Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by

Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by Diplomatic

Courier and Draft Optional Protocols thereto with commentaries

1989

Copyright © United Nations 2005

Text adopted by the International Law Commission at its forty-first session, in 1989, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 72). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1989, vol. II, Part Two.

14 Report of the International Law Commission on the work of its forty-first session

articles on the status of the diplomatic courier and thediplomatic bag not accompanied by diplomatic courier,unanimously adopted the following resolution:

The International Law Commission,Having adopted the draft articles on the status of the diplomatic

courier and the diplomatic bag not accompanied by diplomatic courier,Desires to express to the Special Rapporteur, Mr. Alexander Yankov,

its deep appreciation of the invaluable contribution he has made to thepreparation of the draft throughout these past years by his tirelessdevotion, professional expertise and incessant labour, which haveenabled the Commission to bring this important task to a successfulconclusion.

D. Draft articles on the status of the diplomatic courier andthe diplomatic bag not accompanied by diplomaticcourier and draft Optional Protocols thereto54

72. The texts of articles 1 to 32 and of draft OptionalProtocols One and Two, with commentaries thereto, asfinally adopted by the Commission at its forty-firstsession are reproduced below.

1. DRAFT ARTICLES ON THE STATUS OF THE DIPLOMATICCOURIER AND THE DIPLOMATIC BAG NOT ACCOMPANIEDBY DIPLOMATIC COURIER

PART I

GENERAL PROVISIONS

Article 1. Scope of the present articles

The present articles apply to the diplomatic courier andthe diplomatic bag employed for the official com-munications of a State with its missions, consular posts ordelegations, wherever situated, and for the official com-munications of those missions, consular posts or delegationswith the sending State or with each other.

Commentary

(1) The general purpose of the present draft articles is toestablish, within certain limits to be mentioned below, acomprehensive and uniform regime for all kinds ofcouriers and bags employed by States for official com-munications. This comprehensive and uniform approachrests on the common denominator provided by therelevant provisions on the treatment of the diplomaticcourier and the diplomatic bag contained in themultilateral conventions on diplomatic and consular lawwhich constitute the legal basis for the uniform treatment

54 In the commentaries to the following articles and protocols, thefour multilateral conventions on diplomatic and consular law concludedunder the auspices of the United Nations,

1961 Vienna Convention on Diplomatic Relations (United Nations,Treaty Series, vol. 500, p. 95),

1963 Vienna Convention on Consular Relations (ibid., vol. 596,p. 261),

1969 Convention on Special Missions (United Nations, JuridicalYearbook 1969 (Sales No. E.71.V.4), p. 125),

1975 Vienna Convention on the Representation of States in theirRelations with International Organizations of a Universal Character(United Nations, Juridical Yearbook 1975 (Sales No. E.77.V.3), p. 87),hereinafter referred to as "1975 Vienna Convention on theRepresentation of States",are referred to as the "codification conventions".

of the various couriers and bags. There is a basic identityof regime with very few differences between the relevantprovisions of the 1961 Vienna Convention on DiplomaticRelations, the 1963 Vienna Convention on ConsularRelations, the 1969 Convention on Special Missions andthe 1975 Vienna Convention on the Representation ofStates in their Relations with International Organizationsof a Universal Character.(2) Notwithstanding the foregoing, the Commission iswell aware of the fact that many States are not parties toall four of the codification conventions and thus mayprefer that the present articles not require the sametreatment of the different types of couriers and bagscovered by those conventions. While the number ofparties to the 1961 Vienna Convention on DiplomaticRelations and, to a somewhat lesser extent, to the 1963Vienna Convention on Consular Relations is very highand creates an almost universal network of legalrelationships in those fields, the 1969 Convention onSpecial Missions, though already in force, has not yetbeen the subject of widespread ratification or accession.On the other hand, although it is also true that the 1975Vienna Convention on the Representation of States doesnot yet enjoy wide adherence, the Commission has bornein mind the fact that, as confirmed by long-standing Statepractice, couriers and bags covered by that Convention,namely couriers and bags to and from permanentmissions and delegations, are also covered by theprovisions concerning couriers and bags ofrepresentatives of Members within the meaning of the1946 Convention on the Privileges and Immunities of theUnited Nations55 and the 1947 Convention on thePrivileges and Immunities of the Specialized Agencies.56

Both Conventions enjoy wide adherence in the inter-national community and, in essence, they equate the legalregime of couriers and bags sent to and by representativesof Member States to that of diplomatic couriers and bags,as pointed out in paragraph (3) of the commentary toarticle 3. This equation or assimilation thus provides thelink for extending the uniform approach referred to inparagraph (1) of the present commentary also to this kindof courier and bag.

(3) In view of all of the above, and for practical reasonsconnected with the need to ensure wider acceptability ofthe present articles without abandoning the underlyingobjective of providing a uniform legal regime for allcouriers and bags, the Commission decided to confine thescope of the articles to diplomatic and consular couriersand bags as well as couriers and bags of permanentmissions and delegations (see art. 3). As for couriers andbags of special missions, the Commission decided to keepopen the possibility for States to extend the application ofthe present articles to those couriers and bags by means ofan optional protocol, which may be signed and ratifiedtogether with the present articles (see draft OptionalProtocol One and the commentary thereto).

(4) It was pointed out by several members of theCommission that, in adopting the assimilative approach,the Commission did not intend to suggest that itnecessarily reflected or was required by customary inter-national law.

55 See footnote 43 above.56 See footnote 44 above.

Status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier 15

(5) The drafting of article 1 deliberately brings out thetwo-way character of communications between thesending State and its missions, consular posts ordelegations, as well as the inter se character of com-munications between those missions, consular posts ordelegations, i.e. lateral communications between themissions, consular posts or delegations situated in oneState and the missions, consular posts or delegationssituated in another State.

(6) There was some discussion in the Commissionconcerning the inclusion of the words "whereversituated". While some members felt that those wordscould be deleted without aifecting the meaning of article1, the majority was of the view that their inclusionbrought out in clearer terms the two-way and inter secharacter of the official communications referred to in thearticle. For instance, they made it absolutely clear that themissions, consular posts or delegations of the sendingState whose official communications with each other werecovered by the present articles were not only thosesituated in the same receiving State, but also those indifferent receiving States.

Article 2. Couriers and bags not within the scopeof the present articles

The fact that the present articles do not apply to couriersand bags employed for the official communications ofspecial missions or international organizations shall notaffect:

(a) the legal status of such couriers and bags;

(b) the application to such couriers and bags of any rulesset forth in the present articles which would be applicableunder international law independently of the presentarticles.

Commentary

(1) The prevailing view in the Commission and in theSixth Committee of the General Assembly has been toconfine the scope of the present articles, as defined inarticle 1, to couriers and bags of States. Yet the fact thatthe articles deal only with couriers and bags of States doesnot preclude the possibility of substantial similaritiesbetween the legal regime of couriers and bags of inter-national organizations, particularly those of a universalor broad regional character, and the legal regime ofcouriers and bags of States. Such substantial similaritymay arise from norms of international law quiteindependent of the present articles. For example,pursuant to article III (sect. 10) of the 1946 Conventionon the Privileges and Immunities of the United Nationsand article IV (sect. 12) of the 1947 Convention on thePrivileges and Immunities of the Specialized Agencies, thecouriers and bags of the United Nations and itsspecialized agencies "shall have the same immunities andprivileges as diplomatic couriers and bags".

(2) Furthermore, the Commission felt that it might beappropriate to provide the possibility for States whichmay choose to do so to apply the present articles tocouriers and bags of international organizations of a

universal character. This it did by means of an optionalprotocol on the status of the courier and the bag ofinternational organizations of a universal character, asexplained in more detail in the commentary to draftOptional Protocol Two below.(3) For the reasons explained in the commentary toarticle 1, the Commission decided not to include in thescope of the present articles the couriers and bags ofspecial missions. This does not affect the legal status ofsuch couriers and bags as between the parties to the 1969Convention on Special Missions. In this case also, theCommission decided that it was desirable to allow Stateswishing to do so to extend the application of the presentarticles to the couriers and bags of special missions, bymeans of an optional protocol on the status of thecourier and the bag of special missions, as explained inmore detail in the commentary to draft OptionalProtocol One below.

Article 3. Use of terms

1. For the purposes of the present articles:(1) "diplomatic courier" means a person duly author-

ized by the sending State, either on a regular basis or for aspecial occasion as a courier ad hoc, as:

(a) a diplomatic courier within the meaning of theVienna Convention on Diplomatic Relations of 18 April1961;

(b) a consular courier within the meaning of theVienna Convention on Consular Relations of 24 April1963; or

(c) a courier of a permanent mission, a permanentobserver mission, a delegation or an observer delegationwithin the meaning of the Vienna Convention on the Rep-resentation of States in their Relations with InternationalOrganizations of a Universal Character of 14 March 1975;who is entrusted with the custody, transportation anddelivery of the diplomatic bag and is employed for theofficial communications referred to in article 1;

(2) "diplomatic bag" means the packages containingofficial correspondence, and documents or articles intendedexclusively for official use, whether accompanied bydiplomatic courier or not, which are used for the officialcommunications referred to in article 1 and which bearvisible external marks of their character as:

(a) a diplomatic bag within the meaning of the ViennaConvention on Diplomatic Relations of 18 April 1961;

(b) a consular bag within the meaning of the ViennaConvention on Consular Relations of 24 April 1963; or

(c) a bag of a permanent mission, a permanentobserver mission, a delegation or an observer delegationwithin the meaning of the Vienna Convention on the Rep-resentation of States in their Relations with InternationalOrganizations of a Universal Character of 14 March 1975;

(3) "sending State" means a State dispatching adiplomatic bag to or from its missions, consular posts ordelegations;

(4) "receiving State" means a State having on itsterritory missions, consular posts or delegations of thesending State which receive or dispatch a diplomatic bag;


(5) "transit State" means a State through whoseterritory a diplomatic courier or a diplomatic bag passes intransit;

(6) "mission" means:

(a) a permanent diplomatic mission within the mean-ing of the Vienna Convention on Diplomatic Relations of18 April 1961; and

(b) a permanent mission or a permanent observermission within the meaning of the Vienna Convention onthe Representation of States in their Relations with In-ternational Organizations of a Universal Character of14 March 1975;

(7) "consular post" means a consulate-general,consulate, vice-consulate or consular agency within themeaning of the Vienna Convention on Consular Relationsof 24 April 1963;

(8) "delegation" means a delegation or an observerdelegation within the meaning of the Vienna Conventionon the Representation of States in their Relations with In-ternational Organizations of a Universal Character of14 March 1975;

(9) "international organization" means an inter-governmental organization.

2. The provisions of paragraph 1 regarding the use ofterms in the present articles are without prejudice to the useof those terms or to the meanings which may be given tothem in other international instruments or the internal lawof any State.

Commentary

(1) Following the example of the four codificationconventions, article 3 explains the meaning of theexpressions most frequently used in the set of articles, soas to facilitate the interpretation and application of thearticles. The definitions have been confined to theessential elements which typify the entity defined, leavingother definitional elements for inclusion in the relevantsubstantive articles.

Subparagraph (1) of paragraph 1

(2) Subparagraph (1), in defining the diplomaticcourier, has recourse to two substantive and indis-pensable elements: (a) his function or duty as a custodianof the diplomatic bag, charged with its transportation anddelivery to its consignee; (b) his official capacity or officialauthorization by the competent authorities of the sendingState. In some instances, an officer of the sending State isentrusted for a special occasion with the mission ofdelivering official correspondence of that State.

(3) It was felt that the definition of the expression"diplomatic courier" should contain a specific andconcrete reference to all the different kinds of courier thatit was intended to cover. Although the expression"diplomatic courier" is used throughout the articles forreasons based both on practice and on economy ofdrafting, it should be made clear that the definitionapplies not only to the "diplomatic courier" stricto sensuwithin the meaning of the 1961 Vienna Convention onDiplomatic Relations, but also to the "consular courier"

and to the courier of a permanent mission, of a permanentobserver mission, of a delegation or of an observerdelegation, within the meaning, respectively, of the 1963Vienna Convention on Consular Relations and the 1975Vienna Convention on the Representation of States. Itwas also understood in the Commission that the words"courier of a permanent mission" or "courier of adelegation" within the meaning of the 1975 ViennaConvention also encompassed the notion of a courier of"representatives of Members" (which includes delegates,deputy delegates, advisers, technical experts andsecretaries of delegations) within the meaning of articleIV (sects. 11 (c) and 16) of the 1946 Convention on thePrivileges and Immunities of the United Nations and ofarticle I (sect. 1 (v)) and article V (sect. 13 (c)) of the 1947Convention on the Privileges and Immunities of theSpecialized Agencies.

(4) The definition encompasses both the diplomaticcourier employed on a regular basis and the diplomaticcourier ad hoc. It was agreed that the expression "on aregular basis" should be interpreted as opposed to ad hocor "for a special occasion" and was not intended toconvey any idea related to the lawfulness of theappointment. What characterizes the diplomatic courierad hoc is the specific duration of his functions. Heperforms all the functions of the diplomatic courier, butonly for a special occasion. In the prevailing practice ofStates, the function of diplomatic courier ad hoc has beenassigned to officials belonging to the foreign service oranother institution of the sending State with similarfunctions in the field of foreign relations, such as theMinistry for Foreign Trade or Foreign EconomicRelations or State organs involved in internationalcultural co-operation. An essential requirement is alwaysthe proper authorization by the competent authorities ofthe sending State. The specific duration of his functionshas a consequence on the duration of enjoyment of an adhoc courier's facilities, privileges and immunities as laiddown in the relevant article.

(5) The cross-reference to article 1 contained in thedefinition is intended to clarify that it covers not onlyone-way communications between the sending State andits missions abroad, but also those between the missionsand the sending State, as well as those between differentmissions of the sending State. The scope of the presentarticles having already been fixed in article 1, reasons ofeconomy of drafting make the cross-reference bothappropriate and advisable.

(6) Elements of the present definition are furtherelaborated in specific provisions, namely articles 8 and 10on documentation and functions of the diplomaticcourier, respectively.


(7) The two objective and fundamental features of thedefinition of the diplomatic bag are (a) its function,namely to carry official correspondence, documents orarticles exclusively for official use as an instrument forcommunications between the sending State and itsmissions abroad; and (b) its visible external markscertifying its official character. These two features areessential to distinguish the diplomatic bag from other


travelling containers, such as the personal luggage of adiplomatic agent or an ordinary postal parcel or con-signment. The real, essential character of the diplomaticbag is the bearing of visible external marks of itscharacter as such, because even if its contents are foundto be objects other than packages containing official cor-respondence, documents or articles intended exclusivelyfor official use, it is still a diplomatic bag deservingprotection as such.

(8) The means of delivery of the bag may vary. It maybe accompanied by a diplomatic courier. It may also,instead, be entrusted to the captain of a commercialaircraft or to the master of a merchant ship. Its methodof delivery may also vary as to the means of dispatch andtransportation used: postal or other means, whether byland, air, watercourse or sea. It was felt that thesevarieties of practice, not being essential to the definitionof the bag, could appropriately be dealt with in anotherarticle. Reference is made in this connection to article 26.

(9) Concerning the different kinds of "diplomatic bag"encompassed by the definition and the cross-reference toarticle 1, subparagraph (2) is structured similarly to sub-paragraph (1) on the definition of the "diplomaticcourier". The same remarks made in the commentary tosubparagraph (1) apply also, mutatis mutandis, to thepresent definition of the "diplomatic bag". In particular,it was understood in the Commission that the words"bag of a permanent mission" or "bag of a delegation"within the meaning of the 1975 Vienna Convention onthe Representation of States also encompassed thenotion of a bag of "representatives of Members" withinthe meaning of article IV (sects. 11 (c) and 16) of the 1946Convention on the Privileges and Immunities of theUnited Nations and of article I (sect. 1 (v)) and article V(sect. 13 (c)) of the 1947 Convention on the Privilegesand Immunities of the Specialized Agencies.

(10) Elements of the present definition are furtherelaborated in specific provisions, namely articles 24 and25 on identification and contents of the diplomatic bag,respectively.


(11) The expressions "sending State" and "receivingState" in subparagraphs (3) and (4) follow the well-established terminology contained in all four codificationconventions. This terminology has been maintained inarticle 3 and the definitions have been tailored to reflectthe specific situation involving the diplomatic bag,whether accompanied by a courier or not. By defining a"sending State" as a State "dispatching a diplomaticbag", subparagraph (3) covers all possible situations—aState dispatching an unaccompanied bag as well as aState sending a diplomatic courier whose function isalways connected with a bag; it also covers all otherpossible cases of accompanied bag referred to in thecommentary to subparagraph (2) above. The phrase "toor from its missions, consular posts or delegations" notonly spells out once more the two-way character of theofficial communications involved, but also makes it clearthat, whatever the starting-point—State, mission,consular post or delegation—the bag is always the bag ofthe sending State.

Subparagraph (4) of paragraph 1(12) To use the traditional terminology of "receivingState" within the context of a set of articles concerningthe diplomatic courier and the diplomatic bag is entirelyjustified on the grounds that the same receiving State thatis obliged by international law to accord facilities,privileges and immunities to missions, consular posts ordelegations of a sending State and their personnel is theone that is envisaged by the present articles in regulatingthe facilities, privileges and immunities of the diplomaticcourier and the diplomatic bag, if the sending Statedispatches a courier or a bag to those same missions,consular posts or delegations. To use other terminology,such as "State of destination", would actually lead toconfusion, since it would depart from the basic identityor equation between the State subject to obligationsvis-a-vis foreign missions or posts and their personnel onits territory and the State subject to obligations vis-a-visthe diplomatic courier or the diplomatic bag.

(13) With reference to the case of a courier and a bag ofa permanent mission, of a permanent observer mission,of a delegation or of an observer delegation, the notionof "receiving State" defined here covers also the notionof "host State" within the meaning of the 1975 ViennaConvention on the Representation of States. Theprevailing view in the Commission was that the similaritybetween the obligations of the "host State" and of the"receiving State" in the traditional meaning, insituations involving a diplomatic courier or a diplomaticbag, did not warrant such a distinction in the presentarticles, especially since couriers and bags of inter-national organizations were not within their scope andthe articles employed a generic term, "mission", to coverthe different situations listed in subparagraph (6).

Subparagraph (5) of paragraph 1(14) It was widely felt in the Commission that theexpression "to pass in transit" and, more precisely, thewords "in transit" have acquired such a clear andunequivocal connotation in modern internationalrelations and international communications that they areself-explanatory and that it was neither easy nordesirable to use a substitute expression in the definitionof a "transit State", even if the definition might appear atfirst sight to be tautological.(15) The definition is broad enough to cover theforeseen situation of a State through whose territory acourier or bag passes in transit in accordance with anestablished itinerary and unforeseen situations in whichthe provisions of paragraph 2 of article 30 will apply,with its qualifications. Except in circumstances where avisa is required, the transit State may not be aware that acourier or bag is passing through its territory. This broadconcept of a transit State is based on the differentsituations contemplated by article 40 of the 1961 ViennaConvention on Diplomatic Relations, article 54 of the1963 Vienna Convention on Consular Relations, article42 of the 1969 Convention on Special Missions andarticle 81 of the 1975 Vienna Convention on theRepresentation of States.

(16) By mentioning the diplomatic bag separately fromthe diplomatic courier, the definition encompasses notonly the unaccompanied bag, but also all other cases in


which the bag is entrusted to a person other than adiplomatic courier (captain of a commercial aircraft ormaster of a merchant ship), whatever the means of trans-portation used (air, land, watercourse or sea).

Subparagraphs (6), (7) and (8) of paragraph 1

(17) As emerges clearly from subparagraphs (6), (7)and (8), the definitions of the expressions "mission","consular post" and "delegation" constitute cross-references to the relevant definitions contained in thecodification conventions referred to in subparagraphs (1)and (2) of paragraph 1. It was also understood in theCommission that the words "permanent mission" or"delegation" within the meaning of the 1975 ViennaConvention on the Representation of States alsoencompassed the notion of "representatives ofMembers" within the meaning of article IV (sects. 11 and16) of the 1946 Convention on the Privileges andImmunities of the United Nations and of article I (sect.1 (v)) and article V (sect. 13) of the 1947 Convention onthe Privileges and Immunities of the SpecializedAgencies. In the view of the Commission, this uniformityof language helps to integrate the set of articles on thetopic of the diplomatic courier and the diplomatic baginto the whole system of provisions and the network ofconventions already adopted in the area of diplomaticand consular law.


(18) Different views were expressed in the Commissionas to the drafting of subparagraph (9). It was suggestedthat, for reasons of symmetry with the drafting ofpreceding subparagraphs, the text should contain amention of the 1975 Vienna Convention on theRepresentation of States, from whose article 1,paragraph 1 (1), the provision had been taken. Thequestion was also raised whether the definition given inthe subparagraph should not be confined to inter-governmental organizations of a universal character, toalign it with the scope of the 1975 Vienna Convention. Itwas widely felt that subparagraph (9) was connected withtwo different aspects of the present articles. On the onehand, the notion of an "international organization" ispresent, even if in a passive manner, in that the articlesare also intended to cover diplomatic couriers and bagsof permanent missions, permanent observer missions,delegations or observer delegations accredited or sent toan international organization. This alone would justifythe inclusion of a definition of an "internationalorganization". On the other hand, subparagraph (9) isalso connected with the scope of the present articles asclarified in article 2 and the commentary thereto.

