International Law. A Treatise Volume I Part 57

[Sidenote: Limitation of Inviolability.]

-- 388. As diplomatic envoys are sacrosanct, the principle of their inviolability is generally recognised. But there is one exception. For if a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving State in such a manner as makes it necessary to put him under restraint for the purpose of preventing similar acts, or in case he conspires against the receiving State and the conspiracy can be made futile only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent home. Thus in 1717 the Swedish Amba.s.sador Gyllenburg in London, who was an accomplice in a plot against King George I., was arrested and his papers were searched. In 1718 the Spanish Amba.s.sador Prince Cellamare in France was placed in custody because he organised a conspiracy against the French Government.[740] And it must be emphasised that a diplomatic envoy cannot make it a point of complaint if injured in consequence of his own unjustifiable behaviour, as for instance in attacking an individual who in self-defence retaliates, or in unreasonably or wilfully placing himself in dangerous or awkward positions, such as in a disorderly crowd.[741]

[Footnote 740: Details regarding these cases are given by Phillimore, II. ---- 166 and 170.]

[Footnote 741: See article 6 of the rules regarding diplomatic immunities adopted by the Inst.i.tute of International Law at its meeting at Cambridge in 1895 (Annuaire, XIV. p. 240).]

IX

EXTERRITORIALITY OF DIPLOMATIC ENVOYS

Vattel, IV. ---- 80-119--Hall, ---- 50, 52, 53--Westlake, I. pp.

263-273--Phillimore, II. ---- 176-210--Taylor, ---- 299-315--Twiss, I.

---- 217-221--Moore, II. ---- 291-304 and IV. ---- 660-669--Ullmann, -- 50--Geffcken in Holtzendorff, III. pp. 654-659--Nys, II. pp.

353-385--Rivier, I. 38--Bonfils, Nos. 700-721--Pradier-Fodere, III. ---- 1396-1495--Merignhac, II. pp. 249-293--Fiore, II. Nos.

1145-1163--Calvo, III. ---- 1499-1531--Martens, II. ---- 12-14--Gottschalck, "Die Exterritorialitat der Gesandten"

(1878)--Heyking, "L'exterritorialite" (1889)--Odier, "Des privileges et immunites des agents diplomatiques"

(1890)--Vercamer, "Des franchises diplomatiques et specialement de l'exterritorialite" (1891)--Droin, "L'exterritorialite des agents diplomatiques" (1895)--Mirre, "Die Stellung der volkerrechtlichen Literatur zur Lehre von den sogenannten Nebenrechten der gesandschaftlichen Functionare" (1904).

[Sidenote: Reason and Fictional Character of Exterritoriality.]

-- 389. The exterritoriality which must be granted to diplomatic envoys by the Munic.i.p.al Laws of all the members of the Family of Nations is not, as in the case of sovereign heads of States, based on the principle _par in parem non habet imperium_, but on the necessity that envoys must, for the purpose of fulfilling their duties, be independent of the jurisdiction, the control, and the like, of the receiving States.

Exterritoriality, in this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States. The term "Exterritoriality" is nevertheless valuable, because it demonstrates clearly the fact that envoys must in most points be treated as though they were not within the territory of the receiving States.[742] And the so-called exterritoriality of envoys is actualised by a body of privileges which must be severally discussed.

[Footnote 742: With a few exceptions (see Droin, "L'exterritorialite des agents diplomatiques" (1895), pp. 32-43), all publicists accept the term and the fiction of exterritoriality.]

[Sidenote: Immunity of Domicile.]

