Reference as to Powers to Levy Rates on Foreign Legations

Reference as to Powers to Levy Rates on Foreign Legations
Collection
Supreme Court Judgments
Date
1943-04-02
Report
[1943] SCR 208
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert
On appeal from
Canada
Subjects
International law
Decision Content
Supreme Court of Canada
Reference as to Powers to Levy Rates on Foreign Legations, [1943] S.C.R. 208
Date: 1943-04-02
In the Matter of A Reference as to the Powers of the Corporation of the City of Ottawa and the Corporation of the Village of Rockcliffe Park to Levy Rates on Foreign Legations and High Commissioners' Residences.
1942: June 9, 10, 11; 1943: April 2.
Present: Duff C.J. and Rinfret, Kerwin, Hudson and Taschereau JJ.
International law—Constitutional law—Assessment and taxation—Crown—Powers of municipalities in Ontario to levy rates on foreign legations and High Commissioners' residences. The following questions were referred to this Court:
Is it within the powers of the Council of the Corporation of the City of Ottawa to levy rates on
(1) properties in Ottawa owned and occupied as Legations by the Governments of the French State, the United States of America and Brazil, respectively, or
(2) on property in Ottawa owned and occupied by His Majesty in right of the United Kingdom as the Office and Residence of the High Commissioner for the United Kingdom, or
(3) on property in Ottawa owned and occupied by His (Majesty in right of Australia as the Residence of the High Commissioner for the Commonwealth of Australia, and
(4) is it within the powers of the Council of the Corporation of the Village of Rockcliffe Park to levy rates on property owned and occupied by the Government of the United States of America as the Legation of the United States in Rockcliffe Park?
The said municipalities are in the province of Ontario.
On said questions, opinions were given as follows:
Per curiam: Questions 2 and 3 should be answered in the negative, as the properties come within the exemption of Crown property in the Ontario Assessment Act.
As to questions 1 and 4:
Per the Chief Justice and Rinfret and Taschereau JJ. (the majority of the Court): These questions should be answered in the negative.
Per the Chief Justice: There are applicable certain general principles of international law (as applied in normal times and circumstances), accepted and adopted by the law of England (which, except as modified by statute, is the law of Ontario) as part of the law of nations. The general principle which governs the juridical position of the foreign minister is that he owes no allegiance to the state to which he is sent and that he is not subject to its laws. The inviolability of his residence, used as a legation, is one of the diplomatic immunities recognized by English law and acknowledged in all civilized nations as annexed to the ambassadorial character. The legation, for all the ordinary affairs of life, is equally, with the ambassador himself, not subjected to the authority of the territorial sovereignty. Taxes and rates imposed by statute in general terms in respect of the occupation or the ownership of real property are not recoverable from diplomatic agents in respect of real property occupied or owned by them or their states and occupied and used for diplomatic purposes. Such a statute creates no liability to pay; and it cannot, consistently with principle, create any effective charge upon the property: the property is not subject to process, or to visitation by government officers; and the foundation of this privilege is that the foreign state and its ambassador are immune from coactio (in the sense of Lord Campbell's judgment in Magdalena Steam Navigation Co. v. Martin, 2 E. & E. 94) direct or indirect. The contention that property of a foreign sovereignty in use for diplomatic purposes may, without infringement of the principles of international law, be subjected to such a tax as a charge upon the land, cannot be accepted. So long as the property is devoted to such use, the territorial sovereignty admittedly cannot enforce a charge; and if, in case of a sale, the charge is to stand as against the purchaser, the statutory proceeding is only a method of enforcing indirectly the law of the territorial jurisdiction against the public property of the foreign sovereign; it would be the assertion of a right over it adversely affecting it, because the charge would affect the price for which it could be sold; the creation of the charge would amount to the creation of a jus in re aliena, to a subtraction from the property of the foreign sovereign; and would be inconsistent with the principle "of absolute independence of every superior authority" which lies at the basis of the immunities conceded to a foreign sovereign and his property. The general language of the enactments imposing the taxation in question must be construed as saving the privileges of foreign states under the principles above stated. (It was pointed out that the principles governing the immunities of a foreign sovereign and his diplomatic agents and his property do not limit the legislative authority of the legislature having jurisdiction in the particular matter affected by any immunity claimed or alleged).
