‘The rules of diplomatic law constitute a self-contained régime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse.’- United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)(Iranian Hostages Case) (ICJ,1980)
The recent unprecedented move by the Western bloc to expel more than 150 Russian diplomats in a coordinated response to the poisoning of a Russian ex-spy and his daughter in the United Kingdom has resulted in a massive action unseen even at the height of the Cold War.
More than two dozen countries including United States and United Kingdom have expelled Russian diplomats and Russia in a quid pro quo move has also expelled many diplomats.
The principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of the long-established regime.
But the States also have the unfettered right to declare any diplomatic or consular agent persona non grata and it is also one of the oldest principles of diplomatic and consular law.
One of the earliest and most celebrated cases was that of Don Bernardino de Mendoza, Spanish Ambassador to Queen Elizabeth I of England. On the suspicion of his involvement in a plot aimed at deposing the Queen he was ordered to leave within fifteen days.
Article 9 of the Vienna Convention on Diplomatic Relations (1961) clearly declares that the receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable.
In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person can be declared persona non grata or not acceptable even before arriving in the territory of the receiving State. Diplomats can also be declared persona non grata due to the conduct of the sending State itself, irrespective of the conduct of the agent concerned.
The Vienna Conventions provides a multitude of rights including the right of the mission and its head to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission.
The Convention categorically declares the premises of the mission to be inviolable (Article 22). The agents of the receiving State are barred from entering them except with the consent of the head of the mission.
The receiving State is also under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
Article 24 declares that the archives and documents of the mission are also inviolable. The receiving State is further under an obligation to permit and protect free communication on the part of the mission for all official purposes.
Even messages in code or cipher are allowed in communicating with the Government and the other missions of the sending State. The official correspondence of the mission – which means all correspondence relating to the mission and its functions – is also considered inviolable.
Similar protections have been provided even to the diplomatic bags which cannot be opened or detained. But such packages constituting the diplomatic bag must bear visible external marks of their character and can contain only diplomatic documents or articles intended for official use.
The person of a diplomatic agent is also inviolable and is not liable to any form of arrest or detention (Article 29). The receiving State is under an obligation to treat him with due respect and has to take all appropriate steps to prevent any attack on his person, freedom or dignity.
Even the private residence of any diplomatic agent enjoys the same inviolability and protection as the premises of the mission and his papers, correspondence also enjoys inviolability.
A diplomatic agent also enjoys immunity from the criminal jurisdiction of the receiving State (Article 31). He enjoys immunity from its civil and administrative jurisdiction too but there are certain cases as an action relating to private immovable property or an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person or an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
Article 44 declares that the receiving State must, even in case of an armed conflict, grant facilities in order to enable persons enjoying privileges and immunities to leave at the earliest possible moment.
It must, in case of need, place at their disposal the necessary means of transport for themselves and their property. Even if diplomatic relations are broken off between the States, or if a mission is permanently or temporarily recalled the receiving State is under an obligation, even in case of armed conflict, to respect and protect the premises of the mission, together with its property and archives.
In the case of United States Diplomatic and Consular Staff in Tehran (USA v. Iran)(Iranian Hostages Case) (ICJ,1980) there was an armed attack on the United States Embassy by militants on 4 November 1979 which resulted in the overrunning of its premises, the seizure of its inmates as hostages and the appropriation of its property and archives.
Such occupation of the Embassy by militants and the detention of its personnel as hostages was an event of a kind which provoked an immediate protest from the United States Government.
The attack and the subsequent overrunning was without any body of police, any military unit or any Iranian official intervening to try to stop or impede it from being carried through to its completion.
Despite assurances previously given by Iran to the United States Government and despite repeated and urgent calls for help, Iran took no apparent steps either to prevent the militants from invading the Embassy or to persuade or to compel them to withdraw.
Even thereafter the Iranian authorities made no effort to compel or even to persuade them to withdraw from the Embassy and to free the diplomatic and consular staff whom they had made prisoner.
