The Status of the Diplomatic Bag: A Proposed United States

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The Status of the Diplomatic Bag: A ProposedUnited States PositionJeffrey F. Addicott

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Recommended CitationJeffrey F. Addicott, The Status of the Diplomatic Bag: A Proposed United States Position, 13 Hous. J. Int’l L. 221 (1990).

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HOUSTON JOURNALOF

INTERNATIONAL LAWVOLUME 13 SPRING 1991 NUMBER 2

THE STATUS OF THE DIPLOMATIC BAG:A PROPOSED UNITED STATES POSITION

Major Jeffrey F. Addicottt

"One good reason is always enough."General R. E. Lee

I. INTRODUCTION

It is an unfortunate fact of the times that diplomaticprivileges and immunities have increasingly been subjected toabuse by some states. The protections afforded diplomats,diplomatic missions, and diplomatic bags have been misused tosponsor or commit various criminal acts against other states ortheir citizens, striking at the heart of traditional concepts ofinternational diplomatic relations.'

t Major, U.S. Army, Senior Instructor, International Law Division, JudgeAdvocate General's School (TJAGSA). B.A. (Honors in GVPT), University ofMaryland, 1976; J.D., University of Alabama, 1979; LL.M., TJAGSA, 1987. 91stBasic Class, TJAGSA, 1979; Combined Arms Services Staff School, 1985; 35thGraduate Class, TJAGSA, 1987. Chief Criminal Law and Senior DefenseCounsel, Office of the U.S. Commander, Berlin, Germany, 1979-82; CommandJudge Advocate, U.S. Army Garrison, Camp Humphreys, Korea, 1982-83; MilitaryMedical Law Instructor, Command Judge Advocate, and Brigade Judge Advocate,Academy of Health Sciences, Fort Sam Houston, Texas, 1983-86; Group JudgeAdvocate, 1st Special Forces Group (Abn), Fort Lewis, WA, 1987-89; SeniorInstructor, International Law Division, TJAGSA, 1989-1991. Member of the Barof Alabama and U.S. Court of Military Appeals.

1. See generally Goldberg, The Shoot-Out at the Libyan Self-Styled People'sBureau: A Case of State-Supported International Terrorism. 30 S. DAK. L. REV.1 (1984).

221

222 HOUSTON JOURNVAL OF INTERNATIONAL LAW [Vol. 13:221

Use of the diplomatic bag to import and export prohibitedor illegal items into receiving and transit states is of particularconcern.2 Misuse has included transport of illegal foreign cur-rency, illegal drugs, weapons, and even human beings.3 Whileall malum in se acts that abuse this diplomatic shield are objec-tionable, most disconcerting are those which use the diplomaticbag to facilitate acts of terrorism.' As a result, article 27(3) ofthe Vienna Convention on Diplomatic Relations (Vienna Con-vention),' which provides that "[t]he diplomatic bag shall notbe opened or detained,' has come under the most seriousscrutiny and debate.7 Although the article does not specificallyinclude the term "inviolable," it is apparent that a privilegedstatus has been created that is far superior to traditionaldiplomatic norms.' Concerned individuals and states urgerevision of this protected status in order to better protectlegitimate security interests of receiving states. Western nations

2. Under international law a receiving state is one that receives diplomaticmaterials from a sending state. A transit state can be any state through whichdiplomatic materials might pass. See Vienna Convention on Diplomatic Relations,opened for signature Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500U.N.T.S. 95 [hereinafter Vienna Convention], which defines the internationalconventions for diplomatic intercourse, privileges, and immunities of diplomaticagents.

3. See Report of the International Law Commission on the Work of its Thir-ty-Eighth Session, U.N. Doc. A/41/10 (1986) [hereinafter 1986 ILC Report].

4. There is no universally accepted definition of terrorism, either in theinternational community or in the United States. As its root word "terror" im-plies, terrorism involves the use of fear designed to attain certain goals.Notwithstanding that it is the antithesis of the rule of law, the old adage that.one man's terrorist is another man's freedom fighter" contributes to the in-ability to carve out a clear definition. Certainly, however, Western nations havecome to associate certain specific acts as terrorism per se. Hostage taking, publicbombings, and acts directed against civilians are easily defined as terrorist innature, regardless of the ideological, religious, or social goals of the perpetrators.For a more detailed discussion of the term, see R. ERICKSON, LEGITIMATE USEOF MILITARY FORCE AGAINST STATE-SPONSORED INTERNATIONAL TERRORISM (1989).

5. Vienna Convention, supra note 2. The Vienna Convention on DiplomaticRelations was entered into force for the U.S. on Dec. 13, 1972. The U.S. ratifi-cation appears at 111 Cong. Rec. 23, 733 (1965).

6. Vienna Convention, supra note 2, art. 27(3).7. See Goldberg, supra note 1. See also E. DENZA, DIPLOMATIC LAW 4 (1976)

for a discussion of difficulties arising because of the approach of inviolability.8. E. DENZA, supra note 7, at 125-26. See also GORE-BOOTH AND LORD,

SATOW'S GUIDE TO DIPLOMATIC PRACTICE 117 (5th ed. 1979) [hereinafter SATOW].

1991] U.N. POSITION ON DIPLOMATIC BAG STATUS 223

are particularly concerned with misuse that may facilitate actsof international terrorism. Smaller states are more concernedwith misuse that may facilitate disruptive economic or politicalactivities. All states fear that violence resulting from a state-sponsored or state-supported terrorist abuse of the diplomaticbag might precipitate not only the abolition of the diplomaticbag's protection, but also the undermining of other privilegesand immunities codified under the Vienna Convention.'0

This Article examines the current legal status of the diplo-matic bag and recent international efforts to re-examine thatstatus. Conflicts between the sending state's interest in ensur-ing confidentiality of its diplomatic materials and the receivingand transit states' interests in ensuring adequate security willbe closely examined. Finally, against the background of theconcept of reciprocity, a United States position on the status ofthe diplomatic bag will be proposed.

II. DEFINITION OF THE DIPLOMATIC BAG ANDITS CURRENT STATUS

A. Customary International Law

States have long required a safe and confidential means tocommunicate with diplomats stationed abroad." Traditionally,receiving states have granted foreign diplomats this privilege inorder to receive the same right of free communication. Custom-ary international law identifies two principles which underliethis free communication privilege: no delay and no censor-ship.'

2

9. Several commentators seek to distinguish a "state-sponsored" terrorist actfrom a "state-supported" terrorist act. State-sponsored terrorism exists when astate directly but secretly uses its own resources to sponsor acts of terrorismagainst another country. Since accountability for such acts is denied, the stateseeks to avoid responsibility. On the other hand, "state-supported" terrorismrefers to the practice of a state providing resources to a terrorist group fortraining, logistics, or financing. Under the state-supported scenario, however, theterrorist group generally operates independently from the state. See ERICKSON,supra note 4, at 33; FM 100-37 Terrorism Counteraction, 3 (July 1987).

10. See generally Vienna Convention, supra note 2.11. See generally H. GROTIUS, RIGHTS OF WAR AND PEACE (W. Whewell

trans. 1853).12. Id.

224 HOUSTON JOURNAL OF INTERNATIONAL LAW [Vol. 13:221

It is perhaps not too much to say that the privilege offreedom of communication is one of the most vital ofthose required by and accorded to envoys. It enablesthem to receive instructions from their sending Stateand to send home reports of what they have done, said,and observed. The privilege consists of the transmissionwithout delay of the envoy's communications and im-munity of those communications from any form ofcensorship. The communications may be sent by post ortelegraph ... [and] may also be sent by the diplomaticbag by courier; and the courier must enjoy a degree offreedom of movement similar to that of the ambassadorhimself."

The no delay, no censorship rule extends to the courier as wellas to any physical instrument used by the courier. Over time,the preferred instrument has come to be referred to as thediplomatic bag. 4

Although customary international law did not specificallyprohibit inspection or refusal to approve transit of a bag,widespread mutual respect made such occurrences rare. 5

Nevertheless, lack of universal binding rules was unsatisfactory.An early attempt to form international consensus for a multilat-eral treaty was initiated in 1932 at Harvard Law School. 6

13. Lyons, Personal Immunities of Diplomatic Agents, 1954 BRIT. Y.B. INT'LL. 299, 334 (1954).

14. Some sources refer to the diplomatic bag as the diplomatic pouch. Theterm diplomatic bag, however, is the description most often seen in practice andliterature.

15. E. DENZA, supra note 7, at 125-26.16. 7 M. WHITEMAN, DIGEST OF INTERNATIONAL LAw 174-75 (1970). The

Harvard Draft Convention on Diplomatic Privileges and Immunities containedthe following provisions:

1. A receiving state shall freely permit and protect official communicationsby whatever available means, including the employment of messengersprovided with passports ad hoc and the use of codes and cipher:

(a) between a mission or the members of a mission and thesending state;(b) between a mission or the members of a mission and otherofficers of the sending state upon the territory of the receivingstate;(c) between a mission of the sending state and a mission ofanother state sent to the same receiving state;


Leading international scholars and authorities met to preparea proposed set of unified rules. 7 The resultant Harvard DraftConvention on Diplomatic Privileges and Immunities (HarvardConvention) stated:

This article is based upon the principle, now gener-ally recognized in practice, at least in times of peace,that universal freedom of diplomatic communications isa matter of interest to the entire community of nations.

