NOTES OF CASES
| Published date | 01 July 1941 |
| Date | 01 July 1941 |
| DOI | http://doi.org/10.1111/j.1468-2230.1941.tb00881.x |
MODERN LAW REVIEW
July,
1941
NOTES
OF
CASES
Diplomatic
Immunity
Since the Diplomatic Privileges Act,
1708,
English Courts have in
a
number of leading cases increasingly clarified this branch of international
law, and to elaborate the principles which can be regarded as clearly
established, is perhaps justified.
First,
the limitation of diplomatic immunity under Queen Anne’s
Statute to the ambassador “or the Domestick or Domestick Servant of
any such Ambassador, or other publick Minister” is not to be understood
in any exclusive sense: “The Statute of Ann. is only explanatory of the
law of nations; and the words ‘domestic’ and ‘domestic servant’ are
only put by way of example”
(Hopkins
v.
de Robeck,
3
T.R.
79,
at
p.
80;
Parkinson
v.
Potter,
16
Q.B.D.
152).
The Statute is merely confirmatory
of the common law and of international law, but does not “define
exhaustively the nature of diplomatic privilege”
(The Amazm,
A.C.
56
T.L.R.
266,
at p.
268).
Second,
the “great principle
is
to be found in Grotius, De Jure
Belli
ac Pacis, b.
2,
c.
18,
s.
9:
‘Omnis coactio abesse a legato debet’
”
(Thu
Magdalena Steam Navigation
Go.
v.
Martin,
28,
Q.B.D.
310,
at p.
314).
As
so
often in the case of rules of international law which can claim
general observance, the sociological explanation is to be found in the
relationship of reciprocity and mutuality which provides an inherent
guarantee of the observance of these principles (cf. Sir Cecil Hurst,
Diplomatic Immunities
:
Modern Developments,
B.Y.I.L.,
1929,
p.
3).
In
the earlier decisions, diplomatic immunity is based on the doctrine of an
objective and fictitious extraterritoriality. The diplomatic agent “is not
supposed even to live within the territory of the sovereign to whom he is
accredited
;
and if he has done nothing to forfeit or to waive his privilege,
he is for all judicial purposes supposed still to be in his own country”
(The Magdalena Steam Navigation
Co.
v.
Martin,
28
Q.B.D.
310,
at p.
311).
Gradually, however, this artificial justification of legal rules based on
customary international law was replaced by the direct reference to this
source of law, and
it
was held on those grounds that “diplomatic privilege
does not import immunity from legal liability, but only exemption
from
local jurisdiction”
(Dickinson
v.
DeZ Solar
(1930)
I
K.B.
376,
at p.
380;
as
applied to the immunity of public ships,
Chung Chi Cheung
v.
R.,
P.C.C.
(1938) 4
All E.R.
794).
Third,
the doctrine that diplomatic immunity covers merely civil
process, but does not extend to the sphere of criminal jurisdiction,
is
neither endorsed by State practice nor by the authority of any English
Court (Cf. an examination of doubtful cases,
Sir
Cecil Hurst,
Les Immunitbs
Diplomatiques,
Hague
Recueil
X
(1g27),
p.
169).
Fourth,
the immunity of a diplomatic agent is ultimately derived from
the immunity of his sovereign.
It
is delegated by the sovereign to his
ambassador or minister and through him to those members of his mission
who enjoy diplomatic immunity
(Fishev
v.
Begrez,
2
C.
&
M.
240,
at
p.
243
;
Dickinson
v.
DeZ Solar
(1930)
I
K.B.
376).
Fifth,
the diplomatic privilege of the ambassador or minister extends
to
his subordinates “where
it
can be shown that it is claimed in the
interests of the ambassador as necessary to the exercise of
his
functions
and his comfort and convenience”
(Parkinson
v,
Potter,
16
Q.B.D.
152,
at
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