International Law. A Treatise Volume I Part 58

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-Fodere, III. -- 1394--Fiore, II. Nos.

1143-1144--Calvo, III. ---- 1532-1539.

[Sidenote: 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.

[Sidenote: 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 inst.i.tution 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 pa.s.sage (_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 pa.s.sage does not include the right to stop on the territory longer than is necessary for the pa.s.sage. Thus, in 1854, Soule, 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. Soule 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 Soule'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]

[Footnote 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.]

[Footnote 754: See Wharton, I. -- 97, and Moore, IV. -- 643.]

It must be specially remarked that no right of pa.s.sage 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 Amba.s.sador, Marechal de Belle-Isle, on his way to Berlin, pa.s.sed 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.

[Sidenote: 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, amba.s.sador of the United States in Paris during the siege of that town in 1870 by the Germans. This amba.s.sador 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]

[Footnote 755: See below, vol. II. -- 157, and Wharton, I. -- 97.]

[Sidenote: 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]

[Footnote 756: See Martens, "Causes Celebres," 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-Fodere, III. ---- 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. ---- 1348-1350--Martens, II. -- 16--Roederer, "De l'application des immunites de l'amba.s.sadeur au personnel de l'amba.s.sade" (1904), pp. 22-84.

[Sidenote: Different Cla.s.ses 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 cla.s.ses. 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 cla.s.s belong the Councillors, Attaches, Secretaries of the Legation; the Chancellor of the Legation and his a.s.sistants; 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 cla.s.s 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 cla.s.s 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 cla.s.s 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.

[Sidenote: 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] subpoena 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.

[Footnote 757: Some authors, however, plead for an abrogation of this rule. See Martens, II. -- 16.]

[Footnote 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 Ma.s.sachusetts, for furiously driving a motor-car. But the judgment was afterwards annulled, and the fine imposed remitted.]

[Sidenote: 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.

[Footnote 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 a.s.sault outside the emba.s.sy, he was arrested in the stable of the emba.s.sy 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.]

[Sidenote: 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 Sa, the brother of the Portuguese Amba.s.sador 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.

[Footnote 760: The case is discussed by Phillimore, II. -- 169.]

[Footnote 761: See R.G. XIV. (1907), pp. 159-165.]

[Sidenote: 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 pa.s.sage 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 pa.s.sports 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-Fodere, III. ---- 1515-1535--Fiore, II. Nos.

1169-1175--Calvo, III. ---- 1363-1367--Martens, II. -- 17.

[Sidenote: 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 cla.s.s; the delivery of pa.s.sports to him by the receiving State; request of the envoy for his pa.s.sports on account of ill-treatment; war between the sending and the receiving State; const.i.tutional 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.

[Sidenote: 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.

[Sidenote: 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 amba.s.sador and the appointment of his successor.

[Sidenote: 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 circ.u.mstances, the envoy receives a Letter of Recall from the head, or, in case he is only a Charge 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 Charge d'Affaires to the Foreign Secretary. In exchange for the Letter of Recall the envoy receives his pa.s.sports and a so-called _Lettre de recreance_, 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 circ.u.mstances the sending State may order its envoy to ask for his pa.s.sports 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.

[Footnote 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 Charges d'Affaires.]