CHAPTER II DIPLOMATIC ENVOYS
I THE INSTITUTION OF LEGATION
Phillimore, II. §§ 143-153—Taylor, § 274—Twiss, § 199—Geffcken in Holtzendorff, III. pp. 605-618—Nys, II. pp. 335-339—Rivier, I. § 35—Ullmann, § 44—Martens, II. § 6—Gentilis, "De legationibus libri III." (1585)—Wicquefort, "L'Ambassadeur et ses fonctions" (1680)—Bynkershoek, "De foro legatorum" (1721)—Garden, "Traité complet de diplomatie" (3 vols. 1833)—Mirus, "Das europäische Gesandtschaftsrecht" (2 vols. 1847)—Charles de Martens, "Le guide diplomatique" (2 vols. 1832; 6th ed. by Geffcken, 1866)—Montague Bernard, "Four Lectures on Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd Lecture)—Alt, "Handbuch des Europäischen Gesandtschaftsrechts" (1870)—Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd ed. 1899)—Krauske, "Die Entwickelung der ständigen Diplomatie," &c. (1885)—Lehr, "Manuel théorique et pratique des agents diplomatiques" (1888)—Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905), vol. II. (1906; the other vols. have not yet appeared).
Development of Legations.
§ 358. Legation as an institution for the purpose of negotiating between different States is as old as history, whose records are full of examples of legations sent and received by the oldest nations. And it is remarkable that even in antiquity, where no such law as the modern International Law was known, ambassadors enjoyed everywhere a special protection and certain privileges, although not by law but by religion, ambassadors being looked upon as sacrosanct. Yet permanent legations were unknown till very late in the Middle Ages. The fact that the Popes had permanent representatives—so-called apocrisiarii or responsales—at the Court of the Frankish Kings and at Constantinople until the final separation of the Eastern from the Western Church, ought not to be considered as the first example of permanent legations, as the task of these papal representatives had nothing to do with international affairs, but with those of the Church only. It was not until the thirteenth century that the first permanent legations made their appearance. The Italian Republics, and Venice in especial, created the example[713] by keeping representatives stationed at one another's capitals for the better negotiation of their international affairs. And in the fifteenth century these Republics began to keep permanent representatives in Spain, Germany, France, and England. Other States followed the example. Special treaties were often concluded stipulating permanent legations, such as in 1520, for instance, between the King of England and the Emperor of Germany. From the end of the fifteenth century England, France, Spain, and Germany kept up permanent legations at one another's Courts. But it was not until the second half of the seventeenth century that permanent legations became a general institution, the Powers following the example of France under Louis XIV. and Richelieu. It ought to be specially mentioned that Grotius[714] thought permanent legations to be wholly unnecessary. The course of events has, however, shown that Grotius's views as regards permanent legations were short-sighted. Nowadays the Family of Nations could not exist without them, as they are the channel through which nearly the whole, and certainly all important, official intercourse of the States flows.
[713] See Nys, "Les Origines du droit international" (1894), p. 295.
[714] "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae."
Diplomacy.
§ 359. The rise of permanent legations created the necessity for a new class of State officials, the so-called diplomatists; yet it was not until the end of the eighteenth century that the terms "diplomatist" and "diplomacy" came into general use. And although the art of diplomacy is as old as official intercourse between States, such a special class of officials as are now called diplomatists did not and could not exist until permanent legations had become a general institution. In this as in other cases the office has created the class of men necessary for it. International Law has nothing to do with the education and general character of these officials. Every State is naturally competent to create its own rules, if any, as regards these points. Nor has International Law anything to do with diplomatic usages, although these are more or less of importance, as they may occasionally grow into customary rules of International Law. But I would notice one of these usages—namely, that as regards the language which is in use in diplomatic intercourse. This language was formerly Latin, but through the political ascendency of France under Louis XIV. it became French. However, this is a usage of diplomacy only, and not a rule of International Law.[715] Each State can use its own language in all official communications to other States, and States which have the same language regularly do so in their intercourse with each other. But between States of different tongues and, further, at Conferences and Congresses, it is convenient to make use of a language which is generally known. This is nowadays French, but nothing could prevent diplomatists from dropping French at any moment and adopting another language instead.
[715] See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 266-268.
II RIGHT OF LEGATION
Grotius, II. c. 18—Vattel, IV. §§ 55-68—Hall, § 98—Phillimore, II. §§ 115-139—Taylor, §§ 285-288—Twiss, §§ 201-202—Wheaton, §§ 206-209—Bluntschli, §§ 159-165—Heffter, § 200—Geffcken in Holtzendorff, III. pp 620-631—Ullmann, § 45—Rivier, I. § 35—Nys, II. p. 339—Bonfils, Nos. 658-667—Pradier-Fodéré, II. Nos. 1225-1256—Fiore, II. Nos. 1112-1117—Calvo, III. §§ 1321-1325—Martens, II. §§ 7-8.
Conception of Right of Legation.
§ 360. Right of legation is the right of a State to send and receive diplomatic envoys. The right to send such envoys is termed active right of legation, in contradistinction to the passive right of legation, as the right to receive such envoys is termed. Some writers[716] on International Law assert that no right but a mere competence to send and receive diplomatic envoys exists according to International Law, maintaining that no State is bound by International Law to send or receive such envoys. But this is certainly wrong in its generality. Obviously a State is not bound to send diplomatic envoys or to receive permanent envoys. But, on the other hand, the very existence[717] of the Family of Nations makes it necessary for the members or some of the members to negotiate occasionally on certain points. Such negotiation would be impossible in case one member could always and under all circumstances refuse to receive an envoy from the other members. The duty of every member to listen, under ordinary circumstances, to a message from another brought by a diplomatic envoy is, therefore, an outcome of its very membership of the Family of Nations, and this duty corresponds to the right of every member to send such envoys. But the exercise of the active right of legation is discretionary. No State need send diplomatic envoys at all, although practically all States do at least occasionally send such envoys, and most States send permanent envoys to many other States. The passive right of legation is discretionary as regards the reception of permanent envoys only.
[716] See, for instance, Wheaton, § 207; Heilborn, "System," p. 182.
What States possess the Right of Legation.
§ 361. Not every State, however, possesses the right of legation. Such right pertains chiefly to full-Sovereign States,[718] for other States possess this right under certain conditions only.
[718] It should be emphasised that the Holy See, which is in some respects treated as though an International Person, can send and receive envoys, who must in every respect be considered as though they were diplomatic envoys. That they are actually not diplomatic envoys, although so treated, becomes apparent from the fact that they are not agents for international affairs of States, but exclusively for affairs of the Roman Catholic Church. (See above, § [106].)
(1) Half-Sovereign States, such as States under the suzerainty or the protectorate of another State, can as a rule neither send nor receive diplomatic envoys. Thus, Crete and Egypt are destitute of such right, and the Powers are represented in these States only by consuls or agents without diplomatic character. But there may be exceptions to this rule. Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia and Turkey, the two half-Sovereign principalities of Moldavia and Wallachia had the right of sending Chargés d'Affaires to foreign Powers. Thus, further, the late South African Republic, which was a State under British suzerainty in the opinion of Great Britain, used to keep permanent diplomatic envoys in several foreign States.
