International Law Part 18

The privilege of inviolability extends, (1) alike to agents of all cla.s.ses, (2) to the suite, official and non-official, (3) to such things as are convenient for the performance of his functions, (4) during the entire time of his official sojourn, _i.e._ from the time of the making known of his official character to the expiration of a reasonable time for departure after the completion of his mission. This also holds even when the mission is terminated by the outbreak of war between the state from which the agent comes and the state to which he is accredited. (5) By courtesy the diplomatic agent is usually accorded similar privileges when pa.s.sing through a third state in going to or returning from his post.

A diplomatic agent may place himself under the law, says Despagnet, so far as attacks upon him are concerned: (1) when he voluntarily exposes himself to danger, in a riot, duel, civil war; (2) when in his private capacity he does that which is liable to criticism, _e.g._ as a writer or artist, provided the criticism should not degenerate into an attack upon his public character; (3) when the attacks upon him are in legitimate personal self-defense; (4) when, by his actions, he provokes on the part of the local government precautionary measures against himself, _e.g._ if he should plot against the surety of the state to which he is accredited.[231] Only in the case of extreme necessity, however, should any force be used. It is better to ask for the recall of the agent. In case of refusal or in case of urgent necessity the agent may be expelled.

(_b_) =Exemption from local jurisdiction= of the state to which a diplomatic agent is sent, or exterritoriality in a limited sense, flows naturally from the admitted right of inviolability. The term "exterritoriality" is a convenient one for describing the condition of immunity which diplomatic agents enjoy in a foreign state, but it should be observed that the custom of conceding these immunities has given rise to the "legal fiction of exterritoriality," rather than that these immunities are based on a right of exterritoriality. The practice of granting immunities was common long before the idea of exterritoriality arose.[232] The exemptions give to diplomatic agents large privileges.

(1) The diplomatic agent is exempt from the _criminal jurisdiction_ of the state to which he is accredited. In case of violation of law the receiving state has to decide whether the offense is serious enough to warrant a demand for the recall of the agent, or whether it should be pa.s.sed without notice. In extreme cases a state might order the agent to leave the country, or in case of immediate danger might place the agent under reasonable restraint. Hall considers these "as acts done in pursuance of a right of exercising jurisdiction upon sufficient emergency, which has not been abandoned in conceding immunities to diplomatic agents."[233]

(2) The diplomatic agent is exempt from _civil jurisdiction_ of the state to which he is sent, and cannot be sued, arrested, or punished by the law of that state.[234] This rule is sometimes held to apply only to such proceedings as would affect the diplomat in his official character; but unless the diplomat voluntarily a.s.sume another character, he cannot be so proceeded against. If he become a partner in a firm, engage in business, buy stocks, or a.s.sume financial responsibilities, it is held in theory by some authorities that the diplomatic agent may be proceeded against in that capacity. The diplomatic agent of the United States is distinctly instructed that "real or personal property, aside from that which pertains to him as a minister, ... is subject to the local laws."[235] The practice is, however, to extend to the diplomat in his personal capacity the fullest possible immunity, and in case of need to resort to his home courts, or to diplomatic methods by appeal to the home government, for the adjustment of any difficulties that may involve its representative in foreign court proceedings. The real property of the diplomatic agent is, of course, liable to local police and sanitary regulations. In cases where a diplomatic agent consents to submit himself to foreign jurisdiction, the procedure and the judgment, if against him, cannot involve him in such manner as to seriously interfere with the performance of his functions. He cannot be compelled to appear as witness in a case of which he has knowledge; however, it is customary in the interests of justice for the diplomatic agent to make a deposition before the secretary of the legation or some proper officer.

By the Const.i.tution of the United States, in criminal prosecutions the accused has a right to have the evidence taken orally in his presence.

