Recently India has apprehended two Pakistani High Commission officers for indulging in espionage activities and declared them persona non grata. The Officials were accused for spying and were asked to leave the country within twenty-four hours. Adir Hussain and Tahir Khan, the two accused were caught in a joint operation of Delhi Police and Military intelligence after months of surveillance. The accused were caught while obtaining documents on the Indian security establishment from an Indian national in exchange of cash and a smartphone. An FIR was filled against both the Officers under the Official Secrets Act. The Officials were detained and interrogated but later were released on the demand of Pakistan High Commission. A demarche or formal diplomatic representation was issued to Pakistan diplomatic officer wherein strong protest was lodged about the “activities of these officials of the high commission of Pakistan against India’s national security” and was asked to ensure that no member of its diplomatic mission should indulge in activities inimical to India or behave in a manner incompatible with their diplomatic status. The Article tries to explain the principle of Persona non grata and the immunity granted to diplomats.
Diplomat Immunity
A foreign diplomat enjoys immunity in the receiving state from any civil or criminal liability. It is covered by inviolability principle. This principle is known as immunity under Articles 22, 24, 29, and 30 Vienna Convention, 1961. The immunity of the diplomatic agent is based on the principle of inviolability. The immunity is a prerogative right granted to the sending state and not to individual diplomat hence the diplomatic officer cannot abrogate or waive his immunity without an approval of the sending state. The foreign Diplomat under the Vienna convention is granted immunity from jurisdiction of the receiving state in criminal and civil law. This immunity gives diplomat an exemption from the jurisdiction of the host state from any violation of law in the receiving state. Nevertheless, the immunity is subject to certain restriction or exceptions in certain cases such as:
- actions for recovery of purely private immovable property,
- actions relating to succession in which he is involved in a purely private capacity, and
- actions relating to any private, professional or commercial activity exercised by him.
In the above situations, a diplomat is not entitled for any immunity and the government of the receiving state can exercise its jurisdiction over the diplomat in the form of criminal, civil and administrative jurisdiction. The sending country can also waive off the immunity granted to its diplomat if it feels reasonably fit for the same. The waiver of immunity must be conducted explicitly or officially by the government of the sending state, as the immunity itself is a prerogative right owned by the state of origin of the diplomat. This waiver of immunity generally emerges when the diplomatic agent commits any criminal action or heavy violation of civil laws of the receiving state.
Persona Non Grata
The exceptions of immunity of a diplomatic agent is stipulated in article 31A to 31C and article 32 of the Vienna Convention, 1961. One such exception is persona non grata meaning “an unwelcome person.” The term in a diplomatic sense refers to a foreign person whose entering or remaining in a certain country is prohibited by that country. Under Article 9 of the Vienna convention on Diplomatic Relation, a country can declare any member of a diplomatic staff persona non grata” at any time and without having to explain its decision.” The persona non grata declaration is considered as the most damning form of censure which a country imposes on foreign diplomats considering they are protected from arrests and other forms of prosecution under diplomatic immunity. It is a mechanism to achieve a reasonable solution to the receiving state for defending and maintaining its national sovereignty and dignity and aims to restore and preserve the legal order in the society which could be distorted by a disgraceful deed or violation of law by a diplomatic officer. Persona non grata is the maximum sanction which can be imposed by the receiving state to the diplomatic agent for prevention of performance of territorial jurisdiction or law enforcement process relating to any criminal, civil and administrative case. It has mostly been used as a gesture as a way for a country to show displeasure with the actions of another country. This principle also applied to people who have yet to enter a country. Hence, such sanctions are applied unilaterally and arbitrarily. Since, persona non grata is used by a state discretionary, a possibility arises that the sending state might use the same action against the diplomats of the receiving state. This action of sending state is known as a reprisal Persona non grata. This action is not considered contrary to the principle of inviolability and immunity but it might result in disharmony or inequality in relations among states. The Principle of Persona non Grata Relations is based on sovereignty, equality and reciprocity principle hence, there would be great disorder and anarchy in the international community in absence of such principle.
The principle of Persona Non Grata was developed through international customary law and was codified in Article 9 of the Vienna Convention to construct and create balance, worthiness and justice between the principle of sovereignty and territorial jurisdiction on one hand, and the principle of inviolability and immunity on the other hand. It created a balance, worthiness and justice which will promote immaterial values. Principles of inviolability, immunity and persona non grata have universal values as these promote values like goodness, harmony and justice.
There have been many instances between India and Pakistan wherein both the countries have declared the diplomat of each other persona non garta. Such Instances have led to a bitter relationship between the two countries. In 1994, Pakistani diplomat was expelled by India on ground of espionage to which Pakistan in reply tortured and expelled an Indian diplomat on the same ground. India in return further expelled two other Pakistani diplomats and declared them persona non grata. The same in 2016 when India expelled Pakistani diplomat Mehmood Akhtar after he was arrested and accused of running a spy ring.
Conclusion
Though states are not absolutely bound by the provisions of Vienna convention 1961, they follow and abide by it as a gesture to promotes peace and harmony among nations. These provisions are very essential for maintaining a country’s sovereignty and peace. Such provisions help to build and develop good relationship among nations. But these provisions need certain amendments and the diplomats shall not be granted absolute immunity even in cases of war crime, or espionage and such other which hampers the peace of any receiving state.
About author –
This article is authored by Akhil Kumar Goyal, he is pursuing B.B.A., LL.B. from Chanakya National Law University, Patna. He is currently in his 3rd year and has a keen interest in IPR laws.
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