Legal considerations as to Peacetime Espionage in light of recent Indo-Pak Diplomatic

Rift
In a diplomatic ruffle reminiscent of Cold War games played between US and USSR, India
and Pakistan have declared the diplomats of the other countries as persona non grata on the
ground of alleged espionage committed by those diplomats. Though less frequent, the
expulsion of diplomatic staffs and sometimes even diplomats on the ground of espionage is
not new between these two nations. Expulsions of Pakistani diplomatic staffs from the India
have often led to reprisals from Pakistan doing the same to Indian diplomatic officials and
vice-versa. In this context, it is relevant to look into how international law deals with
espionage carried out through diplomatic missions wherein a person inside the diplomatic
structure clandestinely acquire defence/security related information of other states. This
article examines whether obtaining secret military information related to national security by
the diplomatic officials without the consent of the state controlling the information is in
violation of international law or not. Secondly, it examines the appropriateness of the
declaration of persona non grata as a remedy to curb such espionage.
It is important to look into the legality of espionage in international law for Article 3(b) of
Vienna Convention on Diplomatic Relations (hereinafter, VCDR) requires the diplomats to
protect the interests of the sending state only to the extent which is permissible under
International Law. But, it is paradoxical to note that there are no explicit treaty norms which
specifically deal with peacetime espionage in light of the heavy amount of intelligence
activities conducted by states. In the absence of such norms, the legal status of espionage in
international law is widely debated among academic circles. However, it is my assertion that
espionage should be considered as violation of international law.
Firstly, it is the duty of the state to respect the territorial integrity and political independence
of the other states. One of the US resolutions, largely reflective of customary international
law, dictates that states must not intervene directly or indirectly in internal or external affairs
of other States. In as much as espionage committed by diplomats is in violation of the law of
the receiving state, it constitutes an unlawful interference provided that the laws violated are
not in violation of any international norms. Secondly, it is not a distant possibility that
espionage can be done in preparation of an armed attack and as such it will constitute a threat
or use of force which is prohibited under Article 2(4) of the UN Charter. The proponents of
espionage, however, view peacetime espionage as a component of right to self-defence under
Article 51 of the UN Charter in light of the threats posed by other nations. It must be noted
that the right to self-defence, as laid down in the Nicaragua case, can only be claimed when
there is an actual armed attack which is not the case with espionage. Even if we consider
pre-emptive use of self-defence, it is necessary that such use must be based on an imminent
threat. However, most of the time peacetime espionage is done when the state does not have
any concrete knowledge of imminent threats against it. Thirdly, even though there is state
practice which supports peacetime espionage there is no opinio juris which can make
espionage permissible under customary international law.
Moreover, even if we acknowledge that peacetime espionage is not outlawed by general
international law; international diplomatic laws are quite strict with espionage activity. Article
3(1) (d) of VCDR provides that the function of a diplomatic mission to ascertain conditions
and development has to be done by lawful means. The term lawful means, inter alia, has
to be interpreted in light of Article 41(1) of VCDR which makes it a duty for all the persons
within the diplomatic structure to follow the laws of the receiving state and not to interfere in

the internal affairs of the receiving state. It goes without saying that espionage against the
vital national security in most of the national jurisdictions is considered as illegal Therefore,
any collection of information in violation of national law is in breach of Article 3(1) (d) of
VCDR.
However, it might be possible that the receiving states may have laws which entirely restrict
information collection by the sending state. But Article 26 of Vienna Convention on Law and
Treaties dictates that the obligations of a treaty must be performed in good faith which in
effect means, among other things, that states must not do anything which defeats the basic
purpose of the treaty. As far as VCDR is concerned, the evidence of travaux preparatories of
the treaty suggests that the diplomatic function of observation is one of the basic functions
envisaged under VCDR. Consequently, any restrictions by national laws on the information
collection have to be diplomatic function of observation. Therefore, the apprehension that
such interpretation of lawful means would restrict information collection in an inequitable
and unfair manner is quite misplaced in nature.
Moreover, the argument against espionage carried out by the diplomatic mission can also be
buttressed by the fact that Article 41(3) of the VCDR provides that the premises of the
diplomatic mission shall not be used in any manner which is incompatible with the functions
of the mission or if it is in violation of international law. Though, it is definitely the function
of diplomat to observe things which includes not only political, social, economic and cultural
aspects of a nation but also includes issues pertaining to national security. However, it does
not give the diplomatic mission carte-blanche to acquire whatever information it wishes in
whatsoever manner. There is a certain threshold which the diplomatic mission has to follow
and, according to some international law scholars, once they start acquiring information
classified as secret by the receiving state the diplomatic mission is certainly breaching that
threshold.
Even though espionage carried out through diplomatic mission is not permissible under
international law, the frequency of such activity is nonetheless on the rise. One of the
underlying reasons behind this is that there is no effective deterrent against such activity
carried out through diplomatic mission for the members of the mission enjoy absolute
immunity as to any criminal proceedings in the receiving state under Article 31 of VCDR. At
worst what can happen to diplomatic personnel engaging in espionage is that they would be
expelled from the receiving state under Article 9 of VCDR to be prosecuted in the sending
state for professional misconduct in an administrative setting. There wont be any criminal
sanctions against them.
The underlying philosophy behind the immunity is to ensure efficient functioning of
diplomatic process and not to benefit individuals. However, the Vienna Convention deviates
from its philosophical ethos in as much as it focuses on individuals rather than conduct since
it provides for absolute immunity to an individual from any criminal proceeding. Instead, the
correct way would have been to safeguard the diplomatic process by immunizing the
individuals only to the extent that their conduct is compatible with the diplomatic process and
clearly espionage is the activity which is not compatible with a diplomatic mission. Such
notion is also supported in the Tehran Hostages judgment which stated that espionage is an
abuse of diplomatic functions.

It is being assumed that giving absolute immunity to the criminals can be only way out to
ensure the smooth functioning of a diplomatic mission. However, this is not the case. There
are other legitimate measures, like setting up of an inquisitorial Permanent Diplomatic Court,
being debated in academic circle which not only balance the threat posed by the espionage
but also prevents harassment of the diplomats acting in good-faith by the receiving state. It is
therefore necessary, in light of increased proportion of espionage activity, that the
international community must contemplate and debate on alternative measures which take a
middle path instead of taking the immunity of diplomatic personnel for granted.