II. DIPLOMATIC ENVOYS…

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).

[Sidenote: Development of Legations.]

§ 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.

[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 assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae."]

[Sidenote: Diplomacy.]

§ 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.

[Footnote 715: See Mirus, "Das europäische 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-Fodéré, 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 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.

[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 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.

[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 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.

[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 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]

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

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.

[Sidenote: Envoys Ceremonial and Political.]

§ 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.

[Sidenote: Classes of Diplomatic Envoys.]

§ 364. Diplomatic envoys accredited to a State differ in class. These classes did not exist in the early stages of International Law. But during the sixteenth century a distinction between two classes of diplomatic envoys gradually arose, and at about the middle of the seventeenth century, after permanent legations had come into general vogue, two such classes became generally recognised--namely, extraordinary envoys, called Ambassadors, and ordinary envoys, called Residents; Ambassadors being received with higher honours and taking precedence of the other envoys. Disputes arose frequently regarding precedence, and the States tried in vain to avoid them by introducing during the eighteenth century another class--namely, the so-called Ministers Plenipotentiary. At last the Powers assembled at the Vienna Congress came to the conclusion that the matter ought to be settled by an international understanding, and they agreed, therefore, on March 19, 1815, upon the establishment of three different classes--namely, first, Ambassadors; second, Ministers Plenipotentiary and Envoys Extraordinary; third, Chargés d'Affaires. And the five Powers assembled at the Congress of Aix-la-Chapelle in 1818 agreed upon a fourth class--namely, Ministers Resident, to rank between Ministers Plenipotentiary and Chargés d'Affaires. All the other States either expressly or tacitly accepted these arrangements, so that nowadays the four classes are an established order. Although their privileges are materially the same, they differ in rank and honours, and they must therefore be treated separately.

[Sidenote: Ambassadors.]

§ 365. Ambassadors form the first class. Only States enjoying royal honours[721] are entitled to send and to receive Ambassadors, as also is the Holy See, whose first-class envoys are called Nuncios, or Legati a latere or de latere. Ambassadors are considered to be personal representatives of the heads of their States and enjoy for this reason special honours. Their chief privilege--namely, that of negotiating with the head of the State personally--has, however, little value nowadays, as almost all States have to a certain extent constitutional government, which necessitates that all the important business should go through the hands of a Foreign Secretary.

[Footnote 721: See above, § 117, No. 1.]

[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.]

§ 366. The second class, the Ministers Plenipotentiary and Envoys Extraordinary, to which also belong the Papal Internuncios, are not considered to be personal representatives of the heads of their States. Therefore they do not enjoy all the special honours of the Ambassadors, and have not the privilege of treating with the head of the State personally. But otherwise there is no difference between these two classes.

[Sidenote: Ministers Resident.]

§ 367. The third class, the Ministers Resident, enjoy fewer honours and rank below the Ministers Plenipotentiary. But beyond the fact that Ministers Resident do not enjoy the title "Excellency," there is no difference between them and the Ministers Plenipotentiary.

[Sidenote: Chargés d'Affaires.]

§ 368. The fourth class, the Chargés d'Affaires, differs chiefly in one point from the first, second, and third class--namely, in so far as its members are accredited from Foreign Office to Foreign Office, whereas the members of the other classes are accredited from head of State to head of State. Chargés d'Affaires do not enjoy, therefore, so many honours as other diplomatic envoys. And it must be specially mentioned that a distinction ought to be made between a Chargé d'Affaires who is the head of a Legation, and who, therefore, is accredited from Foreign Office to Foreign Office, and a Chargé d'Affaires ad interim. The latter is a member of a Legation whom the head of the Legation delegates for the purpose of taking his place during absence on leave. Such Chargé d'Affaires ad interim, who had better be called a Chargé des Affaires,[722] ranks below the ordinary Chargé d'Affaires; he is not accredited from Foreign Office to Foreign Office, but is simply a delegate of the absent head of the Legation.

[Footnote 722: See Rivier, II. pp. 451-452.]

[Sidenote: The Diplomatic Corps.]

§ 369. All the Diplomatic Envoys accredited to the same State form, according to a diplomatic usage, a body which is styled the "Diplomatic Corps." The head of this body, the so-called "Doyen," is the Papal Nuncio, or, in case there is no Nuncio accredited, the oldest Ambassador, or, failing Ambassadors, the oldest Minister Plenipotentiary, and so on. As the Diplomatic Corps is not a body legally constituted, it performs no legal functions, but it is nevertheless of great importance, as it watches over the privileges and honours due to diplomatic envoys.

IV

APPOINTMENT OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 76-77--Phillimore, II. §§ 227-231--Twiss, I. §§ 212-214--Ullmann, § 48--Calvo, III. §§ 1343-1345--Bonfils, Nos. 677-680--Wheaton, §§ 217-220--Moore, IV. §§ 632-635.

[Sidenote: Person and Qualification of the Envoy.]

§ 370. International Law has no rules as regards the qualification of the individuals whom a State can appoint as diplomatic envoys, States being naturally competent to act according to discretion, although of course there are many qualifications a diplomatic envoy must possess to fill his office successfully. The Municipal Laws of many States comprise, therefore, many details as regards the knowledge and training which a candidate for a permanent diplomatic post must possess, whereas, regarding envoys ceremonial even the Municipal Laws have no provisions at all. The question is sometimes discussed whether females[723] might be appointed envoys. History relates a few cases of female diplomatists. Thus, for example, Louis XIV. of France accredited in 1646 Madame de Guébriant ambassador to the Court of Poland. During the last two centuries, however, no such case has to my knowledge occurred, although I doubt not that International Law does not prevent a State from sending a female as diplomatic envoy. But under the present circumstances many States would refuse to receive her.

[Footnote 723: See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 127-128; Phillimore, II. § 134; and Focherini, "Le Signore Ambasciatrici dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico" (1909).]

[Sidenote: Letter of Credence, Full Powers, Passports.]

