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,' although in many cases it is doubtful whether the envoy concerned really abused his office for the purpose of interfering with internal politics. Diplo. matic Envoys Inter national Law. VII POSITION OF DIPLOMATIC ENVOYS § 384. Diplomatic envoys are just as little subjects of International Law as heads of States are; objects of and the arguments regarding the position of such heads must also be applied to the position of diplomatic envoys, which is given to them by International Law not as individuals but as representative organs 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 are possessed by diplomatic envoys according to International Law 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 1 See Hall (§ 98**) and Taylor (§ 322), who both 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. 2 See above, § 344. object of International Law, and in this regard like any other individual. due to §385. Privileges due to diplomatic envoys, apart Privileges from ceremonial honours, have reference to their Diploinviolability and to their so-called exterritoriality matic Envoys. The reasons why these privileges must be granted are that diplomatic envoys are representatives of States and of their dignity, and, further, that they could not exercise their functions perfectly unless they enjoyed such 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.2 1 See above, § 121. The Institute of International Law, at its meeting at Cambridge in 1895, discussed the privi leges of diplomatic envoys, and Protec tion due matic Envoys. VIII INVIOLABILITY OF DIPLOMATIC ENVOYS Vattel, IV. §§ 80-107-Hall, $$ 50, 98°-Phillimore, II. §§ 154-175- § 386. Diplomatic envoys are just as sacrosanct as to Diplo. 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, 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 who2 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. 1 See Stephen's Digest, articles 96-97. tion from Jurisdic § 387. As regards the exemption of diplomatic Exempenvoys from criminal jurisdiction, the theory and Criminal practice of International Law agree nowadays upon tion. the fact that the receiving States have no right,) under any circumstances whatever, to prosecute and punish diplomatic envoys. But the question is not settled among writers on International Law 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.2 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. 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 1 In former times there was no unanimity among publicists. (See Phillimore, II. § 154.) The point is thoroughly dis cussed by Beling, "Die strafrecht- Limitation of Inviolability. plotted to depose Queen Elizabeth; he was ordered to leave the country. In 1587 the French Ambassador in England, L'Aubespine, conspired against the life of Queen Elizabeth; he was simply warned not to commit a similar act again. In 1654 the French Ambassador in England, De Bass, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.1 § 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. 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.3 1 These and other cases are discussed by Phillimore, II. §§ 160165. Details regarding these cases are given by Phillimore, II. §§ 166 |