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Protection of Foreign Diplomatic and Consular Premises Against Picketing

Published online by Cambridge University Press:  08 September 2021

Lawrence Preuss
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American Journal of International Law , Volume 31 , Issue 4 , October 1937 , pp. 705 - 713
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Copyright © American Society of International Law 1937 

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References

1 See H. Lauterpacht, “Revolutionary Propaganda by Governments,” Transactions of the Grotius Society, XIII (1928), p. 143 ff.; Lawrence Preuss, “International Responsibility for Hostile Propaganda against Foreign States,” this JOURNAL, Vol. 28 (1934), p. 649 ff.

2 Akzin, B., “Propaganda by Diplomats,” International Law and Relations, Vol. 5, No. 7 (1936).Google Scholar

3 Stowell, Elleiy C., “Respect Due to Foreign Sovereigns,” this JOURNAL, Vol. 31 (1937), p. 301.Google Scholar

4 Clyde Eagleton, “The Responsibility of States for the Protection of Foreign Officials,” ibid., Vol. 19 (1925), p. 293 ff.

5 See the report of Inspector Kelly, of the District of Columbia Police Department, on the recent picketing of the Italian, Polish and German Embassies at Washington. 81 Cong. Rec, No. 152, p. 10896.

6 Senate Report No. 1072, 75th Cong., 1st Sess. 81 Cong. Rec, No. 151, p. 10863.

7 S. J. Res. 191. Joint Resolution to protect foreign diplomatic and consular officers and the buildings and premises occupied by them in the District of Columbia. 81 Cong. Rec, No. 154, pp. 11027, 11034.

8 Existing legislation is inadequate for the repression of offensive picketing. The Code of the District of Columbia (to March 4, 1929), Title 6, § 117, makes punishable disorderly conduct on the public streets and insulting, profane or obscene language directed at passersby. It obviously affords no adequate legal basis for the prevention and punishment of the acts envisaged in S. J. Res. 191. On one occasion, the District police took away from pickets in front of the Italian Embassy banners inscribed “Mussolini murders babies,” on advice of the corporation counsel that they were offensive signs. The picketing was continued, however, by persons who walked quietly up and down the sidewalks carrying signs inscribed with political slogans. See report cited supra, note 5.

9 To Senator Key Pittman. 81 Cong. Rec, No. 151, p. 10864.

10 The subject is not discussed in such standard works as those of Sir Ernest Satow, A Guide to Diplomatic Practice (3d ed., 1932), and Raoul Genet, Traité de diplomaiie et de droit diplomatique, Vol. I (1931). A search of Foreign Relations reveals only one case of picketing of foreign official premises. In a note to the Secretary of State, May 11, 1911, the Mexican Minister complained that a group of Mexican rebels had on the previous day stood in front of the Mexican consulate at Douglas, Arizona, and made insulting remarks to the personnel of that office as they came into the street. To his request that the Government “issue such orders as may be necessary to secure the personnel of the Mexican consulate at Douglas from such annoyances on the territory of this friendly nation,” Secretary Knox replied that a copy of the note had been transmitted to the Government for investigation and appropriate action. For. Rel., 1911, pp. 481, 485.

11 Although consular officers are not entitled to immunity with respect to their private acts, their immunity for official acts and their right to protection against interference by private persons with the exercise thereof, are clearly established.

12 This JOURNAL, Supp., Vol. 26 (1932), p. 50.

13 Ibid., pp. 56,57. “The duty of affording protection to the premises does not, however, make the receiving state an absolute guarantor of the peace or dignity of the mission in every conceivable set of circumstances, comparable with its situation as guarantor against entry of state agents upon the premises…. It would seem, however, that the receiving state must not only use the means in its power to protect the premises, but it must provide means adequate to such protection.” Ibid., p. 57.

