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Diplomatic Law - Commentary on the Vienna Convention on Diplomatic Relations, 4th Edition by Denza, Eileen (14th January 2016)

The Diplomatic Bag

From: Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th Edition)

Eileen Denza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 06 December 2019

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations

(p. 191) The Diplomatic Bag

Article 27…

  1. 3.  The diplomatic bag shall not be opened or detained.

  2. 4.  The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.…

Prior to the Vienna Conference it was certainly accepted international practice, and probably international law, that in exceptional cases where the receiving State had grounds for suspecting abuse of the diplomatic bag it might challenge it. The sending State might then be given a choice between returning the suspect bag to its place of origin and allowing it to be opened for inspection by the authorities of the receiving State in the presence of a member of its own mission.

Given the vulnerability of communications sent by wireless, by telephone, or by correspondence through public facilities—described in the commentary on Article 27.1 and 27.2 and apparently increasing as technology advances and leaking meets with public sympathy—States attach prime importance to the security of the diplomatic bag for reliable transmission of confidential material. But there is a continuing need to balance the need for confidentiality of diplomatic communications with the need for safeguards against possible abuse. Paragraphs 3 and 4 of Article 27 tilted the balance in favour of greater protection for the bag. The reservations made to these paragraphs of Article 27 and subsequent evidence of abuse as well as public reaction to it show how difficult it is to achieve an acceptable balance.

Negotiating history

A draft provision reflecting the position under customary law, permitting ‘challenge and return’ of a suspect diplomatic bag, was included in the draft articles prepared for the International Law Commission, but withdrawn in the revised text submitted to them in favour of provision that the bag ‘shall be exempt from inspection’.1 There was prolonged controversy in the Commission. Some, including Sir Gerald Fitzmaurice, stressed the dangers of traffic in diamonds, currency, drugs, and even radioactive materials and urged that where there were very serious grounds for suspicion there should be exceptional provision for controlled inspection ‘on the highest authority and after communication with the mission concerned’. Others including Mr Tunkin from the Soviet Union and Mr Padilla Nervo favoured unconditional immunity for the bag. In their view:

That did not mean, however, that the sending State did not owe a duty to use the pouch exclusively for the transmission of diplomatic correspondence. But—and that was the main point—even the (p. 192) non-observance of that duty did not create a right to inspect the diplomatic pouch; any such situation would have to be remedied by other means.

Eventually a delicate compromise was reached under which the text of the draft article would state that ‘The diplomatic bag may not be opened or detained.’ The Commentary would contain a qualifying passage eventually formulated in these terms:

The Commission has noted that the diplomatic bag has on occasion been opened with the permission of the Ministry of Foreign Affairs of the receiving State, and in the presence of a representative of the mission concerned. While recognizing that States have been led to take such measures in exceptional cases where there were serious grounds for suspecting that the diplomatic bag was being used in a manner contrary to paragraph 3 of the article, and with detriment to the interests of the receiving State, the Commission wishes nevertheless to emphasize the over-riding importance which it attaches to the observance of the inviolability of the diplomatic bag.2

In 1958 the Rapporteur proposed to the Commission a formulation which amalgamated the provisions now contained in paragraphs 3 and 4 of Article 27. The object was to place the provision which could be said to constitute the definition of the diplomatic bag before the provision prohibiting opening or detention. The rearrangement was not, however, acceptable to the Commission, who considered that it might give rise to the argument that the protection of the bag from opening or detention was conditional on its complying with the requirements limiting its contents. This would be a dangerous argument, since the contents of the bag could only be established to the satisfaction of the receiving State by inspection. The Commission therefore retained the 1957 text on the basis that it was not open to such a construction, and that the protection given to a properly identified diplomatic bag was unconditional. It is also notable that although the text does not expressly confer full inviolability on the bag, providing only that it might not be opened or detained, several delegates referred to the draft article as providing inviolability, and the Commentary contains the sentence: ‘Paragraph 3…states that the diplomatic bag is inviolable.’3

Numerous amendments were submitted to the Vienna Conference with the aim of limiting the unconditional protection to be given to the diplomatic bag. France proposed permitting inspection in the presence of a member of the mission of the sending State, the United States proposed permitting inspection only if the sending State chose to submit to inspection rather than send the bag back (the ‘challenge and return’ option), while the United Arab Republic and Ghana proposed allowing the receiving State to reject a suspect bag. A late amendment by France and Switzerland would have reformulated the two paragraphs so as to set out the permissible contents of the bag before providing that it might not be opened or detained (the arrangement previously rejected by the Commission). All of these amendments were withdrawn or were rejected by the Conference.4 Article 27 paragraphs 3 and 4 therefore on their face prohibit the opening or detention of a diplomatic bag under any circumstances.

(p. 193) Reservations and objections

The controversy over the protection to be extended to suspect bags did not end with the adoption of Article 27. A number of Arab States on ratifying or acceding to the Convention entered reservations seeking to limit the inviolability given to the diplomatic bag. Kuwait in 1969, Libya in 1977, Saudi Arabia in 1981, and the Yemen Arab Republic in 19865 reserved the right, if they had serious reason to suspect the existence of items in a bag not authorized under the terms of Article 27.4, to request that the bag be opened in the presence of the representative of the diplomatic mission concerned and to require the bag to be returned to its place of origin if this request was refused. Qatar, acceding in 1986, reserved the right to open a diplomatic bag in two situations. The first was:

abuse, observed in flagrante delicto, of the diplomatic bag for unlawful purposes incompatible with the aims of the relevant rule of immunity, by putting therein items other than the diplomatic documents and articles for official use mentioned in para. 4 of the said Article, in violation of the obligations prescribed by the Government and by international law and custom.

