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]