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-Ullmann, § 40-Geffcken in Holtzendorff, III. pp. 654-659— Rivier, I. 38-Bonfils, Nos. 700-721-Pradier-Fodéré, III. §§ 1396– 1495 Fiore, II. Nos. 1145-1163-Calvo, III. §§ 1499-1531Martens, 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). tional of Exterri § 389. The exterritoriality which must be granted Reason to diplomatic envoys by the Municipal Laws of all and Ficthe members of the Family of Nations is not, as in Character the case of sovereign heads of States, based on the toriality. 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. And the so-called exterritoriality of envoys is actualised by a body of privileges which must be severally discussed. adopted by the Institute of International Law at its meeting at Cambridge in 1895 (Annuaire, XIV. p. 240). 1 With a few exceptions (see Droin, L'exterritorialité des agents 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, the envoys claiming the right to grant asylum within the boundaries of their residential quarters to every individual. who took refuge there.1 But already in the seventeenth century most States opposed this Franchise du quartier, which totally disappeared in the eighteenth century, leaving behind, however, the claim of the 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. Twenty-one years later, in 1747, occurred a similar case in Sweden. A merchant named Springer was accused of high treason and took refuge in the house of the English ambassador at Stockholm. the refusal of the English On Although this right of asylum was certainly recognised by the States in former centuries, it is of interest to state that Grotius did not consider it postulated by International Law, for he says of this right (II. c. 18, §8): "Ex con cessione pendet ejus apud quem agit. Istud enim juris gentium non est." See also Bynkershoek, De foro legat. c. 21. 2 See Martens, Causes Célèbres, I. p. 178. 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.1 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. Nowadays the official residences of envoys are in a sense and for some points 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 the officers of justice, police, 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 the 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 the envoys and the inviolability of their official documents and archives. If an envoy abuses this mmunity, 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 modition 1 1 See Martens, Causes Célèbres, II. p. 52. individuals not belonging to his suite. Of course, an criminals who envoy need not deny the entrance to 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 Embassy, made an attempt on and wounded a member of that embassy within its official residence. 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 1 But according to Hall (§ 52) the custom of granting asylum to political refugees in the houses of the envoys still exists in the Spanish-American Republics. See also Westlake, I. p. 272, and Moore, Asylum in Legations and Con. sulates, and in Vessels (1892). 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. tion from Jurisdic § 391. The second privilege of envoys in reference Exempto their exterritoriality is their exemption from Criminal criminal and civil jurisdiction. As their exemption and Civil from criminal jurisdiction is also a consequence of their tion. inviolability, it has already been discussed,1 and we have here to deal with their exemption from civil jurisdiction only. No civil action of any kind can be brought against them in the Civil Courts of the receiving States as regards debts and the like. 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.2 But the rule that an envoy is exempt from the civil jurisdiction has 1 See above, §§ 387-388. * See Martens, Causes Célèbres, II. p. 110. |