International law recognized the principle of free-dom of diplomatic communications at a time when thecarriage of such communications was made by specialcouriers furnished with passports ad hoc. While earliermeans are still employed, at the present time interna-tional official intercourse makes use of whatever meansare available: courier, mails, telegraph, telephone,cable, or radio. Modern means of communication havingchanged the methods of diplomatic intercourse, nointerference by the receiving state with the communica-tions of missions . . . is tolerable. 8

Traditional customary law respected the diplomatic bag butagreed that a receiving state, based on valid suspicion of abuse,could either inspect or return the instrument. 19 The HarvardConvention strongly influenced drafters of the Vienna Conven-tion to grant the diplomatic bag additional protections previous-ly unknown in customary law. The Harvard Research Group'sproposal actually reflected a position midway between the cus-tomary rules of no delay, no censorship and the greater stan-

(d) between a mission of the sending state and missions andconsulates of the same state in other states;(e) between a mission of the sending state and the agents ofpublic international organizations,

2. A receiving state shall freely permit and protect communications betweena mission or members of a mission of the sending state and the nationals ofthe sending state within the territory of the receiving state.3. A state other than the receiving state and the sending state shall protectand facilitate the transit of such communications and messengers engaged inconnection therewith.

Id.17. Id.18. Id- at 175.19. E. DENZA, supra note 7, at 125-26.


dard of protection ultimately adopted by the Vienna Conven-tion.

20

B. The Standard of Protection for the Diplomatic Bag

In conjunction with formation of the United Nations anddevelopment of closer political and business ties among nations,the international community recognized a need to codify immu-nities and privileges associated with diplomatic relations.Extensive debate was finally resolved in 1961 with the ViennaConvention on Diplomatic Relations. This Convention wassubsequently adopted by a majority of the United Nationsmember states, including the United States.2 1

Many articles in the Vienna Convention simply codifiedcustomary international practices long associated with interna-tional diplomatic intercourse. An important provision wasadded, however, that accorded the diplomatic bag a "moreabsolute protection than was given under the previous custom-ary law."22

The Vienna Convention was based on a functional necessitytheory, viewing diplomatic privileges and immunities as ameans to allow proper day-to-day function of the diplomaticmission and not as a benefit to any individual.23 Many originalcommentators and drafters argued that inclusion of the shield-ing language regarding status of the diplomatic bag strainedthat analysis.24 With the bag obtaining a status of near invio-lability, concern shifted to the vast potential for widespreadabuse. 5 It was argued that any misuse that had occurred

20. M. WHITEMAN, supra note 16, at 175.21. Vienna Convention, supra notes 2 and 5. The Diplomatic Relations Act,

Pub. L. No. 95-393, 92 Stat. 808 (1978), adopted the Vienna Convention as thefundamental law regarding diplomatic privileges and immunities. The ViennaConvention was the first true multilateral agreement on diplomatic immunitiesand privileges.

22. SATOW, supra note 8.23. See generally C. E. WILSoN, DIPLOMATIC PRIVILEGES AND IMMUNITIEs

(1967). The Vienna Convention certainly envisioned that only those protectionsthat were necessary to perform the functions of the diplomatic mission were tobe extended.

24. E. DENZA, supra note 7, at 126.25. See E. CLARK, DIPLOMAT-THE WORLD OF INTERNATIONAL DIPLOMACY 103

(1979). Under customary international law, the major powers did not allow the


under the old customary rules would surely be followed bygreater abuse under the more privileged status.

C. Article 27(3): Functional Inviolability

Two articles of the Vienna Convention, 27(3) and 27(4),elevate the diplomatic bag's status to near inviolability. Whileunder customary international law the "receiving state had aright to challenge a bag which it believed to contain unautho-rized articles," 2 article 27(3) of the Vienna Convention statesthat "f[the diplomatic bag shall not be opened or detained. 7

Part of this issue of inviolability stems from placement ofdefinitional language within the Vienna Convention. As reflect-ed in the commentary accompanying article 27(4), the Interna-tional Law Commission consciously elected to place the defini-tional description of the bag after the broad statement of privi-leged status in article 27(3), further stressing the principle ofabsolute protection regardless of use.' All attempts to placethe definitional clause before the status clause were rejected.'

Recognition of the customary practice of detaining or in-specting suspicious diplomatic bags can be found only in com-mentary to articles of the Vienna Convention.' ° Even so, a

diplomatic bag for personal use. It was, however, widely acknowledged that thiswas the practice. In Russia in the 1930s, "when luxuries were unobtainable,diplomatic admirers often kept actresses and ballerinas in Paris fashions withclothing brought into the country in the [diplomatic] bag." Id.

26. 'SATOw, supra note 8, at 117-18. See also C.E. WILSON, supra note 23,at 136-37 (1967).

27. Vienna Convention, supra note 2, art. 27(3).

28. See E. DENZA, supra note 7, at 126-27. This placement of the privilegesection before the content section indicated that the privilege is not conditionedon compliance with content rules.

29. "In 1958 the Rapporteur proposed to the Cbmmission a text whichamalgamated the provisions which corresponded to paragraphs 3 and 4 of article27. The object of this was simply to place the provision which might be said toconstitute the definition of the diplomatic bag before the provision regarding itsinviolability. This rearrangement was not acceptable to the Commission, sinceit might be argued from such a juxtaposition that the inviolability of the bagwas conditional on its complying with the requirements regarding its contents."Id-

30. The commentary to article 21 states:

The Commission has noted that the diplomatic bag has on occasion beenopened with the permission of the Ministry of Foreign Affairs of the receivingState, and in the presence of a representative of the mission concerned.


concept of absolute inviolability is not clearly delineated. Initialformal comments of the United States included the observationthat personal baggage of a diplomat can be searched uponserious grounds for "presuming that it contain[ed] articles notintended for his personal use or . . . articles the import orexport of which is prohibited by law or controlled by quarantieregulations of the receiving state."8' This analysis is not gen-erally extended to the diplomatic bag, but Vienna Conventionlanguage did not specifically pinpoint the concept of inviolabili-ty.

The majority of states, in ratifying the Vienna Convention,readily acceded to the diplomatic bag's new status and thenotion that it should not be opened or detained. A minorityposition argued that language of article 27(3) did not reallymean the bag was "inviolable" because the specific term was notincluded. Countries espousing this position insisted that, as aresult, the language used did not prohibit a receiving state fromexercising its security interests should the need arise.32

Other states, such as Bahrain, rejected the article and thenew status entirely, asserting that it was incompatible withcustomary international law. Bahrain included a specific res-ervation to article 27(3),33 retaining the "right to open thediplomatic bag if there are serious grounds for presuming thatit contains articles, the import or export of which is prohibitedby law."34 Bahrain felt that protected treatment of the diplo-matic bag was not mandatory if reason existed to believe the

While recognizing that States have been led to take such measures inexceptional cases where there were serious grounds for suspecting that thediplomatic bag was being used in a manner contrary to paragraph 3 of thearticle, and with detriment to the interests of the receiving State, theCommission wishes nevertheless to emphasize the over-riding importancewhich it attaches to the observance of the principle of inviolability of thediplomatic bag.

11 Y.B. OF THE INTL L. COMM'N 138 (1957).31. C.E. WILSON, supra note 23, at 138.32. E. DENZA, supra note 7, at 128.33. Id. See also L. DEMBINSKI, THE LAW OF MODERN DIPLOMACY 178, n. 8

(1988). Kuwait, Bahrain, Saudi Arabia, and Libya each made such a reservationregarding article 27(3) of the Vienna Convention. Although the United States,the U.S.S.R., Australia, and others rejected these reservations, a state isprobably legally justified in making such a reservation if it asserts the desireto maintain previous customary practice.

34. E. DENZA, supra note 7, at 128.

1991] U.N. POSITION ON DIPLOMATIC BAG STATUS

diplomatic bag contained items either illegal or not for officialuse.

35

Indeed, this analysis is included in the Convention onConsular Relations."6 A consular bag (as opposed to a diplo-matic bag) may be opened if authorities of the receiving statehave serious reason to believe the bag contains prohibiteditems.3 The sending state then has the choice either to openthe bag or to have it returned.' However, authorities arguethis option exists only because of specific treaty provisions onconsular relations: "bags of other types of missions (such as dip-lomatic bags) under no circumstances can be opened, or theircontents controlled by authorities of the receiving State."39

The International Law Commission has repeatedly rejectedproposals dealing with the diplomatic bag that would permitreceiving state authorities to impose a be opened or be returnedchoice on sending states.4" Vhile a sending state does owe aduty to transport only those materials consistent with article27(4), many commentators maintain that even the "non-obser-vance of that duty . . . [does] not create a right to inspect thedijlomatic pouch."41

In actual international practice, states generally treat thebag as inviolable, following the clear meaning and spirit of theVienna Convention. The limited protections available undercustomary international practices have thus been supplanted bya much more stringent standard that can be termed functionalinviolability.