The refusal to give oral testimony of M. Dubois, the Dutch minister to the United States in 1856, resulted in his recall.[236] The Venezuelan minister, however, testified in open court as a courtesy to the United States government in the trial of the a.s.sa.s.sin of President Garfield.[237] The United States at the present time maintains that "a diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever." This may be considered the generally accepted principle, though the interests of general justice and international courtesy frequently lead to voluntary waiving of the rule with the consent of the accrediting state.

(3) _The official and non-official family_ enjoy the immunities of their chief as necessary for the convenient performance of his mission.

Questions in regard to the immunities of the non-official suite have sometimes arisen. To avoid this it is customary for the diplomat to furnish the receiving state with a list of his family. Great Britain does not admit the full immunity of domestic servants. When Mr. Gallatin was United States minister to Great Britain, his coachman, who had committed an a.s.sault beyond the _hotel_ of the minister, was held liable to the local jurisdiction. As a diplomatic agent can voluntarily turn over an offender to the local authorities, and as he would naturally desire the observance of local law, there would be little danger of friction with local authorities anywhere, provided a just cause could be shown.

Couriers and bearers of dispatches are ent.i.tled to immunities so far as is necessary for the free performance of the specific function.

(4) _The house and all grounds and buildings_ within the limits of the diplomatic residence are regarded as exempt from local jurisdiction.

Great Britain claimed the right of entry to arrest Mr. Gallatin's coachman above mentioned, though admitting that such entrance should be made at a time to suit the convenience of the minister if he did not care to hand him over directly. This immunity extends also to carriages and other necessary appurtenances of the mission.

Children born to the official family in the house of the diplomatic agent are considered as born in the state by which the agent is accredited.

(5) _The right of asylum_ in the house of the amba.s.sador is now generally denied. In 1726 the celebrated case of the Duke of Ripperda, charged with treason, gave rise to the decision by the Council of Castile that the duke could be taken from the English legation by force if necessary, because the legation, which had been established to promote good relations between the states, would otherwise be used for overthrowing the state in which it had been established.[238] It may be regarded as a rule that, in Europe and in the United States, the house of a diplomatic agent affords only temporary protection for a criminal, whether political or otherwise, and that on demand of the proper authority the criminal must be surrendered. Refusal is a just ground for demand for recall of the diplomatic agent. The United States instructs its agents that "The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's diplomatic or personal household."[239] This right is, however, recognized in practice, both by the United States and European nations, so far as pertains to the houses of the diplomats in South American states. The United States, in 1870, tried without avail to induce the European nations to agree to the discontinuance of the practice. In 1891, in Chile, Minister Egan, of the United States, afforded refuge in the legation to a large number of the political followers of Balmaceda. Chile demanded his recall, but the United States maintained that there must be sufficient grounds for such action. In Eastern countries it has been the practice to afford asylum in legations in times of political disturbance and to political offenders. In 1895 the British amba.s.sador at Constantinople gave asylum to the deposed grand vizier at Constantinople. It can be said, however, that the tendency is to limit the granting of asylum to the fullest possible extent,[240] and finally to abolish the practice altogether, as has been the case with the ancient extension of this privilege to the neighborhood of the legation under the name of _jus quarteriorum_.[241]

(6) In general, the diplomatic agent is _exempt from personal taxes_ and from taxes upon his personal goods. The property owned by and devoted to the use of the mission is usually exempt from taxation. In this respect the principle of reciprocity is followed among some states. The taxes for betterments, such as paving, sewerage, etc., are regarded as proper charges upon the mission. A state has a right to make such regulations as it deems necessary to prevent the abuse of this immunity from taxation. It is also customary for a third state to grant to a diplomat pa.s.sing through its territory immunity from duties. Diplomatic agents are also exempt from income, military, window, and similar taxes.

(7) It is hardly necessary now to mention the fact that the diplomatic agent is ent.i.tled to _freedom of religious worship_ within the mission, provided there be no attempt by bell, symbol, or otherwise to attract the attention of the pa.s.ser-by to the observance. This privilege was formerly of importance, but now is never questioned.

-- 79. Diplomatic Practice of the United States

Some of the minor points of procedure and functions may be seen by the study of the customs and rules of any large state, as in the United States.