§ 371. The appointment of an individual as a diplomatic envoy is announced to the State to which he is accredited in certain official papers to be handed in by the envoy to the receiving State. Letter of Credence (lettre de créance) is the designation of the document in which the head of the State accredits a permanent ambassador or minister to a foreign State. Every such envoy receives a sealed Letter of Credence and an open copy. As soon as the envoy arrives at his destination, he sends the copy to the Foreign Office in order to make his arrival officially known. The sealed original, however, is handed in personally by the envoy to the head of the State to whom he is accredited. Chargés d'Affaires receive a Letter of Credence too, but as they are accredited from Foreign Office to Foreign Office, their Letter of Credence is signed, not by the head of their home State, but by its Foreign Office. Now a permanent diplomatic envoy needs no other empowering document in case he is not entrusted with any task outside the limits of the ordinary business of a permanent legation. But in case he is entrusted with any such task, as, for instance, if any special treaty or convention is to be negotiated, he requires a special empowering document--namely, the so-called Full Powers (Pleins Pouvoirs). They are given in Letters Patent signed by the head of the State, and they are either limited or unlimited Full Powers, according to the requirements of the case. Such diplomatic envoys as are sent, not to represent their home State permanently, but on an extraordinary mission such as representation at a Congress, negotiation of a special treaty, and other transactions, receive full Powers only, and no Letter of Credence. Every permanent or other diplomatic envoy is also furnished with so-called Instructions for the guidance of his conduct as regards the objects of his mission. But such Instructions are a matter between the Envoy and his home State exclusively, and they have therefore, although they may otherwise be very important, no importance for International Law. Every permanent diplomatic envoy receives, lastly, Passports for himself and his suite specially made out by the Foreign Office. These Passports the envoy after his arrival deposits at the Foreign Office of the State to which he is accredited, where they remain until he himself asks for them because he desires to leave his post, or until they are returned to him on his dismissal.

[Sidenote: Combined Legations.]

§ 372. As a rule, a State appoints different individuals as permanent diplomatic envoys to different States, but sometimes a State appoints the same individual as permanent diplomatic envoy to several States. As a rule, further, a diplomatic envoy represents one State only. But occasionally several States appoint the same individual as their envoy, so that one envoy represents several States.

[Sidenote: Appointment of several Envoys.]

§ 373. In former times States used frequently[724] to appoint more than one permanent diplomatic envoy as their representative in a foreign State. Although this would hardly occur nowadays, there is no rule against such a possibility. And even now it happens frequently that States appoint several envoys for the purpose of representing them at Congresses and Conferences. In such cases one of the several envoys is appointed senior, to whom the others are subordinate.

[Footnote 724: See Mirus, op. cit. I. §§ 117-119.]

V

RECEPTION OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 65-67--Hall, § 98--Phillimore, II. §§ 133-139--Twiss, I. §§ 202-203--Taylor, §§ 285-290--Moore, IV. §§ 635, 637-638--Martens, II. § 8--Calvo, III. §§ 1353-1356--Pradier-Fodéré, III. §§ 1253-1260--Fiore, II. Nos. 1118-1120--Rivier, I. pp. 455-457.

[Sidenote: Duty to receive Diplomatic Envoys.]

§ 374. Every member of the Family of Nations that possesses the passive right of legation is under ordinary circumstances bound to receive diplomatic envoys accredited to itself from other States for the purpose of negotiation. But the duty extends neither to the reception of permanent envoys nor to the reception of temporary envoys under all circumstances.

(1) As regards permanent envoys, it is a generally recognised fact that a State is as little bound to receive them as it is to send them. Practically, however, every full-Sovereign State which desires its voice to be heard among the States receives and sends permanent envoys, as without such it would, under present circumstances, be impossible for a State to have any influence whatever in international affairs. It is for this reason that Switzerland, which in former times abstained entirely from sending permanent envoys, has abandoned her former practice and nowadays sends and receives several. The insignificant Principality of Lichtenstein is, as far as I know, the only full-Sovereign State which neither sends nor receives one single permanent legation.

But a State may receive a permanent legation from one State and refuse to do so from another. Thus the Protestant States never received a permanent legation from the Popes, even when the latter were heads of a State, and they still observe this rule, although one or another of them, such as Prussia for example, keeps a permanent legation at the Vatican.

(2) As regards temporary envoys, it is likewise a generally recognised fact among those writers who assert the duty of a State to receive under ordinary circumstances temporary envoys that there are exceptions to that rule. Thus, for example, a State which knows beforehand the object of a mission and does not wish to negotiate thereon can refuse to receive the mission. Thus, further, a belligerent can refuse[725] to receive a legation from the other belligerent, as war involves the rupture of all peaceable relations.

[Footnote 725: But this is not generally recognised. See Vattel, IV. § 67; Phillimore, II. § 138; and Pradier-Fodéré, III. No. 1255.]

[Sidenote: Refusal to receive a certain Individual.]

§ 375. But the refusal to receive an envoy must not be confounded with the refusal to receive a certain individual as envoy. A State may be ready to receive a permanent or temporary envoy, but may object to the individual selected for that purpose. International Law gives no right to a State to insist upon the reception of an individual appointed by it as diplomatic envoy. Every State can refuse to receive as envoy a person objectionable to itself. And a State refusing an individual envoy is neither compelled to specify what kind of objection it has, nor to justify its objection. Thus, for example, most States refuse to receive one of their own subjects as an envoy from a foreign State.[726] Thus, again, the King of Hanover refused in 1847 to receive a minister appointed by Prussia, because the individual was of the Roman Catholic faith. Italy refused in 1885 to receive Mr. Keiley as ambassador of the United States of America because he had in 1871 protested against the annexation of the Papal States. And when the United States sent the same gentleman as ambassador to Austria, the latter refused him reception on the ground that his wife was said to be a Jewess. Although, as is apparent from these examples, no State has a right to insist upon the reception of a certain individual as envoy, in practice States are often offended when reception is refused. Thus, in 1832 England did not cancel for three years the appointment of Sir Stratford Canning as ambassador to Russia, although the latter refused reception, and the post was practically vacant. In 1885, when, as above mentioned, Austria refused reception to Mr. Keiley as ambassador of the United States, the latter did not appoint another, although Mr. Keiley resigned, and the legation was for several years left to the care of a Chargé d'Affaires.[727] To avoid such conflicts it is a good practice of many States never to appoint an individual as envoy without having ascertained beforehand whether the individual would be persona grata. And it is a customary rule of International Law that a State which does not object to the appointment of a certain individual, when its opinion has been asked beforehand, is bound to receive such individual.[728]

[Footnote 726: In case a State receives one of its own subjects as diplomatic envoy of a foreign State, it has to grant him all the privileges of such envoys, including exterritoriality. Thus in the case of Macartney v. Garbutt and others (1890, L.R. 24 Q.B. 368) it was decided that a British subject accredited to Great Britain by the Chinese Government as a Secretary of its embassy and received by Great Britain in that capacity without an express condition that he should remain subject to British jurisdiction, was exempt from British jurisdiction. See, however, article 15 of the Règlement sur les Immunités Diplomatiques, adopted in 1895 by the Institute of International Law (see Annuaire, XIV. p. 244), which denies to such an individual exemption from jurisdiction. See also Phillimore, II. § 135, and Twiss, I. § 203.]

