A Staff Report from the Straight Dope Science Advisory Board

Is there such a thing as a diplomatic pouch?

December 20, 2005

Dear Straight Dope:

Old movies and spy novels sometimes refer to smuggling things into a country via a "diplomatic pouch" that supposedly can't be inspected by the host country. Do such pouches actually exist and if so who controls them?

Yes, such a thing exists. Here's a picture of one: http://www.versapak.co.uk/images/Diplomaticbag.gif. Americans call it the diplomatic pouch, the British call it the diplomatic bag, and the French call it la valise diplomatique. I'll call it the diplomatic bag for brevity and because that's what the current treaty calls it. But the diplomatic bag is more of a concept than a specific physical object. It's a means by which governments and their ambassadors can send items to one another without fear that the goods will be detained or inspected by foreign governments.

The diplomatic bag is part of the international law of diplomatic relations. Diplomatic relations law is based on two fundamental principles--necessity and reciprocity. States need to have embassies in other states, and they fear that if they abuse other states' embassies, their own will be subjected to similar mistreatment.

Modern diplomacy dates from the 15th century, when Italian city-states began exchanging resident ambassadors. But references to the diplomatic bag are sparse until the late 18th century--if the bag existed before then, its inviolability wasn't respected. In the 15th through late 18th centuries, couriers bearing secret communications between ambassadors and their sovereigns were often intercepted, although historians Linda and Marsha Frey describe this as a "violation of ambassadorial privilege." Diplomatic bags seem to have found firmer footing by the end of the 18th century. Jeremy Bentham used the bag during the French Revolution to get radical writings to Jacobin leaders around 1793; around the same time a watchmaker named Breguet used his good friend Talleyrand's diplomatic bag to distribute his watches across Europe.

Initially the diplomatic bag existed as a matter of customary international law, but the doctrine is now codified in the Vienna Convention on Diplomatic Relations (1961). Adopted by over 150 states, including the U.S., the VCDR restates the law of diplomatic bags in Article 27. Section 27(3) says: "The diplomatic bag shall not be opened or detained." Section 27(4) says: "The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use." According to the U.S. Department of State, "This means that the words 'Diplomatic Bag' (or 'Pouch') must be clearly visible and displayed in English on the outside of the diplomatic bag. The diplomatic bag must also bear the seal of the government to which it belongs. This seal may be a lead seal that is attached to a tie that closes the bag, or a seal printed on the fabric of the diplomatic bag, or an ink seal impressed on the detachable tag." The department says that packages so marked are exempt from detention, inspection, or X-ray. Such packages need only be described as "diplomatic pouch" on advance air manifests.

Any container can be a diplomatic bag--there are no limitations on size or shape. The Soviet Union tested the limits of this rule in 1984 when it claimed that a nine-ton tractor trailer was a diplomatic bag. As Chuck Ashman and Pamela Trescott tell the story in their book, Diplomatic Crime: "The white Mercedes truck bearing the blue Cyrillic letters reading Sovtransavto across its side tried to cross into Switzerland . . . The three Soviets driving the truck put off a request for inspection." The Swiss were not amused. "Though the Vienna Convention does not specify any size limitation for the bag, Swiss officials said they considered 450 pounds to be the maximum allowable size." The truck wound up in West Germany where Soviet officials permitted West German authorities to inspect the truck's contents: 207 crates, which themselves constituted diplomatic bags and weren't inspected.

The bag has been abused from time to time. For instance, in the 1984 Dikko incident, a former Nigerian minister was kidnapped in London and placed in a crate to be flown to Nigeria. With him in the crate was another man who was conscious and equipped with drugs and syringes. The kidnappers were hiding in another crate.

And there are plenty more where that came from: In 1964, an Israeli was found bound and drugged in a crate marked "diplomatic mail" at the Rome airport. In 1980, a crate bound for the Moroccan Embassy in London split open to reveal £500,000 (approximately $880,000 USD) worth of drugs. Nazis smuggled looted art to Switzerland in diplomatic bags. When a British police officer named Fletcher was shot from inside the Libyan embassy in 1984, the British did not search diplomatic bags as they were removed from the embassy. The British believe that the murder weapon left the country in one of those bags. Trinidadian authorities found cocaine in diplomatic pouches addressed to Trinidad and Tobago's consulates in New York, London and Toronto.

Incidents like these have caused some to worry that the diplomatic bag could be used to smuggle weapons or bombs onto planes or into countries. Those proposing solutions typically seek to enforce the content limitation (the bag can only contain "diplomatic documents or articles intended for official use"). That presents a conundrum, though. A diplomatic bag might be disqualified if its contents were inappropriate, but experts agree a country can't inspect a bag to see what its contents are. One source wryly suggests that the only way to determine what's inside a diplomatic bag is to drop it and hope it opens.

In response to these concerns, states have considered several approaches: Some states claim the right to open or return diplomatic bags. This means that the receiving state will request permission to open a bag in the presence of an official representative of the sending state. If permission is denied, the receiving country returns the bag to the sending country. Some countries entered a reservation to the VCDR to this effect. Consular bags (a consul represents the state in matters related to individuals and businesses) are already subject to this treatment under the Vienna Convention on Consular Relations, Article 35(3). Some states claim that the VCDR does not prohibit X-raying of diplomatic bags. This claim is controversial. Some states support exceptions to the inviolability rule for the protection of human life or self defense. Cuba opened some U.S. diplomatic pouches that contained the booklet "Support for a Democratic Transition in Cuba." When the U.S. complained, Cuba suggested that the contents of the bag were contraband (Cuba has a law against such materials) and, therefore, not proper contents for a diplomatic pouch. This approach is inconsistent with the VCDR and international practice.

