India-US relations: cooling and warming up (merged thread)

[Bill Moore]

Ray,

You provided a lot of history in that last post, some of it unknown to me. Definitely provides a different perspective on the issue. To be fair I only have very superficial knowledge of this case, but you pecked my interest now. My previous comment was based on a survey of Indian attitudes toward the US, and according to the survey the Indians loved the US. I got it, it is a huge country with a very diverse populations so what does the survey mean in the end? None the less I was surprised by the level of hostility over this incident.

[Ray]

Ray,

You provided a lot of history in that last post, some of it unknown to me. Definitely provides a different perspective on the issue. To be fair I only have very superficial knowledge of this case, but you pecked my interest now. My previous comment was based on a survey of Indian attitudes toward the US, and according to the survey the Indians loved the US. I got it, it is a huge country with a very diverse populations so what does the survey mean in the end? None the less I was surprised by the level of hostility over this incident.

Notwithstanding that India is a very large country with a varied population with varied identities and political views, India still considers US as a natural friend, though a very unpredictable and unaccommodating friend – a friend that ignores the sensitivity of others, ascribing its own morality and way of life as the sole and righteous standard.

Ever since the warming up of Indo US Relations from the Clinton days and becoming a warmest and hearty one under Bush (Mr Bush India love you, as was said by PM Manmohan Singh), the Indians have always had a more than accommodating stance towards the US. That is why the US enjoys more privileges in India than other nations.

L'affairé Khobragade is not so much about this person. To be fair, she is a low level diplomat and that is about all. Why it has become a cause célèbre is because of two issues:

1. The US does not show any reciprocity for privileges they demand for themselves in India. Some privileges going beyond the law and general civilities, and worse, privileges they ascribe to themselves in an imperious manner, so to say, as if subject to no earthly authority, deriving the right to rule directly from the will of God. (I will explain this below).

2. Barharra’s act was in direct contravention of Articles 41 and 47 of the Veienna Convention for Consular Staff.

Article 41.

Definitions
1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
a. "consular post" means any consulate-general, consulate, vice-consulate or consular agency;

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.

Article 47

Exemption From Work Permits
1. 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.
2. 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.

A fair analysis will indicate that the US is wholly wrong in so far as ignoring Article 41 and subjecting a diplomatic to indignities, and her arrest was illegal since a wage dispute is by no stretch of imagination, a ‘grave’ crime. Even if was taken to that ridiculous limit, the diplomat still had to be given her due dignities as is given to diplomats.

There is also the feeling in India that the US not recognising Article 47 is based on the fact that the US does not recognise domestic help as rendering services to the sending state. The US A-3 visa, for example, is reserved for “personal employees” of diplomats. This discrepancy between Indian practice and US law is something usually more honoured in the breach than the observed but nonetheless remains a wrinkle.

On the other hand, there is NO Reciprocity of the privileges demanded and extended to the US Diplomats that are extended by the US to Indian diplomats. There lies the nub of the issue and the rub.

There has been much brouhaha about the barricades that were there for US Embassies and Consulates. As also of pay to personal employees to being at par.

They were not mere barricades. Whole public thoroughfares, causing total inconvenience to locals, had been blocked off to satisfy the fear of the US of terrorists’ attacks. India too is a target for terrorists, but no such security arrangements were extended. Therefore, the outrage in the US is misplaced.

On wages, the Indian staffs in the US facilities are pittance when compared to the US rates. US Embassy is US soil. Therefore, should US laws on wage not prevail there too for Indians employed there?

In fact

A new State Department report says some local employees hired by U.S. embassies and other posts around the world are so poorly paid they have to cut back to one meal a day or send their children to peddle on the streets……..

Some U.S. missions are in impoverished parts of the world where low salaries are common, and there is a wide range in pay depending on what jobs are performed and where. But the report sets out a stark picture of the richest country in the world paying some of the lowest salaries.

"Twenty-seven missions presented compelling arguments that their lower-grade employees fall short of minimal living standards," the report said.