Per Rinfret J.: A principle of international law which has acquired validity in the domestic law of England and, therefore, in the domestic law of Canada, is that a foreign minister is not subject to the laws of the state to which he has been sent as a diplomatic representative; he enjoys an entire independence from its jurisdiction and authority; consequently, he is exempt from the jurisdiction of its courts. It is a necessary consequence of the legal impossibility of collecting the taxes against foreign states or diplomats that such taxes may not be assessed and levied on the properties owned and occupied by them and used for diplomatic purposes; nor, consistently with principle, can the municipal corporation create any effective charge upon the property, because, as this would affect the price for which the property could be sold later to an ordinary purchaser, it would only be an indirect way of coercing the foreign state.
Per Taschereau J.: It is a settled and accepted rule of international law in practically all the leading countries of the world, that property belonging to a foreign government, occupied by its accredited representative, cannot be assessed and taxed for state or municipal purposes. The immunity of the foreign minister from legal process in the country where he is sent extends to the property of his state, which is exempt from all forms of taxation. It is with this in mind that the Assessment Act of Ontario must be read. Concurrence expressed with the reasons of the Chief Justice.
Per Kerwin J.: On the basis that the questions submitted refer to the powers of the councils of the municipal corporations to impose assessments, taxes and charges, and not to their powers or those of the corporations acting through their officers and agents to compel payment of these taxes, questions 1 and 4 should be answered in the affirmative. As to the properties owned by the foreign states, there is nothing to prevent the ordinary procedure being taken (whatever may be the ultimate result thereof), that is, for the assessor to enter them on the assessment roll and the countries concerned as owners thereof, and for the collector's roll to be prepared and for the proper municipal authorities to enter in that roll the amount of taxes either for general or special rates or assessments; and for the tax collector to send a notice in the usual form showing the amount of taxes. Per Hudson J.: Questions 1 and 4 should be answered in the affirmative, meaning thereby that the council of the municipality can impose such taxes, but this is qualified by the fact that assistance of the courts would not be given to enforce payment so long as the diplomatic immunity continued. The Dominion has the right to give a status to diplomatic representatives, and the Province is bound to recognize their status, but not necessarily bound to accord them privileges in matters falling within provincial legislative jurisdiction under s. 92 of the B.N.A. Act; the granting of the status does not carry with it immunities from provincial laws beyond those immunities recognized by the provincial legislature. There is no legislation of Canada or of Ontario granting immunities in respect of foreign legations, so that, if any exist, it must be by virtue of general principles of international law or of imperial legislation, having the force of law in Ontario. A consideration of the extent of such immunities under such principles and legislation leads to the conclusion that a court would be bound to hold that in Ontario no action could be proceeded with against any foreign sovereign or state or its diplomatic representatives who pleaded immunity, in respect of taxes imposed by municipal corporations, and the same rule would apply to any proceedings in court calculated to disturb their occupation of the land. But such immunity or privilege is one from action or molestation; it does not destroy liability. The Ontario legislature, which is supreme in the matters of municipal institutions and property and civil rights in the province, has not seen fit to exempt the land used for legations from municipal taxes. The tax when imposed creates a lien and charge on the land; and, on severance of diplomatic relations or disposal of the land by the foreign state or its representative, the lien might well become effective. Again, a substantial part. of municipal taxation is imposed to pay for the services rendered by the municipality, such as water, sewerage, etc., which it would have a right to withhold until taxes are paid.
(References were made in the opinions to distinction between taxes which constitute payment for services rendered for the beneficial enjoyment of the particular property in respect of which they are assessed (as water rates, etc.) and those which are levied for general purposes. As to the first class: Per the Chief Justice: There is no obligation to provide the envoy from a foreign state gratuitously with water, or electricity, and it would be generally agreed that where a tax is in the nature of the price of a commodity, the person enjoying the benefit of that commodity ought to pay the price (though, semble, he cannot be compelled to do so, since his person is inviolate and his house and goods are exempt from legal process). Per Rinfret J.: The Attorney-General of Canada admitted that the "rates" with which the Court must deal in its answers do not include the charges imposed for such services or commodities. Per Kerwin J.: The word "rates" as used in the questions should not be so restricted.)
