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Diplomatic Bag and Diplomatic Couriers
The diplomatic bag is given more absolute protection under the Vienna Convention than was given under customary law.[1] Previously, the receiving State had a right to challenge a bag that was suspected to contain unauthorised items. If this occurred, the sending State could either return the bag unopened, or opens it in the presence of the authorities of the receiving State. The Conference tried several times to limit the absolute protection of the diplomatic bag. Today Article 27 determines that no diplomatic bag may be opened or detained.
The Vienna Convention does not provide a requirement as to what a diplomatic bag is. Normal practice is that the bag resembles a sack; however, the bag may vary in size from an aircraft full of crates to a small pouch, as long as there is clear, visible, external marking indicating that it is part of the foreign embassy, or it bears an official seal ensuring its protection. The Vienna Convention intended and it was not considered a diplomatic bag and thus not inviolable.[2] The crates found within the lorry were accepted as diplomatic bags and thus not opened.[3] A solution could be to limit the size of bags to certain standard sizes. For instance, one could be a size to hold documents and another size to accommodate office equipment. To limit it further, it could be mandatory to limit it to one item per bag.
A diplomatic bag usually falls into one of two categories, accompanied or unaccompanied, depending on the importance of its contents. The main function of a courier is to supervise the bag that he accompanies and to ensure that the rules of international law are adhered to. The ILC distinguished between three types of couriers, namely, permanent diplomatic couriers, ad hoc couriers and captains of commercial aircrafts entrusted with a diplomatic bag. A diplomatic bag may be carried by a diplomatic courier who is entitled to the protection of the visiting State, enjoys personal inviolability and is not liable for arrest or detention. A diplomatic courier is a full-time employee of a Ministry of Foreign Affairs and on every journey he must be provided with a document indicating his status and the number of packages constituting the diplomatic bag. The sending State or mission may also designate ad hoc diplomatic couriers. They are used primarily by smaller States lacking resources to employ professional couriers, but larger States use them for urgent deliveries of documents where a normal courier service would be too slow.
The mission receiving the bag sends one of its members to take possession of the bag directly and freely from the captain. The limited immunities for ad hoc couriers and captains are to enable those persons to complete their functions. There have been concerns regarding the use of the diplomatic bag. Despite this, the diplomatic bag may not be opened or detained. There have been requests for permission to open the bag in the presence of an official of the mission. If this request is denied, the only recourse available to the receiving State is to deny entry of the bag into the country. Article 27, paragraph 3, does not confer inviolability on the diplomatic bag, but only that it cannot be opened or detained. There is no indication that representatives at the Conference considered the possibility of tests on the bag without opening it to reveal or confirm whether the bag contained illegal items.
Article 1 looks at the scope of present articles and to whom they apply and Article 28 deals with the protection of the diplomatic bag. It states that the bag shall not be opened or detained, as in the Vienna Convention. Furthermore, the bag shall be exempt from examination directly or through electronic or other technical devices. However, if the authorities of the receiving State believe that the bag contains something other than the items listed in Article 25, they may request the bag to be examined or scanned. If such examination does not satisfy the authorities, the bag may be opened in the presence of an authorised representative of the sending State. If this request is denied, the bag may be returned to its place of origin. This provision was introduced to show the balance between the interests of the sending State in ensuring the safety and confidentiality of the contents of the bag, and the security interests of the receiving State. It would appear that this provision is however ineffective and inadequate. Examination and scanning is permitted in circumstances where the bag contains items not listed in Article 25. This makes sense for small bags and pouches. It does not seem that the ILC dealt with larger “bags”, and the Vienna Convention does not limit the size of the bag.
References and Works Cited
[1] Lord Gore Booth, Stow, Guide to Diplomatic Practice, Longman , London, at 116-117,(5th ed. 1979).
[2] McClanahan, Supra Note 13, at 144.
[3] M.N. SHAW, INTERNATIONAL Law, Cambridge University Press, New York, at 529-530, (4th ed. 1997).