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Verdross, Alfred
1959.
Völkerrecht.
Vol. 10,
Issue. ,
p.
84.
Article contents
Immunity of a Foreign Mission's Premises from Local Jurisdiction
Published online by Cambridge University Press: 04 May 2017
Extract
During its session of October 31–December 2, 1927, the Hungarian–Czecho–Slovak Mixed Arbitral Tribunal established under the Treaty of Trainon rendered several decisions condemning the Hungarian State to pay approximately five million Czech crowns indemnity on claims filed by Czechoslovak nationals in conformity with Article 232 of the Trianon Treaty. In accordance with the provisions of the Peace Treaty, the Hungarian Government accepted without question these decisions of the Mixed Arbitral Tribunal.
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References
1 Treaty of Peace between the Allied and Associated Powers and Hungary, signed at Trianon,June 4th, 1920, Article 239: “ Within three months from the coming into force of the present Treaty, a Mixed Arbitral Tribunal shall be established, between each of the Allied and Associated Powers on the one hand and Hungary on the other hand …”
2 Article 232 of the Treaty of Trianon and the annex to that article deal with the questions of property rights and interests.
3 Article 239, Paragraph (g): “ The High Contracting Parties agree to regard the decisions of the Mixed Arbitral Tribunal as final and conclusive and to render them binding upon their nationals.”
4 After preliminary correspondence between the Hungarian Government and the League of Nations respectively on the one hand, and the Reparation Commission on the other, the Commission, in a decision of February 21st, 1924, excepted certain specified assets on Hungarys revenues and in a second decision bearing the same date, fixed the amount of treaty charges to be imposed upon Hungary. The decision (League of Nations Document, C. M. 221. 1926. II, The Financial Reconstruction of Hungary, pp. 199-201)readsas follows:
“ The Reparation Commission:
“ Considering the present state of Hungarian finances;
“ Taking note of the plan of the League of Nations for the financial reconstruction of Hungary transmitted to the Reparation Commission by the Hungarian Committee of the Council of the League as the plan asked for in the resolution of the Commission of the 17th October 1923 and consisting of the Protocols Nos. I and II and the report of the Financial Committee of the League dated the 20th December 1923;
“Considering also that it is essential in the interests of Hungary and the States creditors of Hungary on reparation account that the projected loan to Hungary for financial reconstruction as contemplated by the said plan be adequately subscribed, but that it is not practicable before the date proposed for the issue of any such loan to determine the amount of the damage for which compensation is to be made by Hungary, to assign to her a part of the debt, and draw up a schedule of payments for securing and discharging the part so assigned pursuant to Article 163 of the Treaty of Trianon;
“Recognizing further that subscriptions to the said projected loan will be made upon the understanding that the recommendations as to the external obligations of Hungary, reparations and the powers of the Commissioner-General, contained in the said plan, receive the approval of the Reparation Commission and therefore, that the burden to be imposed under the Treaty of Trianon (other than such burdens, if any, as may arise under the said Treaty in respect of the obligations of Hungary or her nationals which existed before the Treaty)shall not for a period of twenty years from the date of this decision exceed the amounts mentioned in the Annex hereto and shall be subject to the conditions contained in the said plan;
“ And taking note of the engagement of the Hungarian Government dated the 21st February 1924 consenting and agreeing to make the payment of the said amounts upon the dates prescribed:
“ Decides that the payments and deliveries to be made by Hungary from the 1st January 1924 to the 31st December 1943 in respect of her liability to make reparation shall, in pursuance of the said plan and subject to the conditions contained therein, be those set out in the Annex hereto, but so that if, during the said period of twenty years, Hungary shall, with the approval of the Reparation Commission, make any payment or delivery under the said Treaty (not being a payment or delivery in respect of obligations of Hungary or her nationals which existed before the war, as for example, the obligations contained in Articles 186 and 231 and any such obligations as are contained in Article 232) otherwise than on account of reparation, such payment, or the value of any such delivery shall not exceed the figure fixed by the schedule for the period in which it takes place and shall be deducted from the obligations of Hungary fixed in the schedule for that period;
“ And, further, if the payments fixed in the schedule for the years 1927 to 1943 added to the value of the deliveries or payments made in the years 1924,1925 and 1926 do not amount to 200,000,000 gold crowns, the deficiency shall be paid or delivered during 1940, 1941,1942 and 1943 in addition to the payments or deliveries fixed for those years, one-fourth of the deficiency being allotted to each year, and similarly, if those payments added to that value exceed 200,000,000 gold crowns, the excess shall in like manner be deducted from the payments or deliveries fixed for the same last years;
“ Provided also and it is hereby declared that, if the Protocols I and II shall not have been duly signed by or on behalf of all the Governments named therein respectively on or before the 31st March 1924, or if, before the 31st December 1924, the League of Nations, taking into consideration the figure reached by the subscriptions to the said principal reconstruction loan, has not notified the Reparation Commission that it undertakes the responsibility to complete the reconstruction plan contained in the said protocols, this decision shall be void and of no effect.
