International Law. A Treatise Volume I Part 54

[Footnote 711: Martens, I. -- 80; Bluntschli, -- 134; Despagnet, No. 254; Hall, -- 97.]

[Footnote 712: Bonfils, No. 632; Nys, II. p. 287; Merignhac, II. p. 298; Liszt, -- 13; Walther, op. cit., p. 195.]

IV

FOREIGN OFFICES

Heffter, -- 201--Geffcken in Holtzendorff, III. p. 668--Ullmann, -- 43--Rivier, I. -- 34--Bonfils, Nos. 648-651--Nys, II. pp. 330-334.

[Sidenote: Position of the Secretary for Foreign Affairs.]

-- 357. As a rule nowadays no head of a State, be he a monarch or a president, negotiates directly and in person with a foreign Power, although this happens occasionally. The necessary negotiations are regularly conducted by the Foreign Office, an office which since the Westphalian Peace has been in existence in every civilised State. The chief of this office, the Secretary for Foreign Affairs, who is a Cabinet Minister, directs the foreign affairs of the State in the name of the head and with the latter's consent; he is the middle-man between the head of the State and other States. And although many a head of a State directs in fact all the foreign affairs himself, the Secretary for Foreign Affairs is nevertheless the person through whose hands all transactions must pa.s.s. Now, as regards the position of such Foreign Secretary at home, it is the Munic.i.p.al Law of a State which regulates this. International Law defines his position regarding international intercourse with other States. He is the chief over all the amba.s.sadors of the State, over its consuls, and over its other agents in matters international. It is he who, either in person or through the envoys of his State, approaches foreign States for the purpose of negotiating matters international. And again it is he whom foreign States through their Foreign Secretaries or their envoys approach for the like purpose.

He is present when Ministers hand in their credentials to the head of the State. All doc.u.ments of importance regarding foreign matters are signed by him or his subst.i.tute, the Under-Secretary for Foreign Affairs. It is, therefore, usual to notify the appointment of a new Foreign Secretary of a State to such foreign States as are represented within its boundaries by diplomatic envoys; the new Foreign Secretary himself makes this notification.

CHAPTER II

DIPLOMATIC ENVOYS

I

THE INSt.i.tUTION OF LEGATION

Phillimore, II. ---- 143-153--Taylor, -- 274--Twiss, -- 199--Geffcken in Holtzendorff, III. pp. 605-618--Nys, II. pp. 335-339--Rivier, I. -- 35--Ullmann, -- 44--Martens, II. -- 6--Gentilis, "De legationibus libri III." (1585)--Wicquefort, "L'Amba.s.sadeur et ses fonctions" (1680)--Bynkershoek, "De foro legatorum"

(1721)--Garden, "Traite complet de diplomatie" (3 vols.

1833)--Mirus, "Das europaische Gesandtschaftsrecht" (2 vols.

1847)--Charles de Martens, "Le guide diplomatique" (2 vols. 1832; 6th ed. by Geffcken, 1866)--Montague Bernard, "Four Lectures on Subjects connected with Diplomacy" (1868), pp. 111-162 (3rd Lecture)--Alt, "Handbuch des Europaischen Gesandtschaftsrechts"

(1870)--Pradier-Fodere, "Cours de droit diplomatique" (2 vols. 2nd ed. 1899)--Krauske, "Die Entwickelung der standigen Diplomatie,"

&c. (1885)--Lehr, "Manuel theorique et pratique des agents diplomatiques" (1888)--Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905), vol. II.

(1906; the other vols. have not yet appeared).

[Sidenote: Development of Legations.]

