Specific sanctions in Diplomatic Law
1. Persona Non Grata (Article 9 VCDR)
2. Staff Reduction
Limits on the number of diplomatic staff, also known as ceilings, are typically implemented when missions are implicated in espionage or terrorism. In 1971, the United Kingdom imposed a ceiling on the Soviet Union's diplomatic mission and related agencies after expelling 105 Soviet officials for "inadmissible activities." The decision to further reduce this ceiling by one each time a Soviet official was expelled for intelligence activities was supported by Article 11 of the VCDR, which allows restrictions based on the "needs of the particular mission," excluding those "diplomats" engaged in non-diplomatic activities.
Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.
Experience shows that when a ceiling is placed on a diplomatic mission, the affected state often responds with reciprocal or retaliatory measures in the capital of the state that imposed that ceiling. This was clearly noted in the United Kingdom’s 1985 Review of the VCDR. The UK Government evaluated but dismissed the idea of broadly limiting the size of all diplomatic missions, stating that such a policy would not necessarily be useful to tackle unacceptable activities. They also warned that it could expose the UK to reciprocal actions, likely leading to retaliation against British missions abroad.
In addition to cases related to espionage or terrorism the United Kingdom also considers "the pattern of behavior of certain missions or governments, which suggest potential future involvement in unacceptable activities" as a basis for imposing or agreeing to ceilings on diplomatic missions as a preventive measure to avoid incident.
Typically, the United Kingdom avoids publicizing the imposition or specifics of diplomatic mission ceilings to prevent further straining relations and reduce the likelihood of retaliation. However, in certain cases, disclosing the reasons for such measures can highlight unacceptable activities or deter others from engaging in them.
In 1985, the US Congress decided that, over three years, the number of personnel in the Soviet diplomatic mission in Washington should match the US mission in Moscow, setting a ceiling of 225 for diplomatic, administrative, and technical staff. In October 1985, with 263 Soviet Embassy staff in these categories, 50 were expelled to comply with the congressional requirement. In retaliation, the Soviet Union expelled numerous Soviet nationals employed by the US Embassy, forcing the US to allocate its staff quota to roles like chauffeurs and cleaners instead of diplomats. This outcome seems to have reduced the United States' enthusiasm for imposing ceilings on diplomatic missions.
The United States invokes Article 11 of the VCDR to restrict the size of diplomatic missions with significant debts, asserting that sending states unable to fund their current level of representation should reduce it. Instead of setting a strict numerical ceiling, the US achieves this by rejecting replacement appointments. Though an uncommon use of Article 11, it can be justified on the grounds that it is neither "reasonable nor normal" for private creditors in the receiving state to effectively subsidize the financial deficits of an extravagant diplomatic mission.
According to Denza: Article 11—in spite of the new powers which it gave to the receiving State— has proved a much less effective weapon for controlling abuse of diplomatic immunity than Article 9. As the United Kingdom were well aware when they conducted their Review of the Convention in 1985, it is not possible to make use of Article 11 without provoking strong diplomatic hostility and—almost certainly—some form of retaliation. This is in part because it cannot be targeted even approximately at those individuals who have offended and it is therefore seen as an unfriendly act towards the sending State calling for countermeasures.¹
3. Mission Closure
According to Satow the mission of a diplomat accredited to a foreign Government, or to a Congress or Conference, may come to an end during his lifetime in any one of the following ways:
A. By his recall, owing to the dissatisfaction of his own Government, or at the request of the Government to which he is accredited. To avoid scandal, gossip or loss of reputation to the official who has been so unfortunate as to incur the displeasure of his official chief, it is usual to intimate to him that he may come away on leave of absence, or that his presence is desired at home in order that he may be consulted;
B. for any reason, sends him his passports without waiting for his recall. This may happen either when, in consequence of actions committed by him, the Government to which he is accredited no longer regards him as persona grata, or in consequence of offence given by his own Government the other resolves to break off relations.²
4. Restriction of Privileges
While less striking than expulsions, limiting diplomatic privileges—such as imposing movement restrictions or withdrawing special license plates—can express dissatisfaction. These actions require careful legal balancing: if too punitive, they risk violating the principle of functional necessity outlined in the VCDR.