[Footnote 727: See Moore, IV. § 638, p. 480.]

[Footnote 728: The question is of interest whether the privileges due to diplomatists must be granted on his journey home to an individual to whom reception as an envoy is refused. I think the question ought to be answered in the affirmative; see, however, Moore, IV. § 666, p. 668.]

[Sidenote: Mode and Solemnity of Reception.]

§ 376. In case a State does not object to the reception of a person as diplomatic envoy accredited to itself, his actual reception takes place as soon as he has arrived at the place of his designation. But the mode of reception differs according to the class to which the envoy belongs. If he be one of the first, second, or third class, it is the duty of the head of the State to receive him solemnly in a so-called public audience with all the usual ceremonies. For that purpose the envoy sends a copy of his credentials to the Foreign Office, which arranges a special audience with the head of the State for the envoy, when he delivers in person his sealed credentials.[729] If the envoy be a Chargé d'Affaires only, he is received in audience by the Secretary of Foreign Affairs, to whom he hands his credentials. Through the formal reception the envoy becomes officially recognised and can officially commence to exercise his functions. But such of his privileges as exterritoriality and the like, which concern the safety and inviolability of his person, must be granted even before his official reception, as his character as diplomatic envoy is considered to date, not from the time of his official reception, but from the time when his credentials were handed to him on leaving his home State, his passports furnishing sufficient proof of his diplomatic character.

[Footnote 729: Details concerning reception of envoys are given by Twiss, I. § 215, and Rivier, I. p. 467.]

[Sidenote: Reception of Envoys to Congresses and Conferences.]

§ 377. It must be specially observed that all these details regarding the reception of diplomatic envoys accredited to a State do not apply to the reception of envoys sent to represent the several States at a Congress or Conference. As such envoys are not accredited to the State on whose territory the Congress or Conference takes place, such State has no competence to refuse the reception of the appointed envoys, and no formal and official reception of the latter by the head of the State need take place. The appointing States merely notify the appointment of their envoys to the Foreign Office of the State on whose territory the transactions take place, the envoys call upon the Foreign Secretary after their arrival to introduce themselves, and they are courteously received by him. They do not, however, hand in to him their Full Powers, but reserve them for the first meeting of the Congress or Conference, where they produce them in exchange with one another.

VI

FUNCTIONS OF DIPLOMATIC ENVOYS

Rivier, I. § 37--Ullmann, § 49--Bonfils, Nos. 681-683--Pradier-Fodéré, III. §§ 1346-1376.

[Sidenote: On Diplomatic Functions in general.]

§ 378. A distinction must be made between functions of permanent envoys and of envoys for temporary purposes. The functions of the latter, who are either envoys ceremonial or such envoys political as are only temporarily accredited for the purpose of some definite negotiations or as representatives at Congresses and Conferences, are clearly demonstrated by the very purpose of their appointment. But the functions of the permanent envoys demand a closer consideration. These regular functions may be grouped together under the heads of negotiation, observation, and protection. But besides these regular functions a diplomatic envoy may be charged with other and more miscellaneous functions.

[Sidenote: Negotiation.]

§ 379. A permanent ambassador or other envoy represents his home State in the totality of its international relations not only with the State to which he is accredited, but also with other States. He is the mouthpiece of the head of his home State and its Foreign Secretary as regards communications to be made to the State to which he is accredited. He likewise receives communications from the latter and reports them to his home State. In this way not only are international relations between these two States fostered and negotiated upon, but such international affairs of other States as are of general interest to all or a part of the members of the Family of Nations are also discussed. Owing to the fact that all the more important Powers keep permanent legations accredited to one another, a constant exchange of views in regard to affairs international is taking place between them.

[Sidenote: Observation.]

§ 380. But these are not all the functions of permanent diplomatic envoys. Their task is, further, to observe attentively every occurrence which might affect the interest of their home States, and to report such observations to their Governments. It is through these reports that every member of the Family of Nations is kept well informed in regard to the army and navy, the finances, the public opinion, the commerce and industry of foreign countries. And it must be specially observed that no State that receives diplomatic envoys has a right to prevent them from exercising their function of observation.

[Sidenote: Protection.]

§ 381. A third task of diplomatic envoys is the protection of the persons, property, and interests of such subjects of their home States as are within the boundaries of the State to which they are accredited. If such subjects are wronged without being able to find redress in the ordinary way of justice, and ask the help of the diplomatic envoy of their home State, he must be allowed to afford them protection. It is, however, for the Municipal Law and regulations of his home State, and not for International Law, to prescribe to an envoy the limits within which he has to afford protection to his compatriots.

[Sidenote: Miscellaneous Functions.]

§ 382. Negotiation, observation, and protection are tasks common to all diplomatic envoys of every State. But a State may order its permanent envoys to perform other tasks, such as the registration of deaths, births, and marriages of subjects of the home State, legalisation of their signatures, making out of passports for them, and the like. But in doing this a State must be careful not to order its envoys to perform such tasks as are by the law of the receiving State exclusively reserved to its own officials. Thus, for instance, a State whose laws compel persons who intend marriage to conclude it in presence of its registrars, need not allow a foreign envoy to legalise a marriage of compatriots before its registration by the official registrar. So, too, a State need not allow a foreign envoy to perform an act which is reserved for its jurisdiction, as, for instance, the examination of witnesses on oath.

