Persona Non Grata (Article 9 VCDR)
1. Historical background
The fundamental principle that the receiving State doesn’t need to continue suffering in a diplomatic capacity an individual who had become unacceptable to it, existed from the earliest period of diplomatic practice. In nearly all early cases, the reported misconduct involved political plotting against the sending State. The authorities unanimously agreed that the receiving State had the full right to "expel" the offending diplomat, with the discussion focusing solely on whether it had the jurisdiction to prosecute them for a criminal offense.
One early case was that of Don Bernardino de Mendoza, the Spanish Ambassador to Queen Elizabeth I of England. Don Bernardino was ordered to leave within fifteen days when investigations revealed his involvement in a plot aimed at deposing the Queen. Queen Elizabeth dispatched an envoy to Spain to clarify to Spanish authorities that her dispute was with Mendoza individually, not with his sending State, which was welcome to appoint a new ambassador. Despite this effort to maintain friendly relations proving unsuccessful, the practice of expelling a diplomat for personal misconduct, rather than actions attributable to their sending State, became widely adopted.
Writing in 1750, when immunity from criminal jurisdiction was firmly established, Vattel (Swiss diplomat and jurist) stressed that the receiving State should only expel a diplomat after seeking a) justice or b) the offender’s recall from the sending sovereign.
This approach, as advocated by Vattel, became common practice in the calmer political environment of the nineteenth century. Instances of outright "expulsion" faded, and requests for recall were handled discreetly, without public demands for explanations, though the details often surfaced and were recorded in diplomatic manuals.¹
1.2. Subsequent practice: Historical and Contemporary Examples
a. United States Diplomatic and Consular Staff in Tehran (Hostages Case)
In the Hostages Case (United States Diplomatic and Consular Staff in Tehran), the International Court of Justice (ICJ) addressed Iran’s Foreign Minister’s claim that the US Embassy seizure and hostage-taking of its diplomatic and consular staff should be viewed in light of alleged US interference in Iran’s affairs, exploitation of the country, and crimes against Iranian people, which violated international and humanitarian law. The ICJ ruled that, even if these allegations were true, they did not excuse Iran’s actions, as diplomatic law offers sufficient mechanisms to address and sanction unlawful acts by diplomatic or consular personnel.
According to Denza Article 9 formed part of a ‘self-contained regime’ which foresaw possible abuse by members of missions and specified the means to counter such abuse. Iran had at no time declared any member of the diplomatic staff in Tehran persona non grata, and did not therefore ‘employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities of the kind of which it now complains’.²
b. Espionage case: Soviet Union diplomats
In the initial years of the VCDR’s implementation, suspected espionage was the primary reason for declaring a diplomatic agent persona non grata or diplomatically requesting their recall. One important case occurred in 1971 when, after repeated cautions to the Soviet Union to decrease the number of KGB agents in its diplomatic and trade missions in London, the British Government requested the withdrawal of 105 Soviet officials. The Aide-Mémoire delivered to the Soviet chargé d’affaires detailed how the escalation of Soviet intelligence activities in Britain represented a direct threat to national security and highlighted that the frequent need to request such withdrawals had make it difficult the Anglo-Soviet relations.
The Aide-Mémoire concluded:
The Soviet Embassy is therefore requested to arrange for the persons named on the attached list, all of whom have been concerned in intelligence activities, to leave Britain within two weeks from the date of this aide-mémoire. Henceforth: (a) the number of officials in (i) the Soviet Embassy (ii) the Soviet trade delegation and (iii) in all other Soviet organizations in Great Britain will not be permitted to rise above the levels at which they will stand after the withdrawal of the persons named in the attached list; (b) if a Soviet official is required to leave the country as a result of his having been detected in intelligence activities, the permitted level in that category will be reduced by one.
After the Cold War, the frequency of diplomats that have been declared persona non grata for "activities incompatible with their status"—a common diplomatic phrase for espionage—decreased. In recent years, however, this has changed following the conflict in Ukraine.
