Diplomatic Immunity: Evolution and Recent Country Developments

The book examines diplomatic immunity and provides a historical analysis of the granting of diplomatic immunity to non-diplomats, based on the perspectives of several states. Featuring contributions in which experts from four continents and from academia and practice present their views and perspectives; it is an insightful resource for diplomats, academics and legal professionals, while at the same time it is useful and understandable for students, junior staff and anyone just starting their venture into the diplomatic immunity issues and general international law.

• Language: English
• Publisher: Palgrave Macmillan
• Release date: Mar 31, 2020
• ISBN: 9789811510946

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© The Author(s) 2020

M. Novaković (ed.)Diplomatic Immunityhttps://doi.org/10.1007/978-981-15-1094-6_1

1. Diplomatic Immunity: An Admittedly Short Survey

Linda S. Frey¹   and Marsha L. Frey²  

(1)

University of Montana, Missoula, MT, USA

(2)

Kansas State University, Manhattan, KS, USA

Linda S. Frey (Corresponding author)

Email: [e-mail]

Marsha L. Frey

Email: [e-mail]

From earliest times to the present, many civilizations across the globe have accorded envoys basic protection. Necessity forced most cultures to accord envoys inviolability because only then were relations between different peoples possible. Religion further buttressed immunity, custom sanctified it and reciprocity fortified it. Although all civilizations have recognized the importance of protecting envoys from harm, the degree of protection accorded varied with each culture. The position of the envoy remained tenuous in some civilizations, especially those that had become hegemonic and harbored universalistic pretensions and those who regarded the other as barbarian. The rules, customs and conventions surrounding diplomatic immunity have been historically shaped and continue to evolve. The fundamental foundations of immunity have shifted over time from religious to legal; expediency became precedent. What had once been a courtesy hardened into a right. By the twenty-first century national laws and international treaties codified basic privileges. Diplomatic immunity is essential for it undergirds the international system.

1.1 Preliterate Societies

In preliterate societies the concept of according envoys inviolability may stem in part from early man’s attitude toward strangers and in part from the traditional code of hospitality.

The Celts, the Gauls, the Teutons, as well as the ancient Greeks and Romans considered it impious to injure a guest. Although strangers were welcomed they were often feared for they could bring magical and potentially harmful powers. Strangers thus had to be disarmed or ritually purified. The Zulus sprinkled strangers with a green sticky substance, the Javans anointed them with water and oil and the Tartars forced them to pass between two fires as did the Seljuk Turks.

The sacred status of messengers, heralds and envoys seems in part ascribable to their allegedly supernatural powers. The custom of regarding envoys as holy may also originate from the practice of employing priests and the vital role they played in bringing peace. Those who killed or even maltreated an envoy faced the death penalty. In these societies individuals carried (e.g. a coconut, a staff) or wore (e.g. a red net, a nose peg) as a sign of their office. When the sending tribe feared that an envoy might not be protected they resorted to sending women who often were perceived as less threatening or perhaps more beguiling.¹

1.2 The Ancient World

Although divine sanctions often reinforced human deterrents, the protections accorded early envoys varied greatly. In Ancient Greece heralds (kerykes), not envoys, possessed inviolability for the Greeks regarded heralds as descendants of Hermes, the messenger of the gods. Heralds, who carried a staff or caduceus as an insignia of office enjoyed a powerful and protected position and passed their duties and privileges on to their descendants. The very presence of a herald often signified that war had been declared. Public opinion and customary law also guaranteed the sanctity of heralds who also carried formal announcements or requests. Heralds also secured safe conducts for envoys, usually senior men of some prominence. Because it was not customary to extend basic protections to envoys, truces and treaties often stipulated such. Nonetheless, on occasion, envoys were delayed, mistreated or even killed. In 409–408 B.C. Pharnabazus, a Persian satrap, promised to escort five Athenian envoys to the Persian ruler. Instead he detained them for three years, ultimately sending them home.²

Throughout the Near and Far East envoys were also respected. In Babylonia although envoys were inviolable, they were also accountable; they did not enjoy immunity for crimes committed during their missions. In Ancient India, envoys could not be killed but they could be punished: detained, branded and maimed. Sanskrit classics such as the Mahābhārata reminded the readers that the king who slays an envoy will sink into hell with all his ministers.³ In Ancient China with its hegemonic pretensions, envoys were regarded more as messengers but generally remained inviolate because of imperial benevolence and a deep rooted pragmatism.⁴ Throughout the ancient world third parties typically did not respect the inviolability of envoys. Barbarian envoys had fewer rights for they were by definition inferior. Generally diplomatic relations did not evolve but remained rudimentary and diplomatic relations ad hoc.