[Sidenote: Envoys not to interfere in Internal Politics.]

§ 383. But it must be specially emphasised that envoys must not interfere with the internal political life of the State to which they are accredited. It certainly belongs to their functions to watch the political events and the political parties with a vigilant eye and to report their observations to their home States. But they have no right whatever to take part in that political life itself, to encourage a certain political party, or to threaten another. If nevertheless they do so, they abuse their position. And it matters not whether an envoy acts thus on his own account or on instructions from his home State. No strong self-respecting State will allow a foreign envoy to exercise such interference, but will either request his home State to recall him and appoint another individual in his place or, in case his interference is very flagrant, hand him his passports and therewith dismiss him. History records many instances of this kind,[730] although in many cases it is doubtful whether the envoy concerned really abused his office for the purpose of interfering with internal politics.

[Footnote 730: See Hall (§ 98**), Taylor (§ 322), and Moore (IV. § 640), who discuss a number of cases, especially that of Lord Sackville, who received his passports in 1888 from the United States of America for an alleged interference in the Presidential election.]

VII

POSITION OF DIPLOMATIC ENVOYS

[Sidenote: Diplomatic Envoys objects of International Law.]

§ 384. Diplomatic envoys are just as little subjects of International Law as are heads of States; and the arguments regarding the position of such heads[731] must also be applied to the position of diplomatic envoys, which is given to them by International Law not as individuals but as representative agents of their States. It is derived, not from personal rights, but from rights and duties of their home States and the receiving States. All the privileges which according to International Law are possessed by diplomatic envoys are not rights given to them by International Law, but rights given by the Municipal Law of the receiving States in compliance with an international right of their home States. For International Law gives a right to every State to demand for its diplomatic envoys certain privileges from the Municipal Law of a foreign State. Thus, a diplomatic envoy is not a subject but an object of International Law, and is in this regard like any other individual.

[Footnote 731: See above, § 344.]

[Sidenote: Privileges due to Diplomatic Envoys.]

§ 385. Privileges due to diplomatic envoys, apart from ceremonial honours, have reference to their inviolability and to their so-called exterritoriality. The reasons why these privileges must be granted are that diplomatic envoys are representatives of States and of their dignity,[732] and, further, that they could not exercise their functions perfectly unless they enjoyed such privileges. For it is obvious that, were they liable to ordinary legal and political interference like other individuals and thus more or less dependent on the good-will of the Government, they might be influenced by personal considerations of safety and comfort to such a degree as would materially hamper the exercise of their functions. It is equally clear that liability to interference with their full and free intercourse with their home States through letters, telegrams, and couriers would wholly nullify their raison d'être. In this case it would be impossible for them to send independent and secret reports to or receive similar instructions from their home States. From the consideration of these and various cognate reasons their privileges seem to be inseparable attributes of the very existence of diplomatic envoys.[733]

[Footnote 732: See above, § 121.]

[Footnote 733: The Institute of International Law, at its meeting at Cambridge in 1895, discussed the privileges of diplomatic envoys, and drafted a body of seventeen rules in regard thereto; see Annuaire, XIV. p. 240.]

VIII

INVIOLABILITY OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 80-107--Hall, §§ 50, 98*--Phillimore, II. §§ 154-175--Twiss, I. §§ 216-217--Moore, IV. §§ 657-659--Ullmann, § 50--Geffcken in Holtzendorff, III. pp. 648-654--Rivier, I. § 38--Nys, II. pp. 372-374--Bonfils, Nos. 684-699--Pradier-Fodéré, III. §§ 1382-1393--Mérignhac, II. pp. 264-273--Fiore, II. Nos. 1127-1143--Calvo, III. §§ 1480-1498--Martens, II. § 11--Crouzet, "De l'inviolabilité ... des agents diplomatiques" (1875).

[Sidenote: Protection due to Diplomatic Envoys.]

§ 386. Diplomatic envoys are just as sacrosanct as heads of States. They must, therefore, on the one hand, be afforded special protection as regards the safety of their persons, and, on the other hand, they must be exempted from every kind of criminal jurisdiction of the receiving States. Now the protection due to diplomatic envoys must find its expression not only in the necessary police measures for the prevention of offences, but also in specially severe punishments to be inflicted on offenders. Thus, according to English Criminal Law,[734] every one is guilty of a misdemeanour who, by force or personal restraint, violates any privilege conferred upon the diplomatic representatives of foreign countries, or who[735] sets forth or prosecutes or executes any writ or process whereby the person of any diplomatic representative of a foreign country or the person of a servant of any such representative is arrested or imprisoned. The protection of diplomatic envoys is not restricted to their own person, but must be extended to the members of their family and suite, to their official residence, their furniture, carriages, papers, and likewise to their intercourse with their home States by letters, telegrams, and special messengers. Even after a diplomatic mission has come to an end, the archives of an Embassy must not be touched, provided they have been put under seal and confided to the protection of another envoy.[736]

[Footnote 734: See Stephen's Digest, articles 96-97.]

[Footnote 735: 7 Anne, c. 12, sect. 3-6. This statute, which was passed in 1708 in consequence of the Russian Ambassador in London having been arrested for a debt of £50, has always been considered as declaratory of the existing law in England, and not as creating new law.]

[Footnote 736: See above, § 106 (case of Montagnini), and below, § 411.]

[Sidenote: Exemption from Criminal Jurisdiction.]

§ 387. As regards the exemption of diplomatic envoys from criminal jurisdiction, theory and practice of International Law agree nowadays[737] upon the fact that the receiving States have no right, under any circumstances whatever, to prosecute and punish diplomatic envoys. But among writers on International Law the question is not settled whether the commands and injunctions of the laws of the receiving States concern diplomatic envoys at all, so that the latter have to comply with such commands and injunctions, although the fact is established that they can never be prosecuted and punished for any breach.[738] This question ought to be decided in the negative, for a diplomatic envoy must in no point be considered under the legal authority of the receiving State. But this does not mean that a diplomatic envoy must have a right to do what he likes. The presupposition of the privileges he enjoys is that he acts and behaves in such a manner as harmonises with the internal order of the receiving State. He is therefore expected voluntarily to comply with all such commands and injunctions of the Municipal Law as do not restrict him in the effective exercise of his functions. In case he acts and behaves otherwise, and disturbs thereby the internal order of the State, the latter will certainly request his recall or send him back at once.

