DIPLOMATIC ENVOYS
I
THE INSTITUTION OF LEGATION
Phillimore, II. §§ 143-153--Taylor, § 274--Twiss, § 199--Geffcken
in Holtzendorff, III. pp. 605-618--Nys, II. pp. 335-339--Rivier,
I. § 35--Ullmann, § 44--Martens, II. § 6--Gentilis, "De
legationibus libri III." (1585)--Wicquefort, "L'Ambassadeur et ses
fonctions" (1680)--Bynkershoek, "De foro legatorum"
(1721)--Garden, "Traité complet de diplomatie" (3 vols.
1833)--Mirus, "Das europäische Gesandtschaftsrecht" (2 vols.
1847)--Charles de Martens, "Le guide diplomatique" (2 vols. 1832;
6th ed. by Geffcken, 1866)--Montague Bernard, "Four Lectures on
Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd
Lecture)--Alt, "Handbuch des Europäischen Gesandtschaftsrechts"
(1870)--Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd
ed. 1899)--Krauske, "Die Entwickelung der ständigen Diplomatie,"
&c. (1885)--Lehr, "Manuel théorique et pratique des agents
diplomatiques" (1888)--Hill, "History of Diplomacy in the
International Development of Europe," vol. I. (1905), vol. II.
(1906; the other vols. have not yet appeared).
[Sidenote: Development of Legations.]
§ 358. Legation as an institution for the purpose of negotiating between
different States is as old as history, whose records are full of
examples of legations sent and received by the oldest nations. And it is
remarkable that even in antiquity, where no such law as the modern
International Law was known, ambassadors enjoyed everywhere a special
protection and certain privileges, although not by law but by religion,
ambassadors being looked upon as sacrosanct. Yet permanent legations
were unknown till very late in the Middle Ages. The fact that the Popes
had permanent representatives--so-called _apocrisiarii_ or
_responsales_--at the Court of the Frankish Kings and at Constantinople
until the final separation of the Eastern from the Western Church,
ought not to be considered as the first example of permanent legations,
as the task of these papal representatives had nothing to do with
international affairs, but with those of the Church only. It was not
until the thirteenth century that the first permanent legations made
their appearance. The Italian Republics, and Venice in especial, created
the example[713] by keeping representatives stationed at one another's
capitals for the better negotiation of their international affairs. And
in the fifteenth century these Republics began to keep permanent
representatives in Spain, Germany, France, and England. Other States
followed the example. Special treaties were often concluded stipulating
permanent legations, such as in 1520, for instance, between the King of
England and the Emperor of Germany. From the end of the fifteenth
century England, France, Spain, and Germany kept up permanent legations
at one another's Courts. But it was not until the second half of the
seventeenth century that permanent legations became a general
institution, the Powers following the example of France under Louis XIV.
and Richelieu. It ought to be specially mentioned that Grotius[714]
thought permanent legations to be wholly unnecessary. The course of
events has, however, shown that Grotius's views as regards permanent
legations were short-sighted. Nowadays the Family of Nations could not
exist without them, as they are the channel through which nearly the
whole, and certainly all important, official intercourse of the States
flows.
[Footnote 713: See Nys, "Les Origines du droit international" (1894), p.
295.]
[Footnote 714: "De jure belli ac pacis," II. c. 28, § 3: "Optimo autem
jure rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus
cum non sit opus, docet mos antiquus, cui illae ignoratae."]
[Sidenote: Diplomacy.]
§ 359. The rise of permanent legations created the necessity for a new
class of State officials, the so-called diplomatists; yet it was not
until the end of the eighteenth century that the terms "diplomatist"
and "diplomacy" came into general use. And although the art of diplomacy
is as old as official intercourse between States, such a special class
of officials as are now called diplomatists did not and could not exist
until permanent legations had become a general institution. In this as
in other cases the office has created the class of men necessary for it.
International Law has nothing to do with the education and general
character of these officials. Every State is naturally competent to
create its own rules, if any, as regards these points. Nor has
International Law anything to do with _diplomatic usages_, although
these are more or less of importance, as they may occasionally grow into
customary rules of International Law. But I would notice one of these
usages--namely, that as regards the _language_ which is in use in
diplomatic intercourse. This language was formerly Latin, but through
the political ascendency of France under Louis XIV. it became French.
However, this is a usage of diplomacy only, and not a rule of
International Law.[715] Each State can use its own language in all
official communications to other States, and States which have the same
language regularly do so in their intercourse with each other. But
between States of different tongues and, further, at Conferences and
Congresses, it is convenient to make use of a language which is
generally known. This is nowadays French, but nothing could prevent
diplomatists from dropping French at any moment and adopting another
language instead.
[Footnote 715: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§
266-268.]
II
RIGHT OF LEGATION
Grotius, II. c. 18--Vattel, IV. §§ 55-68--Hall, § 98--Phillimore,
II. §§ 115-139--Taylor, §§ 285-288--Twiss, §§ 201-202--Wheaton, §§
206-209--Bluntschli, §§ 159-165--Heffter, § 200--Geffcken in
Holtzendorff, III. pp 620-631--Ullmann, § 45--Rivier, I. §
35--Nys, II. p. 339--Bonfils, Nos. 658-667--Pradier-Fodéré, II.