D. Article 27(4): How Much is Enough?

Only after the diplomatic bag's status is discussed in article27(3) does the Vienna Convention, in article 27(4), go on to de-scribe just what constitutes the diplomatic bag: "The packagesconstituting the diplomatic bag must bear visible external

35. Goldberg, supra note 1, at 4.36. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77,

T.I.A.S. No. 6820, 596 U.N.T.S. 261 [hereinafter Consular Convention].37. Id. at 99, T.I.A.S. No. 6820, at 23, 596 U.N.T.S. at 290.

38. Id.39. See L. DEMBINSKI, supra note 33, at 178.

40. E. DENZA, supra note 7, at 126-27.

41. Id. at 125.

229


marks of their character and may contain only, diplomatic doc-uments or articles intended for official use."4 2 Requirementsthat the diplomatic bag "bear visible external marks" and"contain only diplomatic documents" seldom produce muchcontroversy. The external mark need not even be an officialstate seal of the mission.43 What has sparked controversy isthe broadly worded phrase "or articles for official use," terminol-ogy that can only be defined by reference to actual practicebetween states. Fortunately, that practice has been fairlyconsistent and is instrumental in addressing two issues: (1) thesize of packages that can be placed in a diplomatic bag, and (2)the types of articles that will qualify "for official use" underarticle 27(4).

Although traditional customary international law certainlycontemplated that the diplomatic bag be of a size which couldbe hand-carried, most states currently interpret the word"article" to include objects that can only be moved with aforklift!44 The United States has unquestionably adopted thisview,4' and is the world's leader in the shipment of hugecrates, cartons, and boxes in diplomatic bags.48 By contrast,some states view such practices as incompatible with article27(4) and have limited size of the package to pre-Vienna Con-vention concepts. For example, the Communist Chinese limitexternal size of the diplomatic bag to that of a hand-carriedbrief case.47

A collateral issue addresses what material may be placedin the diplomatic bag. "For official use" has not been uniformlyinterpreted. The United States, along with a majority of states,defines the phrase to include all merchandise not otherwiserestricted or illegal.41 "Official use"- merchandise is defined to

42. Vienna Convention, supra note 2, art. 27(4).


44. M. WHITEMAN, supra note 16, at 220. A pouch is any "container, regard-less [of] size or weight." See also E. CLARK, supra note 25, at 103. The dip-lomatic bag "can be of any size from a small package to a lorry-load [truck-load]."

45. United States Department of State, 5 Foreign Affairs Manual 300 (1973)[hereinafter 5 FAM].

46. Id. at 331.8.

47. L. DEMBINSKI, supra note 33, at 177.

48. 5 FAM, supra note 45.


"include any goods or commodities, regardless of size, form, orvalue."49 Objects legitimately deemed to be "for official use"have included "documents, office supplies, furniture for theresidence, spare parts for official cars, alcohol for receptions,etc."

50

Some countries, primarily lesser developed ones, argue thatarticle 27(4) of the treaty refers only to those items traditionallytransported by means of the diplomatic bag. This perspectivewould restrict the phrase to include only "official governmentcorrespondence, documents, publications, and other materials(including but not limited to films, magnetic tapes, plasticplates, and cryptographic documents and equipment).""'

However, most of the international community has adoptedthe United States position.52 Asserting a broad reading ofarticle 27(4), these states steadfastly maintain that transport oflarge support-type items is essential to carry out diplomaticrelations, and therefore meets the mandates of "for official use."Indeed, by citing apprehension over electronic surveillance andother sophisticated forms of espionage, even ordinary buildingmaterials used in construction projects on an embassy com-pound might qualify for shipment through the diplomaticbag.

53

There are, of course, limits to this expanded interpretation.Attempts by the U.S.S.R. to use the diplomatic bag to shipvehicles has met with mixed results.5 4 In one case focusing onsize criteria, Switzerland deemed that the Vienna Conventiondid not allow the diplomatic bag to exceed a maximum weightof 450 pounds. 5 In another case involving the Russians, theRepublic of Germany refused to recognize that a motorizedvehicle fell within the "for official use" language.56 Interesting-

49. Id. at 315.7.50. L. DEMBINSKI, supra note 33, at 177.

51. 5 FAM, supra note 45, at 332.2-1.52. Telephone interview with Mr. Thomas Andrews, Deputy Director,

Diplomatic Courier Service, United States Department of State (Nov. 20, 1990)[hereinafter Andrews].

53. Ottaway, State Department, Congress in Bmbacssy Row, Wash. Post, Mar.4, 1987, at A17, col. 2.

54. See C. ASHMAN & P. TREscorr, DIPLOMATIC CRIME 190-93 (1987).

55. Id56. Id


ly, in that case the Germans applied type rather than sizecriteria.

If some disagreement exists over the legitimacy of itemsthat can be placed in the diplomatic bag, all states neverthelessunderstand that prohibited items essentially conform to a listadopted by the United States State Department: "Explosives,firearms, ammunition, incendiary material, corrosives, caustics,poisons, radioactive substances, magnetic materials, liquids,illegal narcotics and dangerous drugs, . . . and any item whichis illegal to import into the receiving. country or export from thesending state."57 Although the official position of signatories tothe Vienna Convention is that such restricted items will not beimported or exported via the diplomatic bag, events have shownthat states do indeed transport items in violation of the plainreading of article 27(4)."s The most common infraction in-volves items which, while technically prohibited, are not amalum in se violation. 9 Aside from headline-grabbing excep-tions, such as the discovery of a kidnapped and drugged formerNigerian official who had been sealed in a crate that was subse-quently passed off as a diplomatic bag,6" it is reasonable toassume that the majority of infractions are probably minor andtechnical in character.

As noted, the diplomatic bag also serves as a convenientvehicle by which a sending state can respond to any number ofexigencies. It is not difficult to postulate certain conditions thatmight tempt a state to use the protection of the diplomatic bag.For example, if an embassy is located in a country whichabsolutely prohibits import of weapons, it is possible that thesending state might determine that emergency conditions

57. 5 FAM, supra note 45, at 332.4.58. See generally C.E. WILSON, supra note 23. In 1958, a Belgian consul gen-

eral stationed in Syria was found in Lebanon with the following items in hiscar: 33 submachine guns, 28 pistols, 32 revolvers, 16 hand grenades, 1,800rounds of machine gun ammunition, 1,500 rounds of other ammunition, severaltime bombs, and some demolition equipment.

59. Id.

60. See AsHMAN & TREscoTT, supra note 54, at 204-05. In 1983, Nigeriankidnappers had taken Mr. Dikko from his home in London and placed him,bound and drugged, inside of a crate which they presented to British officialsat the airport as a diplomatic bag. Because of a suspicious smell emanatingfrom the crate and because there were no diplomatic seals or marks on thecrate, the crate was detained and opened.


warrant protection and defense of the embassy. A policy deci-sion might be made to ship firearms through the diplomaticbag. Such a use of the diplomatic bag, under the given hostnation's domestic law, would be a prohibited act under thetreaty. However, the violation would not be without logicaljustification if the embassy could show, for instance, a wide-spread pattern of attacks on the diplomatic mission and an in-ability or unwillingness of the host nation to protect the embas-sy.

61

The dogmatic judgment that a breach is a breach, regard-less of magnitude or motive, is not necessarily axiomatic inlight of the extremely broad language of article 27(4). Whileabuses of the bag to facilitate acts of aggression can never bejustified, minor- infractions might actually serve to alleviateconditions that would otherwise heighten conflict and strainbetween sending and receiving states.

While the above scenario is only hypothetical, it would benaive to believe that such infractions never occur, particularlyin light of various ethnocentric domestic regulations imposed bysome receiving states. 2 The critical question is whether suchmalum prohibitum activities on the part of the sending statenevertheless substantially comply with the overall intent of theVienna Convention.

In drafting article 27(4), the International Law Commissionrecognized that the diplomatic bag had been used for transportof items other than traditional diplomatic paperwork. Indeed,addition of the word "article" to article 27(4) underscores theacknowledgment that additional equipment is necessary in mod-ern diplomatic intercourse. Ideally, a receiving state should notinstitute domestic legislation that unduly restricts such items.

In the commentary to article 27(4), the Commission added:"Where, however, the articles are intended for official use, there

61. See Kelly, American Leadership in the Middle East, U.S. Department ofState Dispatch, Sept. 1990, at 111. With the invasion of Kuwait, the Americanembassy in Kuwait City remained functional despite attempts by Iraq to forceit to close. With such a cut off of food and other supplies to an embassy, thediplomatic bag might be considered as a possible vehicle to bring in such items.

62. See generally S.H. AMIN, MIDDLE EAST LEGAL SYSTEMS (1985). As wasbrought to focus by the 1990 American deployment of military forces to SaudiArabia, certain Middle Eastern countries prohibit the importation of non-Islamicliterature, alcoholic beverages, and pornography.


is no objection to using the bag for transfer of currency (provid-ed that this is not contrary to the laws or regulations of thereceiving States), medals, cipher or wireless equipment or filmsor books .... ."' This caveat that bagged items should notviolate "the laws or regulations of the receiving state" must beviewed in the light of a reasonableness standard. A receivingstate that imposes unreasonably restrictive regulations, with noexceptions for foreign diplomats or diplomatic materials, shouldprobably anticipate periodic minor infractions of those rules.