Paragraph 2

(19) Paragraph 2 reproduces paragraph 2 of article 1 ofthe 1975 Vienna Convention on the Representation ofStates. Its purpose is to circumscribe the applicability ofthe definitions included in article 3, as such definitions, tothe context and system of the set of articles in which theyare contained. This is, of course, without prejudice to thepossibility that some of them may coincide with thedefinitions of the same terms contained in other inter-national instruments, or to the cross-references which in

some cases have been made to the definitions of certainterms given in other international instruments.

Article 4. Freedom of official communications

1. The receiving State shall permit and protect theofficial communications of the sending State, effectedthrough the diplomatic courier or the diplomatic bag, asreferred to in article 1.

2. The transit State shall accord to the official com-munications of the sending State, effected through thediplomatic courier or the diplomatic bag, the same freedomand protection as is accorded by the receiving State.

Commentary

Paragraph 1

(1) The source of paragraph 1 is to be found inprovisions of the four codification conventions, namelyarticle 27, paragraph 1, of the 1961 Vienna Convention onDiplomatic Relations, article 35, paragraph 1, of the 1963Vienna Convention on Consular Relations, article 28,paragraph 1, of the 1969 Convention on Special Missionsand article 57, paragraph 1, of the 1975 ViennaConvention on the Representation of States. Thus theprinciple of freedom of communication has been uni-versally recognized as constituting the legal foundation ofmodern diplomatic law and it must also be considered asthe core of the legal regime of diplomatic couriers anddiplomatic bags. The safe, unimpeded and expeditiousdelivery of the diplomatic message and the inviolability ofits confidential character constitute the most importantpractical aspect of that principle. It provides the legalbasis for the protection of the diplomatic bag, placingupon the receiving State, whenever the courier or the bagenters its jurisdiction, the obligation to grant certainfacilities, privileges and immunities so as to ensureadequate compliance with the above-stated ends.

(2) The cross-reference to article 1 explicitly clarifiesthat the freedom which article 4 regulates applies to thewhole range of official communications already specifiedin the provision stating the scope of the present articles.

Paragraph 2

(3) Paragraph 2 recognizes the fact that the effectiveapplication of the rule of free diplomatic communicationnot only requires that the receiving State permit andprotect free communications under its jurisdictioneffected through diplomatic couriers and bags, but alsoplaces an identical obligation upon the transit State orStates. For it is obvious that, in some instances, the safe,unimpeded and expeditious delivery of the diplomaticbag to its final destination depends on its passage, on itsitinerary, through the territory of other States. Thispractical requirement is embodied as a general rule inparagraph 2, which is based on parallel provisionscontained in the four codification conventions, namelyarticle 40, paragraph 3, of the 1961 Vienna Convention on


Diplomatic Relations, article 54, paragraph 3, of the 1963Vienna Convention on Consular Relations, article 42,paragraph 3, of the 1969 Convention on Special Missionsand article 81, paragraph 4, of the 1975 ViennaConvention on the Representation of States.

Article 5. Duty to respect the laws and regulationsof the receiving State and the transit State

1. The sending State shall ensure that the privileges andimmunities accorded to its diplomatic courier anddiplomatic bag are not used in a manner incompatible withthe object and purpose of the present articles.

2. Without prejudice to the privileges and immunitiesaccorded to him, it is the duty of the diplomatic courier torespect the laws and regulations of the receiving State andthe transit State.

Commentary

Paragraph 1(1) The intention of article 5 as a whole, and ofparagraph 1 in particular, is to establish the requiredbalance between the interests of the sending State in thesafe and unimpeded delivery of the bag, on the one hand,and the security and other legitimate considerations notonly of the receiving State, but also of the transit State, onthe other. In this respect, article 5 constitutes acounterpart to article 4, which establishes obligations onthe part of the receiving State and the transit State. Theobject and purpose of the set of articles is the estab-lishment of a system fully ensuring the confidentiality ofthe contents of the diplomatic bag, and its safe arrival atits destination, while guarding against its abuse. Allprivileges, immunities or facilities accorded either to thecourier or to the bag itself have only this end in view andare therefore based on a functional approach. Paragraph1 refers specifically to the duty of the sending State toensure that the object and purpose of those facilities,privileges and immunities are not violated. Later articlesspell out specific means whereby the sending State mayexercise this control, such as recall or dismissal of itscourier and termination of his functions.

(2) It was pointed out in the Commission that theexpression "shall ensure that" should be taken to mean"shall make all possible efforts so that", and that it wasthis meaning that should be given to the word veille, in theFrench text, and to the words velara por, in the Spanishtext.

Paragraph 2(3) Paragraph 2 extends to the diplomatic courierprinciples contained in parallel provisions of the fourcodification conventions and is based, with somemodifications, on article 41 of the 1961 ViennaConvention on Diplomatic Relations, article 55 of the1963 Vienna Convention on Consular Relations, article47 of the 1969 Convention on Special Missions and article77 of the 1975 Vienna Convention on the Representationof States. It refers specifically to the duty of the diplomaticcourier to respect the laws and regulations of the receiving

State and the transit State, without prejudice to thefacilities, privileges and immunities which he enjoys. Theduty of the diplomatic courier to observe the establishedlegal order in the receiving or transit State may relate to awide range of obligations regarding the maintenance oflaw and order, regulations in the field of public health andthe use of public services and means of transport, orregulations with respect to hotel accommodation and therequirements for registration of foreigners, as well asregulations with respect to driving licences, etc. The dutynaturally ceases to exist where the sending State or itsdiplomatic courier are expressly exempted by the presentarticles from applying the laws and regulations of thereceiving or transit State.

(4) It was understood in the Commission that the dutyembodied in paragraph 2 also encompasses the obligationto refrain from actions which might be perceived astantamount to interference in the internal affairs of thereceiving or transit State, such as taking part in politicalcampaigns in those States or carrying subversivepropaganda in the diplomatic bag directed at the politicalregime of, and to be distributed in, the receiving or transitState.

(5) Previous versions of article 557 contained a specificmention of the duty of the sending State and thediplomatic courier to respect the rules of internationallaw in the receiving State and the transit State. After somediscussion on the matter, the prevailing view was that themention of international law was unnecessary, notbecause the duty to respect its rules did not exist, butrather because all States and their officials were obliged torespect the rules of international law regardless of theirposition, in specific instances, as sending States ordiplomatic couriers, respectively. The mention of "inter-national law" in this context would amount, to someextent, to restatement of the obvious.

Article 6. Non-discrimination and reciprocity

1. In the application of the provisions of the presentarticles, the receiving State or the transit State shall notdiscriminate as between States.

2. However, discrimination shall not be regarded astaking place:

(a) where the receiving State or the transit Stateapplies any of the provisions of the present articles restric-tively because of a restrictive application of that provisionto its diplomatic courier or diplomatic bag by the sendingState;

(b) where States by custom or agreement extend toeach other more favourable treatment with respect to theirdiplomatic couriers and diplomatic bags than is required bythe present articles.

Commentary

(1) Article 6 is largely modelled on article 49 of the 1969Convention on Special Missions and, to a lesser extent, on

57 For the original version, see Yearbook . . . 1982, vol. II (Part Two),pp. 113-114, footnote 308; for the revised version, see Yearbook . . .1983, vol. II (Part Two), p. 45, footnote 185.


article 47 of the 1961 Vienna Convention on DiplomaticRelations, article 72 of the 1963 Vienna Convention onConsular Relations and article 83 of the 1975 ViennaConvention on the Representation of States. It laysdown the principles of non-discrimination andreciprocity which are part of the general principlesunderlying the four codification conventions and whichstem from the fundamental principle of the sovereignequality of States. Their application with regard todiplomatic or consular personnel leads to the estab-lishment of a viable and coherent regime governingdiplomatic and consular intercourse. The intrinsiccohesion between non-discrimination and reciprocityand their effective balance in the treatment of the above-mentioned personnel and of diplomatic courierscontribute to the attainment of a sound basis for a viablelegal framework of rules governing the regime of thecourier and the bag.

Paragraph 1

(2) Paragraph 1 lays down the general principle of non-discrimination mentioned above, referring not only tothe receiving State but also to the transit State.

Paragraph 2

(3) Paragraph 2 introduces some exceptions toparagraph 1, based on the principle of reciprocity, whichshall not be regarded as discrimination.

Subparagraph (a) of paragraph 2

(4) The first exception allows reciprocity by permittinga restrictive application of a provision of the presentarticles by the receiving State or the transit State becauseof a restrictive application of that provision to itsdiplomatic couriers or diplomatic bags by the sendingState. The option granted by this provision to thereceiving and transit States reflects the inevitable impactof the state of relations between those States and thesending State in the implementation of the articles.However, there should be some criteria or requirementsfor tolerable restrictions. It should be assumed that therestrictive application by the sending State concerned isin keeping with the strict terms of the provision inquestion and within the limits allowed by that provision;otherwise there would be an infringement of the presentarticles and the act of the receiving or transit State wouldbecome an act of reprisal.

Subparagraph (b) of paragraph 2

(5) The second exception refers to the case where, bycustom or agreement, States may extend to each othermore favourable treatment of their diplomatic couriersor diplomatic bags. Again in this case, States may applyreciprocity, this time in an active and positive way,establishing more favourable treatment betweenthemselves than that which they are bound to accord toother States by the terms of the present articles. Theword "custom" is intended to cover not only custom in astrictly juridical sense as a customary rule, but alsopractices comitas gentium which two or more States maywish to develop in their relations.

PART II

STATUS OF THE DIPLOMATIC COURIER ANDTHE CAPTAIN OF A SHIP OR AIRCRAFTENTRUSTED WITH THE DIPLOMATIC BAG

Article 7. Appointment of the diplomatic courier

Subject to the provisions of articles 9 and 12, the sendingState or its missions, consular posts or delegations mayfreely appoint the diplomatic courier.

Commentary

(1) The terminology employed in article 7 indicatingthat the sending State or its missions, consular posts ordelegations may freely appoint the diplomatic courier isconsistent with that used in the corresponding provisionsof the four codification conventions concerning theappointment of diplomatic or consular staff other thanthe head of the mission or the head of the consular post.Those provisions are article 7 of the 1961 ViennaConvention on Diplomatic Relations, article 19,paragraph 1, of the 1963 Vienna Convention on ConsularRelations, article 8 of the 1969 Convention on SpecialMissions and article 9 of the 1975 Vienna Convention onthe Representation of States.

(2) The appointment of a diplomatic courier is an act ofthe competent authorities of the sending State or itsmission abroad directed at designating a person for theperformance of an official function, namely the custody,transportation and delivery of the diplomatic bag. Theappointment is an act in principle within the domesticjurisdiction of the sending State. Accordingly, the word"freely" is used in article 7. The requirements forappointment or special assignment, the procedure to befollowed in the issuance of the act, the designation of therelevant competent authorities and the form of act aretherefore governed by national laws and regulations andestablished practices.

(3) Nevertheless, the appointment of a diplomaticcourier by the sending State has certain internationalimplications affecting the receiving State or the transitState. There is a need for some international rules to strikea balance between the rights and interests of the sendingState and the rights and interests of the receiving or transitStates where the diplomatic courier is to exercise hisfunctions. That is the purpose of articles 9 and 12mentioned in article 7. The commentaries to those articleselaborate on ways of achieving the above-mentionedbalance.

(4) A professional and regular diplomatic courier is, as ageneral rule, appointed by an act of a competent organ ofthe Ministry of Foreign Affairs of the sending State; hethus becomes or may become a member of the permanentor temporary staff of that Ministry, with rights and dutiesderiving from his position as a civil servant. On the otherhand, a diplomatic courier ad hoc is not necessarily adiplomat or a member of the staff of the Ministry ofForeign Affairs. His functions may be performed by anyofficial of the sending State or any person freely chosen byits competent authorities. His designation is for a special


occasion and his legal relationship with the sending Stateis of a temporary nature. He may be appointed by theMinistry of Foreign Affairs of the sending State, but isvery often appointed by the latter's diplomatic missions,consular posts or delegations.

(5) The Commission was of the view that article 7 didnot exclude the practice whereby, in exceptional cases,two or more States could jointly appoint the same personas a diplomatic courier. The Commission also consideredthat the foregoing should be understood subject to theprovisions of articles 9 and 12, although the requirementof paragraph 1 of article 9 would be met if the courier hadthe nationality of at least one of the sending States.

Article 8. Documentation of the diplomatic courier

The diplomatic courier shall be provided with an officialdocument indicating his status and essential personal data,including his name and, where appropriate, his officialposition or rank, as well as the number of packagesconstituting the diplomatic bag which is accompanied byhim and their identification and destination.

Commentary

(1) The direct source of article 8 is to be found in thepertinent provisions on the diplomatic or consularcourier contained in the four codification conventions,namely article 27, paragraph 5, of the 1961 ViennaConvention on Diplomatic Relations, article 35,paragraph 5, of the 1963 Vienna Convention on ConsularRelations, article 28, paragraph 6, of the 1969Convention on Special Missions and article 57,paragraph 6, of the 1975 Vienna Convention on theRepresentation of States.

(2) The prevailing State practice, particularly during thepast two decades, has closely followed the patternestablished by the above-mentioned conventions ofproviding the courier with a special document indicatinghis status as such and his most essential personal data,such as his name and, where appropriate, his officialposition or rank, as well as the number of, and otherparticulars concerning, the packages constituting the bag,such as their serial numbers and destination. Whether thedocument is called "official document", "courier letter","certificate", "courier's certificate" or "specialcertificate", its legal nature and purpose remainessentially the same, namely as an official documentproving the status of the diplomatic courier. Thedocument is issued by the competent authorities of thesending State or its diplomatic or other official missionsabroad. The form of the document, its formal particularsand its denomination are entirely within the jurisdictionand discretion of the sending State in accordance with itslaws, regulations and established practices. However, itwould be advisable to attain a certain minimum degree ofcoherence and uniformity which may facilitate the safe,unimpeded and expeditious dispatch and delivery of thediplomatic bag through the establishment of generallyagreed rules and regulations.

(3) In its previous version, article 8 began as follows:"The diplomatic courier shall be provided, in addition tohis passport, with an official document . . .". The phrase"in addition to his passport" reflected the prevailingpractice of States to provide the diplomatic courier with apassport or normal travelling document in addition to adocument with proof of his status. In fact, many countriesprovide their professional or regular couriers even withdiplomatic passports or passports of official service. TheCommission felt that the phrase might create the wrongimpression that the possession of a passport wascompulsory, including in those cases—not infrequent—inwhich the laws and regulations of the receiving or transitState did not require one. If a passport is not required,then a visa is not required either on the special documentcertifying the status as diplomatic courier. The deletion ofthe phrase, however, does not release the diplomaticcourier from the obligation to present a valid passport ifthe laws and regulations of the receiving or transit State sorequire.

Article 9. Nationality of the diplomatic courier

1. The diplomatic courier should in principle be of thenationality of the sending State.

2. The diplomatic courier may not be appointed fromamong persons having the nationality of the receiving Stateexcept with the consent of that State, which may bewithdrawn at any time. However, when the diplomaticcourier is performing his functions in the territory of thereceiving State, withdrawal of consent shall not take effectuntil he has delivered the diplomatic bag to its consignee.

3. The receiving State may reserve the right provided forin paragraph 2 also with regard to:

(a) nationals of the sending State who are permanentresidents of the receiving State;

(b) nationals of a third State who are not also nationalsof the sending State.

Commentary

(1) Paragraphs 1,2 and 3 (b) of article 9 are modelled onarticle 8 of the 1961 Vienna Convention on DiplomaticRelations, article 22 of the 1963 Vienna Convention onConsular Relations, article 10 of the 1969 Convention onSpecial Missions and article 73 of the 1975 ViennaConvention on the Representation of States.

Paragraphs 1 and 2(2) The similar provisions contained in the above-mentioned codification conventions point to the long-standing consideration that, as a rule, members of thediplomatic staff, consular officers and otherrepresentatives should be nationals of the sending State,owing to the political importance and confidential natureof their diplomatic functions. The question of nationalitywith respect to all kinds of diplomatic officials has alwayshad great political and legal significance, and the sameconsiderations apply to the diplomatic courier. Thegeneral rule, therefore, is that diplomatic couriers shouldin principle be nationals of the sending State.


(3) Paragraph 1, in keeping with the terminology used inall four codification conventions, uses the word "should"instead of "shall". This is due to the fact that the principlein question may be subject to exceptions.

(4) Paragraph 2 provides that the consent of thereceiving State is required for the appointment of one ofits nationals as a diplomatic courier of the sending State.The text states that this consent may be withdrawn "atany time". The words "at any time" are not intended tolegitimize any arbitrary withdrawal of consent, or theinterruption or interference with the performance of amission already begun. The provision has to beinterpreted in the light of the fact that the diplomaticcourier performs his official functions in the territory ofthe receiving State and, for that purpose, is entitled toenjoy certain facilities, privileges and immunities whichare normally granted by States to foreign subjects and notto its own nationals. Furthermore, due account should betaken of the protection of the diplomatic bag entrusted tothe diplomatic courier and its safe delivery to its recipient.In the light of these considerations, the second sentence ofparagraph 2 states in express terms that withdrawal ofconsent, when the diplomatic courier is performing hisfunctions in the territory of the receiving State, shall nottake effect until the courier has delivered the diplomaticbag to its consignee.

Paragraph 3

(5) In accordance with paragraph 3, the receiving Statemay extend the legal regime established in paragraph 2concerning the need for consent and the possibility ofwithdrawal of consent at any time to two other categoriesof persons: (a) nationals of a third State who are not alsonationals of the sending State; (b) nationals of the sendingState who are permanent residents of the receiving State.The expression "permanent residents of the receivingState" is to be understood in the light of the internal lawof the receiving State, since the determination of thestatus of permanent resident is a matter of domestic lawrather than of international law.

(6) As explained in paragraph (5) of the commentary toarticle 7, the Commission was of the view that, in the casein which two or more States jointly appoint the sameperson as a diplomatic courier, the requirement ofparagraph 1 of article 9 would be met if the courier hadthe nationality of at least one of the sending States.

Article 10. Functions of the diplomatic courier

The functions of the diplomatic courier consist in takingcustody of the diplomatic bag entrusted to him andtransporting and delivering it to its consignee.

Commentary

(1) The existing codification conventions do not containadequate definitions regarding the scope and content ofthe official functions of the diplomatic courier, althoughthey may be inferred from certain provisions of those

conventions and remarks of the Commission on the draftarticles which formed the basis for those provisions. Itwas therefore necessary to devise an adequateformulation of those functions, which has beenattempted in article 10, as well as in paragraph 1 ofarticle 3.

(2) A careful definition of the scope and content of theofficial functions of the diplomatic courier is of greatimportance for distinguishing between activities inherentin the courier's status and necessary for the performanceof his task, and activities which may go beyond or abusehis functions. The latter case may prompt the receivingState to declare the courier persona non grata or notacceptable. Although, in accordance with article 12, sucha declaration is a discretionary right of the receivingState, the latter in its own interest does not usuallyexercise this right in an unwarranted or arbitrarymanner, since an adequate definition of the officialfunctions provides States with a reasonable criterion forthe exercise of this right.

(3) The main task of the diplomatic courier is the safedelivery of the diplomatic bag at its final destination. Tothat end, he is in charge of the custody and trans-portation of the accompanied bag from the moment hereceives it from the competent organ or mission of thesending State until he delivers it to the consigneeindicated in the official document and on the bag itself.The diplomatic bag, as a means of the freedom of officialcommunications, is the main subject of legal protection,for the legal status of the diplomatic bag derives from theprinciple of the inviolability of the official corres-pondence of the diplomatic mission. The facilities,privileges and immunities accorded to the diplomaticcourier are closely connected with his functions.

(4) Article 10 should be read in conjunction with thescope of the present articles as defined in article 1 andreferred to in paragraph 1 (2) of article 3, which definesthe diplomatic bag. In diplomatic practice, the senderand the consignee of the bag may be not only States andtheir diplomatic missions, but also consular posts,special missions and permanent missions or delegations.This arises clearly from the fact that all four co-dification conventions, dealing respectively withdiplomatic relations, consular relations, special missionsand the representation of States, contain provisions onthe diplomatic courier. Furthermore, there has been awidespread practice by States to use the services of onediplomatic courier to deliver and/or collect differentkinds of official bags from diplomatic missions, consularposts, special missions, etc. of the sending State situatedin several countries or in several cities of the receivingState on his way to or from an official assignment for thesending State. For reasons of economy of drafting, theCommission deleted from the original draft article thewords which tended to reflect those varieties of practice.However, this was done on the understanding that thedeletion in no way affected the two-way as well as theinter se character of the communications between thesending State and its missions, consular posts ordelegations by means of a diplomatic bag entrusted tothe diplomatic courier, as reflected in article 1 and thecommentary thereto.


(5) The courier is performing his functions even when heis not carrying a diplomatic bag but is proceeding to amission, consular post or delegation in order to takepossession of a bag, or is leaving a receiving State afterhaving delivered a bag without taking custody of anotherone.

Article 11. End of the functions of the diplomatic courier

The functions of the diplomatic courier come to an end,inter alia, upon:

(a) fulfilment of his functions or his return to the countryof origin;

(b) notification by the sending State to the receivingState and, where necessary, the transit State that hisfunctions have been terminated;

(c) notification by the receiving State to the sendingState that, in accordance with paragraph 2 of article 12, itceases to recognize him as a diplomatic courier.

