India feels existing norms for immunity of state correspondence will apply to cyberspace

India is quietly working at ensuring that long-standing international norms governing the immunity of diplomatic correspondence also guide state behaviour in cyberspace following revelations by whistleblower Edward Snowden about the United States intercepting diplomatic e-mails of several countries including the Indian mission in Washington.

Upset as other countries are by revelations that the U.S. has been subjecting their diplomatic premises to electronic snooping, India has held its fire in public. But internally, the government feels the existing body of international law must be extended to ensure that diplomatic missions are free from interception of privileged electronic communications.

The government has revisited the ubiquitous Vienna Convention and the lesser-known Tallinn Manual of the Northern Atlantic Treaty Organisation (NATO) and feels the application of norms derived from existing international laws is an essential measure to decrease the risks to international peace and security due to unlawful snooping of diplomatic e-mails.

For the moment, the U.S. has tried to ensure that the controversy will be kept out of this year’s session of the U.N. General Assembly by the simple method of setting up a committee.

Nevertheless, the problem is not going to go away. Indian officials note that when the Vienna Convention on Diplomatic Relations is read with the International Court of Justice’s Tehran Hostages judgement, it is amply clear that protection applies to diplomatic archives at any time and wherever they might be.

Though the subject needs greater study and consultation, Indian officials feel states cannot get away from their international obligation of ensuring there is no breaking of what they call diplomatic e-immunity. They agree with cyber law experts such as Jovan Kurbalija that digital assets enjoy the same diplomatic protection as their physical ones and that there is no need for new rules to govern cyberspace.

With this view, the officials feel the Vienna Convention’s Articles 24 (the host country must protect the mission from intrusion or damage and never search the premises, nor seize its documents or property) and 27 (host country must permit and protect free communication between the diplomats at the mission and their home country; a diplomatic bag must never be opened even on suspicion of abuse; a diplomatic courier must never be arrested or detained) could be extended to ensuring e-immunity.

The issue of interception of diplomatic e-mails is going to remain even though some states might seek to score points against the U.S. on the Snowden affair in case a debate ever takes place during the forthcoming U.N. General Assembly. This is because as countries start looking for cheaper storage space in cloud computing, there will be an increase in vulnerability of diplomatic communications as compared to in-house servers, which are becoming more expensive by the day.

Diplomats here find the Tallinn Manual more contemporary as its recommendations have come in the context of earlier instances of cyber warfare such as the cyber attack of unknown origin against Estonia in 2007, Georgia in 2008 and the now-famous Israeli-American attack on Iranian centrifuges in an operation codenamed Olympic Games. Although the manual has been framed by a select group of countries, officials here agree with its recommendation that diplomatic archives and communications are protected from cyber operations at all times.

Some officials, however, point out that this is just the beginning. A long road lies ahead, especially on the question of the host government’s obligation to ensure e-immunity in an environment where private companies could also be involved in breaching such norms. In that case, diplomats might have to use a special identification which companies and states would have to respect. A second option is for the global community wait for the first case on the issue — most probably based on Snowden’s revelations at the International Court of Justice — and the verdict that comes out of it.

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