[Footnote 737: In former times there was no unanimity amongst publicists. See Phillimore, II. § 154.]

[Footnote 738: The point is thoroughly discussed by Beling, "Die strafrechtliche Bedeutung der Exterritorialität" (1896), pp. 71-90.]

History records many cases of diplomatic envoys who have conspired against the receiving States, but have nevertheless not been prosecuted. Thus, in 1584, the Spanish Ambassador Mendoza in England plotted to depose Queen Elizabeth; he was ordered to leave the country. In 1586 the French Ambassador in England, L'Aubespine, conspired against the life of Queen Elizabeth; he was simply warned not to commit a similar act again. In 1654 the French Ambassador in England, De Bass, conspired against the life of Cromwell; he was ordered to leave the country within twenty-four hours.[739]

[Footnote 739: These and other cases are discussed by Phillimore, II. §§ 160-165.]

[Sidenote: Limitation of Inviolability.]

§ 388. As diplomatic envoys are sacrosanct, the principle of their inviolability is generally recognised. But there is one exception. For if a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving State in such a manner as makes it necessary to put him under restraint for the purpose of preventing similar acts, or in case he conspires against the receiving State and the conspiracy can be made futile only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent home. Thus in 1717 the Swedish Ambassador Gyllenburg in London, who was an accomplice in a plot against King George I., was arrested and his papers were searched. In 1718 the Spanish Ambassador Prince Cellamare in France was placed in custody because he organised a conspiracy against the French Government.[740] And it must be emphasised that a diplomatic envoy cannot make it a point of complaint if injured in consequence of his own unjustifiable behaviour, as for instance in attacking an individual who in self-defence retaliates, or in unreasonably or wilfully placing himself in dangerous or awkward positions, such as in a disorderly crowd.[741]

[Footnote 740: Details regarding these cases are given by Phillimore, II. §§ 166 and 170.]

[Footnote 741: See article 6 of the rules regarding diplomatic immunities adopted by the Institute of International Law at its meeting at Cambridge in 1895 (Annuaire, XIV. p. 240).]

IX

EXTERRITORIALITY OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 80-119--Hall, §§ 50, 52, 53--Westlake, I. pp. 263-273--Phillimore, II. §§ 176-210--Taylor, §§ 299-315--Twiss, I. §§ 217-221--Moore, II. §§ 291-304 and IV. §§ 660-669--Ullmann, § 50--Geffcken in Holtzendorff, III. pp. 654-659--Nys, II. pp. 353-385--Rivier, I. 38--Bonfils, Nos. 700-721--Pradier-Fodéré, III. §§ 1396-1495--Mérignhac, II. pp. 249-293--Fiore, II. Nos. 1145-1163--Calvo, III. §§ 1499-1531--Martens, II. §§ 12-14--Gottschalck, "Die Exterritorialität der Gesandten" (1878)--Heyking, "L'exterritorialité" (1889)--Odier, "Des privilèges et immunités des agents diplomatiques" (1890)--Vercamer, "Des franchises diplomatiques et spécialement de l'exterritorialité" (1891)--Droin, "L'exterritorialité des agents diplomatiques" (1895)--Mirre, "Die Stellung der völkerrechtlichen Literatur zur Lehre von den sogenannten Nebenrechten der gesandschaftlichen Functionäre" (1904).

[Sidenote: Reason and Fictional Character of Exterritoriality.]

§ 389. The exterritoriality which must be granted to diplomatic envoys by the Municipal Laws of all the members of the Family of Nations is not, as in the case of sovereign heads of States, based on the principle par in parem non habet imperium, but on the necessity that envoys must, for the purpose of fulfilling their duties, be independent of the jurisdiction, the control, and the like, of the receiving States. Exterritoriality, in this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States. The term "Exterritoriality" is nevertheless valuable, because it demonstrates clearly the fact that envoys must in most points be treated as though they were not within the territory of the receiving States.[742] And the so-called exterritoriality of envoys is actualised by a body of privileges which must be severally discussed.

[Footnote 742: With a few exceptions (see Droin, "L'exterritorialité des agents diplomatiques" (1895), pp. 32-43), all publicists accept the term and the fiction of exterritoriality.]

[Sidenote: Immunity of Domicile.]

§ 390. The first of these privileges is immunity of domicile, the so-called Franchise de l'hôtel. The present immunity of domicile has developed from the former condition of things, when the official residences of envoys were in every point considered to be outside the territory of the receiving States, and when this exterritoriality was in many cases even extended to the whole quarter of the town in which such a residence was situated. One used then to speak of a Franchise du quartier or the Jus quarteriorum. And an inference from this Franchise du quartier was the so-called right of asylum, envoys claiming the right to grant asylum within the boundaries of their residential quarters to every individual who took refuge there.[743] But already in the seventeenth century most States opposed this Franchise du quartier, and it totally disappeared in the eighteenth century, leaving behind, however, the claim of envoys to grant asylum within their official residences. Thus, when in 1726 the Duke of Ripperda, first Minister to Philip V. of Spain, who was accused of high treason and had taken refuge in the residence of the English Ambassador in Madrid, was forcibly arrested there by order of the Spanish Government, the British Government complained of this act as a violation of International Law.[744] Twenty-one years later, in 1747, a similar case occurred in Sweden. A merchant named Springer was accused of high treason and took refuge in the house of the English Ambassador at Stockholm. On the refusal of the English envoy to surrender Springer, the Swedish Government surrounded the embassy with troops and ordered the carriage of the envoy, when leaving the embassy, to be followed by mounted soldiers. At last Springer was handed over to the Swedish Government under protest, but England complained and called back her ambassador, as Sweden refused to make the required reparation.[745] As these two examples show, the right of asylum, although claimed and often conceded, was nevertheless not universally recognised. During the nineteenth century all remains of it vanished, and when in 1867 the French envoy in Lima claimed it, the Peruvian Government refused to concede it.[746]

[Footnote 743: Although this right of asylum was certainly recognised by the States in former centuries, it is of interest to note that Grotius did not consider it postulated by International Law, for he says of this right (II. c. 18, § 8): "Ex concessione pendet ejus apud quem agit. Istud enim juris gentium non est." See also Bynkershoek, "De foro legat." c. 21.]

