embassy paid for Devyani Khobragade maid's family's air tickets

The tickets for the maid's husband Philip Richard and their two children--Jennifer and Jatin-- were issued by the official travel agency of the US embassy, sources said.

The tickets were exempt from service tax of 4.50 per cent as per the norm for diplomatic missions, the sources said

Theo_Fidel · Post by **Theo_Fidel** » 24 Dec 2013 08:12

Suraj wrote:
Theo_Fidel wrote:The vienna convention is fairly primitive and in sore need of an over haul by itself.
Why is it primitive and in need of an overhaul ? What overhaul do you propose ?

There is no interpretive agency and the legal wording has a ton of loop holes.
Modern legal documents are much tighter and more clearly defined.

Also Re: Najibullah and what happened to him. And others in that situation due to said loop holes.
-------------------------------------

But please answer the question, what is being violated.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 08:22

Theo_Fidel wrote:The vienna convention is fairly primitive and in sore need of an over haul by itself.

That said, here is article 47. What is being violated.

Exemption From Work Permits

Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.

Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

I think it depends on whether you think a A-3 visa is a work permit or not.

PS: The 1963 meeting minutes for the Vienna Convention on Consular Relations, 1963, are here:
http://legal.un.org/diplomaticconferenc ... _II_e.html
The relevant document is a 20MB download, which is taking forever.

Theo_Fidel · Post by **Theo_Fidel** » 24 Dec 2013 08:26

A_Gupta wrote:I think it depends on whether you think a A-3 visa is a work permit or not.

Exactly. The convention is quite old and uses terms not used any more or meanings have changed causing all kinds of interpretive round robbins.

Still the spirit is clearly not to deny the ability of the official/worker to carry out his/her duties. This the local state allows within local laws.

member_26011 · Post by **member_26011** » 24 Dec 2013 08:40

Not sure how accurate this is (http://faq.visapro.com/A3-Visa-FAQ5.asp), but:
20. What additional documents are required while applying for A-3 visa?
You are required to submit an English language contract signed by both you and your employer that includes the following information:
• Hours of work
• Medical insurance
• A guarantee that you will be compensated at the state or federal minimum or prevailing wage, whichever is greater. Any deductions for food and lodging must be no more than reasonable and voluntarily agreed

What are the documents required for A-3 visa?
As an applicant, you should show that:
• You will receive a fair wage comparable to that offered in the area in the U.S.
• The wage is sufficient to financially support you and your dependents
• You will not accept any other employment while working for the employer
• The employer agrees not to withhold your passport

So, whether or not the A-3 is a work-permit, entering under it implies acceptance of its conditions?

But is there a gray area, so that whilst the A-3 demands these things, there are no applicable employment/labor clauses because there is no obligation with regard to any kind of work permit. At least to me, it seems that the above two points suggest that A-3 is permitting work for the A-1 in a specific way, which is some kind of permit. But that need not be honored under the Vienna Convention?

Has it been convention to allow "dual contracts" in diplomatic circles, for example using a minimum wage minus any deductions for food and lodging that were reasonable and voluntarily agreed?

Suraj · Post by **Suraj** » 24 Dec 2013 08:43

Theo_Fidel wrote:But please answer the question, what is being violated.

GoI can argue that any minimum wage requirement contradicts the Article. It may be a locally enforceable law for everyone, but not for consular staff. Had Ms.SR and Ms.DK been on a personal passport, then the law might be applicable, but she was not. She was on an official passport and can be characterized as a member of consular staff. Ditto for Ms.DK.

Therefore, even if they signed a contract or affidavit in relation to obtaining the visa, GoI can argue that is not enforceable.

I don't think the Article has loopholes, but on the contrary I think it is broadbased enough to enable consular and diplomatic personnel a LOT of leeway. Ms.DK - even if she signed any papers related to Ms.Richard's employment, is not breaking local laws. She simply is not subject to them.

