Honey, Have You Seen My Work Bag?

[Ankit Malhotra is an Advocate, Felix Scholar and co-editor of Re-Imagining the International Legal Order]

“The principles and rules of diplomatic privileges and immunities are not—and this cannot be over-stressed—the invention or device of one group of nations, of one continent, or one circle of culture, but have been established for centuries and are shared by nations of all races and civilizations.”

Judge Lachs’ Separate Opinion in Tehran Hostages Case (p. 48)

Facts

As reported 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. However, nobody still knows who had sent the gold and who the end receiver was. 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 Vienna Convention on Diplomatic Relations, VCDR. The smuggling operation reportedly involved approximately 30 kg of gold, which was concealed in the diplomatic baggage. Following the interception, suspicions arose about the involvement of consulate staff, particularly an employee named Swapna Suresh, who had previously worked as a liaison officer at the UAE Consulate. She along with several other individuals, was allegedly part of a larger smuggling ring that used diplomatic channels to illegally transport gold. In response, the UAE Consulate distanced itself from the smuggling activities, maintaining that it had no role in the illegal operation. Now, in 2024, the Supreme Court of India has taken jurisdiction of the Kerala Gold Smuggling case with a narrow scope targeted at observing inviolability of diplomatic bags under international law particularly in the context of criminal activities.  In so far as India’s relationship with international law is concerned, 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 VCDR of 1961. By analyzing relevant legal provisions, cases and incidents this article examines the evolving perspectives on the balance between upholding diplomatic immunity and preventing the exploitation of these privileges for illegal purposes.

Law

A strict interpretation of Article 27 precludes any host state from opening or detaining diplomatic bags. Further, Article 27(3) of the VCDR notes that diplomatic bags “shall not be opened or detained,” ensuring incumbrance free transportation of such bags provided the bag bears visible external markings indicating its diplomatic character. From a plain reading one can deduce that the inviolability of the bag is to protect diplomatic materials, but not materials that do not fall in that category, namely those which constitute an abuse of the diplomatic bag. Put differently, while the inviolability of diplomatic bags is robust, it is not absolute. However, suspicion of abuse of this privilege enables the host state to declare diplomatic personnel involved in suspected misuse of the privilege as persona non grata under Article 9 of the VCDR, effectively expelling them. Moreover, serious concerns such as national security can justify limited interference with diplomatic bags. The principle of abuse of rights under international diplomatic law, speaking most generally, asserts that no state should use its rights to violate the rights of others or engage in illegal activities for the simple fear of reciprocal treatment on its nationals in foreign states. 

Domestic law can also influence how a host state responds to the suspected misuse of diplomatic privileges. In so far as India’s concerned assimilation of the VCDR as domestic law allows Indian authorities to take action in cases involving significant breaches of diplomatic protocols enabling Indian customs officials to intercept a diplomatic consignment suspected of containing smuggled gold. While this interception and opening is in direct intervention of the Indian Customs Preventive Manual which notes diplomatic bags generally enjoy exemptions from customs duties and inspections, provided they bear proper declarations. Specifically, (a) parcel bags containing diplomatic mail are exempt from both duty and examination, subject to a declaration made on the bags; and (b) parcels and packets containing goods (other than mail or letters) addressed to consulates or consular officers are not required to be examined without the prior consent of the consulate or the relevant officer. 

Fear of abuse is not new. And there is good reason for said fear. Dame Higgins notes, diplomatic bags were suspected of being used to smuggle firearms, particularly during the 1970s and 1980s. In several major capitals such as London and Washington, D.C., the Dame observes, intelligence agencies became aware of diplomats using their immunities to traffic illegal weapons into the country. In these cases, while states were aware of the potential criminal activity, they largely refrained from violating the principle of inviolability out of concern for reciprocity. States feared that any breach of inviolability could set a precedent for their own diplomatic bags to be subjected to searches in host states. The Rome Incident in 1964 serves as a telling example of what was to come in the near future. In said incident, a drugged Israeli was found in a crate labeled as diplomatic mail at Rome’s Fiumicino Airport. This, read along with the The Dikko Incident of 1984, where Nigerian officials attempted to smuggle former Nigerian Minister Umaru Dikko out of the United Kingdom in a crate labelled as a diplomatic bag, incident demonstrate show diplomatic channels were cloaking themselves to enable criminal acts such as state-sponsored terrorism or smuggling. Misuse of the fragile diplomatic order reached its zenith on 4 November 1979 with the Tehran Hostage Crisis. The crisis involved the capture of American Embassy in Tehran by Iranian militants for 444 days. The ICJ in the Tehran Hostages Case reaffirmed the principle of inviolability and perceptively, Judge Lachs noted: 

“The Vienna Conventions of 1961 and 1963, which in my view constitute, together with the rules of general international law, the basis of the present judgment. The principles and rules of diplomatic privileges and immunities are not […] the invention or device of one group of nations, but […] recognized the status of diplomatic agents”.

