IRALR
Apr 4, 20215 min
This article has been authored by Somya Kumari, a third-year student at WB National University of Juridical Sciences (NUJS), Kolkata.
Introduction
In diplomacy, the term Persona non grata is a Latin word persona as “person” and non grata as “unwelcome” which means “person not appreciated or unwelcome person”. This term is used for foreign diplomats and ambassadors. To declare a diplomat as persona non grata, the receiving state may arbitrarily terminate a diplomat's functions in its territory. Following such a declaration, the sending state is required to recall this diplomat, who is then required to leave the country within a timeframe determined by the receiving state. It is the receiving state's only remedy against foreign diplomats /ambassadors who exceed the bounds of their functions. It is also considered as the most extreme and grave penalty that a nation might impose on foreign diplomats. They are protected from arrest and other forms of prosecution by diplomatic immunity. On the other side, Diplomatic immunity is a form of legal immunity that guarantees diplomats military protection and protects them from lawsuits or punishment under the laws of the host country, though there are chances they may be expelled. Under Article 41 of the Vienna Convention on Diplomatic Relations (1961), it is stated that the receiving state may establishes a deadline for a diplomat who has been declared persona non-grata to leave the host country "within a suitable time." When the deadline expires, the host state may fail to recognize the person as a foreign member from the mission. This will revoke immunity for the diplomat who has been pronounced persona non-grata in the host country, allowing public governments access to him.
The importance of persona non grata under Article 9 of the Vienna Convention on Diplomatic Relations (1961).
The diplomatic representative has become a significant necessity for a state to maintain strong political, fiscal, and commercial relations with other countries. The diplomatic envoy, as a representation of bilateral relations between nations, has a variety of responsibilities that must be fulfilled by diplomatic officers. There are two diplomatic laws i.e. Vienna Convention on Consular Relations (VCCR) and Vienna Convention on Diplomatic Relations (VCDR), covered on all procedures and rules of diplomatic and consular relations including provisions for diplomatic and consular immunity. These treaties provide a comprehensive framework for the functions, responsibilities, management, and termination of diplomatic as well as consular relations based on State responsibility which mandates that any state that breaches its international obligations be held responsible. The Vienna Convention, which has been ratified by a vast number of countries, is a multilateral treaty that can be considered a codification product. The Convention recognizes as binding any rule of international customary law that has been in use for a long time and includes clauses that contribute to the progressive advancement of international law and practice of diplomatic law. Diplomats, diplomatic mission members of staff, foreign agents' relatives, and mission members' personal servants are all granted differing degrees of protection from the receiving State's jurisdiction. The diplomatic agent, who is described as "the head of the mission or a member of the mission's diplomatic staff," enjoys the highest level of immunity.
Receiving States have a restricted range of choices for dealing with a diplomat's improper behaviour as a part of the Vienna Convention's strong immunity. Declaring the diplomat persona non grata is one way to deal with abuse; in this situation, the sending State must either recall the envoy or terminate his duties with the mission, effectively removing his future diplomatic immunity.
Under the Vienna Convention on Diplomatic Relations, Article 9 stipulates the provision for declaration of persona non grata, while Article 23 of the Vienna Convention on Consular Relations mentions the same. The aforementioned articles stipulate that
“1. 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.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.”
The case of espionage
On June 2020, Indian authorities declared two Pakistan High Commission officials as persona non grata. They were caught for indulging in spying activities. The Ministry of External Affairs stated that the Indian government had declared both officials "persona non grata" for engaging in acts "incompatible with their status as members of a diplomatic mission" and ordered them to leave the country within 24 hours.
Espionage is an act of spying or collecting classified or sensitive information or disclosing it without the consent of the information's owner. It is a gathering of data or secret information which includes data gathering from non-uncovered sources. Spies assist organizations with revealing mystery information. There are chances that any individual or spy ring (a coordinating gathering of spies), in the help of an administration, organization or autonomous activity, can commit espionage. The training is secret, all things considered by definition unwanted. In certain conditions, it could be a lawful apparatus of law implementation and in others, it very well might be unlawful and deserving of law.
Based on VCDR, A foreign agent should not break the rules of the receiving state. Hence, it is with the end goal for them to be declared persona non grata to guarantee that the law is maintained and that justice is done in the connection between the two states by virtue of the sovereign, correspondence and mutual respect. The declaration of persona non grata which prompted the removal of the two Pakistani officials by the Government of India is in order because of the fact that it would serve as a lesson to different diplomats to keep up the respect of a sovereign state.
Conclusion
When one country declares an individual as persona non grata is closely linked with the principle of inviolability and immunity. Only one out of every odd assertion of persona non grata finishes in expulsion on the grounds that occasionally, after certain consultations, the host state just marks a warning to the ambassador in order to avoid violations of its host nation’s laws. This generally happens on the off chance that it is proven that he led a serious wrongdoing equipped for compromising the security of the receiving state. It can be said that it is the maximum penalty that can be applied to an ambassador or diplomats whose functions harm the host state. In any case, declaration of persona non grata typically brings about the removal of the concerned ambassador just as giving a deadline for the diplomats to leave.