INTRODUCTION

In a bid to ensure the protection of official correspondence, the Vienna Convention on Diplomatic Relations (VCDR) provides for the inviolability of the diplomatic bag.^[1] A diplomatic bag is a properly identified pouch, box or package used to convey confidential documents between a government and its missions abroad.^[2] The inviolable status conferred on the diplomatic bag has been interpreted to mean that it ‘shall not be opened or detained and shall be exempt from examination directly or through electronic or other technical devices’.^[3] However, just like Pandora’s Box, the immunity conferred on the diplomatic bag has become a source of endless complications and has been subject to various forms of abuse. This article examines the abuse of immunity accorded to the diplomatic bag and the challenges surrounding the extension of this immunity to digital diplomatic correspondence.

ABUSE OF IMMUNITY CONFERRED ON THE DIPLOMATIC BAG 

It is important to note that the inviolability status conferred on the diplomatic bag under the VCDR is not subject to the content of the bag. In drafting this provision of the VCDR, proposals to limit the status of inviolability enjoyed by the diplomatic bag to the content of the bag were rejected. One such proposal was to place the paragraph providing for the content of the bag before the provision on immunity. This would have made the inviolability of the bag conditional upon the content of the bag.^[4] Hence, immunity will only be conferred on the bag if it is used for the transportation of diplomatic correspondence and nothing more. However, the International Law Commission (ILC) decided that the provisions of the convention should express absolute inviolability of the diplomatic bag due to the highly confidential nature of its content.^[5]

The inviolable status of the diplomatic bag makes it prone to various forms of abuse such as use for the smuggling of persons, resources, contraband weaponry, drugs and other illegal items.^[6] This article focuses on the smuggling of persons and resources.

The most notorious attempt to abuse the status of the diplomatic bag occurred in 1983, after a successful military coup in Nigeria.^[7]  The Minister of transportation under the former regime, Umaru Dikko fled to London in a bid to escape trial under the newly constituted military government. However,  Mossad, the Israel intelligence agency, was in charge of locating Dikko and ensuring his return to Nigeria for trial.^[8] Dikko was kidnapped from his home in London, blindfolded, drugged and bound.^[9] He was then placed in a crate labelled as “extra cargo” and transported to Stansted Airport, England, bound for Nigeria amid claims that it was a diplomatic bag. Fortunately, the cargo was not properly marked as required by Article 24 of the VCDR and it authorized the customs officials to open the crate, thereby rescuing Dikko.^[10] If it had been properly marked, the Customs officials would have been unable to examine its content due to the inviolability of the diplomatic bag.^[11]

The diplomatic bag has also become notorious for drug dealing. More recently, on 5 July 2020, 30 kilograms of 24 carat gold being smuggled into India was intercepted by the Central Board of Indirect Taxes and Customs at the Thiruvananthapuram Airport.^[12] The bag which bore visible marks of its diplomatic nature from Dubai had been detained by the customs officials who had received an anonymous tip. Upon detention of the bag, the customs office received a dubious call claiming to be from the secretary of the consulate general of the United Arab Emirates in Thiruvananthapuram.^[13] The caller ordered for the immediate release of the bag. However, the diplomatic bag was eventually opened in the presence of a senior officer from the high commissioner’s office and the official to whom the baggage was addressed thereby revealing its content.^[14] If the customs officials had not received the anonymous tip, the bag would have been cleared without any form of search or scan.

CHALLENGES SURROUNDING THE EXTENSION OF IMMUNITY TO DIGITAL DIPLOMATIC CORRESPONDENCE 

With the advent of technology, diplomatic correspondence can now be transmitted digitally.^[15] While this may help to significantly reduce the need for physical diplomatic bags, digital diplomatic correspondence comes with its own issues, particularly the risk of unauthorized access to highly confidential documents.^[16] In November 2010, the online platform WikiLeaks published about 250,000 confidential diplomatic cables from 274 embassies, missions of the United States and consulates. These correspondences were leaked by a member of the U.S. Army Intelligence analyst, Chelsea Manning.^[17] Documents leaked included the Afghanistan war diary (July 2010) comprising over 91,000 Afghan war documents from January 2004 to December 2009^[18] and the Iraq war logs (October 2010), a collection of 391,832 US Army field reports from the Iraq war covering 2004-2009.^[19] While these documents helped to expose instances of gross violations of human rights, they also put the lives of thousands in danger as the names, tribes and families of informants and spies providing information to the US were published. 

While it is clear that the inviolability status of diplomatic correspondence under the VCDR should be extended to digital communication, it remains unclear how such provisions should apply especially in terms of the responsibility of governments in ensuring the protection of digital diplomatic correspondence. This is because in public international law, international obligations exist among States and not private individuals. As such, a breach of an international obligation attracts the responsibility of the State and not that of private individuals.^[20] This means that every State bears the burden of ensuring that all individuals and private institutions within their jurisdiction comply with the provisions of the VCDR on the inviolability of diplomatic correspondence.^[21] However, the vulnerability of digital information makes this a Herculean task, especially for under-developed and developing nations.

Less developed nations face numerous challenges in the digital age including inadequate access to latest technology, lack of sophisticated telecommunications infrastructure, as well as other cultural and socioeconomic factors. Also, these nations do not have the financial and technical resources required to effectively regulate digital communications. The limited resources of less developed nations are expended on policy priorities such as the provision of sustainable housing, ensuring access to clean water, and tackling poverty and hunger.^[22] As such, it is impracticable to impose an international obligation above the State’s capacity.

