The evidentiary value of diplomatic correspondence to international law is well established. For example, Ian Brownlie[1] (and subsequently James Crawford)[2] have noted that diplomatic correspondence is a “material source of custom”. Similarly, the International Law Commission has repeatedly reiterated that diplomatic correspondence provides abundant evidence of customary international law.[3] A practical example of this can be gleaned from the dispute following the sinking of the Caroline, where the customary international law governing self-defence was determined on the basis of diplomatic correspondence between the United Kingdom and the United States, which emphasized a requirement that actions taken in self-defence be “necessary” and “proportional”.[4] The use of diplomatic correspondence in providing evidence of customary international law can similarly be demonstrated by decisions of international fora. This paper tries to expound on the inviolability of such Correspondence. Thereafter, the note  examines how the concept of inviolability is extended to diplomats and lays down instances of diplomats being saved from arrest.

INVIOLABILITY OF DIPLOMATIC CORRESPONDENCE

Article 24 of the Vienna Convention on Diplomatic Relations states that the archives and documents of the mission shall be inviolable at any time and wherever they may be. The purpose of Article 24 in protecting a mission’s archives qua archives, and not as mere items of property, is to protect the confidentiality of the mission’s work, without which it is conceived that it cannot effectively represent the sending State.

Negotiating History:

The International Law Commission and the Vienna Conference extended the protection to be accorded to diplomatic archives in some respects beyond what had been established under preceding international law. In the first place, the expression ‘inviolable’ was deliberately chosen by the International Law Commission to convey that the receiving State must abstain from any interference through its own authorities and that it owes a duty of protection of the archives in respect of unauthorized interference by others.

Secondly, the Vienna Conference added the words ‘at any time’ in order to make clear that inviolability continued without interruption on the breaking of diplomatic relations or in the event of armed conflict.  Article 45 requires the receiving State to ‘respect and protect’ these archives, and entitles the sending State to entrust their custody to a third State, the protecting power. It should, however, be noted that whereas ‘premises of the mission’ by virtue of Article 1(i) of the Convention lose their status as such once they are no longer ‘used for the purposes of the mission’, diplomatic archives and documents do not lose their status and retain their inviolability under Article 24 on an indefinite basis.

The third way in which customary international law was extended by Article 24 was that the International Law Commission and the Conference, by adding the words ‘wherever they may be’, made it clear beyond argument that archives not on the premises of the mission and not in the custody of a member of the mission are entitled to inviolability.

Subsequent Practice:

In the case of Rose v. The King, the Quebec Court of King’s Bench, Appeal side had to consider the admissibility of documents stolen from the Soviet embassy in criminal proceedings for conspiracy and espionage against a member of the Canadian House of Commons. Bissonnette J held, “International Law creates a presumption of law that documents coming from an embassy have a diplomatic character” and gave the documents an inviolable character.

In 1987 the UK Court of Appeal in Fayed v Al-Tajir,  referred to the Rose judgment as well as to Article 24 in holding that a document already disclosed voluntarily to the Court during discovery should be treated as absolutely privileged. The same approach to inviolability of diplomatic archives was taken by the US State Department in the context of a case where they did not support a claim toState immunity – Renchard v Humphreys & Harding Inc. The distinction was upheld in the case of Mission of Saudi Arabia to the United Nations v Kirkwood Ltd in which a US Court confirmed that the Saudi Mission did not lose the separate inviolability of its archives (conferred under the Host State Agreement between the United States and the United Nations) by instituting legal proceedings. The International Court of Justice in the Tehran Hostages case held that the militants who had in their possession certain documents from the ransacking of the United States Embassy were held to have violated the aforesaid provisions. The separate character of the inviolability of diplomatic archives was also underlined by the Eritrea-Ethiopia Claims Commission in their Partial Award of 19 December 2005.  Ethiopia claimed that Eritrean customs officials at Asmara Airport intercepted and retained a diplomatic bag containing blank passports, invoices, and receipts. The Commission found that the package in question was not appropriately labelled and so did not constitute a diplomatic bag, but that the nature of the official Ethiopian correspondence inside was apparent, so that Eritrea by retaining it violated Article 24 of the Convention. In Herbert Schmidlv. Germany,  replies to correspondence from the secretariat were treated as official communication and an argument that they were mere conversations in principle were rejected.