(_a_) Official communications involving international relations and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State. In other states this department is commonly called the Department of Foreign Affairs, and its chief is the Minister or Secretary for Foreign Affairs, and was so designated in the United States from 1781 to 1789. The Department of State of the United States, however, performs many functions not strictly within a Department of Foreign Affairs, as an enumeration of the Bureaus will show.

(1) Bureau of Appointments.

(2) Diplomatic Bureau.

(3) Consular Bureau.

(4) Bureau of Indexes and Archives.

(5) Bureau of Accounts.

(6) Bureau of Rolls and Library, which, besides other duties, has charge of the publication of the laws, treaties, proclamations, and executive orders.

(7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of Statistics).

(_b_) The Const.i.tution provides that, "In all cases affecting amba.s.sadors, other public ministers, and consuls," the Supreme Court has original jurisdiction.[242]

(_c_) A diplomatic agent cannot, without consent of Congress, "accept of any present, emolument, office, or t.i.tle of any kind whatever from any king, prince, or foreign state."[243] This provision does not, however, prevent the rendering of a friendly service to a foreign power, and it may be proper for him, having first obtained permission from the Department of State, to accede to the request to discharge temporarily the duties of a diplomatic agent of any other state.[244]

(_d_) In case of revolution a diplomatic agent may extend protection to the subjects of other friendly powers left for the time without a representative.[245] In neither this nor in the preceding case does the United States become responsible for the acts of its diplomatic representative in so far as he is acting as agent of the other state or states.

(_e_) "It is forbidden to diplomatic officers to partic.i.p.ate in any manner in the political concerns of the country of their residence; and they are directed especially to refrain from public expressions of opinion upon local political or other questions arising within their jurisdiction. It is deemed advisable to extend similar prohibition against public addresses, unless upon exceptional festal occasions, in the country of official residence. Even upon such occasions any reference to political issues, pending in the United States or elsewhere, should be carefully avoided."[246] A diplomatic agent is forbidden to recommend any person for office under the government to which he is accredited.[247] The diplomatic agent should not become the agent to prosecute private claims of citizens.[248] The diplomatic agent should not retain any copy of the archives, nor allow the publication of any official doc.u.ment, without authorization of the Department of State.

The Department in general disapproves of residence of the agent elsewhere than at the capital of the receiving state.

(_f_) Joint action with the diplomatic agents of other powers at a foreign court is deprecated, although conferences resulting in a common understanding in cases of emergency are considered desirable.[249]

(_g_) It is permitted that the diplomatic agent of the United States wear the uniform and bear the t.i.tle of the rank attained in the volunteer service of the Army of the United States during the rebellion.[250] It is prohibited by a later statute to wear "any uniform or official costume not previously authorized by Congress."[251] This has been interpreted as applying to dress denoting rank, but not to the prescribed court dress of certain capitals;[252] and "diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage prescribes as appropriate to the hour and place."[253]

(_h_) The United States has never been liberal in compensating diplomatic agents for their services. In 1784 the salary of the highest grade was fixed at nine thousand dollars, and it had only been doubled at the end of the nineteenth century. Other states of equal dignity provide far more liberally for their representatives.

The whole matter of diplomatic agents has been the subject of numerous statutes.[254]

-- 80. Consuls

(_a_) =Historically= the office of consul preceded that of amba.s.sador.