CRamS · Post by **CRamS** » 24 Dec 2013 08:48

Good reads {deleted}

http://blogs.timesofindia.indiatimes.co ... proportion

http://blogs.timesofindia.indiatimes.co ... eois-charm

vic · Post by **vic** » 24 Dec 2013 08:49

How is US embassy running a school in Delhi and charging Indians USD20,000 per annum in fees? We should shut down their school and super market being run from the embassy premises.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 09:05

Theo_Fidel wrote:
A_Gupta wrote:I think it depends on whether you think a A-3 visa is a work permit or not.
Exactly. The convention is quite old and uses terms not used any more or meanings have changed causing all kinds of interpretive round robbins.

Still the spirit is clearly not to deny the ability of the official/worker to carry out his/her duties. This the local state allows within local laws.

I think from the minutes of the 1963 UN conference (which are dense and not easy to understand) a work permit is different from a visa.

Some thought actually makes it clear even in today's context. E.g., a tourist visa or student visa in the US does not give you permission to work. E.g., in the US an alien normally has to file an I-765 for employment authorization. http://www.uscis.gov/i-765

svenkat · Post by **svenkat** » 24 Dec 2013 09:13

Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

US laws are clear violation of this article.

PratikDas · Post by **PratikDas** » 24 Dec 2013 09:15

Philip ji, thanks for your post. I hope you're right about the next government being non-Congress and being better at managing Indian interests. I'm not yet sure if the AAP has a US connection that could prove to be costly if they come into power. I don't mean to be a fear monger because I loathe anti-Modi fear mongers. Objectively speaking, the AAP campaign demonstrated extremely good coordination of all channels of communication, the kind unseen before the Obama "Change we can believe in" campaign and certainly unseen in India. It is in AAP's use of social networking, online video and the Internet with the same flair as the revolutionary Obama election campaign that had my alarm bells ringing. To put things into perspective, Obama sent his "Team Obama" to Kevin Rudd in Australia towards the end of July 2013 for the Australian electoral polls on 7 September 2013. That Mr. Rudd lost had a lot to do with Labor's miserable infighting, but this creates precedence for Obama using his team of strategists including 'digital attack dog' - Britisher Matthew McGregor across borders for his allies. I suspect AAP benefited from the same team. Pure speculation of course, but the proof may simply be in the pudding of AAP's exceptional media performance.

The affair with BD is a big concern. Too many successive West Bengal governments have allowed rampant influx of illegal immigrants for fattening the vote bank as well. The plague of communal violence could spread at the speed of thought. And we haven't even discussed the Maoist threat. US and China playing Jekyll and Hyde.

JwalaMukhi · Post by **JwalaMukhi** » 24 Dec 2013 09:42

matrimc wrote:
A_Gupta wrote:The "jump ship" part I am fine with. Damaging someone's (of some nation's) reputation by making unfounded allegations is not fine.
I am also fine with "jump ship" part.

But the real question is were those allegations unfounded? Ms. Richards' letter looks very neat and excellently thought out. If the case is never tried then we will never know whether there exists such a letter in the original. Not casting any aspersions on either Dr. DK or Ms. Richards - just an observation.

Au contraire! Having the trail is now going to make it press tamasha, with all the people spinning it as they like it. There is already punishment that has been meted out to Dr.DK. This is unprecedented, even before trail, punishment has already been administered.
Whatever happened to not punishing more than once for the same crime, even if it was one (not saying she did commit)? So getting all the juicy gory details of she said this, she that is not going to help.

Everybody deserves a second chance and more specifically so Dr.DK (not necessarily for this "alleged misdemeanor" alone, but for whatever else her antecedents maybe). For heaven's sake, without batting an eye-lid, the amount of magnanimity and forgiveness is showered on murders such as Ghazni, more recently the murderers of RajBala. I would say, the magnanimity and giving a second chance (to all parties) should not be foisted to the US court/jury system, and depend on them. This individual whatever maybe her antecedents deserves full sympathy and a second chance. She has already suffered enough humiliation and punishment, even before a fair trail. That itself should qualify to not throw her to the wolves and depend on their sympathy.

Wasting a life or lives, for not grave crimes, by misplaced sense of administering justice should not be advocated.

Sridhar · Post by **Sridhar** » 24 Dec 2013 09:43

Theo:

The convention says that consular officials and their personal staff are exempt from work permit related laws and regulations. Not that they are exempt from visas. The key point is that it does not make a distinction between consular officials and their personal staff in this regard. Whatever the differences in interpretation, there is no ambiguity on that count. Whichever way you may wish to spin this, the fact remains that the US is not on a strong wicket on this front.