[Footnote 744: See Martens, "Causes Célèbres," I. p. 178.]

[Footnote 745: See Martens, "Causes Célèbres," II. p. 52.]

[Footnote 746: The South American States, Chili excepted, still grant the right to foreign envoys to afford asylum to political refugees in time of revolution. It is, however, acknowledged that this right is not based upon a rule of International Law, but merely upon local usage. See Hall, § 52; Westlake, I. p. 272; Moore, II. §§ 291-304; Chilbert in A.J. III. (1909), pp. 562-595; Robbin in R.G. XV. (1908), pp. 461-508; Moore, "Asylum in Legations and Consulates, and in Vessels" (1892). That actually in times of revolution and of persecution of certain classes of the population asylum is occasionally granted to refugees and respected by the local authorities, there is no doubt, but this occasional practice does not shake the validity of the general rule of International Law according to which there is no obligation on the part of the receiving State to grant to envoys the right of affording asylum to individuals not belonging to their suites. See, however, Moore, II. § 293.]

Nowadays the official residences of envoys are in a sense and in some respects only considered as though they were outside the territory of the receiving States. For the immunity of domicile granted to diplomatic envoys comprises the inaccessibility of these residences to officers of justice, police, or revenue, and the like, of the receiving States without the special consent of the respective envoys. Therefore, no act of jurisdiction or administration of the receiving Governments can take place within these residences, except by special permission of the envoys. And the stables and carriages of envoys are considered to be parts of their residences. But such immunity of domicile is granted only in so far as it is necessary for the independence and inviolability of envoys and the inviolability of their official documents and archives. If an envoy abuses this immunity, the receiving Government need not bear it passively. There is, therefore, no obligation on the part of the receiving State to grant an envoy the right of affording asylum to criminals or to other individuals not belonging to his suite. Of course, an envoy need not deny entrance to criminals who want to take refuge in the embassy. But he must surrender them to the prosecuting Government at its request, and, if he refuses, any measures may be taken to induce him to do so, apart from such as would involve an attack on his person. Thus, the embassy may be surrounded by soldiers, and eventually the criminal may even forcibly be taken out of the embassy. But such measures of force are justifiable only if the case is an urgent one, and after the envoy has in vain been required to surrender the criminal. Further, if a crime is committed inside the house of an envoy by an individual who does not enjoy personally the privilege of exterritoriality, the criminal must be surrendered to the local Government. The case of Nikitschenkow, which occurred in Paris in 1867, is an instance thereof. Nikitschenkow, a Russian subject not belonging to the Russian Legation, made an attempt on and wounded a member of that legation within the precincts of the embassy. The French police were called in and arrested the criminal. The Russian Government required his extradition, maintaining that, as the crime was committed inside the Russian Embassy, it fell exclusively under Russian jurisdiction; but the French Government refused extradition and Russia dropped her claim.

Again, an envoy has no right to seize a subject of his home State who is within the boundaries of the receiving State and keep him under arrest inside the embassy with the intention of bringing him away into the power of his home State. An instance thereof is the case of the Chinaman Sun Yat Sen which occurred in London in 1896. This was a political refugee from China living in London. He was induced to enter the house of the Chinese Legation and kept under arrest there in order to be conveyed forcibly to China, the Chinese envoy contending that, as the house of the legation was Chinese territory, the English Government had no right to interfere. But the latter did interfere, and Sun Yat Sen was released after several days.

As a contrast to this case may be mentioned that of Kalkstein which occurred on the Continent in 1670. Colonel von Kalkstein, a Prussian subject, had fled to Poland for political reasons since he was accused of high treason against the Prussian Government. Now Frederic William, the great Elector of Brandenburg, ordered his diplomatic envoy at Warsaw, the capital of Poland, to obtain possession of the person of Kalkstein. On November 28, 1670, this order was carried out. Kalkstein was secretly seized, and, wrapped up in a carpet, was carried across the frontier. He was afterwards executed at Memel.

[Sidenote: Exemption from Criminal and Civil Jurisdiction.]

§ 391. The second privilege of envoys in reference to their exterritoriality is their exemption from criminal and civil jurisdiction. As their exemption from criminal jurisdiction is also a consequence of their inviolability, it has already been discussed,[747] and we have here to deal with their exemption from civil jurisdiction only. No civil action of any kind as regards debts and the like can be brought against them in the Civil Courts of the receiving States. They cannot be arrested for debts, nor can their furniture, their carriages, their horses, and the like, be seized for debts. They cannot be prevented from leaving the country for not having paid their debts, nor can their passports be refused to them on the same account. Thus, when in 1772 the French Government refused the passports to Baron de Wrech, the envoy of the Landgrave of Hesse-Cassel at Paris, for not having paid his debts, all the other envoys in Paris complained of this act of the French Government as a violation of International Law.[748] But the rule that an envoy is exempt from civil jurisdiction has certain exceptions. If an envoy enters an appearance to an action against himself, or if he himself brings an action under the jurisdiction of the receiving State, the courts of the latter have civil jurisdiction in such cases over him. And the same is valid as regards real property held within the boundaries of the receiving State by an envoy, not in his official character, but as a private individual, and as regards mercantile[749] ventures in which he might engage on the territory of the receiving State.

[Footnote 747: See above, §§ 387-388.]

[Footnote 748: See Martens, "Causes Célèbres," II. p. 282.]

[Footnote 749: The statute of 7 Anne, c. 12, on which the exemption of diplomatic envoys from English jurisdiction is based, does not exclude such envoy as embarks on mercantile ventures from the benefit of the Act, and the practice of the English Courts grants, therefore, to foreign envoys even in such cases exemption from local jurisdiction; see the case (1859) of Magdalena Steam Navigation Co. v. Martin, 2 Ellis and Ellis 94, overruling the case of Taylor v. Best, 14 C.B. 487. See also Westlake, I. p. 267.]

[Sidenote: Exemption from Subpoena as witness.]

