Daily Times

Devyani Khobragade’s diplomatic row is not really over diplomatic immunity — it is about the rights of domestic and migrant workers. Her arrest for committing visa fraud and perjury has not only created a ruckus amongst human rights advocates but the current imbroglio has also led to a diplomatic storm between India and the US. The uproar that has been witnessed over Devyani’s arrest in India has brushed the issue of domestic workers under the carpet. India condemned the manner in which the diplomat was treated but no heed was paid to the ill-treatment meted out to the domestic help by its very own diplomat.

Despite being an advocate of women rights, Devyani was paying her full-time domestic help $ 600 per month — a skimpy $ 3.31 an hour instead of $ 4.50 as mentioned on her visa application. Not only has she made illegal payments to the domestic worker but also submitted a fraudulent contract to the US government for the maid’s visa, stating that she would pay her more than what had been paid in the past.

The arrest of Devyani has strengthened the belief that no one is above the law but it has also raised many important questions concerning the applicability of the 1961 Vienna Convention on Diplomatic Relations. In Khobragade’s case, the domestic worker must have been made aware of her rights in the country of residence, the US, by the consulate in New York. The law should have required Devyani to enter into a contract with her maid explaining all the conditions of employment. The US state department should have suspended the issuance of visas to the mission when it received sound evidence that the worker was being abused and exploited, but the mission is silent about it.

An insight into the 1961 Vienna Convention reveals that the immunity afforded to the employer puts domestic workers in an increasingly precarious situation. Article 31, being the key provision, provides diplomatic immunity to diplomatic agents. The courts in the US have held that day to day living services such as cleaning and other domestic help were not meant to be treated as outside a diplomat’s official function, as these services are incidental to daily life and, therefore, diplomats are immune from any dispute arising out of them. This convention is indeed seen as a hindrance in the struggle towards protection of the rights of domestic workers. The diplomats must not be allowed to take the law into their hands and must be made to comply with human rights conventions in the same manner as other individuals.

One must also look into the principles of equality before the law, equal protection and non-discrimination when deciding upon the cases of migrant domestic workers as these constitute jus cogens norms. Jus cogens norms are norms “accepted and recognized by the international community of the states from which no derogation is permitted”. This depicts that the categories ‘migrant’ and ‘domestic workers’ may not be used to deprive such people of their basic human rights. Hence, migrants shall not be excluded from the protection of labour laws on the basis of their migration status. The rights such as the right to organise, right to a minimum wage and right to decent working conditions must be granted immediately upon hiring and not be denied on the basis of migration status.

There is a need for a comprehensive universal law where labour rights should be granted from the circumstances of being a worker in a broader sense. A person who is already pursuing remunerated activity instantly becomes a worker and hence attains the right inherent in that condition. Moreover, it must be acknowledged that a person who undertakes employment acquires his labour rights in the state of employment regardless of his migratory status as the enjoyment and exercise of labour rights has to be ensured without any discrimination. It must be declared that failure to uphold such rights would lead to an outright violation of jus cogens, which is prohibited under international law and in the international community.

It has been established that the 1961 convention makes it impossible for domestic workers working for diplomats to take any legal steps against them in cases of infringement of their rights. To address this, it is crucial to introduce amendments in the convention so as to bring it in line with modern day requirements and circumstances. A robust scheme must be proposed to guarantee that, even in circumstances where prosecution seems difficult, there are dire repercussions for the violation of law by diplomats. In cases of egregious violation of the rights of migrant domestic workers, states should consider declaring diplomats as ‘persona non grata’, the one who is unacceptable especially to a foreign government, and force them to leave the country. It has been argued that diplomats, Devyani in this case, tend to exploit the unfettered powers they possess. The idea behind diplomatic immunity was to safeguard diplomats from the arbitrary, state heavy-handedness or foreign laws. It was never meant as license to break the law with impunity, although in reality many in the foreign service see it that way.

An international fund set up for migrant workers can play a tremendous role in safeguarding their rights. It should provide compensation to those workers who have been victims of injustices and unfair treatment. It should also compensate a domestic worker where, as a consequence of the diplomatic immunity, he/she has been unable to receive compensation directly from the employer.

It is indeed appalling to note that, in many cases, domestic workers are denied their right to a minimum wage and are never paid their dues on time. Over the years, not many cases of domestic workers’ abuse have been taken up and a lot of cases go completely unreported. On numerous occasions, domestic workers who seek to vindicate their rights are unable to proceed with criminal investigation or prosecution. With regard to this, governments must consider creating possibilities for out of court settlement to ensure payment of due wages.

Devyani Khobragade’s case is a depiction of the way how domestic workers are being forced into modern slavery. The element of being tied to the employers stops these workers from having their own identity and from seeking protection from the state’s laws.

The writer teaches at a law school in Lahore and holds a law degree from the University of London