Requests to withdraw diplomats from friendly countries for suspected espionage are highly unusual. However, in 1988, Britain demanded the removal of an attaché at the Israeli Embassy, allegedly for having been working for Mossad, and barred another diplomat who had left from returning. However, the Israeli embassy was permitted to replace both diplomats.³
c. Involvement in terrorist or subversive activities
Expulsions Involving Violence and Terrorism
Three Syrian diplomats were declared persona non grata by the West German Government in 1986 because they were involved in the supply of explosives used in terrorist attacks in Berlin.
In 1991, Germany ordered an Iraqi diplomat to leave within 48 hours after he illegally imported a Kalashnikov rifle and used it to threaten Kurdish protesters outside the Iraqi Embassy.
Iranian diplomats were expelled in 1994 from Argentina after a judge found evidence linking them to the bombing of the Argentine–Jewish Mutual Aid Association which had killed nearly a hundred people.
Kidnapping Attempts by Diplomatic Missions
In 1964, after discovering an Israeli citizen—that used to work as an interpreter at the Egyptian Embassy in Rome—bound, gagged, and drugged inside an Egyptian diplomatic bag at Rome airport, the Italian Government declared two Egyptian diplomats persona non grata.
In 1984, after members of the Nigerian High Commission were implicated in the kidnapping of Umaru Dikko, a former Nigerian Minister in London, and an attempt to smuggle him out in a crate labeled for the Nigerian Ministry of Foreign Affairs, two mission members were expelled. The Nigerian High Commissioner was recalled to Lagos for consultations, with indications that his return to the UK would be unwelcome.
In 1985, four Cuban diplomats attempted to kidnap a Cuban refugee in Madrid, and who was a former Cuban Minister. The Spanish Government expelled them.
In 1994, Venezuela expelled four Iranian diplomats for kidnapping an Iranian dissident and holding him and his family captive in a hotel. When the Iranian Ambassador protested, he was also declared persona non grata.
Arms-Related Expulsions
In 1989, French intelligence uncovered a plot involving South African officials and Ulster Loyalists to exchange arms and surface-to-air missile secrets. As a result, the French Government expelled three implicated South African diplomats from Paris. The following week, the British Government expelled three South African diplomats from London, explicitly stating they were chosen randomly and not involved in any wrongdoing. The use of Article 9 in this way by the UK Government, without alleging any personal impropriety by those required to leave, appeared to be without precedent.
Political Retaliation and Symbolic Expulsions
In 2007, the UK expelled four Russian Embassy diplomats as part of its response to Russia’s refusal to extradite Andrey Lugovoy, a Russian national, for the murder of Alexander Litvinenko by polonium-210 poisoning, or to cooperate with the UK in resolving the case. Foreign Secretary David Miliband described the expulsions to the House of Commons as a “clear and proportionate signal to the Russians,” while clarifying that the selected diplomats were not implicated in the murder.
In 1988, Nicaragua expelled the US Ambassador and seven other diplomats, accusing them of destabilizing the country and inciting revolt. These actions prompted retaliatoryexpulsions of Nicaraguan diplomats in Washington.
In 2008, Serbia expelled the Ambassadors of Macedonia and Montenegro in response to the recognition of Kosovo by the two sending States.
State Authorization and Retaliatory Expulsions
In most instances of espionage, subversion, or terrorism involving diplomats, the unacceptable activities were likely authorized or tacitly approved by the sending State. It is normal to see the sending government denies the accusations and responding with a reciprocal expulsion of diplomats from the receiving State.
Article 9’s authority, lacking oversight through objective evaluation of reasons or evidence, means retaliatory expulsions do not violate the VCDR. In such cases, there is no customary requirement that selected diplomats be suspected of misconduct. Diplomats expelled from one State under these circumstances are typically not dismissed from their sending State’s service and may be reassigned to other States.