Nos. 1225-1256--Fiore, II. Nos. 1112-1117--Calvo, III. §§
1321-1325--Martens, II. §§ 7-8.
[Sidenote: Conception of Right of Legation.]
§ 360. Right of legation is the right of a State to send and receive
diplomatic envoys. The right to send such envoys is termed _active_
right of legation, in contradistinction to the _passive_ right of
legation, as the right to receive such envoys is termed. Some
writers[716] on International Law assert that no right but a mere
competence to send and receive diplomatic envoys exists according to
International Law, maintaining that no State is bound by International
Law to send or receive such envoys. But this is certainly wrong in its
generality. Obviously a State is not bound to send diplomatic envoys or
to receive _permanent_ envoys. But, on the other hand, the very
existence[717] of the Family of Nations makes it necessary for the
members or some of the members to negotiate occasionally on certain
points. Such negotiation would be impossible in case one member could
always and under all circumstances refuse to receive an envoy from the
other members. The duty of every member to listen, under ordinary
circumstances, to a message from another brought by a diplomatic envoy
is, therefore, an outcome of its very membership of the Family of
Nations, and this duty corresponds to the right of every member to send
such envoys. But the exercise of the active right of legation is
discretionary. No State need send diplomatic envoys at all, although
practically all States do at least occasionally send such envoys, and
most States send permanent envoys to many other States. The passive
right of legation is discretionary as regards the reception of
_permanent_ envoys only.
[Footnote 716: See, for instance, Wheaton, § 207; Heilborn, "System," p.
182.]
[Footnote 717: See above, § 141.]
[Sidenote: What States possess the Right of Legation.]
§ 361. Not every State, however, possesses the right of legation. Such
right pertains chiefly to full-Sovereign States,[718] for other States
possess this right under certain conditions only.
[Footnote 718: It should be emphasised that the Holy See, which is in
some respects treated as though an International Person, can send and
receive envoys, who must in every respect be considered as though they
were diplomatic envoys. That they are actually not diplomatic envoys,
although so treated, becomes apparent from the fact that they are not
agents for international affairs of States, but exclusively for affairs
of the Roman Catholic Church. (See above, § 106.)]
(1) Half-Sovereign States, such as States under the suzerainty or the
protectorate of another State, can as a rule neither send nor receive
diplomatic envoys. Thus, Crete and Egypt are destitute of such right,
and the Powers are represented in these States only by consuls or agents
without diplomatic character. But there may be exceptions to this rule.
Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia
and Turkey, the two half-Sovereign principalities of Moldavia and
Wallachia had the right of sending Chargés d'Affaires to foreign Powers.
Thus, further, the late South African Republic, which was a State under
British suzerainty in the opinion of Great Britain, used to keep
permanent diplomatic envoys in several foreign States.
(2) Part-Sovereign member-States of a Federal State may or may not have
the right of legation besides the Federal State. It is the constitution
of the Federal State which regulates this point. Thus, the member-States
of Switzerland and of the United States of America have no right of
legation, but those of the German Empire certainly have. Bavaria, for
example, sends and receives several diplomatic envoys.
[Sidenote: Right of Legation by whom exercised.]
§ 362. As, according to International Law, a State is represented in its
international relations by its head, it is he who acts in the exercise
of his State's right of legation. But Municipal Law may, just as it
designates the person who is the head of the State, impose certain
conditions and restrictions upon the head as regards the exercise of
such right. And the head himself may, provided that it is sanctioned by
the Municipal Law of his State, delegate[719] the exercise of such right
to any representative he chooses.
[Footnote 719: See Phillimore, II. §§ 126-133, where several interesting
cases of such delegation are discussed.]
It may, however, in consequence of revolutionary movements, be doubtful
who the real head of a State is, and in such cases it remains in the
discretion of foreign States to make their choice. But it is impossible
for foreign States to receive diplomatic envoys from both claimants to
the headship of the same State, or to send diplomatic envoys to both of
them. And as soon as a State has recognised the head of a State who came
into his position through a revolution, it can no longer keep up
diplomatic relations with the former head.
It should be mentioned that a revolutionary party which is recognised as
a belligerent Power has nevertheless no right of legation, although
foreign States may negotiate with such party in an informal way through
political agents without diplomatic character, to provide for the
temporal security of the persons and property of their subjects within
the territory under the actual sway of such party. Such revolutionary
party as is recognised as a belligerent Power is in some points only
treated as though it were a subject of International Law; but it is not
a State, and there is no reason why International Law should give it the
right to send and receive diplomatic envoys.
It should further be mentioned that neither an abdicated nor a deposed
head has a right to send and receive diplomatic envoys.[720]
[Footnote 720: See Phillimore, II. §§ 124-125, where the case of Bishop
Ross, ambassador of Mary Queen of Scots, is discussed.]
III
KINDS AND CLASSES OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 69-75--Phillimore, II. §§ 211-224--Twiss, I. §§
204-209--Moore, IV. § 624--Heffter, § 208--Geffcken in
Holtzendorff, III. pp. 635-646--Calvo, III. §§ 1326-1336--Bonfils,
Nos. 668-676--Pradier-Fodéré, III. §§ 1277-1290--Rivier, I. pp.