(2) Part-Sovereign member-States of a Federal State may or may not have the right of legation besides the Federal State. It is the constitution of the Federal State which regulates this point. Thus, the member-States of Switzerland and of the United States of America have no right of legation, but those of the German Empire certainly have. Bavaria, for example, sends and receives several diplomatic envoys.
Right of Legation by whom exercised.
§ 362. As, according to International Law, a State is represented in its international relations by its head, it is he who acts in the exercise of his State's right of legation. But Municipal Law may, just as it designates the person who is the head of the State, impose certain conditions and restrictions upon the head as regards the exercise of such right. And the head himself may, provided that it is sanctioned by the Municipal Law of his State, delegate[719] the exercise of such right to any representative he chooses.
[719] See Phillimore, II. §§ 126-133, where several interesting cases of such delegation are discussed.
It may, however, in consequence of revolutionary movements, be doubtful who the real head of a State is, and in such cases it remains in the discretion of foreign States to make their choice. But it is impossible for foreign States to receive diplomatic envoys from both claimants to the headship of the same State, or to send diplomatic envoys to both of them. And as soon as a State has recognised the head of a State who came into his position through a revolution, it can no longer keep up diplomatic relations with the former head.
It should be mentioned that a revolutionary party which is recognised as a belligerent Power has nevertheless no right of legation, although foreign States may negotiate with such party in an informal way through political agents without diplomatic character, to provide for the temporal security of the persons and property of their subjects within the territory under the actual sway of such party. Such revolutionary party as is recognised as a belligerent Power is in some points only treated as though it were a subject of International Law; but it is not a State, and there is no reason why International Law should give it the right to send and receive diplomatic envoys.
It should further be mentioned that neither an abdicated nor a deposed head has a right to send and receive diplomatic envoys.[720]
[720] See Phillimore, II. §§ 124-125, where the case of Bishop Ross, ambassador of Mary Queen of Scots, is discussed.
III KINDS AND CLASSES OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 69-75—Phillimore, II. §§ 211-224—Twiss, I. §§ 204-209—Moore, IV. § 624—Heffter, § 208—Geffcken in Holtzendorff, III. pp. 635-646—Calvo, III. §§ 1326-1336—Bonfils, Nos. 668-676—Pradier-Fodéré, III. §§ 1277-1290—Rivier, I. pp. 443-453—Nys, II. pp. 342-352.
Envoys Ceremonial and Political.
§ 363. Two different kinds of diplomatic envoys are to be distinguished—namely, such as are sent for political negotiations and such as are sent for the purpose of ceremonial function or notification of changes in the headship. For States very often send special envoys to one another on occasion of coronations, weddings, funerals, jubilees, and the like; and it is also usual to send envoys to announce a fresh accession to the throne. Such envoys ceremonial have the same standing as envoys political for real State negotiations. Among the envoys political, again, two kinds are to be distinguished—namely, first, such as are permanently or temporarily accredited to a State for the purpose of negotiating with such State, and, second, such as are sent to represent the sending State at a Congress or Conference. The latter are not, or need not be, accredited to the State on whose territory the Congress or Conference takes place, but they are nevertheless diplomatic envoys and enjoy all the privileges of such envoys as regards exterritoriality and the like which concern the inviolability and safety of their persons and the members of their suites.
Classes of Diplomatic Envoys.
§ 364. Diplomatic envoys accredited to a State differ in class. These classes did not exist in the early stages of International Law. But during the sixteenth century a distinction between two classes of diplomatic envoys gradually arose, and at about the middle of the seventeenth century, after permanent legations had come into general vogue, two such classes became generally recognised—namely, extraordinary envoys, called Ambassadors, and ordinary envoys, called Residents; Ambassadors being received with higher honours and taking precedence of the other envoys. Disputes arose frequently regarding precedence, and the States tried in vain to avoid them by introducing during the eighteenth century another class—namely, the so-called Ministers Plenipotentiary. At last the Powers assembled at the Vienna Congress came to the conclusion that the matter ought to be settled by an international understanding, and they agreed, therefore, on March 19, 1815, upon the establishment of three different classes—namely, first, Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary; third, Chargés d'Affaires. And the five Powers assembled at the Congress of Aix-la-Chapelle in 1818 agreed upon a fourth class—namely, Ministers Resident, to rank between Ministers Plenipotentiary and Chargés d'Affaires. All the other States either expressly or tacitly accepted these arrangements, so that nowadays the four classes are an established order. Although their privileges are materially the same, they differ in rank and honours, and they must therefore be treated separately.
Ambassadors.
§ 365. Ambassadors form the first class. Only States enjoying royal honours[721] are entitled to send and to receive Ambassadors, as also is the Holy See, whose first-class envoys are called Nuncios, or Legati a latere or de latere. Ambassadors are considered to be personal representatives of the heads of their States and enjoy for this reason special honours. Their chief privilege—namely, that of negotiating with the head of the State personally—has, however, little value nowadays, as almost all States have to a certain extent constitutional government, which necessitates that all the important business should go through the hands of a Foreign Secretary.
[721] See above, § [117, No. 1].
Ministers Plenipotentiary and Envoys Extraordinary.
§ 366. The second class, the Ministers Plenipotentiary and Envoys Extraordinary, to which also belong the Papal Internuncios, are not considered to be personal representatives of the heads of their States. Therefore they do not enjoy all the special honours of the Ambassadors, and have not the privilege of treating with the head of the State personally. But otherwise there is no difference between these two classes.
Ministers Resident.
§ 367. The third class, the Ministers Resident, enjoy fewer honours and rank below the Ministers Plenipotentiary. But beyond the fact that Ministers Resident do not enjoy the title "Excellency," there is no difference between them and the Ministers Plenipotentiary.
Chargés d'Affaires.
§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one point from the first, second, and third class—namely, in so far as its members are accredited from Foreign Office to Foreign Office, whereas the members of the other classes are accredited from head of State to head of State. Chargés d'Affaires do not enjoy, therefore, so many honours as other diplomatic envoys. And it must be specially mentioned that a distinction ought to be made between a Chargé d'Affaires who is the head of a Legation, and who, therefore, is accredited from Foreign Office to Foreign Office, and a Chargé d'Affaires ad interim. The latter is a member of a Legation whom the head of the Legation delegates for the purpose of taking his place during absence on leave. Such Chargé d'Affaires ad interim, who had better be called a Chargé des Affaires,[722] ranks below the ordinary Chargé d'Affaires; he is not accredited from Foreign Office to Foreign Office, but is simply a delegate of the absent head of the Legation.
[722] See Rivier, II. pp. 451-452.
The Diplomatic Corps.