Commentary

(1) Although none of the existing codification con-ventions contains any specific provision on the end of thefunctions of the diplomatic courier, the wording of article11 was inspired by several provisions contained in thoseconventions regarding the end of the functions of thediplomatic agent or the consular officer, namely article 43of the 1961 Vienna Convention on Diplomatic Relations,article 25 of the 1963 Vienna Convention on ConsularRelations, article 20 of the 1969 Convention on SpecialMissions and articles 40 and 69 of the 1975 ViennaConvention on the Representation of States.

(2) It is to be noted that, while a clear determination ofthe end of the courier's functions is useful for establishinggreater certainty with respect to his status at any specificmoment in time, the end of his privileges and immunitiesis regulated by a specific provision, namely article 21,paragraph 2, in accordance with criteria which areexplained in the commentary thereto. It is also to be notedthat, while article 11 enumerates the most frequent orconspicuous cases of the end of the courier's functions,the words "inter alia" in the introductory clause clearlyindicate, as further explained in paragraph (6) below, thatthe list is not exhaustive but indicative.

Subparagraph (a)(3) The end of the courier's functions may come aboutin the first place through his own personal actions. Themost frequent and usual fact having such an effect is thefulfilment of his mission by completion of his itinerary. Inthe case of the regular or professional courier, this factwould be marked by the return of the courier to thecountry of origin. The words "country of origin" shouldbe interpreted as referring to the country from which thecourier started his mission. In the case of the diplomaticcourier ad hoc who is a resident of the receiving State, hismission ends upon the delivery of the diplomatic bagentrusted to him. Subparagraph (a) also contemplates thepossibility that the functions of the courier may endwithout having been fulfilled, because of an urgent and

unforeseen return to the country of origin. This may becaused, inter alia, by natural events, such as earthquakesor floods, which prevent the courier from reaching theconsignee, or by a decision of the sending State not todeliver a bag which is already on its way.

Subparagraph (b)

(4) The end of the courier's functions may also comeabout through acts of the sending State. Subparagraph(b) is directly modelled on article 43, subparagraph (a),of the 1961 Vienna Convention on Diplomatic Relations.Although the acts of the competent authorities of thesending State which could bring about the termination ofthe courier's functions may vary in their substance ormotivation and may take the form of recall, dismissal,etc., vis-a-vis the receiving State they should be expressedby a notification to the courier service or relevant unit ofthe Ministry of Foreign Affairs of the receiving State or,where necessary, of the transit State.

Subparagraph (c)

(5) The end of the courier's functions may also comeabout through an act of the receiving State. Sub-paragraph (c) is directly modelled on article 43, sub-paragraph (b), of the 1961 Vienna Convention onDiplomatic Relations. The act of the receiving State is anotification to the effect that the diplomatic courier iseither persona non grata or not acceptable, as explainedin more detail in the commentary to article 12. If thesending State does not recall the courier or terminate hisfunctions, the receiving State may refuse to recognizehim as a courier with effect from the time of notificationto the sending State.

(6) As evidenced by the words "inter alia" in itsintroductory clause, article 11 does not purport topresent an exhaustive rehearsal of all the possible reasonsleading to the end of the courier's functions. The end ofthe courier's functions may also come about throughother events or facts, such as his death during the per-formance of his functions. It must be pointed out that, insuch a case, in spite of the termination of the courier'sfunctions, the protection of the diplomatic bag must stillbe secured by the receiving or transit State, as explainedin more detail in the commentary to article 30.

Article 12. The diplomatic courier declaredpersona non grata or not acceptable

1. The receiving State may, at any time and withouthaving to explain its decision, notify the sending State thatthe diplomatic courier is persona non grata or notacceptable. In any such case, the sending State shall, asappropriate, either recall the diplomatic courier orterminate his functions to be performed in the receivingState. A person may be declared non grata or notacceptable before arriving in the territory of the receivingState.

2. If the sending State refuses or fails within a reason-able period to carry out its obligations under paragraph 1,the receiving State may cease to recognize the personconcerned as a diplomatic courier.


Commentary

Paragraph 1(1) Paragraph 1 of article 12 extends to the legal regimeof the diplomatic courier the institution of the declarationof persona non grata. This right of the receiving Stateestablished by international customary law has beenreiterated in various provisions of the codification con-ventions, namely article 9 of the 1961 Vienna Conventionon Diplomatic Relations, article 23 of the 1963 ViennaConvention on Consular Relations and article 12 of the1969 Convention on Special Missions.(2) This institution, in principle, constitutes one form oftermination of the diplomatic courier's functions andrepresents an effective means at the disposal of thereceiving State to protect its interests by terminating thefunctions of a foreign official in its territory. But it mayalso serve the purpose of preventing a foreign officialobjectionable to the receiving State from effectivelyassuming his functions. Since the diplomatic courier is nota head of mission, the institution of agrement prior to hisappointment does not apply. As explained in thecommentary to article 7, the courier is in principle freelychosen by the sending State and therefore his name is notsubmitted in advance to the receiving State for approval.But if the receiving State, before the courier's arrival in itsterritory, finds that it has objections to him, it may, asin the case of a head of mission who has not beenapproved, inform the sending State that he is persona nongrata or not acceptable, with the same effect as in the caseof the head of mission. This might happen, for instance, ifthe sending State deemed it suitable to notify the receivingState of the appointment of the courier, or in the event ofan application for an entry visa if such a visa wererequired by the receiving State. This is why theCommission considered it advisable to add to the text ofparagraph 1 as originally submitted by the SpecialRapporteur a third sentence stating: "A person may bedeclared non grata or not acceptable before arriving in theterritory of the receiving State." This sentence is to befound in the parallel provisions of the codificationconventions mentioned in paragraph (1) of the presentcommentary.(3) In accordance with the terminology used in article 9of the 1961 Vienna Convention on Diplomatic Relations,article 12 speaks of a declaration of "persona non grata ornot acceptable", depending on whether the diplomaticcourier objectionable to the receiving State possessesdiplomatic rank (persona non grata) or not (notacceptable).(4) Whether the decision of the receiving State todeclare a diplomatic courier persona non grata or notacceptable takes place before he enters its territory orafter his entry during his stay there, in both cases thesolution arising from article 12 is that the receiving Stateis not obliged to explain or justify its decision, unless itdecides otherwise. This discretion is not only anexpression of the sovereignty of the receiving State but, inmany instances, is justified by political or securityinterests or other considerations.(5) As provided in paragraph 1, the declaration by thereceiving State that a diplomatic courier is persona nongrata or not acceptable should lead the sending State torecall its courier. The possibility also exists that the

courier cannot be recalled because he is a national of thereceiving State, as contemplated in paragraph 2 of article9. That is why paragraph 1 of article 12 provides thealternative that the sending State shall "terminate hisfunctions to be performed in the receiving State". Thelatter clause also covers the case in which the courier isnot yet in the territory of the receiving State but in transittowards it. The clause also conveys the notion that thetermination of functions relates to those to be performedin the specific receiving State which has declared thecourier persona non grata or not acceptable and does notrelate to those functions that a courier with multiplemissions may perform in another receiving State.

Paragraph 2

(6) Paragraph 2 is based on comparable provisionscontained in the corresponding articles of thecodification conventions cited in paragraph (1) of thepresent commentary. Paragraph 2 should be read in con-junction with article 11 (c) and article 21, paragraph 2,and the commentaries thereto. The commentary toparagraph 2 of article 21 explains in greater detail theinterrelationship between paragraph 2 of article 12 andthe above-mentioned provisions. Paragraph 2 of article12 refers to the refusal or failure of the sending State tocarry out its obligations under paragraph 1. It istherefore concerned with the termination of thefunctions of the courier. It is only after the sending Statehas failed to comply with its obligation to recall thecourier or terminate his functions that the receiving Statemay cease to recognize the person concerned as adiplomatic courier and treat him as an ordinary foreignvisitor or temporary resident. The second part of the firstsentence of paragraph 2 of article 21 refers to thecessation of the courier's privileges and immunities whenhe has not left the territory of the receiving State within areasonable period.

Article 13. Facilities accorded to thediplomatic courier

1. The receiving State or the transit State shall accordto the diplomatic courier the facilities necessary for the per-formance of his functions.

2. The receiving State or the transit State shall, uponrequest and to the extent practicable, assist the diplomaticcourier in obtaining temporary accommodation and inestablishing contact through the telecommunicationsnetwork with the sending State and its missions, consularposts or delegations, wherever situated.

Commentary

(1) Article 13 deals with the general facilities to beaccorded to the diplomatic courier in the exercise of hisfunctions relating to the freedom of communication aswell as with some other more specific facilities connectedwith his temporary accommodation and the estab-lishment of any contacts with the sending State and itsmissions.


Paragraph 1(2) Paragraph 1 is of a general character and is inspiredby article 25 of the 1961 Vienna Convention on DiplomaticRelations, article 28 of the 1963 Vienna Convention onConsular Relations, article 22 of the 1969 Convention onSpecial Missions and articles 20 and 51 of the 1975 ViennaConvention on the Representation of States.(3) The diplomatic courier, as an official of the sendingState, may, while exercising his functions in the territoryof the receiving State or transit State, need someassistance in connection with his journey. The facilitieswhich he may need could include various means of help orco-operation from the authorities of the receiving State ortransit State in order for him to perform his dutiesexpeditiously and without undue difficulties. Some ofthese facilities could be anticipated well in advance, due totheir essential and repetitive character, while others mightbe unpredictable in nature, so that their explicitformulation in an article is neither easy nor convenient.The main requirement with respect to the nature andscope of the facilities is their close dependence upon thecourier's need to be able to perform his functionsproperly. The facilities could be granted by the central orthe local authorities, as the case may be. They may be of atechnical or administrative nature, relating to admissionor entry into the territory of the transit State or thereceiving State, or to the provision of assistance insecuring the safety of the diplomatic bag. As theCommission stated in paragraph (2) of the commentaryto the corresponding provision (art. 33) of its 1961 draftarticles on consular relations:

It is difficult to define the facilities which this article has in view, forthis depends on the circumstances of each particular case. It should,however, be emphasized that the obligation to provide facilities isconfined to what is reasonable, having regard to the given circum-stances.58

It should be added that the nature and scope of thefacilities accorded to the diplomatic courier for theperformance of his functions constitute a substantialaspect of his legal status and they must be regarded as animportant legal means for the protection of the freedomof communication between the sending State and itsmissions, consular posts and delegations.

Paragraph 2(4) Paragraph 2 deals with two specific facilities to begranted to the courier by the receiving State or the transitState. Its subject-matter was the object of two separatedraft articles submitted by the Special Rapporteur,namely draft article 18, on freedom of communication,and draft article 19, on temporary accommodation. TheCommission felt that reasons of logic as well as ofeconomy of drafting made it advisable to combine bothprovisions into a single one as a second paragraph ofarticle 13.(5) Within the scope of the practical facilities which maybe accorded by the receiving State or the transit State tothe diplomatic courier for the performance of hisfunctions in their territories, paragraph 2 refersspecifically to the assistance to be rendered to him inobtaining temporary accommodation when requested

58 Yearbook . . . 1961, vol. II, p. I l l , document A/4843, chap. II,sect. IV.

under certain circumstances. Normally, the diplomaticcourier has to resolve himself all the practical problemsthat may arise during his journey, including his accom-modation. However, in certain special situations thediplomatic courier may not be able to find suitabletemporary accommodation for himself and for theprotection of the diplomatic bag, for example when he iscompelled either to change his original itinerary or to stopover in a certain place. In that exceptional case, thereceiving State or the transit State may be requested toassist him in obtaining such temporary accommodation.It is of great importance that the diplomatic courier andthe diplomatic bag carried by him be housed in a safe andsecure place, hence this provision providing for facilitiesto be rendered by the receiving State or the transit Statefor the proper performance of his functions. The words"to the extent practicable" used in paragraph 2 point tothe fact that the obligation to provide this facility is to beunderstood within reasonable limits, the obligation beingone of providing the means rather than ensuring theresult. The Commission felt that, while the internalorganization of some States might be such that anintervention from a State organ could ensure the easyavailability of a hotel room or other accommodation, thiswas not necessarily so in other States. In the latter case,the obligation to assist couriers in obtaining temporaryaccommodation might prove on certain occasions orunder certain circumstances to be a particularlyburdensome one and therefore had to be kept withinreasonable bounds.

(6) The other facility expressly mentioned in paragraph2 is the obligation for the receiving State or the transitState, as the case may be, to assist the courier at hisrequest and to the extent practicable in establishingcontact through the telecommunications network withthe sending State and its missions, consular posts ordelegations, wherever situated. The diplomatic courier enroute or at a certain point on his temporary stopovermight need to communicate directly with the competentauthorities of the sending State or its missions abroad toseek instructions or inform them about delays ordeviations from the original way-bill, or to convey anyother information in connection with the performance ofhis functions. This assistance by the receiving State ortransit State entails the facilitation, when necessary, of thecourier's use of the appropriate means of tele-communication, including telephone, telegraph, telex andother available services. Assistance should in principlenot be requested from the receiving or transit State innormal circumstances, when the means of com-munication are generally accessible. The request forassistance must be justified on the grounds of existingdifficulties or obstacles which the courier could notovercome without the direct help or co-operation of theauthorities of the receiving State or transit State. In thisconnection, a possible implementation of the obligationof assistance might be the ensuring of a priority call forthe diplomatic courier over the public telecommuni-cations network or, in urgent cases, the placing of othertelecommunications networks (such as the police network,etc.) at the courier's disposal. It should also be noted thatthe qualification introduced by the words "to the extentpracticable", as explained in paragraph (5) of the presentcommentary, also applies to this obligation of assistance.


Article 14. Entry into the territory of thereceiving State or the transit State

1. The receiving State or the transit State shall permitthe diplomatic courier to enter its territory in the per-formance of his functions.

2. Visas, where required, shall be granted by thereceiving State or the transit State to the diplomaticcourier as promptly as possible.

Commentary

(1) Article 14 is basically modelled on article 79 of the1975 Vienna Convention on the Representation ofStates.

Paragraph 1(2) The admission of the diplomatic courier into theterritory of the receiving State or his crossing theterritory of the transit State is an indispensable conditionfor him to perform his functions. It is obvious that, if adiplomatic courier is refused entry into the territory ofthe receiving State, then he is prevented from performinghis functions. For this reason, the obligation of States topermit the entry into their territory of diplomaticcouriers has become well established in international lawand State practice as an essential element of the principleof freedom of communication for official purposeseffected through diplomatic couriers and diplomatic bagsand as a corollary of the freely appointed character of thecourier, as stated in article 7 and the commentarythereto, particularly its paragraph (2). The phrase "in theperformance of his functions" should be interpreted asmeaning "in the course of the performance of hisfunctions", which includes entry into the territory of thereceiving or transit State in order to pick up a bag forlater delivery.

Paragraph 2(3) The facilities for entry into the territory of thereceiving State or the transit State rendered by thoseStates to the diplomatic courier depend very much on theregime established by them for admission across theirfrontiers of foreigners in general, and members of foreigndiplomatic and other missions and official delegations inparticular. The main purpose of those facilities is toensure unimpeded and expeditious passage through theimmigration and other checking offices at the frontier.Where the regime for admission requires an entry ortransit visa for all foreign visitors or for nationals ofsome countries, it should be granted to the diplomaticcourier by the competent authorities of the receiving ortransit State as promptly as possible and, where possible,with reduced formalities. There has been abundant Statepractice—established through national regulations andinternational agreements—on simplified procedures forthe issuance of special visas to diplomatic couriers validfor multiple journeys and long periods of time

Article 15. Freedom of movement

Subject to its laws and regulations concerning zonesentry into which is prohibited or regulated for reasons of

national security, the receiving State or the transit Stateshall ensure to the diplomatic courier such freedom ofmovement and travel in its territory as is necessary for theperformance of his functions.

Commentary

(1) The direct source of article 15 is to be found in thepertinent provisions of the four codification conventions,namely article 26 of the 1961 Vienna Convention on Diplo-matic Relations, article 34 of the 1963 Vienna Conventionon Consular Relations, article 27 of the 1969 Conventionon Special Missions and articles 26 and 56 of the 1975Vienna Convention on the Representation of States.(2) Freedom of movement and travel within theterritory of the receiving or transit State is anotheressential condition for the proper performance of thefunctions of the diplomatic courier. It also constitutes animportant element of the general principle of freedom ofdiplomatic communication. Any impediment to theexercise of free movement and travel of the courier in theperformance of his functions inevitably leads toretardation of the delivery of the diplomatic corres-pondence and thus adversely affects official com-munications. To ensure this freedom of movement andtravel, the authorities of the receiving or transit Stateshould, save in exceptional circumstances, assist thediplomatic courier in overcoming possible difficulties andobstacles which could be caused by routine police,customs or other inspection or control during his travel.As a rule, the diplomatic courier has to make all thenecessary travel arrangements for his entire journey in theexercise of his tasks. In exceptional circumstances, thecourier may be compelled to address a request forassistance to the authorities of the receiving or transitState to obtain an appropriate means of transportationwhen he has to face insurmountable obstacles which maydelay his journey and which could be overcome, to theextent practicable, with the help or co-operation of thelocal authorities.

(3) Freedom of movement and travel entails the right ofthe diplomatic courier to use all available means oftransportation and any appropriate itinerary in theterritory of the receiving State or transit State. However,having in mind the fact that the freedom of movement andtravel of the diplomatic courier is subordinated to hisfunction of carrying the diplomatic bag, it should beassumed that he has to follow the most appropriateitinerary, which usually should be the most convenientjourney for the safe, speedy and economical delivery ofthe bag to its destination. It was to emphasize thisfunctional approach of article 15 that the Commissionreplaced the original formulation submitted by theSpecial Rapporteur, "shall ensure freedom of movementin their respective territories to the diplomatic courier inthe performance of his official functions", by the moreprecise wording, "shall ensure to the diplomatic couriersuch freedom of movement and travel in its territory as isnecessary for the performance of his functions", whichreproduces the formulation of the correspondingprovision of the 1969 Convention on Special Missions(art. 27). As for the interpretation of this phrase, theobligation of the receiving State or the transit State, as it


arises from article 15, with regard to the freedom ofmovement and travel ensured to the diplomatic courier isconfined to his journey or movement relating to theperformance of his functions. In all other instances, thecourier would enjoy the normal freedoms accorded toforeign visitors by the laws and regulations of thereceiving or transit State.

(4) Furthermore, certain limitations could beestablished on the courier's freedom of movement andtravel with regaiU to certain zones in the receiving Stateor transit State into which entry is prohibited orregulated for reasons of national security. Such arestriction on freedom of movement and travel has beengenerally acknowledged by international law and Statepractice with regard to foreign nationals, includingmembers of diplomatic and other missions, and isexplicitly recognized in the provisions of the existingcodification conventions cited in paragraph (1) of thepresent commentary. It was precisely for the sake ofmaintaining uniformity with the texts of those provisionsthat the Commission introduced certain amendments tothe original formulation submitted by the SpecialRapporteur. The phrase "zones where access isprohibited or regulated for reasons of national security"was replaced by "zones entry into which is prohibited orregulated for reasons of national security". It was feltthat the Commission should keep to that formula, if onlyto avoid possible misinterpretations. By the same token,the phrase at the end of the original draft article, "orwhen returning to the sending State", was deleted. In theview of the Commission, that phrase added nothing tothe meaning of the article and could lead to misguidedinterpretations of the conventions which contained nocorresponding phrase. On the other hand, the pointshould also be made, in accordance with the commentaryto the corresponding provision (art. 24) of the Com-mission's 1958 draft articles on diplomatic intercourseand immunities,59 that the establishment of prohibitedzones must not be so extensive as to render freedom ofmovement and travel illusory.

Article 16. Personal protection and inviolability

The diplomatic courier shall be protected by thereceiving State or the transit State in the performance ofhis functions. He shall enjoy personal inviolability andshall not be liable to any form of arrest or detention.

Commentary

(1) The direct source of article 16, as regardsobligations of both the receiving State and the transitState, is to be found in the following provisions of thecodification conventions, which deal with the personalinviolability of the courier: article 27, paragraph 5, andarticle 40, paragraph 3, of the 1961 Vienna Conventionon Diplomatic Relations; article 35, paragraph 5, andarticle 54, paragraph 3, of the 1963 Vienna Conventionon Consular Relations; article 28, paragraph 6, andarticle 42, paragraph 3, of the 1969 Convention on

Special Missions; and article 27, paragraph 5, article 57,paragraph 6, and article 81, paragraph 4, of the 1975Vienna Convention on the Representation of States.

(2) A comparison between the above-mentionedprovisions on which article 16 is based and the provisionon personal inviolability of the diplomatic agent inarticle 29 of the 1961 Vienna Convention on DiplomaticRelations leads to the conclusion that the personalinviolability of the diplomatic courier comes very close inits scope and legal implications to that of a diplomaticagent. This is justified by the nature of the courier'sfunction with regard to the custody, transportation anddelivery of the diplomatic bag and the legal protection ofthe confidential character of official correspondence.This inviolability of the courier arises not only from theprovisions of the codification conventions cited above,but also from numerous other manifestations of Statepractice, such as bilateral consular conventions andprovisions of national legislation.