In this case the Foreign Ministry and the mission would be notified, the bag would be opened only with the approval of the Foreign Ministry and ‘the contraband articles will be seized in the presence of a representative of the Ministry and the Mission’. The second case was the existence of ‘strong indications or suspicions that the said violations have been perpetrated’. In this case Qatar reserved the right to act as in the reservation by Kuwait and others described above. The most radical reservation was in 1971 by Bahrain which simply reserved ‘its right to open the diplomatic bag if there are serious grounds for presuming that it contains articles the import or export of which is prohibited by law’.6

These reservations provoked a large number of objections from other States Parties. The Bahrain reservation met with a formal objection from nearly all European States—Western and Communist bloc alike. Several States said that they did not regard it as valid, and Germany stated that it was incompatible with the object and purpose of the Convention.7 The Netherlands in rejecting it said that on a basis of reciprocity they would be prepared to operate the ‘challenge and return’ system contained in the Kuwait reservation. It may be suggested that as between Bahrain and other States which have formally objected to its reservation, the same position applies, since the outcome of not applying the text of Article 27 paragraph 3 is that customary international law continues to apply—and customary international law in fact authorized the possibility of ‘challenge and return’. A few States (including The Netherlands) treated the Qatar reservation on the same basis as that by Bahrain, although it is doubtful whether this is correct. ‘The abuse, observed in flagrante delicto’, of the diplomatic bag is a special case which will be discussed more fully below. The similar reservations by Kuwait and others attracted far fewer objections. Since the effect of objecting to these reservations would probably, as suggested (p. 194) above, be no different from accepting it and applying it on a basis of reciprocity, it seems that many States who considered the matter concluded either that the reservation could be accepted or that there was no purpose in objecting to it.

It should be noted that a State which has not objected to any of the above reservations may invoke them on a basis of reciprocity against the reserving States. This possibility assumed considerable importance to the United Kingdom when, following their breaking of diplomatic relations with Libya after the 1984 shooting from the People’s Bureau in London, preparations were made—which included taking empty bags into the mission premises—for the evacuation of the persons who had remained under siege in the premises. Ministers were advised that, as explained by the Legal Adviser to the Foreign and Commonwealth Office to the House of Commons Foreign Affairs Committee:

The fact of the matter is that the Law of Treaties Convention, which in this respect reflects customary international law, provides that where a State has established a reservation against another party, and that was the case with Libya as against the United Kingdom since we did not object, that reservation qualifies the obligation to which it is addressed for both of them. So, without more ado, we would have had the ability to respond.

The Committee concluded that the decision not to challenge the Libyan bags was a matter of political judgment, and they did not dissent from that judgment.8 It emerged also from evidence given to the Committee that the Libyans had never invoked their reservation in order to request a search of a UK bag.9 Nor is there any indication from other sources that any of the States who have made these reservations have actually relied on them in order to challenge any suspect bag.

Practice: what is a diplomatic bag?

Although most usually a diplomatic bag resembles a sack, there is no requirement in Article 27 limiting the size or weight of ‘the packages constituting the diplomatic bag’. Nor can any limits on size or weight be deduced from international practice. Some States have concluded bilateral agreements about carriage of unaccompanied bags which do impose size limits—but it seems that these agreed limits are directed rather to reciprocal franking privileges than to the deterrence of possible abuse.10 Since items which may quite properly be contained in a diplomatic bag include photocopying machines, cipher equipment, computers, and building materials for construction of new embassy premises (in order to reduce the likelihood of these premises containing listening devices) a diplomatic bag may be very large indeed without being open to challenge. Although there have been occasions when a transport container has been accepted by customs authorities as constituting a diplomatic bag, the more usual practice is that a lorry or aircraft does not itself qualify as a ‘package’. In 1985, for example, authorities of the Federal Republic of Germany declined to accept that a truck with a total load of 9,000 kilograms could be regarded as a single diplomatic bag of the Soviet Union. They required the Soviet Embassy to open the truck and to submit a list with the number of packages. (p. 195) Although the Soviet Union complained that this constituted a breach of the Vienna Convention, they ultimately complied, and the list was compared with the number of packages, without any of the packages being opened.11

The question of the limits on what may constitute a diplomatic bag—as well as its identification which is discussed below—received close attention in the context of the 1985 Report of the House of Commons Foreign Affairs Committee on the Abuse of Diplomatic Immunities and Privileges.12 While the Committee’s inquiry was already under way following the April 1984 shooting from the Libyan People’s Bureau, Umaru Dikko, a former minister in Nigeria, was kidnapped on the streets of London. A watch was placed on airports, and suspicions were aroused on the arrival of two large crates, containing air holes, at Stansted airport with the intention of loading them on to a Nigeria Airways aircraft. On the receipt of advice from the Foreign and Commonwealth Office that the crates were not diplomatic bags (the grounds for this are discussed below), they were opened by customs authorities in the presence of members of the Nigerian High Commission and found to contain Mr Dikko, who was unconscious and accompanied by a doctor, as well as two other men. There were also strong suspicions that weapons in the Libyan People’s Bureau had been brought into the United Kingdom in Libyan diplomatic bags, and it was assumed that weapons used in the shooting and the killing of a policewoman were taken out of the country when the Bureau was evacuated following the breaking of diplomatic relations between Libya and the United Kingdom.13

The Committee recommended that records should be kept of the size and weight of diplomatic bags entering the country in the care of a diplomatic courier or airline pilot. The UK Government in their Review and Reply14 rejected this recommendation, pointing out that it would not be effective in detecting illicit items such as firearms or drugs, and that there were ‘good operational reasons for heavy items such as transmitting equipment to be sent at irregular intervals thus creating an irregular pattern of size and weight of bags’. They would be ready to record weight and size of individual bags only if there were specific grounds for such supervision. In 1988, the UK Government in comments to the International Law Commission expressed support for formulating new provision which would impose a requirement for the courier to carry documents which would more precisely describe the size and weight of the packages constituting the bag, but there was little support for such a provision.15 The UK’s reluctance to endorse weight limits on diplomatic bags was shown to be well founded in the context of re-opening their Embassy in Tehran in 2015. They had destroyed sensitive equipment during the invasion of their Embassy in 2011 by an Iranian mob, and when they tried to replace it were thwarted by an Iranian rule restricting diplomatic bags to 15 kilograms.16