§ 369. All the Diplomatic Envoys accredited to the same State form, according to a diplomatic usage, a body which is styled the "Diplomatic Corps." The head of this body, the so-called "Doyen," is the Papal Nuncio, or, in case there is no Nuncio accredited, the oldest Ambassador, or, failing Ambassadors, the oldest Minister Plenipotentiary, and so on. As the Diplomatic Corps is not a body legally constituted, it performs no legal functions, but it is nevertheless of great importance, as it watches over the privileges and honours due to diplomatic envoys.
IV APPOINTMENT OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 76-77—Phillimore, II. §§ 227-231—Twiss, I. §§ 212-214—Ullmann, § 48—Calvo, III. §§ 1343-1345—Bonfils, Nos. 677-680—Wheaton, §§ 217-220—Moore, IV. §§ 632-635.
Person and Qualification of the Envoy.
§ 370. International Law has no rules as regards the qualification of the individuals whom a State can appoint as diplomatic envoys, States being naturally competent to act according to discretion, although of course there are many qualifications a diplomatic envoy must possess to fill his office successfully. The Municipal Laws of many States comprise, therefore, many details as regards the knowledge and training which a candidate for a permanent diplomatic post must possess, whereas, regarding envoys ceremonial even the Municipal Laws have no provisions at all. The question is sometimes discussed whether females[723] might be appointed envoys. History relates a few cases of female diplomatists. Thus, for example, Louis XIV. of France accredited in 1646 Madame de Guébriant ambassador to the Court of Poland. During the last two centuries, however, no such case has to my knowledge occurred, although I doubt not that International Law does not prevent a State from sending a female as diplomatic envoy. But under the present circumstances many States would refuse to receive her.
[723] See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico" (1909).
Letter of Credence, Full Powers, Passports.
§ 371. The appointment of an individual as a diplomatic envoy is announced to the State to which he is accredited in certain official papers to be handed in by the envoy to the receiving State. Letter of Credence (lettre de créance) is the designation of the document in which the head of the State accredits a permanent ambassador or minister to a foreign State. Every such envoy receives a sealed Letter of Credence and an open copy. As soon as the envoy arrives at his destination, he sends the copy to the Foreign Office in order to make his arrival officially known. The sealed original, however, is handed in personally by the envoy to the head of the State to whom he is accredited. Chargés d'Affaires receive a Letter of Credence too, but as they are accredited from Foreign Office to Foreign Office, their Letter of Credence is signed, not by the head of their home State, but by its Foreign Office. Now a permanent diplomatic envoy needs no other empowering document in case he is not entrusted with any task outside the limits of the ordinary business of a permanent legation. But in case he is entrusted with any such task, as, for instance, if any special treaty or convention is to be negotiated, he requires a special empowering document—namely, the so-called Full Powers (Pleins Pouvoirs). They are given in Letters Patent signed by the head of the State, and they are either limited or unlimited Full Powers, according to the requirements of the case. Such diplomatic envoys as are sent, not to represent their home State permanently, but on an extraordinary mission such as representation at a Congress, negotiation of a special treaty, and other transactions, receive full Powers only, and no Letter of Credence. Every permanent or other diplomatic envoy is also furnished with so-called Instructions for the guidance of his conduct as regards the objects of his mission. But such Instructions are a matter between the Envoy and his home State exclusively, and they have therefore, although they may otherwise be very important, no importance for International Law. Every permanent diplomatic envoy receives, lastly, Passports for himself and his suite specially made out by the Foreign Office. These Passports the envoy after his arrival deposits at the Foreign Office of the State to which he is accredited, where they remain until he himself asks for them because he desires to leave his post, or until they are returned to him on his dismissal.
Combined Legations.
§ 372. As a rule, a State appoints different individuals as permanent diplomatic envoys to different States, but sometimes a State appoints the same individual as permanent diplomatic envoy to several States. As a rule, further, a diplomatic envoy represents one State only. But occasionally several States appoint the same individual as their envoy, so that one envoy represents several States.
Appointment of several Envoys.
§ 373. In former times States used frequently[724] to appoint more than one permanent diplomatic envoy as their representative in a foreign State. Although this would hardly occur nowadays, there is no rule against such a possibility. And even now it happens frequently that States appoint several envoys for the purpose of representing them at Congresses and Conferences. In such cases one of the several envoys is appointed senior, to whom the others are subordinate.
[724] See Mirus, op. cit. I. §§ 117-119.
V RECEPTION OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 65-67—Hall, § 98—Phillimore, II. §§ 133-139—Twiss, I. §§ 202-203—Taylor, §§ 285-290—Moore, IV. §§ 635, 637-638—Martens, II. § 8—Calvo, III. §§ 1353-1356—Pradier-Fodéré, III. §§ 1253-1260—Fiore, II. Nos. 1118-1120—Rivier, I. pp. 455-457.
Duty to receive Diplomatic Envoys.
§ 374. Every member of the Family of Nations that possesses the passive right of legation is under ordinary circumstances bound to receive diplomatic envoys accredited to itself from other States for the purpose of negotiation. But the duty extends neither to the reception of permanent envoys nor to the reception of temporary envoys under all circumstances.
(1) As regards permanent envoys, it is a generally recognised fact that a State is as little bound to receive them as it is to send them. Practically, however, every full-Sovereign State which desires its voice to be heard among the States receives and sends permanent envoys, as without such it would, under present circumstances, be impossible for a State to have any influence whatever in international affairs. It is for this reason that Switzerland, which in former times abstained entirely from sending permanent envoys, has abandoned her former practice and nowadays sends and receives several. The insignificant Principality of Lichtenstein is, as far as I know, the only full-Sovereign State which neither sends nor receives one single permanent legation.
But a State may receive a permanent legation from one State and refuse to do so from another. Thus the Protestant States never received a permanent legation from the Popes, even when the latter were heads of a State, and they still observe this rule, although one or another of them, such as Prussia for example, keeps a permanent legation at the Vatican.
(2) As regards temporary envoys, it is likewise a generally recognised fact among those writers who assert the duty of a State to receive under ordinary circumstances temporary envoys that there are exceptions to that rule. Thus, for example, a State which knows beforehand the object of a mission and does not wish to negotiate thereon can refuse to receive the mission. Thus, further, a belligerent can refuse[725] to receive a legation from the other belligerent, as war involves the rupture of all peaceable relations.
[725] But this is not generally recognised. See Vattel, IV. § 67; Phillimore, II. § 138; and Pradier-Fodéré, III. No. 1255.
Refusal to receive a certain Individual.