“ The Reparation Commission takes the decision upon the understanding that the Council of the League of Nations will declare before the 31st March next that it interprets Articles II and VII of the said Protocol II as meaning that it will, in conformity with the said plan of reconstruction, re-establish the control of Hungarian finances if and when it finds that any payment or delivery prescribed by the schedule to this decision has not been made pursuant to this decision, and this decision shall take effect only if the Council has made such a declaration before that date.”
5 1922 Sammlung der Oesetze und Verordnungen des ěchoslovakischen Staates, No. 146. The provisions of this law are considered in the discussion of the decision of the Supreme Court of Czecho-Slovakia, infra.
6 The decision of the Supreme Court is reported in Sbirka Rozhodnuti Nejvyssich Stolic Soudnich Rejmbliky Ceskoslovenske, 1928, pp. 632ff. See also a comment by Giacinto Bosco,“ Lo stato attuale della questione dell essecuzione degli Stati esteri daUa giurisdizione interna” ,in 21 (1929) Rivista di diritto intemazionale, pp. 35-62, at p. 48.
7 The question of the right under Czecho-Slovak law to appeal in such a situation was fully discussed by the Court; this point is not considered here.
8 It may be remarked that it is difficult to imagine a situation in which a Mixed Arbitral Tribunal could render a decision against an individual rather than against the state, although under the terms of the peace treaties a decision may be rendered in favor of an individual.
9 No. R. I. 120/27 of April 8, 1927.
10 See: 10 (1883) Journal du droit international privi, pp. 67-68, and, in general, L. Van Praag, Juridiction et droit international public, The Hague, 1915, p. 402, and note 104. Also Storelli v. French Government, Civil Court of Rome, Feb. 13, 1924 in 17 (1925) Rivista di diritto internazionale, pp. 236 ff.
11 MS. Reparation Commission. Secretary-General. No. 213/65. Translation from French original by the present writer.
12 1928 Sammlung der Gesetze und Verordnungen des čechoslovakischen Staates, pp. 123 f . No. 23. Gesetz vom 19 Janitar 1928, betreffend die Abanderung und Erganzung einiger Bestimmungen der Gesetze iiber das gerichtliche Verfahren in büirgerlichen Angelegenheiten and üiber das Exekutionsverfahren.
13 Article IV of this law amends §31, par. 1, of the law of May 27,1896, relating to execution procedure, to read as follows:
“ Against persons who enjoy exterritorial rights in the Czecho-Slovak Republic, and in exterritorial buildings and places, actions of execution can be undertaken so far only as is permitted by the law of nations. In doubtful cases the Court must request a declaration of the Minister of Justice, who shall give such declaration with the concurrence of the Minister of Foreign Affairs; such declaration is binding on the courts. Executions against exterritorial persons or in exterritorial buildings and places can be undertaken only in the presence of a representative of the Ministry of Foreign Affairs.” [Translation by the present writer.]