443-453--Nys, II. pp. 342-352.
[Sidenote: Envoys Ceremonial and Political.]
§ 363. Two different kinds of diplomatic envoys are to be
distinguished--namely, such as are sent for political negotiations and
such as are sent for the purpose of ceremonial function or notification
of changes in the headship. For States very often send special envoys to
one another on occasion of coronations, weddings, funerals, jubilees,
and the like; and it is also usual to send envoys to announce a fresh
accession to the throne. Such envoys ceremonial have the same standing
as envoys political for real State negotiations. Among the envoys
political, again, two kinds are to be distinguished--namely, first, such
as are permanently or temporarily accredited to a State for the purpose
of negotiating with such State, and, second, such as are sent to
represent the sending State at a Congress or Conference. The latter are
not, or need not be, accredited to the State on whose territory the
Congress or Conference takes place, but they are nevertheless diplomatic
envoys and enjoy all the privileges of such envoys as regards
exterritoriality and the like which concern the inviolability and safety
of their persons and the members of their suites.
[Sidenote: Classes of Diplomatic Envoys.]
§ 364. Diplomatic envoys accredited to a State differ in class. These
classes did not exist in the early stages of International Law. But
during the sixteenth century a distinction between two classes of
diplomatic envoys gradually arose, and at about the middle of the
seventeenth century, after permanent legations had come into general
vogue, two such classes became generally recognised--namely,
extraordinary envoys, called Ambassadors, and ordinary envoys, called
Residents; Ambassadors being received with higher honours and taking
precedence of the other envoys. Disputes arose frequently regarding
precedence, and the States tried in vain to avoid them by introducing
during the eighteenth century another class--namely, the so-called
Ministers Plenipotentiary. At last the Powers assembled at the Vienna
Congress came to the conclusion that the matter ought to be settled by
an international understanding, and they agreed, therefore, on March 19,
1815, upon the establishment of three different classes--namely, first,
Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary;
third, Chargés d'Affaires. And the five Powers assembled at the Congress
of Aix-la-Chapelle in 1818 agreed upon a fourth class--namely, Ministers
Resident, to rank between Ministers Plenipotentiary and Chargés
d'Affaires. All the other States either expressly or tacitly accepted
these arrangements, so that nowadays the four classes are an established
order. Although their privileges are materially the same, they differ in
rank and honours, and they must therefore be treated separately.
[Sidenote: Ambassadors.]
§ 365. Ambassadors form the first class. Only States enjoying royal
honours[721] are entitled to send and to receive Ambassadors, as also is
the Holy See, whose first-class envoys are called _Nuncios_, or _Legati
a latere_ or _de latere_. Ambassadors are considered to be personal
representatives of the heads of their States and enjoy for this reason
special honours. Their chief privilege--namely, that of negotiating with
the head of the State personally--has, however, little value nowadays,
as almost all States have to a certain extent constitutional government,
which necessitates that all the important business should go through the
hands of a Foreign Secretary.
[Footnote 721: See above, § 117, No. 1.]
[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.]
§ 366. The second class, the Ministers Plenipotentiary and Envoys
Extraordinary, to which also belong the Papal Internuncios, are not
considered to be personal representatives of the heads of their States.
Therefore they do not enjoy all the special honours of the Ambassadors,
and have not the privilege of treating with the head of the State
personally. But otherwise there is no difference between these two
classes.
[Sidenote: Ministers Resident.]
§ 367. The third class, the Ministers Resident, enjoy fewer honours and
rank below the Ministers Plenipotentiary. But beyond the fact that
Ministers Resident do not enjoy the title "Excellency," there is no
difference between them and the Ministers Plenipotentiary.
[Sidenote: Chargés d'Affaires.]
§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one
point from the first, second, and third class--namely, in so far as its
members are accredited from Foreign Office to Foreign Office, whereas
the members of the other classes are accredited from head of State to
head of State. Chargés d'Affaires do not enjoy, therefore, so many
honours as other diplomatic envoys. And it must be specially mentioned
that a distinction ought to be made between a Chargé d'Affaires who is
the head of a Legation, and who, therefore, is accredited from Foreign
Office to Foreign Office, and a Chargé d'Affaires _ad interim_. The
latter is a member of a Legation whom the head of the Legation delegates
for the purpose of taking his place during absence on leave. Such Chargé
d'Affaires _ad interim_, who had better be called a Chargé des
Affaires,[722] ranks below the ordinary Chargé d'Affaires; he is not
accredited from Foreign Office to Foreign Office, but is simply a
delegate of the absent head of the Legation.
[Footnote 722: See Rivier, II. pp. 451-452.]
[Sidenote: The Diplomatic Corps.]
§ 369. All the Diplomatic Envoys accredited to the same State form,
according to a diplomatic usage, a body which is styled the "Diplomatic
Corps." The head of this body, the so-called "Doyen," is the Papal
Nuncio, or, in case there is no Nuncio accredited, the oldest
Ambassador, or, failing Ambassadors, the oldest Minister
Plenipotentiary, and so on. As the Diplomatic Corps is not a body
legally constituted, it performs no legal functions, but it is
nevertheless of great importance, as it watches over the privileges and
honours due to diplomatic envoys.