What Article 27.4 actually requires is that the packages constituting the diplomatic bag ‘must bear visible external marks of their character’. While it is clear that a package does not lose its character as a diplomatic bag by reason of suspicions that it may contain items (p. 196) other than ‘diplomatic documents or articles intended for official use’ (since this can in general only be established by breach of the prohibition on opening) a package which does not bear visible external marks of its character is not entitled to the status of a diplomatic bag. The crates used in the attempted abduction of Umaru Dikko had labels indicating their origin (the Nigerian High Commission in London) and destination (the Nigerian Ministry of Foreign Affairs in Lagos) but did not bear any official seals. As the Secretary of State later stated in evidence to the House of Commons Foreign Affairs Committee:17 ‘Under general international practice there are two visible external marks: firstly a seal in lead or wax marked with the official stamp by the competent authority of the sending State or the diplomatic mission, and secondly a tag or stick-on label identifying the contents.’ It was on the ground that the crates, not bearing seals, did not constitute diplomatic bags but merely mission property or baggage that the Foreign and Commonwealth Office advised Customs and Excise Officers that the Vienna Convention placed no obstacle to their entitlement to search the crates on suspicion that they contained a human being. The Nigerian High Commission at no stage claimed that the crates constituted diplomatic bags or questioned the decision that they could be searched.

In its Review of the Vienna Convention, the UK Government said that diplomatic missions in London as well as HM Customs and Excise had been given revised clarification of the rules on the identification and the handling of foreign diplomatic bags. ‘These rules, which reflect international law and practice, are being rigorously applied in the UK and ensure that we are able to check the official origin and endorsement of all items purporting to be diplomatic bags.’18 A Note of 24 October 1984 to diplomatic missions in London said:

Consistently with general international practice the marks required are:

  1. (1)  a seal in wax, metal or plastic affixed by the competent authority of the sending State or of the sending diplomatic mission; and

  2. (2)  a tag or stick-on label, addressed to the head of mission, to the head of a consular post, or to the Minister of Foreign Affairs, and carrying the official stamp of the sending State or of the sending diplomatic mission.19

In 2004 it was proposed that the task of assembling unaccompanied UK diplomatic bags should be privatized, although final sealing would still be carried out by government officials. But these plans were abandoned in the face of strong opposition from Parliament.20

A 1962 internal regulation of the Republic of Korea, in describing measures to be taken in making up a diplomatic bag, says: ‘For the maintenance of security all the documents to be sent by the bag shall be put in envelopes and sealed up. The bag containing such documents shall be packed and locked according to the procedures and be sealed up by lead ball with the seal of the Ministry of Foreign Affairs.’21 Soviet Union rules stated that: ‘Each parcel of the diplomatic bag must be sealed with wax or lead seals by the sender and (p. 197) must bear a gummed label with the words expedition officielle.’ These rules also required customs officers to inspect bags externally and specified that: ‘Parcels not meeting the requirement of these Rules shall not be regarded as forming part of the diplomatic bag.’22 Current US rules prescribe that a diplomatic bag must:

  1. 1)  Have visible external markings which identify it by clearly stating ‘Diplomatic Pouch’ on the outside of the container.

  2. 2)  Bear the official seal of the sending entity, i.e., government or international organization. Outbound pouches may bear the seal of the embassy, consulate, or sending office.

  3. 3)  Be addressed to an office of the government or international organization whose seal the pouch bears.

For unaccompanied pouches there is a further requirement for a detachable certificate on the outside of the pouch, describing the pouch, its weight, and certifying that it contains only official documents or articles for official use.23

Failure by a sending State to comply with the requirement that the diplomatic bag ‘may contain only diplomatic documents or articles intended for official use’ will not disqualify a package from having the status of a diplomatic bag. In its 1989 Report, the International Law Commission in its Commentary on Article 3 (which contains definitions for its draft articles on the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier), said that:

The real essential character of the diplomatic bag is the bearing of visible external marks of its character, because even if its contents are found to be objects other than packages containing official correspondence, documents or articles intended exclusively for official use, it is still a diplomatic bag deserving protection as such.24

Practice: permitted contents of the diplomatic bag

Since the suspicion of unauthorized contents does not justify the opening of the bag there is no international practice clarifying in objective terms what may be sent. It is standard practice for States to use their diplomatic bags to transmit a wide range of items for the official use of the mission or the sending State. Apart from the large items of equipment mentioned above, coins, currency notes, medals, films, books, food and drink, and clothing may all be articles intended for official use and may be sent through the diplomatic bag provided that there is no violation of the laws and regulations of the receiving State. In 1997 it was disclosed that throughout the Second World War, Sir Winston Churchill’s supply of Cuban cigars from a well-wisher in New York was (p. 198) maintained through the diplomatic bag from Washington.25 In 1947, US and UK diplomats in Poland colluded in assisting the Polish Deputy Prime Minister, Stanislaw Mikolajczyk, who feared imminent arrest to escape from Poland on a British ship. The fugitive was disguised in the hat and overcoat of the US Ambassador, and following his successful escape, the hat and overcoat were returned to the Ambassador through the British diplomatic bag.26

Following the break in diplomatic relations between the United Kingdom and Libya as a result of the shooting from the Libyan People’s Bureau and the permitted departure of Libyan diplomatic bags which almost certainly contained the murder weapon, The Times commented that:

They have been used to take alcohol to ‘dry’ countries, contraceptives to the Irish Republic, a naval officer’s collars from Moscow to London for starching and espionage equipment almost everywhere.27

What limits should be placed on the words ‘articles for official use’ is in practice a matter for the internal regulations of each diplomatic service. There may be room for some appreciation as to whether personal correspondence to or from members of a diplomatic mission or medical supplies or luxury items for personal use not available in the receiving State may properly be sent through the diplomatic bag. The Republic of Korea in its internal regulation of 1982 concerning the treatment of official documents defined the term ‘official use’ as meaning:

  1. (a)  Official documents and materials necessary for the management of the mission abroad and for their diplomatic negotiations;

  2. (b)  Letters and other materials required for the maintenance of security;

  3. (c)  Semi-official correspondence and communications; and

  4. (d)  Other matters recognized as important by the Minister of Foreign Affairs and the heads of the missions.