§ 392. The third privilege of envoys in reference to their exterritoriality is exemption from subpoena as witnesses. No envoy can be obliged, or even required, to appear as a witness in a civil or criminal or administrative Court, nor is an envoy obliged to give evidence before a Commissioner sent to his house. If, however, an envoy chooses for himself to appear as a witness or to give evidence of any kind, the Courts can make use of such evidence. A remarkable case of this kind is that of the Dutch envoy Dubois in Washington, which happened in 1856. A case of homicide occurred in the presence of M. Dubois, and, as his evidence was absolutely necessary for the trial, the Foreign Secretary of the United States asked Dubois to appear before the Court as a witness, recognising the fact that Dubois had no duty to do so. When Dubois, on the advice of all the other diplomatic envoys in Washington, refused to comply with this desire, the United States brought the matter before the Dutch Government. The latter, however, approved of Dubois' refusal, but authorised him to give evidence under oath before the American Foreign Secretary. As, however, such evidence would have had no value at all according to the local law, Dubois' evidence was not taken, and the Government of the United States asked the Dutch Government to recall him.[750]

[Footnote 750: See Wharton, I. § 98; Moore, IV. § 662; and Calvo, III. § 1520.]

[Sidenote: Exemption from Police.]

§ 393. The fourth privilege of envoys in reference to their exterritoriality is exemption from the police of the receiving States. Orders and regulations of the police do in no way bind them. On the other hand, this exemption from police does not contain the privilege of an envoy to do what he likes as regards matters which are regulated by the police. Although such regulations can in no way bind him, an envoy enjoys the privilege of exemption from police under the presupposition that he acts and behaves in such a manner as harmonises with the internal order of the receiving State. He is, therefore, expected to comply voluntarily with all such commands and injunctions of the local police as, on the one hand, do not restrict him in the effective exercise of his duties, and, on the other hand, are of importance for the general order and safety of the community. Of course, he cannot be punished if he acts otherwise, but the receiving Government may request his recall or even be justified in other measures of such a kind as do not injure his inviolability. Thus, for instance, if in time of plague an envoy were not voluntarily to comply with important sanitary arrangements of the local police, and if there were great danger in delay, a case of necessity would be created and the receiving Government would be justified in the exercise of reasonable pressure upon the envoy.

[Sidenote: Exemption from Taxes and the like.]

§ 394. The fifth privilege of envoys in reference to their exterritoriality is exemption from taxes and the like. As an envoy, through his exterritoriality, is considered not to be subjected to the territorial supremacy of the receiving State, he must be exempt from all direct personal taxation and therefore need not pay either income-tax or other direct taxes. As regards rates, it is necessary to draw a distinction. Payment of rates imposed for local objects from which an envoy himself derives benefit, such as sewerage, lighting, water, night-watch, and the like, can be required of the envoy, although this is often[751] not done. Other rates, however, such as poor-rates and the like, he cannot be requested to pay. As regards customs duties, International Law does not claim the exemption of envoys therefrom. Practically and by courtesy, however, the Municipal Laws of many States allow diplomatic envoys within certain limits the entry free of duty of goods intended for their own private use. If the house of an envoy is the property of his home State or his own property, the house need not be exempt from property tax, although it is often so by the courtesy of the receiving State. Such property tax is not a personal and direct, but an indirect tax.

[Footnote 751: As, for instance, in England where the payment of local rates cannot be enforced by suit or distress against a member of a legation; see Parkinson v. Potter, 16 Q.B. 152, and Macartney v. Garbutt, L.R. 24 Q.B. 368. See also Westlake, I. p. 268.]

[Sidenote: Right of Chapel.]

§ 395. A sixth privilege of envoys in reference to their exterritoriality is the so-called Right of Chapel (Droit de chapelle or Droit du culte). This is the privilege of having a private chapel for the practice of his own religion, which must be granted to an envoy by the Municipal Law of the receiving State. A privilege of great worth in former times, when freedom of religious worship was unknown in most States, it has at present an historical value only. But it has not disappeared, and might become again of actual importance in case a State should in the future give way to reactionary intolerance. It must, however, be emphasised that the right of chapel must only comprise the privilege of religious worship in a private chapel inside the official residence of the envoy. No right of having and tolling bells need be granted. The privilege includes the office of a chaplain, who must be allowed to perform every religious ceremony within the chapel, such as baptism and the like. It further includes permission to all the compatriots of the envoy, even if they do not belong to his retinue, to take part in the service. But the receiving State need not allow its own subjects to take part therein.

[Sidenote: Self-jurisdiction.]

§ 396. The seventh and last privilege of envoys in reference to their exterritoriality is self-jurisdiction within certain limits. As the members of his retinue are considered exterritorial, the receiving State has no jurisdiction over them, and the home State may therefore delegate such civil and criminal jurisdiction to the envoy. But no receiving State is required to grant self-jurisdiction to an ambassador beyond a certain reasonable limit. Thus, an envoy must have jurisdiction over his retinue in matters of discipline, he must be able to order the arrest of a member of his retinue who has committed a crime and is to be sent home for his trial, and the like. But no civilised State would nowadays allow an envoy himself to try a member of his retinue. This was done in former centuries. Thus, in 1603, Sully, who was sent by Henri IV. of France on a special mission to England, called together a French jury in London and had a member of his retinue condemned to death for murder. The convicted man was handed over for execution to the English authorities, but James I. reprieved him.[752]

[Footnote 752: See Martens, "Causes Célèbres," I. p. 391. See also the two cases reported by Calvo, III. § 1545.]

X

POSITION OF DIPLOMATIC ENVOYS AS REGARDS THIRD STATES

Vattel, IV. §§ 84-86--Hall, §§ 99-101--Phillimore, II. §§ 172-175--Taylor, §§ 293-295--Moore, IV. §§ 643-644--Twiss, I. § 222--Wheaton, §§ 242-247--Ullmann, § 52--Geffcken in Holtzendorff, III. pp. 665-668--Heffter, § 207--Rivier, § 39--Nys, II. p. 390--Pradier-Fodéré, III. § 1394--Fiore, II. Nos. 1143-1144--Calvo, III. §§ 1532-1539.

