International Law. A Treatise Volume I Part 53

The position a head of a State has according to International Law is due to him, not as an individual, but as the head of his State. His position is derived from international rights and duties of his State, and not from international rights of his own. Consequently, all rights possessed by heads of States abroad are not international rights, but rights which must be granted to them by the Munic.i.p.al Law of the foreign State on whose territory such foreign heads of States are temporarily staying, and such rights must be granted in compliance with international rights of the home States of the respective heads. Thus, heads of States are not subjects but objects of International Law, and in this regard are like any other individual.

[Footnote 701: But Heffter (-- 48) maintains the contrary, and Phillimore (II. -- 100) designates monarchs _mediately and derivatively_ as subjects of International Law. The matter is treated in detail above, ---- 13 and 288-290; see also below, -- 384.]

[Sidenote: Honours and Privileges of Heads of States.]

-- 345. All honours and privileges of heads of States due to them by foreign States are derived from the fact that dignity is a recognised quality of States as members of the Family of Nations and International Persons.[702] Concerning such honours and privileges, International Law distinguishes between monarchs and heads of republics. This distinction is the necessary outcome of the fact that the position of monarchs according to the Munic.i.p.al Law of monarchies is totally different from the position of heads of republics according to the Munic.i.p.al Law of the republics. For monarchs are sovereigns, but heads of republics are not.

[Footnote 702: See above, -- 121.]

II

MONARCHS

Vattel, I. ---- 28-45; IV. -- 108--Hall, -- 49--Lawrence, -- 105--Phillimore, II. ---- 108-113--Taylor, -- 129--Moore, II. -- 250--Bluntschli, ---- 126-153--Heffter, ---- 48-57--Ullmann, ---- 41-42--Rivier, I. -- 33--Nys, II. pp. 280-296--Calvo, III. ---- 1454-1479--Fiore, II. Nos. 1098-1102--Bonfils, Nos.

633-647--Merignhac, II. pp. 94-105--Pradier-Fodere, III. Nos.

1564-1591.

[Sidenote: Sovereignty of Monarchs.]

-- 346. In every monarchy the monarch appears as the representative of the sovereignty of the State and thereby becomes a Sovereign himself, a fact which is recognised by International Law. And the difference between the Munic.i.p.al Laws of the different States regarding this point matters in no way. Consequently, International Law recognises all monarchs as equally sovereign, although the difference between the const.i.tutional positions of monarchs is enormous, if looked upon in the light of the rules laid down by the Const.i.tutional Laws of the different States. Thus, the Emperor of Russia, whose powers are very wide, and the King of England, who is sovereign in Parliament only, and whose powers are therefore very much restricted, are indifferently sovereign according to International Law.

[Sidenote: Consideration due to Monarchs at home.]

-- 347. Not much need be said as regards the consideration due to a monarch from other States when within the boundaries of his own State.

Foreign States have to give him his usual and recognised predicates[703]

in all official communications. Every monarch must be treated as a peer of other monarchs, whatever difference in t.i.tle and actual power there may be between them.

[Footnote 703: Details as regards the predicates of monarchs are given above, -- 119.]

[Sidenote: Consideration due to Monarchs abroad.]

-- 348. As regards, however, the consideration due to a monarch abroad from the State on whose territory he is staying in time of peace and with the consent and the knowledge of the Government, details must necessarily be given. The consideration due to him consists in honours, inviolability, and exterritoriality.

(1) In consequence of his character of Sovereign, his home State has the right to demand that certain ceremonial honours be rendered to him, the members of his family, and the members of his retinue. He must be addressed by his usual predicates. Military salutes must be paid to him, and the like.

(2) As his person is sacrosanct, his home State has a right to insist that he be afforded special protection as regards personal safety, the maintenance of personal dignity, and the unrestrained intercourse with his Government at home. Every offence against him must be visited with specially severe penalties. On the other hand, he must be exempt from every kind of criminal jurisdiction. The wife of a Sovereign must be afforded the same protection and exemption.