§ 375. But the refusal to receive an envoy must not be confounded with the refusal to receive a certain individual as envoy. A State may be ready to receive a permanent or temporary envoy, but may object to the individual selected for that purpose. International Law gives no right to a State to insist upon the reception of an individual appointed by it as diplomatic envoy. Every State can refuse to receive as envoy a person objectionable to itself. And a State refusing an individual envoy is neither compelled to specify what kind of objection it has, nor to justify its objection. Thus, for example, most States refuse to receive one of their own subjects as an envoy from a foreign State.[726] Thus, again, the King of Hanover refused in 1847 to receive a minister appointed by Prussia, because the individual was of the Roman Catholic faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the United States of America because he had in 1871 protested against the annexation of the Papal States. And when the United States sent the same gentleman as ambassador to Austria, the latter refused him reception on the ground that his wife was said to be a Jewess. Although, as is apparent from these examples, no State has a right to insist upon the reception of a certain individual as envoy, in practice States are often offended when reception is refused. Thus, in 1832 England did not cancel for three years the appointment of Sir Stratford Canning as ambassador to Russia, although the latter refused reception, and the post was practically vacant. In 1885, when, as above mentioned, Austria refused reception to Mr. Keiley as ambassador of the United States, the latter did not appoint another, although Mr. Keiley resigned, and the legation was for several years left to the care of a Chargé d'Affaires.[727] To avoid such conflicts it is a good practice of many States never to appoint an individual as envoy without having ascertained beforehand whether the individual would be persona grata. And it is a customary rule of International Law that a State which does not object to the appointment of a certain individual, when its opinion has been asked beforehand, is bound to receive such individual.[728]
[726] In case a State receives one of its own subjects as diplomatic envoy of a foreign State, it has to grant him all the privileges of such envoys, including exterritoriality. Thus in the case of Macartney v. Garbutt and others (1890, L.R. 24 Q.B. 368) it was decided that a British subject accredited to Great Britain by the Chinese Government as a Secretary of its embassy and received by Great Britain in that capacity without an express condition that he should remain subject to British jurisdiction, was exempt from British jurisdiction. See, however, article 15 of the Règlement sur les Immunités Diplomatiques, adopted in 1895 by the Institute of International Law (see Annuaire, XIV. p. 244), which denies to such an individual exemption from jurisdiction. See also Phillimore, II. § 135, and Twiss, I. § 203.
[727] See Moore, IV. § 638, p. 480.
[728] The question is of interest whether the privileges due to diplomatists must be granted on his journey home to an individual to whom reception as an envoy is refused. I think the question ought to be answered in the affirmative; see, however, Moore, IV. § 666, p. 668.
Mode and Solemnity of Reception.
§ 376. In case a State does not object to the reception of a person as diplomatic envoy accredited to itself, his actual reception takes place as soon as he has arrived at the place of his designation. But the mode of reception differs according to the class to which the envoy belongs. If he be one of the first, second, or third class, it is the duty of the head of the State to receive him solemnly in a so-called public audience with all the usual ceremonies. For that purpose the envoy sends a copy of his credentials to the Foreign Office, which arranges a special audience with the head of the State for the envoy, when he delivers in person his sealed credentials.[729] If the envoy be a Chargé d'Affaires only, he is received in audience by the Secretary of Foreign Affairs, to whom he hands his credentials. Through the formal reception the envoy becomes officially recognised and can officially commence to exercise his functions. But such of his privileges as exterritoriality and the like, which concern the safety and inviolability of his person, must be granted even before his official reception, as his character as diplomatic envoy is considered to date, not from the time of his official reception, but from the time when his credentials were handed to him on leaving his home State, his passports furnishing sufficient proof of his diplomatic character.
[729] Details concerning reception of envoys are given by Twiss, I. § 215, and Rivier, I. p. 467.
Reception of Envoys to Congresses and Conferences.
§ 377. It must be specially observed that all these details regarding the reception of diplomatic envoys accredited to a State do not apply to the reception of envoys sent to represent the several States at a Congress or Conference. As such envoys are not accredited to the State on whose territory the Congress or Conference takes place, such State has no competence to refuse the reception of the appointed envoys, and no formal and official reception of the latter by the head of the State need take place. The appointing States merely notify the appointment of their envoys to the Foreign Office of the State on whose territory the transactions take place, the envoys call upon the Foreign Secretary after their arrival to introduce themselves, and they are courteously received by him. They do not, however, hand in to him their Full Powers, but reserve them for the first meeting of the Congress or Conference, where they produce them in exchange with one another.
VI FUNCTIONS OF DIPLOMATIC ENVOYS
Rivier, I. § 37—Ullmann, § 49—Bonfils, Nos. 681-683—Pradier-Fodéré, III. §§ 1346-1376.
On Diplomatic Functions in general.
§ 378. A distinction must be made between functions of permanent envoys and of envoys for temporary purposes. The functions of the latter, who are either envoys ceremonial or such envoys political as are only temporarily accredited for the purpose of some definite negotiations or as representatives at Congresses and Conferences, are clearly demonstrated by the very purpose of their appointment. But the functions of the permanent envoys demand a closer consideration. These regular functions may be grouped together under the heads of negotiation, observation, and protection. But besides these regular functions a diplomatic envoy may be charged with other and more miscellaneous functions.
Negotiation.
§ 379. A permanent ambassador or other envoy represents his home State in the totality of its international relations not only with the State to which he is accredited, but also with other States. He is the mouthpiece of the head of his home State and its Foreign Secretary as regards communications to be made to the State to which he is accredited. He likewise receives communications from the latter and reports them to his home State. In this way not only are international relations between these two States fostered and negotiated upon, but such international affairs of other States as are of general interest to all or a part of the members of the Family of Nations are also discussed. Owing to the fact that all the more important Powers keep permanent legations accredited to one another, a constant exchange of views in regard to affairs international is taking place between them.
Observation.
§ 380. But these are not all the functions of permanent diplomatic envoys. Their task is, further, to observe attentively every occurrence which might affect the interest of their home States, and to report such observations to their Governments. It is through these reports that every member of the Family of Nations is kept well informed in regard to the army and navy, the finances, the public opinion, the commerce and industry of foreign countries. And it must be specially observed that no State that receives diplomatic envoys has a right to prevent them from exercising their function of observation.
Protection.
§ 381. A third task of diplomatic envoys is the protection of the persons, property, and interests of such subjects of their home States as are within the boundaries of the State to which they are accredited. If such subjects are wronged without being able to find redress in the ordinary way of justice, and ask the help of the diplomatic envoy of their home State, he must be allowed to afford them protection. It is, however, for the Municipal Law and regulations of his home State, and not for International Law, to prescribe to an envoy the limits within which he has to afford protection to his compatriots.
Miscellaneous Functions.
§ 382. Negotiation, observation, and protection are tasks common to all diplomatic envoys of every State. But a State may order its permanent envoys to perform other tasks, such as the registration of deaths, births, and marriages of subjects of the home State, legalisation of their signatures, making out of passports for them, and the like. But in doing this a State must be careful not to order its envoys to perform such tasks as are by the law of the receiving State exclusively reserved to its own officials. Thus, for instance, a State whose laws compel persons who intend marriage to conclude it in presence of its registrars, need not allow a foreign envoy to legalise a marriage of compatriots before its registration by the official registrar. So, too, a State need not allow a foreign envoy to perform an act which is reserved for its jurisdiction, as, for instance, the examination of witnesses on oath.
Envoys not to interfere in Internal Politics.