REFERENCE by His Excellency the Governor General in Council, under the authority of s. 55 of the Supreme Court Act (R.S.C. 1927, C. 35), of the following questions to the Supreme Court of Canada for hearing and consideration, namely:— Is it within the powers of the Council of the Corporation of the City of Ottawa to levy rates on (i) properties in Ottawa owned and occupied as Legations by the Governments of the French State, the United States of America and Brazil, respectively, or (ii) on property in Ottawa owned and occupied by His Majesty in right of the United Kingdom as the Office and Residence of the High Commissioner for the United Kingdom, or (iii) on property in Ottawa owned and occupied by His Majesty in right of Australia as the Residence of the High Commissioner for the Commonwealth of Australia,
and is it within the powers of the Council of the Corporation of the Village of Rockcliffe Park to levy rates on property owned and occupied by the Government of the United States of America as the Legation of the United States in Rockcliffe Park?
The Order in Council is set out in full in the reasons of the Chief Justice infra.
D. L. McCarthy K.C., J. E. Read K.C., and W. R. Jackett, for the Attorney General of Canada.
Hon. G. D. Conant K.C. and C. R. Magone K.C. for the Attorney General for Ontario.
Rosario Genest K.C. for the Attorney General for Quebec.
F. B. Proctor K.C. and G. C. Medcalf for the City of Ottawa.
H. A. Aylen K.C., for the Village of Rockcliffe Park.
The Chief Justice.—His Excellency in Council has been pleased to refer to us certain questions. The Order-in-Council of the 19th of March, 1942, is as follows:—
Present:
His Excellency the Governor General in Council:
Whereas the Minister of Justice reports:—
1. That it is the practice of the Council of the Corporation of the City of Ottawa to levy rates on
(a) the French legation in Ottawa which is the property of the Government of the French State;
(b) the Office and Residence of the High Commissioner for the United Kingdom in Ottawa which is the property of His Majesty the King in right of the United Kingdom;
(c) the United States Legation in Ottawa which is the property of the Government of the United States of America;
(d) the Residence of the High Commissioner for the Commonwealth of Australia in Ottawa, which is the property of His Majesty the King in right of Australia; and
(e) the Brazilian Legation in Ottawa, which is the property of the Government of Brazil; 2. That it is the practice of the Council of the Corporation of the Village of Rockcliffe Park to levy rates on the United States Legation in Rockcliffe Park which is the property of the Government of the United States of America;
3. That, as a matter of international courtesy, the Government of Canada pays the said rates.
And whereas the Minister is of opinion that the question as to the validity of any tax levied by any province, municipality or other authority in Canada upon the property of a foreign state or upon the property of His Majesty the King in right of the United Kingdom or of any other part of His Majesty's dominions is an important question of law touching the relations of the Government of Canada with foreign powers and with the other Governments of the British Commonwealth as well as the constitutionality and interpretation of provincial legislation.
Now, therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice and under the authority of Section 55 of the Supreme Court Act, is pleased to refer and doth hereby refer the following questions to the Supreme Court of Canada for hearing and consideration, namely:—
Is it within the powers of the Council of the Corporation of the City of Ottawa to levy rates on
(i) properties in Ottawa owned and occupied as Legations by the Governments of the French State, the United States of America and Brazil, respectively, or
(ii) on property in Ottawa owned and occupied by His Majesty in right of the United Kingdom as the Office and Residence of the High Commissioner for the United Kingdom, or
(iii) on property in Ottawa owned and occupied by His Majesty in right of Australia as the Residence of the High Commissioner for the Commonwealth of Australia,
and is it within the powers of the Council of the Corporation of the Village of Rockcliffe Park to levy rates on property owned and occupied by the Government of the United States of America as the Legation of the United States in Rockcliffe Park?
As regards the properties owned and occupied by the High Commissioner for the United Kingdom and the High Commissioner for the Commonwealth of Australia, the powers of the Council of the Corporation of the City of Ottawa do not extend to these properties since they are embraced within the expressed exemption of Crown property by enactments of the Assessment Act.
In Chung Chi Cheung v. The King[1], Lord Atkin, delivering the judgment of the Judicial Committee, said, at pp. 167-8:—
It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. What, then, are the immunities of public ships of other nations accepted by our Courts, and on what principle are they based?