Although the ICJ in Teheran Hostages reaffirmed the principle of inviolability, it left open the question of whether the misuse of diplomatic privileges for criminal purposes could justify exceptions to this rule leaving unresolved questions for cases like the Kerala Gold Smuggling Case since in Kerala, Indian customs officials faced a similar dilemma—how to reconcile the inviolability of a diplomatic bag with suspicions that it was being used to smuggle gold, a violation of national law. This raised the fundamental issue of whether a host state has the legal authority to interfere with a diplomatic bag under exceptional circumstances, such as the commission of a crime, while still adhering to international legal obligations.

Libya: A Way Out

The Libyan Embassy siege in London in April 1984, resulted in the death of a British police officer. The weapon used in the attack was believed to have been taken out of the UK in a diplomatic bag- pre-emptively a Libyan reservation reserved its right to open a diplomatic bag in the presence of an official representative of the diplomatic mission concerned. The reservation insists that if the sending state did not grant permission, the diplomatic bag would be returned to its place of origin. According to Article 19 of the Vienna Convention on the Law of Treaties, a reservation is permissible unless (a) the reservation is prohibited by the treaty, (b) the treaty specifies that only certain reservations can be made, or (c) the reservation is incompatible with the object and purpose of the treaty.

In the case of the VCDR, there is no specific rule against making reservations, but any reservation must not weaken the core principles of the treaty, such as the inviolability of diplomatic bags under Article 27. Libya’s reservation, which allows the opening of diplomatic bags in the presence of a diplomatic representative or the return of the bag to its origin if permission is denied, offers a way to address the potential abuse of diplomatic privileges. The legality of this kind of reservation, while not directly forbidden, depends on whether it aligns with the purpose of the VCDR since the main goal of the VCDR is to support diplomatic relations by ensuring effective communication and protecting diplomats from interference by the receiving state. Allowing the receiving state to request the opening of diplomatic bags could violate the inviolability principle and upset the balance of reciprocity that is central to diplomatic law. Dame Higgins, to this point notes, Libya did not fully implement this reservation, its potential impact is still important: it created the possibility of a controlled but controversial inspection of diplomatic bags in certain situations.

Typically, the responsibility to uphold the inviolability of diplomatic bags under Article 27 of the VCDR falls on both sending and receiving states. However, reservations such as Libya’s, which allow the inspection of diplomatic bags in the presence of a diplomatic representative, are aimed at addressing abuses of diplomatic privileges while maintaining the core principles of the treaty.

In the present case, since India is the receiving state, it would logically be in India’s interest to adopt a reservation if it wishes to formalize the inspection of diplomatic bags especially when there is credible suspicion of illegal activity. This approach aligns with Libya’s example, where the receiving state (in this case, the UK) could have requested the opening of diplomatic bags under certain circumstances. As has already been noted above, the VCDR allows for reservations as long as they do not weaken core principles like inviolability, and Libya’s reservation, as noted by Dame Higgins, introduced a controlled mechanism for inspections while respecting diplomatic norms.

Having said so, the aforementioned approach could be useful for the UAE in dealing with the legal and diplomatic challenges posed by the Kerala Gold Smuggling case. By adopting a similar reservation, the UAE could reserve the right to inspect its bags under pre-determined specific conditions, such as when there is, by the receiving state, (credible) evidence of criminal activity. Such a reservation would need to be in line with the core purpose of the VCDR, but the UAE must be aware of the potential for reciprocal practices and take care not to set a precedent that could weaken diplomatic trust and good faith.

Conclusion: Balancing Diplomatic Immunity and Accountability 

In situations like this, measures such as electronic screening might be justified if there is a legitimate and urgent concern. Under Article 35(3) of the VCDR, electronic or other technical examinations are not explicitly mentioned. Treating this omission as simply a clarification is controversial, suggesting that this area of law is unsettled and open to interpretation. Similarly, while Article 27 uses the terms “opened or detained,” electronic scanning cannot necessarily be seen as “constructive opening.” However, this idea can backfire because reciprocal actions could be taken against the state, potentially revealing sensitive information from the sending state.

Given this, the Kerala Gold Smuggling case is a key example of how India may have to navigate these legal uncertainties. The case highlights the need for a legal framework that respects international obligations while also addressing the misuse of diplomatic privileges for criminal purposes. As India deals with these challenges, it must ensure that it upholds its international commitments under the VCDR while also protecting its national security and legal interests. This changing legal landscape could eventually lead to a reconsideration of the scope and limits of diplomatic immunity in the fight against crime.