§ 383. But it must be specially emphasised that envoys must not interfere with the internal political life of the State to which they are accredited. It certainly belongs to their functions to watch the political events and the political parties with a vigilant eye and to report their observations to their home States. But they have no right whatever to take part in that political life itself, to encourage a certain political party, or to threaten another. If nevertheless they do so, they abuse their position. And it matters not whether an envoy acts thus on his own account or on instructions from his home State. No strong self-respecting State will allow a foreign envoy to exercise such interference, but will either request his home State to recall him and appoint another individual in his place or, in case his interference is very flagrant, hand him his passports and therewith dismiss him. History records many instances of this kind,[730] although in many cases it is doubtful whether the envoy concerned really abused his office for the purpose of interfering with internal politics.
[730] See Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), who discuss a number of cases, especially that of Lord Sackville, who received his passports in 1888 from the United States of America for an alleged interference in the Presidential election.
VII POSITION OF DIPLOMATIC ENVOYS
Diplomatic Envoys objects of International Law.
§ 384. Diplomatic envoys are just as little subjects of International Law as are heads of States; and the arguments regarding the position of such heads[731] must also be applied to the position of diplomatic envoys, which is given to them by International Law not as individuals but as representative agents of their States. It is derived, not from personal rights, but from rights and duties of their home States and the receiving States. All the privileges which according to International Law are possessed by diplomatic envoys are not rights given to them by International Law, but rights given by the Municipal Law of the receiving States in compliance with an international right of their home States. For International Law gives a right to every State to demand for its diplomatic envoys certain privileges from the Municipal Law of a foreign State. Thus, a diplomatic envoy is not a subject but an object of International Law, and is in this regard like any other individual.
Privileges due to Diplomatic Envoys.
§ 385. Privileges due to diplomatic envoys, apart from ceremonial honours, have reference to their inviolability and to their so-called exterritoriality. The reasons why these privileges must be granted are that diplomatic envoys are representatives of States and of their dignity,[732] and, further, that they could not exercise their functions perfectly unless they enjoyed such privileges. For it is obvious that, were they liable to ordinary legal and political interference like other individuals and thus more or less dependent on the good-will of the Government, they might be influenced by personal considerations of safety and comfort to such a degree as would materially hamper the exercise of their functions. It is equally clear that liability to interference with their full and free intercourse with their home States through letters, telegrams, and couriers would wholly nullify their raison d'être. In this case it would be impossible for them to send independent and secret reports to or receive similar instructions from their home States. From the consideration of these and various cognate reasons their privileges seem to be inseparable attributes of the very existence of diplomatic envoys.[733]
[733] The Institute of International Law, at its meeting at Cambridge in 1895, discussed the privileges of diplomatic envoys, and drafted a body of seventeen rules in regard thereto; see Annuaire, XIV. p. 240.
VIII INVIOLABILITY OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 80-107—Hall, §§ 50, 98*—Phillimore, II. §§ 154-175—Twiss, I. §§ 216-217—Moore, IV. §§ 657-659—Ullmann, § 50—Geffcken in Holtzendorff, III. pp. 648-654—Rivier, I. § 38—Nys, II. pp. 372-374—Bonfils, Nos. 684-699—Pradier-Fodéré, III. §§ 1382-1393—Mérignhac, II. pp. 264-273—Fiore, II. Nos. 1127-1143—Calvo, III. §§ 1480-1498—Martens, II. § 11—Crouzet, "De l'inviolabilité ... des agents diplomatiques" (1875).
Protection due to Diplomatic Envoys.
§ 386. Diplomatic envoys are just as sacrosanct as heads of States. They must, therefore, on the one hand, be afforded special protection as regards the safety of their persons, and, on the other hand, they must be exempted from every kind of criminal jurisdiction of the receiving States. Now the protection due to diplomatic envoys must find its expression not only in the necessary police measures for the prevention of offences, but also in specially severe punishments to be inflicted on offenders. Thus, according to English Criminal Law,[734] every one is guilty of a misdemeanour who, by force or personal restraint, violates any privilege conferred upon the diplomatic representatives of foreign countries, or who[735] sets forth or prosecutes or executes any writ or process whereby the person of any diplomatic representative of a foreign country or the person of a servant of any such representative is arrested or imprisoned. The protection of diplomatic envoys is not restricted to their own person, but must be extended to the members of their family and suite, to their official residence, their furniture, carriages, papers, and likewise to their intercourse with their home States by letters, telegrams, and special messengers. Even after a diplomatic mission has come to an end, the archives of an Embassy must not be touched, provided they have been put under seal and confided to the protection of another envoy.[736]
[734] See Stephen's Digest, articles 96-97.
[735] 7 Anne, c. 12, sect. 3-6. This statute, which was passed in 1708 in consequence of the Russian Ambassador in London having been arrested for a debt of £50, has always been considered as declaratory of the existing law in England, and not as creating new law.
[736] See above, § [106] (case of Montagnini), and below, § [411].
Exemption from Criminal Jurisdiction.
§ 387. As regards the exemption of diplomatic envoys from criminal jurisdiction, theory and practice of International Law agree nowadays[737] upon the fact that the receiving States have no right, under any circumstances whatever, to prosecute and punish diplomatic envoys. But among writers on International Law the question is not settled whether the commands and injunctions of the laws of the receiving States concern diplomatic envoys at all, so that the latter have to comply with such commands and injunctions, although the fact is established that they can never be prosecuted and punished for any breach.[738] This question ought to be decided in the negative, for a diplomatic envoy must in no point be considered under the legal authority of the receiving State. But this does not mean that a diplomatic envoy must have a right to do what he likes. The presupposition of the privileges he enjoys is that he acts and behaves in such a manner as harmonises with the internal order of the receiving State. He is therefore expected voluntarily to comply with all such commands and injunctions of the Municipal Law as do not restrict him in the effective exercise of his functions. In case he acts and behaves otherwise, and disturbs thereby the internal order of the State, the latter will certainly request his recall or send him back at once.
[737] In former times there was no unanimity amongst publicists. See Phillimore, II. § 154.
[738] The point is thoroughly discussed by Beling, "Die strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.
History records many cases of diplomatic envoys who have conspired against the receiving States, but have nevertheless not been prosecuted. Thus, in 1584, the Spanish Ambassador Mendoza in England plotted to depose Queen Elizabeth; he was ordered to leave the country. In 1586 the French Ambassador in England, L'Aubespine, conspired against the life of Queen Elizabeth; he was simply warned not to commit a similar act again. In 1654 the French Ambassador in England, De Bass, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.[739]
[739] These and other cases are discussed by Phillimore, II. §§ 160-165.
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 Ambassador 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 Ambassador 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]
[740] Details regarding these cases are given by Phillimore, II. §§ 166 and 170.
[741] See article 6 of the rules regarding diplomatic immunities adopted by the Institute 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-Fodéré, III. §§ 1396-1495—Mérignhac, II. pp. 249-293—Fiore, II. Nos. 1145-1163—Calvo, III. §§ 1499-1531—Martens, II. §§ 12-14—Gottschalck, "Die Exterritorialität der Gesandten" (1878)—Heyking, "L'exterritorialité" (1889)—Odier, "Des privilèges et immunités des agents diplomatiques" (1890)—Vercamer, "Des franchises diplomatiques et spécialement de l'exterritorialité" (1891)—Droin, "L'exterritorialité des agents diplomatiques" (1895)—Mirre, "Die Stellung der völkerrechtlichen Literatur zur Lehre von den sogenannten Nebenrechten der gesandschaftlichen Functionäre" (1904).