To address this dilemma, some drafters of the ViennaConvention suggested creation of a split definition based ontypes of items transported. Paperwork and diplomatic mailwould always be treated as "for official use" and hence beabsolutely protected. All other materials, however, would besubject to inspection." This proposal was rejected by the Com-mission, 5 as were all proposals which would condition diplo-matic protection on the propriety of a bag's contents.' The ob-vious problem is that contents can only be verified by aninspection.

67

Still, universal consensus remains firm that shipment ofitems clearly not for official use, such as war materials to beused in aggressive and hostile activities, can never be justified.This consensus is in direct tension with the rule that confidenti-ality of the bag should be respected, and that even detention ofa diplomatic bag gives rise to an appearance of wrongdoingincompatible with the right of free diplomatic discourse. 68

While an argument may be made that a state which rejects ordetains a diplomatic bag runs the risk of being in breach of theVienna Convention6 9 the wording of article 27 is also suf-ficiently broad to rebut that allegation. Unfortunately, theCommission did not incorporate a firmer set of rules clearlydefining a violation.

63. Vienna Convention, supra note 2, art. 27(4).64. See Eighth Report on the Status of the Diplomatic Courier and the

Diplomatic Bag Not Accompanied by Diplomatic Courier, U.N. Doc. A/CN.4/417at 57 (1988)[hereinafter 1988 ILC Report].

65. Id.


67. Id.

68. L. DEMBINSKI, supra note 33, at 178.

69. C.E. WILSON, supra note 23.


E. Practical Enforcement of Article 27(3) and 27(4)

Use of the diplomatic bag is much more extensive than theordinary person would imagine. Its value rests not only inproviding a totally secure but also a rapid means of transport,especially for large articles.70 Most governments consider thediplomatic bag to be indispensable for transportation of sen-sitive material and thus a basic requirement of day-to-daydiplomatic activities.

Because the Vienna Convention failed to be more precise,states have established through practice an expansive readingof the "for official use" language. As a result, conflicts that ariseover the practical interpretation of article 27(4) have normallybeen played out at the bilateral level. A classic example oc-curred in early September 1986, when the Sandinista govern-ment of Nicaragua informed the United States that only 150kilos per week and 600 kilos per month would be permitted viathe diplomatic bag into the embassy in Managua. The UlitedStates, without a passing reference to the Vienna Convention,simply responded in kind to the Sandinistas' weight limita-tions.7' Exhibiting a swiftness uncharacteristic of any bureau-cratic institution, on September 8, 1986, the Department ofState informed the Sandinistas: "[R]eciprocal restrictions will beimplemented regarding the diplomatic pouch sent to the Nicara-guan Embassy. Effective immediately, the pouch will be limitedto 150 kilos per week and 600 kilos per month."2

Obviously, the solution from the perspective of the UnitedStates was not to argue over the meaning of the broad languageof article 27(4). The simple answer rested, as in most mattersof international intercourse, on reciprocity. Taken to its logicalconclusion, any detention of the diplomatic bag would inviteretaliatory infringements between nations, especially antagonis-tic ones.

70. M. WHrrEMAN, supra note 16, at 829, 830. Then Under Secretary ofState Ball noted that "hourly developments have an important bearing on ourinterests . . . [and furthermore] . . .an increasing volume of routine traffic iscarried by hand through our pouch service."

71. Notice from United States Department of State to the Government ofNicaragua (Sept. 8, 1986) (notice of reciprocal restrictions on diplomatic pouches)[hereinafter Notice to Nicaragua].

72. Id.


III. NONINTRUSIVE EXAMINATIONS OFTHE DIPLOMATIC BAG

As with most treaties, subsequent unforeseen events canlead to controversy over original intent and even the plainestof verbiage. Article 27 of the Vienna Convention is no exception.With the advent of sophisticated technology, a most troublingissue has arisen over the question of non-intrusive examinationsof the diplomatic bag: Is the use of electronic scanning in orderto determine contents of the diplomatic bag consistent withlanguage of article 27(3) that the bag shall not be "opened ordetained?"

The United States has taken the position that article 27does not prohibit electronic scanning or other non-intrusiveexaminations. Many other countries and various internationalcommentators also argue that nothing in the Convention pre-vents non-intrusive tests which can be performed withoutopening or detaining the diplomatic bag.74 Britain, for example,argues that such activity is not "proscribed by a rule that [only]forbids opening . . .. 5

The United States uses remote examination for its ownmaterials. Under limited circumstances and consistent with itsown internal regulations,7 such as when a diplomatic bag isto be transported by aircraft, the United States reserves theright to use electronic scanning, X-ray, and various bomb de-tectors on outgoing American material. Indeed, many American

73. Andrews, supra note 52. But see Department of State Memorandum fromthe Deputy Legal Advisor for Administration (Lyerly) to the Office of DeputyAssistant Secretary for Politico-Military Affairs (Vaughan) (May 16, 1965)."[C]ommunications . . . when properly marked, will be permitted to proceedwithout examination of any sort." Id.

74. SATOW, supra note 8, at 117. "[A] receiving state or the airline au-thorities may subject a bag to detector devices . . . since this does not involveopening or detaining it . . .." Id.

75. L. DEMBINSKI, supra note 33, at 192. The next issue, however, would beto define a course of action to deal with a violation. "In any event, even if suchscreening was able to disclose the possibility of the misuse there would be aproblem what then to do, as the United Kingdom made no such reservation .• . when it signed the treaty. So the position remains unclear and for thatreason unsatisfactory."

76. 5 FAM, supra note 45, at 332.4.


commercial airlines will not accept luggage for transport unlessit has been scanned by airport security systems.

Nevertheless, the United States has made it clear that itdoes not perform such remote examinations on diplomatic bagsof other nations.7 7 Officially, the United States refuses to en-gage in scanning because electronic examinations are regardedas threats to the security and confidentiality of the bag's con-tents.78 However, motivation for this position probably stemsprimarily from the principle of reciprocity. If the United Statesinitiated scanning procedures for foreign diplomatic bags, itcould reasonably expect a response in kind7 9 which would beunacceptable. Thus, to protect its interests as a sender ofdiplomatic materials via the diplomatic bag, the United Statesas a receiving state does not engage in scanning." One attor-ney before the House of Representatives noted that "nationalsecurity interests outweigh any interest the U.S. governmentwould have in searching the pouch [diplomatic bag] of anothernation."8 '

The United States Department of State has therefore alsocategorically asserted that no United States diplomatic bagsmay be scanned by officials of any foreign country.8 2 Should aforeign state attempt to scan a United States diplomatic bag,the diplomatic courier is instructed to return the bag to theUnited States.8" Furthermore, if it were discovered that aforeign nation had scanned a diplomatic bag unaccompanied bya courier, the United States would immediately issue a formal

77. Andrews, supra note 52.78. Telephone interviews with Mr. Bruce Rashkow, Assistant Legal Advisor

for U.N. Affairs, Office of the Legal Advisor, United States Department of State(Nov. 20 and Dec. 13, 1990)[hereinafter Rashkow].

79. Report to the Subcommittee on International Operations of the Committeeon Foreign Affairs of the U.S. House of Representatives on Bill H.R. 3036, Revi-sion of Diplomatic Privileges and Immunities Act, 100th Cong., 2nd Sess. 143(1988) (Statement of Steven J. Stein, Chairman of the Committee on Internation-al Law, Association of the Bar of the City of New York). "Any measure em-ployed in this country against the pouch of another nation would almostcertainly be employed against the U.S. pouch."

80. Rashkow, supra note 78.81. Testimony before the Committee on Foreign Relations of the U.S. Senate,

100th Cong., 1st Sess. 344 (1987).82. Id.88. Id.


protest to that government, even though unaccompanied diplo-matic bags never contain sensitive items.' Though not alwaysreduced to writing, this policy has been adopted by all othermajor nations of the world community.8 5

Although the United States feels article 27(3) does notactually prohibit electronic scanning, some nations regard itsuse as a constructive opening and thus a breach of the ViennaConvention.8 6 The Bulgarian Special Rapporteur at the Inter-national Law Commission stated that "any technique for findingout what is in the bag is in breach of the spirit of the Arti-cle. "B

By contrast, many smaller countries which transport littleby way of the bag might welcome the possibility of remoteexamination. Since many lesser developed states have only twomissions, one in Washington and one in Moscow, they obviouslyhave more to gain than more diplomatically active states. Thisargument, of course, assumes that the lesser developed nationspossess the budget to purchase necessary scanning equipment.

In the final analysis, it is not necessarily true that eventhose nations which refuse to engage in scanning, either onpractical grounds or from a belief that this would violate theVienna Convention, have something illegal to hide. Remoteelectronic examination could reveal new cryptographic devicesor other confidential materials which constitute legitimate statesecrets. In such a case, external examination techniques mightwell be tantamount to an opening.' In fact, it is likely thatsophisticated technology could be developed that would make itpossible to read documents inside the diplomatic bag.

