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in many cases it is doubtful whether the envoy concerned really abused his office for the purpose of interfering with internal politics.

VII

POSITION OF DIPLOMATIC ENVOYS

matic

Inter

Law.

§ 384. Diplomatic envoys are just as little subjects Diplo of International Law as are heads of States; and the Envoys arguments used regarding the position of such heads 1 Objects of must also be applied to the position of diplomatic envoys. national This position 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 Municipal Law of the receiving States in compliance with an international right belonging to their home States. For International Law gives a right to every State to demand for its diplomatic envoys certain privileges from the Municipal 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.

due to

Envoys.

§ 385. Privileges due to diplomatic envoys, apart Privileges from ceremonial honours, have reference to their in- Diploviolability and to their so-called exterritoriality. The matic reasons why these privileges must be granted are that diplomatic envoys are representatives of States and of their dignity, and, further, that they could not exercise their functions perfectly unless they enjoyed such

1 See above, § 344.

See above, § 121.

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 goodwill of the Government, they might be influenced by personal considerations of safety and comfort to a degree which would materially hamper them in the exercise of their functions. It is equally clear that if their full and free intercourse with their home States through letters, telegrams, and couriers were liable to interference, the objects of their mission could not be fulfilled. 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.1

Protec

tion due

matic

VIII

INVIOLABILITY OF DIPLOMATIC ENVOYS

Grotius, ii. c. 18, § 4-Vattel, iv. §§ 80-107-Hall, §§ 50, 98*-Phillimore, ii. § 154-175-Twiss, i. §§ 216-217-Moore, iv. §§ 657-659-Hershey, Nos. 271-274-Ullmann, § 50-Geffcken in Holtzendorff, iii. pp. 648-653 —Rivier, i. § 38—Nys, ii. pp. 425-428—Bonfils, Nos. 684-699-PradierFodéré, 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)—Praag, No. 205– Satow, Diplomatic Practice, i. §§ 279-311.

§ 386. Diplomatic envoys are just as sacrosanct as to Diplo heads of States. They must, therefore, be afforded Envoys. special protection as regards the safety of their persons, and be exempted from every kind of criminal jurisdiction by the receiving States. The protection due to diplomatic envoys must find its expression, not

1 The Institute of International Law, at its meeting at Cambridge in 1895, discussed the privileges of

diplomatic envoys, and drafted s body of seventeen rules in regard thereto; see Annuaire, xiv. p. 240.

only in the necessary police measures for the prevention of offences, but also in specially severe punishments for offenders. Thus, according to English Criminal Law,1 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 sets 2 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.3

4

tion from

tion.

§ 387. As regards the exemption of diplomatic envoys Exemp from criminal jurisdiction, the theory and practice of Criminal International Law agree nowadays that the receiving JurisdicStates 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 they must comply with them, although it is admitted that they can never be prosecuted and punished

1 See Stephen's Digest, Articles 96-97.

27 Anne, c. 12, §§ 3-6. This statute, which was passed in 1708 in consequence of the Russian ambassador in London having been arrested for a debt of £300, has always been considered as declaratory VOL. I.

2N

of the existing law in England, and
not as creating new law.

3 See above, § 106 (case of Mon-
tagnini), and below, § 411.

4 In former times there was no unanimity amongst publicists. See Phillimore, ii. § 156.

for any breach.1 This question ought to be decided in the negative, for a diplomatic envoy must in no respect be considered to be 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 the internal order of the State, the latter will certainly request his recall, or send him back at once.

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 ambassador in England, Mendoza, plotted to depose Queen Elizabeth; he was ordered to leave the country. In 1587 the French ambassador 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 ambassador in England, De Bass, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.2 § 388. As diplomatic envoys are sacrosanct, the prinInviola ciple of their inviolability is generally recognised. But there is one exception. For if a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving State in such a manner as makes it necessary to put him under restraint for the purpose of preventing similar acts, or if he conspires against the receiving State and the conspiracy can be made

Limita

tion of

bility.

1 The point is thoroughly discussed by Beling, Die strafrechtliche Bedeutung der Exterritoria

lität (1896), pp. 71-90.

2 These and other cases are dis cussed by Phillimore, ii. §§ 160-165.

futile only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent home. Thus in 1717 the Swedish ambassador, Gyllenburg, in London, who was an accomplice in a plot against King George I., was arrested, and his papers were searched. In 1718 the Spanish ambassador in France, Prince Cellamare, was placed in custody, because he organised a conspiracy against the French Government. It must be emphasised that a diplomatic envoy cannot complain if he is injured in consequence of his own unjustifiable behaviour, as for instance in attacking an individual who in selfdefence retaliates, or in unreasonably or wilfully placing himself in dangerous or awkward positions, such as in a disorderly crowd.2

IX

EXTERRITORIALITY OF DIPLOMATIC ENVOYS

Grotius, ii. c. 18, §§ 9 and 10-Vattel, iv. §§ 80-119-Hall, §§ 50, 52, 53Westlake, i. pp. 273-283-Phillimore, ii. §§ 176-210-Taylor, §§ 299-315 -Twiss, i. §§ 217-221-Moore, ii. §§ 291-304, and iv. §§ 660-669-Hershey, Nos. 270 and 275-280-Ullmann, § 50-Geffcken in Holtzendorff, iii. pp. 654-659-Nys, ii. pp. 406-433-Rivier, i. § 38-Bonfils, Nos. 700721-Pradier-Fodéré, iii. §§ 1396-1495-Mérignhac, ii. pp. 249-294Fiore, ii. Nos. 1145-1163-Calvo, iii. §§ 1499-1531-Martens, ii. §§ 1214-Gottschalck, Die Exterritorialität der Gesandten (1878)—Heyking, L'Exterritorialité (1889)-Odier, Des Privilèges et Immunités des Agents diplomatiques (1890)-Vercamer, Des Franchises diplomatiques et spéciale. ment de l'Exterritorialité (1891)-Droin, L'Exterritorialité des Agents diplomatiques (1895)-Mirre, Die Stellung der völkerrechtlichen Literatur zur Lehre von den sogenannten Nebenrechten der gesandschaftlichen Funktionäre (1904)—Ozanam, L'Immunité civile de Jurisdiction des Agents diplomatiques (1912)-Praag, Nos. 49-68, 163, and 203-226-Satow, Diplomatic Practice, i. §§ 312-347.

§ 389. The exterritoriality which must be granted to diplomatic envoys by the Municipal Laws of all the

1 Details regarding these cases are given by Phillimore, ii. §§ 166 and 170.

2 See Article 6 of the rules regard

ing diplomatic immunities adopted by the Institute of International Law at its meeting at Cambridge in 1895 (Annuaire, xiv. p. 241).

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