In Mortensen v. Peters[2], Lord Dunedin, then Lord President of the Court of Session in Scotland, said:—
It is a trite observation that there is no such thing as a standard of international law extraneous to the domestic law of a kingdom, to which appeal may be made. International law, so far as this Court is concerned, is the body of doctrine regarding the international rights and duties of states which has been adopted and made part of the law cf Scotland.
There are some general principles touching the position of the property of a foreign state and the minister of a foreign state that have been accepted and adopted by the law of England (which, except as modified by statute, is the law of Ontario) as part of the law of nations. It should, however, be observed at the outset that we are only concerned here with such rules as applied in normal times and in normal circumstances. We are not in any way concerned with the qualifications of these rules that may be necessary in order to meet special circumstances in which the interest of the state in relation to public safety, or public order, may be affected. What I have to say as to general principles must, therefore, be taken to be subject to that observation. Nor does any question arise as to the particular classes of diplomatic agents who are the subjects of immunities which indisputably are enjoyed by a foreign minister.
It is probable that the privileges attributed to foreign representatives by the law of England, as part of the law of nations, are at least as liberal as those recognized by the law of any other country. In Heathfield v. Chilton[3], Lord Mansfield said:—
The law of nations will be carried as far in England, as anywhere.
The general principle which governs the juridical position of the foreign minister is that he owes no allegiance to the state to which he is sent and that he is not subject to the laws of that state. It is his duty, no doubt, to respect those laws and it may be his duty to comply with them; but where that is so the duty springs from an obligation which is incumbent upon him as the representative of a foreign sovereignty to refrain from any action which may prejudice the well-being of the country in which he is dwelling. Vattel says (Law of Nations, Chitty's Edit., Book 4, Chap. 7, p. 470, para. 92):—
The inviolability of a public minister, or the protection to which he has a more sacred and particular claim than any other person, whether native or foreigner, is not the only privilege he enjoys; the universal practice of nations allows him, moreover, an entire independence of the jurisdiction and authority of the state in which he resides.
And he adds at page 471:—
On the whole, therefore, it is impossible to conceive that the prince who sends an ambassador, or any other minister, can have any intention of subjecting him to the authority of a foreign power: and this consideration furnishes an additional argument which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the footing of independency: and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation.
This last passage is quoted by Marshall C.J. in his judgment in the celebrated case of The Schooner Exchange v. McFaddon[4]; and the principle it expresses forms in part the foundation of the decision. The Chief Justice observes at pages 138-39:—
The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain—privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.
The judgment of Marshall C.J. was pronounced in the year 1812. The position of an ambassador came to be considered fifty years later by a Court of great authority presided over by Lord Campbell, as Lord Chief Justice, and including Mr. Justice Erle, Mr. Justice Wightman and Mr. Justice Crompton, in the Magdalena Steam Navigation Company case[5]. Lord Campbell, delivering the judgment of the Court, said, at p. 111:—
The great principle is to foe found in Grotius de Jure Belli et Pacts, lib. 2, c. 18, s. 9, "Omnis coactio abesse a legato debet." He is to foe left at liberty to devote himself foody and soul to the business of his embassy. He does not owe even a temporary allegiance to the Sovereign to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He 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 juridical purposes supposed still to foe in his own country. For these reasons, the rule laid down by all jurists of authority who have written upon the subject is, that an ambassador is exempt from the jurisdiction of the Courts of the country in which he resides as ambassador. Whatever exceptions there may foe, they acknowledge and prove this rule.
He adds, at page 113:—
There is great difficulty in seeing how the writ can properly foe served, for the ambassador's house is sacred, and is considered part of the territory of the sovereign he represents.
In 1894 the subject was discussed by the Court of Appeal in Musurus Bey v. Gadban[6]. At p. 356, A. L. Smith, L.J., referring to the judgment of Lord Campbell in the case just mentioned, said:—
This case renders it unnecessary to resort to text-writers, and to other cases prior thereto, for it lays down in clear and unambiguous language the principles upon which an ambassador is free from being impleaded in the Courts of this country.