Reason and Fictional Character of Exterritoriality.
§ 389. The exterritoriality which must be granted to diplomatic envoys by the Municipal 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.
[742] With a few exceptions (see Droin, "L'exterritorialité des agents diplomatiques" (1895), pp. 32-43), all publicists accept the term and the fiction of exterritoriality.
Immunity of Domicile.
§ 390. The first of these privileges is immunity of domicile, the so-called Franchise de l'hôtel. 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 Ambassador 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 Ambassador at Stockholm. On the refusal of the English envoy to surrender Springer, the Swedish Government surrounded the embassy with troops and ordered the carriage of the envoy, when leaving the embassy, 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 ambassador, 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]
[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.
[744] See Martens, "Causes Célèbres," I. p. 178.
[745] See Martens, "Causes Célèbres," II. p. 52.
[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 classes 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 documents and archives. If an envoy abuses this immunity, the receiving Government need not bear it passively. 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 embassy. 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 embassy may be surrounded by soldiers, and eventually the criminal may even forcibly be taken out of the embassy. 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 embassy. 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 Embassy, 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 embassy 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.
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 passports be refused to them on the same account. Thus, when in 1772 the French Government refused the passports to Baron de Wrech, the envoy of the Landgrave of Hesse-Cassel 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.
[747] See above, §§ [387]-388.
[748] See Martens, "Causes Célèbres," II. p. 282.
[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.
Exemption from Subpœna as witness.
§ 392. The third privilege of envoys in reference to their exterritoriality is exemption from subpœna 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 Washington, 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 Washington, 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]
[750] See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § 1520.
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.
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 Municipal 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.
[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. Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.
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 Municipal Law of the receiving State. A privilege of great worth in former times, when freedom of religious worship 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 worship 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.
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 ambassador 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]
[752] See Martens, "Causes Célèbres," I. p. 391. See also the two cases reported by Calvo, III. § 1545.
X POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES
Vattel, IV. §§ 84-86—Hall, §§ 99-101—Phillimore, II. §§ 172-175—Taylor, §§ 293-295—Moore, IV. §§ 643-644—Twiss, I. § 222—Wheaton, §§ 242-247—Ullmann, § 52—Geffcken in Holtzendorff, III. pp. 665-668—Heffter, § 207—Rivier, § 39—Nys, II. p. 390—Pradier-Fodéré, III. § 1394—Fiore, II. Nos. 1143-1144—Calvo, III. §§ 1532-1539.
Possible Cases.
§ 397. Although, when an individual is accredited as diplomatic envoy by one State to another, these two States only are directly concerned in his appointment, the question must be discussed, what position such envoy has as regards third States in those cases in which he comes in contact with them. Several such cases are possible. An envoy may, first, travel through the territory of a third State to reach the territory of the receiving State. Or, an envoy accredited to a belligerent State and living on the latter's territory may be found there by the other belligerent who militarily occupies such territory. And, lastly, an envoy accredited to a certain State might interfere with the affairs of a third State.
Envoy travelling through Territory of third State.
§ 398. If an envoy travels through the territory of a third State incognito or for his pleasure only, there is no doubt that he cannot claim any special privileges whatever. He is in exactly the same position as any other foreign individual travelling on this territory, although by courtesy he might be treated with particular attention. But matters are different when an envoy on his way from his own State to the State of his destination travels through the territory of a third State. If the sending and the receiving States are not neighbours, the envoy probably has to travel through the territory of a third State. Now, as the institution of legation is a necessary one for the intercourse of States and is firmly established by International Law, there ought to be no doubt whatever that such third State must grant the right of innocent passage (jus transitus innoxii) to the envoy, provided that it is not at war with the sending or the receiving State. But no other privileges,[753] especially those of inviolability and exterritoriality need be granted to the envoy. And the right of innocent passage does not include the right to stop on the territory longer than is necessary for the passage. Thus, in 1854, Soulé, the envoy of the United States of America at Madrid, who had landed at Calais, intending to return to Madrid via Paris, was provisionally stopped at Calais for the purpose of ascertaining whether he intended to make a stay in Paris, which the French Government wanted to prevent, because he was a French refugee naturalised in America and was reported to have made speeches against the Emperor Napoleon. Soulé at once left Calais, and the French Government declared, during the correspondence with the United States in the matter, that there was no objection to Soulé's traversing France on his way to Madrid, but they would not allow him to make a sojourn in Paris or anywhere else in France.[754]
[753] The matter, which has always been disputed, is fully discussed by Twiss, I. § 222, who also quotes the opinion of Grotius, Bynkershoek, and Vattel.
[754] See Wharton, I. § 97, and Moore, IV. § 643.
It must be specially remarked that no right of passage need be granted if the third State is at war with the sending or receiving State. The envoy of a belligerent, who travels through the territory of the other belligerent to reach the place of his destination, may be seized and treated as a prisoner of war. Thus, in 1744, when the French Ambassador, Maréchal de Belle-Isle, on his way to Berlin, passed through the territory of Hanover, which country was then, together with England, at war with France, he was made a prisoner of war and sent to England.
Envoy found by Belligerent on occupied Enemy Territory.
§ 399. When in time of war a belligerent occupies the capital of an enemy State and finds there envoys of other States, these envoys do not lose their diplomatic privileges as long as the State to which they are accredited is in existence. As military occupation does not extinguish a State subjected thereto, such envoys do not cease to be envoys. On the other hand, they are not accredited to the belligerent who has taken possession of the territory by military force, and the question is not yet settled by International Law how far the occupying belligerent has to respect the inviolability and exterritoriality granted to such envoys by the law of the land in compliance with a demand of International Law. It may safely be maintained that he must grant them the right to leave the occupied territory. But must he likewise grant them the right to stay? Has he to respect their immunity of domicile and their other privileges in reference to their exterritoriality? Neither customary rules nor international conventions exist as regards these questions, which must, therefore, be treated as open. The only case which occurred concerning this problem is that of Mr. Washburne, ambassador of the United States in Paris during the siege of that town in 1870 by the Germans. This ambassador claimed the right of sending a messenger with despatches to London in a sealed bag through the German lines. But the Germans refused to grant that right, and did not alter their decision although the Government of the United States protested.[755]
[755] See below, [vol. II. § 157], and Wharton, I. § 97.
Envoy interfering with affairs of a third State.
§ 400. There is no doubt that an envoy must not interfere with affairs concerning the State to which he is accredited and a third State. If nevertheless he does interfere, he enjoys no privileges whatever against such third State. Thus, in 1734, the Marquis de Monti, the French envoy in Poland, who took an active part in the war between Poland and Russia, was made a prisoner of war by the latter and not released till 1736, although France protested.[756]
[756] See Martens, "Causes Célèbres," I. p. 207.