The United States does not consider Article 25 VCDR (The receiving State shall accord full facilities for the performance of the functions of the mission) as preventing them from determining that repeated traffic law violations by a mission member demonstrate a "flagrant disregard for the laws of the United States." Consequently, they may revoke the individual's privilege to drive in the country. In the most recent Diplomatic Note circulated on 24 February 2004 to heads of mission, the Secretary of State said:
The Chiefs of Mission are reminded that the Department’s traffic violations policy is based on the principle that persons enjoying privileges and immunities in the United States are nevertheless obliged to respect United States laws and regulations. The policy further rests on the principle that the operation of a motor vehicle in the United States is not a right, but a privilege that may be withdrawn in cases of abuse.
In the United States, the Diplomatic Motor Vehicle Office tracks parking and driving violations using a detailed points system, which, in severe cases, can result in the suspension of a diplomat's driver's license. When a license is suspended, the respective embassy is requested to ensure the individual does not drive during the suspension period. Diplomats and their family members are expected to obtain necessary waivers and challenge any citations they believe were issued unfairly. For serious offenses, such as reckless driving or driving under the influence of alcohol or drugs, the State Department formally requests a waiver of diplomatic immunity. If the waiver is refused, the State Department’s policy is to require the alleged offender to leave the United States.
5. Agrément Under Article 4 VCDR
a. General Provisions
States may signal diplomatic disapproval by delaying or rejecting agrément (approval) for a proposed ambassador, as allowed under Article 4 VCDR.
Article 4
1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.
2.The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.
b. Interpretation and Purpose
Therefore, according to article 4 VCDR, no explanation is required for refusal, which may stem from political motives. This discreet preventive measure effectively hinders representation.³
Article 4 of the VCDR serves as an exception to Article 7, which generally allows the sending State to freely appoint mission staff. The requirement for agrément under Article 4 is justified by the sensitive nature of appointing a head of mission, who must be personally acceptable to both States to effectively conduct diplomacy. Consequently, agrément is required only for heads of mission.
Chargés d’affaires ad interim, unlike chargés d’affaires en titre, are not considered heads of mission and are thus exempt from Article 4. This distinction is clarified in Articles 14 and 19, and proposals to further specify this in Article 4 were rejected by both the International Law Commission and the Vienna Conference.⁴
c. Reasons for Refusal of Agrément
As the receiving State is not obligated to provide reasons for refusing agrément, it faces no legal limits on its discretion. Reasons for refusal typically become public only when the process deviates from its intended course. Many documented cases where reasons were disclosed predate the formalization of rules now enshrined in Article 4 VCDR.
In general practice, it is understood that reasons for refusing agrément should pertain to the personal attributes or actions of the proposed head of mission, rather than the broader relations between the sending and receiving States. However, this distinction can be nuanced when the refusal stems from public statements made by the nominee, such as in domestic meetings or legislative debates. For instance, in 1891, China rejected Mr. Blair as the US Minister because he reportedly criticized China while supporting the Exclusion Act of 1888. The Chinese Foreign Office stated they would reconsider Mr. Blair’s appointment if the Exclusion Act were repealed.⁵
d. Revocation of Agrément
Agrément may be withdrawn after being granted, as long as the new head of mission has not yet entered the receiving State’s territory. Once the head of mission has arrived, the receiving State’s options are to declare them persona non grata or request their withdrawal. In such cases, the head of mission retains privileges and immunities under Article 39.1 of the VCDR.
In May 1979, after granting agrément to a new US Ambassador, the Iranian Government requested a delay in his arrival and later asked for the appointment to be canceled. This was due to a US Senate Resolution addressing reports of secret trials and summary executions by Iranian revolutionary courts. The US complied but noted that this action hindered constructive US-Iran relations.
In 1968, King Faisal of Saudi Arabia revoked agrément for Sir Horace Phillips' appointment as Ambassador after learning of his Jewish heritage, which had been publicized in the British press.⁶
e. Specific Grounds for Refusal
In democratic States, suspicion of a proposed head of mission's involvement in criminal activities, including terrorism, or serious human rights violations would consistently justify the receiving State's refusal of agrément. For example, in 1984, the United States rejected Nora Astorga's nomination as Nicaragua's Ambassador. Six years prior, while working with the Sandinista revolutionaries, she had lured a Nicaraguan National Guard general and advisor to the then-President to her bedroom, where he was assassinated.
Another potential reason for refusing agrément is the likelihood that a proposed head of mission plans to engage in professional or commercial activities for personal profit during their stay.⁷
¹ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 80 - 83.
² Ernest Satow, A Guide to Diplomatic Practice, 6th ed., ed. Ivor Roberts (Oxford: Oxford University Press, 2009), 365 - 367.
³ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 38.
⁴ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 40.
⁵ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 41.
⁶ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 41.
⁷ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 42.