-- 390. The first of these privileges is immunity of domicile, the so-called _Franchise de l'hotel_. The present immunity of domicile has developed from the former condition of things, when the official residences of envoys were in every point considered to be outside the territory of the receiving States, and when this exterritoriality was in many cases even extended to the whole quarter of the town in which such a residence was situated. One used then to speak of a _Franchise du quartier_ or the _Jus quarteriorum_. And an inference from this _Franchise du quartier_ was the so-called right of asylum, envoys claiming the right to grant asylum within the boundaries of their residential quarters to every individual who took refuge there.[743] But already in the seventeenth century most States opposed this _Franchise du quartier_, and it totally disappeared in the eighteenth century, leaving behind, however, the claim of envoys to grant asylum within their official residences. Thus, when in 1726 the Duke of Ripperda, first Minister to Philip V. of Spain, who was accused of high treason and had taken refuge in the residence of the English Amba.s.sador in Madrid, was forcibly arrested there by order of the Spanish Government, the British Government complained of this act as a violation of International Law.[744] Twenty-one years later, in 1747, a similar case occurred in Sweden. A merchant named Springer was accused of high treason and took refuge in the house of the English Amba.s.sador at Stockholm. On the refusal of the English envoy to surrender Springer, the Swedish Government surrounded the emba.s.sy with troops and ordered the carriage of the envoy, when leaving the emba.s.sy, to be followed by mounted soldiers. At last Springer was handed over to the Swedish Government under protest, but England complained and called back her amba.s.sador, as Sweden refused to make the required reparation.[745] As these two examples show, the right of asylum, although claimed and often conceded, was nevertheless not universally recognised. During the nineteenth century all remains of it vanished, and when in 1867 the French envoy in Lima claimed it, the Peruvian Government refused to concede it.[746]

[Footnote 743: Although this right of asylum was certainly recognised by the States in former centuries, it is of interest to note that Grotius did not consider it postulated by International Law, for he says of this right (II. c. 18, -- 8): "Ex concessione pendet ejus apud quem agit.

Istud enim juris gentium non est." See also Bynkershoek, "De foro legat." c. 21.]

[Footnote 744: See Martens, "Causes Celebres," I. p. 178.]

[Footnote 745: See Martens, "Causes Celebres," II. p. 52.]

[Footnote 746: The South American States, Chili excepted, still grant the right to foreign envoys to afford asylum to political refugees in time of revolution. It is, however, acknowledged that this right is not based upon a rule of International Law, but merely upon _local_ usage.

See Hall, -- 52; Westlake, I. p. 272; Moore, II. ---- 291-304; Chilbert in A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508; Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That actually in times of revolution and of persecution of certain cla.s.ses of the population asylum is occasionally granted to refugees and respected by the local authorities, there is no doubt, but this occasional practice does not shake the validity of the general rule of International Law according to which there is no obligation on the part of the receiving State to grant to envoys the right of affording asylum to individuals not belonging to their suites. See, however, Moore, II.

-- 293.]

Nowadays the official residences of envoys are _in a sense and in some respects only_ considered as though they were outside the territory of the receiving States. For the immunity of domicile granted to diplomatic envoys comprises the inaccessibility of these residences to officers of justice, police, or revenue, and the like, of the receiving States without the special consent of the respective envoys. Therefore, no act of jurisdiction or administration of the receiving Governments can take place within these residences, except by special permission of the envoys. And the stables and carriages of envoys are considered to be parts of their residences. But such immunity of domicile is granted only in so far as it is necessary for the independence and inviolability of envoys and the inviolability of their official doc.u.ments and archives. If an envoy abuses this immunity, the receiving Government need not bear it pa.s.sively. There is, therefore, no obligation on the part of the receiving State to grant an envoy the right of affording asylum to criminals or to other individuals not belonging to his suite.

Of course, an envoy need not deny entrance to criminals who want to take refuge in the emba.s.sy. But he must surrender them to the prosecuting Government at its request, and, if he refuses, any measures may be taken to induce him to do so, apart from such as would involve an attack on his person. Thus, the emba.s.sy may be surrounded by soldiers, and eventually the criminal may even forcibly be taken out of the emba.s.sy.

But such measures of force are justifiable only if the case is an urgent one, and after the envoy has in vain been required to surrender the criminal. Further, if a crime is committed inside the house of an envoy by an individual who does not enjoy personally the privilege of exterritoriality, the criminal must be surrendered to the local Government. The case of Nikitschenkow, which occurred in Paris in 1867, is an instance thereof. Nikitschenkow, a Russian subject not belonging to the Russian Legation, made an attempt on and wounded a member of that legation within the precincts of the emba.s.sy. The French police were called in and arrested the criminal. The Russian Government required his extradition, maintaining that, as the crime was committed inside the Russian Emba.s.sy, it fell exclusively under Russian jurisdiction; but the French Government refused extradition and Russia dropped her claim.