IV
APPOINTMENT OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 76-77--Phillimore, II. §§ 227-231--Twiss, I. §§
212-214--Ullmann, § 48--Calvo, III. §§ 1343-1345--Bonfils, Nos.
677-680--Wheaton, §§ 217-220--Moore, IV. §§ 632-635.
[Sidenote: Person and Qualification of the Envoy.]
§ 370. International Law has no rules as regards the qualification of
the individuals whom a State can appoint as diplomatic envoys, States
being naturally competent to act according to discretion, although of
course there are many qualifications a diplomatic envoy must possess to
fill his office successfully. The Municipal Laws of many States
comprise, therefore, many details as regards the knowledge and training
which a candidate for a permanent diplomatic post must possess, whereas,
regarding envoys ceremonial even the Municipal Laws have no provisions
at all. The question is sometimes discussed whether females[723] might
be appointed envoys. History relates a few cases of female diplomatists.
Thus, for example, Louis XIV. of France accredited in 1646 Madame de
Guébriant ambassador to the Court of Poland. During the last two
centuries, however, no such case has to my knowledge occurred, although
I doubt not that International Law does not prevent a State from sending
a female as diplomatic envoy. But under the present circumstances many
States would refuse to receive her.
[Footnote 723: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§
127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici
dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico"
(1909).]
[Sidenote: Letter of Credence, Full Powers, Passports.]
§ 371. The appointment of an individual as a diplomatic envoy is
announced to the State to which he is accredited in certain official
papers to be handed in by the envoy to the receiving State. _Letter of
Credence_ (_lettre de créance_) is the designation of the document in
which the head of the State accredits a permanent ambassador or minister
to a foreign State. Every such envoy receives a sealed Letter of
Credence and an open copy. As soon as the envoy arrives at his
destination, he sends the copy to the Foreign Office in order to make
his arrival officially known. The sealed original, however, is handed in
personally by the envoy to the head of the State to whom he is
accredited. Chargés d'Affaires receive a Letter of Credence too, but as
they are accredited from Foreign Office to Foreign Office, their Letter
of Credence is signed, not by the head of their home State, but by its
Foreign Office. Now a permanent diplomatic envoy needs no other
empowering document in case he is not entrusted with any task outside
the limits of the ordinary business of a permanent legation. But in case
he is entrusted with any such task, as, for instance, if any special
treaty or convention is to be negotiated, he requires a special
empowering document--namely, the so-called _Full Powers_ (_Pleins
Pouvoirs_). They are given in Letters Patent signed by the head of the
State, and they are either limited or unlimited Full Powers, according
to the requirements of the case. Such diplomatic envoys as are sent,
not to represent their home State permanently, but on an extraordinary
mission such as representation at a Congress, negotiation of a special
treaty, and other transactions, receive full Powers only, and no Letter
of Credence. Every permanent or other diplomatic envoy is also furnished
with so-called _Instructions_ for the guidance of his conduct as regards
the objects of his mission. But such Instructions are a matter between
the Envoy and his home State exclusively, and they have therefore,
although they may otherwise be very important, no importance for
International Law. Every permanent diplomatic envoy receives, lastly,
_Passports_ for himself and his suite specially made out by the Foreign
Office. These Passports the envoy after his arrival deposits at the
Foreign Office of the State to which he is accredited, where they remain
until he himself asks for them because he desires to leave his post, or
until they are returned to him on his dismissal.
[Sidenote: Combined Legations.]
§ 372. As a rule, a State appoints different individuals as permanent
diplomatic envoys to different States, but sometimes a State appoints
the same individual as permanent diplomatic envoy to several States. As
a rule, further, a diplomatic envoy represents one State only. But
occasionally several States appoint the same individual as their envoy,
so that one envoy represents several States.
[Sidenote: Appointment of several Envoys.]
§ 373. In former times States used frequently[724] to appoint more than
one permanent diplomatic envoy as their representative in a foreign
State. Although this would hardly occur nowadays, there is no rule
against such a possibility. And even now it happens frequently that
States appoint several envoys for the purpose of representing them at
Congresses and Conferences. In such cases one of the several envoys is
appointed senior, to whom the others are subordinate.
[Footnote 724: See Mirus, op. cit. I. §§ 117-119.]
V
RECEPTION OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 65-67--Hall, § 98--Phillimore, II. §§
133-139--Twiss, I. §§ 202-203--Taylor, §§ 285-290--Moore, IV. §§
635, 637-638--Martens, II. § 8--Calvo, III. §§
1353-1356--Pradier-Fodéré, III. §§ 1253-1260--Fiore, II. Nos.
1118-1120--Rivier, I. pp. 455-457.
[Sidenote: Duty to receive Diplomatic Envoys.]
§ 374. Every member of the Family of Nations that possesses the passive
right of legation is under ordinary circumstances bound to receive
diplomatic envoys accredited to itself from other States for the purpose
of negotiation. But the duty extends neither to the reception of
permanent envoys nor to the reception of temporary envoys under all
circumstances.
(1) As regards permanent envoys, it is a generally recognised fact that
a State is as little bound to receive them as it is to send them.