(3) The principle of the inviolability of the courier has atwofold nature. On the one hand, it implies for thereceiving State and the transit State obligations of apreponderantly negative nature, where the duties ofabstention predominate. Thus the courier shall not beliable to arrest, detention or any other form of restrictionon his person and is exempted from measures that wouldamount to direct coercion. The other aspect of thetwofold nature of the courier's personal inviolabilityentails a positive obligation on the part of the receivingand transit States. The concept of protection embodiedin article 16 includes the duty of the receiving and transitStates to take all appropriate measures to prevent anyinfringement of the courier's person, freedom or dignity.The receiving State and the transit State have theobligation to respect and to ensure respect for the personof the diplomatic courier. They must take all reasonablesteps to that end.

(4) Notwithstanding the broad character of the duty ofprotection and respect for the inviolability of thediplomatic courier, some qualifications are in order. Asprovided in article 16, the courier shall be protected bythe receiving State or the transit State "in the per-formance of his functions". Furthermore, and inaccordance with paragraph (1) of the commentary toarticle 27 of the Commission's 1958 draft articles ondiplomatic intercourse and immunities60 (which servedas the basis for article 29 of the 1961 Vienna Conventionon Diplomatic Relations, dealing with the personalinviolability of the diplomatic agent), it should beunderstood that the principle of the courier'sinviolability does not exclude in respect of him eithermeasures of self-defence or, in exceptional cir-cumstances, measures to prevent him from committingcrimes or offences.

Article 17. Inviolability of temporary accommodation

1. The temporary accommodation of the diplomaticcourier carrying a diplomatic bag shall, in principle, beinviolable. However:

59 Yearbook . . . 1958, vol. II, p. 96, document A/3859, chap. Ill,sect. II. Ibid., p. 97.


(a) prompt protective action may be taken if requiredin case of fire or other disaster;

(b) inspection or search may be undertaken whereserious grounds exist for believing that there are in thetemporary accommodation articles the possession, importor export of which is prohibited by the law or controlled bythe quarantine regulations of the receiving State or thetransit State.

2. In the case referred to in paragraph 1 (a), measuresnecessary for the protection of the diplomatic bag and itsinviolability shall be taken.

3. In the case referred to in paragraph 1 (6), inspectionor search shall be conducted in the presence of the diplomaticcourier and on condition that it be effected withoutinfringing the inviolability either of the person of thediplomatic courier or of the diplomatic bag and would notunduly delay or impede the delivery of the diplomatic bag.The diplomatic courier shall be given the opportunity tocommunicate with his mission in order to invite a member ofthat mission to be present when the inspection or searchtakes place.

4. The diplomatic courier shall, to the extent practicable,inform the authorities of the receiving State or the transitState of the location of his temporary accommodation.

Commentary

(1) There are no specific rules regarding the inviolabilityof the temporary accommodation of the diplomaticcourier in any of the four codification conventions or inother international agreements in the field of diplomaticor consular law. However, there exist in those con-ventions provisions relating to the status of the privateresidence of a member of a diplomatic mission, and of theprivate accommodation of members of special missions,permanent missions to international organizations ormembers of delegations to international conferences.Those provisions are article 30 of the 1961 ViennaConvention on Diplomatic Relations, article 30 of the1969 Convention on Special Missions and articles 29 and59 of the 1975 Vienna Convention on the Representationof States.(2) Couriers are often housed in the premises of themission, in private apartments owned or used by themission or in the private accommodation of a member ofthe mission. In such instances, the inviolability of thetemporary accommodation of the diplomatic courier willbe protected under the relevant provisions of the above-mentioned conventions or customary international law.When the courier's temporary accommodation happensto be in a hotel, motel, guest house, private apartment orother similar common facilities for lodging visitors on atemporary stay, special rules on the inviolability of thetemporary accommodation of the diplomatic courierapply.

Paragraph 1(3) Paragraph 1 lays down the general principle of theinviolability of the temporary accommodation of adiplomatic courier carrying with him a diplomatic bag aswell as the two specific cases in which this inviolabilitymay be limited. These exceptions are aimed at striking a

realistic and workable balance between respect for theinviolability of the temporary accommodation of thediplomatic courier carrying with him a diplomatic bagand the need of the receiving State or transit State to takeprompt protective action in emergency situations such asa fire or disaster which threatens the temporary accom-modation of the courier, as well as to dispel or confirm thesuspicion that the bag is being used for introducingforbidden articles.(4) From the point of view of the receiving State and thetransit State, the inviolability of the courier's temporaryaccommodation provided for in the first sentence ofparagraph 1 has two aspects. In the negative sense, theyare obliged to prevent their agents from entering thepremises for any official purpose whatsoever, except withthe consent of the courier. This covers immunity from anysearch, requisition, attachment or execution andtherefore the accommodation may not be entered even inpursuance of a judicial order. Of course, measures ofexecution could be taken against the private owner of theaccommodation, provided that it is not necessary to enterthe temporary accommodation. The inviolability of thecourier's temporary accommodation also implies for thereceiving and transit States a more positive obligation.They should secure the inviolability of the accom-modation from any intrusion by unauthorized persons.Moreover, the official functions of the courier, and moreparticularly the protection of the diplomatic bag carriedby him, might in exceptional circumstances warrant theundertaking of special measures of protection.(5) Subparagraphs (a) and (b) of paragraph 1 tend toestablish a balance between the interest of the sendingState in protecting the courier and the bag and the interestof the receiving or transit State in protecting its safety andsecurity. They create some limitations under certainconditions to the rule of inviolability of the temporaryaccommodation. Both subparagraphs should be read inconjunction with their respective counterparts, namelyparagraphs 2 and 3, as each subparagraph establishing apossible exception to the principle of inviolability of thetemporary accommodation is counterbalanced by aparagraph laying down the strict modalities or conditionsunder which such an exception may apply. Furthermore,the fact that paragraph 1 refers to a courier "carrying adiplomatic bag" is an explicit indication that the purposeof the inviolability of the temporary accommodation isnot so much the protection of the courier as, first andforemost, the protection of the bag.

Paragraph 1 (a) and paragraph 2(6) The language used in subparagraph (a) of paragraph1, stating that prompt protective action may be taken ifrequired in case of fire or other disaster, can be traced toarticle 31 of the 1963 Vienna Convention on ConsularRelations and also, to some extent, to article 25 of the1969 Convention on Special Missions. Such action asmay be taken should obviously be directed only at thesuppression of the disaster—which may constitute apublic hazard jeopardizing public safety or the safety ofthe courier himself and the bag—and should stop short ofany measure which would exceed this original purpose.The exception laid down in subparagraph (a) concernsonly the inviolability of the temporary accommodation assuch and does not affect the inviolability of the diplomatic


bag, which should be protected at all times. That is whyparagraph 2 makes it clear that the prompt protectiveaction taken if required in case of fire or other disastershould be accompanied by measures necessary for theprotection of the diplomatic bag and its inviolability.

Paragraph 1 (b) and paragraph 3

(7) Subparagraph (b) of paragraph 1 provides for thepossibility that the temporary accommodation of thecourier may be inspected and searched when there existserious grounds for believing that it contains articles thepossession, import or export of which is prohibited by thelaw or controlled by the quarantine regulations of thereceiving State or the transit State. The provision istherefore aimed at ensuring observance of the laws andregulations of the receiving or transit State and respect fortheir legitimate interests. Paragraph 3, however, counter-balances the above-mentioned provision by requiringthat such an inspection or search be conducted in thepresence of the diplomatic courier and on condition thatit be effected without infringing the inviolability either ofthe person of the diplomatic courier or of the diplomaticbag and without unduly delaying or impeding the deliveryof the diplomatic bag.

(8) The second sentence of paragraph 3 provides thatthe diplomatic courier shall be given the opportunity tocommunicate with his mission in order to invite a memberof that mission to be present when the inspection orsearch takes place. The rationale behind this provision isthat, under normal circumstances, the hypothesis con-templated in paragraph 1 (b) does not constitute anemergency requiring prompt action and there may besituations in which the presence of a member of themission may be useful and helpful to the courier, forexample if the courier is not fluent in the language of thereceiving or transit State. However, it should be notedthat the provision does not make the presence of amember of the mission a condition for carrying out theinspection or search. While in many cases it will bepossible to wait for him to be present, in other cases (forexample if the presence of explosives in the temporaryaccommodation is suspected) such a delay might provecontradictory to the main purpose of paragraph 1 (b),namely to ensure compliance with the safety regulationsof the receiving or transit State.

Paragraph 4

(9) Compliance by the receiving State and the transitState with the obligations deriving from the first sentenceof paragraph 1 has to be facilitated by the courier'sinforming the States concerned of the location of histemporary accommodation. Paragraph 4 is thereforemainly aimed at facilitating the discharge by theauthorities of the receiving and transit States of theirobligations in implementing the inviolability of thecourier's temporary accommodation. The Commissionfelt that, in the case of a violation of those obligations, theinternational responsibility of the States concerned mightnot exist if the requirement of paragraph 4 had not beenmet. The words "to the extent practicable" point to thefact that, in exceptional circumstances, the courier mightbe prevented from giving such information.

(10) In cases where a courier employs an individualmeans of transport of his own in the exercise of hisfunctions, a question could arise as to the application of aspecial rule concerning the inviolability of that means oftransport. The Commission, while of the view that nospecial provision was necessary, felt that the commentaryto article 17 should reflect the notion that, whenever thediplomatic courier uses a means of transport in theperformance of his functions, that means of transportshould not be subject to measures which might impede ordelay such performance, particularly the delivery of thebag. Paragraph (7) of the commentary to article 18contains further explanations relevant to this question.

Article 18. Immunity from jurisdiction

1. The diplomatic courier shall enjoy immunity fromthe criminal jurisdiction of the receiving State or the transitState in respect of acts performed in the exercise of hisfunctions.

2. He shall also enjoy immunity from the civil andadministrative jurisdiction of the receiving State or thetransit State in respect of acts performed in the exercise ofhis functions. This immunity shall not extend to an actionfor damages arising from an accident involving a vehicle theuse of which may have entailed the liability of the courier tothe extent that those damages are not recoverable frominsurance. Pursuant to the laws and regulations of thereceiving State or the transit State, the courier shall, whendriving a motor vehicle, be required to have insurancecoverage against third-party risks.

3. No measures of execution may be taken in respect ofthe diplomatic courier, except in cases where he does notenjoy immunity under paragraph 2 and provided that themeasures concerned can be taken without infringing theinviolability of his person, his temporary accommodation orthe diplomatic bag entrusted to him.

4. The diplomatic courier is not obliged to give evidenceas a witness on matters connected with the exercise of hisfunctions. He may, however, be required to give evidence onother matters, provided that this would not unduly delay orimpede the delivery of the diplomatic bag.

5. The immunity of the diplomatic courier from thejurisdiction of the receiving State or the transit State doesnot exempt him from the jurisdiction of the sending State.

Commentary

(1) The sources for article 18 are the followingprovisions of the codification conventions: article 31 andarticle 37, paragraph 2, of the 1961 Vienna Convention onDiplomatic Relations; articles 31 and 36 of the 1969Convention on Special Missions; and article 30, article36, paragraph 2, and article 60 of the 1975 ViennaConvention on the Representation of States.

Paragraph 1(2) Paragraph 1, which refers to the immunity fromcriminal jurisdiction of the diplomatic courier, representsa compromise solution between two distinct bodies ofopinion in the Commission: the opinion that the granting


of absolute immunity from criminal jurisdiction to thecourier was essential and entirely justified because of hisposition and his functions, and the opinion that suchgranting of immunity was superfluous and functionallyunnecessary. The article therefore differs from the textinitially submitted by the Special Rapporteur in that thegranting of immunity from criminal jurisdiction isqualified by the phrase "in respect of acts performed inthe exercise of his functions", the same phrase as thatadopted in paragraph 2 for immunity from civil andadministrative jurisdiction.

(3) As indicated in paragraph (2) above, views in theCommission were divided on the need for a special provi-sion on immunity from criminal jurisdiction and thescope of such immunity.

(4) On the one hand, reservations were expressedconcerning paragraph 1 on the ground that article 16, onthe inviolability of the diplomatic courier, already pro-vided the courier with all the protection he needed toperform his functions. On the other hand, reservationswere expressed as to the addition of the words "in respectof acts performed in the exercise of his functions", on theground that the granting of immunity from criminaljurisdiction to the diplomatic courier should beunqualified. The addition of that phrase might createdifficulties of interpretation.

(5) The addition of the phrase "in respect of actsperformed in the exercise of his functions" is intended tomake it clear that the immunity from criminal jurisdictionwould not apply to any act performed by the courier notdirectly related to the performance of his functions. Actsnot covered by immunity from criminal jurisdictionwould range from the most obvious offences, such as theftor murder, to cases of serious abuse of the diplomatic bag,for example the act of intentionally carrying articlesprohibited under article 25, such as weapons for terroristsor narcotic drugs. It was pointed out in that connectionthat paragraph 1 should be interpreted in the light of andin conjunction with the following: article 5, on the duty torespect the laws and regulations of the receiving State andthe transit State; article 10, on the functions of thediplomatic courier, which consist in taking custody of,transporting and delivering the bag; article 12, on thediplomatic courier declared persona non grata or notacceptable; and article 25, on the contents of thediplomatic bag. Further observations on the inter-pretation and practical application of the phrase "inrespect of acts performed in the exercise of his functions"are contained in paragraphs (6) to (11) of the presentcommentary.

Paragraph 2

(6) The first sentence of paragraph 2 is modelled on thesecond part of paragraph 1 of article 60 of the 1975Vienna Convention on the Representation of States.Although the four codification conventions adopt afunctional approach in respect of immunity from the civiland administrative jurisdiction of the receiving or transitState, most of them do so by enumerating exceptions tothe principle of immunity, the underlying rationale beingthat those exceptions constitute clear cases of actsperformed outside the functions of the person enjoyingthe immunity concerned, for example an action relating

to any professional or commercial activity exercised bythe person in question in his personal capacity. Paragraph2, like article 43 of the 1963 Vienna Convention onConsular Relations and article 60, paragraph 1, of the1975 Vienna Convention on the Representation of States,reflects the functional approach to immunity from civiland administrative jurisdiction in a non-specific mannerby means of a general formula, namely "in respect of actsperformed in the exercise of his functions". This is also theapproach taken by the codification conventionsmentioned in paragraph (1) of the present commentarywith regard to members of the administrative andtechnical staff of the mission concerned, which stipulatethat such immunity "shall not extend to acts performedoutside the course of their duties".

(7) The next question, as in the case of paragraph 1, isthe determination of the legal nature and scope of an act"performed in the exercise of his functions" as distinctfrom the private activity of the person concerned. Thefunctional approach in this case presupposes that theimmunity is recognized in fact by the sending State and istherefore limited to the acts performed by the courier asan authorized official fulfilling a mission for the sendingState. The character of such acts could be determined bymultilateral or bilateral treaties or conventions, bycustomary international law or by the internal laws andregulations of States. Clear examples of acts outside theperformance of his functions are those enumerated in theprovisions of the codification conventions, such as article31 of the 1961 Vienna Convention on DiplomaticRelations. However, there could be other acts performedby the person enjoying immunity from local civiljurisdiction, such as contracts concluded by him whichwere not expressly or implicity concluded in his capacityas an authorized official performing a mission for thesending State. This may be the case in respect of therenting of a hotel room, the renting of a car, the use ofservices for cartage and storage or the conclusion of alease or purchase contract by a diplomatic courier duringhis journey. The obligation to settle a hotel bill orpurchases made by and services rendered to thediplomatic courier, although arising during and even inconnection with the exercise of his official functions, is notexempt from the application of local laws andregulations. The main reason for such a conclusion isthat, in all these instances, purchases are made by andservices of a general commercial nature are rendered tothe person concerned which have to be paid for by anyonebenefiting from them. The same rule applies to chargeslevied for specific services rendered, as provided for inarticle 34 (<?) of the 1961 Vienna Convention and thecorresponding articles in the other codification con-ventions. Consequently, acts relating to such purchases orservices cannot be considered per se to be acts performedin the exercise of the official functions of the courier andtherefore covered by the immunity from local civil andadministrative jurisdiction.

(8) As regards the interpretation of the words "actsperformed in the exercise of his functions" within thecontext of the administrative jurisdiction of the receivingState or the transit State, it was widely held, in the firstplace, that the concept itself of "administrativejurisdiction" depended largely on the internal law of the


receiving or transit State and that it certainly coveredadministrative tribunals. Furthermore, the same actmight or might not be subject to the administrativejurisdiction of the receiving or transit State depending onthe context in which it had been performed. Illegalparking could certainly lead to fines and even withdrawalof the driving licence if such an act had been performedwhile the courier was en route to a private party. Theevaluation of the same act should be different if it hadbeen necessary in the context of the urgent and timelydelivery of a diplomatic bag. As explained in paragraph(10) of the commentary to article 17, the real criterionshould be that "whenever the diplomatic courier uses ameans of transport in the performance of his functions,that means of transport should not be subject tomeasures which might impede or delay such per-formance, particularly the delivery of the bag".

(9) As to who is entitled to determine whether an act ofa diplomatic courier is or is not "an act performed in theexercise of his functions", the question, as in the case ofconsular officers and members of delegations to inter-national organizations, may receive different answers indoctrine and in State practice. One position favours thereceiving State, whereas another considers that the deter-mination may be jointly made by the receiving or transitState and the sending State. In the practice of States onthis matter both doctrines are followed, i.e. the decisionon the distinction may be made by both the sending andthe receiving States, or by the receiving State alone. Incase of dispute between the sending State and thereceiving State, the most appropriate practical solutionwould be an amicable settlement through diplomaticchannels.

(10) Accidents caused by a vehicle the use of which mayhave entailed the courier's liability where the damagesare not recoverable from insurance may give rise to twokinds of situation. An accident may occur outside theperformance of the courier's functions, in which case, byapplication of the general rule in the first sentence ofparagraph 2, the courier does not enjoy immunity. Butan accident may also occur during the performance ofthe courier's functions. In this situation, in which byapplication of the rule contained in the first sentence ofparagraph 2 the courier would in principle enjoyimmunity from the civil and administrative jurisdictionof the receiving or transit State, an exception is made,and the paragraph specifically provides that thisimmunity shall not extend to an action for damagesarising from such an accident. There are weighty reasonsfor this exception. The use of motor vehicles for personalor professional purposes has become a part of daily life.Traffic accidents and offences have inevitably increased,giving rise to a growing number of claims. The need toregulate questions of liability for personal injuries anddamage to property arising from traffic accidents inwhich diplomatic agents and other persons enjoyingdiplomatic immunities are involved has become obvious.Nevertheless, it was some time before the propercodification of international law occurred in this field.While the 1961 Vienna Convention on DiplomaticRelations contains no provision to that effect, later con-ventions include specific norms regulating the matter,namely article 43, paragraph 2 (b), of the 1963 ViennaConvention on Consular Relations, article 31, paragraph

2 (d), of the 1969 Convention on Special Missions andarticle 60, paragraph 4, of the 1975 Vienna Convention onthe Representation of States.

(11) An earlier version of article 18 contained theexpression "vehicle used or owned by the courier". It wasconsidered in the Commission that these words might beof questionable interpretation under certain legal systemsand might encroach upon the assignment of civil andadministrative responsibility under the internal law ofcertain countries. The expression "vehicle the use ofwhich may have entailed the liability of the courier",although less concrete, was considered to be genericallymore accurate and more acceptable, since it referred tothe internal law of the receiving or transit State thedetermination of the conditions under which a person wasliable in a given accident.

(12) It is also to be noted that paragraph 2 goes a stepbeyond the codification conventions mentioned inparagraph (10) above. Its third sentence lays down thegeneral principle that, pursuant to the laws andregulations of the receiving State or the transit State, thecourier shall, when driving a motor vehicle, be required tohave insurance coverage against third-party risks. This isalso why, in the second sentence of paragraph 2, thewords "where those damages are not recoverable"contained in an earlier version were replaced by the words"to the extent that those damages are not recoverable",bearing in mind that the damages may be partially ortotally recoverable from insurance.

Paragraph 3

(13) Paragraph 3 refers to immunity from measures ofexecution. As a consequence of the functional immunityof the courier, measures of execution can be taken againsthim only with respect to cases which are not related to actsperformed in the exercise of his functions. It isappropriate that the courier should enjoy immunity fromexecution. First, on the basis of his official functions, he isentitled to enjoy immunity from local civil andadministrative jurisdiction, at least on the same level asmembers of the administrative and technical staff.Secondly, all the codification conventions explicitlyprovide for the personal inviolability of the courier, whichmeans that he is not liable to any form of arrest ordetention. Thirdly, it is obvious that measures ofexecution would lead inevitably to impediments to thenormal performance of the official functions of thecourier. It is precisely for these reasons that, even in casesin which in principle measures of execution might betaken against the courier (for acts outside the per-formance of his functions), such measures are not per-missible if they infringe the inviolability of the courier'sperson, his temporary accommodation or the diplomaticbag entrusted to him.