(3) He must be granted so-called exterritoriality conformably with the principle: "_Par in parem non habet imperium_," according to which one Sovereign cannot have any power over another Sovereign. He must, therefore, in every point be exempt from taxation, rating, and every fiscal regulation, and likewise from civil jurisdiction, except when he himself is the plaintiff.[704] The house where he has taken his residence must enjoy the same exterritoriality as the official residence of an amba.s.sador; no policeman or other official must be allowed to enter it without his permission. Even if a criminal takes refuge in such residence, the police must be prevented from entering it, although, if the criminal's surrender is deliberately refused, the Government may request the recalcitrant Sovereign to leave the country and then arrest the criminal. If a foreign Sovereign has real property in a country, such property is under the latter's jurisdiction. But as soon as such Sovereign takes his residence on the property, it must become exterritorial for the time being. Further, a Sovereign staying in a foreign country must be allowed to perform all his own governmental acts and functions, except when his country is at war with a third State and the State in which he is staying remains neutral. And, lastly, a Sovereign must be allowed, within the same limits as at home, to exercise civil jurisdiction over the members of his retinue. In former times even criminal jurisdiction over the members of his suite was very often claimed and conceded, but this is now antiquated.[705] The wife of a Sovereign must likewise be granted exterritoriality, but not other members of a Sovereign's family.[706]

[Footnote 704: See above, -- 115, and the cases there quoted; see also Phillimore, II. -- 113A, and Loening, "Die Gerichtsbarkeit uber fremde Staaten und Souverane" (1903).]

[Footnote 705: A celebrated case happened on November 10, 1656, in France, when Christina, Queen of Sweden, although she had already abdicated, sentenced her grand equerry, Monaldeschi, to death, and had him executed by her bodyguard.]

[Footnote 706: See Rivier, I. p. 421, and Bluntschli, -- 154; but, according to Bluntschli, exterritoriality need not in strict law be granted even to the wife of a Sovereign.]

However, exterritoriality is in the case of a foreign Sovereign, as in any other case, a fiction only, which is kept up for certain purposes within certain limits. Should a Sovereign during his stay within a foreign State abuse his privileges, such State is not obliged to bear such abuse tacitly and quietly, but can request him to leave the country. And when a foreign Sovereign commits acts of violence or such acts as endanger the internal or external safety of the State, the latter can put him under restraint to prevent further acts of the same kind, but must at the same time bring him as speedily as possible to the frontier.

[Sidenote: The Retinue of Monarchs abroad.]

-- 349. The position of individuals who accompany a monarch during his stay abroad is a matter of some dispute. Several publicists maintain that the home State can claim the privilege of exterritoriality as well for members of his suite as for the Sovereign himself, but others deny this.[707] I believe that the opinion of the former is correct, since I cannot see any reason why a Sovereign abroad should as regards the members of his suite be in an inferior position to a diplomatic envoy.[708]

[Footnote 707: See Bluntschli, -- 154, and Hall, -- 49, in contradistinction to Martens, I. -- 83.]

[Footnote 708: See below, ---- 401-405.]

[Sidenote: Monarchs travelling _incognito_.]

-- 350. Hitherto only the case where a monarch is staying in a foreign country with the official knowledge of the latter's Government has been discussed. Such knowledge may be held in the case of a monarch travelling _incognito_, and he enjoys then the same privileges as if travelling not _incognito_. The only difference is that many ceremonial observances, which are due to a monarch, are not rendered to him when travelling _incognito_. But the case may happen that a monarch is travelling in a foreign country _incognito_ without the latter's Government having the slightest knowledge thereof. Such monarch cannot then of course be treated otherwise than as any other foreign individual; but he can at any time make known his real character and a.s.sume the privileges due to him. Thus the late King William of Holland, when travelling _incognito_ in Switzerland in 1873, was condemned to a fine for some slight contravention, but the sentence was not carried out, as he gave up his _incognito_.

[Sidenote: Deposed and Abdicated Monarchs.]

-- 351. All privileges mentioned must be granted to a monarch only as long as he is really the head of a State. As soon as he is deposed or has abdicated, he is no longer a Sovereign. Therefore in 1870 and 1872 the French Courts permitted, because she was deposed, a civil action against Queen Isabella of Spain, then living in Paris, for money due to the plaintiffs. Nothing, of course, prevents the Munic.i.p.al Law of a State from granting the same privileges to a foreign deposed or abdicated monarch as to a foreign Sovereign, but the Law of Nations does not exact any such courtesy.