Medical supplies and necessities for the use of staff ‘in special areas where living conditions are notably uncomfortable’ might be included subject to approval by the Ministry of Foreign Affairs.28 Colombian rules stated that: ‘As an exceptional measure and in very special circumstances, the head of mission may give prior express authorization for the dispatch of officials’ personal correspondence’, and envelopes thus authorized must comply with weight limits and other formal requirements.29 The 1982 law concerning the Mexican Foreign Service provided that illicit use, or use for personal gain by members of the Foreign Service of bags, stamps, or means of communication were grounds for suspension without pay.30 The Conseil d’Etat of France in an opinion given in 1986 stated that items intended for persons or bodies outside diplomatic missions could not consistently with international commitments be transmitted by diplomatic bag except in exceptional circumstances such as catastrophes or regional conflicts which interrupted communications.31

(p. 199) Members of the mission are subject to the duty under Article 41.1 of the Convention to respect the laws and regulations of the receiving State and are therefore not entitled to use the bag for the carriage of items such as weapons, alcohol, or drugs if these are not permissible imports under the law of the receiving State. Thus, the UK Government in its Review of the Vienna Convention said:

In the Government’s view it is unacceptable that bags should be used to transmit items prohibited in UK law whether or not it is claimed that they may be ‘for official use’. We do not accept for instance that weapons may be imported by bag since the use of firearms for personal protection of diplomats is not permitted in the UK.

As the Report noted however, other States saw no objection in principle to the carriage of arms for personal defence.32

In 1973 the Government of Nigeria stated in Notes to heads of diplomatic missions in Lagos that in order to combat trafficking in Nigerian currency, for a period of six weeks all packages entering Nigeria, including diplomatic bags, would be searched. Other governments immediately protested that such action would violate Article 27 of the Vienna Convention on Diplomatic Relations. There is no indication that the threat to search diplomatic bags was in fact carried out.33

There was widespread international concern when in 2000 Zimbabwe opened a consignment of British diplomatic bags, under supervision of armed police and against strong protest. The British High Commissioner, Peter Longworth, was recalled to London for consultations and in a Press Statement charging Zimbabwe with ‘grave and unprecedented breach of the Vienna Convention’ explained:

The detained and opened diplomatic bags were accompanied by a fully authorized and documented casual courier. The waybill carried and presented to the Zimbabwean authorities correctly listed every one of the diplomatic bags he was accompanying; all of which were correctly identified as such, bearing both a seal and a label.

The bags contained articles for the official use of the British High Commission in accordance with Article 27.4, namely protective screening equipment for our communication set-up at the High Commission, as well as tools for its installation. The equipment to be installed was routine equipment used in our missions all around the world, and did not contravene any Zimbabwe rules or regulations as shown by their subsequent release by the Zimbabwean authorities.

A European Union Delegation delivered a formal protest to the Zimbabwean Foreign Ministry, but the Minister while making no serious attempt at legal justification said: ‘We don’t have any regrets.’34

In 2003 a diplomatic bag en route from the Foreign Ministry to the High Commission of Sierra Leone in London was opened with the permission of the President of Sierra Leone by UN officers and found to contain £1 million worth of cocaine. Two Foreign (p. 200) Ministry officials were arrested in Sierra Leone.35 In 2013, the UK complained formally to Spain that one of its diplomatic bags had been opened at the border crossing with Gibraltar. The Spanish authorities claimed that the bag was not marked as a diplomatic bag—an allegation which was dismissed by the UK.36

Practice: the scanning of diplomatic bags

As already noted, Article 27.3 does not confer full ‘inviolability’ on the diplomatic bag, but instead provides that it ‘shall not be opened or detained’. There is no indication that the representatives at the Vienna Conference considered the possibility of tests on the bag which without opening or detaining it might reveal or confirm suspicions that it contained certain illicit items—for example, nuclear material, drugs, some explosives, and weapons could all be detected by methods including dogs and X-ray equipment. Should any of these be detected, the diplomatic bag would remain entitled to protection from the authorities of the receiving State, but it would be expected that even where the Convention applied without any reservation being relevant to the case, the receiving State would draw the matter to the attention of the authorities of the sending State, would invite its co-operation, and in the meantime would ensure that the bag did not leave its jurisdiction. An air carrier in particular—even if it was under the control of the receiving State—would not be required to provide facilities for the carriage of a bag apparently containing weapons or explosives.

With the widespread introduction in the 1970s of scanning of baggage by national security authorities or by airlines, the question of whether the Vienna Convention permitted the scanning of diplomatic bags became highly relevant. Some governments, and some writers,37 took the view that as a matter of construction of Article 27, scanning did not involve opening or detaining the bag and was not prohibited in law. In evidence to the House of Commons Foreign Affairs Committee in 1984 the UK Government stated their view that it was lawful to carry out electronic scanning of bags, and the Committee recommended ‘that on specific occasions they should be prepared to do so if in their judgment the need arises’.38 The Government in their 1985 Review of the Vienna Convention noted the alternative view that ‘any method for finding out the contents of the bag is tantamount to opening it, which is illegal’. They pointed out that scanning would be of limited value against a determined sending State—‘It might reveal a problem but it could not solve it.’ It would make UK bags vulnerable to ‘generalised and indiscriminate challenge’ and for security reasons—notably the possibility of sensitive equipment being compromised—they could not allow their bags to be scanned. They would, however, ‘be ready to scan any bag on specific occasions where the grounds for suspicion are sufficiently strong’.39

The general practice among States had been that diplomatic bags were not subjected to scanning, and some States took the position that Article 27.3 prohibited electronic or (p. 201) X-ray screening. New Zealand, for example, in comments to the International Law Commission in 1988 stated that in their view electronic screening was not permitted under the Convention. ‘This position of the New Zealand Government is based on its acknowledgment of the fact that electronic screening could, in certain circumstances, result in a violation of the confidentiality of the documents contained in a diplomatic bag.’40 The US State Department also pointed out that ‘any provision which would allow scanning of the bag risks compromising the confidentiality of sensitive communications equipment’.41 In the mid-1980s, however, a few governments—including that of Kuwait which had been the first to enter a reservation to Article 27—introduced systematic scanning of bags. Austria made clear in circulars from the Federal Ministry of Foreign Affairs to diplomatic missions that it considered electronic screening of diplomatic bags compatible with Article 27.3 provided that it was carried out on a non-discriminatory basis and that there was no obligation to submit—though in the event of refusal transport might be denied by an airline.42 In 1986 the Government of Italy announced its intention to subject diplomatic bags to X-ray devices at airports and frontiers, without clarifying what action was to be taken if suspect objects were revealed.43 Western governments generally, like the United Kingdom, did not permit their own bags to be subjected to scanning because of the possibility of compromising their security, instructed their couriers that in case of challenge a bag should be returned to its place of origin, and reacted to any systematic scanning by any State by suspending their diplomatic bag services to that State.