In Ancient Rome the practice of diplomacy was predicated on religion and reciprocity. The earliest envoys were fetial priests who not only handled negotiations but enforced accords and decided on questions of extradition and the proper treatment of envoys. The fetials served as both priests and jurist consults. Common fetial institutions coupled with the predominance of the Indo-European languages meant that a feeling of community did develop. As war transformed Rome and fetial law became more ritualistic, immunity was increasingly violated, especially on the barbarian fringes of the empire. The ties that bound were no longer religious but secular and Rome dispatched not fetial priests but senatorial legates. Civil law replaced divine injunction. To violate a diplomat’s immunity was to assault the civil state. The word immunity comes from Ancient Rome. Munera meant public services or charges that all were obliged to perform. The immunes included those exempt from such duties and those exempt from military service. Immunitas was accorded as a special privilege to certain individuals. As the early republic gave way to the empire and as earlier rationales and constraints disappeared Rome sometimes transgressed the rights of diplomats. Nonetheless, if other countries harmed or killed a Roman envoy war inevitably ensued. In 283 B.C. when the Senones gruesomely hacked Roman envoys into pieces, Rome quickly retaliated, killing the men and enslaving the women and children. Even an insult could trigger a war. In the third century B.C. when the Tarentines refused to grant the Romans an audience, mocked their clothing and general appearance and went so far as to urinate on the garments of one, the Romans threatened to wash their garments clean with their blood—as they did. While in practice, the Romans occasionally violated diplomatic immunity, especially toward those whom they regarded as barbarian, in theory ironically Roman legalists and philosophers strengthened it.⁵ Romans invariably treated envoys and their extensive entourages as guests of the senate and extended immunity to all. Technically inviolability was respected only by the government to which the envoy was sent but in reality it was often extended to any envoy whether accredited to them or not. Roman power helped to ensure that envoys sent to Rome were protected by third powers. Ambassadors thus were protected not only when resident but also in transit to and from their posts, a marked difference from Greek and later medieval practice. Rome established a secular rationale for diplomatic immunity that unlike the Greeks was not based on a common cultural tradition. Rome’s achievement lay in not only forging an empire through military might but also through law. Rome passed on the ideal of diplomatic immunity, one universally acknowledged in the ius gentium. Sanctioned by custom and reinforced by law, diplomatic immunity became part of the Roman legacy.

1.3 The Middle Ages

After the fall of Rome, Constantinople and later the Papacy, greatly influenced by Roman practice and theory regarding the privileges of envoys, served as models of diplomatic practice for other states. Immunity continued to mean that an envoy, his entourage and his goods could go and come in safety. In Europe, the Middle East and Asia, principals, that is those who sent another, continued to rely on custom, law, religion and the threat of reciprocal action to safeguard their emissaries. More pragmatically, principals sometimes had recourse to employing large escorts and to taking hostages to ensure their envoy’s safety. Sovereigns rarely negotiated directly with one another—an often hazardous undertaking, but rather relied on their envoys who enjoyed more security. Third parties were not expected to respect an envoy’s status unless he had procured a safe conduct from them. Even in times of peace third parties posed a threat. Envoys confronted the real possibility of being either refused passage or being seized. Any privileges such as the lifting of a ban of excommunication during the duration of the embassy were just that. In the Middle Ages, as in the ancient world, an envoy as well as his entourage were answerable for crimes committed during the embassy but not for those committed prior to it. As members of the Christian commonwealth envoys were answerable to both God and man. When diplomats committed a crime they were punished. As society evolved and became more literate principals tended to rely less on religious and customary safeguards and more on juristic ones to protect their envoys. Practice had changed—but only slowly. Both church and state underscored the existence of a common body of international law, the essential core of which remained the sacred status and accountability of envoys.⁶ The issue of accountability would only come to the forefront with the advent of permanent embassies during the Renaissance.