Since the power given under Article 9 is not subject to control by objective assessment of reasons or evidence, we cannot consider retaliation to be a contravention of the Convention. Moreover, there is no practice that the diplomats selected as targets of the retaliation should at least be suspected of improper activities. Diplomats expelled from one State under these circumstances are typically not dismissed from their sending State’s service and may be reassigned to other States.
Collective Measures Against Diplomats allegedly involved in terrorist activities
In May 1984, following the fatal shooting of a British policewoman from the Libyan People’s Bureau in London, UK Secretary of State Sir Leon Brittan called on European Ministers of Justice to agree that diplomats expelled from any European State for terrorism-related activities should be deemed unacceptable in all other European States.
The Summit Seven States in Tokyo on 5 May 1986 adopted a Statement on International Terrorism directed against States ‘clearly involved in sponsoring or supporting international terrorism’. This Statement included the following measure: ‘denial of entry to all persons, including diplomatic personnel, who have been expelled or excluded from one of our States on suspicion of involvement in international terrorism or who have been convicted of such a terrorist offence’.⁴
d. Other breaches of criminal law and judicial review of decisions taken under article 9 VCDR.
The UK Government, in its 1985 Review of the VCDR, outlined a stricter policy for handling diplomats with immunity accused of serious offenses, defined as crimes carrying a potential penalty of six months or more imprisonment. While acknowledging that such cases were relatively few, the Government noted that since 1952, it had been standard practice to request a waiver of immunity in these instances, with the understanding that failure to waive immunity would lead to a request for the diplomat’s withdrawal.
The policy which had been drawn to the attention of heads of mission was:
As a general rule espionage and incitement to or advocacy of violence require an immediate declaration of persona non grata. Those involved in violent crime or drug trafficking are also declared persona non grata unless a waiver of immunity is granted. In addition the following categories of offence normally lead to a request for withdrawal in the absence of a waiver: (a) firearms offences; (b) rape, incest, serious cases of indecent assault and other serious sexual offences; (c) fraud; (d) second drink/driving offence (or first if aggravated by violence or injury to a third party); (e) other traffic offences involving death or serious injury; (f) driving without third party insurance; (g) theft including large scale shoplifting (first case); (h) lesser scale shoplifting (second case); (i) any other offence normally carrying a prison sentence of more than 12 months.
The criteria for dealing with alleged offences are applied with both firmness and discretion, but not automatically. Full account is taken of the nature and seriousness of the offence and any inadequacies in the evidence.
There are many examples of the application of this policy by the United Kingdom. In 1988 a third secretary in the Vietnamese Embassy was required to leave the country on twenty-four hours’ notice after he was brandishing a handgun at a crowd of protesters outside his embassy. Renewed warnings were issued to missions that diplomats faced expulsion if found carrying illegal firearms.
The United States made clear in Guidance for Law Enforcement Officers issued in 1988 that although Article 9 does not require a receiving State to justify a declaration of persona non grata, the Government regards itself as subject to inherent limitations:
Even though their immunity may deprive such persons of due process in the formal sense, it is felt that in most cases this remedy should be employed only when there is reasonable certainty that a criminal act has actually been committed. The United States reputation for being a society governed by the rule of law is not served if it may be pointed to as having acted in an arbitrary, capricious or prejudiced manner in invoking the extreme diplomatic tool of declaring a foreign diplomat PNG. Similarly, any PNG action which the U.S. government is not able to defend in appropriate detail may be understood by the other country involved as a political action and might thus result in the reciprocal PNG of an entirely innocent American diplomat.
