Diplomatic Diplomacy and Expulsions
The interesting question to Obama’s order to Expulsion of 35 Russian Diplomats under Persona Non Grata status is the refusal by Russia to comply with the order. Refusal to comply sets the stage for a first in history legal challenge under long held diplomatic laws governing world diplomacy by the United Nations in the April 1961 Vienna Convention on Diplomatic Relations and concluded in May 1969. The Vienna Convention is essentially a treaty therefore all nations including Russia as a signatory are subject to its laws and mandates.
Persona Non Grata status is considered the highest form of diplomatic censure and applied to persons of foreign governments as a declaration of “unwelcome” and non appreciative of committed actions while in a host state. In the Latin Personae Non Gratae, the Vienna Convention section 9 governs international laws of expulsion to include not only Diplomats but diplomatic personnel. The key word in Diplomat is embassies and consulates personnel are covered while UN diplomats and personnel are excluded. As applied to right under laws, a president can expel anytime, any person without explanation in a time frame given by the president. In the case of the Russian diplomats, Obama gave 35 Russian personnel 72 hours to leave as 72 hours is customary.
Failure to comply with an order of expulsion falls under the Vienna Convention’s Article 2 and is silent on the matter of refusal. The United States under the Office of Legal Counsel in the late 1970’s to address the Iranian hostage crisis interprets refusal to comply as an ability to use force such as the Secretary of State to revoke Visas in order to push out a diplomat or personnel. By Visa revocation, persons are not subject to the 1952 Immigration and Nationality Act to remain in country and fight to challenge an expulsion order in United States courts. Expulsions were never challenged except to declare immunity for judicial prosecutions yet failed under Baiz 135, US 403 in 1890 and Carerra V Carerra DC Circuit 1910.
An expulsion order by a host government must state specific person or persons and it means the host government fails to recognize that person as representative of a visiting government to do business, advocate or communicate with the host government. Persona Non Grata simply declares the person as non existent.
Failure to comply declares the person without rights as an alien non resident and clashes with Vienna’s article 29 as a person “under a diplomtic agent is inviolable and not subject to arrest or detention.” An Expulsion order rescinds Diplomatic Immunity status and questions the concept of arrest and detention if a law is violated especially as it relates to the question of “restraint”. The United States position is restraint is required if a United States citizen or property is harmed or in danger. Article 41 however states and traditionally understood by Diplomats and persons is in order to be received by the host nation, following national host nation laws is a given to maintain good graces of diplomatic status.
Attendant to this argument is the Russians must comply with an expulsion order by stripping persons of diplomatic status. Traditionally, diplomatic status was automatically rescinded by the sending state without question or argument and persons subject to expul;ion orders departed to home nations. A president under the privledges and Immunities clause must follow an expulsion order to its final conclusion as part of the exclusive responsibilities to conduct foreign policy.
The only ability for Diplomats to fight an Expulsion order is to declare the wrong person was identified. The only option to stay for a person under an Expulsion order is to declare Political Asylum under the 1967 Protocols Relating to Status of Refugees, 19 UST.
An order of expulsion is the specific domain of the President and Executive Branch under Article 2, Section 3 of the Constitution to receive Ambassadors and other Public Ministers. Article 2, Section 3 was codified by Jones V US, 137 US 202, 212 in 1890 and Baker V Carr 369 US 186, 212 – 213 in 1962.
Traditional Expulsions were met with an equal number of Expulsion by the receiving nation in a tit for tat. So far, the Russians refused to engage in this activity nor has full Diplomatic Relations been rescinded. To nullify full Diplomatic relations, the Ambassador must be expelled under an equal Expulsion by the Russians of the American Ambassador.
Last time Expulsion orders received such media attention was in Ronald Reagan days when Russian spies were sent to the United States as Journalists because status as Journalists gave ability to freely roam the United States without traditional Diplomatic scrutiny. Legal challenges were never mounted when spies violated United States laws of Espionage and expelled.