1.4 The Renaissance

The development of permanent embassies in the Renaissance ultimately entailed an expansion not only in the number of envoys but also of their often extensive entourages as well as an explosive growth in their immunities and the attendant theorists who addressed the ensuing issues. Unlike ad hoc envoys, permanent envoys proved to be strictly a western innovation. Their numbers continued to grow because the advantages of sending them eventually outweighed the disadvantages of receiving them. Permanent envoys provided a greater knowledge and understanding of the host country.⁷ The Renaissance did not mark a new era in diplomatic immunities but rather the threshold of one. At first the establishment of resident embassies had no effect on immunities as the number of ad hoc embassies continued to grow. Envoys continued to be regarded as inviolable but only by the receiving state and, as in the past, custom, law and religion protected them. Many initially viewed these new agents as no better than spies, echoing the words of the theorist Bernard du Rosier who urged rulers not to suffer strangers to remain long with you.⁸ But remain long they did and only increased in number. Because the permanent envoy differed functionally from his predecessor, new issues arose such as the inviolability of embassy grounds and the question of asylum and older issues such as precedence assumed new importance. The issue of precedence which antedated the establishment of permanent envoys also forced changes in immunities. The question of precedence reflected not only on the honor of the envoy but also that of his principal and directly impacted the question of privileges and immunity and bedeviled the system particularly in the Early Modern Era.

1.5 Early Modern Period

The Reformation, which fractured Christendom, posed a particular challenge to the practice of diplomatic immunity for envoys, especially those of a different faith, were increasingly viewed as the enemy within. Bitter differences over religion could deepen the mutual hostility between the envoy and the host government. In civil disputes practice meshed with Roman law theory which underscored the power of the state and held that the envoy was responsible for debts contracted during his embassy. In criminal cases theorists, such as Alberico Gentili and Jean Hotman, often held that a diplomat forfeited his privileges by his actions. Gentili contended that the envoy should be sent home to be punished. In contrast, Hotman argued that neither the envoy nor his entourage had the liberty to do evil⁹ and could be punished by the receiving government. In practice, however, expediency triumphed and envoys escaped punishment. Expediency became precedent and practice hardened into precedent. Governments increasingly adopted the fiction of extraterritoriality to justify the burgeoning ambassadorial exemptions from both civil and criminal law. Personal law, the law that an envoy took with him wherever he went, paved the way for the idea of extraterritoriality.¹⁰ It is not surprising that the idea of extraterritoriality appealed to theorists and practitioners alike in an age of bitter religious strife when the office of envoy was often fraught with danger. Pierre Ayrault, a renowned civil and canon lawyer, developed the theory in 1588. Based on the premise that the envoy was still legally, though not physically, present in his own lands, Ayrault contended that the envoy was not subject to the civil or criminal jurisdiction of the host country. Hugo Grotius, however, coined the term when he noted that ambassadors should be treated as quasi extra territorium (as if outside the territory). On the premise that the ambassador was still legally in his own land, the ambassador was not subject to the laws of the host country. The ambassador was also inviolable because he represented a sacrosanct sovereign and his business was vital. No matter the crime, the host country’s only recourse was to send the ambassador back to the sending state with the request that he be punished. In this period the chapel question probably aroused the most acrimony because it often involved questions of conspiracy, treason and heresy, or was thought to do so. Nor is it surprising that the chapel question often triggered debates over ambassadorial privileges as a whole. Inevitably the question of the embassy chaplain’s status raised the larger issue of the rights of the ambassadorial entourage.

Such controversies ignited an explosive growth of literature from theorists such as Jean Jacques Burlamaqui, Baruch Spinoza, Samuel von Pufendorf, Christian von Wolff and Emerich de Vattel to name but a few of the many who grappled with the question of diplomatic immunity and relied on the law of nature to justify their position. Vattel, the most popular theorist of the day in part because of the elegance and simplicity of his style and the pellucid organization of his book, based international law on the law of nature. Vattel brought both a moral vision as a student of theology and practical experience as a diplomat to his work. The law of nations constituted a system of right and justice which ought to prevail among states.¹¹ For him ambassadorial immunity was not an arbitrary construction. An ambassador was both sacred and inviolable and his immunities based on functional necessity for an ambassador should fear nothing from the sovereign to whom he is sent. He would have agreed with Sir Robert Wiseman, another natural law proponent, that the most perfectest law was the law that makes the least deflection from nature. For Wiseman, the force of example is weak and insufficient.¹² A positivist would not agree. The positivists of the seventeenth and eighteenth, such as Richard Zouche, Samuel Rachel, John Wolfgang Textor, Cornelius van Bynkershoek, Johann Jakob Moser and Georg Friedrich von Martens, in contrast, based international law on the implicit or explicit consent of states. The pendulum swung in their favor because they dispelled the earlier confusion between international morality and international law prevalent in the natural law school. The historical school did not resort to allegedly innate ideas of justice as had the natural law school but rather relied on the guidelines adopted by most states.