Woman and Diplomatic Immunity

The women's awakening whose buds are becoming plain today in Lebanon, and which has grown and come of age in other countries, is well worthy of drawing research toward the treatment of certain questions that concern woman — not only as regards the formation of the individual family cell, but as regards sharing in nourishing the interplay among the cells of human society at large; I mean woman's relation to public life, both political and diplomatic.

A glance at the Covenant of the League of Nations and a glance at the Charter of the United Nations prove that the civilized nations cannot deny woman her right to develop international bonds and to consolidate relations among states. In the first covenant as in the second there is an affirmation that the tasks of the international institutions and the work entrusted to their various departments may be assigned to woman; in this there is an equality between the rights and duties of woman and the rights and duties of man, and a resounding acknowledgment of the capacities woman displays, capacities that rival those of man. Likewise the marked evolution in the laws of the nations makes clear woman's living part in helping to build the edifice of human society at large, and attests the solidity of the bricks she contributes to this international structure. No wonder, then, that woman has cast off the cloak of her seclusion; nor is it strange that she has begun to share with man in representing her country — representing it truly — in foreign lands. Political history offers more than one witness that the delegation of women to undertake such representation has its virtues and merits, thanks to the sagacity and suppleness woman enjoys in conducting the affairs of diplomatic relations and in raising the standing of the country to which she belongs.

Hence the idea of diplomatic immunity, and the extent to which woman may benefit by it, takes on a color that grows brighter with the days and draws inquiry to it. And the laws of the world are earnestly engaged in treating the consequences that follow from the recognition of that immunity and from the broadening scope of its conceptions.

What is meant by diplomatic immunity: to define immunity we must begin by saying that the courts in a state refrain from hearing certain suits for want of capacity, competence, or jurisdiction, or by reason of a contingent circumstance attaching to the person of the defendant and bearing no relation to the kind of suit, its venue, or its substance. This contingent circumstance is what has come by common consent to be called immunity. Since this immunity is of several kinds — meaning that it covers not only natural persons but extends also to juridical persons, wrapping the state itself under its wing and protecting certain entrusted institutions, which are many in our present day — and since, consequently, an inquiry into all the kinds of immunity would require a broader field, I have preferred in this article of mine to confine myself to treating one portion of it, and to take up in particular the study of the immunity that woman may enjoy.

The origin of immunity goes back to certain principles laid down by public international law, and in particular to traditions and customs; its justification may also be found in the treaties concluded by certain states.

As for the rationale of this immunity and its foundation, the jurists have tried to find it in the very idea of state sovereignty. Ambassadors, as the Dutchman Bynkershoek and Grotius say, are independent vis-à-vis the authority to which they are accredited; were we to admit that they must submit to the judgments of the courts of the country to which they are delegated, there would be lost to them that sovereignty to which we know states cling fiercely, not permitting an inch of it to be forfeited. Montesquieu said in this connection that "in the mouths of ambassadors speaks he who sent them," and in their words and deeds are his words and his acts. Hence states must treat ambassadors and ambassadresses as they would treat him.

Such is the matter of the immunity of the ambassador or ambassadress. As for the wives of ambassadors, if we go back and leaf through the modern studies on the subject of their immunity,

we find that many authors deny that these ladies have any right to enjoy what their husbands enjoy, resting their case on the texts of certain conventions, such as the Havana Convention concluded in 1928, or the agreement concluded between the Saar and France in 1950, which holds that immunity does not extend beyond the official functionaries and does not attach to the members of their suite; and it is self-evident that the ambassador's wife is not counted among the official functionaries. Yet the courts have kept to the old path, holding that those texts concern special cases and apply only in settling the relations of the contracting parties themselves; the inherited usage and the prevailing jurisprudence are that the ambassador's wife must be treated on an equal footing with her husband as regards that immunity, and that consequently she may not be sued.

Jurisprudence has seen in this a necessity that must be preserved, lest the ambassador become a prey to anxiety through suits against his wife, whereby his freedom would be shackled and he would be rendered incapable of discharging, with serenity and ease, the mission for which he was delegated.

The immunity woman enjoys has conditions that must be fulfilled in her. The first is that the wife be residing with her husband in the country to which he is delegated — and I say residing with him, not under one roof, but rather that no judgment of separation shall have been pronounced between them. Yet this rule has not been applied in some countries, among them Britain, which has preferred an excess of indulgence. On this I cite the following instance: on the eighteenth of November 1907 a suit was brought before the courts of Paris against the wife of a diplomatic representative in the matter of the purchase of an automobile whose price the wife had not paid. Although the wife was at that time not living with her ambassador husband, a judgment of separation having been pronounced between the spouses, the court nevertheless chose to hold that the wife was shielded by diplomatic immunity and not subject to the court's authority.

Let us now ask whether the ambassador's wife, once granted immunity, is entitled to plead it if a suit is brought against her in the country where her ambassador husband resides, when she herself bears the nationality of that country. In other words, and for greater clarity: suppose there were in Lebanon an American ambassador married to a Lebanese woman: would a creditor of hers in Beirut, for instance, be entitled to sue her before a Lebanese court, or does immunity in this case too bar her being sued in Lebanon? To tell the truth, I have not yet come upon any judicial precedent on this point that might cast a glimmer of light upon this knot. But the commentators and jurists in many countries have denied the application of immunity, among them the eminent Niboyet, who said: were we to concede that immunity attaches to the ambassador's wife when she carries the nationality of the country of accreditation, the doors of justice would be barred in the plaintiff's face; for were the latter to bring his suit before a court of the ambassador's country, its fate would be dismissal for want of jurisdiction, on the ground that the defendant is of foreign origin and resident in a foreign country. But the British jurists do not give this question of nationality sufficient heed, and they proclaim immunity from the mere fact that the defendant is the wife of a foreign ambassador.

