“While the U.S. argues that anyone in New York paid less than the minimum U.S. wage is being ill-treated, what is in fact the case is that anyone who has to live only on that wage is — as the U.S. NGOs so vehemently argue — condemned to a life of poverty and hunger. Forbes pointed out in an article earlier this year that the unemployed who live on welfare get more in several States than those who work for minimum wages. In New York, Forbes calculated the annual take-home from welfare at $43,700 a year, or $21.01 an hour, almost three times the minimum wage.
It is important to remember this because a help employed by an Indian diplomat has none of the expenses that are assessed to compute either a minimum or a living wage. She stays in a room in the diplomat’s house, with her food, clothing, medical bills and transportation all paid for. Every dollar she earns is saved. If Sangeeta Richard was paid $500 a month, she was saving that a month. No one living on minimum wages in the U.S. has savings; most are up to their eyes in debt. Saving $500 a month for them is a pipe dream. The black and Hispanic women who work as domestic help and charwomen in the U.S., and form its underclass as the societal and lineal descendants of slave labour, would happily trade places with Sangeeta Richard.
Members of our civil society who argue that she was bonded labour, as defined in our Bonded Labour System (Abolition) Act, perhaps do not know the terms under which domestic help are employed by Indian diplomats. Neither that Act, nor any of the judgments of the Supreme Court which interpreted it, applies to them.
Convention and obligations
Those who claim that the Indian government has no interest in protecting domestic workers, and therefore is indifferent to Sangeeta Richard’s plight, ask why it has not ratified Convention 189 of the International Labour Organization (ILO) “Concerning Decent Work for Domestic Workers,” which came into force in September 2013. This is unfair because the government of India voted for the draft, and has since prepared a draft “Policy for Domestic Workers,” incorporating many of the provisions of the Unorganised Workers’ Social Security Act (UWSSA), 2008.
It is also not germane to this case because ILO Convention 189 would protect a domestic worker abroad only if the host government has ratified it. Like India, the U.S. government also voted for the Convention in 2011, but made a remarkably candid statement in explanation of vote: “In the case of the United States, a number of the provisions present complex issues with respect to our existing law in practice, including in regard to our federal system of government. Accordingly, we want to make clear that our vote to adopt this Convention entails no obligation by the United States to ratify it.”
Convention 189 offers all the protections that the U.S. claims Sangeeta Richard was denied. If these are already statutory requirements in the U.S., it is hard to understand why the convention presented it with “complex issues,” which had to be reconciled with its laws.
What is disturbing is that the U.S. “evacuated” the Richard family after issuing them “T-visas,” given to the next of kin of victims of human trafficking. This meant that, in its view, Sangeeta Richard was a victim of human trafficking as defined in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime (UNTOC).
The protocol defines “trafficking in persons” in detail. None of the conditions precedent applies to Sangeeta Richard, and a person travelling on an official passport of a democracy run by the rule of law by definition is not someone who is being trafficked. Moreover, when the Indian Embassy had asked the U.S. government to help trace her when she absconded, the T-visas in response make it clear that the U.S. considered the Indian government complicit in human trafficking.
It follows that the U.S. does not have the slightest intention of abiding by Article 8 of the Protocol, which sets out the terms under which a victim of trafficking is sent back to her country. In turn, this violates the assurance the U.S. gave when it ratified the protocol, to which it entered a reservation, but clarified that “this reservation does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Protocol.”
Iran case
Instead, the U.S. claims that its laws were broken, and since a consular officer does not have the full immunity of an accredited diplomat, Ms. Khobragade was not immune from either arrest or subsequent prosecution. This, though, is not what the U.S. argued as the applicable international law when its diplomatic and consular staff were taken hostage in Iran in 1979, and the government in Tehran threatened to prosecute them for acts that were, in its view, crimes in Iranian law. The U.S. moved the International Court of Justice and in its submission, claimed inter alia that: “Pursuant to Articles 28, 31, 33, 34, 36 and 40 of the Vienna Convention on Consular Relations, the Government of lran is under an international legal obligation to the United States to ensure that … the consular personnel of the United States be treated with respect and protected from attack on their persons, freedom, and dignity; and that United States consular officers be free from arrest or detention. The Government of Iran has violated and is currently violating the foregoing obligations.”
The court ruled in favour of the U.S. on all points, by a large majority on most, but unanimously on the U.S. contention, examined at length in its judgment, that the Iranian threat to prosecute diplomatic and consular staff was a violation of the Vienna Conventions. The court held that: “no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.”
The U.S. therefore does not really have a case, on either moral or legal grounds. What is surprising is that it was prepared to offend a country that is now of some strategic and commercial interest to it, and so blatantly breach the Vienna Conventions that protect its diplomatic and consular agents as much as they do all others. Except, it seems, in Iran in 1979 and in the U.S. in 2013.
(Satyabrata Pal, a former High Commissioner to Pakistan, is a Member of the National Human Rights Commission.)