14 See the report of M. Guerrero on the responsibility of states for damages done in their territories to the person or property of foreigners. League of Nations Document, C. 196. M.70.1927. V, p. 96. Also Konstantin Frh. von Neurath, “ Der italienisch-griechische Konflikt vom Jahre 1928 und seine völkerrechtliche Bedeutung,” Völkerrechtsfragen, Vol. 25 (1929), p. 36 ff.

15 “A state is … responsible if it knew or should have known that a crime was about to be committed and, in either event, failed to take appropriate steps under all the circum stances to prevent the crime.… Since the prevention of the crime is far more desirable than any later punishment of the guilty, no matter how promptly or effectively this latter may be accomplished, where it can be proven that the state was on notice of a pending disorder, or crime, and, being able, nevertheless failed to prevent or suppress its commission, higher indemnities should be allowed than in those cases where there was no notice or opportunity to prevent the crime.” Marjorie M. Whiteman, Damages in International Law, I (1937), pp. 25, 36. See United States (Helen 0. Mead) v. United Mexican States, General Claims Commission, United States and Mexico (1930), Opinions of Commissioners, 1931, pp. 150,153.

16 United Mexican States (Francisco Mallén) v. United States, General Claims Commission, United States and Mexico (1927), Opinions of Commissioners, 1927, pp. 254, 258; this JOURNAL, Vol. 21 (1927), p. 803; United States (William E. Chapman) v. United Mexican States, General Claims Commission, United States and Mexico (1930), Opinions of Commissioners, 1931, pp. 121, 128.

17 “The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners,” Research in International Law, Harvard Law School, this JOURNAL, Spl. Supp., Vol. 23 (1929), p. 187.

18 See the reply of the Government of the United States to the schedule of points on the responsibility of states drawn up by Preparatory Committee for the Conference for the Codification of International Law. League of Nations Document, C.75(a).M.69(a). 1929. V, p. 21; also Harold W. Stoke, The Foreign Relations of the Federal State (1931), p. 138 ff.

19 “A right secured by the law of nations to a nation or its people, is one the United States as the representatives of this nation are bound to protect. Consequently, a law which is necessary and proper to afford this protection is one that Congress may enact …. If the thing made punishable is one which the United States are required by their international obligations to use due diligence to prevent, it is an offense against the law of nations.” Waite, C. J., in United States v. Arjona (1887), 120 U. S. 479,487,7 S. Ct. 628,30 L. ed. 728.

20 Cf. E. D. Dickinson, “The Defamation of Foreign Governments,” this JOURNAL, Vol. 22 (1928), pp. 843, 844. It would seem that the constitutional disability would be removed if the United States were to contract a treaty obligation to furnish adequate protection against picketing to foreign official premises. See Missouri v. Holland (1920), 252 U. S. 416, 40 S. Ct. 382, 64 L. ed. 641.

21 See H. V. Evatt, “The International Responsibility of States in the Case of Riots or Mob Violence, The Australian Law Journal, IX (1935), Supp., p. 10 ff.

22 Telegrams expressing the protests of various organizations are printed in 81 Cong. Rec, No. 154, p. 11029.

23 Ibid., pp. 11029,11030.

24 March 5, 1937. Department of State, Press Releases, Vol. 16, No. 390, p.133. See also the reply of the Secretary of State to a protest of the Minister of the Dominican Republic against attacks upon President Trujillo appearing in American films and newspapers. Ibid., Vol. 15, No. 355, p. 42. For earlier cases, see Lawrence Preuss, “La répression des crimes et délits contre la sûreté des états étrangers,” Revue générale de droit international public, XL (1933), p. 639.

25 See the cases cited by E. D. Dickinson, this JOURNAL, Vol. 22 (1928), pp. 842, 843, and by Ellery C. Stowell, ibid., Vol. 31 (1937), pp. 302, 303.

26 Preuss, loc. cit. (note 24, supra), p. 633 ff.

27 Ibid., p. 614 ff.; H. Lauterpacht, “Revolutionary Activities by Private Persons against Foreign States,” this JOURNAL, Vol. 22 (1928), p. 108.

28 Moore, Digest of International Law, VI, 813.