A diplomatic agent is a representative of a country designed to function as an intermediary between the host countries and the native country.
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Oxford law dictionary defines diplomatic agents as state officials entrusted to represent their states and the interest of all subjects in the jurisdiction of their host states.
Typically, the concept of diplomacy between countries dated back to the 15th century, however, the activities of diplomatic agents have changed over the years with an increasing level of interdependence among countries, and the number of treaties entered by countries. Duties of diplomatic agents not only to represent his native countries, but the diplomatic agents also carry out other diplomatic functions such as representing his country in the international treaties.
Under the Vienna Convention of Diplomatic Relations of 1961, the functions of diplomatic agents are classified as follows:
- To represent his native country. To protect the interests of the nation of his native countries.
- To negotiate on behalf of his sending state with the host state.
- Promote friendly diplomatic relations between the host state and his country.
- To enhance the cultural, economic, social, and scientific relations between his state and a host country.
- Finally, to furnish information on the development of the host state to his native country.
However, with the termination of diplomatic agents by persona non grata under Article 9 in conjunction with article 43, academic scholars of international law have come out to question the legal basis of the 1961 Vienna Convention.
To gain insight into the legal basis of the 1961 Vienna Convention and the rationality of persona non grata, this essay will provide the following objectives:
- To outline the specific conditions under which functions of diplomatic agents can be terminated by sending state.
- To examine article 43 (b) that contains a notification from receiving state to the sending State that a diplomatic agent has been declared as persona non grata, and functions of diplomatic agent come to an end inter alia.
This essay argues that the legal basis for declaring diplomatic agents persona non grata as contains in Article 43(b) and Article 9 of the Vienna Convention of 1961 is rather vague, insufficient, and leaves grounds for controversial interpretation. This leads to a conclusion that in a number of cases the rule of law was breached and replaced by non-motivated political actions.
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To established the evidence that the notion of persona no grata under the Vienna convention is subject of debate, it is essential to gain insight into the immunity conferred on the diplomatic agents under diplomatic law and the legal basis of this immunity under the Vienna convention (1961).
Diplomatic immunity is enjoyed by the members of diplomatic agents
To enhance the functions of diplomatic agents, diplomatic immunities are conferred on the diplomatic agents, and diplomatic immunity is the freedom of diplomatic agents from any legal proceedings in the receiving state. Under the Vienna Convention of Diplomatic Relations (1961), immunity is granted to the diplomatic agents to carry out their functions with freedom, independence, and security. Among the immunities enjoyed by the diplomatic staff are complete criminal immunity and civil immunity.
The immediate family of diplomatic members also enjoys immunity from all criminal prosecutions and civil lawsuits. Modern diplomatic relations have been codified by the Vienna Convention (1961) where more than 160 nations ratified the convention, which emphasized the diplomatic practice and diplomatic immunity enjoyed by the diplomatic staff.
However, immunity has sometimes being debatable by scholars, and when discussing the legal basis of community, it is necessary to gain insight into the theory of extraterritorial that indicates that the territory of the diplomatic agent should be regarded as part of the territory of a state.
Being a legal representative of a state confers a diplomatic agent to a legal status of a state. Thus, the theory indicates that the diplomatic territories such as the embassy of the sending states, residential houses of the sending states are enjoying immunity.
In addition, exterritorial theory, which is the oldest of the theory of diplomatic immunity, indicates that diplomatic offices, homes, and persons should be treated as if they are on the territory of the sending states. Although, the basis of the theory of exterritorial is that the diplomats should be within the territory of the sending states. These include diplomatic offices and the residence of the diplomatic agents. Although this theory had been extensively adopted in the 19th century, it was discarded by modern jurists and several decisions of different local courts reflect that the theory was fiction.
On the other hand, the representational theory indicates power confers to diplomatic agents as a person. From the representational theory, diplomatic agents should enjoy the same privileges given to Prince or Sovereign when conducting his diplomatic mission and an insult on a Diplomatic agent is an insult on Sovereign. The criticism based on this theory is that in the modern systems of the nation, immunity is increasing conferred on the nation rather than a King. In addition, modern diplomatic practice views that application of this theory places Diplomatic agents above the law of the receiving states.
However, the theory of functional necessity is more practical than the two theories as it is believed that diplomatic agents can not functions without enjoying certain privileges, and these privileges are primarily conferred on the diplomatic agents because of their functions.