Paragraph 4

(14) Paragraph 4 is inspired by article 31, paragraph 2,of the 1961 Vienna Convention on Diplomatic Relationsand the corresponding provisions of the 1969 Conventionon Special Missions and the 1975 Vienna Convention onthe Representation of States as to the basic principle itlays down, namely that the diplomatic courier is not


obliged to give evidence as a witness. In substance,however, although with important differences in drafting,it is closer to article 44 of the 1963 Vienna Convention onConsular Relations as to the qualifications or modalitiesto which the above-mentioned principle is subject.(15) Paragraph 4 states that the diplomatic courier isnot obliged to give evidence as a witness "on mattersconnected with the exercise of his functions". In thatconnection two points deserve particular attention. In thefirst place, the expression "on matters connected with theexercise of his functions" should be interpreted with thesame reservations and qualifications as those applyingunder paragraphs 1 and 2 and reflected in the relevantparagraphs of the present commentary above. Secondly,paragraph 4 refers to cases in which the courier is calledupon to give evidence on his having witnessed someoneelse's acts or behaviour. It does not refer to casesconcerning his own acts as an accused or indicted person,as in the second sentence of paragraph 2, in whichinstance he might be called upon to give evidence in a casearising from an accident involving a vehicle the use ofwhich might have entailed his liability.(16) Paragraph 4 further provides that the courier maybe required to give evidence "on other matters". Twopoints are also in order in this connection. In the firstplace, it was the clear understanding in the Commissionthat a receiving or transit State could request testimony inwriting from the courier in accordance with its internalrules of civil procedure or applicable agreements contem-plating such a possibility. Secondly, it should be notedthat an essential goal of the functions and status of thediplomatic courier is to ensure the safe and speedydelivery of the diplomatic bag, and this goal cannot becompromised by possible undue delays caused by arequirement to give evidence. Paragraph 4 thereforequalifies the possibility that the courier may be requiredto give evidence on other matters by the condition thatthis would not unduly delay or impede the delivery of thediplomatic bag.

Paragraph 5(17) Paragraph 5, which is common to all the provisionson immunity from jurisdiction noted in paragraph (1) ofthe present commentary, recognizes the fact that theeffective jurisdiction of the sending State over its officialsabroad serves to enhance justice and legal order. Itsuggests a legal remedy in the sending State in favour of aclaimant of the receiving State whose rights could not beotherwise protected owing to the immunity of thediplomatic agent. The provision also rests on thepermanent legal relationship between a person and theState of his nationality, even when the person is abroad.(18) However, to state, as does paragraph 5, that thecourier's immunity in the receiving or transit State doesnot exempt him from the jurisdiction of his own country isnot the same as to affirm the existence of such jurisdiction.As pointed out in the commentary to the correspondingprovision of the Commission's 1958 draft articles ondiplomatic intercourse and immunities, namely article 29,on which article 31 of the 1961 Vienna Convention onDiplomatic Relations was based:

. . . it may happen that this jurisdiction does not apply, either becausethe case does not come within the general competence of the country'scourts, or because its laws do not designate a local forum in which the

action can be brought. In the provisional draft the Commission hadmeant to fill this gap by stipulating that in such a case the competentcourt would be that of the seat of the Government of the sending State.This proposal was, however, opposed on the ground that the locus of thejurisdiction is governed by municipal law. . . .61

(19) Notwithstanding the foregoing, the Commissionconsidered that paragraph 5, although not as effective aswould be desirable, had a certain value and was useful, ifonly from a psychological point of view. It constituted asubtle suggestion to the sending State that it shouldexercise its jurisdiction in cases which otherwise mightconstitute a denial of justice because of the invocation ofthe prerogative of immunity with respect to thejurisdiction of the receiving or transit State.

Article 19. Exemption from customs duties,dues and taxes

1. The receiving State or the transit State shall, inaccordance with such laws and regulations as it may adopt,permit entry of articles for the personal use of thediplomatic courier carried in his personal baggage andgrant exemption from all customs duties, taxes and relatedcharges on such articles other than charges levied forspecific services rendered.

2. The diplomatic courier shall, in the performance ofhis functions, be exempt in the receiving State or the transitState from all dues and taxes, national, regional ormunicipal, except for indirect taxes of a kind which arenormally incorporated in the price of goods or services andcharges levied for specific services rendered.

Commentary

Paragraph 1

(1) The direct sources for paragraph 1 of article 19 arearticle 36, paragraph 1, of the 1961 Vienna Convention onDiplomatic Relations, article 50, paragraph 1, of the 1963Vienna Convention on Consular Relations, article 35,paragraph 1, of the 1969 Convention on Special Missionsand article 35, paragraph 1, and article 65, paragraph 1, ofthe 1975 Vienna Convention on the Representation ofStates.

(2) The main reason for according to the diplomaticcourier permission to carry across the frontier in hispersonal baggage articles for his personal use exemptfrom customs duties, taxes and related charges has beenthe recognition of his official functions, deriving from thefundamental principle of freedom of communication ofStates for official purposes. National laws and regulationsand other forms of State practice have shaped a distincttrend to accord to diplomatic couriers customs privilegesand immunities similar to those granted to members ofdiplomatic missions, although tailored in some aspects tothe specific situation of the courier. The commentaries tothe draft articles which served as the basis for theprovisions cited in paragraph (1) of the presentcommentary are therefore, mutatis mutandis, useful forthe interpretation of paragraph 1 of article 19.

61 Ibid., p. 99, para. (12) of the commentary.


(3) Given the characteristically short stay of the courierin the receiving or transit State, the permission for entryand customs exemption applies to articles for personaluse imported by the courier in his personal baggage only,and does not apply to other imports. This, however,should not be interpreted as excluding the case ofunaccompanied personal luggage, which, because of themeans of transport chosen, traffic delays or mix-ups, orother circumstances, may arrive later than the courierhimself.

(4) Paragraph 1 is qualified by the expression "inaccordance with such laws and regulations as [thereceiving State or transit State] may adopt". It wasunderstood in the Commission that that expressionreferred to those laws and regulations which might be inforce at the time of the courier's entry into the receiving ortransit State. The laws and regulations for admission ofpersons and goods across the frontier, includingimmigration, customs and sanitary control at frontiercheck-points, are within the national jurisdiction of theState. They are aimed at protecting the security,economic, fiscal and other legitimate interests of theState. Although not specified in the article, it should beunderstood that they relate basically to the formal andother procedural requirements aimed at preventingpossible abuses of the exemptions. As stated in paragraph(3) of the commentary to article 34 of the Commission's1958 draft articles on diplomatic intercourse andimmunities (which served as the basis for article 36 of the1961 Vienna Convention on Diplomatic Relations):

Because these exemptions are open to abuses, States have veryfrequently made regulations, inter alia, restricting the quantity of goodsimported or the period during which the imported articles for theestablishment of the agent must take place, or specifying a period withinwhich goods imported duty-free must not be resold. Such regulationscannot be regarded as inconsistent with the rule that the receiving Statemust grant the exemption in question. . . .62

The same principles, mutatis mutandis, should apply tothe diplomatic courier.

(5) The exception to the exemption from duties, whichin the sources indicated in paragraph (1) of the presentcommentary read "charges other than charges forstorage, cartage and similar services", was replaced by thephrase "charges on such articles other than charges leviedfor specific services rendered" because the latter was feltto be better adapted to the situation of the courier, whowould normally not need storage or cartage services butonly contingent and incidental services for which he wassupposed to pay. This change of wording is also inkeeping with the terminology used in paragraph 2 ofarticle 19.

Paragraph 2

(6) There is no specific provision in the codificationconventions concerning the exemption from dues andtaxes of the diplomatic courier. Paragraph 2 is based onthe consideration that the diplomatic courier should beaccorded in all respects treatment befitting his status as aperson exercising official functions and that, withreference to tax exemption, the courier's status should notbe inferior to that of a member of the administrative or

62 Ibid., p. 100.

technical staff of a mission who is neither a national of,nor permanently resident in, the receiving State. Takingthe foregoing into account, the sources for this provisionare article 34 of the 1961 Vienna Convention onDiplomatic Relations, article 49 of the 1963 ViennaConvention on Consular Relations, article 33 of the 1969Convention on Special Missions and articles 33 and 63 ofthe 1975 Vienna Convention on the Representation ofStates.

(7) Notwithstanding the foregoing, paragraph 2 hasbeen drafted bearing in mind that the short stay of thediplomatic courier in a given country places him in asomewhat different position from that of members of amission and renders much less likely and almostimpossible the exercise by him of certain activities or hisentering into legal relationships which would expose himto liability for particular forms of taxation. Therefore thedrafting technique used has been less casuistic withrespect to the exceptions to the principle of exemptionthan the technique adopted for the above-mentionedsource provisions, and certain qualifications have beenintroduced in the general statement of the exemptionprinciple. In this connection, the expression "in the per-formance of his functions" has been used to indicateclearly the functional approach to the exemptionsconcerned, which excludes all possible private activitiesof the courier and compensates for the reduction of thenumber of express exceptions to the exemption principleprovided for in paragraph 2. Furthermore, there is nospecific mention of "personal or real" taxes as there is inthe source provisions mentioned in paragraph (6) above,since that expression does not seem to fit the specificfactual situation of the short stay of the courier, whichcould hardly afford him the opportunity, for instance, toexercise private rights relating to real property.Paragraph 2 should be interpreted in the sense that theexemption principle would apply to those dues and taxeswhich the diplomatic courier might encounter in thecourse of his travels in his capacity as a courier, but notto those for which he would become liable only after aperiod of residence in the receiving or transit State.

(8) Two exceptions to the exemption principle areexpressly provided for in paragraph 2. The taxes andcharges contemplated in those exceptions are to be paidby the courier irrespective of whether he is acting in theperformance of his functions. They are indirect taxes of akind which are normally incorporated in the price ofgoods or services, and charges levied for specific servicesrendered. Both exceptions are also to be found in therelevant provisions of the codification conventionsmentioned in paragraph (6) above.

(9) The Commission did not include in the presentarticles any specific provision on exemption frompersonal and public services or on exemption from socialsecurity provisions. It felt that the sojourn of a courier inthe receiving or transit State was so short that, inpractice, the possibility was extremely remote that acourier might be called upon to perform personal orpublic services, of whatever nature, or that social securityprovisions might be invoked with regard to him. Expressarticles for hypothetical situations far removed fromreality were not warranted.


Article 20. Exemption from examinationand inspection

1. The diplomatic courier shall be exempt from personalexamination.

2. The personal baggage of the diplomatic courier shallbe exempt from inspection, unless there are serious groundsfor believing that it contains articles not for the personal useof the diplomatic courier or articles the import or export ofwhich is prohibited by the law or controlled by thequarantine regulations of the receiving State or the transitState. An inspection in such a case shall be conducted in thepresence of the diplomatic courier.

(4) Paragraph 2, which provides for exemption frominspection of the personal baggage of the diplomaticcourier, seeks to curtail abuses of this privilege when thereare serious grounds for presuming that the baggagecontains articles not for personal use, but for lucrative orother improper purposes, or articles the import or exportof which is prohibited by the law or controlled by thequarantine regulations of the receiving State or the transitState. However, there is one important requirement andsafeguard for the courier specifically indicated in the casewhen such an exception becomes operative: it stipulatesthat the inspection shall be conducted only in the presenceof the courier.

Commentary

Paragraph 1

(1) There is no specific provision in the codificationconventions concerning the exemption from personalexamination of diplomatic and consular agents. Inpractice, however, such an exemption is always upheld asit is considered to derive from the principle of personalinviolability. Similarly, the main reason behind theexemption of a diplomatic courier from personal exam-ination has been the recognition of his official functions,deriving from the fundamental principle of freedom ofcommunication of States for official purposes, and theinviolability of the person entrusted with carrying outthose functions. Exemption from personal search has alsobeen considered as a courtesy accorded to a State official.

(2) The words "personal examination" refer to bodilyexamination and do not rule out metal or other detectorsemployed for security purposes in airports or at otherpoints of departure or arrival. It should be recalled in thisconnection that the original text of paragraph 1 containedthe phrase "including examination carried out at adistance by means of electronic or other mechanicaldevices". There was a general feeling in the Commissionthat that phrase represented an unjustified extension ofthe principle, which would run counter to securitymeasures adopted by almost all States and to which, inusual practice, even diplomatic agents submit withoutprotest. Apart from certain forms of delinquency whichhad reached alarming dimensions, such as illicit traffic inforeign currency, narcotic drugs, arms and other goods,the spread of international terrorism and the unlawfulseizure of aircraft and other forms of air piracy hadjustified special measures of increased scrutiny ofpassengers and their baggage, including the regular use ofelectronic and mechanical devices for examination andscreening.

Paragraph 2

(3) The direct sources for paragraph 2 are article 36,paragraph 2, of the 1961 Vienna Convention onDiplomatic Relations, article 50, paragraph 3, of the 1963Vienna Convention on Consular Relations, article 35,paragraph 2, of the 1969 Convention on Special Missionsand article 35, paragraph 2, and article 65, paragraph 2, ofthe 1975 Vienna Convention on the Representation ofStates.

Article 21. Beginning and end of privilegesand immunities

1. The diplomatic courier shall enjoy privileges andimmunities from the moment he enters the territory of thereceiving State or the transit State in order to perform hisfunctions, or, if he is already in the territory of the receivingState, from the moment he begins to exercise his functions.

2. The privileges and immunities of the diplomaticcourier shall cease at the moment when he leaves the territoryof the receiving State or the transit State, or on the expiry ofa reasonable period in which to do so. However, the privilegesand immunities of the diplomatic courier ad hoc who is aresident of the receiving State shall cease at the momentwhen he has delivered to the consignee the diplomatic bag inhis charge.

3. Notwithstanding paragraph 2, immunity shall continueto subsist with respect to acts performed by the diplomaticcourier in the exercise of his functions.

Commentary

(1) Although none of the codification conventionscontains any specific provision on the duration of theprivileges and immunities of the diplomatic courier, thewording of article 21 has been inspired by severalprovisions contained in those conventions regarding theduration of the privileges and immunities of thediplomatic agent or consular officer, namely article 39 ofthe 1961 Vienna Convention on Diplomatic Relations,article 53 of the 1963 Vienna Convention on ConsularRelations, article 43 of the 1969 Convention on SpecialMissions and articles 38 and 68 of the 1975 ViennaConvention on the Representation of States.

Paragraph 1(2) Paragraph 1 acknowledges the close link betweenthe beginning of the privileges and immunities of thediplomatic courier and the performance or exercise of hisfunctions. As a general rule, the diplomatic courier enjoysprivileges and immunities from the moment he enters theterritory of the receiving State or the transit State in orderto perform his functions. The moment of commencementof the privileges and immunities is thus the moment whenthe diplomatic courier crosses the frontier of the territory,the objective of the crossing being the performance of hisfunctions. In such a case, the functions of the courier maywell, of course, have commenced before the crossing, for


example if he had previously received the bag to betransported, but the reason or need for the privileges andimmunities arises only when, having left the territory ofthe sending State, he enters the territory of the transit orreceiving State. This would normally be the case of apermanent courier appointed by the Ministry of ForeignAffairs who finds himself at the time of the appointmentin the territory of the sending State. But the situation mayarise in which the person appointed as a courier alreadyfinds himself in the territory of the receiving State at thetime of his appointment. This would usually happen inthe case of an ad hoc courier appointed by the mission,consular post or delegation of the sending State in thereceiving State. In this case the article provides that thecourier's privileges and immunities shall commence fromthe moment he actually begins to exercise his functions.The expression "from the moment he begins to exercisehis functions" should be interpreted as referring to themoment of the courier's appointment and receipt of thedocumentation referred to in article 8. Although fordrafting reasons paragraph 1 contains the phrase "if he isalready in the territory of the receiving State", that phraseshould be understood as meaning that the person inquestion, when appointed a courier, should already be inthe territory of the receiving State.

Paragraph 2(3) The first part of the first sentence of paragraph 2adopts with regard to the normal, or most usual, momentat which the privileges and immunities of the diplomaticcourier cease a criterion or rationale symmetric to thatadopted in paragraph 1 for their commencement. It laysdown that such privileges and immunities shall cease atthe moment when the diplomatic courier leaves theterritory of the receiving State or the transit State. Thiswould be the case of a permanent courier. If the courier isno longer in the receiving State or the transit State, thefoundation for his privileges and immunities disappears.

(4) The second part of the first sentence of paragraph 2,namely the words "or on the expiry of a reasonable periodin which to do so", may refer to two different situations.The most likely situation in which this phrase may find anapplication has to do with the possible declaration of thecourier as persona non grata or not acceptable. Inconnection with this possible situation, the words "or onthe expiry of a reasonable period in which to do so"should be read in conjunction with article 11 (c) andarticle 12, paragraph 2, and the commentaries thereto.Those provisions lay down that a diplomatic courier maybe declared persona non grata or not acceptable by thereceiving State. His functions do not end ipso facto but, asa consequence of that declaration, there arises for thesending State the obligation either to recall its courier or,for example in the case of a multiple-mission courier, toterminate his functions in the receiving State which hasdeclared him persona non grata or not acceptable. If thesending State refuses or fails within a reasonable period tocarry out those obligations, the receiving State may notifythe sending State that, in accordance with article 12,paragraph 2, it ceases to recognize the person concernedas a diplomatic courier. This notification by the receivingState ends the courier's functions in accordance witharticle 11 (b). Although the courier's functions haveceased, his privileges and immunities continue to subsist,

in principle, until he leaves the territory of the receivingState by application of the general rule laid down in thefirst part of the first sentence of paragraph 2 of the presentarticle. But given the very specific factual situation of apersona non grata declaration, the receiving State is likelyto have an interest in ensuring that the person concernedleaves its territory as rapidly as possible, that is to say onthe expiry of a reasonable time-limit. If the courier fails toleave the territory of the receiving State within the giventime-limit, his privileges and immunities cease at themoment of expiration of the time-limit.

(5) Although the case of a declaration of persona nongrata is the most likely situation in which a receiving Statemay request that the diplomatic courier leave its territoryon the expiry of a reasonable time-limit, article 21 doesnot rule out the possibility that such a time-limit could beset by the receiving State for reasons other than adeclaration of persona non grata. This would be the case,for instance, of a receiving State which did not want tohave recourse to a persona non grata declaration and yetwished to curtail possible abuses of privileges andimmunities of couriers in its territory during long staysafter the bag had been delivered and a courier's missionhad been fulfilled.

(6) The second sentence of paragraph 2 contemplates anexception to the general rule laid down in the firstsentence. The solution adopted follows article 27,paragraph 6, of the 1961 Vienna Convention onDiplomatic Relations, article 35, paragraph 6, of the 1963Vienna Convention on Consular Relations, article 28,paragraph 7, of the 1969 Convention on Special Missionsand article 27, paragraph 6, and article 57, paragraph 7, ofthe 1975 Vienna Convention on the Representation ofStates. It is uniformly provided for in those conventionsthat the privileges and immunities of the diplomaticcourier ad hoc cease at the moment when he has deliveredto the consignee the diplomatic bag in his charge. Takingeverything into account, the Commission was of the viewthat the differentiation of permanent couriers and ad hoccouriers as regards the end of their privileges andimmunities was justified in the special case in which the adhoc courier was a member of the staff of the mission or theconsular post in the receiving State or was otherwise aresident of the receiving State. Bearing this in mind, theCommission has confined the applicability of the secondsentence of paragraph 2 to the ad hoc courier "who is aresident of the receiving State", which also covers thecases in which the ad hoc courier is a member of the staff ofthe mission or the consular post.

(7) It should be noted that the expression "privilegesand immunities" used in paragraphs 1 and 2 of article 21,unlike the word "immunity" used in paragraph 3, refersto all the privileges and immunities granted to thediplomatic courier and dealt with in the present articles.

Paragraph 3

(8) Paragraph 3 is modelled on the correspondingprovisions of the codification conventions referred to inparagraph (1) of the present commentary. This provision,which prolongs the immunity of the courier for actsperformed in the exercise of his functions after thosefunctions have ended and subsequent to his departure


from the receiving State, refers only to the immunity fromjurisdiction provided for in article 18. Its raison d'etre is tobe found in the official nature of the mission performed bythe courier, which corresponds to a sovereign function ofthe sending State.

Article 22. Waiver of immunities

1. The sending State may waive the immunities of thediplomatic courier.

2. The waiver shall, in all cases, be express and shall becommunicated in writing to the receiving State or thetransit State.

3. However, the initiation of proceedings by thediplomatic courier shall preclude him from invokingimmunity from jurisdiction in respect of any counter-claimdirectly connected with the principal claim.

4. The waiver of immunity from jurisdiction in respectof judicial proceedings shall not be held to imply waiver ofimmunity in respect of the execution of the judgment ordecision, for which a separate waiver shall be necessary.

5. If the sending State does not waive the immunity ofthe diplomatic courier in respect of a civil action, it shall useits best endeavours to bring about an equitable settlement ofthe case.

Commentary

(1) The sources for article 22 are the correspondingprovisions of the codification conventions, namely article32 of the 1961 Vienna Convention on DiplomaticRelations, article 45 of the 1963 Vienna Convention onConsular Relations, article 41 of the 1969 Convention onSpecial Missions and, particularly for paragraph 5,articles 31 and 61 of the 1975 Vienna Convention on theRepresentation of States.

(2) Article 22 extends to the immunities of thediplomatic courier the procedure of waiver to be found inall the codification conventions. Waiver may thus beconsidered as one of the forms of suspension of theimmunities of the diplomatic courier. This procedure isbased on the fundamental concept that such immunitiesare an expression of the principle of the sovereign equalityof States and that they are granted not to benefitindividuals, but to ensure the efficient performance of thecourier's functions.

Paragraph 1

(3) Paragraph 1 states the general principle that theimmunities of the diplomatic courier may be waived onlyby the sending State. The waiver of immunities mustemanate from the sending State because the object of theimmunities is that the diplomatic courier should be able todischarge his duties in full freedom.63

63 See paragraph (1) of the commentary to article 30 of theCommission's 1958 draft articles on diplomatic intercourse andimmunities, which served as the basis for article 32 of the 1961 ViennaConvention on Diplomatic Relations {ibid., p. 99).