Commenting in 1988 on the International Law Commission’s draft articles on the status of the diplomatic courier and diplomatic bag, the UK Government were more cautious in admitting the right to scan diplomatic bags. They stressed that:

the scanning must not be of a kind which would reveal the contents of the communications which are being transmitted in the bag; the right to require the bag to be scanned must be exercised only where there is good reason to suspect that the bag is being used for an improper purpose; there should be no general and routine practice of scanning bags and each case should be treated on its individual merits; a representative of the sending State should have the opportunity to be present while the scanning is taking place; and if the sending State objects to the proposed scanning it should have the option of having the bag returned, unexamined, to its originator.44

If this long list of qualifications was intended to circumscribe a legal entitlement to scan, the entitlement would be left with scarcely any substance.

The key to the legal position may lie in the first qualification—that the scanning must not be of a kind which would reveal the contents of the communications which are being transmitted in the bag. The view that scanning was permissible was based on the (p. 202) assumption that it was not capable of compromising the freedom and confidentiality of communications. This is at the heart of the status of the bag. Modern X-ray technology is capable of damaging certain contents of bags, in particular films, and of eliciting information which may not only compromise equipment but may even decipher the contents of documents. As explained to the International Law Commission by its Special Rapporteur, Mr Yankov, ‘there was no guarantee that sophisticated radiological or electronic examinations would not be used to discover, not only the physical contents of diplomatic bags, but also specific items that were material and pertinent to the secrecy of communications, such as coding and decoding instructions or handbooks’.45 Its use is therefore not compatible with the basic purpose of Article 27. In effect it is a constructive ‘opening’ of the bag and, more importantly, it amounts to a failure to ‘permit and protect free communication’ which is the fundamental obligation of the receiving State under Article 27. This objection does not apply to carrying out tests for illegal drugs or radioactive material— both known to have been carried on occasion in diplomatic bags—or for explosives. It is not arguable that these substances could be properly intended for the official use of the mission. Moreover, as Mr Yankov observed to the International Law Commission: ‘Sniffer dogs were unlikely to be so well educated that they could read the contents of a diplomatic bag.’46 To draw a distinction between external tests such as X-ray screening which are capable of intruding on the confidentiality of communications and other tests which do not have this capability would appear to be consistent with the views expressed to the International Law Commission by most governments. Detection of drugs or other illicit substances would not in itself justify opening or detaining a bag, but it would have a considerable deterrent effect since the information would certainly be brought to the attention of the sending State and might well lead to imposition of other sanctions permitted under the Convention. If the item or substance detected threatened the safety of an aircraft or of human life, the situation which is discussed immediately below would arise.47

There is no breach of Article 27.3 if airline authorities require some form of scanning of a diplomatic bag as a condition of carriage. Neither the airline nor the receiving State is required to provide ‘full facilities’ for the carriage of a diplomatic bag which may pose a threat to aircraft safety. The sending State is, of course, entitled to send the bag without any form of opening or detention by alternative means of transport. In support of this position, the Government of Switzerland commented to the International Law Commission that ‘it would be illusory to believe that, today, the captain of an aircraft would be willing to transport a package without subjecting it to some form of control’.48

Practice: manifest abuse or threat to human life

Except where either the sending or the receiving State has made a reservation to Article 27 of the Convention, even very strong indications of abuse of the diplomatic bag do not legally justify opening or detaining it. The Convention remedies would in such a case normally be limited to a declaration of persona non grata or, in a case of extreme or (p. 203) systematic abuse, breach of diplomatic relations. In a few very rare cases, abuse has become manifest without actual opening of the bag by the authorities of the sending State. In 1980, for example, a crate which constituted a diplomatic bag addressed to the Moroccan Embassy in London fell from a fork-lift truck at Harwich Docks in Essex and broke open to reveal a consignment of cannabis resin to the value of £635,000. A Pakistan national employed as personal secretary to the Moroccan Ambassador in Pakistan—and not entitled to diplomatic immunity in the United Kingdom—pleaded guilty to the charge of attempting illegal import of the drug.49 In 1964 Italian customs authorities realized that a large diplomatic bag addressed to the Ministry of Foreign Affairs in Cairo was emitting moans. The bag was opened and found to contain a drugged Israeli who had been kidnapped with the intention that he should be tried in Egypt for espionage. Some members of the Egyptian mission were declared persona non grata as a result of the incident.50 Italy had not yet ratified the Vienna Convention and so the action—which was clearly justified under customary international law—did not require to be considered under Article 27.