XI THE RETINUE OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 120-124—Hall, § 51—Phillimore, II. §§ 186-193—Twiss, I. § 218—Moore, IV. §§ 664-665—Ullmann, §§ 47 and 51—Geffcken in Holtzendorff, III. pp. 660-661—Heffter, § 221—Rivier, I. pp. 458-461—Nys, II. pp. 386-390—Pradier-Fodéré, III. §§ 1472-1486—Fiore, II. Nos. 1164-1168—Calvo, III. §§ 1348-1350—Martens, II. § 16—Roederer, "De l'application des immunités de l'ambassadeur au personnel de l'ambassade" (1904), pp. 22-84.
Different Classes of Members of Retinue.
§ 401. The individuals accompanying an envoy officially, or in his private service, or as members of his family, or as couriers, compose his retinue. The members of the retinue belong, therefore, to four different classes. All those individuals who are officially attached to an envoy are members of the legation and are appointed by the home State of the envoy. To this first class belong the Councillors, Attachés, Secretaries of the Legation; the Chancellor of the Legation and his assistants; the interpreters, and the like; the chaplain, the doctor, and the legal advisers, provided that they are appointed by the home State and sent specially as members of the legation. A list of these members of legation is handed over by the envoy to the Secretary for Foreign Affairs of the receiving State and is revised from time to time. The Councillors and Secretaries of Legation are personally presented to the Secretary for Foreign Affairs, and very often also to the head of the receiving State. The second class comprises all those individuals who are in the private service of the envoy and of the members of legation, such as servants of all kinds, the private secretary of the envoy, the tutor and the governess of his children. The third class consists of the members of the family of the envoy—namely, his wife, children, and such of his other near relatives as live within his family and under his roof. And, lastly, the fourth class consists of the so-called couriers. They are the bearers of despatches sent by the envoy to his home State, who on their way back also bear despatches from the home State to the envoy. Such couriers are attached to most legations for the guarantee of the safety and secrecy of the despatches.
Privileges of Members of Legation.
§ 402. It is a universally recognised[757] rule of International Law that all members of a legation are as inviolable and exterritorial as the envoy himself. They must, therefore, be granted by the receiving State exemption from criminal and civil jurisdiction, exemption from police,[758] subpœna as witnesses, and taxes. They are considered, like the envoy himself, to retain their domicile within their home State. Children born to them during their stay within the receiving State are considered born on the territory of the home State. And it must be emphasised that it is not within the envoy's power to waive these privileges of members of legation, although the home State itself can waive these privileges. Thus when, in 1909, Wilhelm Beckert, the Chancellor of the German Legation in Santiago de Chili, murdered the porter of this legation, a Chilian subject, and then set fire to the Chancery in order to conceal his embezzlements of money belonging to the legation, the German Government consented to his being prosecuted in Chili; he was tried, found guilty, and executed at Santiago on July 5, 1910.
[757] Some authors, however, plead for an abrogation of this rule. See Martens, II. § 16.
[758] A case of this kind occurred in 1904 in the United States. Mr. Gurney, Secretary of the British Legation at Washington, was fined by the police magistrate of Lee, in Massachusetts, for furiously driving a motor-car. But the judgment was afterwards annulled, and the fine imposed remitted.
Privileges of Private Servants.
§ 403. It is a customary rule of International Law that the receiving State must grant to all persons in the private service of the envoy and of the members of his legation, provided such persons are not subjects of the receiving State, exemption from civil and criminal jurisdiction.[759] But the envoy can disclaim these exemptions, and these persons cannot then claim exemption from police, immunity of domicile, and exemption from taxes. Thus, for instance, if such a private servant commits a crime outside the residence of his employer, the police can arrest him; he must, however, be at once released if the envoy does not waive the exemption from criminal jurisdiction.
[759] This rule seems to be everywhere recognised except in Great Britain. When, in 1827, a coachman of Mr. Gallatin, the American Minister in London, committed an assault outside the embassy, he was arrested in the stable of the embassy and charged before a local magistrate, and the British Foreign Office refused to recognise the exemption of the coachman from the local jurisdiction. See Wharton, I. § 94, and Hall, § 50.
Privileges of Family of Envoy.
§ 404. Although the wife of the envoy, his children, and such of his near relatives as live within his family and under his roof belong to his retinue, there is a distinction to be made as regards their privileges. His wife must certainly be granted all his privileges in so far as they concern inviolability and exterritoriality. As regards, however, his children and other relatives, no general rule of International Law can safely be said to be generally recognised, but that they must be granted exemption from civil and criminal jurisdiction. But even this rule was formerly not generally recognised. Thus, when in 1653 Don Pantaleon Sà, the brother of the Portuguese Ambassador in London and a member of his suite, killed an Englishman named Greenway, he was arrested, tried in England, found guilty, and executed.[760] Nowadays the exemption from civil and criminal jurisdiction of such members of an envoy's family as live under his roof is always granted. Thus, when in 1906 Carlo Waddington,[761] the son of the Chilian envoy at Brussels, murdered the secretary of the Chilian Legation, the Belgian authorities did not take any step to arrest him. Two days afterwards, however, the Chilian envoy waived the privilege of the immunity of his son, and on March 2 the Chilian Government likewise agreed to the murderer being prosecuted in Belgium. The trial took place in July 1907, but Waddington was acquitted by the Belgian jury.
[760] The case is discussed by Phillimore, II. § 169.
[761] See R.G. XIV. (1907), pp. 159-165.
Privileges of Couriers of Envoy.
§ 405. To insure the safety and secrecy of the diplomatic despatches they bear, couriers must be granted exemption from civil and criminal jurisdiction and afforded special protection during the exercise of their office. It is particularly important to observe that they must have the right of innocent passage through third States, and that, according to general usage, those parts of their luggage which contain diplomatic despatches and are sealed with the official seal must not be opened and searched. It is usual to provide couriers with special passports for the purpose of their legitimation.
XII TERMINATION OF DIPLOMATIC MISSION
Vattel, IV. §§ 125-126—Hall, § 98**—Phillimore, II. §§ 237-241—Moore, IV. §§ 636, 639, 640, 666—Taylor, §§ 320-323—Wheaton, §§ 250-251—Ullmann, § 53—Heffter, §§ 223-226—Rivier, I. § 40—Nys, II. p. 392—Bonfils, Nos. 730-732—Pradier-Fodéré, III. §§ 1515-1535—Fiore, II. Nos. 1169-1175—Calvo, III. §§ 1363-1367—Martens, II. § 17.
Termination in contradistinction to Suspension.
§ 406. A diplomatic mission may come to an end from eleven different causes—namely, accomplishment of the object for which the mission was sent; expiration of such Letters of Credence as were given to an envoy for a specific time only; recall of the envoy by the sending State; his promotion to a higher class; the delivery of passports to him by the receiving State; request of the envoy for his passports on account of ill-treatment; war between the sending and the receiving State; constitutional changes in the headship of the sending or receiving State; revolutionary change of government of the sending or receiving State; extinction of the sending or receiving State; and, lastly, death of the envoy. These events must be treated singly on account of their peculiarities. But the termination of diplomatic missions must not be confounded with their suspension. Whereas from the foregoing eleven causes a mission comes actually to an end, and new Letters of Credence are necessary, a suspension does not put an end to the mission, but creates an interval during which the envoy, although he remains in office, cannot exercise his office. Suspension may be the result of various causes, as, for instance, a revolution within the sending or receiving State. Whatever the cause may be, an envoy enjoys all his privileges during the duration of the suspension.