(4) The plural adopted by the Commission for theword "immunities", in paragraph 1, indicates that thepossible scope of application of the sending State'sdecision to proceed to a waiver may be very broad. Themost common cases envisaged cover immunity fromjurisdiction, either criminal, civil or administrative, oreach or all of them, according to the sovereign decisionof the sending State. But the decision to proceed to awaiver on the part of the sending State could also extendto immunities and privileges other than those relating tojurisdiction, including immunity from arrest, since thefoundation of all of them is to facilitate the better per-formance of the courier's functions, as explained inparagraph (3) above.

(5) While paragraph 1 states the principle that theimmunities of the diplomatic courier may be waived bythe sending State, it does not say which is the competentauthority within the sending State to give such a waiver.There has been a great deal of diversity in State practiceand in doctrinal views regarding the authority entitled toexercise the right of waiver. The question has been raisedwhether it should in all cases be the central authority, forexample the Ministry of Foreign Affairs, or whether thehead of the mission, another diplomatic agent, or themember of the mission involved in a particular caseshould also have the right to waive jurisdictionalimmunity. The Commission was of the view that thepossible solutions to this problem depended essentiallyon the relevant domestic laws and regulations of thesending State, where such laws and regulations had beenenacted, or on established practice and procedures whereno special legislation existed. Some States confer thepower to waive jurisdictional immunity on heads ofmissions or members of missions, but only oninstructions from the Ministry given prior to or on theoccasion of a specific case. In such instances, heads ofdiplomatic and other missions or members of suchmissions may be required to seek instructions beforemaking a statement of waiver.

(6) Extensive State practice and the relevant com-mentaries to articles which formed the basis for similarprovisions in the codification conventions64 indicate thatproceedings, in whatever court or courts, are regarded asan indivisible whole and that, consequently, a waivergiven in accordance with the relevant requirements andrecognized or accepted by the court concerned precludesthe right to plead immunity either before the judgment ispronounced by that court or on appeal.

Paragraph 2

(7) Paragraph 2, which closely follows paragraph 2 ofarticle 45 of the 1963 Vienna Convention on ConsularRelations, lays down the principle that the waiver mustbe express and that it must be communicated in writingas the most appropriate and unequivocal manifestationof its express character. An earlier version of paragraph 2included the words "except as provided in paragraph 3".The Commission decided to delete those words on theground that, as explained below, the situation con-templated in paragraph 3 is not an implied waiver but an

64 See, in particular, paragraph (5) of the commentary cited infootnote 63 above.


absence of immunity and therefore does not constitute atrue exception to the principle that the waiver mustalways be express.

Paragraph 3

(8) Paragraph 3 provides that the initiation of pro-ceedings by the diplomatic courier shall preclude himfrom invoking immunity from jurisdiction in respect ofany counter-claim directly connected with the principalclaim. The rationale behind this provision is that, undersuch circumstances, the courier is deemed to haveaccepted the jurisdiction of the receiving State as fully asmay be required in order to settle the dispute in regard toall aspects closely linked to the basic claim.65 In thisconnection, it is the understanding of the Commissionthat the lack of immunity to which paragraph 3 refers isrelated to civil and administrative proceedings, since anexpress waiver communicated in writing should always berequired in order to subject the courier to criminalproceedings. It is also to be noted in connection withparagraph 3 that the regulations of the sending Stateusually require that its diplomatic agents as well ascouriers obtain prior authorization from the centralauthorities before instituting legal proceedings in thereceiving State; but, if they do institute proceedings, theyare presumed to have the necessary authorization.66

Paragraph 4

(9) Paragraph 4 draws a distinction between waiver ofimmunity from jurisdiction and waiver of immunity inrespect of execution of the judgment. It stipulates thatwaiver of immunity from jurisdiction in respect of judicialproceedings shall not be held to imply waiver of immunityin respect of execution of the judgment, for which aseparate waiver is required. This rule was established incustomary international law prior to the 1961 ViennaConvention on Diplomatic Relations and has beenconfirmed by State practice. Although some members ofthe Commission questioned the advisability of this rule,the Commission was of the view that its inclusion in allprovisions relating to waiver of immunities contained inall four codification conventions mentioned in paragraph(1) of the present commentary was sufficient demon-stration of its existence as an accepted norm of inter-national law.

(10) An earlier version of paragraph 4 spoke of "waiverof immunity from jurisdiction in respect of civil oradministrative proceedings", which was closer to theterminology used in the corresponding provisions of thecodification conventions mentioned in paragraph (1)above. The present wording, which speaks of "judicialproceedings", is intended to cover not only civil oradministrative proceedings, but also criminal pro-ceedings, and reflects the Commission's feeling that thedouble-waiver requirement should also apply in criminalproceedings.

Paragraph 5

(11) Paragraph 5 reproduces a provision firstintroduced by articles 31 and 61 of the 1975 Vienna

Convention on the Representation of States. As stated inparagraph (2) of the commentary to article 62 (Waiver ofimmunity) of the Commission's 1971 draft articles on therepresentation of States in their relations with inter-national organizations:. . . the provision set forth in paragraph 5 places the sending State, inrespect of a civil action, under the obligation of using its bestendeavours to bring about a just settlement of the case if it is unwillingto waive the immunity of the person concerned. If, on the one hand, theprovision of paragraph 5 leaves the decision to waive immunity to thediscretion of the sending State which is not obliged to explain itsdecision, on the other, it imposes on that State an objective obligationwhich may give to the host State grounds for complaint if the sendingState fails to comply with it. . ..

(12) Paragraph 5 should be considered as a practicalmethod for the settlement of disputes in civil matters. Itmay offer, in some instances, effective ways to resolveproblems. Taking into account the specific features of thelegal status and official functions of the diplomaticcourier, the extrajudicial method of amicable settlementof a dispute may be appropriate. It compensates for theeventuality that a sending State may refuse to waive thecourier's immunity, offering the possibility of arriving ata just settlement through negotiation of an equitableresolution.

(13) Paragraph 5 should be interpreted as referring toany stage of a civil action and it therefore applies equallyto cases in which a sending State does not waive thecourier's immunity in respect of execution of a judgment.

(14) The paragraph deals with the case of a civil actionbecause it is in that context that matters of compensationmost frequently arise. However, the possibility ofresorting to paragraph 5 in connection with minorcriminal cases should not be entirely ruled out,particularly in cases of civil actions arising out ofcriminal acts.

(15) It should also be recalled in connection withparagraph 5 that, as provided in paragraph 5 of article18, the immunity of the diplomatic courier from thejurisdiction of the receiving State or the transit State doesnot exempt him from the jurisdiction of the sendingState.

Article 23. Status of the captain of a ship oraircraft entrusted with the diplomatic bag

1. The captain of a ship or aircraft in commercialservice which is scheduled to arrive at an authorized port ofentry may be entrusted with the diplomatic bag.

2. The captain shall be provided with an officialdocument indicating the number of packages constitutingthe bag entrusted to him, but he shall not be considered tobe a diplomatic courier.

3. The receiving State shall permit a member of amission, consular post or delegation of the sending State tohave unimpeded access to the ship or aircraft in order totake possession of the bag directly and freely from thecaptain or to deliver the bag directly and freely to him.

65 See pa rag raph (6) of the commenta ry cited in footnote 63 above.66 See p a r a g r a p h (3) of the commenta ry cited in footnote 63 above.

67 Yearbook . . . 1971, vol. II (Part One) , p . 321, documen t A/8410/Rev. 1, chap . II, sect. D.


Commentary

(1) With the exception of a few complementaryelements and drafting adjustments, the basic componentsof article 23 are contained in the correspondingprovisions of the four codification conventions, namelyarticle 27, paragraph 7, of the 1961 Vienna Conventionon Diplomatic Relations, article 35, paragraph 7, of the1963 Vienna Convention on Consular Relations, article28, paragraph 8, of the 1969 Convention on SpecialMissions and article 27, paragraph 7, and article 57,paragraph 8, of the 1975 Vienna Convention on theRepresentation of States.

Paragraph 1

(2) The relevant provisions of the above-mentionedmultilateral conventions, as well as of numerous bilateralagreements, which are confirmed by an examination ofthe behaviour of States, demonstrate that the practicedealt with in article 23 of employing the captain of a shipor aircraft in commercial service for the custody, trans-portation and delivery of diplomatic bags forms part ofmodern international law. The practice of entrusting thediplomatic bag to the captain of a commercial aircraft, inparticular, is widespread today. This practice has provedits advantages, which may be summarized as economy,speed and reasonable safety, since the bag, although notaccompanied by a courier, is still in the custody or thecare of a responsible person. The employment of thecaptain of a passenger or other merchant ship, althoughnot so frequent, has been resorted to where sea-bornetransport is the most convenient means of com-munication or where the shipment of sizeable con-signments is more economical by sea. It was understoodin the Commission that, although not expressly stated inthe present text of paragraph 1, the diplomatic bag towhich it refers may be the bag of a sending State or of amission, consular post or delegation of that State, inaccordance with the scope of the present articles asdefined in article 1.

(3) The draft article originally submitted by the SpecialRapporteur spoke of the "captain of a commercialaircraft" and the "master of a merchant ship", whereasthe article as now worded refers to the "captain of a shipor aircraft in commercial service". The word "captain"has been retained to apply to both a ship and an aircraftfor the sake of uniformity with the language used in theprovisions contained in three of the codification con-ventions referred to in paragraph (1) of the presentcommentary, namely the 1963 Vienna Convention onConsular Relations, the 1969 Convention on SpecialMissions and the 1975 Vienna Convention on theRepresentation of States. The word is intended todescribe the functions of the person in command and incharge of a ship or aircraft, irrespective of the particularmeaning it may have under the domestic law of anycountry. By conveying the actual meaning in which theword is used, the Commission also intends to relieve theeventual semantic tension that the use of the same word,"captain", for both a ship and an aircraft may create insome of the language versions. As to the expression "in

commercial service", it has been used to categorize botha ship and an aircraft in order to eliminate any possiblerestrictive connotation that the term "merchant ship"may have had as compared with the term "commercialaircraft", as used in the article originally proposed.

(4) The phrase "which is scheduled to arrive at anauthorized port of entry" refers to ships or aircraft inregular service or belonging to a regular line between theStates and the port of entry concerned, rather thanvoyages or flights undertaken by any ship or aircraft onan ad hoc basis. It was accepted in the Commission that,under the regulations of certain airlines and thearrangements made with certain countries, "charterflights" could offer all the characteristics of a regularflight, except for the booking system, and could beconsidered as covered by the phrase "scheduled toarrive". It was, however, also pointed out that the phrasewas designed to take into account the fact that article 23established certain obligations on the part of the receivingState under paragraph 3, and that the receiving Statemight have difficulties in fulfilling those obligations in thecase of non-scheduled flights or voyages. Yet nothing inparagraph 1 should be interpreted as precluding thepossibility that States, by mutual agreement, might decideto entrust their bags to the captain of a ship or aircraft ona non-scheduled flight or voyage or of a nature other than"in commercial service".

(5) Although this is not expressly mentioned in the textof paragraph 1 itself, the wording of the paragraph doesnot preclude the existing practice of several States toentrust the unaccompanied bag to a member of the crewof a ship or aircraft, either by decision of the centralauthorities of the State or by delegation from the captainof the ship or aircraft to the crew member.

Paragraph 2

(6) The captain of a ship or aircraft to whom a bag isentrusted is provided with an official document indicatingthe number of packages constituting the diplomatic bagentrusted to him. This document may be considered ashaving the same character as the official document issuedto a diplomatic courier, as elaborated upon in thecommentary to article 8. It should, however, be noted(and all the above-mentioned codification conventionsare clear on this point) that the captain is not to beconsidered a diplomatic courier, either permanent or adhoc. Therefore the provisions of the present articles whichconcern the personal status of the diplomatic courier donot apply to the captain of a ship or aircraft.

Paragraph 3

(7) Whenever a diplomatic bag is entrusted by the send-ing State to the captain of a ship or aircraft in commercialservice, the overriding obligation of the receiving State isto facilitate the free and direct delivery of the bag to theauthorized members of the diplomatic mission or otherauthorized officials of the sending State, who are entitledto have access to the ship or aircraft in order to takepossession of the bag. The receiving State should enactrelevant rules and regulations and establish appropriateprocedures in order to ensure the prompt and free


delivery of the diplomatic bag at its port of entry.Unimpeded access to the ship or aircraft should beprovided for the receipt of the incoming diplomatic bagat the authorized port of entry or for the handing over ofthe outgoing diplomatic bag to the captain of the ship oraircraft. In both instances the persons entitled to receiveor hand over the diplomatic bag should be authorizedmembers of the diplomatic mission, consular post ordelegation of the sending State. This two-way facility forreceiving the bag from the captain or handing it over tohim should be reflected in the relevant provisions of therules governing the dispatch of a diplomatic bagentrusted to the captain of a ship or aircraft incommercial service. The drafting changes undergone byparagraph 3 since its original submission by the SpecialRapporteur are intended to stress the above-mentionedobligation of the receiving State, shifting the emphasisfrom the facilities accorded to the captain to theobligation of the receiving State to permit unimpededaccess to the ship or aircraft. In order to carry out itsobligations under paragraph 3, the receiving State mustknow of the arrival of the bag, either because of thescheduled and regular nature of the flight or voyageinvolved or because of the mutual agreements concludedwith specific States, as explained in paragraph (4) of thepresent commentary.

(8) As stated in paragraph 3, the purpose of thereceiving State granting unimpeded access to the ship oraircraft to a member of a mission, consular post ordelegation of the sending State is to enable the latter "totake possession of the bag directly and freely from thecaptain or to deliver the bag directly and freely to him".The words "directly and freely" should be interpreted asmeaning literally "from the hands of the captain to thoseof the designated official", and vice versa, withoutinterference from any intermediary individual. Theexpressions used in the Spanish and French texts, namelyde manos del and des mains du, respectively, reflectfaithfully the idea which the English text intends toconvey by the words "directly and freely".

(9) It was discussed in the Commission whether theobligation of the receiving State laid down in paragraph3 should be qualified by the words "by arrangement withthe appropriate authorities of the sending State",mention of which was to be found in the correspondingprovisions of the codification conventions referred toin paragraph (1) of the present commentary. TheCommission decided against incorporating those wordsin the paragraph so as not to create the impression thatsuch an arrangement would constitute a pre-conditionfor the existence of the said obligation of the receivingState. Such arrangements could, instead, regulate themodalities of the practical implementation of thatobligation.

(10) Although not expressly stated, it should beunderstood that the member of the mission, consularpost or delegation who is to take possession of the bagfrom the captain, or to deliver it to him, must be dulyauthorized by the appropriate authorities of the sendingState. The determination of the material aspects of suchauthorization might constitute a matter for specialarrangements between the receiving State and thesending State.

PART III

STATUS OF THE DIPLOMATIC BAG

Article 24. Identification of the diplomatic bag

1. The packages constituting the diplomatic bag shallbear visible external marks of their character.

2. The packages constituting the diplomatic bag, if notaccompanied by a diplomatic courier, shall also bear visibleindications of their destination and consignee.

Commentary

Paragraph 1

(1) Paragraph 1 is modelled on the initial part of thefollowing provisions of the four codification conventions:article 27, paragraph 4, of the 1961 Vienna Convention onDiplomatic Relations; article 35, paragraph 4, of the 1963Vienna Convention on Consular Relations; article 28,paragraph 5, of the 1969 Convention on Special Missions;and article 27, paragraph 4, and article 57, paragraph 5, ofthe 1975 Vienna Convention on the Representation ofStates.

(2) In conformity with long-standing State practice, thediplomatic bag has always been identified through certainvisible external marks. The most common visible externalfeature of the packages constituting a diplomatic bag is atag or a stick-on label with an inscription such as"diplomatic correspondence", "official correspondence"or expedition officielle. In particular, the diplomatic bagmust be sealed by the competent authority of the sendingState by means of the official stamp imprinted with wax orlead seals, or of padlocks, or in other ways which may beagreed upon between the sending and the receiving States.The existence of such seals operates not only in theinterest of the sending State, to ensure the confidentialityof the bag's contents, but also in the interest of thereceiving State. The seals, on the one hand, help thereceiving State to ascertain the bona fide character andauthenticity of the diplomatic bag and, on the other hand,can provide the receiving State with evidence to refutepossible accusations of having tampered with the bag.

(3) The provisions of paragraph 1 apply to all kinds ofbags, whether accompanied or not.

Paragraph 2

(4) The diplomatic bag not accompanied by diplomaticcourier, with which paragraph 2 is especially concerned,has acquired a prominent place in modern diplomaticcommunications. The frequency of the use of this kind ofdiplomatic bag reflects widespread State practice ofincreasing dimensions and significance. Article 23 andthe commentary thereto deal with one form ofunaccompanied bag, that which has been entrusted to thecaptain of a ship or aircraft in commercial service. Butdiplomatic bags are also frequently transmitted by postalservice or by any mode of transport, as explained in art-icle 26 and the commentary thereto. The use ofunaccompanied bags for the diplomatic mail has become


almost a regular practice of developing countries, foreconomic considerations, but this practice has nowbecome widespread among many other States.

(5) The unaccompanied bag must meet the samerequirements in respect of its external features as a bagaccompanied by a courier; it should be sealed by theofficial stamp with wax or lead seals by the competentauthority of the sending State. Because the bag is notcarried by a professional or ad hoc courier, even greatercare may be required for proper fastening, or the use ofspecial padlocks, since it is forwarded as a consignmententrusted to the captain of a ship or aircraft. Also inconnection with the visible external marks, it is necessaryto provide the diplomatic bag with a tag or stick-on labelwith an indication of its character. But given the greaterlikelihood that an unaccompanied bag may be lost, a clearindication of the destination and consignee is necessary.In that connection, it was thought in the Commissionthat, although the latter requirement might be considerednecessary only in the case of the unaccompanieddiplomatic bag, it might also be helpful in the case of bagsaccompanied by courier, since the possibility alwaysexisted, as some cases of international practice hadshown, that a bag might be separated from the courierand be stranded. In those cases, a clear indication ofdestination and consignee could greatly facilitate speedyand safe delivery. Although paragraph 2 provides for anadditional requirement for the practical purpose ofensuring the delivery of the unaccompanied bag, the lackof any such additional indication should not detract fromthe status of the bag as a diplomatic bag.

(6) The wording "the packages constituting thediplomatic bag" is used for the sake of uniformity withthe language of article 27, paragraph 4, of the 1961Vienna Convention on Diplomatic Relations. It isintended to cover the various physical elements con-stituting the diplomatic bag, as a unified legal notion, butnot the individual pieces constituting the contents of thebag.

(7) The original text of paragraph 2 submitted by theSpecial Rapporteur contained an additional clause to theeffect that the unaccompanied bag must also bear a visibleindication of "any intermediary points on the route ortransfer points". While some members of theCommission thought that the indication of transferpoints was very useful, particularly in cases of loss of thebag, and that therefore the said clause should be retainedin the text, other members thought that the question oftransfer points fell more within the realm of airlineitineraries, which could be changed by airlines withoutprior notice. The Commission as a whole, althoughrecognizing that the practice of some States was toindicate the transfer points and that such a practice couldbe useful on some occasions, did not deem it advisable toinclude such a requirement in the text of paragraph 2.

(8) The draft article originally submitted by the SpecialRapporteur contained a paragraph 3 stating that "themaximum size or weight of the diplomatic bag allowedshall be determined by agreement between the sendingState and the receiving State". After carefully consideringthat paragraph, as well as proposals for its amendment,the Commission decided not to include it. It wasconsidered that, if drafted in optional terms, as suggested

in one amendment, the paragraph would be superfluous,while if adopted in mandatory terms, as originallyproposed, it might convey the mistaken impression thatsuch an agreement was a pre-condition for the granting offacilities for a diplomatic bag by the receiving State. TheCommission agreed, however, that it was advisable todetermine by agreement between the sending State andthe receiving State the maximum size or weight of thediplomatic bag and that that procedure was supported bywidespread State practice.

Article 25. Contents of the diplomatic bag

1. The diplomatic bag may contain only official corre-spondence, and documents or articles intended exclusivelyfor official use.

2. The sending State shall take appropriate measuresto prevent the dispatch through its diplomatic bag of itemsother than those referred to in paragraph 1.

Commentary

Paragraph 1

(1) Paragraph 1 is modelled on the second part ofparagraph 4 of article 35 of the 1963 Vienna Conventionon Consular Relations. Its wording is also closely relatedto article 27, paragraph 4, of the 1961 Vienna Conventionon Diplomatic Relations, article 28, paragraph 5, of the1969 Convention on Special Missions and article 27,paragraph 4, and article 57, paragraph 5, of the 1975Vienna Convention on the Representation of States.

(2) The paragraph defines the permissible contents ofthe diplomatic bag by the criterion of the official characterof the correspondence or documents included therein orthe official use for which the articles contained in the bagare intended. Under this rule, which is based on extensiveState practice as well as on the above-mentioned con-ventions, the bag may contain official letters, reports,instructions, information and other official documents, aswell as cypher or other coding or decoding equipment andmanuals, office materials such as rubber stamps or otherarticles used for office purposes, wireless equipment,medals, books, pictures, cassettes, films and objets d'artwhich could be used for the promotion of culturalrelations. The adverbs "only" and "exclusively"emphasize the official character of the permissible items inquestion in view of recent abuses committed with regardto the contents of the diplomatic bag.