One proposed option requires that a receiving state firstrequest a sending state to permit scanning of a suspiciousdiplomatic bag. It can be argued that this additional require-ment would effectively eliminate unilateral scanning, and wouldbe more consistent with current provisions of the Vienna Con-

84. Id.85. Id.86. 1988 ILC Report, supra note 64, at 20.

87. L. DEMBINSKI, supra note 33, at 192.88. See E. DENZA, supra note 7, at 126-27.


vention.89 The impact on the concept of inviolability wouldtherefore be less egregious.

However, any detraction from the privileged status of thediplomatic bag necessarily renders a blow to the concept of freediplomatic communications. Any practice involving remoteexamination procedures could make a "serious inroad into theprinciple of inviolability. . . . [F]reedom of communicationsremains a cardinal principle in relations among nations, andnotwithstanding some instances of abuse, it needs to be pre-served and safeguarded in the interest of all states."90

IV. INTERNATIONAL LAW COMMISSION

Recognizing the need for a firmer set of universal rules toaddress the issues of potential abuse of the diplomatic bag andnon-intrusive examinations, the international community is onceagain examining the possibility of creating a new protocol. 9' In1986, United States Secretary of Defense Caspar Weinbergerurged that the entire doctrine of diplomatic immunity be limit-ed.92 Arguing that state-sponsored terrorists were too fre-quently immunized by the doctrine, particularly when misusesinvolved smuggling of weapons, Weinberger called upon "diplo-mats, with the assistance of the legal profession" to define new

89. Id.90. SEN, A DIPLOMAT'S HANDBOOK OF INTERNATIONAL LAW AND PRACTICE

135-36 (1988).91. 1988 ILC Report, supra note 64, at 10, 11. Guidance for the Internation-

al Law Commission was set out in a Preliminary Report to the Fortieth Session:It is hoped that such a comprehensive approach would reflect more adequate-ly the significant developments that have taken place since the 1961 ViennaConvention. Diplomatic law in all its facets has acquired new forms and newdimensions because of the ever increasing dynamics of international relationsin which States and international organizations are involved in very activecontacts through various means.... The increasing number of violations ofthe diplomatic law, some of which have raised public concern, also warrantsuch a comprehensive and coherent regulation of the status of all types ofofficial . . . bags. In this way, all means of communication for officialpurposes through official couriers and bags would enjoy the same degree ofinternational legal protection.

Id.92. Address by Secretary of Defense Caspar W. Weinberger, American Bar

Association National Conference on Law in Relation to Terrorism (June 5, 1986)[hereinafter Weinberger Speech].


limits to help solve problems of diplomatic privileges beingextended to those states connected with terrorists. 3

Between 1986 and 1988, these concerns became a domesticissue within the United States. The Senate94 and the Houseof Representatives 5 conducted hearings on several proposedbills addressing this issue. Special attention was focused onlanguage of the Vienna Convention addressing the diplomaticbag.' Although none of these bills was enacted into law, theCongressional sessions provided a forum for public examinationof the diverse legal and political ramifications associated withlimiting privileges and immunities currently vested in thediplomatic bag.

Congressman Stephen Solarz sponsored a House of Repre-sentatives bill urging Presidential review of "the treatmentaccorded to diplomatic pouches [bags] under the Vienna Con-vention."97 Solarz sought to curtail inviolability of the diplo-matic bag by suggesting that, under certain circumstancesinvolving security considerations based on probable cause, anexamination of the bag would be proper.9" Solarz and otherseventually deferred to the State Department for evaluation oflegitimate security concerns relating to the diplomatic bag.99

At the international level, as early as 1976 the UnitedNations General Assembly passed a formal resolution" ask-ing the International Law Commission (Commission) to preparea draft proposal for a protocol addressing "the status of thediplomatic courier and of the diplomatic bag not accompanied

93. Id.

94. Diplomatic Crimes Legislation, 1987: Hearings on S. 969 Before theSenate Comm. on Foreign Relations, 100th Cong., 1st Sess. 342 (1987).

95. The Diplomatic Privileges and Immunities Act, 1988: Hearings on H.R.3036 Before the Subcomm. on Int'l Operations of the House of RepresentativesComm. on For. Affairs, 100th Cong., 2nd Sess. 142 (1988).

96. Id.

97. Id.

98. Thorny Issue: Peeking into a Privileged Pouch, N.Y. Times, Aug. 1, 1988,at B6, col. 3.

99. Telephone interview with Philip Robertson, Aide to RepresentativeStephen Solarz, Subcommittee on Asian and Pacific Affairs (Aug. 23, 1990).

100. G.A. Res. 31/76, 31 U.N. GAOR Supp. (No. 39) at 181, U.N. Doc. A/31/39(1976).


by a courier."'' In July 1986, after lengthy discussions, theInternational Law Commission provided a set of draft articlesto the United Nations General Assembly on the "status of thediplomatic courier and the diplomatic bag not. accompanied bydiplomatic courier." 10 2

These provisionally adopted draft articles contained certainbracketed portions in the text, reflecting a general inability toreach a consensus. The desire to obtain a full range of com-ments from the states, however, was certainly achieved. The1986 draft contained two main provisions in regard to thediplomatic bag. Draft article 28(1) provided: "The diplomatic bagshall [be inviolable wherever it may be; it shall] not be openedor detained [and shall be exempt from examination directly orthrough electronic or other technical device]."0 3 Draft article28(2) provided:

Nevertheless, if competent authorities of the receiving[or the transit] State have serious reasons to believethat the [consular] bag contains something other thanthe correspondence, documents or articles referred to inarticle 25, they may request [that the bag be subjectedto examination through electronic or other technicaldevices. If such examination does not satisfy the com-petent authorities of the receiving [transit] State, theymay further request] that the bag be opened in theirpresence by an authorized representative of the sendingState. If [either] [this] request is refused by the author-

ities of the sending State, the competent authorities ofthe receiving [or the transit] State may require thatthe bag be returned to its place of origin.'04

This 1986 draft of article 28(1) presented a choice forestablishing the degree of protection to be given the diplomaticbag. If the first bracketed material were read into article 28(1)then the "diplomatic bag would be given a clearer status, if nota greater degree of protection, than found under the currentVienna Convention. This reading could curtail the concept of

101. Id.102. 1986 ILO Report, supra note 3.103. Id.104. Id.


inviolability. by providing that if a receiving state has seriousreason to believe that the diplomatic bag contains prohibiteditems, it may request "that the bag be opened in their presenceby [a] . .. representative of the sending State.""5 The optionof sending the diplomatic bag back to the sending state is alsoset forth, as is the option for the receiving state to request thatthe bag be electronically scanned.

Should the second set of bracketed material also be includ-ed, however, the diplomatic bag would unquestionably beelevated to a status of absolute inviolability. This reading wouldreflect the view that the diplomatic bag should be free from anyform of detention or inspection whatsoever, regardless of thecircumstances. Such a definition would clearly present a tre-mendous obstacle to legitimate and pressing security interestsof a receiving state.

As anticipated, when these draft articles were forwarded tothe respective governments for observations and sugges-tions,I°6 responses were as mixed as the proffered proposals.For example, some states argued that electronic scanningshould be allowed only for those items "which are not intendedfor official use only and which heavily endanger either thepublic security of the receiving or transit State or the safety ofindividuals." °7 Other states simply wished to "adopt the textof paragraph 1 without brackets and to delete altogether para-graph 2."1°8 In addition, some indicated that treatment givento consular bags under article 35(3)109 should be extended todiplomatic bags.

Comments from responding states focused on five keyconcerns:" 0 (1) Inviolability; (2) non-intrusive scanning; (3)need for a uniform approach to definition of all types of bags,with particular attention given to the consular bag; (4) whetheruniform treatment of all types of bags, if adopted, should begoverned by article 27(3) of the Vienna Convention on Diplo-matic Relations, or by article 35(3) of the Consular Convention;

105. Id.106. See L. DEMBINSKI, supra note 33, at 176.107. 1988 ILC Report, supra note 64, at 59.

108. Id. at 60.

109. Consular Convention, supra note 36.110. 1988 ILC Report, supra note 64, at 57.


and (5) whether a transit state should possess the same rightsas a receiving state in regard to the diplomatic bag."' Com-ments received from world governments reflected vastly dif-ferent views of a redraft of article 27.

In 1989 after extensive evaluation of these comments at itsfortieth"2 and forty-first sessions,"13 the Commission pre-sented a second reading of the draft articles to the UnitedNations General Assembly. The 1989 draft contains threeseparate options, and eliminates the brackets of the 1986version. This second reading is still under evaluaion. 1 Article28 (alternative A) provides: "The diplomatic bag shall be invio-lable wherever it may be; it shall not be opened or detainedand shall be exempt from examination directly or throughelectronic or other technical devices."" i5

This alternative clearly elevates the diplomatic bag to astatus of unquestionable inviolability, specifically restricting anyattempts at remote examination. While article 27(3) of theVienna Convention strongly suggests that the diplomatic bagenjoys complete immunity, no multilateral convention has everused the word "inviolable" in connection with the diplomaticbag. Draft article 28 (alternative A) reflects the view that thediplomatic bag should be afforded the same status as "thearchives and documents of the mission and of diplomatic corre-spondence.""' Alternative A, then, "does not strike the neces-sary balance between the confidentiality of the bag. and thesecurity and other legitimate interests of the receiving state orthe transit state."" 7

Draft article 28 (alternative B) reads:

111. Id.

112. Id.

113. See Draft Report of the International Law Commission on the Work ofits Forty-First Session, Chapter II, Status of the Diplomatic Courier and theDiplomatic Bag Not Accompanied by Diplomatic Courier, U.N. Doc. A/CN.4/L.435/Add. 2 (1989).