The U.S. has opposed such restrictions because it fears the consequences of other countries seizing and searching its own diplomatic bags. While the U.S. has stringent requirements for its diplomatic pouches, and specifically restricts items that may be included in them, it follows the VCDR for diplomatic bags belonging to other states, even those that haven't signed the treaty. On the other hand, the President has the power "on the basis of reciprocity and under such terms and conditions as he may determine" to "specify privileges and immunities for the mission, the members of the mission, their families, and the diplomatic couriers which result in more favorable treatment or less favorable treatment than is provided under the Vienna Convention." So the U.S. does claim some flexibility in its treatment of diplomats and diplomatic bags.

The U.S. has also recently noted that diplomatic luggage is given different treatment under the VCDR than diplomatic bags. Article 36(2) of the VCDR says, "The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative." The U.S. has indicated that it intends to X-ray and screen diplomats and their luggage. The Office of Foreign Missions has reminded the diplomatic community that the "Vienna Conventions do not prohibit the searching of luggage if there is suspicion of contraband, and any luggage that triggers a response by the [explosive detection system], explosives detector machines, dogs, or fails passenger-bag matching falls under suspicion of being contraband."

References

Nicolson, Harold, Diplomacy (1963)

Ashman, Charles, and Trescott, Pamela, Diplomatic Crime: Drugs, Killings, Thefts, Rapes, Slavery & Other Outrageous Crimes (1987)

Barker, J. Craig, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (1996)

Ganshof, François Louis, The Middle Ages: A History of International Relations (1970)

Mattingly, Garrett, Renaissance Diplomacy (1955)

Frey, Linda and Frey, Marsha, The History of Diplomatic Immunity (1999)

Steinberg, Jeffrey, "The Bestial British Intelligence of Shelburne and Bentham":

http://www.schillerinstitute.org/conf-iclc/1990s/conf_feb_1994_js.html

Sabrier, Jean-Claude, "Breguet and the Russian Market," Antiquorum Online:

http://www.antiquorum.com/html/vox/vox2004/breguet.htm

Vienna Convention on Diplomatic Relations:

http://www.un.org/law/ilc/texts/diplomat.htm

Procedures for foreign pouches entering the U.S.:

http://www.state.gov/documents/organization/24009.pdf

Addendum to diplomatic pouch procedures:

http://www.state.gov/documents/organization/35403.pdf

Code of Federal Regulation, 19CFR122.48a, regarding diplomatic pouch as air cargo: http://a257.g.akamaitech.net/7/257/2422/01apr20051500/edocket.access.gpo.gov/cfr_2005/aprqtr /19cfr122.48a.htm

Brightbill, Timothy, "New Customs Requirements for Electronic Filing of Cargo Information Take Effect in March 2004," Wiley Rein & Fielding LLP:

http://www.wrf.com/publication.cfm?publication_id=11440

"Guess what doesn't get screened by airlines? Diplomatic pouches: Security experts worry that terrorists could exploit the protected status of these bags," Alexandra Marks, Christian Science Monitor, September 14, 2005: http://www.csmonitor.com/2005/0914/p04s01-usfp.html

Omoigui, Nowa, "The Palace Coup of August 27, 1985 (part 1)," dawodu.com:  http://www.dawodu.com/omoigui14.htm

Shaw, Malcolm, International Law (1997)

"Abuse of Diplomatic Immunities and Privileges: First Report from the [British House of Commons] Foreign Affairs Committee," etc., HCP 127, pp. 33-34 (Dec. 14, 1984):

http://www.bopcris.ac.uk/cgi-bin/citizen-imgfind.pl?pageno=33&project=bopcris&refi d=all_20238_1_s

Aalders, Gerard, "By Diplomatic Pouch: Art Smuggling By The Nazis," Spoils of War International Newsletter:

http://spoils.libfl.ru/spoils/eng/spoil3_2. html#13

"Diplomatic Drug Bust: UNC Calls for Heads to Roll," Gail Alexander, The Trinidad Guardian, May 12, 2004:

http://www.guardian.co.tt/archives/2004-05-12/news1.html

Martin, Lionel, "Cuba Rejects U.S. Protest Over Diplomatic Pouch," CubaNet:

http://www.cubanet.org/CNews/y97/mar97/24reject.html  

Vienna Convention on Consular Relations:

http://www.un.org/law/ilc/texts/consul.htm

U.S. Department of State, Foreign Affairs Handbook, Volume 5, Handbook 10 (Pouch and Mail Handbook), H-510 & H-530:

http://foia.state.gov/regs/fams.asp?level=2&id=25&fam=1 

22 U.S.C. §254b (statute applying VCDR to non-signatory countries): http://www4.law.cornell.edu/uscode/html/uscode22/usc_sec_22_00000254---b000-.html

22 U.S.C. §254c (president has authority to give more or less favorable treatment): http://www4.law.cornell.edu/uscode/html/uscode22/usc_sec_22_00000254---c000-.html

United States intends to screen diplomats and their luggage:

http://www.state.gov/documents/organization/29992.pdf  

United States says Vienna Convention doesn't prohibit search of suspect luggage:

http://www.state.gov/documents/organization/32367.pdf

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