Paragraph 2

(3) The rules governing the contents of the diplomaticbag should comprise not only provisions dealing with thepermissible contents, as in paragraph 1 of article 25, butalso provisions on the appropriate preventive measures tobe taken in order to ensure compliance with the rules onthe contents of the diplomatic bag and to avoid anyabuses of the facilities, privileges and immunitiesaccorded by international and domestic law to the bag.These two elements, namely the rule for the legallyadmissible contents of the bag and its efficient


implementation, have practical significance for theproper functioning of official communications in theinterests of international co-operation and under-standing. Their strict observance would prevent mutualsuspicions on the part of the receiving State, when thediplomatic bag is admitted into its territory, and on thepart of the sending State, when procedures for inspection,including the use of sophisticated devices forexamination, are required by the receiving State. None ofthe codification conventions has so far offered a viablesolution to the problem of verifiability in respect of thelegally admissible contents of the diplomatic bag. Theincreasing number of abuses has given particularimportance to this problem, with certain political,economic and other implications. For these reasons, theCommission has deemed it advisable to state expressly ina separate paragraph the duty of the sending State to takeappropriate measures to prevent the dispatch through itsdiplomatic bag of items other than those referred to inparagraph 1. Paragraph 2 should be read in conjunctionwith article 28 and the commentary thereto.

Article 26. Transmission of the diplomatic bag bypostal service or any mode of transport

The conditions governing the use of the postal service orof any mode of transport, established by the relevantinternational or national rules, shall apply to thetransmission of the packages constituting the diplomaticbag in such a manner as to ensure the best possible facilitiesfor the dispatch of the bag.

Commentary

(1) Article 26, which deals with the transmission of thediplomatic bag by postal service or by any mode oftransport, concerns types of unaccompanied bag otherthan the unaccompanied bag entrusted to the captain of aship or aircraft. While this latter type is expresslyprovided for in specific provisions of the codificationconventions referred to in paragraph (.1) of thecommentary to article 23, the types of unaccompaniedbag referred to in article 26 must be considered as coveredby the expression "all appropriate means" to be used bymissions, consular posts and delegations in com-munications with the sending State, an expression used inall the relevant provisions of the codification conventions,namely article 27, paragraph 1, of the 1961 ViennaConvention on Diplomatic Relations, article 35,paragraph 1, of the 1963 Vienna Convention on ConsularRelations, article 28, paragraph 1, of the 1969Convention on Special Missions and article 27,paragraph 1, and article 57, paragraph 1, of the 1975Vienna Convention on the Representation of States.

(2) The rules establishing the conditions governing theuse of the postal service for the transmission of adiplomatic bag may be of more than one kind: there aremultilateral agreements such as the international postalregulations established by the Universal Postal Union;there also exist consular or other bilateral agreementswhich may mention the postal service among the means ofcommunication between the sending State and its

missions or consular posts; and there are specialagreements for the transmission by post of diplomaticcorrespondence or the exchange of diplomatic corre-spondence through postal channels by air mail. Besidesthese international regulations there are also nationaladministrative and postal regulations adopted by someStates. In accordance with the terms of article 26, theUPU international postal regulations would applywhenever appropriate between the States concerned. Ifnot ruled out by such regulations, other internationalregulations would also apply, for example bilateralagreements. Finally, national rules would apply if theywere not in contradiction with the international rules inforce between the States concerned or in the absence ofsuch international rules. Among national rules, there maybe provision for the transmission of bags by commercialmeans of transportation, in accordance with the internallegislation and administrative rules of each State.

(3) With regard to the "mode of transport" to whicharticle 26 refers, this expression replaces the phrase"whether by land, air or sea" used in an earlier version ofthe article. The dispatch of diplomatic bags as cargoconsignments through commercial means of trans-portation, whether by land, air or sea, was commonpractice among States long before the 1961 ViennaConvention on Diplomatic Relations. This kind ofofficial communication has been used particularly forheavy and sizeable consignments and for non-confidential correspondence, documents and otherarticles, such as books, exhibits, films and other items forthe official use of diplomatic missions, consular posts andother missions. In this case again, the article refers tointernational or national rules governing the conditionsof transmission of the bag by such modes of transport. Inthis connection, the 1980 United Nations Convention onInternational Multimodal Transport of Goods,68 whichis concerned with the multilateral regulation of variousmodes of transport, should be noted. There also existother international conventions, including regional ones,regulating the carriage of goods by land, air or sea. If anyof those conventions are applicable between the Statesconcerned, then such international regulations wouldapply. National rules would apply in the absence ofapplicable international regulations.

(4) Article 26 states that the conditions referred to in thearticle shall apply to the diplomatic bag "in such amanner as to ensure the best possible facilities for thedispatch of the bag". In drafting this part of the provision,the Commission bore in mind that a proposal tointroduce a new category of postal items under thedenomination of "diplomatic bags" in the internationalpostal service by amending article 18 of the internationalregulations of the Universal Postal Union had beenrejected by the UPU Congress held at Rio de Janeiro in1979.69 Consequently, the diplomatic bag has to betreated in the same way as other letter-post items, unlessthe postal administrations could enter into bilateral or

See UNCTAD, United Nations Conference on a Convention onInternational Multimodal Transport, vol. I, Final Act and Convention onInternational Multimodal Transport of Goods (United Nationspublication, Sales No. E.8UI.D.7 (vol. I)).

69 See the Special Rapporteur's fourth report, Yearbook . . . 1983,vol. II (Part One), pp. 120-121, document A/CN.4/374 and Add. 1-4,paras. 312-317.


multilateral agreements for a more favourable treatmentof diplomatic bags conveyed by the postal service. Inpractice, however, a measure of greater care couldbe—and often is—dispensed to the diplomatic bag. Thispart of the article has therefore been drafted with thepurpose that, in applying the relevant rules for thetransmission of the bag, the authorities of the postalservice or of any other mode of transport accord to thebag the best possible treatment under those rules.

(5) The Commission has not deemed it necessary toinclude an article stating that all provisions of the presentarticles dealing with the status and protection of thediplomatic bag also apply to all kinds of unaccompaniedbags, as this emerges clearly from the texts of the articlesconcerned. In some instances, the unaccompanied bag isthe subject of an additional specific regulation ormention, as is the case in article 24, paragraph 2, andarticle 30, paragraph 2. The Commission also consideredit unnecessary to refer in article 26 to the bill of lading (asthe original draft article had done) or to the postalreceipt "as a document indicating the official status ofthe diplomatic bag". It was considered that article 24 andthe commentary thereto, which also applies to the bagsreferred to in article 26, provided sufficient regulation onthe identification of those bags. Although theCommission was of the view that the inclusion of such areference was not necessary in the text of the article itself,it recognized that the bill of lading or the postal receiptwas frequently used in practice as evidence of the natureof the consignment as a diplomatic bag. Although thosedocuments were not strictly necessary for the identi-fication of the diplomatic bag as such, they could serve tofacilitate the evidence or proof of such identification.

Article 27. Safe and rapid dispatchof the diplomatic bag

The receiving State or the transit State shall facilitatethe safe and rapid dispatch of the diplomatic bag and shall,in particular, ensure that such dispatch is not undulydelayed or impeded by formal or technical requirements.

Commentary

(1) Article 27, which deals with the obligation of thereceiving State or the transit State to facilitate the safeand rapid dispatch of the diplomatic bag, is inspired byconsiderations similar to those that led to the adoptionof article 13. It may therefore be said that the sources forarticle 27 are, mutatis mutandis, those indicated inparagraph (2) of the commentary to article 13.

(2) Although article 27 applies to all kinds ofdiplomatic bags, whether accompanied by diplomaticcourier, entrusted to the captain of a ship or aircraft ortransmitted by postal service or by any mode oftransport, the existence of a specific provision onfacilities for the diplomatic courier, a provision which isin practice intended to make easier the safe and speedytransportation and delivery of the accompanied bag,makes the present article even more important forunaccompanied bags, particularly those dispatched by

postal service or any mode of transport, which inpractice require greater care for their safe andexpeditious dispatch.

(3) The facilities accorded to the bag should beconceived also in close relationship with all otherprovisions containing explicit or implicit reference to theneed for the receiving State or the transit State and theirauthorities to grant certain assistance or extend co-operation for the proper functioning of official com-munications through the use of the diplomatic bag. Likethe facilities accorded to the diplomatic courier, thoseaccorded to the diplomatic bag should always beconsidered on the basis of functional necessity and theactual need for assistance, depending on the variousmodes of transport and the concrete circumstances, andthey should be guided by the principle of reasonableness.

(4) Although in many cases the facilities to be accordedto the diplomatic bag would entail duties of abstentionon the part of the receiving or transit State, in otherinstances more positive obligations might be involved,such as favourable treatment in case of transportationproblems or, again, the speeding up of the clearanceprocedures and formalities applied to incoming andoutgoing consignments. It would seem neither advisablenor possible to provide a complete listing of the facilitiesto be accorded to the diplomatic bag. It would ratherseem preferable to define the circumstances in which theneed for according such facilities would arise. In generalterms it may be affirmed that the scope of the facilitiesshould be determined by the official function of thediplomatic bag and the conditions required for the safeand speedy transmission or delivery of the bag to its finaldestination. Therefore the general criterion would bethat the need for facilities could or would arise wheneverthe safe or speedy dispatch, transmission or delivery ofthe bag is endangered. In this connection, article 27stresses that the receiving State or the transit State shallensure that the dispatch of the bag is not unduly delayedor impeded by formal or technical requirements. Ways tocomply with this part of the provision are the easing of,or exemption from, paperwork, clearance formalitiesand customs procedures, or granting admission tocertain places, for example through the issuance of aspecial pass to members of the mission to receive the bagon the airport tarmac, etc.

(5) Article 27 and the present commentary should beread in conjunction with paragraph 3 of article 23 andthe commentary thereto and article 26 and thecommentary thereto, in particular its paragraph (4).

Article 28. Protection of the diplomatic bag

1. The diplomatic bag shall be inviolable wherever itmay be; it shall not be opened or detained and shall beexempt from examination directly or through electronic orother technical devices.

2. Nevertheless, if the competent authorities of thereceiving State or the transit State have serious reason tobelieve that the consular bag contains something other thanthe correspondence, documents or articles referred to inparagraph 1 of article 25, they may request that the bag beopened in their presence by an authorized representative of


the sending State. If this request is refused by theauthorities of the sending State, the bag shall be returned toits place of origin.

Commentary

(1) Article 28 has been considered the key provision ofthe draft articles on the status of the diplomatic courierand the diplomatic bag not accompanied by diplomaticcourier.

Paragraph 1(2) The part of paragraph 1 consisting of the words"The diplomatic bag shall. . . not be opened or detained"is a reproduction of the relevant provisions of the fourcodification conventions, namely article 27, paragraph 3,of the 1961 Vienna Convention on Diplomatic Relations,article 35, paragraph 3 (first sentence), of the 1963 ViennaConvention on Consular Relations, article 28, paragraph4, of the 1969 Convention on Special Missions and article27, paragraph 3, and article 57, paragraph 4, of the 1975Vienna Convention on the Representation of States. Thisbasic concept, already contained in the above-mentionedconventions, is characterized as "inviolability" of thediplomatic bag in article 28 and is clarified, in the text, bythe words "and shall be exempt from examinationdirectly or through electronic or other technical devices".(3) The principle that the diplomatic bag is inviolablewherever it may be and therefore shall not be opened ordetained constitutes the most important aspect of thismeans of communication and has been upheld as a rulewith wide-ranging recognition. The immunity of the bagfrom search has been considered the reflection of the basicprinciple of the inviolability of diplomatic and consularcorrespondence and of the archives and documents of themission or consular office, generally recognized bycustomary international law and reflected in thecodification conventions, namely in article 24 of theVienna Convention on Diplomatic Relations, article 33of the Vienna Convention on Consular Relations, article26 of the Convention on Special Missions and articles 25and 55 of the Vienna Convention on the Representationof States.(4) The first substantive element of the rule is that thebag cannot be opened without the consent of the sendingState. This duty of abstention on the part of the receivingor transit State constitutes an essential component of theprotection of the bag and of respect for the confidentialnature of its contents, which derives from the principle ofconfidentiality of diplomatic correspondence.(5) The other substantive element of the rule is theobligation of the receiving State or, as the case may be, thetransit State not to detain the diplomatic bag while it is inits territory. The detention of the bag constitutes aninfringement of the freedom of communication by meansof diplomatic correspondence. Furthermore, thedetention of the bag would mean that, for a certain periodof time, it would be under the direct control of theauthorities of the transit State or the receiving State. Thiscould give rise to suspicion that, during this period, thebag had undergone an unauthorized examinationincompatible with the requirements for observance of itsconfidential character. It is obvious that any detention of

the bag may upset the intended time-schedule for itstransportation, thus delaying its delivery. Finally, thedetention of the bag may compromise its safety, as thereceiving or transit State might not be in a position at alltimes to ensure its integrity and guarantee the con-tinuation of its journey.

(6) The extent of the principle of inviolability of thediplomatic bag is further clarified by the words "and shallbe exempt from examination directly or throughelectronic or other technical devices". The view prevailedin the Commission that the inclusion of this phrase wasnecessary as the evolution of technology had created verysophisticated means of examination which might result inthe violation of the confidentiality of the bag, meanswhich furthermore were at the disposal of only the mostdeveloped States. On the other hand, paragraph 1 doesnot extend to an external examination of the bag and of itsvisible marks or indications of its character as such, to theextent that such an external examination would beconducted for identification purposes only and with aview to ascertaining that a given container claimed to be adiplomatic bag actually had such a character. Theparagraph does not rule out non-intrusive means ofexamination, such as sniffer dogs, in the case of suspicionthat the bag is being used for the transport of narcoticdrugs.

Paragraph 2(7) Paragraph 2, except for the cross-referencecontained therein, is a textual reproduction from article35, paragraph 3, of the 1963 Vienna Convention onConsular Relations and therefore applies only to theconsular bag stricto sensu. It introduces, in connectionwith the consular bag, a balance between the interests ofthe sending State in ensuring the protection, safety andconfidentiality of the contents of its bag and the securityinterests of the receiving or transit State.

(8) In this connection, the Commission has been fullyaware that cases of possible abuse of the bag are notconfined to the consular bag but may extend also to thediplomatic bag stricto sensu or to the bags of missions ordelegations. Contemporary international practice haswitnessed cases of diplomatic bags being used orattempted to be used for the illicit import or export ofcurrency, narcotic drugs, arms or other items, and evenfor the transport of human beings, which have violatedthe established rules regarding the permissible contents ofthe bag and adversely affected the legitimate interests ofreceiving or transit States. The Commission is of the viewthat, while the protection of the diplomatic bag is afundamental principle for the normal functioning ofofficial communications between States, theimplementation of this principle should not provide anopportunity for abuse which may affect the legitimateinterests of receiving or transit States.

(9) The Commission considered the possibility ofextending to all diplomatic bags the regime of theconsular bag reflected in paragraph 2. Some members,however, were of the view that a uniform regime for allbags should be established on the basis of the existingregime for the diplomatic bag stricto sensu as reflected inthe 1961 Vienna Convention on Diplomatic Relations,which does not provide the receiving or transit State with


the right laid down in paragraph 2. Some intermediatesolutions were also considered. In the end, and afterextensive consideration of the problem, the Commissionopted for the present formulation, which maintains theexisting regime as contained in the four codificationconventions as a compromise solution capable ofensuring better prospects of wide adherence by States tothe present articles.(10) It was made clear in the Commission that, subjectto article 6 on non-discrimination and reciprocity,nothing precluded States from introducing by agreement,in their mutual relations, other practices regarding thediplomatic bag. In particular, they could agree to submitthe consular bag to the regime of the diplomatic bag, orvice versa.(11) It was also recalled in the Commission that, inaccordance with article 58, paragraph 4, of the 1963Vienna Convention on Consular Relations, the exchangeof consular bags between two consular posts headed byhonorary consular officers in different States was notallowed without the consent of the two receiving Statesconcerned.

Article 29. Exemption from customs dutiesand taxes

The receiving State or the transit State shall, inaccordance with such laws and regulations as it may adopt,permit the entry, transit and departure of the diplomaticbag and grant exemption from customs duties, taxes andrelated charges other than charges for storage, cartage andsimilar services rendered.

Commentary

(1) There is no specific provision in the codificationconventions concerning the exemption from customsduties and taxes of the diplomatic bag. Article 29 is basedon the consideration that the bag and its contents arearticles for the official use of missions, consular posts anddelegations, since, according to the definition provided inarticle 25, the diplomatic bag "may contain only officialcorrespondence, and documents or articles intendedexclusively for official use". Taking the foregoing intoaccount, the sources for the present provision are article36 of the 1961 Vienna Convention on DiplomaticRelations, article 50 of the 1963 Vienna Convention onConsular Relations, article 35 of the 1969 Convention onSpecial Missions and articles 35 and 65 of the 1975 ViennaConvention on the Representation of States.

(2) The obligation for States to permit the entry, transitand departure of the diplomatic bag is well established ininternational law and State practice and constitutes anessential element of the principle of freedom of com-munication enshrined in article 4 by making possible thesafe, unimpeded and expeditious delivery of thediplomatic message. It is also a corollary of the officialcharacter of the correspondence, documents or articlescontained in the diplomatic bag. The rules andregulations of the receiving or transit State may setprinciples of orderly administration stipulating, forinstance, regular points of entry or exit.

(3) As to the exemptions provided for in article 29, theycover customs and other fiscal dues and taxes levied bythe transit or receiving State on the import or export ofgoods. The exemptions also concern related charges forcustoms clearance or other formalities, such as thosenecessary in some States to assure the exempt status of agiven object or article. The exemptions are granted inaccordance with the laws and regulations of the Statesconcerned and may cover national, regional or municipaldues and taxes, as provided for in the domestic rules andregulations of the receiving or transit State. However, theexemptions from customs duties and related charges, aswell as from other dues and taxes levied by the transit orreceiving State, do not cover charges for storage, cartage,transportation, postage or similar services rendered inconnection with the dispatch, transmission or delivery ofthe diplomatic bag. Some of these charges for services,such as postage or transportation, could be waived, butonly on the basis of reciprocal arrangements between thesending State and the receiving or transit State.

PART IV

MISCELLANEOUS PROVISIONS

Article 30. Protective measures in case of forcemajeure or other exceptional circumstances

1. Where, because of reasons of force majeure or otherexceptional circumstances, the diplomatic courier, or thecaptain of a ship or aircraft in commercial service to whomthe diplomatic bag has been entrusted, or any othermember of the crew, is no longer able to maintain custodyof the bag, the receiving State or the transit State shallinform the sending State of the situation and takeappropriate measures with a view to ensuring the integrityand safety of the bag until the authorities of the sendingState recover possession of it.

2. Where, because of reasons of force majeure or otherexceptional circumstances, the diplomatic courier or theunaccompanied diplomatic bag is present in the territory ofa State not initially foreseen as a transit State, that State,where aware of the situation, shall accord to the courierand the bag the protection provided for under the presentarticles and, in particular, extend facilities for their promptand safe departure from its territory.

Commentary

(1) Article 30 deals with certain obligations on the partof the receiving or transit State when force majeure orother exceptional circumstances (a) prevent thediplomatic courier or any person to whom thediplomatic bag has been entrusted under article 23,including any member of the crew of a ship or aircraft incommercial service, from maintaining custody of thebag; or (b) involve a diversion of the courier or the bagfrom their scheduled itinerary into the territory of anunforeseen transit State.

Paragraph 1(2) Paragraph 1 refers to the case where force majeureor other exceptional circumstances, such as death,


serious illness or an accident, prevent the courier, thecaptain of a ship or aircraft in commercial service towhom the diplomatic bag has been entrusted, or anyother member of the crew from maintaining custody ofthe bag. The exceptional character of the circumstancesinvolved and the significance of the protected interestswarrant the adoption on the part of the receiving ortransit State of special measures of protection of thesafety of the diplomatic bag. This obligation must beconsidered as an expression of international co-operation and solidarity by States in the promotion ofdiplomatic communications and derives from the generalprinciple of freedom of communication contemplated inarticle 4. It was made clear in the Commission thatparagraph 1 was not intended to cover the case of loss ofor mishaps to the diplomatic bag transmitted by postalservice or by any mode of transport (art. 26), since insuch cases it was for the service charged with thetransmission to assume responsibility under theexceptional circumstances envisaged in paragraph 1.(3) The action to be taken by the receiving or transitState in these exceptional circumstances includes theadoption of appropriate measures to protect the safety ofthe bag and its integrity. This requires the provision ofthe necessary conditions for the proper storage orcustody of the bag. The transit State or the receivingState must also inform the competent authorities of thesending State that the bag dispatched by that Statehappens to be in its custody due to exceptional cir-cumstances. When the sending State has a diplomaticmission or consular post in the receiving or transit State,this notification should be addressed to that mission orpost. In the absence of such a diplomatic mission orconsular post in their territory, the authorities of thereceiving State or transit State where the diplomatic bagwas found must notify either the Ministry of ForeignAffairs of the sending State or the mission of anotherState in their territory which is charged with theprotection of the interests of the sending State.