Again, an envoy has no right to seize a subject of his home State who is within the boundaries of the receiving State and keep him under arrest inside the emba.s.sy with the intention of bringing him away into the power of his home State. An instance thereof is the case of the Chinaman Sun Yat Sen which occurred in London in 1896. This was a political refugee from China living in London. He was induced to enter the house of the Chinese Legation and kept under arrest there in order to be conveyed forcibly to China, the Chinese envoy contending that, as the house of the legation was Chinese territory, the English Government had no right to interfere. But the latter did interfere, and Sun Yat Sen was released after several days.

As a contrast to this case may be mentioned that of Kalkstein which occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian subject, had fled to Poland for political reasons since he was accused of high treason against the Prussian Government. Now Frederic William, the great Elector of Brandenburg, ordered his diplomatic envoy at Warsaw, the capital of Poland, to obtain possession of the person of Kalkstein. On November 28, 1670, this order was carried out. Kalkstein was secretly seized, and, wrapped up in a carpet, was carried across the frontier. He was afterwards executed at Memel.

[Sidenote: Exemption from Criminal and Civil Jurisdiction.]

-- 391. The second privilege of envoys in reference to their exterritoriality is their exemption from criminal and civil jurisdiction. As their exemption from criminal jurisdiction is also a consequence of their inviolability, it has already been discussed,[747]

and we have here to deal with their exemption from civil jurisdiction only. No civil action of any kind as regards debts and the like can be brought against them in the Civil Courts of the receiving States. They cannot be arrested for debts, nor can their furniture, their carriages, their horses, and the like, be seized for debts. They cannot be prevented from leaving the country for not having paid their debts, nor can their pa.s.sports be refused to them on the same account. Thus, when in 1772 the French Government refused the pa.s.sports to Baron de Wrech, the envoy of the Landgrave of Hesse-Ca.s.sel at Paris, for not having paid his debts, all the other envoys in Paris complained of this act of the French Government as a violation of International Law.[748] But the rule that an envoy is exempt from civil jurisdiction has certain exceptions.

If an envoy enters an appearance to an action against himself, or if he himself brings an action under the jurisdiction of the receiving State, the courts of the latter have civil jurisdiction in such cases over him.

And the same is valid as regards real property held within the boundaries of the receiving State by an envoy, not in his official character, but as a private individual, and as regards mercantile[749]

ventures in which he might engage on the territory of the receiving State.

[Footnote 747: See above, ---- 387-388.]

[Footnote 748: See Martens, "Causes Celebres," II. p. 282.]

[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of diplomatic envoys from English jurisdiction is based, does not exclude such envoy as embarks on mercantile ventures from the benefit of the Act, and the practice of the English Courts grants, therefore, to foreign envoys even in such cases exemption from local jurisdiction; see the case (1859) of Magdalena Steam Navigation Co. _v._ Martin, 2 Ellis and Ellis 94, overruling the case of Taylor _v._ Best, 14 C.B. 487. See also Westlake, I. p. 267.]

[Sidenote: Exemption from Subpoena as witness.]

-- 392. The third privilege of envoys in reference to their exterritoriality is exemption from subpoena as witnesses. No envoy can be obliged, or even required, to appear as a witness in a civil or criminal or administrative Court, nor is an envoy obliged to give evidence before a Commissioner sent to his house. If, however, an envoy chooses for himself to appear as a witness or to give evidence of any kind, the Courts can make use of such evidence. A remarkable case of this kind is that of the Dutch envoy Dubois in Was.h.i.+ngton, which happened in 1856. A case of homicide occurred in the presence of M.

Dubois, and, as his evidence was absolutely necessary for the trial, the Foreign Secretary of the United States asked Dubois to appear before the Court as a witness, recognising the fact that Dubois had no duty to do so. When Dubois, on the advice of all the other diplomatic envoys in Was.h.i.+ngton, refused to comply with this desire, the United States brought the matter before the Dutch Government. The latter, however, approved of Dubois' refusal, but authorised him to give evidence under oath before the American Foreign Secretary. As, however, such evidence would have had no value at all according to the local law, Dubois'

evidence was not taken, and the Government of the United States asked the Dutch Government to recall him.[750]

[Footnote 750: See Wharton, I. -- 98; Moore, IV. -- 662; and Calvo, III. -- 1520.]

[Sidenote: Exemption from Police.]