As for the Vienna conventions being primitive, I agree. In fact, the distinction between diplomatic and consular officials itself is somewhat outdated given the overlap between their functions, and hence the different levels of immunity is somewhat artificial. However, it is unlikely that there is going to be any renegotiation of these conventions. The conventions came about after two World Wars and during a ongoing Cold War. Getting together a large number of countries to renegotiate the rules of international diplomacy is unlikely to happen any time soon.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 09:55

Sridhar wrote:A_Gupta and Theo:

The convention says that consular officials and their personal staff are exempt from work permit related laws and regulations. Not that they are exempt from visas. The key point is that it does not make a distinction between consular officials and their personal staff in this regard. Whatever the differences in interpretation, there is no ambiguity on that count. Whichever way you may wish to spin this, the fact remains that the US is not on a strong wicket on this front.

Maybe. I'm no lawyer, and figuring out the intent of various rules and regulations can be difficult.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 10:03

2007 case involving Tanzanians. (This is a citation from the Gurung vs Malhotra case).

http://www.americanbar.org/content/dam/ ... eckdam.pdf

Zipora Mazengo was brought over on an A-3 visa by Alan and Stella Mzengi. Alan Mzengi was Minister-Counselor at the Tanzanian Embassy in Washington DC. Interestingly Mzengi did not raise the issue of diplomatic immunity.

PS: it was the Mzengi case that led to the laws that DK is facing.
http://content.time.com/time/nation/art ... 02,00.html

Mzengi's abuses outraged the late Congressman Tom Lantos, a California Democrat who himself was a survivor of forced labor as a young man. In 2007 he demanded that the Tanzanian diplomat "be kicked out of the country" by the State Department. Shortly thereafter, the Government Accountability Office (GAO) faulted State's insufficient response to some 42 domestic workers who between 2000 and 2008 had accused foreign diplomats of abuse on U.S. soil. The number of unknown cases, the GAO found, was likely much higher. The 1961 Vienna Convention shields diplomats and their families from many types of prosecution by their host countries, and some diplomats have used that status to intimidate their servants into silence about abuses.

Lantos, together with Representatives John Conyers and Howard Berman, added protections for the servants of diplomats to the 2008 reauthorization of the TVPA.

Mzengi left for Tanzania, not paying the fines assessed against him, and was promoted to Adviser to the President.

Further from the article (which is from 2010)

Recently, the Administration appeared to have hardened its stance against such diplomatic abuse. Two weeks ago, State filed a legal opinion in an ongoing civil case alleging abuse by a Kuwaiti official, arguing that diplomats are protected under the Vienna Convention only when engaged in "official acts performed as a diplomat." In June 2009, a Manhattan federal judge, citing the same principle, rejected a claim of diplomatic immunity by Lauro L. Baja, the former Permanent Representative of the Philippines to the United Nations. A former employee is suing Baja, who twice served as president of the Security Council, for trafficking her to the U.S. and forcing her into unpaid domestic work. Baja has consistently denied wrongdoing.

svenkat · Post by **svenkat** » 24 Dec 2013 10:09

Sridharji,
very good point.The US has no case here except that DK lied trying to fulfill obligations which have no legal basis,no moral basis,nor having practical sense nor is it in keeping the market filosophie of US.

It is pure and simple hostile action both in technicalities and in larger intent.If Antonia and Raul have an iota of patriotism,they must recall DK(she has had enough) and ask for US apology.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 10:15

Not saying the ruling below is right; not saying it is wrong.
Just exploring the history of this diplomat-domestic help issue.
Posting this, because Baja had a much higher rank than DK.

Baja, like Mzengo, had an outside business, too. I don't know how much that played into the denial of diplomatic immunity.

http://www.abs-cbnnews.com/pinoy-migrat ... avery-case
Baja precedent from 2009:

A New York judge on Tuesday rejected a motion to dismiss a trafficking and modern slavery case filed against former Philippine Ambassador to the United Nations Lauro Baja.

Judge Victor Marrero of the New York Southern District Court rejected Baja's motion to dismiss the case on the basis of diplomatic immunity.