"These arguments included accounts of LE [locally employed] staff: removing children from school, cutting back to one meal a day, sending children to sell water or little cakes or toiletries on the streets ... employees depending on salary advances and defaulting on loans in order to cover basic expenses ... [pay]grades 1 to 3 earning less than $1.00 per day."

But the report provides no specific numbers of how many local employees might be making less than $1 a day.
http://edition.cnn.com/2009/POLITICS...ef=werecommend

That is why in India, one finds the moralist grandstanding of the US to be a tad hypocritical.

In this connection, when caught with the pants down, Americans grandstand on morality with silly articles in the Forbes titled In Furore Over Diplomat, India Avoids Legacy of Suffering and gets gleefully vicarious over Dalits. The one who wrote the article is such an ignoramus that he does realise that both the Diplomat and the maid are Dalit.

Therefore, would it not be that India is fighting for the right of a Dalit and so should be applauded?

Now what are the Diplomatic Privileges removed (which are not anyway to be extended de jure)?

1. Diplomats being told to obey local traffic law. This one diplomat complained would cause great discomfort since parking space is very difficult to get in the diplomat popular Khan Market in Delhi.

2. Restriction on the popular U.S. Embassy club that violates diplomatic law because it is open to outsiders. That is defrauding the Indian exchequer by running a commercial establishment and profiteering circumventing Indian laws because outsiders, who are not US diplomats cannot take advantage of a tax free binge. This has affected the US expatriates.

3. Closing down commercial establishments like the Beauty Parlour, cinema, restaurants et all that caters not only for the diplomats but also outsiders to include US expatriates, who by using such facilities are violating Indian laws and defrauding the Indian exchequer.

May see

India targets expatriates’ privileges at U.S. club amid dispute over diplomat’s arrest

http://www.washingtonpost.com/world/...5b3_story.html

India expelled one Diplomat called May, who was in charge of security.

I wonder if he the brightest spark of the US Diplomatic Corps given his antics.

The Indian Govt asked the United States to withdraw May because he was involved in problematic U.S. actions last month, including the evacuation of Richard’s family.

The tickets for Sangeeta’s (the maid) husband Phillip and children Jennifer and Jatin were granted the 4.50 per cent tax exemption that is the norm for diplomatic missions in the country. The evidence of US embassy’s further collusion in the family’s travel to the US emerged on a day when diplomat Devyani Khobragade was granted exemption from personal appearances in a New York court as it took up charges of alleged visa fraud against her.


Further, how much of a diplomat can be seen from this:


Expelled US diplomat criticised for comments


US State Department distances itself from online remarks made by diplomat expelled amid row over Indian envoy's arrest.

http://www.aljazeera.com/news/southa...816225387.html

There are signs that this will blow over, but hopefully India can be in a position to demand reciprocity and maintain it.

Though the article below overdoes it, but you may read it to realise how the unilateral actions by the US affects not only India, but others too

http://www.telegraphindia.com/114011...p#.UtYkhJ61aAo

[Madhu]

The US should never have let things get this far and the initial error lies with the US. But this episode highlights how poorly the diplomatic services of both countries perform, at times.

Opinion is not a monolith within either the Indian or American community, and, as yet, I have see no comprehensive surveys of opinion outside of journalists or elite circles.

This diplomat was involved in a scandal involving flats in Mumbai that were intended for Kargil war widows and the like. It became a scandal in India when the flats went instead to connected high level ex-military and Indian government officials.

There is plenty of commentary in the Indian papers about how this official finally got caught out for behavior.

The three main opinions (based on comments to articles in Indian papers) include:

1. She got what she deserved and good for the Americans. Why does India appoint such unqualified people to diplomatic posts? No wonder the Indians get the run around.
2. The Americans are arrogant jerks and they have a habit of treating Indian officials badly, while feting others, including Pakistani officials with dubious histories.
3. She should be tried in India, not the U.S. She is a problem, but our problem.

Bill, what you are seeing is various fault lines within the Indian society and Indians abroad being displayed. India is a complicated place. There are many families with an Indian-American connection (whether in India or the US) that have a buried skeleton in the closet of being scammed for money or marriage matters. The worst stuff is said behind closed doors both in India and the US, and then, once in a while, it gets out to the public. Everyone here has a point because it's a complicated situation.