114. Telephone interview with Vladimar Kotliar, Secretary, International LawCommission, United Nations (Nov. 1, 1990). This second reading has beenreturned by the General Assembly to the Commission for additional study andcomment. See also Andrews, supra note 52.

115. 1988 ILC Report, supra note 64, at 63.

116. Id. at 62.

117. Id.


1. The diplomatic bag shall be inviolable whereverit may be, it shall not be opened or detained and shallbe exempt from examination directly or through elec-tronic or other technical devices.

2. Nevertheless, if the competent authorities of thereceiving State or the transit State have serious reasonto believe that the consular bag contains somethingother than the correspondence, and documents or arti-cles, referred to in article 25, they may request thatthe bag be opened in their presence by an authorizedrepresentative of the sending State. If this request isrefused by the authorities of the sending State, the bagshall be returned to its place of origin."1

Alternative B adds a second paragraph, wherein treatmentaccorded consular bags is adopted. Since the use of consularbags has become obsolete in modern international practice, thisprovision is blatantly nonresponsive to the issue of developinga viable option for the receiving or transit state.

Draft article 28 (alternative C) reads:

1. The diplomatic bag shall be inviolable whereverit may be, it shall not be opened or detained and shallbe exempt from examination directly or through elec-tronic or other technical devices.

2. Nevertheless, if the competent authorities of thereceiving State or the transit State have serious reasonto believe that the bag contains something other thanthe correspondence, and documents or articles, referredto in article 25, they may request that the bag beopened in their presence by an authorized representa-tive of the sending State. If this request is refused bythe authorities of the sending State, the bag shall bereturned to its place of origin. 1 9

Alternative C of draft article 28 corresponds most closelywith the first reading offered by the Commission in 1986, if thebrackets are excluded. 2 0 While the receiving state would not

118. Id.119. Id. at 64.120. 1986 ILC Report, supra note 3, art. 27(2). Article 27(2) states:


have unilateral authority to examine the diplomatic bag, itcould require that the diplomatic bag be returned to its placeof origin.

Because alternative C appears to establish at least somesemblance of balance between protection of confidentiality of thediplomatic bag and legitimate security interests of a receivingstate, it has attracted numerous supporters. In fact, it is noth-ing more than a compromise.

The greatest problem with this alternative is the latitudeafforded a receiving state to demand inspection. This problemwas duly noted during the first reading and has been subse-quently noted in every debate on the matter. The Commissionpointed out that "the [receiving] State's opening [of] the diplo-matic bag on presumption of unlawful content of the bag mightbe motivated by an attempt to breach the confidentiality of thebag's content."'2 '

Healthy skepticism of the scanning and inspection proposalembodied in alternative C is understandable. Although states"were fully conscious of the dangers of abuse . . . they wereeven more aware that any right of search could be abused byofficials claiming to have grounds to suspect any bag which theywished to investigate." 2 ' One must therefore seriously consid-er whether the cure may be more harmful to the general con-cept of adequate diplomatic relations than the problem itself.

A consistent goal of the Commission, in all its proposals,has been to establish a set of rules reconciling the desires of asending state to maintain absolute confidentiality of its diplo-matic materials with legitimate security demands of a receivingstate. This goal has not yet been realized, as evident by the

Nevertheless, if competent authorities of the receiving [or the transit] Statehave serious reasons to believe that the [consular] bag contains somethingother than the correspondence, documents or articles referred to in article 25,they may request [that the bag be subjected to examination through electron-ic or other technical devices. If such examination does not satisfy thecompetent authorities of the receiving [transit] State, they may furtherrequest] that the bag be opened in their presence by an authorized represen-tative of the sending State. If [either] [this] request is refused by theauthorities of the sending State, the competent authorities of the receiving[or the transit] State may require that the bag be returned to its place oforigin.

Id.121. Id.122. SATOW, supra note 8.


three alternatives.'23 Continued inability of the Commissionto set forth even a single draft clearly reflects the tremendouscomplexities in trying to balance these two diametrically op-posed issues. The diplomatic bag is either inviolable, or it issomething less.

V. REcIPROCITY

Perhaps the most widely publicized abuse of the diplomaticbag to date, clearly illustrating the controversy over the bag'sstatus, was committed by the Libyan government of ColonelQaddafi.' 4 In April of 1984, two Libyans gunned down elevendemonstrators and one British constable as they stood outsideof the Libyan Embassy in London.2 ' Despite substantial sus-picions that weapons and other evidence connected with thisoutright act of terrorism were put inside of Libyan diplomaticbags, British authorities allowed the Libyans to carry diplomaticbags out of the country without searching or scanningthem.'26 Officially, Britain's position was that the Libyans andtheir diplomatic bags were protected by the Vienna Convention.Article 27(3) was interpreted to provide the diplomatic bag withan inviolable status.

Some commentators, however, charged that British authori-ties refused to search or detain the diplomatic bag to avoidfurther international political conflict with Libya and otherradical Arab elements.'27 Indeed, Britain's only affirmative actwas to break off diplomatic relations with Libya.

Following the incident, the Foreign Affairs Committee ofthe United Kingdom House of Commons conducted a detailedstudy of the crime and considered, among other issues, the legalprotection that should be accorded the diplomatic bag."~ De-

123. 1986 ILC Report, supra note 3, at 8.

124. It is well known that Libya has not hesitated to finance, support andeven direct several acts of terrorism against various Western powers. See Green,International Law and the Control of Terrorism, 7 DAL oUsIE L.J. 236, 247(1983).

125. Nordheimer, Gunmen in London in Libyan Embassy Fire Into Crowd,N.Y. Times, Apr. 18, 1984, at Al, col. 6.

126. Goldberg, supra note 1, at 4.

127. Id.

128. H.C. Foreign Affairs Committee, First Report, The Abuse of DiplomaticImmunities and Privileges, Report with an Annex; Together with the Proceedings


spite tremendous public outcry and stringent calls for amend-ment of the Vienna Convention to prevent recurrence of suchnotorious criminal acts, the committee rejected all such argu-ments.

Because the committee felt that protections afforded by theVienna Convention were absolutely necessary to British diplo-matic functions, it recommended, that no action be taken toalter the Vienna Convention; the diplomatic bag should retainits current status of inviolability. 2 9 "In respect of all thesematters we were constantly reminded of the importance ofreciprocity .... "130 The benefits of reciprocity rendered anyother conclusion totally self-defeating.''

Indeed, the desire to clarify a status for the diplomatic bagmust always rest upon this cornerstone of reciprocity. Nationsdemanding inspection of even the most suspicious diplomaticbags must do so at the risk of having their-own bags subjectedto the same process by the sending state.'32 Such practicewould quickly undermine the entire concept of free diplomaticintercourse.

In the modern world, hardly a single state has not ex-changed diplomats with another, each aware that its represen-tatives will receive the same treatment given to diplomats ofthe other state.' The United States alone has over one hun-

of the Committee; Minutes of Evidence Taken on 20 June and 2 and 8 July inthe Last Session of Parliament, and Appendices (Dec. 12, 1984) [hereinafter H.C.Foreign Affairs Committee], quoted in, Comment, The Abuse of the DiplomaticPrivileges and Immunities: Recent United Kingdom Experience, 79 AM. J. INT'LL. 641, 642, n. 5 (1985)."

129. Id.

130. Id. at 650.

131. Id. at 651.

132. Nelson, Opening Pandora's Box: The Status of the Diplomatic Bag inInternational Relations, 12 FORDHAM INT'L L.J. 494 (1989).

133. Miller, Terrorism and Hostage Taking: Lessons From the Iranian Crisis,13 RuTGERS L.J. 513 (1982). One clear illustration of the reciprocity conceptexists from an incident that occurred in 1940 between the U.S. and U.S.S.R. OnJanuary 5, 1940, Soviet authorities cut off long distance phone service from theU.S. embassy in Moscow. On January 10, 1940, President Roosevelt commentedto the Secretary of State "I am wondering whether we might apply the samerule to the Russian Embassy ... " On January 20, 1940, the Americanembassy's long distance service was restored. See M. WHwrEMAN, supra note 16,at 182, 183.

247


dred fifty embassies throughout the world."M Regardless ofthe vagueness of articles 27(3) and (4), all nations understandthat reciprocity is a crucial element in any discussion of thediplomatic bag. Britain understood that if it had reacted to theLibyan incident by implementing procedures to scan the diplo-matic bags of other countries, British diplomatic bags wouldalso be scanned. The only real guarantee that nations, friendlyor otherwise, will adhere to international rules and comply withconcepts of diplomatic immunity rests in the concept of reciproc-ity.