In Copello v Canada (Minister of Foreign Affairs), a Canadian court ruled that an individual has no right to judicial review of an expulsion decision made under Article 9, as it is not part of Canadian domestic law, and the Canadian Government is not obligated to act fairly in such cases. Similarly, in T v Belgium, the Belgian Conseil d’État dismissed a Democratic Republic of Congo diplomat’s application for review of his recall under Article 9, affirming a comparable stance:
Such a request is a matter for the relations between States. By reason of its nature, the act by which the receiving State informs the sending State that a member of its diplomatic staff is persona non grata is not subject to review by the Conseil d’Etat for ultra vires.⁵
e. Parking offences
The UK Government’s 1985 Review of the VCDR expressed concern over widespread illegal parking by diplomatic vehicles and outlined a firm commitment to significantly reduce it. Heads of mission were informed that repeated, deliberate disregard for parking regulations and failure to pay fines would jeopardize diplomats’ acceptability in London missions. The government would track unpaid parking tickets, bring cases to the attention of heads of mission with warnings, and request the transfer or withdrawal of diplomats who continued to accumulate unpaid fines.
The UK Government requested the recall of several diplomats who repeatedly violated parking regulations. These demands led to the payment of outstanding fines, after which the requests were withdrawn. Though unprecedented, the use of the persona non grata procedure for such cases was reluctantly accepted by London’s diplomatic corps as within the receiving State’s authority under Article 9.⁶
1.3. Procedure
The effectiveness of Article 9 can be inferred from the near absence of instances where a receiving State has needed to use its authority under paragraph 2 to decline recognizing an individual as a mission member.
A rare case involved a Cuban diplomat Mr. Imperatori, who denied the espionage allegations leveled against him by the United States and openly declared his intent to defend himself in a U.S. court. Despite his refusal to leave by the designated deadline, U.S. authorities deported him to Canada.
In most of the situations when a diplomat is involved in personal misconduct, they leave or are recalled without the receiving State issuing a formal notice to revoke their recognition as a mission member.
Determining a precise "reasonable period" under Article 9 remains something difficult. Practice indicates that when a receiving State sets a departure deadline, it is significantly shorter than the time allowed for the standard termination of a diplomat’s duties under Article 39 of the Convention. A 48-hour notice appears to be the minimum that could be considered "reasonable." Diplomats declared persona non grata or not acceptable leave well within any deadline.
In 2006, a French judge's issuance of arrest warrants against nine Rwandans for the assassination of Rwanda's former president prompted Rwanda to recall its ambassador from Paris, demand the French ambassador to Rwanda depart within 24 hours, and require other French diplomats to leave within 72 hours. These exceptionally short deadlines were, however, imposed in the context of a total breach of diplomatic relations between both countries.
In the partial award of Diplomatic Claim, Eritrea’s Claim 20 (Eritrea v. Ethiopia), the Arbitral Tribunal addressed Eritrea’s contention that the 25-hour and 48-hour departure notices given to its diplomats were unreasonably short. The Tribunal ruled that, considering the context of active hostilities between Eritrea and Ethiopia, these timeframes did not violate Article 9 of the VCDR. According to the Tribunal the periods provided were sufficient in practice for the expelled diplomats to collect their families and belongings before leaving. ⁷
1.4 Limits of the Measure:
According to Denza: Article 9 has proved in practice to be a key provision which enables the receiving State to protect itself against numerous forms of unacceptable activity by members of diplomatic missions and forms an important counterweight to the immunities conferred elsewhere in the Convention. During the last twenty years it has been used in response to conduct by members of diplomatic missions which was barely contemplated when the Convention was drawn up. ⁸
Regardless of the reasons for ending a diplomatic mission, the diplomat retains the immunities and privileges tied to their official role until they leave the host country. In all circumstances, their personal inviolability remains applicable. ⁹
¹ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 61, 63.
² Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 64.
³ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 64, 65.
⁴ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 65, 68.
⁵ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 68, 71.
⁶ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 71.
⁷ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 72, 73.
⁸ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 64.
⁹ Ernest Satow, A Guide to Diplomatic Practice, 6th ed., ed. Ivor Roberts (Oxford: Oxford University Press, 2009), 368.