Accomplishment of Object of Mission.
§ 407. A mission comes to an end through the fulfilment of its objects in all cases of missions for special purposes. Such cases may be ceremonial functions like representations at weddings, funerals, coronations; or notification of changes in the headship of a State, or representation of a State at Conferences and Congresses; and other cases. Although the mission is terminated through the accomplishment of its object, the envoys enjoy all their privileges on their way home.
Expiration of Letter of Credence.
§ 408. If a Letter of Credence for a specified time only is given to an envoy, his mission terminates with the expiration of such time. A temporary Letter of Credence may, for instance, be given to an individual for the purpose of representing a State diplomatically during the interval between the recall of an ambassador and the appointment of his successor.
Recall.
§ 409. The mission of an envoy, be he permanently or only temporarily appointed, terminates through his recall by the sending State. If this recall is not caused by unfriendly acts of the receiving State but by other circumstances, the envoy receives a Letter of Recall from the head, or, in case he is only a Chargé d'Affaires, from the Foreign Secretary of his home State, and he[762] hands this letter over to the head of the receiving State in a solemn audience, or in the case of a Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter of Recall the envoy receives his passports and a so-called Lettre de récréance, a letter in which the head of the receiving State (or the Foreign Secretary) acknowledges the Letter of Recall. Although therewith his mission ends, he enjoys nevertheless all his privileges on his home journey.[763] A recall may be caused by the resignation of the envoy, by his transference to another post, and the like. It may, secondly, be caused by the outbreak of a conflict between the sending and the receiving State which leads to a rupture of diplomatic intercourse, and under these circumstances the sending State may order its envoy to ask for his passports and depart at once without handing in a Letter of Recall. And, thirdly, a recall may result from a request of the receiving State by reason of real or alleged misconduct of the envoy. Such request of recall[764] may lead to a rupture of diplomatic intercourse, if the receiving State insists upon the recall, although the sending State does not recognise the act of its envoy as misconduct.
[762] But sometimes his successor presents the letter recalling his predecessor to the head of the receiving State, or to the Foreign Secretary in the case of Chargés d'Affaires.
[763] See the interesting cases discussed by Moore, IV. § 666.
[764] Notable cases of request of recall of envoys are reported by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.
Promotion to a higher Class.
§ 410. When an envoy remains at his post, but is promoted to a higher class—for instance, when a Chargé d'Affaires is created a Minister Resident or a Minister Plenipotentiary is created an Ambassador—his original mission technically ends, and he receives therefore a new Letter of Credence.
Delivery of Passports.
§ 411. A mission may terminate, further, through the delivery of his passports to an envoy by the receiving State. The reason for such dismissal of an envoy may be either gross misconduct on his part or a quarrel between the sending and the receiving State which leads to a rupture of diplomatic intercourse. Whenever such rupture takes place, diplomatic relations between the two States come to an end and all diplomatic privileges cease with the envoy's departing and crossing the frontier. If the archives of the legations are not removed, they must be put under seal by the departing envoy and confided to the protection[765] of some other foreign legation.
[765] As regards the case of Montagnini, see above, §§ [106] and [386].
Request for Passports.
§ 412. Without being recalled, an envoy may on his own account ask for his passports and depart in consequence of ill-treatment by the receiving State. This may or may not lead to a rupture of diplomatic intercourse.
Outbreak of War.
§ 413. When war breaks out between the sending and the receiving State before their envoys accredited to each other are recalled, their mission nevertheless comes to an end. They receive their passports, but nevertheless they must be granted their privileges[766] on their way home.
[766] See below, [vol. II. § 98].
Constitutional Changes.
§ 414. If the head of the sending or receiving State is a Sovereign, his death or abdication terminates the missions sent and received by him, and all envoys remaining at their posts must receive new Letters of Credence. But if they receive new Letters of Credence, no change in seniority is considered to have taken place from the order in force before the change. And during the time between the termination of the missions and the arrival of new Letters of Credence they enjoy nevertheless all the privileges of diplomatic envoys.
As regards the influence of constitutional changes in the headship of republics on the missions sent or received, no certain rule exists.[767] Everything depends, therefore, upon the merits of the special case.
[767] Writers on International Law differ concerning this point. See, for instance, Ullmann, § 53, in contradistinction to Rivier, I. p. 517.
Revolutionary Changes of Government.
§ 415. A revolutionary movement in the sending or receiving State which creates a new government, changing, for example, a republic into a monarchy or a monarchy into a republic, or deposing a Sovereign and enthroning another, terminates the missions. All envoys remaining at their posts must receive new Letters of Credence, but no change in seniority takes place if they receive them. It happens that in cases of revolutionary changes of government foreign States for some time neither send new Letters of Credence to their envoys nor recall them, watching the course of events in the meantime and waiting for more proof of a real settlement. In such cases the envoys are, according to an international usage, granted all privileges of diplomatic envoys, although in strict law they have ceased to be such. In cases of recall subsequent to revolutionary changes, the protection of subjects of the recalling States remains in the hands of their consuls, since the consular office[768] does not come to an end through constitutional or revolutionary changes in the headship of a State.
Extinction of sending or receiving State.
§ 416. If the sending or receiving State of a mission is extinguished by voluntary merger into another State or through annexation in consequence of conquest, the mission terminates ipso facto. In case of annexation of the receiving State, there can be no doubt that, although the annexing State will not consider the envoys received by the annexed State as accredited to itself, it must grant those envoys the right to leave the territory of the annexed State unmolested and to take their archives away with them. In case of annexation of the sending State, the question arises what becomes of the archives and legational property of the missions of the annexed State accredited to foreign States. This question is one on the so-called succession[769] of States. The annexing State acquires, ipso facto, by the annexation the property in those archives and other legational goods, such as the hotels, furniture, and the like. But as long as the annexation is not notified and recognised, the receiving States have no duty to interfere.
Death of Envoy.
§ 417. A mission ends, lastly, by the death of the envoy. As soon as an envoy is dead, his effects, and especially his papers, must be sealed. This is done by a member of the dead envoy's legation, or, if there be no such members, by a member of another legation accredited to the same State. The local Government must not interfere, unless at the special request by the home State of the deceased envoy.
Although the mission and therefore the privileges of the envoy come to an end by his death, the members of his family who resided under his roof and the members of his suite enjoy their privileges until they leave the country. But a certain time may be fixed for them to depart, and on its expiration they lose their privilege of exterritoriality. It must be specially mentioned that the Courts of the receiving State have no jurisdiction whatever over the goods and effects of the deceased envoy, and that no death duties can be demanded.