Formal diplomatic actions enable states to maintain relations with other subjects of international law and to communicate with foreign audiences and nationals living, traveling, or doing business abroad. An important part of such relations is executed by diplomatic envoys, sent on an ad hoc or permanent basis to a receiving state to serve as the sending state’s direct representatives. The specific nature of the functions performed by diplomats necessitates a climate in which secrecy and confidentiality are respected, which is reflected in international law. Largely developed during the Cold War period and thus reflecting sentiments of distrust, the 1961 Vienna Convention on Diplomatic Relations (VCDR) and many agreements of international organizations contain provisions protecting diplomatic documents and correspondence from unwanted disclosure. At the same time, an impressive body of customary international law on the topic has emerged. This entry explores the international legal framework that deals with the culture of secretiveness in bilateral diplomacy. First, it discusses the rights and obligations of diplomatic envoys regarding secrecy, surveillance, and privacy. Second, the applicable law on the diplomatic mission, its archives, and its means of communications is examined.
Immunities and Inviolabilities
Although the Vienna Convention is comprehensive, its text does not address secrecy, surveillance, or privacy in direct terms. Rather, the VCDR is conceived as an instrument that enables diplomatic agents to shield information from the receiving state, other states, and the public and to protect these agents from pressures that may exist to disclose intelligence. Diplomatic envoys enjoy freedom of movement and personal inviolability. The latter entails a duty of the receiving state to abstain from exercising enforcement rights and a special duty to protect the diplomat from unwanted interference in the exercise of his or her functions or privacy. The diplomatic agent also enjoys personal immunity. He or she cannot be judged in the courts of the receiving state, be the object of any act of investigation or prosecution, or be required to give evidence as a witness. The sending state can waive the aforementioned immunities if it deems that diplomatic confidentiality is not at risk.
Obligations of Diplomatic Agents
Inviolability of the Premises
The premises of a diplomatic mission, including the private residence of the head of the mission, are inviolable. This means that the receiving state must take all appropriate steps to protect the premises, while it is forbidden for its agents to enter these premises without due consent. The host state must protect the mission against intrusion or damage and prevent the disturbance of the peace of the premises or impairment of their dignity. According to the International Court of Justice in its 2005 Armed Activities on the Territory of the Congo judgment, this constitutes an obligation to take measures to repel any armed attack on the premises by private actors. The protection, which calls for preventive measures, has to be proportionate in light of the security risk at hand. No permanent surveillance can be expected, but when the authorities are aware of specific threats against the security or privacy of the mission, they are obliged to provide an appropriate level of protection. If the receiving state fails to do so, it has to make reparation for the injury caused.
Inviolability of Communication and Documents
Inviolability of Archives and Documents
The documents and archives of a diplomatic mission are inviolable at all times and wherever they may be. They cannot be opened, searched, or requisitioned without consent, or used as evidence in a court of law. The 2014 UN General Assembly Resolution 69/121 on the consideration of effective measures to enhance the protection, security, and safety of diplomatic and consular missions and representatives confirmed that the term archives includes modern forms of storage such as computer files and USB keys.
Freedom of Communication
The Vienna Convention permits diplomatic missions to communicate freely with their government by all appropriate means, ranging from modern means of communication to more traditional means such as the diplomatic bag and messages in code or cipher. The consent of the receiving state is imperative for the installation and use of wireless transmitters. The VCDR stipulates that the interception of, or any attempt to become acquainted with, the content of diplomatic communication is not allowed. In practice, however, observers of international relations provide ample examples of state-led surveillance operations through the installation of listening devices and the bugging of telephones of diplomatic missions.
The Diplomatic Bag
The diplomatic bag is protected under diplomatic law if it bears visible external marks of its character and if it contains documents or articles intended for official use. The rule that a diplomatic bag cannot be opened or detained is (and has been) subject to controversy. In particular, keeping a balance between the protection of diplomatic communication and the prevention of abuse has proven to be a challenge. It has been discussed whether modern screening methods that allow for the contents of the bag to be detected without opening it are permitted under international law. Increasingly, states use such techniques to discover the presence of explosives, metal, drugs, or nuclear substances, for instance, at airports. It is generally accepted that airline authorities can scan diplomatic bags and even refuse their transport when a threat to aircraft safety is presumed.
See also Counterintelligence ; Diplomacy ; Espionage ; International Diplomacy ; Law ; National Security Agency Leaks ; WikiLeaks
Berridge, Geoff. Diplomacy: Theory and Practice (4th ed.). Basingstoke, England: Palgrave Macmillan, 2010.
Denza, Eileen. Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th ed.). Oxford, England: Oxford University Press, 2016.
Duquet, Sanderijn and Jan Wouters. “Diplomacy, Secrecy, and the Law.” In Corneliu Bjola and Stuart Murray (eds.), Secret Diplomacy: Concepts, Contexts and Cases. London, England: Routledge, 2016.
Roberts, Ivor, ed. Satow’s Diplomatic Practice (6th ed.). Oxford, England: Oxford University Press, 2011.