[Sidenote: Regents.]

-- 352. All privileges due to a monarch are also due to a Regent, at home or abroad, whilst he governs on behalf of an infant, or of a King who is through illness incapable of exercising his powers. And it matters not whether such Regent is a member of the King's family and a Prince of royal blood or not.

[Sidenote: Monarchs in the service or subjects of Foreign Powers.]

-- 353. When a monarch accepts any office in a foreign State, when, for instance, he serves in a foreign army, as the monarchs of the small German States have formerly frequently done, he submits to such State as far as the duties of the office are concerned, and his home State cannot claim any privileges for him that otherwise would be due to him.

When a monarch is at the same time a subject of another State, distinction must be made between his acts as a Sovereign, on the one hand, and his acts as a subject, on the other. For the latter, the State whose subject he is has jurisdiction over him, but not for the former.

Thus, in 1837, the Duke of c.u.mberland became King of Hanover, but at the same time he was by hereditary t.i.tle an English Peer and therefore an English subject. And in 1844, in the case _Duke of Brunswick_ v. _King of Hanover_,[709] the Master of the Rolls held that the King of Hanover was liable to be sued in the Courts of England in respect of any acts done by him as an English subject.

[Footnote 709: 6 Beavan, 1; 2 House of Lords Cases, 1; see also Phillimore, II. -- 109.]

III

PRESIDENTS OF REPUBLICS

Bluntschli, -- 134--Stoerk in Holtzendorff, II. p. 661--Ullmann, -- 42--Rivier, I. -- 33--Martens, I. -- 80--Walther, "Das Staatshaupt in den Republiken" (1907), pp. 190-204.

[Sidenote: Presidents not Sovereigns.]

-- 354. In contradistinction to monarchies, in republics the people itself, and not a single individual, appears as the representative of the sovereignty of the State, and accordingly the people styles itself the Sovereign of the State. And it will be remembered that the head of a republic may consist of a body of individuals, such as the Bundesrath in Switzerland. But in case the head is a President, as in France and the United States of America, such President represents the State, at least in the totality of its international relations. He is, however, not a Sovereign, but a citizen and subject of the very State whose head he is as President.

[Sidenote: Position of Presidents in general.]

-- 355. Consequently, his position at home and abroad cannot be compared with that of monarchs, and International Law does not empower his home State to claim for him the same, but only similar, consideration as that due to a monarch. Neither at home nor abroad, therefore, does a president of a republic appear as a peer of monarchs. Whereas all monarchs are in the style of the Court phraseology considered as though they were members of the same family, and therefore address each other in letters as "my brother," a president of a republic is usually addressed in letters from monarchs as "my friend." His home State can certainly at home and abroad claim such honours for him as are due to its dignity, but no such honours as must be granted to a Sovereign monarch.

[Sidenote: Position of Presidents abroad.]

-- 356. As to the position of a president when abroad, writers on the Law of Nations do not agree. Some[710] maintain that, since a president is not a Sovereign, his home State can never claim for him the same privileges as for a monarch, and especially that of exterritoriality.

Others[711] make a distinction whether a president is staying abroad in his official capacity as head of a State or for his private purposes, and they maintain that his home State could only in the first case claim exterritoriality for him. Others[712] again will not admit any difference in the position of a president abroad from that of a monarch abroad. How the States themselves think as regards the question of the exterritoriality of presidents of republics abroad cannot be ascertained, since to my knowledge no case has. .h.i.therto occurred in practice from which a conclusion may be drawn. But practice seems to have settled the question of ceremonial honours due to a president officially abroad; they are such as correspond to the rank of his home State, and not such as are due to a monarch. As regards exterritoriality, I believe that future contingencies will create the practice on the part of the States of granting this privilege to presidents and members of their suite as in the case of monarchs. I cannot see that there is any danger in such a grant. And n.o.body can deny that, if exterritoriality is not granted, all kinds of friction and even conflicts might arise. Although not Sovereigns, presidents of republics fill for the time being a sublime office, and the grant of exterritoriality to them is a tribute paid to the dignity of the States they represent.

[Footnote 710: Ullmann, -- 42; Rivier, I. p. 423; Stoerk in Holtzendorff, II. p. 658.]