This "all of India is angry" really refers to the subset of people bothering to pay attention. That this includes officials is an issue but it's a hiccup.

It's good that this happened in one way; we both can have more realistic ideas about one another.

No one looks particular good in this matter.

The anger against the corrupt "babu" Indian class is real and at least some of the election year drama against this stuff is fear of what the Indian public might do to the comfortable life of its more connected officials.

Which doesn't make the US behavior correct. For diplomacy's sake, this should have been handled a different way.

By the way, Preet Bahara is an ambitious guy who has prosecuted lots of high profile cases. This is a better lens than the Brahama Chelleny or MK Bhadrakumar line of "more American than American" that Ray has brought up.

That is dated. The Indian community in the US is pretty comfortable in its skin. It doesn't need to prove anything to anyone, in general. (Naturally a generalization but none of the commentary is based on hard evidence, really, in terms of what general opinion is.

Khobragade is married to a well-to-do Indian American, a wine expert and academic with a good job. The maid apparently has parents that work for someone in the US Embassy in Dehli, I've read (but not sure).

The comments about the diplomat in the Indian papers by commenters is scathing.

You can search for blogs about so-called Indian babus to see this side of the commentary.

All sides are valid here because it is not straightforward on first blush and so many have behaved badly.

[Madhu]

Lots of articles in this vein. It doesn't mean the US is correct but it bears on the opinion about this case in various constituencies.

Most of the Western commentary has been about high flyers and the upper middle class. The larger opinion is hard to gauge, so many reporters are in a bubble that includes other reporters and the officials they cover. Myra McDonald at War on the Rocks seems to be a bit in this category, which is surprising. Generally a good commenter on these issues. At any rate, an article about Adarsh:

That's not all when it comes to Devyani's real estate holdings in Mumbai. When she got the Adarsh flat, she already owned a flat in another government housing society in Oshiwara, which too was allotted under the state government's 10 per cent quota where recipients get flats at extremely cheap rates as compared to Mumbai's stratospheric market prices, and which is another fount of corruption in Mumbai, with most flats cornered by politicians and their relatives, and of course bureaucrats and their relatives, and those connected to their powers that be, making a mockery of the 10 percent quota supposedly for helping citizens who need it most. As the Economic Times reports, a massive 42 percent of such flats allocated in the past 10 years were resold by allottees at much higher prices, making a killing in the bargain at the expense of the taxpayer and the common Indian. Things have become so bad with the 10 percent quota that the Bombay High Court recently warned the Maharashtra government of contempt if it continued to stonewall requests to name double and multiple allottees of such flats.

OTOH, Daniel Patrick Moynihan once said that the Indians so much as told us that they were going to go nuclear, so to speak, in the late 90's, and we just didn't listen. The case of the Indian fisherman and the Italians pretty much told us how the Indian elite class would react to this case.

And the Indians should have posted someone else after getting certain signals.

I doubt long term relations are seriously soured but both embassies seem to be a bit of a disaster.

Read more at: http://www.firstpost.com/india/how-a...ce=ref_article

[Ray]

As I said this case was not about Khobargde.

Her family are well known wheeler dealer and there is no symoathy for them.

It is a matter of principles and nothing else.

Do unto others as you would have others do unto you. [Matthew 7:12]

[Madhu]

Of course it's a matter of principle. It's also being used to comment on the state of the India American relationship.

More than one principle is at stake. The US shouldn't have let this get out of hand and someone needs to look at the State Department and the administration and how it got to this point.

But the Indians failed on a point of principle too; better quality people capable of following laws, especially where they have been warned, should be appointed. Diplomacy is a two way street. Vienna conventions and learning the ways of your host country and its behavior.

If now both Indian and American diplomats are more careful, good. It's a high flying life for some and they cause so much trouble for the nations they are supposed to represent.

I know of relatives that have been asked to fiddle papers for Indians assigned to the UN and the relative refused.

I'm sure the same goes on in India with American officials that try and skirt rules.

Maybe we should all focus on being competent for a change.