Under the theory of functional necessity, immunity is granted to diplomatic agents as the necessity for the diplomatic agents to carry out their functions without hindrance, and this theory is the legal basis of the 1961 Vienna Convention that indicates that the immunities conferred on diplomatic agents are not to benefit an individual but for the benefit of sending states.
Looking at the interpretation, diplomatic agents are to perform their diplomatic functions without hindrance from any public officials of the receiving states and it is cited in Article 31 of Vienna Convention that states, “a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction”.
However, with immunity conferred on the diplomatic agents under Vienna Convention, article 9 of the Vienna convention specifies 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 may be declared non grata or not acceptable before arriving in the territory of the receiving State”. While article 43 states “ the function of a diplomatic agent comes to an end, inter alia”. This gives rise to debate whether persona non grata is justifiable under modern diplomatic practice. However, before discussing the rationality of persona non grata, it is essential to discuss how the termination of diplomatic functions is carried out as stated in the Vienna Convention (1961).
Termination of diplomatic functions
Under Article 43 in conjunction with article 9 of the Vienna Convention, a member of a diplomatic mission can be declared persona non grata by a receiving state without declaring the purpose of taking an action. The literary meaning of persona non grata is an unwelcome person, and the term has been widely used in diplomatic circles.
In diplomatic terms, a diplomatic agent may be declared persona non grata when a receiving state declared that a member of diplomatic staff should be recalled by a sending state and in doing so, a diplomatic agent has lost an immunity conferred on him.
Typically, with this action, a receiving state will no longer recognize the person as a member of a diplomatic agent. It should be noted that the legal basis of persona non grata of article 43 and article 9 of the Vienna convention (1961) reveal that the mission of a diplomatic agent has come to an end inter alia and the sending state should recall the member of diplomatic staff in question with immediate effect.
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Some scholars have argued that the ratification of the actions of receiving states was sometimes to punish a member of diplomatic staff. A state may also use this action as a symbolic indicator of displeasure on a sending state. For example, an Italian expulsion of Egyptian secretary in 1984. Moreover, during the cold war, persona non grata were widely used between the western and eastern blocs as tit-for-tat.
The debate has aroused the justification of persona non grata in the diplomatic circle. While some scholars believe that, there is no justification whatsoever for declaring a member of diplomatic staff as personal non grata because the purposes of the Vienna Convention are to promote friendly relations among states and enhance international peace.
To extend legal status on a member of a diplomatic agent, immunity is conferred on a diplomatic staff to ensure that a person works without hindrance.
Thus, declaring a member of diplomatic staff persona non grata may endanger international peace and the purpose of setting up the Vienna convention may be jeopardized. It should be noted that after the Second World War, there was the emergence of two blocs, the western bloc headed by the United States and the Eastern Bloc headed for a former USSR. These two blocs widely used the principle of article 9 of the Vienna Convention to punish each other which proves that the justification of persona non grata in the diplomatic community has been misused by states. It should be noted that there are instances where a member of diplomatic staff is declared persona non grata without any justification whatsoever. For example, complexity between the United Kingdom and Russia led to the expulsion of four British diplomatic staff from Moscow in 2007. The Russian government took this decision without any justification whatsoever and the British diplomatic staff was given ten days to leave Moscow. This gives rise to the reasons why some scholar begins to question the legal basis of the Vienna Convention. These scholars demand whether Vienna Convention (1961) could promote international peace as it was deemed to promote.
It should be noted that when making a critical look at Article 43 of Vienna Convention (1961), Denza, argues that the provision of Article 43 is questionable because when looking at the scope and purpose of the article, it reveals that article 43 was drafted in haste and probably there was undue pressure on the delegates that drafted this article. Moreover, there is strong evidence that the conference that drafted the article lacked sufficient time to envisage the implication of the article that empowers a receiving state to declare a member of diplomatic staff persona non grata without giving a specific reason.
In addition, article 43 does not indicate the circumstance where a member of diplomatic staff may be declared persona non grata. These reveal the loopholes of article 43 in conjunction with article 9 and these loopholes have been jeopardized international peace since 1961 when the conference of Vienna Convention was drafted.
It should be noted that up to this present day, states still use the persona non grata to punish a member of diplomatic staff suspected to go against their interest even if their interest may jeopardize world peace. For example, Evo Morale, a Bolivian President declared the US ambassador persona non grata and asked the ambassador to leave the country within 48 to 72 hours. The president accused the Ambassador of fomenting division in the country. However, upon investigation, it is revealed that Evo Morale, a Bolivian President is the leader of a major cocaine syndicate in Bolivia, and virtually all the cocaine produced in Bolivia is smuggled into the US.