Diplomatic Correspondence as ‘Archives’ and ‘Documents’

The terms ‘archives’ and ‘documents’ were not defined in the Convention. Their inviolability is not conditional on their being identifiable, and there is no obligation to identify them when they are outside mission premises (in contrast, for example, to the diplomatic bag). It is clear that the negotiators intended a wide definition to be given to the term, and the words ‘and documents’ were added to the text in order to cover, for example, negotiating documents and memoranda in draftwhich are strictly not archives in the ordinary sense of the word.  The Vienna Convention on Consular Relations provided in Article 1(1)(k) that “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping. In practice, this extensive definition has been applied by analogy to the Vienna Convention on Diplomatic Relations, on the basis that as wider immunities are generally given to diplomatic missions, it would be absurd for a narrower construction of the term ‘archives’ to be applied to diplomatic archives than to consular archives.

Disputes Examining Inviolability:

The UK House of Lords addressed the meaning of the expression ‘archives and documents of the mission’ in the case of Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd and others (International Tin Council Intervening).  This case arose following the collapse of the International Tin Council in 1985, leaving huge liabilities on its trading and loan contracts. It was intended to place in evidence documents originating from the Tin Council, which was entitled under UK legislation giving effect to its headquarters agreement to ‘the like inviolability of official archives as was accorded in respect of those of a diplomatic mission.’ The International Tin Council intervened in the case claiming that these documents were inadmissible. Lord Bridge, giving the leading judgment of the House of Lords, said that “it would seem to me perfectly natural to interpret the phrase the ‘archives and documents of the mission’ in Article 24 of the Vienna Convention as referring to the archives and documents belonging to or held by the mission.” The House of Lords in the same judgment rejected the argument that the inviolability of archives gave only protection from executive or judicial action of the receiving State, so that a document which was stolen or otherwise obtained by improper means from a diplomatic mission was not necessarily inadmissible in evidence.

The extent of protection to be accorded to archives and documents of a diplomatic mission was re-examined by the English Divisional Court (whose judgment was subsequently upheld by the Court of Appeal and the Supreme Court) in the case of R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No.3). The claimants in the instant case relied on documents published by WikiLeaks and by the newspapers the Daily Telegraph and the Guardian which claimed to be a copy of a record of a meeting in the US Embassy in London sent by a cable to Washington and to the US Embassy in Mauritius. The Divisional Court held that the document was inadmissible because in the absence of consent by the US government it remained an archive and a communication of the US mission, notwithstanding the fact that it had been leaked by a third party and given widespread publicity. The Divisional Court accepted that the cable, created, transmitted, received and stored electronically, remained a document for the purposes of Article 24 and remained ‘official correspondence’ for the purposes of Article 27.2 of the Vienna Convention. It was held “We are required to apply a broad and sensible construction to Articles 24 and 27.2. Taken together, they provide for comprehensive rules for the enduring protection of all forms of diplomatic communication.”  Inviolability was held to be freedom from official interference and official correspondence of the mission over which the receiving State has had no control can, as has been submitted above, be freely used in judicial proceedings. It was noted that inviolability, like other diplomatic immunities, is a defence against an attempt to exercise State power and nothing more.

Furthermore, In Mind Enterprises Limited and ors. v. Stripes Zambia Limited and ors.,  the High Court of Zambia held that a diplomat is immune from any suit or legal action in the Courts arising from any acts he does in his official capacity. His official archives and correspondence were also found to be inviolable. Recently in 2016, in World Bank Group v. Kevin Wallace,  the Supreme Court of Canada held that the inviolability of archives is to afford a complete shield from investigation, confiscation or interference of any kind with the documents belonging to the archives of a State or international organization.

In total, it can be seen that the inviolability of official correspondence of a mission has two aspects– it makes it unlawful for the correspondence to be opened by the authorities of the receiving State and it precludes the correspondence being used as evidence in the courts of the receiving State. As regards use of correspondence as evidence, Article 27.2 may be regarded as duplicating the protection under Article 24 of the convention which gives inviolability to the archives and documents of the mission ‘wherever they may be’. Correspondence from the sending government to its mission would also at least arguably be entitled to protection as archives of a foreign sovereign State. The primary importance of Art 27.2 lies in the protection which it gives from interference by the authorities of the receiving State.

I.                   Personal Inviolability:

The concept of personal inviolability is an age-old rule of diplomatic law, and is closely connected with diplomatic immunity. Article 29 of the Vienna Convention on Diplomatic Relations reads as follows:

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

The International Law Commission noted that the exceptions to this rule are self-defence and, in exceptional circumstances, measures taken to prevent the diplomatic agent from committing crimes or offences[5]; it appears that the principle was so well established in customary international law that no further discussion of its scope or formulation was deemed necessary.