The next paragraph leaves no room for doubt as to what he conceived these principles to be:—
Lord Campbell, in delivering the considered judgment of the Court of Queen's Bench, which consisted of himself, Wightman, Erle, and Crompton JJ., used this language of an ambassador: "He does not owe even a temporary allegiance to the Sovereign to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He 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 juridical purposes supposed still to be in his own country." These being the principles upon which an ambassador is independent of the civil jurisdiction of the country to which he is sent, in my judgment it is clearly inconsistent with them to hold that an ambassador, who has at least as great privileges of exemption from suits as the Sovereign whom he represents, can, even apart from the 7 Anne, c. 12, have a writ sued out against him commanding him in the name of Her Majesty to appear in her Courts to answer the claim of one of her subjects, even although such writ is not to be served.
The judgment of Davey, L. J., in the same case is equally explicit. He says, at p. 361:—
Lord Campbell, at p. 111, states the principle to be that for all juridical purposes an ambassador is supposed still to be in his own country, and he concluded his judgment in these words: "It certainly has not hitherto been expressly decided that a public minister duly accredited to the Queen by a foreign State is privileged from all liability to be sued here in civil actions; but we think that this follows from well-established principles." These passages, in my opinion, correctly state the legal principles on which the exemption is founded, and are in accordance with the course of decisions in our Courts: see, for example, the latest case of The Parlement Beige[7], in the Court of Appeal, in which it was said (I am reading from the marginal note, which is fully borne out by the judgment) that as a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory.
In the treatise on constitutional law in Halsbury's Laws of England, of which the principal author is Dr. Holdsworth, Lord Campbell's phrases are repeated without alteration. Article 625 reads as follows:—
The immunities accorded to public ministers by the usages of nations, which have come to be known as international law, are expressly recognized in the law of England.
In accordance with the principle Omnis coactio abesse a legato debet, a public minister does not owe even a temporary allegiance to the Sovereign to whom he is accredited, and has at least as great an immunity from suits as the Sovereign whom he represents. He is not supposed even to live within the territory of the State in which he exercises his functions, and is for all juridical purposes supposed to be still in his own country.
This is the language of the first edition, which is reproduced in Lord Hailsham's edition, published in 1932.
It is proper to add here a sentence from the judgment of the Court of Appeal in The Parlement Beige[8]:—
The real principle on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity—that is to say, with his absolute independence of every superior authority. One of the diplomatic immunities recognized by English law, as already intimated, is the inviolability of the ambassador's residence, that is to say, of the legation. Vattel puts it this way:—(Chap. IX, p. 494, para. 117)
The independency of the ambassador would be very imperfect, and his security very precarious, if the house in which he lives were not to enjoy a perfect immunity, and to be inaccessible to the ordinary officers of justice. The ambassador might be molested under a thousand pretexts; his secrets might be discovered by searching his papers, and his person exposed to insults. Thus, all the reasons which establish his independence and inviolability, concur likewise in securing the freedom of his house. In all civilized nations, this right is acknowledged as annexed to the ambassadorial character; and an ambassdor's house, at least in all the ordinary affairs of life, is, equally with his person, considered as being out of the country. * * *
The house of an ambassador ought to be safe from all outrage, being under the particular protection of the law of nations, and that of the country; to insult it, is a crime both against the state and against all other nations.
The qualification "at least in all the ordinary affairs of life" must be read as excluding the fiction of exterritoriality in its extreme form. This extreme doctrine, according to which a ship of war is a floating part of the territory of the sovereignty to which she belongs, is finally rejected as a doctrine of the law of nations, recognized by the law of England, in the judgment of the Judicial Committee of the Privy Council, delivered by Lord Atkin, in Chung Chi Cheung v. The King[9] supra. I shall revert to this point.
The current view is well expressed by Sir Cecil Hurst in a disquisition published in Académie de Droit International, Recueil des Cours, Vol. 2, 1926, p. 161, and cited in the last edition of Oppenheim's International Law at p. 629:—
Tout le monde est d'accord pour admettre que la résidence officielle d'un agent diplomatique jouit du privilège diplomatique et qu'elle est exempte de la juridiction locale. Le privilège s'étend à tous les locaux occupés par l'agent diplomatique a titre officiel. Ces locaux sont inviolables: les autorités locales ne peuvent ni y entrer, ni y exercer les actes de leurs fonctions sans le consentement de l'agent diplomatique.