Practically, however, every full-Sovereign State which desires its voice
to be heard among the States receives and sends permanent envoys, as
without such it would, under present circumstances, be impossible for a
State to have any influence whatever in international affairs. It is for
this reason that Switzerland, which in former times abstained entirely
from sending permanent envoys, has abandoned her former practice and
nowadays sends and receives several. The insignificant Principality of
Lichtenstein is, as far as I know, the only full-Sovereign State which
neither sends nor receives one single permanent legation.
But a State may receive a permanent legation from one State and refuse
to do so from another. Thus the Protestant States never _received_ a
permanent legation from the Popes, even when the latter were heads of a
State, and they still observe this rule, although one or another of
them, such as Prussia for example, keeps a permanent legation at the
Vatican.
(2) As regards temporary envoys, it is likewise a generally recognised
fact among those writers who assert the duty of a State to receive
under ordinary circumstances temporary envoys that there are exceptions
to that rule. Thus, for example, a State which knows beforehand the
object of a mission and does not wish to negotiate thereon can refuse to
receive the mission. Thus, further, a belligerent can refuse[725] to
receive a legation from the other belligerent, as war involves the
rupture of all peaceable relations.
[Footnote 725: But this is not generally recognised. See Vattel, IV. §
67; Phillimore, II. § 138; and Pradier-Fodéré, III. No. 1255.]
[Sidenote: Refusal to receive a certain Individual.]
§ 375. But the refusal to receive an envoy must not be confounded with
the refusal to receive a certain individual as envoy. A State may be
ready to receive a permanent or temporary envoy, but may object to the
individual selected for that purpose. International Law gives no right
to a State to insist upon the reception of an individual appointed by it
as diplomatic envoy. Every State can refuse to receive as envoy a person
objectionable to itself. And a State refusing an individual envoy is
neither compelled to specify what kind of objection it has, nor to
justify its objection. Thus, for example, most States refuse to receive
one of their own subjects as an envoy from a foreign State.[726] Thus,
again, the King of Hanover refused in 1847 to receive a minister
appointed by Prussia, because the individual was of the Roman Catholic
faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the
United States of America because he had in 1871 protested against the
annexation of the Papal States. And when the United States sent the
same gentleman as ambassador to Austria, the latter refused him
reception on the ground that his wife was said to be a Jewess. Although,
as is apparent from these examples, no State has a right to insist upon
the reception of a certain individual as envoy, in practice States are
often offended when reception is refused. Thus, in 1832 England did not
cancel for three years the appointment of Sir Stratford Canning as
ambassador to Russia, although the latter refused reception, and the
post was practically vacant. In 1885, when, as above mentioned, Austria
refused reception to Mr. Keiley as ambassador of the United States, the
latter did not appoint another, although Mr. Keiley resigned, and the
legation was for several years left to the care of a Chargé
d'Affaires.[727] To avoid such conflicts it is a good practice of many
States never to appoint an individual as envoy without having
ascertained beforehand whether the individual would be _persona grata_.
And it is a customary rule of International Law that a State which does
not object to the appointment of a certain individual, when its opinion
has been asked beforehand, is bound to receive such individual.[728]
[Footnote 726: In case a State receives one of its own subjects as
diplomatic envoy of a foreign State, it has to grant him all the
privileges of such envoys, including exterritoriality. Thus in the case
of Macartney _v._ Garbutt and others (1890, L.R. 24 Q.B. 368) it was
decided that a British subject accredited to Great Britain by the
Chinese Government as a Secretary of its embassy and received by Great
Britain in that capacity without an express condition that he should
remain subject to British jurisdiction, was exempt from British
jurisdiction. See, however, article 15 of the Règlement sur les
Immunités Diplomatiques, adopted in 1895 by the Institute of
International Law (see Annuaire, XIV. p. 244), which denies to such an
individual exemption from jurisdiction. See also Phillimore, II. § 135,
and Twiss, I. § 203.]
[Footnote 727: See Moore, IV. § 638, p. 480.]
[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 class to which the envoy belongs.
If he be one of the first, second, or third class, 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 Chargé 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 passports 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-Fodéré, 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 ambassador 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 Municipal 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 passports 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 passports 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 passports 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 Municipal 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 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.
[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'être_. 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 Institute 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-Fodéré,
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).
[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 Embassy 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 passed
in 1708 in consequence of the Russian Ambassador 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 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 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 Municipal 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 Exterritorialität" (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 Ambassador Mendoza in England plotted to
depose Queen Elizabeth; he was ordered to leave the country. In 1586 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.[739]
[Footnote 739: These and other cases are discussed by Phillimore, II. §§
160-165.]
[Sidenote: Limitation of Inviolability.]
§ 388. As diplomatic envoys are sacrosanct, the principle 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 in case he conspires against the receiving State and
the conspiracy can be made 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
Prince Cellamare in France was placed in custody because he organised a
conspiracy against the French Government.[740] And it must be emphasised
that a diplomatic envoy cannot make it a point of complaint if injured
in consequence of his own unjustifiable behaviour, as for instance in
attacking an individual who in self-defence retaliates, or in
unreasonably or wilfully placing himself in dangerous or awkward
positions, such as in a disorderly crowd.[741]
[Footnote 740: Details regarding these cases are given by Phillimore,
II. §§ 166 and 170.]
[Footnote 741: See article 6 of the rules regarding diplomatic
immunities adopted by the Institute of International Law at its meeting
at Cambridge in 1895 (Annuaire, XIV. p. 240).]