RECOMMENDATION AND CONCLUSION

While digital diplomatic correspondence suffers from inadequate protection due to its vulnerability, physical diplomatic correspondence (the diplomatic bag) enjoys unfettered protection which makes it prone to abuse. Hence, a different approach is required to tackle both problems. A higher level of protection is required for the preservation of digital diplomatic correspondence. For example, diplomats may be required to make use of special registration processes which will help internet companies identify and accord relevant e-immunities to them and their correspondence. To ensure the protection of digital correspondence in less developed nations, global cooperation is required to ensure technology transfer from developed nations. On the other hand, it has become pertinent to allow the non-intrusive examination of physical diplomatic correspondence to prevent further abuse of its inviolable status. For instance, diplomatic bags can be examined through the use of x-rays, dual and multi-energy imagery and backscatter techniques without physically opening the diplomatic correspondence. 

It is clear that the VCDR is out of touch with technological realities and there is a need for reconciliation. A new framework on diplomatic correspondence is needed for the  re-examination of the status of diplomatic correspondence. This new framework should take into account the need to prevent abuse of immunity as well as the issues surrounding the implementation of this body of laws in the virtual world.

References

^[1] Art 27 of the Vienna Convention on Diplomatic Relations (18 April 1961, entered into force 24 April 1964).

^[2] Chuck Ashman, Pamela Trescott,  Diplomatic Crime: Drugs, Killings, Thefts, Rapes, Slavery & other Outrageous Crimes (Acropolis Books Inc, 1987) 190.

^[3] Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by Diplomatic Courier and Draft Optional Protocols thereto with commentaries (adopted in 1989) Art 28(1).

^[4] Yearbook of the International Law Commission (1958) Volume 1,  138-139.

^[5] ibid.

^[6] Ashman, Trescott (n 2).

^[7] Max Siollun, ‘The Mossad Affair: The Kidnap of Umaru Dikko (2)’ (iNigerian, 20 January 2008) <https://www.inigerian.com/the-mossad-affair-the-kidnap-of-umaru-dikko-2/> accessed 12 October 2022.

^[8] ibid.

^[9] Adeoye Akinsanya, ‘The Dikko Affair and Anglo-Nigerian Relations’ (1985) 34(3) The International and Comparative Law Quarterly 602-609 <https://www.jstor.org/stable/759313?seq=7#metadata_info_tab_contents> accessed 31 October 2022. 

^[10] Ashman, Trescott (n 2) 204-211.

^[11] Diplomatic Claim- Eritrea’s Claim 20 (The Federal Democratic Republic of Ethiopia v. The State of Eritrea) (Partial Award) (2005) PCA ICGJ 358.

^[12] Timsy Jaipuria, ‘How Customs Officials Seized 30 kg of Gold Worth Rs 15 Crore From a Diplomatic Cargo’  (CNBC TV18, 6 July 2020) <https://www.cnbctv18.com/india/customs-seize-30-kg-gold-worth-rs15-crore-from-cargo-of-a-uae-diplomat-6281981.htm/amp> accessed 12 October 2022.

^[13] ibid.

^[14] Sidharth. M.P, ‘Kerala: 30kg Gold Smuggling Case Gets Murky, Top Bureaucrat’s Role In Question’ (DNA India, 8 July 2020) <https://www.dnaindia.com/india/report-kerala-30kg-gold-smuggling-case-gets-murky-top-bureaucrat-s-role-in-question-2831345/amp> accessed 12 October 2022.

^[15] Simona-Nicoleta Voicu, ‘Digital Diplomacy. A New Micro-Sphere of Public Communication’ Postmodern Openings (2020) 11(3)160-176 <https://doi.org/10.18662/po/11.3/205> accessed 12 October 2022.

^[16] Labat Patricio Grané, Naomi Burke, The Protection of Diplomatic Correspondence in the Digital Age: Time to Revise the Vienna Convention?, in Paul Behrens (ed.), Diplomatic Law in a New Millennium (OUP 2017) <https://doi.org/10.1093/oso/9780198795940.003.0013> accessed 12 October 2022.

^[17] James H. Boykin, Malik Havalic, ‘Fruits of the Poisonous Tree: The Admissibility of Unlawfully Obtained Evidence in International Arbitration’ (2015) 12(5) OGEL <https://www.ogel.org/article.asp?key=3571> accessed 12 October 2022 . 

^[18] Declan McCullagh, Steven Musil ‘Wikileaks Releases Massive Set Of Afghan War Files’ (CNET, 25 July 2010) <https://www.cnet.com/news/privacy/wikileaks-releases-massive-set-of-afghan-war-files> accessed 12 October 2022.

^[19] Nick Davies, Jonathan Steele and David Leigh, ‘Iraq War Logs: Secret Files Show how US Ignored Torture’ The Guardian (London, 22 October 2010) <https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-military-leaks> accessed 12 October 2022.

^[20] Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted 2001) Art 1.

^[21] Vienna Convention on Diplomatic Relations, Article 29. 

^[22] Ayman Abdelgadir, Omer Abu Elzein and Faris Hameed, ‘Social Priorities of Less Developed Countries Sustainable Housing (Case of Sudan)’ The Academic Research Committee (2019) <https://www.researchgate.net/publication/331654763_Social_Priorities_of_Less_Developed_Countries_Sustainable_Housing_Case_of_Sudan/fulltext/5c872559a6fdcc88c39bfe5e/Social-Priorities-of-Less-Developed-Countries-Sustainable-Housing-Case-of-Sudan.pdf> accessed 23 October 2022.