Jurisdictional Immunities

646 JURISDICTIONAL IMMUNITIES William C. McAuliffe, Jr. The principle of exterritoriality sets question, namely how far this immun up exemption from the operation of ity extends.2 the laws of a state or the jurisdiction of its courts on the basis of a fiction In the same vein, Briggs notes: that certain locally situated foreign per The theory of exterritoriality of am ~ons and facilities should be deemed bassadors is based upon the fiction to 1)(' "outside" 1111' slale. Thus. the that an ambassador, residing in the principle is aelually a rational!' for State to which he is accredited, should a Sl't of immunities accorded f on·ign be treated for purposes of jurisdiction hrads of state temporarily prrsent, to as if he were not present. Ogdon traces this theory to the imperfect their retinues, diplomatic agents and development in the feudal period of members of their households, to con the concept of territorial, as opposed suls, and to foreign men-of-war and to personal, jurisdiction and the inor other public vessels in port.! dinate development of diplomatic priv ileges in the sixteenth century to The principle has been keenly crit cover the ambassador, his family, his icized. Brierly says: suite, his chancellery, his dwelling and, at times, even the quarter of the TIll' h'rnl "1'xlt'ITilllriniily" is 1:11111' foreign city in which he lived, all of mllniy used to descriiJe thc st~tus of a which were presumed in legal theory person or thing physically prcsent on a to be outside the jurisdiction of the statc's territory, iJut wholly or partly receiving State .• , , Modern theory withdrawn from the state's jilrisdiction overwhelmingly rejects the theory of by a rule of international law, but for exterritoriality as an explanation of many reasons it is an objectionablc the basis of diplomatic immunitic<. term. It introduces a fiction, for the Thus, Profe~sor Diena in his Report person or thing is in fact within, and to the League 0/ Nations Committee not outside, the territory; it implies of Experts for the Progressive Codifi that jurisdiction and territory always cation of International Law, 1926 •. , coincide, whereas they do so only gen 20 AJ.I.L. (1926), Spec. Supp., 153, erally; and it is misleading because observes: "It is perfectly clear that we are tempted to forget that it is ex-territoriality is a fiction which has only a metaphor and to deduce untrue no foundation either in law. or in fact, legal consequences from it as though and no effort of legal construction will it were a literal truth. At most it ever succeed in proving that the per means nothing more than that a pcr son and the legation buildings of a son or thing has some immunity from diplomatic ap:ent situated in the capi the local jurisdiction; it does not help tal of State X are 011 territory which us to determine the only important is foreign frolll the point of vil'w IIf 647 the State in quC'stion. There arc l'ouut! cogllito ..• l'lIjoys the SlIIlIe privil,'ges practical as WllU as theoretical reasons as if travelling 1I0t illcogllito. Tlw for abandoning the term ex-territorial only difference is that many cere· ity•••• "3 monial observances . are not ren dered to him when travelling incog· Judge Moore said this: nito • • . • All privileges mentioned must be granted to a monarch only as The exemption of diplomatic officers long as he is reaUy the Head of a from the local jurisdiction is often State.5 described as "extraterritoriality." The word, however, is in relation pecu As to the retinue of a monarch, the liarly metaphorical and misleading. It is admitted that if the government of same treatise states: the country which the minister rep· The position of individuals who ae· resents waives his immunity he may company a monarch during his stay be tried and prosecuted, criminaUy or abroad is a matter of some dispute. civilly, in the local tribunals. His im· Several maintain that the home State munity is therefore in reality merely ('an claim the privilej!;e of C'xtC'rritorial an exemption from process so long as ity for members of his suite as wC'lI 4 he retains the diplomatic eharacter. as for the sovcrci(:n himseJ£; hut otl\('rs dl'ny this. The ollinion of the The principle of exterritoriality, of former is probahly correct, since it course, has application to a head of is difficult to see why a sovereign state when he travels outside his own abroad should, as regards the mem bers of his suite, be in an inferior territory. Lauterpacht's Oppenheim position to a diplomatic cnvoy.G discusses this situation, first, in terms of monarchs. From this consideration of mon