IX
EXTERRITORIALITY OF DIPLOMATIC ENVOYS
Vattel, IV. §§ 80-119--Hall, §§ 50, 52, 53--Westlake, I. pp.
263-273--Phillimore, II. §§ 176-210--Taylor, §§ 299-315--Twiss, I.
§§ 217-221--Moore, II. §§ 291-304 and IV. §§ 660-669--Ullmann, §
50--Geffcken in Holtzendorff, III. pp. 654-659--Nys, II. pp.
353-385--Rivier, I. 38--Bonfils, Nos. 700-721--Pradier-Fodéré,
III. §§ 1396-1495--Mérignhac, II. pp. 249-293--Fiore, II. Nos.
1145-1163--Calvo, III. §§ 1499-1531--Martens, II. §§
12-14--Gottschalck, "Die Exterritorialität der Gesandten"
(1878)--Heyking, "L'exterritorialité" (1889)--Odier, "Des
privilèges et immunités des agents diplomatiques"
(1890)--Vercamer, "Des franchises diplomatiques et spécialement 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 Functionäre" (1904).
[Sidenote: Reason and Fictional Character of Exterritoriality.]
§ 389. The exterritoriality which must be granted to diplomatic envoys
by the Municipal Laws of all the members of the Family of Nations is
not, as in the case of sovereign heads of States, based on the principle
_par in parem non habet imperium_, but on the necessity 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 fiction 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 points be treated as though they were not within
the territory of the receiving States.[742] And the so-called
exterritoriality of envoys is actualised by a body of privileges which
must be severally discussed.
[Footnote 742: 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.]
[Sidenote: Immunity of Domicile.]
§ 390. The first of these privileges is immunity of 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 point 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 a _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.[743] But
already 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.[744] 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 called back her
ambassador, as Sweden refused to make the required reparation.[745] 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.[746]
[Footnote 743: 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
legat." c. 21.]
[Footnote 744: See Martens, "Causes Célèbres," I. p. 178.]
[Footnote 745: See Martens, "Causes Célèbres," II. p. 52.]
[Footnote 746: The South American States, Chili excepted, still grant
the right to foreign envoys to afford asylum to political refugees in
time of revolution. It is, however, acknowledged that this right is not
based upon a rule of International Law, but merely upon _local_ usage.
See Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in
A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508;
Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That
actually in times of revolution and of persecution of 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.]
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. 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
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. This was a political
refugee from China living in London. He 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 contending 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.
As a 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 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.
[Sidenote: Exemption from Criminal and Civil Jurisdiction.]
§ 391. The second privilege of envoys in reference to their
exterritoriality is their exemption from criminal and civil
jurisdiction. As their exemption from criminal jurisdiction is also a
consequence of their inviolability, it has already been discussed,[747]
and we have here to deal with their exemption from civil jurisdiction
only. 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 the same account. Thus, when
in 1772 the French Government refused the 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.[748] 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 have civil jurisdiction in such cases over him.
And the same is valid as regards real property held within the
boundaries of the receiving State by an envoy, not in his official
character, but as a private individual, and as regards mercantile[749]
ventures in which he might engage on the territory of the receiving
State.
[Footnote 747: See above, §§ 387-388.]
[Footnote 748: See Martens, "Causes Célèbres," II. p. 282.]
[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of
diplomatic envoys from English jurisdiction is based, does not exclude
such envoy as embarks on mercantile ventures from the benefit of the
Act, and the practice of the English Courts grants, therefore, to
foreign envoys even in such cases exemption from local jurisdiction; see
the case (1859) of Magdalena Steam Navigation Co. _v._ Martin, 2 Ellis
and Ellis 94, overruling the case of Taylor _v._ Best, 14 C.B. 487. See
also Westlake, I. p. 267.]
[Sidenote: Exemption from Subpoena as witness.]
§ 392. The third privilege of envoys in reference to their
exterritoriality is exemption from subpoena as witnesses. No envoy
can be obliged, or even required, to appear as a witness in a civil or
criminal or administrative Court, nor is an envoy obliged to give
evidence before a Commissioner sent to his house. If, however, an envoy
chooses for himself to appear as a witness or to give evidence of any
kind, the Courts can make use of such evidence. A remarkable case of
this kind is that of the Dutch envoy Dubois in Washington, which
happened in 1856. A case of homicide occurred in the presence of M.
Dubois, and, as his evidence was absolutely necessary for the trial, the
Foreign Secretary of the United States asked Dubois to appear before the
Court as a witness, recognising the fact that Dubois had no duty to do
so. When Dubois, on the advice of all the other diplomatic envoys in
Washington, refused to comply with this desire, the United States
brought the matter before the Dutch Government. The latter, however,
approved of Dubois' refusal, but authorised him to give evidence under
oath before the American Foreign Secretary. As, however, such evidence
would have had no value at all according to the local law, Dubois'
evidence was not taken, and the Government of the United States asked
the Dutch Government to recall him.[750]
[Footnote 750: See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. §
1520.]
[Sidenote: Exemption from Police.]
§ 393. The fourth privilege of envoys in reference to their
exterritoriality is exemption from the police of the receiving States.
