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.