-- 358. Legation as an inst.i.tution for the purpose of negotiating between different States is as old as history, whose records are full of examples of legations sent and received by the oldest nations. And it is remarkable that even in antiquity, where no such law as the modern International Law was known, amba.s.sadors enjoyed everywhere a special protection and certain privileges, although not by law but by religion, amba.s.sadors being looked upon as sacrosanct. Yet permanent legations were unknown till very late in the Middle Ages. The fact that the Popes had permanent representatives--so-called _apocrisiarii_ or _responsales_--at the Court of the Frankish Kings and at Constantinople until the final separation of the Eastern from the Western Church, ought not to be considered as the first example of permanent legations, as the task of these papal representatives had nothing to do with international affairs, but with those of the Church only. It was not until the thirteenth century that the first permanent legations made their appearance. The Italian Republics, and Venice in especial, created the example[713] by keeping representatives stationed at one another's capitals for the better negotiation of their international affairs. And in the fifteenth century these Republics began to keep permanent representatives in Spain, Germany, France, and England. Other States followed the example. Special treaties were often concluded stipulating permanent legations, such as in 1520, for instance, between the King of England and the Emperor of Germany. From the end of the fifteenth century England, France, Spain, and Germany kept up permanent legations at one another's Courts. But it was not until the second half of the seventeenth century that permanent legations became a general inst.i.tution, the Powers following the example of France under Louis XIV.

and Richelieu. It ought to be specially mentioned that Grotius[714]

thought permanent legations to be wholly unnecessary. The course of events has, however, shown that Grotius's views as regards permanent legations were short-sighted. Nowadays the Family of Nations could not exist without them, as they are the channel through which nearly the whole, and certainly all important, official intercourse of the States flows.

[Footnote 713: See Nys, "Les Origines du droit international" (1894), p.

295.]

[Footnote 714: "De jure belli ac pacis," II. c. 28, -- 3: "Optimo autem jure rejici possunt, quae nunc in usu sunt, legationes a.s.siduae, quibus c.u.m non sit opus, docet mos antiquus, cui illae ignoratae."]

[Sidenote: Diplomacy.]

-- 359. The rise of permanent legations created the necessity for a new cla.s.s of State officials, the so-called diplomatists; yet it was not until the end of the eighteenth century that the terms "diplomatist"

and "diplomacy" came into general use. And although the art of diplomacy is as old as official intercourse between States, such a special cla.s.s of officials as are now called diplomatists did not and could not exist until permanent legations had become a general inst.i.tution. In this as in other cases the office has created the cla.s.s of men necessary for it.

International Law has nothing to do with the education and general character of these officials. Every State is naturally competent to create its own rules, if any, as regards these points. Nor has International Law anything to do with _diplomatic usages_, although these are more or less of importance, as they may occasionally grow into customary rules of International Law. But I would notice one of these usages--namely, that as regards the _language_ which is in use in diplomatic intercourse. This language was formerly Latin, but through the political ascendency of France under Louis XIV. it became French.

However, this is a usage of diplomacy only, and not a rule of International Law.[715] Each State can use its own language in all official communications to other States, and States which have the same language regularly do so in their intercourse with each other. But between States of different tongues and, further, at Conferences and Congresses, it is convenient to make use of a language which is generally known. This is nowadays French, but nothing could prevent diplomatists from dropping French at any moment and adopting another language instead.

[Footnote 715: See Mirus, "Das europaische Gesandtschaftsrecht," I. ---- 266-268.]

II

RIGHT OF LEGATION

Grotius, II. c. 18--Vattel, IV. ---- 55-68--Hall, -- 98--Phillimore, II. ---- 115-139--Taylor, ---- 285-288--Twiss, ---- 201-202--Wheaton, ---- 206-209--Bluntschli, ---- 159-165--Heffter, -- 200--Geffcken in Holtzendorff, III. pp 620-631--Ullmann, -- 45--Rivier, I. -- 35--Nys, II. p. 339--Bonfils, Nos. 658-667--Pradier-Fodere, II.

Nos. 1225-1256--Fiore, II. Nos. 1112-1117--Calvo, III. ---- 1321-1325--Martens, II. ---- 7-8.

[Sidenote: Conception of Right of Legation.]

