The Vienna Convention on Diplomatic Relations
At the last moment during the hearing before the Divisional Court, the FCO took a new point on the inviolability, and hence the inadmissibility, of the cable. The Divisional Court agreed, but the CA disagreed on both scores.
The argument founds on Article 24 of the 1961 Vienna Convention on Diplomatic Relations, which states that
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
The argument in the CA was evidently more sophisticated than that in the Divisional Court, with specialist international lawyers on both sides.
Inviolability
The initial point taken on behalf of the Chagossians was that the Convention did not apply. The cable was not taken from the US mission within the UK, and hence the UK is not a receiving state and the US is not a sending state within the Convention. The words “wherever they may be” in Article 24 must be restricted to those archives and documents held within the receiving state’s territory.
Hence, the UK cannot violate the diplomatic archives or documents of the US mission in the UK if they are not in its territory or otherwise under its jurisdiction. It was irrelevant whether the documents originated in the US mission in the UK or not.
The CA did not decide the point, but was evidently sympathetic to the Chagossians’ argument:
We see considerable force in the general approach advocated by Professor McCorquodale, but in the light of our decision on the question of admissibility below, we do not find it necessary to express a concluded view about it.
Admissibility
The Divisional Court had said that if the correspondence was inviolable, then it became inadmissible. It relied upon a dictum by Lord Bridge in Shearson Inc v. Maclaine Ltd (No.2) [1988] 1 WLR 16 on these provisions of the Convention
The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.
The CA disagreed; even if potentially inviolable, the document was admissible. It decided that Lord Bridge’s dictum was obiter (not necessary for the decision) and should not be followed. It concluded that
To summarise, we would allow the appeal on the admissibility issue on the narrow basis that admitting the cable in evidence in the instant case did not violate the archive and documents of the US mission, since it had already been disclosed to the world by a third party. [65]
The core of their argument was summarised at [58]
Inviolability involves the placing of a protective ring around the ambassador, the embassy and its archives and documents which neither the receiving state nor the courts of the receiving state may lawfully penetrate. If, however, a relevant document has found its way into the hands of a third party, even in consequence of a breach of inviolability, it is prima facie admissible in evidence. The concept of inviolability has no relevance where no attempt is being made to exercise compulsion against the embassy. Inviolability, like other diplomatic immunities, is a defence against an attempt to exercise state power and nothing more.
There was no exercise of (UK) state power here; one cannot equate use in court with the exercise of state power.
Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708
Dated;23 May 2014
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