As in the cases of premises of the mission discussed above under Article 22, there remains the possibility in extreme cases of personal danger for the receiving State to invoke self-defence or the need to protect human life. In 1917, for example, a German courier, Baron von Rautenfels, was arrested in Oslo with the consent of the Norwegian Ministry of Justice. The German Legation protested and declined an invitation to attend the opening of the diplomatic bag—which as expected was found to contain bombs intended for ships leaving Norwegian ports.51

In the case of the attempted kidnapping of Umaru Dikko in 1964, it was explained above that the actual decision to proceed on the basis of suspicions (knowledge of his abduction, air holes in the suspect crates, and a smell of chloroform coming from one of them) to immediate opening of the crate which contained him was taken on the basis that the crates lacked official seals and thus did not constitute diplomatic bags. But the House of Commons Foreign Affairs Committee in the context of their ongoing inquiry into the abuse of diplomatic immunities and privileges naturally explored with the Secretary of State for Foreign and Commonwealth Affairs what would have happened if the crates had indeed been identified as diplomatic bags. He replied that he had sought in evidence to emphasize that ‘the advice that would have been given had the crate constituted a diplomatic bag, took fully into account the overriding duty to preserve and protect human life’. The Committee welcomed ‘this acceptance that the inviolability of the bag cannot take precedence over human life’.52 Responding in their Review of the Vienna Convention on Diplomatic Relations, the Government said:

Whatever measures it may prove possible to achieve internationally to curb abuse of the bag, the Government remain ready to deal promptly and firmly with any exceptional cases. For instance, where the evidence is good that the contents of a bag might endanger national security or the personal safety of the public or of individuals, the Government will not hesitate to take the necessary (p. 204) action on the basis of the overriding right of self-defence or the duty to protect human life. This latter consideration applied in the case of the attempted abduction of Mr Umaru Dikko and would have done so even if the crate in which he was found had in fact constituted a diplomatic bag.53

Work of the International Law Commission on the diplomatic bag

In 1979 the General Assembly of the United Nations, on the recommendation of the Sixth Committee, recommended that the International Law Commission should continue work begun in 1977 on the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic couriers with a view to the possible elaboration of an appropriate legal instrument. Even then there were doubts as to the utility of such an exercise. The United Kingdom in a Note to the Secretary-General pointed out that of nineteen different issues on the status of the courier and the unaccompanied bag, many were already covered by the Vienna Convention on Diplomatic Relations and they did not believe there was a practical need for a Protocol to the Convention. ‘It is the view of the Government of the United Kingdom that any problems there may be regarding protection of the bag unaccompanied by diplomatic courier can be solved by a more faithful compliance by all States with those legal provisions that already exist rather than by further regulation.’54 Most States, however, favoured elaboration of the rules in order to enhance protection of the courier and bag and perhaps to formulate rules which might apply generally to bags whose status was originally determined either by the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the New York Convention on Special Missions, or the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character. Mr Yankov from Bulgaria was appointed as Special Rapporteur and in 1980 he submitted a preliminary report to the International Law Commission. He suggested in this report that the increasing number of violations of diplomatic law warranted: ‘a comprehensive and coherent regulation of the status of all types of official couriers and official bags. In this way, all means of communication for official purposes through official couriers and official bags would enjoy the same degree of international legal protection.’55 The Commission discussed Mr Yankov’s report and agreed that they should proceed to consider draft articles which he should submit.56 Over the next few years Mr Yankov proposed forty-three draft Articles which were discussed in successive meetings of the International Law Commission. In 1986 the Commission completed first reading of a somewhat shorter set of draft Articles.57

The second reading of the draft articles took place in 1988 and 1989.58 Fundamental doubts continued to be expressed about the direction and purpose of the work. (p. 205) Mr McCaffrey from the United States pointed out to the Commission that many States had never become parties to two of the four Conventions which had formed the basis for the Commission’s work, which was ‘like sitting on a chair with only two legs’. The provisions of these Conventions on critical points varied widely. ‘Where States had consciously and deliberately developed such different rules to cover different situations, it was hard to see how the objective of unifying existing rules…could be attained.’59 Australia in its comments submitted to the Commission prior to its 1988 session said that there was no need for a new convention, no clear identification of aspects of state practice requiring revision, and that a new convention or protocol would only create difficulties and confusion for couriers, customs, and immigration officials. There was widespread support among Western governments for these views.60

In 1989 the United States submitted comments to the Commission which elaborated their view that ‘there is no need for draft articles on this topic at this time and that approval of the draft articles would be counter-productive’. They stressed the value of the existing regime for the diplomatic bag as vital to the operation of all diplomatic missions and to the efficient conduct of foreign relations and as striking the right balance between sending and receiving States. ‘That regime, which reflects centuries of practice, has been adapted where necessary by the international community and particular States as circumstances have required. Attempting in these articles to deal with the special features of different adaptations of that regime in other contexts complicates the law in this area, diminishes the flexibility inherent in separate but parallel approaches to the regime of the bag in different contexts and is therefore unnecessary and undesirable.’ Although serious problems had arisen they had been relatively few, and would be better addressed by the States concerned within the present general framework. The United States suggested that the Commission should recommend that the General Assembly should, at most, take note of the draft as a possible set of guidelines and should not convene an international conference with a view to a convention on the basis of the draft.61

By this time, however, the draft articles had acquired a life of their own in the International Law Commission and in the deliberations of the Commission in 1989 there appeared to be very few members who took full account of the very radical reservations expressed by a significant number of serious-minded States as to the usefulness or potential acceptability of the entire exercise.62 The 1989 Report of the Commission, which concluded their work on the subject, showed little real response on the central question of whether the draft articles were viable. The proposed regime was formidably complex, as was its relationship to other conventions and agreements, with the possibility of further supplementary bilateral agreements ‘provided that such new agreements are not incompatible with the object and purpose of the present articles and do not affect the enjoyment by the other Parties to the present articles of their rights or the performance of their obligations under the present articles’. There were two optional protocols extending the articles to bags of special missions and the bags of international organizations of a (p. 206) universal character—but again subject to qualifications and possibilities of bilateral variation. It seemed likely that were these provisions to enter into force, all couriers and customs officers would require qualifications in international law.

The Commission recommended that the Articles should take the form of ‘a convention constituting a distinct legal instrument and keeping an appropriate legal relationship with the codification conventions’ which, in their view, ‘would complete the work on progressive development and codification of diplomatic and consular law’.63 Since 1989, however, there has been no agreement in the Sixth Committee of the United Nations General Assembly for the convening of any international conference to consider the draft articles.

A detailed description of the work of the International Law Commission on the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier is beyond the scope of this Commentary.64 There seems to be no prospect of international negotiation, far less international agreement, on a protocol which might amend or supplement the Vienna Convention on Diplomatic Relations or the other multilateral agreements which govern the status of other kinds of official bag. The central problem which seems to have prevented the very considerable labours by the International Law Commission and its Special Rapporteur from bearing fruit was the existence of two potentially conflicting objectives—elaboration of a uniform regime to cover different kinds of bag and the desire to limit abuse of diplomatic bags—and the absence of general agreement in the Commission and among Member States as to which of these objectives was more important. Although the idea of a uniform regime appeared superficially attractive and easier to administer, it did not take account of the fact that the difference in treatment given to diplomatic bags and to consular bags under the respective Conventions of 1961 and 1963 was not an anomaly but reflected the difference in the likely sensitivity of diplomatic and consular communications. It was not acceptable to those States which were during the 1980s deeply concerned at possible abuse of diplomatic immunity to standardize treatment of all official bags on the basis of the higher degree of protection from search and detention given to diplomatic bags. On the other hand, it was not acceptable to smaller States without adequate resources to send extensive communications by coded wireless transmission or systematically to provide couriers for their bags that standardization of treatment should take place on the basis of the ‘challenge and return’ provision contained in Article 35 of the Vienna Convention on Consular Relations. The Communist States were also at that time uniformly in favour of provisions which would standardize treatment on the higher level of inviolability, and they were virtually alone in favouring adoption of new rules in the form of a convention. In consequence, what emerged was far short of a uniform regime and in many respects it failed to reflect either what State practice actually was or what a majority of States really wanted.

Although the Articles themselves remain in limbo, the extensive records of debate in the International Law Commission and the comments submitted by governments do shed light on particular controversies as to the meaning of Article 27 of the Vienna Convention on Diplomatic Relations—the definition of a diplomatic bag, the permissible contents, size and weight limits, and the admissibility of X-ray screening and other tests not (p. 207) involving opening or detention of the bag. Many of these shafts of light are reflected in the commentary above. The final Commission version of the key provision on the treatment of the bag was:

Article 28. Protection of the diplomatic bag

  1. 1.  The diplomatic bag shall be inviolable wherever it may be; it shall not be opened or detained and shall be exempt from examination directly or through electronic or other devices.

  2. 2.  Nevertheless, if the competent authorities of the receiving State or the transit State have serious reason to believe that the consular bag contains something other than the correspondence, documents or articles referred to in paragraph 1 of Article 25, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.65

The Commentary of the International Law Commission emphasized that:

The immunity of the bag from search has been considered the reflection of the basic principle of the inviolability of diplomatic and consular correspondence and of the archives and documents of the mission or consular office, generally recognized by customary international law and reflected in the codification conventions.

The Commission also made clear that the prohibition on examination through electronic or other technical devices had been thought necessary ‘as the evolution of technology had created very sophisticated means of examination which might result in the violation of the confidentiality of the bag, means which furthermore were at the disposal of only the most developed States’. External examination to verify from visible external marks the character of a bag was acceptable, and: ‘The paragraph does not rule out non-intrusive means of examination, such as sniffer dogs, in the case of suspicion that the bag is being used for the transport of narcotic drugs.’ Although these extracts relate to projected new international law, there are strong arguments from current state practice and the views expressed by governments to the International Law Commission for regarding them as an accurate account of the meaning of Article 27.3 of the Vienna Convention on Diplomatic Relations.

Footnotes:

1  UN Doc A/CN 4/91, Art 16 para 2; ILC Yearbook 1957 vol I p 74.

2  ILC Yearbook 1957 vol I pp 77–82; vol II p 138 (para (3) of Commentary on Art 21). For old examples of abuse of the diplomatic bag see Clark (1973); The Times, 6 December 1996 (transfer by Nazi Government in 1945 of looted gold and securities to Argentina by Swiss diplomatic bag).

3  ILC Yearbook 1958 vol I pp 138–9; 1958 vol II pp 96–7. See Barker (1996) p 89.

4  UN Docs A/Conf. 20/C 1/L 125, L 154, L 151 (Rev. 2), L 294, L 286; A/Conf. 20/14 pp 180–1; Kerley (1962) pp 116–18; Bruns (2014) pp 142–3.

5  Since the People’s Democratic Republic of Yemen had acceded to the Convention in 1976 without any reservation, the reservation by the Yemen Arab Republic may be regarded as having lost any legal force under the terms of the 1990 formation of the single State of Yemen and the letter sent to the UN Secretary-General about treaties previously concluded by either of the two States which merged: see Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1995, ST/LEG/SER E/14, ch I, n 32.

6  For full texts of reservations and objections to them see Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1996, ST/LEG-/SER E/15. Now available online from UN Treaty Collection Database.

7  See comment by Bowett (1976) at p 81.

8  Evidence Q 21, Report paras 98–101.

9  Q 15.

10  See eg limits imposed in agreements between Spain and other States, described in ILC Yearbook 1982 vol II Pt 1 p 239, and in agreements of Mexico, ILC Yearbook 1984 vol II Pt 1 pp 64–7.

11  Notes of the Soviet Union of 11 October 1984 and of the Federal Republic of Germany of 11 March 1985 to the UN Secretary-General were circulated as LA/COD/4. See also 1985 RGDIP 179; Salmon (1994) para 354.

12  At paras 106–13 and 127. See also Akinsanya (1985).

13  See paras 96–101 of the Report.

14  Cmnd 9497, paras 54–6.

15  ILC Yearbook 1988 vol II Pt 1 p 154, Pt 2 p 79 (para 331).

16  The Times, 21 August 2015.

17  Report, p 50 of Evidence.

18  Para 49.

19  These requirements were confirmed by Note No A622/02 of 31 October 2002 to diplomatic missions in London.

20  The Times, 29 December 2004 and 24 January 2005.

21  ILC Yearbook 1982 vol II Pt 1 p 238. See also requirements in Spain on form of bags, ibid p 239.

22  Ibid pp 242–3. See also requirements set out in Circular Note from Federal Secretariat for Foreign Affairs of Yugoslavia to diplomatic missions, ibid p 245, and practice of Iran in ILC Yearbook 1984 vol II Pt 1 p 64.

