Chapter II: Diplomatic Envoys (1)

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.]