14 As to diplomatic immunities and privileges in general, see a study by the present writer, “Classification, Privileges and Immunities of Diplomatic Agents” in 1 (1927/28) Southern California Law Review, pp. 209 ff., 332 ff.
15 Butler-Maccoby, The Development of International Law, London, 1928, pp. 89 ff.
16 Vattel, The Law of Nations, 1758, Bk. IV., Ch. IX. §117. The Ambassador's House and His Retinue (English translation by Charles G. Fenwick, in the Classics of International Law).
17 Bonfils, H. &Manuel de droit international public. “ In violability de l’hôtel”, this Journal , Paris 388. (1894)par. 695Google Scholar.
“ La demeure du Ministre public doit 6tre, en principe, àabri des investigations des magistrate, des employés la police locale, des employes des contributions ou des douanes.Nul ne doit, en rfegle g6n4rale, pouvoir y p6n6trer sans automation expresse ou pr6aum6e. La franchise de h6tel de lagent diplomatique est k la fois une consequence et un mode dapplis application de son ind6pendance, de son invoilabilit6 personnelle.Elle na pas pour base la fiction dexterritorialit6.Mais, quel que soit la fondement sur lequel on l'assoie, tous, ou presque tous, les auteurs admettent le principe de la franchise de ldtel.”
18 John W. Foster, The Practice of Diplomacy. New York, 1906, p. 165.
19 Sir Ernest Satow, A Guide to Diplomatic Practice, 2d ed., London, 1922, Vol. I, Chap.XX, pp. 293 ff, “ Immunities of the Residence of a Diplomatic Agent.”
20 Lawrence, The Principles of International Law, 7th ed., New York, 1923, par. 130. [Italics ours.]
21 Charles G. Fenwick, International Law, New York, 1924, p. 364.
22 Oppenheim, International Law, 4th ed., by McNair, London, 1928, Vol. I, p. 629, par.390. [italics ours.]
23 See the Italian Confiscatory Decree, the Papal Protest and Mr. Scelle's comments in 24 (1917) Revue Giniral de Droit International Public, pp. 244 ff.
24 Fauchille, Traitt de droit international public, 8th ed., Paris, 1926, Vol. I, pt. Il l, p. 75.
25 Special Supplement to this Journal , Vol. 20, p. 353, Project No. 22 of the American Institute of International Law, Art. 19. [Italics ours.]
26 League of Nations Documents C. 196. M. 70. 1927. V. p. 79.
27 Ibid., p. 243.
“ The doubts which still subsist, as to the inviolability of diplomatic premises are largely due to the fact that these premises, like ships (floating territories), were long regarded as portions of foreign territory. In Article 9 of its Draft Regulations the Institute of International Law has clearly laid down that the “ ex-territoriality” of diplomatic premises confers on the diplomatic representative merely the right to refuse admittance to officers of the public authority in the performance of their duty. If we take it that the basis of diplomatic prerogatives is the necessity of securing the independence of the Public Minister, we must admit that the rule embodied in Article 9 of the Draft-Regulations of the Institute of International Law—a rule which is observed in practice by the Swiss Government—is very reasonable. It might, however, be well to define certain cases in which an official should not be refused admittance to the inviolable premises of a diplomatic mission (e.g., inspections by the fire brigade, technical inspections by officials of the telegraph and wireless service …).
“ The current practice of the Swiss authorities is to extend inviolability to the private residence as well as the official premises… .
“ Where the diplomatic premises are owned by the foreign Government, or by the head of the mission privately, the further question arises whether measures of execution (seizure or sequestration) are allowable. This is a particular aspect of the inviolability question which deserves consideration.”
28 League of Nations Documents C. 196. M. 70. 1927. V. p. 254.
29 Charles H. Weston, Actions against the Property of Sovereigns, 32 (1918) Harvard Law Review, pp. 266 ff.
30 3 Entscheidungen des Öterreichischen Obersten Gerichtskofes in Zivil -und Justiceverwal
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