L'accord sur ce point est si complet qu'il n'y a pas lieu d'entrer dans des détails. La question a été discutée; il est vrai, mais a une époque déjà éloignée; on trouvera des différends a ce sujet relates dans des livres tels que Les Causes célèbres du droit des Bens de Martens. Ces différends ont presque toujours été causes par une tentative faite par l'agent diplomatique en vue de mettre à l'abri de la justice quelqu'un qui s'était réfugie dans l'ambassade ou dans la légation. La résidence officielle de l'agent diplomatique a un droit égal aux immunités, quel que soit son caractère et sans égard aux conditions de la tenure. Qu'elle soit une maison ou un appartement, qu'elle appartienne au gouvernement ou a l'agent diplomatique lui-même, ou qu'elle soit tenue à bail, la résidence officielle a toujours droit au bénéfice des immunités aussi longtemps qu'elle est habitée par une personne y ayant droit.
Ce n'est pas la résidence officielle seule qui est ainsi privilégiée, mais tous les biens sans lesquels l'agent diplomatique ne pourrait pas remplir sa mission. Comme le dit Vattel: "Toutes les choses qui appartiennent à la personne du ministre en sa qualité de ministre public, tout ce qui sert à son usage, tout ce qui sert à son entretien état celui de sa maison, tout cela a l’indépendance du ministre et est absolument exempt de toute juridiction dans le pays." De même qu'un agent diplomatique ne pourrait pas remplir sa mission sans des fonctionnaires pour l’assister et des domestiques pour le servir, il a besoin des archives et de la correspondance officielle dans sa chancellerie, d'ameublement pour sa maison, de voitures et d'automobiles pour se déplacer, de fonds déposes en banque pour défrayer les dépenses de son établissement.
Ces biens sont donc tous soustraits la juridiction locale, et, puisque l'agent diplomatique seul peut décider si une chose lui est ou non nécessaire pour remplir ses devoirs, les privilèges doivent s'étendre à tous ses biens dans le pays de son poste.
Néanmoins les immunités ne sont accordées aux biens meubles que sous la présomption qu'ils sont employés aux de la mission. Dans le cas où un emploi abusif en est fait, l'agent diplomatique ne doit pas se plaindre si les privilèges ne sont pas respectés.
Hall's International Law, 8th edit., p. 233:
In Europe * * * it has been completely established that the house of a diplomatic agent gives no protection either to ordinary criminals, or to persons accused of crimes against the state. A, minister must refuse to harbour applicants for refuge, or if he allows them to enter he must give them up on demand.
As Lord Atkin points out in the judgment mentioned, the fiction of exterritoriality, when applied in its extreme form, would deprive the local courts of jurisdiction where a burglary is committed on an embassy and, while the fiction is not a satisfactory or admissible explanation of diplomatic immunities, it does not, of course, follow that the principles laid down by Mansfield C.J., Marshall C.J., Lord Campbell, and other great Judges, as well as by Vattel and other authoritative text-writers, are not to be accepted merely because a form of expression, which experience has shown to be objectionable, is employed. The reasons given by Lord Campbell in the Magdalena Company case[10], explaining the basis of the diplomatic privilege, which consists in immunity from legal process, are expressly approved in the House of Lords as recently as 1928 by Lord Phillimore (Engelke v. Musmann[11]). The alternative juridical basis suggested by Marshall C.J. is that the immunity is established on the principle that the minister is considered as in the place of the sovereign he represents and on that basis it is impliedly granted by the governing power of the nation to which the minister is deputed. In the passage quoted above from Vattel, and adopted by Marshall C.J., it is said:—
It is impossible to conceive that the prince who sends an ambassador, or any other minister, can have any intention of subjecting him to the authority of a foreign power.
In the words of Marshall C.J. himself in the same judgment, also quoted above:—
A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain.
This, then, is the juridical principle, upon which the immunity rests and, to quote Marshall C.J. again[12], as regards any particular exemption from territorial jurisdiction implied in favour of a foreign sovereignty:—
Its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act.