Orders and regulations of the police do in no way bind them. On the
other hand, this exemption from police does not contain the privilege of
an envoy to do what he likes as regards matters which are regulated by
the police. Although such regulations can in no way bind him, an envoy
enjoys the privilege of exemption from police under the presupposition
that he acts and behaves in such a manner as harmonises with the
internal order of the receiving State. He is, therefore, expected to
comply voluntarily with all such commands and injunctions of the local
police as, on the one hand, do not restrict him in the effective
exercise of his duties, and, on the other hand, are of importance for
the general order and safety of the community. Of course, he cannot be
punished if he acts otherwise, but the receiving Government may request
his recall or even be justified in other measures of such a kind as do
not injure his inviolability. Thus, for instance, if in time of plague
an envoy were not voluntarily to comply with important sanitary
arrangements of the local police, and if there were great danger in
delay, a case of necessity would be created and the receiving Government
would be justified in the exercise of reasonable pressure upon the
envoy.
[Sidenote: Exemption from Taxes and the like.]
§ 394. The fifth privilege of envoys in reference to their
exterritoriality is exemption from taxes and the like. As an envoy,
through his exterritoriality, is considered not to be subjected to the
territorial supremacy of the receiving State, he must be exempt from all
direct personal taxation and therefore need not pay either income-tax or
other direct taxes. As regards rates, it is necessary to draw a
distinction. Payment of rates imposed for local objects from which an
envoy himself derives benefit, such as sewerage, lighting, water,
night-watch, and the like, can be required of the envoy, although this
is often[751] not done. Other rates, however, such as poor-rates and the
like, he cannot be requested to pay. As regards customs duties,
International Law does not claim the exemption of envoys therefrom.
Practically and by courtesy, however, the Municipal Laws of many States
allow diplomatic envoys within certain limits the entry free of duty of
goods intended for their own private use. If the house of an envoy is
the property of his home State or his own property, the house need not
be exempt from property tax, although it is often so by the courtesy of
the receiving State. Such property tax is not a personal and direct, but
an indirect tax.
[Footnote 751: As, for instance, in England where the payment of local
rates cannot be enforced by suit or distress against a member of a
legation; see Parkinson _v._ Potter, 16 Q.B. 152, and Macartney _v._
Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.]
[Sidenote: Right of Chapel.]
§ 395. A sixth privilege of envoys in reference to their
exterritoriality is the so-called Right of Chapel (_Droit de chapelle_
or _Droit du culte_). This is the privilege of having a private chapel
for the practice of his own religion, which must be granted to an envoy
by the Municipal Law of the receiving State. A privilege of great worth
in former times, when freedom of religious worship was unknown in most
States, it has at present an historical value only. But it has not
disappeared, and might become again of actual importance in case a State
should in the future give way to reactionary intolerance. It must,
however, be emphasised that the right of chapel must only comprise the
privilege of religious worship in a private chapel inside the official
residence of the envoy. No right of having and tolling bells need be
granted. The privilege includes the office of a chaplain, who must be
allowed to perform every religious ceremony within the chapel, such as
baptism and the like. It further includes permission to all the
compatriots of the envoy, even if they do not belong to his retinue, to
take part in the service. But the receiving State need not allow its own
subjects to take part therein.
[Sidenote: Self-jurisdiction.]
§ 396. The seventh and last privilege of envoys in reference to their
exterritoriality is self-jurisdiction within certain limits. As the
members of his retinue are considered exterritorial, the receiving State
has no jurisdiction over them, and the home State may therefore delegate
such civil and criminal jurisdiction to the envoy. But no receiving
State is required to grant self-jurisdiction to an ambassador beyond a
certain reasonable limit. Thus, an envoy must have jurisdiction over his
retinue in matters of discipline, he must be able to order the arrest of
a member of his retinue who has committed a crime and is to be sent home
for his trial, and the like. But no civilised State would nowadays allow
an envoy himself to try a member of his retinue. This was done in former
centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on
a special mission to England, called together a French jury in London
and had a member of his retinue condemned to death for murder. The
convicted man was handed over for execution to the English authorities,
but James I. reprieved him.[752]
[Footnote 752: See Martens, "Causes Célèbres," I. p. 391. See also the
two cases reported by Calvo, III. § 1545.]
X
POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES
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-Fodéré, 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 institution 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 passage (_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
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 with the United States in
the matter, that there was no objection to Soulé'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 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.
[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, ambassador of the
United States in Paris during the siege of that town in 1870 by the
Germans. This ambassador 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 Célèbres," 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-Fodéré,
III. §§ 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. §§
1348-1350--Martens, II. § 16--Roederer, "De l'application des
immunités de l'ambassadeur au personnel de l'ambassade" (1904),
pp. 22-84.
[Sidenote: Different Classes 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 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,
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 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 class 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 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
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 Massachusetts, 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 assault outside the embassy, he was
arrested in the stable of the embassy 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 Sà, the brother of the Portuguese
Ambassador 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 passage 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
passports 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-Fodéré, 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 class; the delivery of passports to him by the
receiving State; request of the envoy for his passports on account of
ill-treatment; war between the sending and the receiving State;
constitutional 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 ambassador 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 circumstances, the envoy receives a Letter of Recall from the
head, or, in case he is only a Chargé 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
Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter
of Recall the envoy receives his passports and a so-called _Lettre de
récréance_, 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 circumstances the sending State may order its envoy to ask
for his passports 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 Chargés d'Affaires.]
