Reason and Fictional Character of Exter ity. members of the Family of Nations is not, as in the case of sovereign heads of States, based on the principle Oh Fructe par in parem non habet imperium, but on the necessity ritorial that envoys must, for the purpose of fulfilling their duties, be independent of the jurisdiction, the control, and the like, of the receiving States. Exterritoriality, in this as in every other case, is a fiction1 only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States. The term 'Exterritoriality is nevertheless valuable, because it demonstrates clearly the fact that envoys must, in most respects, be treated as though they were not within the territory of the receiving States.2 The so-called exterritoriality of envoys takes practical form in a body of privileges which must be severally discussed. Immunity § 390. The first of these privileges is immunity of of Domi cile. domicile, the so-called Franchise de l'hôtel. The present immunity of domicile has developed from the former condition of things, when the official residences of envoys were in every respect considered to be outside the territory of the receiving States, and when this exterritoriality was, in many cases, even extended to the whole quarter of the town in which such a residence was situated. One used then to speak of the Franchise du quartier or the Jus quarteriorum. And an inference from this Franchise du quartier was the so-called right of asylum, envoys claiming the right to grant asylum, within the boundaries of their residential quarters, to every individual who took refuge there. But already 1 See Praag, Nos. 49-54. 2 With a few exceptions (see Droin, L'Exterritorialité des Agents diplomatiques (1895), pp. 32-43), all publicists accept the term and the fiction of exterritoriality. 3 Although this right of asylum was certainly recognised by the States in former centuries, it is of interest to note that Grotius did not consider it postulated by International Law, for he says of this right (ii. c. 18, § 8): 'Ex concessione pendet ejus apud quem agit. Istud enim juris gentium non est.' See also Bynkershoek, De Foro Legatorum, c. 21. in the seventeenth century most States opposed this Franchise du quartier, and it totally disappeared in the eighteenth century, leaving behind, however, the claim of envoys to grant asylum within their official residences. Thus, when in 1726 the Duke of Ripperda, first minister to Philip v. of Spain, who was accused of high treason and had taken refuge in the residence of the English ambassador in Madrid, was forcibly arrested there by order of the Spanish Government, the British Government complained of this act as a violation of International Law.1 Twenty-one years later, in 1747, a similar case occurred in Sweden. A merchant named Springer was accused of high treason, and took refuge in the house of the English ambassador at Stockholm. On the refusal of the English envoy to surrender Springer, the Swedish Government surrounded the embassy with troops, and ordered the carriage of the envoy, when leaving the embassy, to be followed by mounted soldiers. At last Springer was handed over to the Swedish Government under protest, but England complained and recalled her ambassador, as Sweden refused to make the required reparation.2 reparation. As these two examples show, the right of asylum, although claimed and often conceded, was nevertheless not universally recognised. During the nineteenth century all remains of it vanished, and when in 1867 the French envoy in Lima claimed it, the Peruvian Government refused to concede it.3 Westlake, i. p. 282; Moore, ii. §§ Nowadays the official residences of envoys are, in a sense and in some respects only, considered as though they were outside the territory of the receiving States. For the immunity of domicile granted to diplomatic envoys comprises the inaccessibility of these residences to officers of justice, police, or revenue, and the like, of the receiving States without the special consent of the respective envoys.1 Therefore, no act of jurisdiction or administration of the receiving Governments can take place within these residences, except by special permission of the envoys. And the stables and carriages of envoys are considered to be parts of their residences. But such immunity of domicile is granted only in so far as it is necessary for the independence and inviolability of envoys, and the inviolability of their official documents and archives. If an envoy abuses this immunity, the receiving Government need not bear it passively. There is, therefore, no obligation on the part of the receiving State to grant an envoy the right of affording asylum to criminals, or to other individuals not belonging to his suite. Of course, an envoy need not deny entrance to criminals who want to take refuge in the embassy. But he must surrender them to the prosecuting Government at its request, and if he refuses, any measures may be taken to induce him to do so, apart from such as would involve an attack on his person. Thus, the embassy may be surrounded by soldiers, and certain classes of the population asylum is occasionally granted to refugees, and respected by the local authorities, there is no doubt; but this occasional practice does not shake the validity of the general rule of International Law, according to which there is no obligation on the part of the receiving State to grant to envoys the right of affording asylum to individuals not belonging to their suites. See, however, Moore, ii. § 293. Can the official residence of an envoy, if the property of his home State, be confiscated after his departure by the State on the territory of which it is situated as a measure of reprisals? During the World War, on August 25, 1916, the Italian Government confiscated the Palais de Venice in Rome, which was the seat of the Austrian Legation at the Holy See, as a measure of reprisals against the bombardment of Venice by Austrian aircraft. See Scelle in R.G., xxiv. (1917), pp. 244-255, and below, vol. ii. § 247. eventually the criminal may even forcibly be taken out of the embassy. But such measures of force are justifiable only if the case is an urgent one, and after the envoy has in vain been required to surrender the criminal. Further, if a crime is committed inside the house of an envoy by an individual who does not enjoy personally the privilege of exterritoriality, the criminal must be surrendered to the local Government. The case of Nikitschenkow, which occurred in Paris in 1867, is an instance thereof. Nikitschenkow, a Russian subject not belonging to the Russian legation, made an attempt on, and wounded, a member of that legation within the precincts of the embassy. The French police were called in, and arrested the criminal. The Russian Government required his extradition, maintaining that, as the crime was committed inside the Russian embassy, it fell exclusively under Russian jurisdiction; but the French Government refused extradition, and Russia dropped her claim. Again, an envoy has no right to seize a subject of his home State who is within the boundaries of the receiving State, and keep him under arrest inside the embassy with the intention of bringing him away into the power of his home State. An instance thereof is the case of the Chinaman, Sun Yat Sen, which occurred in London in 1896. He was a political refugee from China, living in London, and was induced to enter the house of the Chinese legation and kept under arrest there in order to be conveyed forcibly to China. The Chinese envoy contended that, as the house of the legation was Chinese territory, the English Government had no right to interfere. But the latter did interfere, and Sun Yat Sen was released after several days. In contrast to this case may be mentioned that of Kalkstein which occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian subject, had fled to Exemp tion from Jurisdic tion. Poland for political reasons, since he was accused of high treason against the Prussian Government. Now Frederic William, the great Elector of Brandenburg, ordered his diplomatic envoy at Warsaw, the capital of Poland, to obtain possession of the person of Kalkstein. On November 28, 1670, this order was carried out. Kalkstein was secretly seized, and, wrapped up in a carpet, was carried across the frontier. He was afterwards executed at Memel. § 391. The second privilege of envoys in reference Criminal to their exterritoriality is their exemption from criminal and Civil and civil jurisdiction. As their exemption from criminal jurisdiction is also a consequence of their inviolability, it has already been discussed,1 and we have here only to deal with their exemption from civil 2 jurisdiction. No civil action of any kind as regards debts and the like can be brought against them in the civil courts of the receiving States. They cannot be arrested for debts, nor can their furniture, their carriages, their horses, and the like, be seized for debts. They cannot be prevented from leaving the country for not having paid their debts, nor can their passports be refused to them on this account. Thus, when in 1772 the French Government refused passports to Baron de Wrech, the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid his debts, all the other envoys in Paris complained of this act of the French Government as a violation of International Law. But the rule that an envoy is exempt from civil jurisdiction has certain exceptions. If an envoy enters an appearance to an action against himself, or if he himself brings an action under the jurisdiction of the receiving State, the courts of the latter in such cases have civil juris See above, §§ 387-388. * See Martens, Causes célèbres, ii. p. 282. |