An authoritative French Author, Pradier-Fodéré, Cours de Droit Diplomatique, Tome 2, p. 45, says:—
L'indépendance [de l'agent diplomatique] consiste dans le droit et dans le fait de ne point être place sous la juridiction et sous l’autorité de l'État où il réside, de n'être soumis à aucune juridiction, à aucune autorité étrangères. Que le gouvernement auprès duquel le ministre public est accrédité n'ait aucun pouvoir sur lui; que l'agent diplomatique ne puisse être distrait de ses fonctions par aucune chicane; qu'il n'ait rien à craindre du souverain à qui il est envoyé: voilà ce qui constitue l'indépendance.
As regards the immunity of the legation itself, as Vattel says in the passage quoted above, all the reasons which establish his independence and inviolability "concur likewise in securing the freedom of [the ambassador's] house." The right is acknowledged in all civilized nations as annexed to the ambassadorial character and the legation, for all the ordinary affairs of life, is equally, with the ambassador, himself, not subjected to the authority of the territorial sovereignty. Parallel with this rule touching the immunity of legations, there runs the principle of the immunity of the property of a foreign state devoted to public use in the traditional sense. In The Parlement Beige [13] supra, it was held that this immunity applies to a ship used by a foreign government in carrying mail. The Supreme Court of the United States has held that it is enjoyed by a ship, the property of a foreign sovereignty and employed by the foreign government for trading purposes. Berizzi Brothers Co. v. S.S. Pesaro[14]. It most certainly cannot be said that this is a settled doctrine, in view of the opinions expressed in the Cristina case[15], although Lord Atkin, who delivered the judgment of the Judical Committee in Chung Chi Cheung v. The King [16] supra, at p. 175 uses a general phrase:—
The sovereign himself, his envoy, and his property, including his public armed ships, are not to be subjected to legal process.
There is no controversy, however, that this immunity from legal process extends to the property of the foreign sovereign devoted to diplomatic uses. I shall return later to a consideration of the principle involved in this immunity.
Turning to the application of these general principles to the subject now before us.
The taxes in question may be broadly divided into two classes: those which constitute payment for services rendered for the beneficial enjoyment of the particular property in respect of which they are assessed, and those which are levied for general purposes. As regards the first class, water rates may perhaps be taken as typical. There is, of course, no obligation upon a state which receives an envoy from a foreign state to provide him gratuitously with water, or electricity, and it would be generally agreed that where a tax is in the nature of the price of a commodity, the person enjoying the benefit of that commodity ought to pay the price. As regards taxes (strictly so-called), they are imposed by the authority of the state, whether immediately, or mediately, through a municipality, or other agency. The imposition of a tax presupposes a person from whom, or a thing from which, it is exacted, or collected. It is so exacted, or collected, in virtue of superior political authority. It does not require much argument to establish that, consistently with the general principles enunciated in the authorities already quoted, such an exaction cannot be demanded by one equal sovereignty from another, or from its diplomatic agent; and there is a general acceptance of the view that such tribute is not exigible, consistently with the principles of the law of nations. We are concerned at present with taxes demanded in respect of real property, and we need not consider how far it is consistent with general principles to exact from diplomatic agents licence fees, bridge tolls, stamp duties, and other imposts which, it may at least plausibly be argued, are taken in payment for specific services rendered directly to the particular individual who pays for them and belong to the same category as water rates and electric rates; nor need we touch on the subject of customs duties. The precise question we have to consider is whether a tax imposed by a statute in general terms in respect of the ownership and of the occupation of real property, or levied upon real property itself, extends to the case where such property is owned, and occupied, by a foreign state, or its diplomatic agent, and is employed for the public diplomatic purposes.
A series of statutes of the Imperial parliament, some of which are collected in the 18th Vol. of Hertslet's Treaties, (1893) edit., p. 462, illustrate the manner in which Parliament has for more than one hundred and fifty years viewed such questions. The subject is considered in the case of Parkinson v. Potter[17]. The statute there in question was a local Act relating to the Parish of Saint Marylebone, 35 Geo. 3, chapter 73, sec. 190. The enactment provided that rates, or assessments, made in virtue of the Act in respect of any property inhabited by an "ambassador, envoy, resident, agent, or other public minister of any foreign prince or state, * * *" or "any other person not liable by law to pay such rate or assessment" should be paid by and recoverable from the landlord of such property. The question was whether an attaché of the Portugese Embassy occupying property within the description of the Act was a person "not liable by law" to pay the parochial rates assessed in respect of the property. Mr. Justice Mathew, at pp. 157-8, said:— It