-- 360. Right of legation is the right of a State to send and receive diplomatic envoys. The right to send such envoys is termed _active_ right of legation, in contradistinction to the _pa.s.sive_ right of legation, as the right to receive such envoys is termed. Some writers[716] on International Law a.s.sert that no right but a mere competence to send and receive diplomatic envoys exists according to International Law, maintaining that no State is bound by International Law to send or receive such envoys. But this is certainly wrong in its generality. Obviously a State is not bound to send diplomatic envoys or to receive _permanent_ envoys. But, on the other hand, the very existence[717] of the Family of Nations makes it necessary for the members or some of the members to negotiate occasionally on certain points. Such negotiation would be impossible in case one member could always and under all circ.u.mstances refuse to receive an envoy from the other members. The duty of every member to listen, under ordinary circ.u.mstances, to a message from another brought by a diplomatic envoy is, therefore, an outcome of its very members.h.i.+p of the Family of Nations, and this duty corresponds to the right of every member to send such envoys. But the exercise of the active right of legation is discretionary. No State need send diplomatic envoys at all, although practically all States do at least occasionally send such envoys, and most States send permanent envoys to many other States. The pa.s.sive right of legation is discretionary as regards the reception of _permanent_ envoys only.

[Footnote 716: See, for instance, Wheaton, -- 207; Heilborn, "System," p.

182.]

[Footnote 717: See above, -- 141.]

[Sidenote: What States possess the Right of Legation.]

-- 361. Not every State, however, possesses the right of legation. Such right pertains chiefly to full-Sovereign States,[718] for other States possess this right under certain conditions only.

[Footnote 718: It should be emphasised that the Holy See, which is in some respects treated as though an International Person, can send and receive envoys, who must in every respect be considered as though they were diplomatic envoys. That they are actually not diplomatic envoys, although so treated, becomes apparent from the fact that they are not agents for international affairs of States, but exclusively for affairs of the Roman Catholic Church. (See above, -- 106.)]

(1) Half-Sovereign States, such as States under the suzerainty or the protectorate of another State, can as a rule neither send nor receive diplomatic envoys. Thus, Crete and Egypt are dest.i.tute of such right, and the Powers are represented in these States only by consuls or agents without diplomatic character. But there may be exceptions to this rule.

Thus, according to the Peace Treaty of Kainardgi of 1774 between Russia and Turkey, the two half-Sovereign princ.i.p.alities of Moldavia and Wallachia had the right of sending Charges d'Affaires to foreign Powers.

Thus, further, the late South African Republic, which was a State under British suzerainty in the opinion of Great Britain, used to keep permanent diplomatic envoys in several foreign States.

(2) Part-Sovereign member-States of a Federal State may or may not have the right of legation besides the Federal State. It is the const.i.tution of the Federal State which regulates this point. Thus, the member-States of Switzerland and of the United States of America have no right of legation, but those of the German Empire certainly have. Bavaria, for example, sends and receives several diplomatic envoys.

[Sidenote: Right of Legation by whom exercised.]

-- 362. As, according to International Law, a State is represented in its international relations by its head, it is he who acts in the exercise of his State's right of legation. But Munic.i.p.al Law may, just as it designates the person who is the head of the State, impose certain conditions and restrictions upon the head as regards the exercise of such right. And the head himself may, provided that it is sanctioned by the Munic.i.p.al Law of his State, delegate[719] the exercise of such right to any representative he chooses.

[Footnote 719: See Phillimore, II. ---- 126-133, where several interesting cases of such delegation are discussed.]

It may, however, in consequence of revolutionary movements, be doubtful who the real head of a State is, and in such cases it remains in the discretion of foreign States to make their choice. But it is impossible for foreign States to receive diplomatic envoys from both claimants to the heads.h.i.+p of the same State, or to send diplomatic envoys to both of them. And as soon as a State has recognised the head of a State who came into his position through a revolution, it can no longer keep up diplomatic relations with the former head.

It should be mentioned that a revolutionary party which is recognised as a belligerent Power has nevertheless no right of legation, although foreign States may negotiate with such party in an informal way through political agents without diplomatic character, to provide for the temporal security of the persons and property of their subjects within the territory under the actual sway of such party. Such revolutionary party as is recognised as a belligerent Power is in some points only treated as though it were a subject of International Law; but it is not a State, and there is no reason why International Law should give it the right to send and receive diplomatic envoys.

It should further be mentioned that neither an abdicated nor a deposed head has a right to send and receive diplomatic envoys.[720]

[Footnote 720: See Phillimore, II. ---- 124-125, where the case of Bishop Ross, amba.s.sador of Mary Queen of Scots, is discussed.]