[Footnote 763: See the interesting cases discussed by Moore, IV. § 666.]
[Footnote 764: Notable cases of request of recall of envoys are reported
by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.]
[Sidenote: Promotion to a higher Class.]
§ 410. When an envoy remains at his post, but is promoted to a higher
class--for instance, when a Chargé d'Affaires is created a Minister
Resident or a Minister Plenipotentiary is created an Ambassador--his
original mission technically ends, and he receives therefore a new
Letter of Credence.
[Sidenote: Delivery of Passports.]
§ 411. A mission may terminate, further, through the delivery of his
passports to an envoy by the receiving State. The reason for such
dismissal of an envoy may be either gross misconduct on his part or a
quarrel between the sending and the receiving State which leads to a
rupture of diplomatic intercourse. Whenever such rupture takes place,
diplomatic relations between the two States come to an end and all
diplomatic privileges cease with the envoy's departing and crossing the
frontier. If the archives of the legations are not removed, they must be
put under seal by the departing envoy and confided to the
protection[765] of some other foreign legation.
[Footnote 765: As regards the case of Montagnini, see above, §§ 106 and
386.]
[Sidenote: Request for Passports.]
§ 412. Without being recalled, an envoy may on his own account ask for
his passports and depart in consequence of ill-treatment by the
receiving State. This may or may not lead to a rupture of diplomatic
intercourse.
[Sidenote: Outbreak of War.]
§ 413. When war breaks out between the sending and the receiving State
before their envoys accredited to each other are recalled, their mission
nevertheless comes to an end. They receive their passports, but
nevertheless they must be granted their privileges[766] on their way
home.
[Footnote 766: See below, vol. II. § 98.]
[Sidenote: Constitutional Changes.]
§ 414. If the head of the sending or receiving State is a Sovereign, his
death or abdication terminates the missions sent and received by him,
and all envoys remaining at their posts must receive new Letters of
Credence. But if they receive new Letters of Credence, no change in
seniority is considered to have taken place from the order in force
before the change. And during the time between the termination of the
missions and the arrival of new Letters of Credence they enjoy
nevertheless all the privileges of diplomatic envoys.
As regards the influence of constitutional changes in the headship of
republics on the missions sent or received, no certain rule exists.[767]
Everything depends, therefore, upon the merits of the special case.
[Footnote 767: Writers on International Law differ concerning this
point. See, for instance, Ullmann, § 53, in contradistinction to Rivier,
I. p. 517.]
[Sidenote: Revolutionary Changes of Government.]
§ 415. A revolutionary movement in the sending or receiving State which
creates a new government, changing, for example, a republic into a
monarchy or a monarchy into a republic, or deposing a Sovereign and
enthroning another, terminates the missions. All envoys remaining at
their posts must receive new Letters of Credence, but no change in
seniority takes place if they receive them. It happens that in cases of
revolutionary changes of government foreign States for some time neither
send new Letters of Credence to their envoys nor recall them, watching
the course of events in the meantime and waiting for more proof of a
real settlement. In such cases the envoys are, according to an
international usage, granted all privileges of diplomatic envoys,
although in strict law they have ceased to be such. In cases of recall
subsequent to revolutionary changes, the protection of subjects of the
recalling States remains in the hands of their consuls, since the
consular office[768] does not come to an end through constitutional or
revolutionary changes in the headship of a State.
[Footnote 768: See below, § 438.]
[Sidenote: Extinction of sending or receiving State.]
§ 416. If the sending or receiving State of a mission is extinguished by
voluntary merger into another State or through annexation in consequence
of conquest, the mission terminates _ipso facto_. In case of annexation
of the receiving State, there can be no doubt that, although the
annexing State will not consider the envoys received by the annexed
State as accredited to itself, it must grant those envoys the right to
leave the territory of the annexed State unmolested and to take their
archives away with them. In case of annexation of the sending State, the
question arises what becomes of the archives and legational property of
the missions of the annexed State accredited to foreign States. This
question is one on the so-called succession[769] of States. The annexing
State acquires, _ipso facto_, by the annexation the property in those
archives and other legational goods, such as the hotels, furniture, and
the like. But as long as the annexation is not notified and recognised,
the receiving States have no duty to interfere.
[Footnote 769: See above, § 82.]
[Sidenote: Death of Envoy.]
§ 417. A mission ends, lastly, by the death of the envoy. As soon as an
envoy is dead, his effects, and especially his papers, must be sealed.
This is done by a member of the dead envoy's legation, or, if there be
no such members, by a member of another legation accredited to the same
State. The local Government must not interfere, unless at the special
request by the home State of the deceased envoy.
Although the mission and therefore the privileges of the envoy come to
an end by his death, the members of his family who resided under his
roof and the members of his suite enjoy their privileges until they
leave the country. But a certain time may be fixed for them to depart,
and on its expiration they lose their privilege of exterritoriality. It
must be specially mentioned that the Courts of the receiving State have
no jurisdiction whatever over the goods and effects of the deceased
envoy, and that no death duties can be demanded.