Re: Legal Opinion Concerning the Swiss Inspection of Baggage and Seizure of Ivory of the Turkish Ambassador to the Democratic Republic of Congo

February 3, 2000

Juan Carlos Vasquez
Associated Programme Officer
Enforcement Assistance Unit
CITES Secretariat
15, chemin des An‚mones
CH-1219 Chetelaine-Geneva

Re: Legal Opinion Concerning the Swiss Inspection of Baggage and Seizure of Ivory of the Turkish Ambassador to the Democratic Republic of Congo

Juan Carlos Vasquez,

This letter responds to your request for a legal opinion concerning the seizure of baggage carried by the Turkish Ambassador to the Democratic Republic of Congo. Under the rules of the Vienna Convention on Diplomatic Relations (Vienna Convention), the inspection of the baggage of the Turkish Ambassador and the subsequent seizure of the ivory by Swiss authorities, was legal. This opinion focuses on the Vienna Convention, rather than CITES Decision 10.34, because the Vienna Convention itself permits the inspection of the personal baggage of a diplomatic agent and the subsequent seizure of goods illegally exported. CITES Decision 10.34 supports that conclusion.

I. The Baggage Is Not a “Diplomatic Bag”

Article 27.3 of the Vienna Convention, which entered into force on April 24, 1964, states that “the diplomatic bag” shall not be opened or detained. However, Article 27.3 of the Vienna Convention states that 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.” To constitute a diplomatic bag, the bag must be visibly marked as a diplomatic bag and contain only diplomatic documents or articles intended for official use.

In your message, you said that the “suitcase was not marked as diplomatic baggage.” Because the baggage was not properly marked as a diplomatic bag, the baggage cannot be considered a diplomatic bag. Further, because the ivory most likely was not an article intended for official use, the contents of the baggage also fail to meet the requirements for a legitimate diplomatic bag. Thus, the Turkish government cannot claim that the Swiss authorities improperly inspected and seized a “diplomatic bag,” under the terms of the Vienna Convention.

II. Limited Immunity while “In Transit”

The immunity granted to diplomatic agents while in transit is far more limited than the immunity they are afforded in the receiving State. This is true regardless of whether the transit is for official or personal business.

Article 40.1 provides:

“If a diplomatic agent passes through or is in the territory of a third State, which has granted a diplomatic agent a visa, if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as my be required to ensure his transit or return” (emphasis added).

This article is limited to the diplomatic agent’s personal inviolability. First, Article 40.1 requires the transit state to accord “him” inviolability, not his baggage. Further, Article 40.3 requires third States to grant the full range of privileges and immunities to official correspondence and communications and diplomatic bags while in transit.” Significantly, Article 40.3 is silent in relation to the personal baggage of diplomatic agents in transit. Thus, a third State is not required to exempt a diplomatic agent from customs and baggage searches under Article 40, but may do so as a courtesy. Thus, the Vienna Convention does not prevent Swiss authorities from inspecting the personal baggage of a diplomatic agent in transit, even if he is returning to his post or his home country.

Although Article 40 supports the Swiss action even if the diplomatic agent is returning to his post or home country, cases from several countries clearly support the Swiss inspection and seizure of the ivory if the Turkish Ambassador was travelling on personal business. If the diplomat is travelling for personal reasons, third States are not required to provide the privileges and immunities. This was true even before the Vienna Convention. In 1960, for example, the United States arrested the Guatamalan Ambassador to Belgium and The Netherlands for narcotics offenses when he flew to New York and did not plan on flying to his post in Paris. The court ruled that the Ambassador was on personal business and was not “within the rule of international law granting immunity to a diplomat en route between the official post and his homeland.” U.S. v. Rosal, 191 F.Supp. 663 (U.S. District Court, So. District of New York, 1960).

After the Vienna Convention came into force, the Court of Cassation in Belgium ruled that the wife of the Ambassador of Afghanistan to India had no immunity under Article 40.1 when she was travelling on personal business. Vafadar, 82 International Law Reports 97 (1979). Similarly, a court in the Netherlands denied immunity under Article 40 to a Zambian diplomatic agent attached to the Zambian Embassy in Kenya who was in The Netherlands, because he was not there for the purpose of taking up his post or returning to his home country. Public Prosecutor v. JBC, 94 International Law Reports 339 (District Court of Harlaam).

Nonetheless, even if the Turkish Ambassador was returning to his own country, because Article 40 of the Vienna Convention does not make the personal baggage of a diplomatic agent immune from search and seizure. This is true regardless of any other circumstances.

The lack of immunity for baggage of a diplomatic agent moving to his post or returning home appears true especially for goods exported from the receiving State. The Vienna Convention provides no substantive right to export goods from the receiving State. Upon the death of a diplomatic agent, Article 39.4 actually allows the receiving State to withhold any property of the agent which was acquired in the receiving country and which is prohibited for export. Further, Article 41 states that “it is the duty of all person enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” Presumably, it is illegal to export ivory from the Democratic Republic of Congo.

III. Abuse of Privileges and Immunities

While the Swiss inspection and seizure can be justified based on the analysis in Section II above, it can also be justified based on the principle that a State can inspect the baggage of a diplomatic agent and even arrest him, if he is abusing his privileges and immunities. The principle is developing with regards to the receiving State, where the inviolability of the diplomatic agent and his baggage is strongest.

As a general rule, the receiving State must exempt the personal baggage of a diplomatic agent from inspection when he is returning home or travelling to his post. Vienna Convention, Article 36.2. Thus, unlike Article 40 relating to the diplomatic agent in transit through third States, Article 36 specifically exempts personal baggage by the receiving State. Personal baggage is broadly defined to include articles “for personal use of the diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.” Vienna Convention, Article 36.1.

