“Diplomatic immunity” is one of the concepts that perplex ordinary people. Under international law including the 1963 Vienna Convention on Diplomatic Relations, all registered diplomats are immune from criminal jurisdiction of the receiving states. Even if a diplomat is caught red-handed right on the spot, no criminal prosecution or punishment is permitted. The only defense available for the receiving state under the convention is to declare such person as persona non grata ― meaning unacceptable person in Latin and abbreviated as “PNG” ― and ask the person to leave the country within a specified deadline. In exercising the right to PNG, complete discretion is given to the receiving state, as the Vienna Convention stipulates that PNG can be declared “at any time and without having to explain” the reason. A boilerplate statement issued by a receiving state is that activities of Mr. So-and-So are inconsistent with diplomatic function.
Seventy-two hours or 96 hours are then given to him to pack up and leave for his home country. As one can imagine, one of the common grounds for PNG declaration is the information gathering activities of foreign diplomats that have allegedly gone beyond the ordinary boundaries of diplomatic function.
The term PNG received rare attention in a recent case of Russia’s ejection of a U.S. diplomat stationed in Moscow on May 14 for alleged information gathering and intelligence gathering activities. The full details of the incident are not entirely clear as the two countries put forward different stories. Factual discrepancies notwithstanding, again under the Vienna Convention it is Russia’s prerogative, as a receiving state, to declare any diplomat as persona non grata.
What is interesting, though, is how the United States would respond, as it is not uncommon for a country whose diplomats were shown the door to PNG the other country’s diplomats of similar rank and conducting similar activities ― again it is within the discretion of a receiving state. Some of the recent examples include Spain and Russia in 2010, India and Pakistan in 2006, and the United States and Venezuela in 2006, to name a few. In July 1998, Seoul and Moscow issued tit-for-tat PNG declarations for their diplomats concerning alleged information and intelligence gathering activities.
Interestingly, there is no international legal norm that explicitly prohibits information gathering or intelligence gathering activities per se by a sovereign state. These activities are only prosecuted and tried in accordance with domestic national-security-related laws, if any, as once quipped by a prominent international lawyer that “[e]spionage is nothing but the violation of someone else’s laws.” So, declaration of PNG followed by the return of a diplomat to the home country usually solves the problem ― at least officially.
While countries closely cooperate in many issues of global concern, they still compete for more information and intelligence to safeguard and preserve their core national interest. In the era of drones and IT networks, traditional methods of information gathering through diplomatic missions, as have been the case since the days of Hugo Grotius, still remain robust and will likely continue to be so.
The tricky complication is that increasingly governments mobilize their foreign missions and other government information-gathering apparatus for commercial or business interests ― for instance, for the sake of the countries’ most important corporations and industries. After all, economic issues have become the focal point of diplomatic activities of many countries.
Unlike traditional information gathering activities concerning national-security-related areas which international law hardly regulates, plausible arguments can be made that these information gathering activities by governments for specific companies and commercial interests do contravene existing treaties and agreements. Here, the issuance of PNG and the arranged departure may not just end the inquiry once and for all, and a long legal battle over the accusations of treaty violation will follow. Of course, tensions among states are bound to flare up regarding all these issues.
By Lee Jae-min
Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.