-- 393. The fourth privilege of envoys in reference to their exterritoriality is exemption from the police of the receiving States.

Orders and regulations of the police do in no way bind them. On the other hand, this exemption from police does not contain the privilege of an envoy to do what he likes as regards matters which are regulated by the police. Although such regulations can in no way bind him, an envoy enjoys the privilege of exemption from police under the presupposition that he acts and behaves in such a manner as harmonises with the internal order of the receiving State. He is, therefore, expected to comply voluntarily with all such commands and injunctions of the local police as, on the one hand, do not restrict him in the effective exercise of his duties, and, on the other hand, are of importance for the general order and safety of the community. Of course, he cannot be punished if he acts otherwise, but the receiving Government may request his recall or even be justified in other measures of such a kind as do not injure his inviolability. Thus, for instance, if in time of plague an envoy were not voluntarily to comply with important sanitary arrangements of the local police, and if there were great danger in delay, a case of necessity would be created and the receiving Government would be justified in the exercise of reasonable pressure upon the envoy.

[Sidenote: Exemption from Taxes and the like.]

-- 394. The fifth privilege of envoys in reference to their exterritoriality is exemption from taxes and the like. As an envoy, through his exterritoriality, is considered not to be subjected to the territorial supremacy of the receiving State, he must be exempt from all direct personal taxation and therefore need not pay either income-tax or other direct taxes. As regards rates, it is necessary to draw a distinction. Payment of rates imposed for local objects from which an envoy himself derives benefit, such as sewerage, lighting, water, night-watch, and the like, can be required of the envoy, although this is often[751] not done. Other rates, however, such as poor-rates and the like, he cannot be requested to pay. As regards customs duties, International Law does not claim the exemption of envoys therefrom.

Practically and by courtesy, however, the Munic.i.p.al Laws of many States allow diplomatic envoys within certain limits the entry free of duty of goods intended for their own private use. If the house of an envoy is the property of his home State or his own property, the house need not be exempt from property tax, although it is often so by the courtesy of the receiving State. Such property tax is not a personal and direct, but an indirect tax.

[Footnote 751: As, for instance, in England where the payment of local rates cannot be enforced by suit or distress against a member of a legation; see Parkinson _v._ Potter, 16 Q.B. 152, and Macartney _v._ Garb.u.t.t, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.]

[Sidenote: Right of Chapel.]

-- 395. A sixth privilege of envoys in reference to their exterritoriality is the so-called Right of Chapel (_Droit de chapelle_ or _Droit du culte_). This is the privilege of having a private chapel for the practice of his own religion, which must be granted to an envoy by the Munic.i.p.al Law of the receiving State. A privilege of great worth in former times, when freedom of religious wors.h.i.+p was unknown in most States, it has at present an historical value only. But it has not disappeared, and might become again of actual importance in case a State should in the future give way to reactionary intolerance. It must, however, be emphasised that the right of chapel must only comprise the privilege of religious wors.h.i.+p in a private chapel inside the official residence of the envoy. No right of having and tolling bells need be granted. The privilege includes the office of a chaplain, who must be allowed to perform every religious ceremony within the chapel, such as baptism and the like. It further includes permission to all the compatriots of the envoy, even if they do not belong to his retinue, to take part in the service. But the receiving State need not allow its own subjects to take part therein.

[Sidenote: Self-jurisdiction.]

-- 396. The seventh and last privilege of envoys in reference to their exterritoriality is self-jurisdiction within certain limits. As the members of his retinue are considered exterritorial, the receiving State has no jurisdiction over them, and the home State may therefore delegate such civil and criminal jurisdiction to the envoy. But no receiving State is required to grant self-jurisdiction to an amba.s.sador beyond a certain reasonable limit. Thus, an envoy must have jurisdiction over his retinue in matters of discipline, he must be able to order the arrest of a member of his retinue who has committed a crime and is to be sent home for his trial, and the like. But no civilised State would nowadays allow an envoy himself to try a member of his retinue. This was done in former centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on a special mission to England, called together a French jury in London and had a member of his retinue condemned to death for murder. The convicted man was handed over for execution to the English authorities, but James I. reprieved him.[752]

[Footnote 752: See Martens, "Causes Celebres," I. p. 391. See also the two cases reported by Calvo, III. -- 1545.]

X

POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES