In international law’s cabinet of curiosities, few items have captured the public’s interest and imagination as much as the diplomatic bag. The special privilege enjoyed by the bag – namely, the fact that it cannot be opened by representatives of authorities other than those to whom it belongs – has made it perfectly fit for spy stories and international thrillers. In 1927, Russian director Oleksandr Dovzhenko even dedicated a silent movie to “The Diplomatic Pouch.”
But truth is often stranger than fiction: in 1983, at Stansted Airport in London, custom officials opened a crate bound for Lagos, Nigeria, which, according to some reports, was marked as a diplomatic bag (any container can be a diplomatic pouch, as long as they are properly identified and sealed as such). Inside, there lay a sedated official of the former Nigerian government ready to be smuggled home to stand trial. A similar incident had occurred in 1964 in Rome. On that occasion, the diplomatic bag was an Egyptian one, and it contained an Israeli-Moroccan citizen. In more “ordinary” cases, diplomatic pouches have been reportedly used to smuggle undeclared weapons, prohibited substances such as cocaine, contraband items including stolen art, and other dangerous materials.
Against this background, it is not surprising that there is a long running debate among States about the need to “strike a reasonable balance between, on the one hand, the interests of the sending State with regard to the confidential nature of its bags and, on the other hand, the security interests of the receiving State” (see the position of Cameroon, at p. 137).
This essay examines whether it is lawful under international law for a State to subject a foreign diplomatic pouch to X-raying or scanning procedures to ensure that it is not used for illicit purposes.
For clarity, this post concerns “unaccompanied diplomatic pouches” (i.e. those not carried by a diplomat or diplomatic courier) entering a country. With respect to bags leaving a country, there appears to be more widespread acceptance of electronic examination, to ensure aviation safety (see commentary by Professor Eileen Denza, a leading authority on the VCDR, at p. 202; Dutch Protocol Guide for Diplomatic Missions and Consular Posts, at p. 40).
The Diplomatic Bag: Balancing Inviolability and Security Interest under the VCDR
Article 27(3) of the Vienna Convention on Diplomatic Relations (VCDR) is the cornerstone reference to answer whether scanning of the diplomatic bag is lawful. It provides that: “[t]he diplomatic bag shall not be opened or detained.” At the time the VCDR was negotiated and came into force in the early 1960s, electronic examination of diplomatic pouches was not envisaged.
Today, some countries, like the United States, take the position that scanning of the bag is prohibited pursuant to Article 27(3) because “although inspection of a pouch by X-ray would not physically break the external seal of the shipment, such an action constitutes the modern-day electronic equivalent of ‘opening’ a pouch” (for a similar view, see Canada’s Circular Note NO. XDC-0144 of Jan. 28, 2011). This position echoes the International Court of Justice’s (ICJ) stance in Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua). At paragraph 64, the ICJ explained: “there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used — or some of them — a meaning or content capable of evolving, not one fixed once and for all.”
Is an evolutionary interpretation of the phrase “shall not be opened” in Article 27(3) of the VCDR justified in light of the evolution of technology? As noted by the ICJ’s German Judge Georg Nolte – formerly the International Law Commission (ILC) Special Rapporteur for the topic “Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” – “technical and scientific developments affect the context in which treaties operate. However, such developments do not, as such, change the meaning of a given treaty rule” (at p. 347). What, then, is the meaning of Article 27(3)?
The Intention of the Parties: Protection of Confidentiality of Communication
The Vienna Convention on the Law of Treaties (VCLT) sets outs modalities of treaty interpretation at Articles 31-33. The rules it lays out begin with the straightforward formulation in Article 31(1) that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The aim of treaty interpretation was lucidly articulated by the Arbitral Tribunal of the Permanent Court of Arbitration in the Railway Land Arbitration (Malaysia v. Singapore) (at para. 43): “it is important not to lose sight of the object of the exercise [of interpretation]. This is to identify the common intention of the Parties at the time that the treaty was concluded as to its meaning and effect.”
To decide on the lawfulness of electronic examination under Article 27(3) of the VCDR, it is therefore necessary to assess the common intention of the parties, or, as the ICJ put it in its Advisory Opinion on Namibia, the “ultimate objective” of the provision (para. 53). The question must then be answered whether preservation of the objective of the provision requires an “evolutionary” interpretation of the expression “shall not be opened” as prohibiting scanning or X-raying, bearing in mind that the purpose of evolutionary interpretation is “to respect the parties’ common intention at the time the treaty was concluded, not to depart from it” (Costa Rica v. Nicaragua, at para. 64).
There are, in my view, two possible alternative interpretations of the intention of the parties in drafting Article 27(3) of the VCDR. On the one hand, the prohibition on opening the bag may have been intended to ensure the confidentiality of the entirety of its contents. On the other, the purpose of the prohibition may have been to ensure the confidentiality only of communications transmitted via the bag. On this first issue, the latter interpretation is more compelling. The further issue is then whether the notion of confidentiality of communications is to be interpreted restrictively, to cover the actual content of communications only, or more broadly, to also encompass the instruments used to communicate. Both issues are discussed below.
The Scope of Diplomatic Confidentiality
As regards the first issue, Article 25 of the Draft Articles on Diplomatic Intercourse and Immunities, the precursor to Article 27 of the VCDR, contained a provision on diplomatic bags. This was titled “freedom of communication.” In its Commentary to the provision, the ILC (at p. 97) drew a clear connection between the inviolability of the bag on the one hand and the confidentiality of correspondence on the other. The ILC considered it “desirable that the statement of the inviolability of the diplomatic bag [at Article 25, para 3] should be preceded by the more general statement that the official correspondence of the mission, whether carried in the bag or not, is inviolable [at Article 25, para 2].” The prohibition on the opening of diplomatic bags can therefore be interpreted as one specific application of the more general principle that official communications are inviolable.
This interpretation is also supported by the ILC’s Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag not Accompanied by Diplomatic Courier (Draft Articles) and preparatory work thereon. Draft Article 28(1) of the final version of 1989 dealt with the scanning of bags. It provided: “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 technical devices.”
The Draft Articles were never adopted in the form of a Convention, mostly because it proved impossible for States to reach agreement precisely on the extent of the inviolability of the diplomatic bag. However, the comments of several States during the discussion of this subject, including comments of States both for and against x-raying and scanning, suggest that the special status of the bag was intended to ensure confidentiality of correspondence only, and not of the entire contents of the bag. New Zealand and Canada, for example, were against scanning. New Zealand indicated (at p. 147) that its position was “based on the 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.” Canadaindicated (at p. 138) that it could not “accept examination of the diplomatic bag through radiographic, electromagnetic, electronic or technical devices whose effect would be to jeopardize the confidentiality of the official correspondence.” Italy, contrary to Canada and New Zealand, was in favor of scanning, but only if the electronic means used to examine the diplomatic bag were “such as to guarantee that it is impossible to read the diplomatic correspondence contained in the bag” (at p. 146). The Netherlands also favored scanning, noting that “it is sufficient that the official correspondence is inviolable” (at p. 147).
The ILC’s Commentary to the Draft Articles also stated (at p. 43) 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.”
Overall, therefore, as Denza has noted, (Denza, at p. 202) “freedom and confidentiality of communications [are] at the heart of the status of the bag.” The position of some States that “the full inviolability of the bag implies and is designed, first of all, to ensure the full inviolability of its contents” (Bulgaria, at p. 136) is a minority view.
The further issue of the meaning of “freedom and confidentiality of communications” is very much open to interpretation. It is at least plausible that the expression could be interpreted to encompass not only the actual content of communication, but also the tools used to communicate confidentially. Opinions diverge. In 1988, the New York Times referred to a legislative proposal in the United States to create two classes of pouches: “an inviolable bag to carry documents, and another bag subject to cursory inspection that would carry communications equipment,” thus suggesting that the prohibition of scanning was intended to protect the content of correspondence only. That same year, however, the United States government explained that “any provision which would allow scanning of the bag risks compromising the confidentiality of sensitive communications equipment” (Sana Sud, at p. 237, n. 52). This could include, for example, the “types of ciphers in use by the sending state” (Rosalyn Higgins, at p. 648). More recently, Joanne Foakes and Denza (at p. 244), in arguing against electronic examination, have noted that this procedure may not only allow the reading of documents, but also compromise “the security of contents such as cipher equipment.”
Subsequent State Practice regarding Article 27(3)
Article 31(3)(b) of the VCLT provides that, in interpreting a treaty, account shall be had of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.” In Costa Rica v. Nicaragua (at para. 64), the ICJ explained that the meaning of a term may no longer be the same as at the time of its drafting, including because “the subsequent practice of the parties, within the meaning of Article 31(3)(b) of the Vienna Convention, can result in a departure from the original intent on the basis of a tacit agreement between the parties.”
According to the ICJ, widespread agreement is necessary for a treaty provision to be given a meaning that is different from the one originally envisaged. For example in Whaling in the Antarctic (Australia v Japan), Australia asked the ICJ to interpret Article VIII of the Whaling Convention in a dynamic manner, which would allow “the granting of special permits to kill … whales only when non-lethal methods are not available,” contrary to the letter of the Article (at para. 78). In so doing, Australia relied on certain International Whaling Commission (IWC) resolutions that, in its view, constituted subsequent practice relevant to the interpretation of Article VIII (at para. 79). The ICJ rejected this argument holding (at para. 83):
First, many [IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded … as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty within the meaning of … Article 31 of the Vienna Convention on the Law of Treaties.
In recent years, there seems to have been a shift in the practice of States Parties to the VCDR towards the view that electronic examination of diplomatic bags as ordinary practice is not permitted.
For this article I surveyed the policies and practice of 55 countries with respect to this question (on file with author). Among these, 28 have a policy of not scanning diplomatic bags while 21 scan all diplomatic bags, and 6 claim to have adopted more flexible solutions (although in practice flexibility is probably the preferred approach by most countries, even when not declared). These flexible solutions range from entrusting the electronic examination to private companies not associated with the government, to avoiding scanning when the sending State provides a written list of the contents of the bag. The flexible approach taken in the United Kingdom is that “[a]ll diplomatic bags, although subject to the usual prohibitions and restrictions, should be cleared without internal examination, scanning or detention unless very strong grounds for suspecting abuse exist.” In the Netherlands (at p. 39), only unaccompanied diplomatic bags that are picked up in person by accredited members of the diplomatic mission are not scanned. In some other countries, an official of the sending State is allowed to oversee the procedure.
While this survey indicates a preference for the view that the electronic examination is not permitted, this shift has not produced the widespread agreement necessary to constitute subsequent practice capable of validating an interpretation of treaty language that departs from States Parties’ original intent in respect of Article 27(3) of the VCDR. The shift does not, in any case, appear justified by any intention to extend the protection accorded to diplomatic bags beyond the communications carried within the bag, as originally intended by States Parties. Rather, support for the new view appears related to a marked advancement in technology since the 1980-1990s and States’ concern that receiving States may be able to use new scanning technologies to learn the contents of diplomatic correspondence. Thus, Christian Oelfke in his Commentary to the VCDR has indicated (at p. 197) that:
State-of-the-art X-ray equipment allows the read-out of the documents contained in a diplomatic bag due to the high metal density of the printing ink, or at least the readout of some pages thereof, hence giving at least partial access to the contents of the official correspondence.
In conclusion, regarding the issue of whether electronic examination of the diplomatic bag is permitted under the VCDR, as noted by Nolte (at p. 348) “as long as the views of States are clearly divided, the question cannot be resolved on the basis of relying on the subsequent practice of the parties.”
Superficial X-raying or Scanning is Lawful
If the “ultimate purpose” of Article 27(3) is to preserve the confidentiality of correspondence, then an evolutionary interpretation of the prohibition to open the bag as encompassing also X-raying or scanning is only necessary to the extent that examination can breach the confidentiality of correspondence (and, potentially, under a broader notion of confidentiality of correspondence, of any communication-related tool or equipment or of items “material and pertinent to the secrecy of communication” (Special Rapporteur Alexander Yankov, at p. 232)). A superficial form of scanning, performed with technologies and modalities that do not impact the confidentiality of communications, and only meant to identify manifest abuses of the bag, would preserve the rationale for the inviolability of the bag while accounting for the security interests of the receiving State. This is not only consistent with the VCDR, but also corresponds with a broader factual reality: that the most developed nations already use remote scanning techniques that can reveal the full content of diplomatic pouches.
As Sud explains (at p. 241): “[t]o maintain the equilibrium between technologically and economically capable countries and the rest of the States of the world, which was the purpose behind the conception of the Vienna Convention, there is need for a minimal amount of scanning of diplomatic bags.”