of Third

State.

Thirdly, an envoy accredited to a certain State might interfere with the affairs of a third State.

Envoy § 398. If an envoy travels through the territory of travelling through a third State incognito or for his pleasure only, there Territory is no doubt that he cannot claim any special privileges whatever. He is in exactly the same position as any other foreign individual travelling there, 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 institution of legation is necessary for the intercourse of States, and is firmly established by International Law, there ought to be no doubt that such third State must grant the right of innocent passage (jus transitus innoxii) to the envoy, provided that it is not at war with the sending or the receiving State. But other privileges,1 especially those of inviolability and exterritoriality, need not be granted to the envoy. Moreover, the right of innocent passage does not include the right to stop on the territory longer than is necessary for the passage. Thus, in 1854, Soulé, 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. Soulé at once left Calais, and the French Government declared, during the correspondence

1 The matter, which has always been disputed, is fully discussed by Twiss, i. § 222, who also quotes the

opinion of Grotius, Bynkershoek, and Vattel.

with the United States in the matter, that there was no objection to Soulé traversing France on his way to Madrid, but that they would not allow him to make a sojourn in Paris, or anywhere else in France.1

But no right of passage 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 ambassador, Maréchal de Belle-Isle, on his way to Berlin, passed 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. Again, in August 1917, after Cuba had entered the World War as an Allied Power, Herr von Heinrichs, formerly secretary to the German embassy at Madrid, was arrested and made a prisoner of war when landing at Havana from a Spanish steamer on which he was proceeding to Mexico, where he was being transferred. On the other hand, the envoy of a belligerent who travels to his neutral destination on a neutral vessel may not be forcibly removed and made a prisoner of war while the vessel is on the open sea.2 But should the vessel enter the territorial waters, or a port, of the other belligerent, that envoy could be seized. Therefore when, in November 1914, during the World War, Count Tarnowski, the Austrian envoy to the United States, then neutral, intended to travel from Rotterdam to America, it was necessary to ask Great Britain for a safe-conduct. Otherwise he could have been made a prisoner of war when the vessel on which he was travelling entered British

1 See Wharton, i. §97, and Moore, iv. § 643. See also Wheaton, § 247. American practice would seem to grant inviolability and exterritoriality in such cases. See Wilson v.

Blanco, (1889)56 N. Y. Super. Ct. 582, and in Scott, Cases on International Law, p. 206.

See The Trent case below, vol. ii. § 408 n.

Envoy

Bellige

rent on

Occupied

Territory.

territorial waters.1 The same procedure was necessary, for the same reason, when in 1915 the Austrian ambassador at Washington, Dr. Dumba, and in 1917 the German ambassador at Washington, Count Bernsdorff, desired to return to their home States.

§ 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 Enemy 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 in 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. A case arose during the siege of Paris in 1870 by the Germans. Mr. Washburne, United States ambassador in Paris, 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

1 Similarly a member of the suite of an envoy may be made a prisoner of war if apprehended in a third State which is at war with his home State. Therefore, when in February 1918, during the World War, Captain von Krohn, the so-called

naval attaché to the German legation at Madrid, desired to return to Germany by crossing France, he had to possess a safeconduct from the French Government. On the case of von Papen, see below, vol. ii. § 218.

alter their decision although the Government of the United States protested.1

a Third

§ 400. There is no doubt that an envoy must not Envoy interferinterfere in matters with regard to which the State to ing with which he is accredited is involved with a third State. If Affairs of he does interfere, he enjoys no privileges whatever State. 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 Russians, and was not released till 1736, although France protested.2

XI

THE RETINUE OF DIPLOMATIC ENVOYS

Grotius, ii. c. 18, § 8-Vattel, iv. §§ 120-124-Hall, § 51-Phillimore, ii. §§ 186-193-Twiss, i. § 218-Moore, iv. §§ 664-665-Hershey, No. 279Ullmann, §§ 47 and 51-Geffcken in Holtzendorff, iii. pp. 660-661Heffter, § 221-Rivier, i. pp. 458-461-Nys, ii. pp. 440-444-PradierFodéré, iii. §§ 1472-1486-Fiore, ii. Nos. 1164-1168—Calvo, iii. §§ 13481350-Martens, ii. § 16-Roederer, De l'Application des Immunités de l'Ambassadeur au Personnel de l'Ambassade (1904), pp. 22-84-Praag, Nos. 229-236-Satow, Diplomatic Practice, i. §§ 375-383.

Classes

Retinue.

§ 401. The individuals accompanying an envoy offi- Different cially, or in his private service, or as members of his of Memfamily, or as couriers, compose his retinue. The members bers of of the retinue belong, therefore, to four different classes. 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 class belong the councillors, attachés, and secretaries of the legation; the chancellor of the legation and his assistants; the interpreters, and the like; the chaplain, the doctor, and the legal advisers, provided that they are appointed by the home State, and are sent specially

1 See below, vol. ii. § 157, and Wharton, i. § 97.

2 See Martens, Causes célèbres, i. p. 207.

VOL. I.

20,

as members of the legation. A list of these members of a legation is handed 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 a legation are personally presented to the Secretary for Foreign Affairs, and very often also to the head of the receiving State. The second class comprises all those individuals who are in the private service of the envoy, such as servants of all kinds, the private secretary of the envoy, the tutor and the governess of his children. The third class 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 class 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 to guarantee the safety and secrecy of the despatches. Privileges § 402. It is a universally recognised 1 rule of Interof Mem- national Law that all members of a legation are as inLegation. violable and exterritorial as the envoy himself. They must, therefore, be granted by the receiving State exemption from criminal and civil jurisdiction, exemption from police,2 subpoena as witnesses, and taxes. They

bers of

1 Some authors, however, plead for an abrogation of this rule. See Martens, ii. § 16.

2 A case of this kind occurred in 1904 in the United States. Mr. Gurney, Secretary to the British embassy at Washington, was fined by the police magistrate of Lee, in Massachusetts, for furiously driving a motor-car. But the judgment was afterwards annulled, and the fine remitted. Another case of interest occurred in London in May 1913. The body of a young man was recovered from the river Thames, and identified as that of Mogen Schested,

a secretary to the Danish legation. The inquest necessary in such cases, according to English law, could not be held, because the Danish legation claimed exemption for Schested as one of its members. The body was therefore conveyed to Copenhagen without further interference by the police. Again, when in February 1916 Roberto Centaro, the first secretary to the Italian embassy in London, committed suicide by shooting himself in a hotel, on the demand of the Italian ambassador, the coroner refrained from holding an inquest, and the police did not further interfere.