Nor has the theory of immunity prevented the courts from affirming their jurisdiction in certain matters arising between the ambassador and his wife, in special cases demanding urgent decision, chief among them suits of separation, maintenance, the lawful conjugal home, and the care of the children of the ambassador or ambassadress when divorce is decreed. We must also make clear here that while immunity covers personal actions, it does not attach to real actions, that is, actions concerning rights over immovable property; for if immunity covered suits of that kind as well, right would be corrupted and justice would go astray, since the general principle of jurisdiction lays down that the court competent to hear real actions is the court of the place where the property lies and no other.

And then: is the ambassador's wife entitled to plead immunity in respect of a debt she incurred before her delegation, or her husband's delegation, as ambassador in the creditor's country? The answer is simple and easy, for the affirmative in this case admits of no dispute if the suit is brought during the term of the diplomatic representation. But if this term comes to an end, must the immunity be preserved? Here we find the prevailing opinion to be for maintaining immunity, though there is in this something justice cannot approve; but usage has established and perpetuated it.

Let us pass to another branch of this subject's many branches: to inquire whether this immunity attaches to the woman delegate or to the ambassador's wife in all countries, or is confined only to the country designated for the representation. In truth the answer to this is not easy, for some have said that immunity never parts from the diplomat's person from the day he leaves the soil of his homeland, journeying to the soil of the state where he will reside for the aforesaid mission of representation. In support of this I cite a judgment rendered on the fourth of November 1950 by the Court of Appeals of the United States in America, in which the court decided that the consul of France in Bogotá, against whom suit was brought while he was passing through the United States, was covered by immunity. There are, however, those who refute this opinion, holding that immunity in the country of passage is negated by the absence of any direct relation between the country of passage and the ambassador's mission. Yet the first opinion is the sounder, and numerous precedents have confirmed it; indeed the commentators go further still, proclaiming that immunity must be upheld not only in the case of passage (Transit) but even during a temporary sojourn in a country foreign to the country of representation. I cite a decision handed down by a Paris court in 1909, to the effect that the wife of the ambassador

of America in Brussels came to Paris to spend a prolonged period of rest, and during this stay bound herself with certain debts toward Parisian creditors; these presented their complaint to recover their due, but the Seine court then decided to excuse the said wife from appearing before it, immunity being present.

As for the immunity of the queen, of the king's wife and daughters, and of the princesses, I hasten to say of it that clearly the first idea that forms itself in the mind of one who studies these cases is that the treatment of the ambassadress or delegate — she being the envoy of the king who holds sovereignty — should be no different from that of the king himself; and that therefore the queen must stand, as regards that immunity, on an equal footing with those she has sent. We have some examples in which the courts adopted the theory of immunity, the first being that famous incident which Queen Christina (Queen of Sweden) ventured to commit during her visit to France, when she gave orders for the killing of one of her retinue; justice was set in motion in France and an inquiry was held, but the courts could not bring themselves to pronounce judgment, holding rather that the queen must remain beyond the grasp of justice in France.

If, then, the princess or the queen is within her right in pleading immunity, it is strange nonetheless that this immunity does not reach the king's wife or the prince's wife, nor her daughters. In this there is an evolution toward narrowing the scope of that immunity.

There is one last question I wish to broach before closing these remarks: to know whether a woman appointed consul in a foreign country, or the wife or daughter of a consul, benefits from immunity or not.

Jurisprudence is unanimous and opinion agreed that the woman consul — that is, she who discharges the functions of the consulate — and the consul's wife and daughters cannot avail themselves of immunity at all, since the consul himself does not enjoy diplomatic immunity, and nothing prevents even the arrest and imprisonment of a consul in penal actions.

In conclusion of this study I say that it is folly, in our present age, not to hold ourselves bound to the vindication of right, without regard for those stratagems which jurisprudence and the jurists used to offer, sacrificing the authority of justice upon the altars of diplomatic proprieties; and it is a loss to say that the acts of the ambassadress or of the plenipotentiary's wife must all be subject to the theory of immunity, for excess in the use of immunity can destroy in it the very good for which it was created and instituted, so that it becomes an instrument for encroaching upon the rights of men. It was this that led Bonaparte to say, addressing his ministers and the great men of his state at a special meeting he convened for this purpose: "Why do you wish to do away with the spirit of equality among men? Why do you desire to place the ministers beyond the reach of any hand in the country where they commit their sins and squander other people's money, so that they cannot be compelled to pay?"

All this led the League of Nations to think of a new way of deciding the suits that arise between the holders of immunity and the rest of mankind, drawing inspiration in this from something the kings of the sixteenth and seventeenth centuries had tried — the adoption of arbitration as a means of settling such disputes; but regrettably none of this was destined to succeed. May tomorrow, then, bring a more general reform, and may the states consent to bind some part of their power for the sake of the common benefit and mutual good.