PART III ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS

CHAPTER I HEADS OF STATES, AND FOREIGN OFFICES

I POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW

Hall, § 97—Phillimore, II. §§ 101 and 102—Bluntschli, §§ 115-125—Holtzendorff in Holtzendorff, II. pp. 77-81—Ullmann, § 40—Rivier, I. § 32—Nys, II. pp. 325-329—Fiore, II. No. 1097—Bonfils, No. 632—Mérignhac, II. pp. 294-305—Bynkershoek, "De foro legatorum" (1721), c. III. § 13.

§ 341. As a State is an abstraction from the fact that a multitude of individuals live in a country under a Sovereign Government, every State must have a head as its highest organ, which represents it within and without its borders in the totality of its relations. Such head is the monarch in a monarchy and a president or a body of individuals, as the Bundesrath of Switzerland, in a republic. The Law of Nations prescribes no rules as regards the kind of head a State may have. Every State is, naturally, independent regarding this point, possessing the faculty of adopting any Constitution it likes and of changing such Constitution according to its discretion. Some kind or other of a head of the State is, however, necessary according to International Law, as without a head there is no State in existence, but anarchy.

§ 342. In case of the accession of a new head of a State, other States are as a rule notified. The latter usually recognise the new head through some formal act, such as a congratulation. But neither such notification nor recognition is strictly necessary according to International Law, as an individual becomes head of a State, not through the recognition of other States, but through Municipal Law. Such notification and recognition are, however, of legal importance. For through notification a State declares that the individual concerned is its highest organ, and has by Municipal Law the power to represent the State in the totality of its international relations. And through recognition the other States declare that they are ready to negotiate with such individual as the highest organ of his State. But recognition of a new head by other States is in every respect a matter of discretion. Neither has a State the right to demand from other States recognition of its new head, nor has any State a right to refuse such recognition. Thus Russia, Austria, and Prussia refused until 1848 recognition to Isabella, Queen of Spain, who had come to the throne as an infant in 1833. But, practically, in the long run recognition cannot be withheld, for without it international intercourse is impossible, and States with self-respect will exercise retorsion if recognition is refused to the heads they have chosen. Thus, when, after the unification of Italy in 1861, Mecklenburg and Bavaria refused the recognition of Victor Emanuel as King of Italy, Count Cavour revoked the exequatur of the consuls of these States in Italy.

But it must be emphasised that recognition of a new head of a State by no means implies the recognition of such head as the legitimate head of the State in question. Recognition is in fact nothing else than the declaration of other States that they are ready to deal with a certain individual as the highest organ of the particular State, and the question remains totally undecided whether such individual is or is not to be considered the legitimate head of that State.

§ 343. The head of a State, as its chief organ and representative in the totality of its international relations, acts for his State in the latter's international intercourse, with the consequence that all his legally relevant international acts are considered acts of his State. His competence to perform such acts is termed jus repraesentationis omnimodae. It comprises in substance chiefly: reception and mission of diplomatic agents and consuls, conclusion of international treaties, declaration of war, and conclusion of peace. But it is a question of the special case, how far this competence is independent of Municipal Law. For heads of States exercise this competence for their States and as the latter's representatives, and not in their own right. If a head of a State should, for instance, ratify a treaty without the necessary approval of his Parliament, he would go beyond his powers, and therefore such treaty would not be binding upon his State.[700]

On the other hand, this competence is certainly independent of the question whether a head of a State is the legitimate head or a usurper. The mere fact that an individual is for the time being the head of a State makes him competent to act as such head, and his State is legally bound by his acts. It may, however, be difficult to decide whether a certain individual is or is not the head of a State, for after a revolution some time always elapses before matters are settled.

§ 344. Heads of States are never subjects[701] of the Law of Nations. 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 Municipal 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.

§ 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 Municipal Law of monarchies is totally different from the position of heads of republics according to the Municipal Law of the republics. For monarchs are sovereigns, but heads of republics are not.

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—Mérignhac, II. pp. 94-105—Pradier-Fodéré, III. Nos. 1564-1591.

§ 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 Municipal 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 constitutional positions of monarchs is enormous, if looked upon in the light of the rules laid down by the Constitutional 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.

§ 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 title and actual power there may be between them.

§ 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.

(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 ambassador; 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]

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.

§ 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]

§ 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 assume 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.

§ 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 Municipal 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.

§ 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.

§ 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 Cumberland became King of Hanover, but at the same time he was by hereditary title 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.

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.

§ 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.

§ 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.

§ 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 hitherto 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 nobody 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.

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.

§ 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 pass. Now, as regards the position of such Foreign Secretary at home, it is the Municipal 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 ambassadors 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 documents of importance regarding foreign matters are signed by him or his substitute, 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 INSTITUTION 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'Ambassadeur et ses fonctions" (1680)—Bynkershoek, "De foro legatorum" (1721)—Garden, "Traité complet de diplomatie" (3 vols. 1833)—Mirus, "Das europäische 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 Europäischen Gesandtschaftsrechts" (1870)—Pradier-Fodéré, "Cours de droit diplomatique" (2 vols. 2nd ed. 1899)—Krauske, "Die Entwickelung der ständigen Diplomatie," &c. (1885)—Lehr, "Manuel théorique 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).

§ 358. Legation as an institution 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, ambassadors enjoyed everywhere a special protection and certain privileges, although not by law but by religion, ambassadors 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 institution, 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.

§ 359. The rise of permanent legations created the necessity for a new class 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 class of officials as are now called diplomatists did not and could not exist until permanent legations had become a general institution. In this as in other cases the office has created the class 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.

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

§ 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 passive right of legation, as the right to receive such envoys is termed. Some writers[716] on International Law assert 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 circumstances refuse to receive an envoy from the other members. The duty of every member to listen, under ordinary circumstances, to a message from another brought by a diplomatic envoy is, therefore, an outcome of its very membership 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 passive right of legation is discretionary as regards the reception of permanent envoys only.

§ 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.

(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 destitute 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 principalities of Moldavia and Wallachia had the right of sending Chargés 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 constitution 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.

§ 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 Municipal 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 Municipal Law of his State, delegate[719] the exercise of such right to any representative he chooses.

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 headship 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]

III KINDS AND CLASSES OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 69-75—Phillimore, II. §§ 211-224—Twiss, I. §§ 204-209—Moore, IV. § 624—Heffter, § 208—Geffcken in Holtzendorff, III. pp. 635-646—Calvo, III. §§ 1326-1336—Bonfils, Nos. 668-676—Pradier-Fodéré, III. §§ 1277-1290—Rivier, I. pp. 443-453—Nys, II. pp. 342-352.

§ 363. Two different kinds of diplomatic envoys are to be distinguished—namely, such as are sent for political negotiations and such as are sent for the purpose of ceremonial function or notification of changes in the headship. For States very often send special envoys to one another on occasion of coronations, weddings, funerals, jubilees, and the like; and it is also usual to send envoys to announce a fresh accession to the throne. Such envoys ceremonial have the same standing as envoys political for real State negotiations. Among the envoys political, again, two kinds are to be distinguished—namely, first, such as are permanently or temporarily accredited to a State for the purpose of negotiating with such State, and, second, such as are sent to represent the sending State at a Congress or Conference. The latter are not, or need not be, accredited to the State on whose territory the Congress or Conference takes place, but they are nevertheless diplomatic envoys and enjoy all the privileges of such envoys as regards exterritoriality and the like which concern the inviolability and safety of their persons and the members of their suites.