Thus, in the effort of Washington to arrest the production and smuggling of cocaine to the US territory, the Bolivian president retaliated by expulsing the US ambassador from Bolivian territory. However, it is still unbelievable that despite the moral assault on Washington, Bolivia still receives $100,000 yearly from the US to combat cocaine syndicate.
All the events that lead to the abuse of the use of article 9 of the Vienna Convention give rise to make critical analysis on part 5 of the Preamble of Vienna Convention (1961) that states “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States”. This preamble has been subject to criticism and has been the source of violation of diplomatic immunity conferred on the member of the diplomatic staff.
Kirchner provides a strong argument on the basis of the nature of diplomatic immunity conferred on diplomatic staff. It should be noted that the diplomatic staffs are the subject of international law who have the rights and duties under international law and denying a member of diplomatic staff any form of immunity is like denying a sovereign state.
Denza provides an argument for the circumstances under which a diplomatic staff can be relieved of his function under the Vienna convention. The function of a member of a diplomatic staff can be terminated under three categories:
- First, when a period of diplomatic agents has expired or when he has completed the tasks conferred on him by a receiving state.
- Moreover, the arrival of a permanent head of mission such as an ambassador will cause the function of chargé d’affaires ad interim to come to an end.
- In addition, the death of a diplomatic staff can also lead to the end of the diplomatic function.
In some exceptional cases, a breach of diplomatic relations between sending and receiving states will lead to the termination of the diplomatic staff. The preambles of the Vienna Convention that exclusively indicates the manners in which a member of the diplomatic community can be terminated may lead to the conclusion that article 9 of the Vienna Convention is drafted without foreseeing the implication. This is because article 43 only refers to inter alia of the diplomatic staff without referring to the time, or under what circumstances functions of members of diplomatic staff can be terminated.
It is essential that phrase inter alia needs to be redrafted in order to ensure that the international community understands the full implication of the termination of functions of diplomatic staff.
While some scholars have argued that the inclusion of persona non grata is to protect a receiving state from spying upon by the member of diplomatic staff. These scholars argue that the purpose of article 43 in the Vienna Convention is to protect states against some unwanted habits that might arise from the member of diplomatic staff. While these groups of scholars may have some points on the legal basis of article 43 in the Vienna convention, nevertheless, it should be noted that the use of persona non grata has been widely abused and in most cases has been used as means of retaliation on states. For example, in 1971, the British government ordered the Russian government to recall 105 members of diplomatic staff based in England, accusing them of espionage. However, the real purpose of the action of the British government was to reduce the number of Russian diplomatic staff in the UK. In addition, during the cold war, there was wide misuse of persona non grata between the western and eastern blocs.
The typical example was the expulsion of the Soviet diplomats from a number of embassies worldwide especially from countries that were allied to the United States.
Apart from the misuses of persona non grata, some scholars have argued that the declaration of personal non grata violates fundamental human rights. Mugunthan provides a deeper probe on how article 43 violates human rights. While persona non grata has been widely used in the international community, it is essential to have a critical look at the declaration of persona non grata.
Declaration of persona non grata
Persona non grata in the subparagraph of article 43, which states that “The function of a diplomatic agent comes to an end, inter alia.”
While the stipulation of this article refers to the right of the receiving state to expel a member of diplomatic community it should be noted that ‘les expulsions des la member des l’diplomate meme s’il les expulsions massives ou les expulsions immédiates doivent etre considérés comme des violations de règles relatives à la procédure de déclaration persona non grata’. While pieces of evidence have shown that states use persona non grata as means of retaliation, it should be noted that the end of the cold war lead to the reduction of declaring members of the diplomatic community persona non grata and this provides evidence that the article 9 in conjunction with article 43 are being used for political purpose.
For example, the expulsion of Russian diplomats after the cold war is a very rare occurrence, and the accusation that Russian diplomats spying on the receiving states is also very rare.
Apart from the evidence given above, there is also evidence that persona non grata is being used for political objectives. For example, the increase in terrorist activities around the world sometimes leads to the expulsion of the diplomatic staff of countries whose citizens are involved in the terrorists and subversive activities. For example, a Libyan diplomat was declared persona non grata by Saudi Arabian government after Libya and United Kingdom broke diplomatic relations.