VI. JUST A MATTER OF TIME?

It is unknown whether the United States would approacha Libyan type incident with the same "stiff upper lip" shown bythe British. Crisis-oriented demands for action might very wellrequire adoption of hastily drafted rules that could be detrimen-tal to any reasonable form of diplomatic intercourse or otherestablished procedures.

One example can be seen in the United States response tothe terrorist bombing of Pan Am Flight 103 over Lockerbie,Scotland."3 5 Responding to public outcry, President Bushquickly appointed a bipartisan Commission on Aviation Securityand Terrorism to investigate and make specific recommenda-tions to avoid future terrorist incidents. The Commission'sfindings, however, .underscore the need to carefully and slowlyreach logical and workable conclusions.

The Commission overreacted and issued sixty detailedrecommendations, many critical of established procedures andagencies. The Federal Aviation Agency, the State Department,Pan Am, and the Science Applications International Corporation(SAIC) were all singled out for criticism." 6 Demands for re-

134. Rashkow, supra note 78.

135. On December 21, 1988, a "semtex" bomb exploded on board Pan Amflight 103 over Lockerbie, Scotland. This act of terrorism resulted in the deathsof all 259 passengers and 11 persons on the ground. See President's PanelReports on Terrorism, Aviation Security, 12 L. & NAT'L SEC. INTELLIGENCE REP.6 (June 1990).

136. Id. at 5. The report recommended that the Federal Aviation Agency sus-pend plans to require airlines to spend funds on thermal neutron analysis (TNA)bomb detecting devices manufactured by SAIC. The Commission found that moretechnological research should be done. Pan Am was criticized for its security


forms to established procedures in all these institutions werenot well received by those targeted for change. Indeed, all thosetargeted argued that such changes were unnecessary and, inthe context of providing quality service and security, would domore harm than good.'37 The Commission also responded witha typical call for Congress to "enact legislation to create aposition of Assistant Secretary of Transportation for Securityand Intelligence.""

One can only surmise that, had the bomb been hidden inan unaccompanied diplomatic bag placed on board the aircraft,recommendations would have included abolition of the priv-ileged status of the diplomatic bag under current article 27.Indeed, it is possible that a diplomatic bag will be used in suchan incident.

This possibility, coupled with an already uncertain futurestatus of the diplomatic bag, compels the United States toestablish a concrete policy that will take into account inevitablepublic fervor surfacing after any headline-grabbing use of thediplomatic bag. The United States response to a state-sponsoredabuse of the diplomatic bag must not be such that principlesessential to open diplomatic communication are abrogated. It isclear that most abuses of the bag are not related to acts ofterrorism, and many nations have probably misused the bag atone time or another. Accordingly, international and UnitedStates calls for any changes in rules that protect the bag'sstatus must be tempered with a hard look at the overall impactof such changes on the integrity of international diplomacy andUnited States interests.

A. Abuses of the Bag

Illegal smuggling of "currency, jewels, watches, drugs,bombs, etc., is only one of the problems faced by customsofficials when dealing with privilege-abusing diplomats. Officials

procedures and the State Department for various aspects of its counter-terrorisminitiatives.

137. Id. The SAIC characterized the report as being flawed. Pan Am respond-ed that 'before, during and after the crisis, we put forth every effort humanlypossible." The State Department related that it was fully capable of respondingto any and all known terrorist attacks.

138. Id.

249


must also police the import (in bulk lots) of propaganda sup-porting a rival political ideology.""3 9

The most serious forms of misuse have certainly revolvedabout the business of spying. It has long been recognized thatthe provisions of the Vienna Convention offer perfect refuge tothis type of illegal activity. "The embassy building is immunefrom raid or search and houses radio and cipher facilities. Andthe diplomatic bag provides a safe and regular means of com-municating documents and the money to pay agents theyrecruit." 40 Numerous instances of misuse are matters ofpublic record.'

4'

Employment of the bag as a weapon of war began in themid-1970s when it became obvious that some embassies andmissions used it to smuggle various firearms. 42 Potential useof the diplomatic bag for acts of aggression and violence createdwidespread international consternation. With the unification ofGermany, the depth of actual abuses is only now being realized.Revelations of such abuses of diplomatic privileges by theformer East German government have been astonishing. 43

Abuses have included use of false diplomatic credentials anduse of the diplomatic bag to smuggle weapons and currency.

Although state-supported terrorism clearly contravenes allfundamental concepts of international law,' 44 allegations havebeen made that Soviet Bloc countries, as well as countries suchas Libya, Iran, Iraq, Syria, and Cuba, have been active insupporting and sponsoring acts of violence against governmentsthey wish to harm. 45 Since conventional warfare is deemedto be less useful, some view state-sponsored terrorism as thenew modus operand i 46 for low intensity conflicts. 47 Indeed,

139. L. DEMBINSKI, supra note 33, at 192.140. E. CLARK, supra note 25, at 191.141. Id. at 189-91.142. C.E. Wilson, supra note 23, at 137.143. Watson, Combatting Terrorism Teaching Update, U.S. ARMY COMMAND

AND GENERAL STAFF COLLEGE (1990).

144. See generally Murphy, Legal Controls and the Deterrence of Terrorism:Performance and Prospects, 13 RUTGERS L.J. 465, 491 (1982).

145. Weinberger Speech, supra note 92.146. Legislation to Combat International Terrorism: Hearings on H. Res. 223;

H. Con. Res. 339; H.R. 5612; H.R. 5613; and H.R. 6311 Before the Committeeon Foreign Affairs and its Subcommittees on International Security and Scientific


if terrorism can be proven to be state-sponsored, it is an act ofwar. It is critical in such a case to clearly establish the linkage.

While it may be argued that one man's terrorist is anotherman's freedom fighter, the fact that an individual uses a diplo-matic bag to commit or secrete aggressive criminal activitiesrenders that issue moot. When the diplomatic bag is misused insuch a manner, it is imperative that emphasis be placed on thecriminal act, not on possible motives for the act. It is clear thatthe diplomatic bag, by treaty and customary international law,should not be used to facilitate open attacks on the people andproperty of another state. Any such use to facilitate acts ofviolence for ideological ends can only be categorized as a ter-rorist act.

B. Nuclear, Biological, and Chemical Abuses

Ordinary terrorist acts pale when Compared to current fearsthat the diplomatic bag might be used to transport weapons ofmass destruction. Beyond the normal range of statesponsoredterrorism that includes hijackings, bombings, and kidnappings,there looms the unthinkable threat of nuclear, biological, orchemical (NBC) terrorism. In the context of the large scaledestruction that could result from even a single NBC event,demands for security safeguards would seem to far outweighany status quo that the rules might seek to maintain, let alonecalls for inviolability.

If ordinary weapons can be neatly and easily sent into thereceiving state via the diplomatic bag, so can a weapon of massdestruction.14 "[A]s it now stands, a hostile country could

Affairs and on International Operations, 98th Cong. Sess. 33 (1984) (statementof Brian M. Jenkins, Director of the Security and Subnational Conflict Program,The Rand Corp.).

147. Dep't of Army & Dep't of Air Force, FIELD MANUAL 100-20, MILITARY OP-ERATIONS IN LOW INTENSITY CONFLICT 14 (Dec. 1989). The term "low intensityconflict" is defined as:

Political-military confrontation between contending states or groups belowconventional war and above the routine, peaceful competition among states.It frequently involves protracted struggles of competing principles andideologies. Low intensity conflict ranges from subversion to the use of armedforce. It is waged by a combination of means, employing political, economic,informational, and military instruments. Low intensity conflicts are oftenlocalized, generally in the Third World, but contain certain regional andglobal security implications.

Id.148. Some commentators argue that a terrorist group would never use such

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smuggle in an atomic bomb, piece by piece, then reassemble itfor use when desired."'49 Of course, with the current inter-pretation of article 27(4) as to size of diplomatic bags, the entireweapon could probably be passed through a single diplomaticbag.

The central argument of those who desire a restriction onprivileges associated with the diplomatic bag rests with thespecter of an act that would cause us all to "go up in smokesince diplomatic bags could be used to secrete [nuclear] weap-ons." 5 ° Such arguments appeal to emotion rather than tointellect; nevertheless, they are compelling. Debasing the privi-leged status of the diplomatic bag, however, is not the answerfor two reasons.

First, a determined terrorist will find yet another way tosmuggle weapons. Second, since nations have an inherent rightof self-defense to search out and otherwise protect themselvesagainst viable threats to their national security, the statesponsoring such blatant aggressive behavior takes an inordinaterisk by using the diplomatic bag in such a manner.1 51 It isone thing for a diplomat to smuggle drugs for his own profit; itis quite another to use the bag to ship illegal weapons designedfor aggressive acts.

It is impossible that restrictions on the use of the diplomat-ic bag will eliminate such an event. In an open society such asthe United States, the state-sponsored terrorist need not rely onthe bag. Necessary materials can be obtained on the domesticopen market and, more importantly, will not leave a "signature"that can be traced. Given the concept of reciprocity, eliminationof current protections will hurt the open society more than theterrorist and his sponsors.

weapons, since world opinion would condemn them. It is also thought that theprimary utility of such weapons is to threaten, not to actually detonate. SeeWilder, International Terrorism and Hostage Taking: An Overview, 11 MANITOBAL.J. 367, 372-73 (1981).

