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A Note on Diplomatic Bags

Updated: Sep 15

The Kerala Gold Smuggling case has brought the issue of the inviolability of diplomatic bags under international law into sharp focus, prompting a detailed examination of the legal framework governing diplomatic relations, particularly in the context of criminal activities. India’s commitment to international law is reflected in its Constitution, particularly Article 51(c), which directs the State to respect international law and treaty obligations. In line with this constitutional mandate, India enacted the Diplomatic Relations (Vienna Convention) Act, 1972, during the Twenty-third Year of the Republic, to give effect to the Vienna Convention on Diplomatic Relations (VCDR) of 1961. This Act forms the basis of the legal analysis in this context.


In 2020, the Kerala Gold Smuggling case began when customs officials in Kerala intercepted a diplomatic consignment addressed to the UAE Consulate in Thiruvananthapuram, suspecting it contained a significant quantity of smuggled gold. The case raised important questions about whether the Government of India had the authority to scan or inspect the package, considering its diplomatic status under the VCDR and the Diplomatic Relations (Vienna Convention) Act, 1972. The court also sought to determine whether the procedures followed were appropriate and whether immunity could bar such actions of interception.


What Precedent Tells Us About Diplomatic Bags


Legal scholars have long debated the balance between the inviolability of diplomatic bags and the need to prevent their misuse. Eileen Denza, in Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, argues that diplomatic privileges should not be abused to shield criminal activities. Similarly, K.E. Mahoney, in The Inviolability of Diplomatic Correspondence and Diplomatic Bags in International Law, emphasizes that the misuse of diplomatic immunity for illegal purposes undermines the integrity of international law and must be addressed within a legal framework that allows for exceptions in cases of criminal activity. Mahoney warns that unchecked misuse could erode trust between states and damage the diplomatic framework, which relies heavily on respect for established norms and legal obligations. When there is credible evidence that a diplomatic bag is being used to transport contraband, engage in activities that threaten national security, or address urgent humanitarian concerns, the receiving state should have the legal authority to intervene.


The Dikko Incident: Legal Considerations and the Duty to Protect Life


The Dikko Incident of 1984, where Nigerian officials attempted to smuggle former Nigerian Minister Umaru Dikko out of the United Kingdom in a crate labeled as a diplomatic bag, exemplifies the potential misuse of diplomatic immunity. This case raised important questions about what constitutes a diplomatic bag under international law. While the debate over the definition of a crate versus a diplomatic bag is ongoing, the overriding principle in the Dikko case was the duty to preserve and protect human life. This duty justified the intervention by UK authorities, despite the diplomatic implications. The incident, when read alongside similar cases like the drugged Israeli found in a crate marked ‘diplomatic mail’ at Rome Airport in 1964, highlights the tension between respecting diplomatic norms and addressing issues of life and death. In such scenarios, measures like electronic screening may be justified, provided there is a legitimate and pressing concern. As per The Memorandum by Sir Ian Sinclair in the 1984 ILC session, reported in the Foreign Affairs Committee Report (pp. 79), Article 35(3) of the VCDR stipulates that electronic and other technical examinations are not explicitly mentioned in the Convention on Diplomatic Relations. Sinclair argued that treating this omission as mere clarification is controversial, suggesting that this area of law remains unsettled and open to interpretation.


Libya: A Way Out


The Libyan Embassy siege in London in April 1984, where shots were fired from within the embassy resulting in the death of a British police officer, provides another relevant example. The weapon used in the attack was believed to have been taken out of England in a diplomatic bag. Following this incident, the UK ceased searching diplomatic bags, as documented in the Foreign Affairs Commentary Report. In response, Libya entered a reservation to the VCDR, reserving its right to open a diplomatic bag in the presence of an official representative of the diplomatic mission concerned. If the sending state did not grant permission, the diplomatic bag would be returned to its place of origin. This approach could serve as a model for the UAE in addressing the legal and diplomatic challenges posed by the Kerala Gold Smuggling case. By adopting a similar reservation or negotiating a bilateral agreement with India, the UAE could reserve the right to inspect diplomatic bags under specific circumstances, such as when there is credible evidence of criminal activity. This inspection could be carried out in the presence of a representative from the sending state’s diplomatic mission, ensuring transparency and mutual respect for diplomatic norms.

Such a measure would allow the UAE to balance the need to uphold the inviolability of diplomatic bags with the imperative to prevent their misuse for illegal purposes. By taking a proactive stance similar to Libya’s, the UAE could mitigate potential diplomatic tensions while ensuring that its diplomatic privileges are not exploited for criminal activities. This approach would also align with the evolving international perspective that while diplomatic immunity is essential, it should not be absolute when it conflicts with the need to uphold law and order.


Conclusion: Balancing Diplomatic Immunity and Criminal Accountability


In light of this, the Kerala Gold Smuggling case serves as a pivotal example of how India might navigate these legal ambiguities. The case underscores the necessity for a legal framework that respects international obligations while also addressing the misuse of diplomatic privileges for criminal activities. As India continues to engage with these challenges, it must do so in a manner that upholds its international commitments under the VCDR while ensuring that its national security and legal integrity are not compromised. This evolving legal landscape may eventually prompt a re-evaluation of the scope and limits of diplomatic immunity in the context of preventing and prosecuting crime.

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