Political and legal consequences after the declaration of persona non grata
Although, in the diplomatic cycle, terrorism, espionage and other subversive activities are not acceptable in the international arena especially on behalf of sending state. However, evidence has revealed there are cases where the receiving states may suspect the sending states of practicing the subversive acts. However, it is usual for the sending state to claim innocence of these acts. It should be revealed that while the receiving states may declare the diplomatic staff’s persona non grata, there is no legal action that the affecting member of diplomatic staff could effect even if wrongly expelled from the territory of the receiving state. The only cause of action for the sending states is to retaliate against the receiving state. Lack of legal action a diplomatic staff could effect leads to the absence of assessment of judicial review on behalf of person non grata. It should be noted that an individual has no right to take any legal action against the action of a sending state by declaring a member of diplomatic staff persona non grata.
Evidence of this is revealed in the Canadian court over the case of Capello v. Canada, in this case, there was a confirmation from the court that states are not expected to act fairly.
Current state practice in the field of persona non grata
The opinion is diverse on the current state of personal non grata in the international community. While it is believed that states have reduced the practice of declaration of persona non grata because states have found a way of waiving immunity in the case of severe abuse of diplomatic immunity. Nevertheless, the United States that is known to champion the rule of law has been found to be involved in declaring diplomat’s persona non grata.
The state understands that any persona non grata on any member of the international community maybe lead to the action of reciprocity and retaliation.
It should be noted that the retaliations are the methods states deal with each other in the case of a state declaring a member of diplomatic staff persona non grata. For example, a Sudanese diplomat was expelled from Canada in 2007, this was in retaliation of Sudanese government action of unwarranted expulsion of Canadian top diplomat from Sudanese territory. According to Canada, the action of the Sudanese government by declaring Canadian diplomat persona non grata was unjustifiable.
Another case of retaliation over diplomatic row was the decision of the Australian government to declare Prime Minister of Solomon Island persona non grata after Solomon Island expelled Australian high commissioner Patrick Cole in 2006.
Moreover, France declared a member of the diplomatic staff of the Democratic Republic of Congo (D.R. Congo) persona non grata in Paris in 1997. This was in retaliation of the expulsion of the French first secretary from the embassy in Kinshasa by the D.R. Congo.
While evidence has shown that article 9 in conjunction with article 43 are to deter the fundamental human right of the diplomatic staff, it is however revealed that while the cold war has ended, states still use article 9 to expelled the members of the diplomatic community from their territory. The action of retaliation of the states against each other reveals that diplomatic immunity conferred on the member of diplomatic staff is sacred and should be acknowledged in the international community. It should be noted that immunity is the core of diplomacy and while immunity protects diplomatic staff from infringement by the member of the receiving states, declaring a member of diplomatic staff a persona non grata is an infringement of this diplomatic immunity conferred on the member of diplomatic staff.
It should be noted that in the Vienna Convention of 1961, the draft adopted in the convention was ratified by 190 nations, which makes people of the ratified nations recognize the immunity conferred on the member of the diplomatic community. Thus, the highest privileged that can offer a member of diplomatic staff is diplomatic immunity.
Thus, declaring a member of diplomatic community persona non grata is a violation of the rights given to the diplomatic staff and a violation of fundamental human rights.
It is very important to note that diplomatic immunity can not prevail where there is a violation of fundamental human rights. If a member of diplomatic staff is expelled, this is contrary to the protection of fundamental human rights.
While it is revealed, that Vienna Convention (1961) is to foster international peace after the holocaust of the Second World War and the rivalry of the cold war, which led to the amassment of deadly nuclear weapons. It is universally agreed that the Vienna convention (1961) was the largest assembly of nations states, nevertheless, there are preambles that need to be reviewed in the articles of the Vienna Convention (1961).
There is a need for an urgent review of article 9 and article 43 that stipulate that a member of diplomatic staff could be declared person non grata without any reason by the receiving states. It should be noted that states retaliate against each other based on these actions. Thus, revisions that need to be carried on the Vienna convention (1961) are as follows:
- There is a need to review articles 9 and article 43 and provided in the articles under what justification a member of diplomatic could be declared a persona non grata because it will be an injustice and violation of the fundamental human right to declare a person persona non grata without any justification.
- Moreover, there should be a clause in the Vienna convention where a member of diplomatic staff can seek redress in the court of the receiving state if a member of diplomatic staff is expelled from z territory of the receiving state.
- Finally, there should be a clause in the Vienna Convention in the case of expelling a member diplomatic community, there should be a public announcement from the receiving states on the reasons a member of diplomatic staff is expelled.
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