149. C.E. WILsON, supra note 23, at 137, 138.150. Goldberg, supra note 1, at 4.

151. See Rose v. King, 3 D.L.R. 618, 646-47 (Quebec, King's Bench, AppealSide 1947) cited in 7 M. Whiteman, supra note 16, at 181: "Before granting orrecognizing a privilege to another State, a State has the right to accord to itselfa first privilege, that of its own security."


VII. A PROPOSAL FOR A UNITED STATES POSITION

A. Cost-Benefit Analysis

A primary obligation of any state is to protect its citizensfrom external as well as internal harm. Formulation of aUnited States position regarding the International Law Comm-ission's latest set of alternatives for draft article 28 must takeinto account the occasional abuse of the diplomatic bag. Howev-er, a greater consideration lies with the possibility that* theUnited States might lose an essential vehicle for shippingconfidential articles into foreign nations.

While abuses of the diplomatic bag are likely to continue,it is unlikely that the bag will be used in an NBC event. Theprinciple cost of the bag's protected status is in the realm ofespionage and an occasional spectacular abuse such as thatsustained by the British in the 1984 Libyan incident. It is alsoobvious that the diplomatic bag is a critical tool in carrying outUnited States foreign policy, and this benefit rests primarily onthe concept of inviolability.

Instead of arguing for a weaker status for the diplomaticbag, the United States must demand that the current status setout in articles 27(3) and (4) be strengthened. There must be nodoubt that the diplomatic bag is inviolable. The United Statesshould unequivocally endorse draft article 28 (alternative A),rendering the diplomatic bag absolutely inviolable wherever itmay be.

Those attracted to draft article 28 (alternative C), becauseit offers a "reimplementation of what was the customary inter-national practice with regard to the diplomatic bag [by] intro-duc[ing] the most appropriate balance between the opposinginterests of the sending and receiving states"'52 fail to ap-preciate the tremendous negative impact such a rule wouldhave on United States interests: While it may be that alterna-tive C "augments the sending and receiving states' common in-terest in tranquil and efficient foreign relations,"'53 such ananalysis furthers the international perspective, not the UnitedStates perspective.

152. Nelson, supra note 132, at 520.153. Id.


Since the United States has established diplomatic missionsin almost every nation in the world and is by far the greatestsender of the diplomatic bag,' 54 it is reasonable that the Unit-ed States should support the continued privileged status of thediplomatic bag and reject any efforts to scan or search it. Thefact that the United States also receives more incoming diplo-matic communications than any nation 55 does not outweighthe need to have a protected means to transport diplomaticmaterials throughout the world. Just as the British concludedthat the need for a protected diplomatic bag outweighed terror-ist abuses, the United States must reach the same conclusion.

Those who argue that abuses of the diplomatic bag cannotbe ignored have failed to weigh the most critical balancingfactor of all-United States interests in having an inviolableinstrument. The price of this inviolability is tolerance of occa-sional abuses; the fulcrum must still shift towards the over-riding need for a truly inviolable diplomatic bag.

B. Dealing With the Abuser of the Diplomatic Bag

An alternative method for dealing with a known state-supported terrorist abuse of the diplomatic bag is to seekredress financially, judicially, or militarily.'56 If a criminalcommits a crime with a gun, the objective person does not seekrevocation of the constitutional right to bear arms;157 he de-mands that the criminal be punished. Likewise, if a state usesthe diplomatic bag to commit acts of violence, one should notcall for the elimination of fundamental diplomatic privileges;rather, he should demand that the renegade state be punishedin a legitimate forum. The central focus then shifts to discover-ing an appropriate forum for punishment of the abuser.

One very valid criticism of international law is that alldispute resolution requires involvement of some third party.This criticism is particularly appropriate when examining

154. Andrews, supra note 52.

155. Id. The United Nations is headquartered in New York. In addition,Washington is host to more foreign missions than any other nation in the world.

156. A prime example of the use of force to counter state-sponsored terrorismoccurred on April 14, 1986 when the United States conducted bombing strikeson various targets in Libya. This was in response to the Libyan ordered bomb-ing of a discotheque in West Berlin on April 5, 1986.

157. U.S. CONST. amend. II.


abuses of the diplomatic bag. Certainly, however, legitimate andeffective tools exist under customary international law that canpermit punishment of an abuser of the diplomatic bag on aunilateral basis.

First, an aggrieved state could rely on the classical conceptof retorsion, taking all those legal acts necessary to exhibit itsdisapproval of the offending state. Actions could include recallof diplomatic personnel from the offending state or expulsion ofdiplomatic personnel of the offending state. Additionally, theaggrieved state could implement acts of sequestration such aseconomic, social, or political sanctions against the offendingstate.

Second, an aggrieved state could certainly suspend portionsof the Vienna Convention in order to respond to the illegalbehavior. If the breach by the offending state could be catego-rized as a material breach, such a suspension would be entirelyconsistent with international norms.

Finally, the aggrieved state could turn to classical forms ofself-defense, depending on the severity of the abuse. Realistical-ly, if authorities of a receiving state had hard evidence that adiplomatic bag was used to transport objects clearly malum inse, it is reasonable to assume that this aggrieved state wouldmake a policy decision to search the diplomatic bag. Undertraditional notions of self-defense and forcible self-help, anational entity will do what is necessary to protect itself fromacts of violence.' In this context, if an abuse were discov-ered, the classical right to engage in an act of reprisal, takingan action that would otherwise be illegal, might be appropriate.This option would be of fundamental value if the abuse had ledto an act of violence. The aggrieved state would, of course, haveto meet the basic criteria associated with an act of reprisal: (1)the response must be proportionate to that complained of; (2)the reprisal must be timely; (3) the reprisal cannot be directed

158. The right of a country to engage in acts of self-defense is well knownin international law. The famous Caroline Doctrine, which defines the cir-cumstances that permit forcible self-help, grew out of an 1837 raid by Canadiantroops into New York. In response, Secretary of State Daniel Webster set downthe rules for such acts of self-defense. He indicated that a nation may resort tonecessary and proportional acts of self-defense if such acts arise out of aninstant and overwhelming necessity, leaving no choice of means and no momentof deliberation. See McHugh, Forcible Self-Help In International Law, 25 NAVALWAR COLLEGE REV. 61 (1972).

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against a protected category of persons; and (4) approval mustcome from the highest levels of authority (United States poli-cy). 159

Amending rules that pertain to the diplomatic bag will notenhance the nationalistic right of self-defense, 0 but will onlyserve to hinder diplomatic communications. The aggrieved stateneed not rely on an international forum to formulate a re-sponse; the necessary tools already rest in customary principles.

VIII. CONCLUSION

The United States, above all nations, must remember thatlaws are made for general application and not for exceptions.Sporadic abuses of the diplomatic bag must not be allowed tocause abandonment of a longstanding and necessary tool, usedin performance of diplomatic relations and the carrying out ofother national interests. Freedom of communication remains acardinal principle in relations among nations which must bepreserved and safeguarded, notwithstanding occasional abuse.

At a minimum, the diplomatic bag must be protected undercurrent standards of sections (3) and (4) of article 27 of theVienna Convention on Diplomatic Relations. Proposals forscanning, searching or detaining the diplomatic bag have beenrejected before by member states to the convention.' TheUnited States must lead the way to ensure that they arerejected once more. At a time when the United Nations isdebating backing away from an inviolable status for the diplo-matic bag, the United States must lead the way not only inreaffirming the current rules, but also in establishing astandard of complete inviolability.

There is great wisdom in the simple axiom that "one goodreason is always enough." In applying a cost-benefit analysis to

159. Dep't of Army, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE T 497(July 1956).

160. A 'public safety" exception was briefly proposed by the State Departmentin the aftermath of the search of the Nicaraguan Ambassador's residence byAmerican troops during the 1989-90 Panama Campaign. The proposal that therewas a customary exception to the Vienna Convention based on a public safetytheory was quickly discarded and the official U.S. position was based on amistake of fact concept. See G. Walsh, Executive Summary: Just Cause After-Action Seminar, JUDGE ADVOCATE GENERAL'S SCHOOL 11 (1990).



the diplomatic bag, that one good reason is the need for aninviolable instrument with which to carry out foreign policy.When the three alternatives offered by the International LawCommission are considered against the critical importance thatthe inviolable diplomatic bag has in enabling the United Statesto carry out its diplomatic functions, the answer is fundamen-tally obvious. Article 28 (alternative A) offers the greatestadvantage to the nation.

The United States response to abuse of the diplomatic bagshould rest in unilateral action based upon customary princi-ples. Accordingly, the United States should formulate contingen-cy plans based on this approach before the next serious abuseis discovered. In order to avoid a situation like the Britishreaction to the Libyan incident, it is critical to stand ready. Ifnecessary and appropriate responses are not created now, it iscertain that the issue of inviolability will remain, at best,inexorably clouded.

Documents

The Status of the Diplomatic Bag: A Proposed United States