However, as regards the consideration archs, the treatise proceeds to a con· due to a monarch, when abroad, from sideration of the position of presidents the State on whose territory he is stay· of republics. ing, in time of peace, and with the knowledge and the consent of the In contradistinction to monarchies, in Government, the foUowing may be republics the people itself, and not a noted: • • . He must be granted so· single individual, appears as the rep· caUed exterritoriality conformably with resentative of the sovereignty of the the principle par in parem non habet State, and, accordingly, the people imperium, according to which one sov· styles itself the sovcreij!;n of the Stalt' ereign cannot have any power over •... [AJ prC'sid,'nt, as ill Francl', nnt! anotlll'r sovl'reign. He must, there· the United States ..• represents the forl', in every point Ill' exclllpt from State, at any rate in the totality of its taxation, rating, and every fiscal regu international relations. He is, how lation, and likewise from civil juris· ever, not a sovereign, hut a citizen diction, except when he himsl·J£ is the and a subject of the very State of plaintiff. The house in which he has which, as president, he is Head.... taken up residence must enjoy the As to the position of a president when same exterritoriality as the official abroad, writers on the Law of Nations residence of an amhassmlllr; nil .•• do not agrl'e. Some maintain that, official must he allowed to enter it since a president is not a sovl'rcij!;n. without his permission • • .. If a for· his home State can never claim for eign sovereign has immovable prop· him the same privill'grs as for a mono erty in a country, such property is arch, and l'gprl'ially thnt of ,'xtrrri· under the jurisdiction of that country. toriality. Othl'rs distiuguish lll'twc,'n But as soon as the sovereign takes up a president staying abroad in his offi· his residence on the property, it be· cial capacity as Head of a State ~nd comes exterritorial for the time being. one who is ahroad for his privute The wife of a sovereign must likewise purposes, and tht'y maintain that his be granted exterritoriality, but not home State can only in the first' ca~r other members of a sovereign's fam· claim extC'rritoriality for him. Others i1y • • •• [AJ monarch traveling ill' al:uin will not admit any diffC'renl'e in 648 Ihe posilion of n prrsidl'nt ahroad granted to foreign representatives and, from Ilml of 1\ mnnnn'h nhrnlltl .... on the other hand, of emphasizing the As n'l!nnl~ l'xll'lTilorinlily, 1IIl'n' ~I'I'm~ sovereignty and equality of the several 10 hI' no ~notl n'a~nn fnr dislin/!uish. states. It was, however, open to the ing I)('twccn thc posilion o( a mon· disadvantage not only of hrin~ a arch and that of presidents or other fiction but of permitting inferences Heads of States.7 more comprehensive than the position of the ambassador called for. In con Thr sllhslanlh'r ('on lent of Ihis rip:hl sequence, it has been less refcrred to of recent years; and the immunities of extrrritoriality will be discussed granted to public ministers are now next, with reference to diplomatic rep generally explained as a mere exemp rrsentativ('s. tion from thn local law, hased IIpon Tlw historieal ('voltttion of the prill' the necessity of securin/t In the min ister the fullest freedom in the per· ciple of exterritoriality as the rationale formanl'e of his offi .. ial dutil'~.R for a body of traditional diplomatic immunities is not without inten'st, al· Lauterpacht's Opprnhcim presclltf' though it has passed the heyday of its a good summary of the substantiv{' accrptability. content of diplomatic privileges bound up in the principle of exterritoriality. By lon~ custom, nntcdatin~ Jlcrhnp~ nil othl'r mIt's of int('mntional lllW, This summary is prefaced ,,,ith a de till' diplomatic u/!l'nts sent hy nne fcnse of the principle itself, as fol state to another ha\'e h('cn re~ardcd lows: as posgessing a pel'uliarly sacred char acter, in conSl'!Jm'nC(' of whil'h Ihey The exterritoriality which must be havc been accorded special privile~cs granted to diplomatic envoys by the and immunities. Thl' ancient Grl'cks Municipal Laws of all the members rrgarded an attaek U)Jon the ))('r5nn of the international community is not, of an amha~sador as an orrl'nsl~ of Ilu, as in tlH' ra~c of 50\,l'rci~n Hrnds of /!rRV('st nntun'. Th,' wril('rs nf Illll'ir'nl Stalt'~, hn$".1 ,'11 til(' pri lll'i pit, par ill Hunlt' \\'('1'('" l1unnillHHIS in "Ul1si,h'rinp;, pllrt'1Il /1(171 h'lbl'l i1llJlf'Tilll7l, hut I'll un illjury to .'lI\'(IY,.

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