Article 29 has two primary limbs: firstly, a diplomat shall not be made liable to any form of arrest or detention;secondly, the receiving State must treat him with due respect and must take all appropriate steps to prevent any attack on his person, freedom or dignity.

With regard to the first limb, receiving States have generally refrained from prosecuting diplomats unless this diplomatic immunity is waived. For example, in 1987 in New York City, Mr.FloydKaramba, an administrative attaché at the Zimbabwean Mission to the UN, was found to have abused his children; however, no charges were filed against him as Mr. Karambawas entitled to diplomatic immunity.[6]

In October 2013, the arrest of Mr.Dmitri Borodin – a Russian Diplomat in the Netherlands – for driving under influence was condemned by the Russian government. The Russian Government demanded an apology from the Dutch Government for violating Mr.Borodin’s diplomatic immunity.[7]

In 2013, an Indian Consular official named DevyaniKhobragade was detained in a federal holding cell forallegations of non-payment of the United States’ minimum wage; this appeared to be a violation of her diplomatic immunity.India registered a strong protest and initiated a review of privileges afforded to American consular officials in India as a result.[8]

In the wake of the 1961 Vienna Convention on Diplomatic relations, kidnapping, murder and violent assaults against diplomatic agents as well as against mission premises became frequent. Diplomats were chosen for such attacks due to their status as representatives of a particular State as well as the supposed publicity value of flouting the long-standingrule of inviolability, in addition to the ability to procure concessions from the government due to the intense international pressure it would likely face to comply with any demand to secure the release of the diplomat.

For example, separatists in Indonesia bombed the car of an Ambassador from Philippines, seriously injuring him and killing two othersin a bid to highlight the separatist struggle in the Philippines.[9] On other occasions, similar attacks occurred to deter diplomatic relations between two countries as was clear in the abduction of the Egyptian Ambassador to Iraqby Al Qaeda; the intention therein was to deter Arab Governments from strengthening diplomatic relations with the democratically elected government in Baghdad.[10]

The extent of the duty to protect diplomatic agents came into question at an early stage as a result of the growth in the targeting of diplomats. It was clear from the International Law Commission’s Commentary[11] that the receiving State might be obliged, in case of threat to the safety of a diplomat, to provide an armed guard to protect him. Nonetheless, ambiguity exists surrounding the scope of the second limb of Article 29, namely the State’s obligation to prevent attacks on a diplomat’s person, freedom or dignity.

For example, when the West German Ambassador to Guatemala was abducted and the hostage takers demanded the release of prisoners and a ransom, Guatemala argued that Article 29 did not require them to violate their own Constitution or endanger national security by capitulating to these demands. The Ambassador was murdered and Germany broke all diplomatic relations with Guatemala.[12]

A subsequent spate of incidents confirmed that Article 29 did not require that the State capitulate to unlawful demands. In 1969, a Brazilian revolutionary group abducted a US diplomat and released him only in exchange for fifteen prisoners. In 1970, the group sought the release of forty prisoners in exchange for the safety of the West German Ambassador to Brazil. There were seventeen separate diplomatic kidnappings in 1970 alone and it became apparent that the argument that Article 29 required capitulating to such demands could no longer be sustained.[13] The subsequent stand of Western Countries that they would not comply with demands of hostage takers significantly contributed to the decline in the incidence of kidnappings after 1971.

CONCLUSION :

Diplomatic correspondence has proved useful in determining if and when a dispute has arisen. In its Advisory Opinion on Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, the International Court of Justice relied on diplomatic correspondence to determine whether or not an international dispute had arisen. The Court noted that in diplomatic correspondence submitted to the Court, the United Kingdom alongside Australia, Canada, New Zealand and the United States of America had charged Bulgaria, Hungary and Romania with having violated the human rights and fundamental freedoms provisions in the Peace Treaties, and demanded that the three governments take remedial measures to fulfil their obligations under the Treaties; the three governments denied these charges. The Court noted that this correspondence demonstrated that both sides held clearly opposing views regarding the performance or non-performance of certain treaty obligations, thus showing the emergence of an international dispute. Similarly, in the South West Africa Cases,  the Court seemingly relied on diplomatic correspondence to confirm that a dispute had indeed arisen. Judge Azvedo in his dissenting opinion in the Asylum case noted that the diplomatic correspondence between the parties had resulted in a very clear legal dispute. The inviolability of such correspondence is paramount and is rightly so protected by the Vienna Convention.