On the question of its jurisdiction, the ICJ observed that as it was a dispute which concerned diplomatic and consular premises and the detention of internationally protected persons and involved the interpretation or application of multilateral conventions codifying the international law governing diplomatic and consular relations it was one which by its very nature fell within international jurisdiction.
The World Court observed that the inaction of the Iranian Government in the whole episode by itself constituted clear and serious violation of Iran’s obligations to the United States under the provisions of Article 22, paragraph 2, and Articles 24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, and Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations.
Then the series of facts which occurred following the completion of the occupation of the Embassy by the militants required action of the Iranian Government by the Vienna Conventions and by general international law.
It was obligated to make at once every effort, and to take every appropriate step, to bring the flagrant infringements of the inviolability of the premises, archives and diplomatic and consular staff of the Embassy to a speedy end and in general to re-establish the status quo and to offer reparation for the damage.
On the other hand expressions of approval of the take-over of the Embassy came immediately from numerous Iranian authorities, including religious, judicial, executive, police and broadcasting authorities.
Rejecting the argument of Iran that the action was primarily against certain harmful activities of the United States, the Court observed that in any case, even if the alleged criminal activities of the United States in Iran could be considered as having been established, the question would remain whether they could be regarded by the Court as constituting a justification of Iran’s conduct and thus a defence to the United States’ claims.
Answering the question in the negative, the Court observed that diplomatic law itself provided the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.
Both the Vienna Conventions of 1961 and 1963 contain express provisions to meet the case when members of an embassy staff engage in such abuses of their functions as espionage or interference in the internal affairs of the receiving State.
As a general rule, espionage and incitement to or advocacy of violence require an immediate declaration of persona non grata. The receiving State may “at any time and without having to explain its decision” notify the sending State that any particular member of its diplomatic mission is ‘persona non grata’ or “not acceptable”.
Beyond this remedy for dealing with abuses of the diplomatic function by individual members of a mission, a receiving State has also in its hands a more radical remedy if abuses of their functions by members of a mission reach serious proportions – of breaking off diplomatic relations with a sending State and to call for the immediate closure of the offending mission.
The Iranian Government did not break off diplomatic relations with the United States and at no time before the events of 4 November 1979 had the Iranian Government declared, or indicated any intention to declare, any member persona non grata. The Iranian Government did not, therefore, employ the remedies placed at its disposal by diplomatic law.
In the case of Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda) (ICJ, 2005) there were attacks by members of the Congolese armed forces on the premises of the Ugandan Embassy in Kinshasa and their maltreatment of persons who found themselves at the Embassy at the time of the attacks.
The Court observed that such acts of maltreatment by DRC forces of persons within the Ugandan Embassy were necessarily consequential upon a breach of the inviolability of the Embassy premises prohibited by Article 22 of the Vienna Convention on Diplomatic Relations and it was regardless of whether the persons were or were not nationals of Uganda or Ugandan diplomats. Insofar as the persons attacked were in fact diplomats, DRC further breached its obligations under Article 29 of the Convention.
The World Court went to the extent in holding that even though evidence available was insufficient to identify with precision the individuals who removed Ugandan property, the mere fact that items were removed was enough to establish that DRC breached its obligations under the Convention.
The removal of Ugandan property violated the rules of international law on diplomatic relations, whether it was committed by actions of the DRC itself or by the DRC’s failure to prevent such acts on the part of armed militia groups. DRC was thus held responsible for the breach of the inviolability of the diplomatic premises, the maltreatment of Ugandan diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of Ugandan diplomats at the International Airport and for attacks on and seizure of property and archives from Ugandan diplomatic premises, in violation of international law on diplomatic relations.
It can thus be clearly seen that the receiving State is under no obligation to allow a diplomat who has become unacceptable to continue its stay. The receiving State may make use of ‘persona non grata’ for many reasons which might include the offending actions of the sending State, irrespective of the conduct of the agent concerned.
The writers are Mumbai-based advocates and legal consultants.