The case stems from charges filed by Filipino nurse Marichu Suarez Baoanan against Baja, his wife Norma, daughter Maria Elizabeth Baja Facundo and the Baja-owned Labaire International Travel Inc. last June 24, 2008.

In her complaint, Baoanan accused the Bajas of modern day slavery, saying that she was forced to work 16 hours a day, seven days a week in the Baja residence in New York.

Sridhar · Post by **Sridhar** » 24 Dec 2013 10:25

There is no doubt abuse of domestic workers in many instances. And the US is well within its rights to declare any diplomat persona non grata. But unfortunately, that is the maximum it can do about these cases, and hope (and to some extent use its pressure to ensure) that the home country takes such cases seriously. However, by taking the stand that the Vienna convention immunities are not absolute as they have been for decades, but subject to conditions (howsoever reasonable they may seem), the US is treading a dangerous path. If individual countries start putting their own arbitrary restrictions, it will be the end of the conventions as we know them. And international diplomacy will suffer significantly. It also potentially puts US diplomats in harms way.

Thus, there are valid grounds for keeping the sacrosanctness of the rules of international diplomacy, even if in some cases they lead to distortions, and even assuming that the US is benign and is interpreting the conventions in a fair manner. In reality, even this assumption is not true. It interprets the conventions according to what suits its interests at the time. The Raymond Davis case is a classic example where the person was not even a consular official, but the US sought full diplomatic immunity in a case that could not have been more "grave" (as the Vienna conventions refer to them) - it was a case of murder of two innocent civilians. And this was not the only instance.

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 10:29

The Baja case establishes (in my inexpert opinion) that even if DK is given diplomatic immunity now, her immunity ceases once she leaves her post; the residual diplomatic immunity of the Vienna Convention, the US courts do not recognize regarding acts that were personal in nature. That is, the US courts grant diplomatic immunity and residual diplomatic immunity (once the diplomat leaves their post) for anything the Vienna Convention includes as the official acts of the diplomat.

The US court may concede diplomatic immunity for private acts of the diplomat while he is office, because the embassy/consulate cannot be disrupted, as per the Vienna Convention; but that immunity expires once the diplomat leaves their post.

Here is the Baja ruling.
http://www.leagle.com/decision/20097826 ... 2d155_1770

The Baja ruling relies on the Swarna case from 1995:

In Swarna, the plaintiff brought an action against her former employers, including Badar Al-Awadi ("Al-Awadi"), who, at the time of the events in question, was serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations. See 607 F.Supp.2d at 511-13. The plaintiff agreed to work in the United States in the home of Al-Awadi and his wife in exchange for $2,000 per month and specified vacation time. To secure a G-5 visa for the plaintiff, Al-Awadi informed an official at the United States Embassy in Kuwait that the plaintiff would be given a contract of employment (though she ultimately was not given such a contract). When the plaintiff arrived in the United States, Al-Awadi confiscated her passport and visa. The plaintiff lived and worked as a domestic live-in servant to Al-Awadi and his wife in their home, located about a mile from the United Nations and the Kuwait Mission. She was forced to work seventeen hours per day, seven days per week. Her duties included caring for the Al-Awadis' two children, doing laundry, ironing, cleaning the home, cooking for the family, and cooking for and serving guests who visited the home "in honor of employees of the Kuwait Mission." Id. at 513. The plaintiff was paid $200 to $300 per month. She was prohibited from using her promised vacation time, from leaving the apartment unsupervised, and from using the telephone or sending mail to her relatives in India. Finally, she was repeatedly assaulted and abused by Al-Awadi and his wife, both physically and psychologically.

The plaintiff's claims against Al-Awadi included slavery and slavery-like practices in violation of the ATCA, and New York labor law violations. The court first addressed the labor law claims, stating that while the claims were employment-related, Al-Awadi's employment of the plaintiff was not an "official act" because: (1) the employment bore no relationship to the functions of a diplomatic mission listed in Article 3; (2) the plaintiff was not employed in the course of implementing an official policy or program of the Kuwait Mission; and (3) the plaintiff was not a subordinate of Al-Awadi, whom he hired to work at the Kuwait Mission. Id. at 520. The court concluded that the plaintiff was Al-Awadi's "domestic servant, hired to work in his private home, tending to his family's personal affair[s]." Id. While the court acknowledged that the Kuwait Mission received tangential benefits on the occasions when Al-Awadi entertained members of the mission at his home, this did not make the plaintiff "an employee of the mission, and did not make Mr. Al-Awadi's act of employing her `in law the act [ ] of the sending State.'" Id. (quoting Denza, Diplomatic Law 439).