What goes around comes around. The US and India are both getting this message. At least, the more competent should understand. Letting it all get to this point is a clown show. The Chinese must be rolling around in laughter at both.

And both the Indian and American commentary is stuck in the 1970's. It's 2014.

Everyone has a point, everyone is correct on the one point they are discussing. But, overall, it's a complicated and multifactorial issue.

The punditry has been appallingly shallow in the papers.

[carl]

So she's connected. Color me surprised.

[Ray]

So she's connected. Color me surprised.

I don’t subscribe to Madhu’s – But the Indians failed on a point of principle too; better quality people capable of following laws, especially where they have been warned, should be appointed. Diplomacy is a two way street. Vienna conventions and learning the ways of your host country and its behavior..

Vienna Convention is clear about it as per Article 47 and there is noting wrong in what this woman has done.

However, the US does not recognise (though that is unique) and instead has A3 visa for diplomat’s personal helps.

Khobargade, I am sure was aware of it, and so to that extent, she is totally at fault.

Madhu is right that she should have been aware of it. In fact, if she was not aware of it, she had not done her homework and the External Affair Ministry of India failed in its duty in not briefing her. Height of incompetence I would say and people taking Indian Foreign Service merely as a vehicle to accumulate dollars as pay!

Qualified diplomats and she is not?

Can't blame India. India has 'reservations' i.e. quotas for Dalits and anything can pass through that sieve!

If honesty in selection is applied, then the West and the US will be the first ones to howl that Human Rights are being violated and there is discrimination!

Is she connected?

Yes, she is connected.

Her father claims to be a friend of the Home Minister and her credentials are even better. She is what is a Dalit and so she is a ‘special class’ to be handled with kid gloves and a necessity which the West makes a song and dance over of them being ‘deprived’ and India treating them as untermenschen.

Have you not seen that when India is to be bashed, bring in the caste angle and berate without logic! I have appended that stupid article from Forbes which is so absurd diluting reality into case - the favourite whipping boy of the West, and something which they do not understand.

No one complains about the class privileges and distinctions showered in the British society or which the Americans adulate and cherish and gleefully honour. Prince Harry and his nude show being one which was so wonderfully honest!

Now, why is the US treating this poor Dalit woman like an untermenschen? Why not give her some leeway as per the US liberalism and love for the assumed underprivileged?

Where is the US’ bleeding heart concern now?

The answer is simple.

The shoe pinches the one who wears the shoe.

I am not being obtuse, I am merely trying to present the Indian point of view so that Americans understand us. We want to be with the US, but on an equal relationship. We don't want stupid contentions thrown at us to justify the unjustifiable.

We have been subjugated by imperial powers, Moghuls and British for too long.

We want to experience what it is to be independent Indians for a change.

[jmm99]

and I'll think about renting a string quartet to accompany your heart rending "plea to the crown".

Two things should be clear to each and every person who has bothered to become familiar with the details of this case:

1. It is a false statement case (not a work permit case) and alleges that the consular officer lied in the documents that she filed with the US government (per complaint and affidavit by the DoS security officer); on the basis of which, a Federal magistrate issued an arrest warrant on felony charges (for lying, not for violating a work permit), carrying 5-10 year imprisonment penalties. This post and this post in this thread.

2. Although what the DoS did (in following the hardball prosecution route) met US legal requirements under Article 41 (the "grave crime" section) of the Vienna Consular Relations Convention (p.14 of pdf; from the MFA of Turkey, a sometimes prickly democracy), it was a total and complete cockup in terms of wisdom and rational judgment about short and long term effects.

In short, DoS (using the facts and law stated in the complaint and affidavit) should have declared her "persona non grata"; she would have left the country; and then India (being another prickly democracy, like the US) would have retaliated by declaring one of our New Delhi embassy personnel (the security officer involved at that end) "persona non grata" - end of story. So, I agree with Julian Ku that DoS deserves an "F" in how it handled its options in this case.

Both you and I know that DoS (to include its New Delhi embassy) handles Indian relations with all the grace of a club-footed pachyderm.

