International Law. A Treatise Volume I Part 56

[Footnote 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.]

[Sidenote: 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 cla.s.s to which the envoy belongs.

If he be one of the first, second, or third cla.s.s, 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 Charge 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 pa.s.sports furnishing sufficient proof of his diplomatic character.

[Footnote 729: Details concerning reception of envoys are given by Twiss, I. -- 215, and Rivier, I. p. 467.]

[Sidenote: 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-Fodere, III. ---- 1346-1376.

[Sidenote: 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.

[Sidenote: Negotiation.]

-- 379. A permanent amba.s.sador 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.

[Sidenote: 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.

[Sidenote: 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 Munic.i.p.al 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.

[Sidenote: 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 pa.s.sports 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.

[Sidenote: 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 pa.s.sports 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.

[Footnote 730: See Hall (-- 98**), Taylor (-- 322), and Moore (IV. -- 640), who discuss a number of cases, especially that of Lord Sackville, who received his pa.s.sports in 1888 from the United States of America for an alleged interference in the Presidential election.]

VII

POSITION OF DIPLOMATIC ENVOYS

[Sidenote: 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 Munic.i.p.al 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 Munic.i.p.al 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.

[Footnote 731: See above, -- 344.]

[Sidenote: 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'etre_. 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]

[Footnote 732: See above, -- 121.]

[Footnote 733: The Inst.i.tute 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-Fodere, III. ---- 1382-1393--Merignhac, II. pp. 264-273--Fiore, II. Nos.

1127-1143--Calvo, III. ---- 1480-1498--Martens, II. -- 11--Crouzet, "De l'inviolabilite ... des agents diplomatiques" (1875).

[Sidenote: 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 Emba.s.sy must not be touched, provided they have been put under seal and confided to the protection of another envoy.[736]

[Footnote 734: See Stephen's Digest, articles 96-97.]

[Footnote 735: 7 Anne, c. 12, sect. 3-6. This statute, which was pa.s.sed in 1708 in consequence of the Russian Amba.s.sador 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.]

[Footnote 736: See above, -- 106 (case of Montagnini), and below, -- 411.]

[Sidenote: 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 circ.u.mstances 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 Munic.i.p.al 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.

[Footnote 737: In former times there was no unanimity amongst publicists. See Phillimore, II. -- 154.]

[Footnote 738: The point is thoroughly discussed by Beling, "Die strafrechtliche Bedeutung der Exterritorialitat" (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 Amba.s.sador Mendoza in England plotted to depose Queen Elizabeth; he was ordered to leave the country. In 1586 the French Amba.s.sador 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 Amba.s.sador in England, De Ba.s.s, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.[739]

[Footnote 739: These and other cases are discussed by Phillimore, II. ---- 160-165.]