(4) Three clarifications were made in the Commissionwith regard to the conditions under which the above-mentioned obligations might arise for the receiving Stateor the transit State. First, it is understood that suchobligations can arise only when the receiving or transitState has knowledge of the existence of the exceptionalcircumstances referred to in paragraph 1. Secondly, inthe case of a bag entrusted to the captain of a ship oraircraft, the obligation would arise for the receiving ortransit State only when there was no one in the line ofcommand, or no other member of the crew, in a positionto maintain custody of the bag. Thirdly, the point wasalso made that the obligations imposed by paragraph 1on the receiving or transit State are of conduct ratherthan result, that is to say that the States concerned havethe duty to take all the appropriate measures reasonablynecessary with a view to ensuring the integrity and safetyof the bag, even though sometimes this end result mightnot be attained for reasons beyond their control.

Paragraph 2(5) The source of the provision set out in paragraph 2 isto be found in article 40, paragraph 4, of the 1961 ViennaConvention on Diplomatic Relations, article 54,paragraph 4, of the 1963 Vienna Convention on

Consular Relations, article 42, paragraph 5, of the 1969Convention on Special Missions and article 81,paragraph 5, of the 1975 Vienna Convention on theRepresentation of States.(6) As a rule, and in normal circumstances, the transitStates through which a diplomatic courier or anunaccompanied bag will pass on their way to their finaldestination are known in advance. However, there maybe cases, as stated in paragraphs (14) to (16) of thecommentary to article 3, in which the courier or the bagis compelled to enter or stay for some time in theterritory of a State which had not been foreseen as partof the normal itinerary. This may happen in cases offorce majeure or other exceptional circumstances such asadverse weather conditions, the forced landing of anaircraft, the breakdown of the means of transport, anatural disaster, or other events beyond the control ofthe courier or the carrier of the bag. Unlike a transitState known in advance which has granted a transit visa,if so required, a State through which a bag transits due toforce majeure cannot be foreseen: it comes into thepicture only in extraordinary situations. This is preciselythe situation envisaged in paragraph 2 of the presentarticle.

(7) The 1961 Vienna Convention on DiplomaticRelations was the first multilateral treaty to establish therule of transit passage of the members of a diplomaticmission and their families, as well as of the diplomaticcourier and the diplomatic bag, whose presence in theterritory of the transit State is due to force majeure (art.40, para. 4). By analogy with that provision, theunforeseen transit State is under an obligation to accordto the diplomatic courier and the diplomatic bag intransit the same inviolability and protection as areaccorded by the receiving State. Similar rules arecontained in the other codification conventionsmentioned in paragraph (5) of the present commentary.(8) The obligations arising for an unforeseen transitState in a case of force majeure or other exceptionalcircumstances fall into two main categories. First andforemost, there is the duty of protection, so as to ensurethe inviolability of the courier and the safety and confi-dentiality of the bag. Secondly, the unforeseen transitState should accord the courier or the bag all the facilitiesnecessary "for their prompt and safe departure from itsterritory". This expression should be understood asgiving the transit State the option to allow the courier orthe bag to continue their journey to their destination orto facilitate their return to the sending State. In thisconnection, the extent of the facilities to be accordedshould be dictated by the underlying purpose of thisprovision, namely the protection of unimpeded com-munications between States, and the principle of goodfaith in the fulfilment of international obligations and inthe conduct of international relations. These obligationsexist only when the transit State is aware of the situation.

Article 31. Non-recognition of States orGovernments or absence of diplomatic

or consular relations

The State on whose territory an internationalorganization has its seat or an office or a meeting of an


international organ or a conference is held shall grant thefacilities, privileges and immunities accorded under thepresent articles to the diplomatic courier and thediplomatic bag of a sending State directed to or from itsmission or delegation, notwithstanding the non-recognitionof one of those States or its Government by the other Stateor the non-existence of diplomatic or consular relationsbetween them.

Commentary

(1) The basic concept that the rights and obligations ofthe sending State and of the host State of an inter-national organization are not affected by non-recognition or by the non-existence of diplomatic orconsular relations between them is contained in article 82of the 1975 Vienna Convention on the Representation ofStates, which is therefore one of the sources for article 31.In drafting the present provision, the Commission's mainconcern has been clearly and precisely to define its objectand scope. This is why it focuses specifically on thegranting of facilities, privileges and immunities accordedunder the present articles to the diplomatic courier andthe diplomatic bag of a sending State directed to or fromits mission or delegation and why it opens with thedefinition of a "host State" as contained in paragraph 1(15) of article 1 of the 1975 Vienna Convention.

(2) Weighty reasons have led the Commission to theadoption of article 31. The importance and significanceof the functions of the courier and the purpose of the bagas practical means for the operation of official com-munications of States justify special protection andtreatment irrespective of problems of recognition ofStates or Governments or the existence or absence ofdiplomatic or consular relations. The proper functioningof official communications is in the interest of themaintenance of international co-operation and under-standing and should therefore be facilitated.

(3) Article 31 refers both to "non-recognition" and to"non-existence of diplomatic or consular relations"because recognition, whether of States or ofGovernments, does not necessarily imply the estab-lishment of diplomatic or consular relations.70

Furthermore, it covers both the non-recognition of thesending State by the host State and vice versa. The articlealso covers, as reflected in article 1, the inter se aspect ofcommunications between a sending State and itsmissions and delegations and vice versa.

(4) The granting of the facilities, privileges andimmunities referred to in the present article does not byitself imply recognition of the sending State or of itsGovernment by the States granting them. A fortiori, itdoes not imply either recognition by the sending State ofthe States granting those facilities, privileges andimmunities.

/0 See Official Records of the United Nations Conference on theRepresentation of States in their Relations with InternationalOrganizations, vol. II, Documents of the Conference (United Nationspublication, Sales No. E.75.V.12), pp. 52-53, para. (7) of thecommentary to article 79.

Article 32. Relationship between the present articlesand other conventions and agreements

1. The present articles shall, as between Parties tothem and to the conventions listed in subparagraph (1) ofparagraph 1 of article 3, supplement the rules on the statusof the diplomatic courier and the diplomatic bag containedin those conventions.

2. The provisions of the present articles are withoutprejudice to other international agreements in force asbetween parties to them.

3. Nothing in the present articles shall preclude theParties thereto from concluding international agreementsrelating to the status of the diplomatic courier and thediplomatic bag not accompanied by diplomatic courier,provided that such new agreements are not incompatiblewith the object and purpose of the present articles and donot affect the enjoyment by the other Parties to the presentarticles of their rights or the performance of theirobligations under the present articles.

Commentary1^

(1) The purpose of article 32 is to establish the legalrelationship between the rules governing the status of thediplomatic courier and the diplomatic bag notaccompanied by diplomatic courier contained in thepresent articles and those contained in various categoriesof agreements on the same subject-matter, whichcategories are dealt with separately in each paragraph.

Paragraph 1(2) Paragraph 1 refers to the relationship between thepresent articles and the three codification conventionsmentioned in article 3, paragraph 1 (1), namely the 1961Vienna Convention on Diplomatic Relations, the 1963Vienna Convention on Consular Relations and the 1975Vienna Convention on the Representation of States. Inthis connection, it should be noted that the main purposeof the elaboration of the present articles was the estab-lishment of a coherent and uniform regime governing thestatus of the courier and the bag. The desired har-monization and uniformity of the rules governing thelegal regime of official communications through thediplomatic courier and the diplomatic bag have beensought by means of the progressive development andcodification of additional, more elaborate and morespecific rules further regulating the matter. The presentarticles therefore do not purport to amend the above-mentioned conventions, something which could be doneonly by the States parties to them, but rather tosupplement the rules on the courier and the bagcontained in the codification conventions. Nevertheless,the application of some of the provisions of those con-ventions may be affected because of the supplementarycharacter of the present articles, which harmonize anddevelop the rules governing the legal regime of thecourier and the bag. If this is the case, resort should behad to the rules of the 1969 Vienna Convention on theLaw of Treaties72 concerning the application ofsuccessive treaties relating to the same subject-matter.

71 See also paragraphs 54-60 above.12 United Nations, Treaty Series, vol. 1155, p. 331.


(3) The words "as between Parties to them and to theconventions listed in . . . article 3" indicate that the sup-plementary character attributed to the present articlesapplies only when the States concerned are also parties tothe conventions in question.

Paragraph 2

(4) The direct source for paragraph 2 is article 73,paragraph 1, of the 1963 Vienna Convention onConsular Relations, with the exception of the words "arewithout prejudice to", which have been taken fromarticle 4 (a) of the 1975 Vienna Convention on theRepresentation of States.

(5) Paragraph 2 regulates the legal relationshipbetween the present articles and existing agreementsother than those referred to in paragraph 1. It is possiblethat, at the time of becoming parties to the presentarticles, States may already be parties to bilateral ormultilateral agreements on the same subject-matter otherthan the codification conventions. The numerousconsular conventions or agreements regulating consularrelations between some States are a case in point. Thepurpose of paragraph 2 is to reserve the position of thoseagreements regulating the same subject-matter and it actsas a safeguard clause in respect of the rights and obliga-tions of States deriving from those agreements. Theparagraph should be interpreted in the light of article30 of the 1969 Vienna Convention on the Law ofTreaties.

Paragraph 3

(6) Paragraph 3 draws its inspiration from article 4 (b)of the 1975 Vienna Convention on the Representation ofStates, but the source of the conditions contained thereinis article 41, paragraph 1 (b), of the 1969 ViennaConvention on the Law of Treaties.

(7) Paragraph 3 deals with the legal relationshipbetween the present articles and possible futureagreements that certain States parties to the articles maywish to conclude on the same subject-matter in order toconfirm, supplement, extend or amplify the provisionsthereof among those States parties. The paragraphrecognizes the right of States to conclude such newagreements but it sets some limitations intended tosafeguard the basic rules contained in the presentarticles. Thus the new agreements cannot beincompatible with the object and purpose of the presentarticles and cannot affect other parties in the enjoymentof their rights or the performance of their obligationsunder the articles. As indicated in paragraph (10) of thecommentary to article 28, an agreement whereby twoStates parties agreed to submit the consular bag to theregime of the diplomatic bag, or vice versa, would not becontrary to the object and purpose of the present articles.The same would be true of an agreement whereby twoStates stipulated that their bags were to be subject tomeans of electronic or mechanical examination.

(8) The provisions of paragraph 3 should be read inconjunction with the rules on non-discrimination and

reciprocity laid down in article 6, and with thecommentary thereto.

2. DRAFT OPTIONAL PROTOCOL ONE ON THE STATUS OFTHE COURIER AND THE BAG OF SPECIAL MISSIONS

DRAFT OPTIONAL PROTOCOL ONE ON THESTATUS OF THE COURIER AND THE BAGOF SPECIAL MISSIONS

The States Parties to the present Protocol and to thearticles on the status of the diplomatic courier and thediplomatic bag not accompanied by diplomatic courier,hereinafter referred to as "the articles",

Have agreed as follows:

Article I

The articles also apply to a courier and a bag employedfor the official communications of a State with its specialmissions within the meaning of the Convention on SpecialMissions of 8 December 1969, wherever situated, and forthe official communications of those missions with thesending State or with its other missions, consular posts ordelegations.

Article II

For the purposes of the articles:

(a) "mission" also means a special mission within themeaning of the Convention on Special Missions of 8December 1969;

(b) "diplomatic courier" also means a person dulyauthorized by the sending State as a courier of a specialmission within the meaning of the Convention on SpecialMissions of 8 December 1969 who is entrusted with thecustody, transportation and delivery of a diplomatic bagand is employed for the official communications referred toin article I of the present Protocol;

(c) "diplomatic bag" also means the packagescontaining official correspondence, and documents orarticles intended exclusively for official use, whetheraccompanied by a courier or not, which are used for theofficial communications referred to in article I of thepresent Protocol and which bear visible external marks oftheir character as a bag of a special mission within themeaning of the Convention on Special Missions of 8December 1969.

Article III

1. The present Protocol shall, as between Parties to itand to the Convention on Special Missions of 8 December1969, supplement the rules on the status of the diplomaticcourier and the diplomatic bag contained in thatConvention.

2. The provisions of the present Protocol are withoutprejudice to other international agreements in force asbetween parties to them.

3. Nothing in the present Protocol shall preclude theParties thereto from concluding international agreementsrelating to the status of the diplomatic courier and the


diplomatic bag not accompanied by diplomatic courier,provided that such new agreements are not incompatiblewith the object and purpose of the articles and do not affectthe enjoyment by the other Parties to the articles of theirrights or the performance of their obligations under thearticles.

Commentary

(1) As explained in the commentary to article 1, theCommission decided not to include in the scope of thedraft articles the couriers and bags of special missions asdefined in the 1969 Convention on Special Missions.Taking into account views expressed in the Commissionand by some Governments, and given the relatively smallnumber of parties to the 1969 Convention, theCommission felt that the inclusion of such couriers andbags in the scope of the articles might jeopardize wideracceptability of the articles among States not yet partiesto that Convention. Yet, conscious of the fact that theultimate goal of the present effort of progressivedevelopment and codification in the field of diplomaticand consular law is the creation of a comprehensive,coherent and uniform regime for all couriers and bags, theCommission did not wish to prevent States so wishingfrom applying the regime of the draft articles also tocouriers and bags of special missions. It therefore adoptedthe present draft optional protocol, whose only purpose isto provide States with the legal instrument to extend theapplication of the draft articles also to the above-mentioned couriers and bags. This solution is moreconsistent with the goals and reasons stated above thanthe solution adopted on first reading of the draft articles,whereby, despite the comprehensive scope of the articles,which covered all couriers and bags, States could, bymeans of an optional declaration provided for in article33 (later deleted), make at any time a written declarationspecifying any category of diplomatic courier and cor-responding category of diplomatic bag to which theywould not apply the articles. The present solutionintroduces a more appropriate and finely tuned balancebetween the need to ensure the realization of the above-mentioned goals in the progressive development andcodification of this area of diplomatic and consular lawand the interest of the international community inensuring the widest possible acceptability of the draftarticles.

(2) Each article of draft Optional Protocol One has itscounterpart, mutatis mutandis, in a provision of the draftarticles. Article I corresponds to article 1 of the draftarticles, article II to article 3, paragraph 1(1), (2) and (6),of the draft articles, and article III to article 32 of the draftarticles. The commentaries to the relevant draft articlesare therefore also applicable, mutatis mutandis, to thecorresponding provisions of the present draft protocol.(3) Article I, in defining the scope of the draft protocol,also lays down its object and purpose, namely theapplication of the draft articles also to couriers and bagsof special missions within the meaning of the 1969Convention on Special Missions. Except for the specificmention of couriers and bags of special missions withinthe meaning of that Convention, it adopts the sameformulation as article 1 of the draft articles.

(4) Article II defines the concepts which constitute thespecificity of article I on the scope of the draft protocol ascompared to article 1 on the scope of the draft articles.These concepts are "special mission", "courier of aspecial mission" and "bag of a special mission". Thepurpose of article II is to widen, for parties to theprotocol, the interpretation of the expressions "mission","diplomatic courier" and "diplomatic bag", whereverthey appear in the draft articles, to include also specialmissions and their couriers and bags. The article thuscomplements the definitions contained in article 3,paragraph 1 (1), (2) and (6), of the draft articles.

(5) Article III establishes the legal relationship between,on the one hand, the rules governing the status of thediplomatic courier and the diplomatic bag as they applyto couriers and bags of special missions by virtue of thedraft protocol and, on the other hand, the rulescontained in various categories of agreements on the samesubject-matter. The article adopts, mutatis mutandis, thestructure and formulation of article 32 of the draftarticles, various categories of agreements being dealt withseparately in each paragraph.

3. DRAFT OPTIONAL PROTOCOL TWO ON THE STATUS OFTHE COURIER AND THE BAG OF INTERNATIONALORGANIZATIONS OF A UNIVERSAL CHARACTER

DRAFT OPTIONAL PROTOCOL TWO ON THESTATUS OF THE COURIER AND THE BAGOF INTERNATIONAL ORGANIZATIONS OFA UNIVERSAL CHARACTER

The States Parties to the present Protocol and to thearticles on the status of the diplomatic courier and thediplomatic bag not accompanied by diplomatic courier,hereinafter referred to as "the articles",

Have agreed as follows:

Article I

The articles also apply to a courier and a bag employedfor the official communications of an internationalorganization of a universal character:

(a) with its missions and offices, wherever situated, andfor the official communications of those missions and officeswith each other;

(b) with other international organizations of a universalcharacter.

Article II

For the purposes of the articles:

(a) "diplomatic courier" also means a person dulyauthorized by the international organization as a courierwho is entrusted with the custody, transportation anddelivery of the bag and is employed for the officialcommunications referred to in article I of the presentProtocol;

(b) "diplomatic bag" also means the packagescontaining official correspondence, and documents orarticles intended exclusively for official use, whether


accompanied by a courier or not, which are used for theofficial communications referred to in article I of the presentProtocol and which bear visible external marks of theircharacter as a bag of an international organization.

Article HI

1. The present Protocol shall, as between Parties to itand to the Convention on the Privileges and Immunities ofthe United Nations of 13 February 1946 or the Conventionon the Privileges and Immunities of the SpecializedAgencies of 21 November 1947, supplement the rules on thestatus of the diplomatic courier and the diplomatic bag con-tained in those Conventions.

2. The provisions of the present Protocol are withoutprejudice to other international agreements in force asbetween parties to them.

3. Nothing in the present Protocol shall preclude theParties thereto from concluding international agreementsrelating to the status of the diplomatic courier and thediplomatic bag not accompanied by diplomatic courier,provided that such new agreements are not incompatiblewith the object and purpose of the articles and do not affectthe enjoyment by the other Parties to the articles of theirrights or the performance of their obligations under thearticles.

Commentary

(1) Under article 1 of the draft articles, the scope ofthose articles is confined to couriers and bags employedby States. Yet at different stages of the Commission'swork on the present topic, the question was raised as tothe possibility of extending the scope of the draft articlesto couriers and bags employed by international organ-izations in their official communications. The practicewhereby international organizations employ couriers andbags in their official communications is widespread andhas been recognized in important multilateral con-ventions regulating the status of international organ-izations. Thus article III (sect. 10), on facilities in respectof communications, of the 1946 Convention on thePrivileges and Immunities of the United Nations73 statesthat "the United Nations shall have the right to use codesand to dispatch and receive its correspondence by courieror in bags, which shall have the same immunities andprivileges as diplomatic couriers and bags". For its part,article IV (sect. 12), on facilities in respect of com-munications, of the 1947 Convention on the Privilegesand Immunities of the Specialized Agencies74 states that"the specialized agencies shall have the right to use codesand to dispatch and receive correspondence by courier orin sealed bags, which shall have the same immunities andprivileges as diplomatic couriers and bags". It is to benoted that a great number of States are parties to thesetwo Conventions, which not only recognize for theUnited Nations and its specialized agencies the right toemploy couriers and bags, but also equate those couriersand bags with diplomatic couriers and bags as far as theirstatus is concerned.

73 See footnote 43 above.74 See footnote 44 above.

(2) However, since opinions had been divided, both inthe Commission and in the comments and observationsreceived from Governments, as to the advisability ofenlarging the scope of the draft articles to cover alsocouriers and bags employed by international organ-izations, the Commission opted for confining the scope tocouriers and bags employed by States, in order not tojeopardize the acceptability of the draft articles. Yet italso believed it appropriate, in the light of the con-siderations set out in paragraph (1) of the presentcommentary, that States should be given the choice, ifthey so wished, to extend the application of the draftarticles to couriers and bags of, at least, internationalorganizations of a universal character. This was done bymeans of the present draft optional protocol.(3) Article I defines the scope of draft Optional ProtocolTwo as well as its object and purpose, namely theapplication of the draft articles to couriers and bagsemployed for the official communications of an inter-national organization of a universal character. The 1975Vienna Convention on the Representation of States (art.1, para. 1 (2)) defines the concept of an "internationalorganization of a universal character" as follows: "theUnited Nations, its specialized agencies, the InternationalAtomic Energy Agency and any similar [inter-governmental] organization whose membership andresponsibilities are on a world-wide scale". The articleencompasses the two-way or inter se character of theofficial communications (a) of an internationalorganization with its missions and offices, whereversituated; and (b) of those missions and offices with theorganization or with each other. The scope also coverscommunications by means of couriers and bags betweeninternational organizations of a universal character.

(4) The purpose of article II is to widen, for parties tothe protocol, the interpretation of the expressions"diplomatic courier" and "diplomatic bag", whereverthey appear in the draft articles, to include also "thecourier of an international organization" and "the bag ofan international organization". It thus complements thedefinitions contained in article 3, paragraph 1(1) and (2),of the draft articles.(5) Article III establishes the legal relationship between,on the one hand, the rules governing the status of thediplomatic courier and the diplomatic bag as they applyto couriers and bags of international organizations of auniversal character by virtue of the draft protocol and,on the other hand, the rules contained in variouscategories of agreements on the same subject-matter. Thearticle adopts, mutatis mutandis, the structure andformulation of article 32 of the draft articles, variouscategories of agreements being dealt with separately ineach paragraph. It is to be noted that paragraph 1 ofarticle III specifically mentions the 1946 Convention onthe Privileges and Immunities of the United Nations andthe 1947 Convention on the Privileges and Immunities ofthe Specialized Agencies, as those Conventions, becauseof the large number of parties thereto, may be consideredtruly universal codification conventions in the area ofprivileges and immunities of the United Nations and itsspecialized agencies. The commentary to the variousparagraphs of article 32 of the draft articles is alsoapplicable, mutatis mutandis, to article III of the draftprotocol.

Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by

Documents

Transcript of Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by