As to the plaintiffs ATCA claims, the court held that such alleged acts "were private acts, not official acts" because they "were entirely peripheral to Mr. Al-Awadi's official duties as a diplomatic agent." Id. at 521. The court concluded that Al-Awadi did not have residual diplomatic immunity from the plaintiff's labor law claims nor her ATCA claims, and granted her motion for a default judgment against Al-Awadi.

PS: The Vienna Convention on Diplomatic Relations 1961, Article 3, as stated by the court:

The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

PPS: final disposition of the Baja case.
http://thefilam.net/archives/4496

A_Gupta · Post by **A_Gupta** » 24 Dec 2013 10:50

Sridhar, I'm not presenting an argument either way about diplomatic immunity. I am just exploring what the US courts have ruled in the past. Regarding the Baja case (VCDR is the Vienna Convention on Diplomatic Relations, 1961) - some excerpts -

The Court's first task is to determine which provision of the VCDR, if any, applies to the Bajas' assertion of diplomatic immunity.

Under the VCDR, a current diplomatic agent enjoys near-absolute immunity from civil jurisdiction. See Article 31(1). This immunity is given full effect under United States law pursuant to the Diplomatic Relations Act, which states that "[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the [VCDR] ... shall be dismissed." 22 U.S.C. § 254d. As the preamble to the VCDR recognizes, "the purpose of such ... immunit[y] is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States." VCDR, preamble, clause 4.
...
...
Former diplomats, however, are not eligible for the immunities provided in Article 31(1); rather, they are eligible for residual diplomatic immunity, a more limited form of immunity than that provided to current diplomats. Article 39 articulates the scope of this residual immunity:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
Article 39(2). Under this provision, a former diplomat benefits from immunity under the VCDR only for "acts performed... in the exercise of his functions as a member of the mission."

The court then goes on to find (as mentioned in a previous post) that hiring domestic help is not an exercise of a diplomat's functions as a diplomat.

The above is regarding civil jurisdiction - but I expect the same will hold for criminal jurisdiction as well.

Questions:
In 2009, the statute of limitations on visa fraud was 5 years. Has it changed since then? Does having a case filed now (even if DK has immunity) void any statute of limitations? Or if DK has diplomatic immunity by holding a suitable post for 5 years, does the case against her expire, and she can safely become an ex-diplomat?

svenkat · Post by **svenkat** » 24 Dec 2013 10:53

Was Mr Baja in diplomatic service when a case was filed against him.Thats very very relevant.

Another extremely relevant issue is India is NOT in the same category as Kuwait or Philippines wrt enforcement of laws.In the case of Mr Baja,it may be not have been easy to get redressal given the nature of filipino society.This is politically incorrect,but the truth.

Devyani was NOT such a senior official.India would have taken action if the allegations were serious.India maintains it is DK whos the victim here.

Clearly trying to drag DKs case to that of Kuwaiti or filipino has little traction.

shyam · Post by **shyam** » 24 Dec 2013 11:34

While people accuse DK of signing false declaration on visa document, they ignore that US has violated the Vienna Convention Treaty that it has signed. Doesn't matter whether it is outdated or US has different domestic laws. If US finds that it can not agree to it, let it call for a reform to the treaty or withdraw from it. Other countries will change their policies accordingly. US can not behave this way while it still is a signatory to it.

Based on current situation, DK and India has a good case to sue US for a massive compensation on several grounds. Let them wait for US to convict her before proceeding with the suite.

vic · Post by **vic** » 24 Dec 2013 11:35

The issue is not whether Maid could have filed a case. The issue is whether USA can rape a diplomat on an allegation and evacuate Indian Citizens from India in defiance of Indian judicial proceedings?