Volume I Part 63 (1/2)

[Footnote 797: Heffter, -- 222, is, as far as I know, the only publicist who maintains that agents not invested with diplomatic character must nevertheless be granted the privileges of diplomatic envoys.]

[Footnote 798: Ullmann, -- 66, and Rivier, I. -- 40, maintain that they _must_ be granted the privilege of inviolability to the same extent as diplomatic envoys.]

[Sidenote: Secret Political Agents.]

-- 454. Secret political agents may be sent for the same purposes as public political agents. But two kinds of secret political agents must be distinguished. An agent may be secretly sent to another Power with a letter of recommendation and admitted by that Power. Such agent is a secret one in so far as third Powers do not know, or are not supposed to know, of his existence. As he is, although secretly, admitted by the receiving State, his position is essentially the same as that of a public political agent. On the other hand, an agent may be secretly sent abroad for political purposes without a letter of recommendation, and therefore without being formally admitted by the Government of the State in which he is fulfilling his task. Such agent has no recognised position whatever according to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes troublesome, and he may be criminally punished if he commits a political or ordinary crime. Such secret agents are often abroad for the purpose of watching the movements of political refugees or partisans, or of Socialists, Anarchists, Nihilists, and the like. As long as such agents do not turn into so-called _agents provocateurs_, the local authorities will not interfere.

[Sidenote: Spies.]

-- 455. Spies are secret agents of a State sent abroad[799] for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is neither morally nor politically and legally considered wrong to send spies, such agents have, of course, no recognised position whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be punished.

And a spy cannot legally excuse himself by pleading that he only executed the orders of his Government. The latter, on the other hand, will never interfere, since it cannot officially confess to having commissioned a spy.

[Footnote 799: Concerning spies in time of war, see below, vol. II. ---- 159 and 210, and Adler, ”Die Spionage” (1906), pp. 7-62.]

[Sidenote: Commissaries.]

-- 456. Commissaries are agents sent with a letter of recommendation or commission by one State to another for negotiations, not of a political but of a technical or administrative character only. Such commissaries are, for instance, sent and received for the purpose of arrangements between the two States as regards railways, post, telegraphs, navigation, delineation of boundary lines, and so on. A distinct practice of guaranteeing certain privileges to such commissaries has not grown up, but inviolability of their persons and official papers ought to be granted to them, as they are officially sent and received for official purposes. Thus Germany, in 1887, in the case of the French officer of police Schnaebele, who was invited by local German functionaries to cross the German frontier for official purposes and then arrested, recognised the rule that a safe-conduct is tacitly granted to foreign officials when they enter officially the territory of a State with the consent of the local authorities, although Schnaebele was not a commissary sent by his Government to the German Government.

[Sidenote: Bearers of Despatches.]

-- 457. Individuals commissioned to carry official despatches from a State to its head or to diplomatic envoys abroad are agents of such State. Despatch-bearers who belong to the retinue of diplomatic envoys as their couriers must enjoy, as stated above (-- 405), exemption from civil and criminal jurisdiction and a special protection in the State to which the envoy is accredited, and a right of innocent pa.s.sage through third States. But bearers of official despatches who are not in the retinue of the diplomatic envoys employing them must nevertheless be granted inviolability for their person and official papers, provided they possess special pa.s.sports stating their official character as despatch-bearers. And the same is valid respecting bearers of despatches between the head of a State who is temporarily abroad and his Government at home.

IV

INTERNATIONAL COMMISSIONS

Rivier, I. pp. 564-566--Ullmann, -- 68--Gareis, ---- 51-52--Liszt, -- 16--Moore, IV. -- 623.

[Sidenote: Permanent in Contradistinction to Temporary Commissions.]

-- 458. A distinction must be made between temporary and permanent international commissions. The former consist of commissaries delegated by two or more States to arrange all kinds of non-political matters, such as railways, post, telegraphs, navigation, boundary lines, and the like. Such temporary commissions dissolve as soon as their purpose is realised.[800] Besides temporary commissions, there are, however, permanent commissions in existence. They have been inst.i.tuted by the Powers[801] in the interest of free navigation on two international rivers and the Suez Ca.n.a.l; further, in the interest of international sanitation; thirdly, in the interest of the foreign creditors of several States unable to pay the interest on their stocks; and, lastly, concerning bounties on sugar.

[Footnote 800: The position of their members has been discussed above, -- 456. Quite novel inst.i.tutions are the International Commissions of Inquiry recommended by the Hague Peace Conferences of 1890 and 1907.

Articles 9 to 36 of the Hague Convention for the peaceful adjustment of international differences provide that, in international differences involving neither honour nor vital interests, and arising from a difference of opinion on matters of fact, the parties should inst.i.tute an International Commission of Inquiry; this commission to present a report to the parties, which shall be limited to a statement of the facts. See below, vol. II. -- 5.]

[Footnote 801: Only such permanent commissions are mentioned in the text as have been inst.i.tuted by the Powers in conference. There are, however, many permanent commissions in existence which have been inst.i.tuted by neighbouring Powers for local purposes, as for example:--(1) The American-Canadian International Fisheries Commission, inst.i.tuted according to article 1 of the Treaty of Was.h.i.+ngton of April 11, 1908; see Treaty Series, 1908, No. 17. (2) The American-Canadian International Joint Commission concerning boundary waters, inst.i.tuted by articles 7-12 of the Treaty of Was.h.i.+ngton of January 11, 1909; see Treaty Series, 1910, No. 23. (3) The permanent Mixed Fisheries Commission between the United States, Canada, and Newfoundland, inst.i.tuted in consequence of the award of the Hague Court of Arbitration in the North Atlantic Fisheries Case.]

As regards the privileges to be granted to the members of either temporary or permanent international commissions, no distinct practice has grown up. If the treaty according to which a commission concerned does not stipulate anything as regards such privileges, none need be granted, but the persons of the commissioners must be specially protected. However that may be, there is no doubt that members of international commissions cannot, unless this be specially stipulated, claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs.

Gore and Pinkney,[802] the American Commissioners in London under article 7 of the Jay Treaty, claimed these privileges, Great Britain refused to concede them.

[Footnote 802: See Moore, IV. -- 623, p. 428.]

[Sidenote: Commissions in the interest of Navigation.]

-- 459. Four international commissions have been inst.i.tuted in the interest of navigation--namely, two for the river Danube, one for the Congo river, and one for the Suez Ca.n.a.l.

1. With regard to navigation on the Danube, the European Danube Commission was inst.i.tuted by article 16 of the Peace Treaty of Paris in 1856. This commission, whose members are appointed by the signatory Powers of the Treaty of Paris, was reconst.i.tuted by the Berlin Conference in 1878 and again by the Conference of London in 1883. The commission is totally independent of the territorial Governments, its rights are clearly defined, and its members, offices, and archives enjoy the privilege of inviolability. The competence of the European Danube Commission comprehends the Danube from Ibraila downwards to its mouth.[803]