That being said, I'm not quite through with this topic (but almost). Dapo Akande has posted (on the European Journal of International Law blog) a three-part comment on the case, Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General; and, yes, the applicable article is Article 41 of the Vienna Convention (the "grave crime" provision). "Grave crime" is not defined in the treaty; as Dapo says, the choice was to use the generic "grave crime" (leaving specific definition to the country receiving the diplomat), or explicitly include a 5-year threshold. The UK for example, in its Consular Relations Act 1968 has:

“grave crime” shall be construed as meaning any offence punishable (on a first conviction) with imprisonment for a term that may extend to five years or with a more severe sentence;

As proved in the prior posts cited above in my point 1, the charges against your consular officer for lying in official documents carry 5-10 year imprisonment penalties.

Nor, would I get too sanctimonious about the Vienna Convention if I were an Indian. While the Union of India has ratified that Convention on its Executive level, its Parliament has not passed enabling legislation. Thus, the Convention is not applicable as a matter of Indian domestic law !

I cite to Jamal Mirza v. State (S.P. Garg, J.), Indian Law Reports (Delhi) ILR (2012) II Delhi, p.150 of pdf; citing as black-letter law:

Important Issue Involved: There is no automatic acceptance of an international treaty, even post ratification, as domestic law in India — It only becomes binding as law once Parliament has indicated its acceptance of the ratified treaty though enabling legislation.

The US and UK have taken the necessary legislative step - India has not.

As the Delhi High Court stated in its longer discussion of the Vienna Convention (pp. 160-161 of pdf):

59. The Supreme Court’s ruling in Jolly George Verghese v. Bank of Cochin 1980 (2) SCC 360 is that treaties entered into by the Union of India do not become enforceable in the courts and neither do they become part of the domestic law of India. Yet, they can be assimilated as aids to interpretation of the Constitution of India, to the extent their provisions are not inconsistent with municipal law. Justice Krishna Iyer elucidated on this point thus:-

“India is now a signatory to this Covenant and Art. 51(c) of the Constitution obligates the States to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” Even so, until the municipal law is changed to accommodate the Government what binds the court is the former, not the latter.” [emphasis by Justice Iyer]

and, specifically as to the Vienna Convention:

61. It can therefore be seen that there is no automatic acceptance of an international treaty, even post ratification, as domestic law in India. It only becomes binding as law once Parliament has indicated its acceptance of the ratified treaty through enabling legislation. Since no such legislation exists, this treaty is not binding, and therefore, non–compliance with its provisions does not result in a violation of the procedure established by law. The only rider is that if the standard postulated in the covenant or international treaty is consistent with Indian law, the same can be considered as an aid to interpretation of the relevant provision of municipal law. [emphasis added by JMM]

This also is a warning to US consular officers - you may well not be entitled to the "privileges" you were taught in rookie diplomat school, if you happen to be arrested in India for a violation of its domestic laws.

Regards

Mike

[carl]

Notwithstanding that India is a very large country with a varied population with varied identities and political views, India still considers US as a natural friend, though a very unpredictable and unaccommodating friend – a friend that ignores the sensitivity of others, ascribing its own morality and way of life as the sole and righteous standard.

Many elements of truth in there.

[carl]

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

[Ray]

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

Spot on.

[JMA]

Not in agreement on this one Carl.

What we see is another example of US arrogance together with a display of immature petulance from India.

The only good thing about this is that the US will have learned that their power is on the ebb and they can no longer ride rough shod over (what were once) 3rd world countries without causing an embarrassing tantrum.

India's test will come when they show the world they have the balls to stand up to China on some issue. Don't hold your breath.

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

[Ray]

India's test will come when they show the world they have the balls to stand up to China on some issue. Don't hold your breath.

Breathe free.

The wimp on his way out!

[carl]

JMA:

I don't think you are right and I hope you aren't, but I can't marshal a thunderingly persuasive argument to the contrary.

As far as India goes, perhaps India the country is much more stand up than the Indian leadership class. I got to thinking that when I read Ray's "breathe free" comment (if I got his inference right). One of the reasons I got to thinking it is the Americans are way more stand up than the American leadership class. Maybe India is a little the same.