23  Department of State, Handbook for Foreign Diplomatic and Career Consular Personnel in the United States para 5.2.1.7. The current rules are in Diplomatic Note 03–54 of 28 August 2003, superseding earlier Notes and available at www.state.gov/ofm/31311.htm. A further Note 04–181 of 23 July 2004 further clarifies the question of identification of bags—in particular that the seal ‘may be a lead seal that is attached to a tie that closes the bag, or a seal printed on the fabric of the diplomatic bag, or an ink seal impressed on the detachable tag.’

24  ILC Yearbook 1989 vol II Pt 2 pp 15–17. Members of the Commission were somewhat unclear whether the visible external marks were essential to give a bag its diplomatic status, see ibid vol I pp 243–5, but the formula in the Report is quite clear that the marks form part of the definition.

25  The Times, 26 May 1997.

26  The Times, 24 May 2013.

27  The Times, 24 April 1984.

28  Part of this Regulation is printed in ILC Yearbook 1982 vol II Pt 1 pp 237–8.

29  ILC Yearbook 1984 vol II Pt 1 p 62.

30  Ibid p 67.

31  1987 AFDI 1006.

32  Cmnd 9497, paras 43, 46. The UK position was confirmed in Note to A622/02 of 31 October 2002 to diplomatic missions in London which stated: ‘It is particularly stressed in this context that the regulations governing the import and possession of firearms in the UK are among those [laws and regulations] which must be observed, regardless of any claim that any firearms may be intended for official use.’

33  US protest is in 1973 AJIL 536. Protest by Sweden (omitting name of the offending State) is in ILC Yearbook 1983 vol II Pt 1 p 61.

34  The Times, 10 and 11 March 2000; Press Statement by the High Commissioner, 16 March 2000; 2000 BYIL 586.

35  Sunday Times, 26 October 2003.

36  The Times, 27 November 2013; Telegraph, 27 November 2013; statement to Parliament in 2013 BYIL 731–3.

37  Including this writer, in the 1st edn of Diplomatic Law and in Satow (5th edn 1979) para 14.30.

38  Evidence Q 17, Q 31, Report paras 29–33.

39  Cmnd 9497 paras 50–3.

40  ILC Yearbook 1988 vol II Pt 1 p 147. See also comments by Australia, ibid at p 131; Soviet Union, ibid at p 152; France, ibid at p 142: ‘since the outcome could only be the opening or return of the bag, measures which would seem to contravene Article 27. Furthermore, account must be taken of the implications of such inspection, sooner or later, for the confidentiality of the content of the bag.’ On France, see also 1984 AFDI 1032. For Belgian practice, which also does not permit scanning, see Salmon (1994) para 355.

41  Study and Report Concerning the Status of Individuals with Diplomatic Immunity in the US, prepared in pursuance of Foreign Relations Act, presented to Congress 18 March 1988, at p 55.

42  Circulars printed in ILC Yearbook 1982 vol II Pt 1 p 233.

43  Council of Europe Information Bulletin on Legal Activities, 26 January 1988 p 58; ILC Yearbook 1988 vol II Pt 1 p 146.

44  ILC Yearbook 1988 vol II Pt 1 p 157; 1987 BYIL 566, 570–1.

45  ILC Yearbook 1988 vol I p 232.

46  Ibid.

47  For a clear account of the arguments see Nelson (1988–89) and Nawaz (1994).

48  ILC Yearbook 1988 vol II Pt 1 p 162.

49  The Times, 16 October 1980.

50  The Times, 18 November 1964, 23 November 1964, 27 November 1964; Satow (5th edn 1979) para 14.30; Lee (1991) p 445.

51  Seyersted (1970) pp 220–2.

52  Report of the Foreign Affairs Committee, 1984–5, on The Abuse of Diplomatic Immunities and Privileges, paras 111, 113, Evidence p 50.

53  Cmnd 9497, para 48.

54  Note of 7 June 1979 in 1979 BYIL 334.

55  ILC Yearbook 1980 vol II Pt 1 pp 231–45 at p 245.

56  ILC Yearbook 1980 vol II Pt 2 pp 162–5.

57  ILC Yearbooks 1981 vol I pp 273–8, 296; vol II Pt 1 pp 151–93, Pt 2 pp 159–62; 1982 vol I pp 293–5, vol II Pt 1 pp 231–73, Pt 2 pp 112–20; 1983 vol I pp 108–13, 152–71, 292–5, 301–9, 322–4; vol II Pt 1 pp 57–135, Pt 2 pp 44–61; 1984 vol I pp 59–92, 107–10, 162–98, 282–302, 345–9; vol II Pt 1 pp 59–88, Pt 2 pp 18–57; 1985 vol I pp 163–227, 349–51; vol II Pt 1 pp 49–62, Pt 2 pp 28–50; 1986 vol I pp 38–56, 242–7; vol II Pt 1 pp 39–52, Pt 2 pp 23–34. For an account of the ILC’s draft Articles at the conclusion of their First Reading see McCaffrey (1987) at pp 676–80.

58  ILC Yearbook 1988 vol I pp 168–79, 229–59; vol II Pt 1 pp 125–96, Pt 2 pp 74–97.

59  ILC Yearbook 1988 vol I p 178. See also comments by Belgium, ibid vol II Pt 1 pp 133–4.

60  ILC Yearbook 1988 vol II Pt 1 p 131. See also comments by Canada, ibid p 138; by France, ibid p 140; by Federal Republic of Germany, ibid p 144; by Greece, ibid p 145; by The Netherlands, ibid p 146. For reasons for the widespread reserve as to the desirability of further work, see Tomuschat (2006) at p 86.

61  ILC Yearbook 1989 vol II Pt 1 pp 76–9.

62  ILC Yearbook 1989 vol I pp 242–81. Mr Eriksson at p 280 was the most radical in seeking to remove provisions which seemed either unnecessary or unduly burdensome.

63  ILC Yearbook 1989 vol II Pt 2 p 13.

64  For short accounts of this work see Sinclair (1987) pp 99–102 and 157–64; McCaffrey (1987) at pp 676–80; Barker (1996) ch 7 pp 162–88.

65  ILC Yearbook 1989 vol II Pt 2 pp 42–3.