The merchants of different states had dealings with each other long before the states, as such, entered into negotiations. The Egyptians, apparently as early as the fourteenth century B.C., intrusted the trial of certain maritime cases to a designated priest. The Mediterranean merchants appealed to the _judicium mercatorium et maritimum_ in the sixth century B.C. The Greek _proxenos_ performed some consular functions. Rome later had similar public servants. The consular system, however, did not develop during the long period of decay of the Roman Empire. In the days of the Crusades, the merchants settled in the coast cities of the Mediterranean. Quarters of the cities practically came under the jurisdiction of the foreign occupants. The consuls, probably at first chosen by the merchants, exercised this jurisdiction, under which the law of the state of the origin of the merchants was regarded as binding. Their functions were somewhat similar to those exercised in some Eastern states at the present time. As soon as conditions became more settled, the states gradually a.s.sumed control of these consular offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and the early Lex Rhodia show that many of the consular functions were recognized in the Middle Ages, and the inst.i.tution of consuls seems to have been quite well established by the year 1200. The Hanseatic League in the fourteenth century had magistrates in many cities ent.i.tled _aldermen_, who were performing functions similar to those of the consuls of the Mediterranean.[255] England began to send consuls in the fifteenth century; the system rapidly spread, and the powers and functions of consuls were wide. From this time, with the growth of the practice of sending resident amba.s.sadors, the extent of the consular duties was gradually lessened. The diplomatic functions formerly in the charge of the consuls were intrusted to the amba.s.sadors, and other functions of the consuls were reduced by making them the representatives of the business interests of the subjects of the state in whose service they were, rather than of the interests of the state as such.[256] From the middle of the seventeenth century, when the responsibility of states to each other became more fully recognized, and government became more settled, the exterritorial jurisdiction of consuls was no longer necessary. The growth of commerce among the nations has increased the duties of the consul. The improved means of communication, telegraphic and other, has relieved both consuls and amba.s.sadors of the responsibility of deciding, without advice from the home government, many questions of serious nature.

(_b_) =The rank of consuls= is a matter of domestic law, and each state may determine for its own officers the grade and honors attaching thereto in the way of salutes, precedence among its domestic officials, etc. There is no international agreement in regard to consuls similar to that of 1815-1818 in regard to diplomatic agents.

The United States differentiates the consular service more fully than most states, having the following: consuls-general, vice-consuls-general, deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial agents, vice-commercial agents, consular agents, consular clerks, interpreters, marshals, and clerks.[257] The term "consular officer,"

however, includes only consuls-general, consuls, commercial agents, deputy consuls, vice-consuls, vice-commercial agents, and consular agents.[258] The full officers are consuls-general, consuls, and commercial agents. The vice consular officers are "subst.i.tute consular officers" and the deputy consuls-general, deputy consuls, and consular agents are "subordinate consular officers."[259]

Consuls-general ordinarily have a supervisory jurisdiction of the consuls within the neighborhood of their consulate, though sometimes they have no supervisory jurisdiction. This is often exercised by the diplomatic agent accredited to the same state.

Most states have consuls-general, consuls, vice-consuls, consular agents, sometimes also consular students.

(_c_) =The nomination of consuls= is an attribute of a sovereign state.

They may be chosen either from among its own citizens or from those of the foreign state. Consuls chosen from the citizens of the state to which they are accredited exercise only in part the full consular functions, the limit of the functions being determined by the laws of the accrediting state and by the laws of the receiving state. Some states refuse to receive their own citizens as consuls; others do not accredit foreigners as consuls.

The commission or patent by which a consul-general or consul is always appointed is transmitted to the diplomatic representative of the appointing state in the state to which the consul is sent, with the request that he apply to the proper authority for an _exequatur_, by which the consul is officially recognized and guaranteed such prerogatives and immunities as are attached to his office. The vice-consul is usually appointed by patent, though he may be nominated by his superior, and is recognized by granting of an _exequatur_. The _exequatur_ may be revoked for serious cause, though the more usual way is to ask the recall of a consul who is not satisfactory to a state. The _exequatur_ may be refused for cause. It is usually issued by the head of the state. If the form of government in the receiving state or in the accrediting state changes, it is customary to request a new _exequatur_.

+Note.+ The consular agents, while appointed and confirmed as are the higher consular officers, do not in the practice of the United States receive an _exequatur_.

(FORM OF)

FULL PRESIDENTIAL EXEQUATUR

_President of the United States of America._

_To all to whom it may concern_:

Satisfactory evidence having been exhibited to me that...............................................................