However, Article 36.2. of the Vienna Convention provides that the personal baggage of a diplomat may be inspected if there are

“serious grounds for presuming that [the baggage] contains articles not for personal use of the diplomat or his family or for official use of the mission … or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving state.”

In this case, R. v. Khan and Others, Court of Appeal (Criminal Division) [1996] Crim. L.R. 508, the Court of Appeals upheld the seizure of prohibited goods from the baggage of a diplomat from Thailand who was returning to his post with the Royal Thai Embassy in London. Prior to his arrival, British authorities received evidence that the Thai diplomat would return to his post with illegal goods. Customs officers searched his baggage while it was still in the airplane and found heroin. Customs officials then arrested the diplomat and searched his baggage in his presence.

The diplomat argued that both searches were illegal under the Vienna Convention. He argued that the first search was illegal because it was conducted in his absence and Article 36.2 of the Vienna Convention expressly states that any inspection “shall be conducted only in the presence of the diplomatic agent or his authorized representative.” He further claimed that, because the first search was illegal, the second search was also illegal. According to his argument, the “serious grounds” for presuming that the baggage contained prohibited goods came only from the first, illegal search.

The trial court ruled that officials had received sufficient information prior to the first search of the baggage to constitute “serious grounds” for believing that the baggage contained prohibited goods. Thus, although the search took place in the absence of the diplomat, the illegal search was insufficient to taint the second, legal search.

Moreover, the court ruled that even if the second search violated Article 36.2 of the Vienna Convention, there would be “no unfairness” in admitting the evidence discovered during the search. The trial court also said:

“At worst, the Customs and Excise had infringed a right, which he [the diplomat] was abusing, for purposes unrelated to those for which the right was given.”

Article 36 of the Vienna Convention is implicated in this situation because the diplomatic agent was returning to his post in the receiving State and it was the receiving State that inspected and seized the baggage. Nonetheless, the U.K. court stated that customs officials could inspect the baggage of a diplomatic agent, if he abuses his privileges and immunities.

This case is significant to the Swiss inspection and seizure for two reasons. First, the U.K. court made its finding even under the broader privileges and immunities that apply to diplomatic agents in receiving States under Article 36. If a diplomatic agent can lose his privileges and immunities through abuse under Article 36, it follows that a diplomatic agent can lose his privileges and immunities through abuse under the more lenient provisions of Article 40. Second, the court applied the principle of abuse of diplomatic immunity specifically to the inspection of personal baggage of a diplomat. Of course, that is exactly the same situation the Swiss authorities confronted relating to the inspection of the baggage of the Turkish Ambassador.

Although the U.K. court did not apply the principle of abuse to Article 40, a decision of a U.S. court has been interpreted as doing so. In that case, the Mexican Ambassador to Bolivia and the Uruguayan Minister Plenipotentiary were convicted of receiving, concealing, and selling narcotics illegally. Authorities in Canada and the United States inspected the baggage containing heroin without the permission of the diplomats and in their absence. U.S. authorities later arrested and convicted them.

Although this case does not mention the Vienna Convention, the case is cited in the influential Restatement of the Law: The Foreign Relations Law of the United States to mean that, under Article 40 of the Vienna Convention, the “[a]buse by a diplomat of the privileges of transit would permit the transit state to arrest and try him.” Restatement of the Law: The Foreign Relations Law of the United States, Section 464, Reporters’ Note 11 (3rd edition, 1986).

Article 41.1 of the Vienna Convention, which states that all persons enjoying privileges and immunities have the duty to respect the laws and regulations of the receiving State, further supports the principle of abuse of diplomatic immunity. Diplomatic agents “have no entitlement to import items contrary to the law of the receiving State, even where these items are for official use of the mission or for personal use of the diplomat.” The principle of abuse is especially strong relating to exports, because the Vienna Convention provides no substantive right to export goods from the receiving State. Article 39.4, which allows the receiving State to withhold any property acquired in the receiving country which is prohibited for export upon the death of a diplomat, emphasizes this point.

Lastly, diplomatic agents and others entitled to the exemption in Article 36.2 of the Vienna Convention are now expected to submit to screening at airports as a general security precaution to avoid abuse of their privileges and immunities. The era of unfettered diplomatic immunity for personal baggage simply does not exist anymore.

IV. Conclusion

The inspection by Swiss authorities of the personal baggage of the Turkish Ambassador to the Democratic Republic of Congo, and the seizure of the ivory, is legal. The Turkish Ambassador cannot legitimately claim that his personal bags constituted a diplomatic bag. Thus, the rules relating to personal baggage apply. Further, because the Ambassador was in transit through Switzerland, the rules of Article 40 of the Vienna Convention apply. Article 40 does not grant immunity from inspection to the personal baggage of a diplomatic agent such as the Ambassador. This is true regardless of whether the Ambassador was travelling for personal reasons or for official business. Such seizures, as well as arrests of diplomats, are supported by judicial opinions from several countries.

In addition, judicial opinions also support the principle of abuse of diplomatic immunity. Under this principle, authorities may inspect and seize the baggage of a diplomatic agent and even arrest the diplomatic agent if he is involved in illegal activities. If this is true under the stricter immunity rules of Article 36 of the Vienna Convention, one can presume that a similar rule applies to the inspection of baggage under Article 40. The principle of abuse supports the action of the Swiss authorities.

If you have other questions, pleas do not hesitate to call me.

Best regards,

Prof. Chris Wold
Northwestern School of Law of
Lewis & Clark College
10015 SW Terwilliger Blvd.
Portland, OR 97219
tel: (503) 768-6734
fax: (503) 768-6671
email: wold@lclark.edu