Russia, the UK and the expulsion of diplomats

The last fortnight has seen diplomatic relations between the UK and Russia reach what may be a new low in the post-Cold War era. Russia has been accused of being behind the poisoning of former intelligence agent Sergei Skripal and his daughter Yulia Skripal. They were found collapsed in Salisbury on 4 March and are now in hospital in critical condition, as a result, it seems, of the use of a chemical said to have been identified as one of a group of nerve agents called Novichok. A police officer who attended the scene is also seriously ill. (For a timeline of events so far, see here).

On 14 March, Prime Minister Theresa May announced the expulsion of 23 Russian diplomats, describing them as “undeclared intelligence officers” and giving them a week to leave. Three days later Russia responded by announcing the reciprocal expulsion of 23 British diplomats, as well as the closure of the British Council in Russia and the British Consulate in St Petersburg.

The incident gives rise to a host of legal issues

The incident gives rise to a host of legal issues, including the UK’s claim in the Security Council that it amounts to an unlawful use of force against the UK, contrary to the UN Charter. (This very serious claim has been carefully analysed on EJIL:Talk!: see here. And Oxford University Press has compiled an excellent Debate Map setting out a range of relevant legal materials, including extracts from the the Denza and Satow books discussed below). The present post examines the law relating, not to the incident itself, but to the UK’s decision to respond by expelling the 23 Russian diplomats.

What is the legal basis for expelling diplomats?

Diplomatic relations between States are governed on the international level by the 1961 Vienna Convention on Diplomatic Relations (VCDR), one of the most-ratified treaties in the world.

Although politicians and the press tend to speak of the “expulsion” of diplomats, Denza in Diplomatic Law explains that “this is usually no more than convenient shorthand to denote use of the procedure in Article 9” of the VCDR. Article 9 provides 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 other 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 recognise the person concerned as a member of the mission.

The UK has incorporated a number of the provisions of the VCLT into domestic law by way of the Diplomatic Privileges Act 1964. Article 9 is not among those provisions, but would still bind the UK as a matter of international law (including customary international law).

When has this power been used?

It can be seen from the wording of Article 9 that it is primarily directed at cases where the diplomat has personally acted wrongfully. And there are a number of examples of spectacularly bad conduct by diplomats which have led to their being declared persona non grata. Satow’s Diplomatic Practice and Denza’s Diplomatic Law give a range of fascinating historical examples, pre- and post-VCDR, including:

• The expulsion by Queen Elizabeth I of the Spanish Ambassador, in 1584, after it came to light that he was party to a plot to overthrow her in favour of Mary Queen of Scots. The serious ramifications of a diplomatic expulsion were clearly appreciated: Elizabeth sent a senior official to Spain to explain the reasons for the expulsion and, “lest the Queene by sending him away might seeme to renounce the ancient amity betwixt both kingdoms”, to explain “that all offices of kindnesses should be showed, if he would send any other that were desirous to preserve amity, so as the same kindnesses might in like sort be shewed to her Embassadour in Spaine.” Thus Elizabeth’s focus was on the personal wrongdoing of the Spanish Ambassador, and she took care to emphasise her ongoing respect for Spain itself.
• Jumping forward to the twentieth century, the decision of the UK in 1971 to declare persona non grata 105 members of staff, including a large number of diplomats, at the Soviet embassy in London, following allegations of widespread espionage. Expulsions of diplomats on allegations and counter-allegations of espionage happened on a number of other occasions during the Cold War.
• The decision of a number of Scandinavian countries, in 1976, to declare a number of North Korean diplomats persona non grata following allegations of widespread smuggling and illegal sales of drugs, alcohol and cigarettes (including the expulsion by Denmark of the North Korean ambassador and his entire diplomatic staff after the discovery of 385 pounds of hashish).
• The expulsion of Libyan diplomats, including at ambassador level, from the UK, the US and Egypt in the 1980s and 1990s, on suspicion of terrorist or “subversive” activities – although the 1985 House of Commons Foreign Affairs Committee Report on the shooting of PC Yvonne Fletcher from the Libyan People’s Bureau in London concluded that the UK Government had been overly reluctant to use its powers under Article 9. This led the Government to state that it would apply more stringent standards to diplomats accused of serious crime (although see here for our analysis of whether effective standards are in fact being applied).

What’s the position in the Skripal case?

The examples given above all appear to be cases of personal misconduct, proven or alleged (although it is not clear that there were espionage allegations against all 105 Soviet officials who were expelled from London in 1971: the concern appears to have been partly the size to which the Soviet embassy had grown). As Satow puts it, “the characteristic feature of the persona non grata procedure is that it is the diplomat personally who has offended the receiving government.”

It is difficult to see what is achieved by such expulsions

It does not appear to have been suggested that any of the 23 Russian diplomats who were expelled by Theresa May last week were personally guilty of any involvement in the Skripal affair. She described them to the House of Commons as “undeclared intelligence officers” – but presumably, even if correct, this was already known to the UK Government (given that there had hardly been time since Sergei Skripal was taken ill to carry out an investigation which would have reached such a conclusion), and had not to date been considered to justify the use of Article 9.

In the absence of any allegation that any of the 23 diplomats were involved in the Skripal affair, it appears that their expulsion was, rather, a form of broader reprisal against Russia. On the face of it, that sits uneasily with the wording of Article 9. The US State Department takes the view that:

“[I]n most cases this remedy should be employed only where 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 [persona non grata]. Similarly, any PNG action which the US government is not able to defend in appropriate detail may be understood as a political action and might thus result in the reciprocal PNG of an entirely innocent American diplomat.” (Department of State Guidance for Law Enforcement Officers with regard to Personal Rights and Immunities of Foreign Diplomatic and Consular Personnel, (1988) 27 ILM 1617).

But as Satow notes, “By contrast, the United Kingdom has in a few exceptional cases required recall of diplomats without suggesting that they were personally involved in unlawful activity.” This includes the expulsion of four Russian diplomats in 2007 in the wake of the death of Alexander Litvinenko. This was described by the then Foreign Secretary David Miliband as a “clear and proportionate signal to the Russians” – but no suggestion was made that the diplomats had been personally involved. In such “exceptional cases”, diplomats are expelled without any suggestion of wrongful conduct by them personally.

What do such expulsions achieve?

Interestingly, despite the UK’s willingness to use Article 9 very sweepingly in this case, it continues to take no action in many other cases where serious allegations are made against diplomats personally (a problem which we analysed here).

The “expulsion” of the 23 diplomats in the present case has, predictably, led to exactly the sort of “reciprocal PNG” which the State Department guidance warns against, with 23 British diplomats being promptly expelled, along with the closure of the British Council in Russia (hardly, it would seem, a threatening institution) and the British Consulate in Saint Petersburg.

It is difficult to see what is achieved by such expulsions. As the above analysis shows, they are not what Article 9 was intended to cover. It is understandable that States sometimes wish to vent their displeasure with other States (particularly in a high-profile incident where there are few other options for immediate retaliation). But the expulsion of diplomats who are not accused of involvement in the incident, leading to a tit for tat between the two States, is little more than a symbolic gesture, and may simply worsen diplomatic relations at a time when diplomacy – which depends on the reciprocal presence of skilled diplomats – is most needed.

There will need to be a thorough investigation into the Skripal case, in order to establish where responsibility lies. It remains to be seen what other strands there will be to the UK’s legal response (see here for an interesting list of options) and whether they will have more practical bite than the symbolic gesture of diplomatic expulsions.