[Sidenote: Possible Cases.]

§ 397. Although, when an individual is accredited as diplomatic envoy by one State to another, these two States only are directly concerned in his appointment, the question must be discussed, what position such envoy has as regards third States in those cases in which he comes in contact with them. Several such cases are possible. An envoy may, first, travel through the territory of a third State to reach the territory of the receiving State. Or, an envoy accredited to a belligerent State and living on the latter's territory may be found there by the other belligerent who militarily occupies such territory. And, lastly, an envoy accredited to a certain State might interfere with the affairs of a third State.

[Sidenote: Envoy travelling through Territory of third State.]

§ 398. If an envoy travels through the territory of a third State incognito or for his pleasure only, there is no doubt that he cannot claim any special privileges whatever. He is in exactly the same position as any other foreign individual travelling on this territory, although by courtesy he might be treated with particular attention. But matters are different when an envoy on his way from his own State to the State of his destination travels through the territory of a third State. If the sending and the receiving States are not neighbours, the envoy probably has to travel through the territory of a third State. Now, as the institution of legation is a necessary one for the intercourse of States and is firmly established by International Law, there ought to be no doubt whatever that such third State must grant the right of innocent passage (jus transitus innoxii) to the envoy, provided that it is not at war with the sending or the receiving State. But no other privileges,[753] especially those of inviolability and exterritoriality need be granted to the envoy. And the right of innocent passage does not include the right to stop on the territory longer than is necessary for the passage. Thus, in 1854, Soulé, the envoy of the United States of America at Madrid, who had landed at Calais, intending to return to Madrid via Paris, was provisionally stopped at Calais for the purpose of ascertaining whether he intended to make a stay in Paris, which the French Government wanted to prevent, because he was a French refugee naturalised in America and was reported to have made speeches against the Emperor Napoleon. Soulé at once left Calais, and the French Government declared, during the correspondence with the United States in the matter, that there was no objection to Soulé's traversing France on his way to Madrid, but they would not allow him to make a sojourn in Paris or anywhere else in France.[754]

[Footnote 753: The matter, which has always been disputed, is fully discussed by Twiss, I. § 222, who also quotes the opinion of Grotius, Bynkershoek, and Vattel.]

[Footnote 754: See Wharton, I. § 97, and Moore, IV. § 643.]

It must be specially remarked that no right of passage need be granted if the third State is at war with the sending or receiving State. The envoy of a belligerent, who travels through the territory of the other belligerent to reach the place of his destination, may be seized and treated as a prisoner of war. Thus, in 1744, when the French Ambassador, Maréchal de Belle-Isle, on his way to Berlin, passed through the territory of Hanover, which country was then, together with England, at war with France, he was made a prisoner of war and sent to England.

[Sidenote: Envoy found by Belligerent on occupied Enemy Territory.]

§ 399. When in time of war a belligerent occupies the capital of an enemy State and finds there envoys of other States, these envoys do not lose their diplomatic privileges as long as the State to which they are accredited is in existence. As military occupation does not extinguish a State subjected thereto, such envoys do not cease to be envoys. On the other hand, they are not accredited to the belligerent who has taken possession of the territory by military force, and the question is not yet settled by International Law how far the occupying belligerent has to respect the inviolability and exterritoriality granted to such envoys by the law of the land in compliance with a demand of International Law. It may safely be maintained that he must grant them the right to leave the occupied territory. But must he likewise grant them the right to stay? Has he to respect their immunity of domicile and their other privileges in reference to their exterritoriality? Neither customary rules nor international conventions exist as regards these questions, which must, therefore, be treated as open. The only case which occurred concerning this problem is that of Mr. Washburne, ambassador of the United States in Paris during the siege of that town in 1870 by the Germans. This ambassador claimed the right of sending a messenger with despatches to London in a sealed bag through the German lines. But the Germans refused to grant that right, and did not alter their decision although the Government of the United States protested.[755]

[Footnote 755: See below, vol. II. § 157, and Wharton, I. § 97.]

[Sidenote: Envoy interfering with affairs of a third State.]

§ 400. There is no doubt that an envoy must not interfere with affairs concerning the State to which he is accredited and a third State. If nevertheless he does interfere, he enjoys no privileges whatever against such third State. Thus, in 1734, the Marquis de Monti, the French envoy in Poland, who took an active part in the war between Poland and Russia, was made a prisoner of war by the latter and not released till 1736, although France protested.[756]

[Footnote 756: See Martens, "Causes Célèbres," I. p. 207.]

XI

THE RETINUE OF DIPLOMATIC ENVOYS

Vattel, IV. §§ 120-124--Hall, § 51--Phillimore, II. §§ 186-193--Twiss, I. § 218--Moore, IV. §§ 664-665--Ullmann, §§ 47 and 51--Geffcken in Holtzendorff, III. pp. 660-661--Heffter, § 221--Rivier, I. pp. 458-461--Nys, II. pp. 386-390--Pradier-Fodéré, III. §§ 1472-1486--Fiore, II. Nos. 1164-1168--Calvo, III. §§ 1348-1350--Martens, II. § 16--Roederer, "De l'application des immunités de l'ambassadeur au personnel de l'ambassade" (1904), pp. 22-84.

[Sidenote: Different Classes of Members of Retinue.]

§ 401. The individuals accompanying an envoy officially, or in his private service, or as members of his family, or as couriers, compose his retinue. The members of the retinue belong, therefore, to four different classes. All those individuals who are officially attached to an envoy are members of the legation and are appointed by the home State of the envoy. To this first class belong the Councillors, Attachés, Secretaries of the Legation; the Chancellor of the Legation and his assistants; the interpreters, and the like; the chaplain, the doctor, and the legal advisers, provided that they are appointed by the home State and sent specially as members of the legation. A list of these members of legation is handed over by the envoy to the Secretary for Foreign Affairs of the receiving State and is revised from time to time. The Councillors and Secretaries of Legation are personally presented to the Secretary for Foreign Affairs, and very often also to the head of the receiving State. The second class comprises all those individuals who are in the private service of the envoy and of the members of legation, such as servants of all kinds, the private secretary of the envoy, the tutor and the governess of his children. The third class consists of the members of the family of the envoy--namely, his wife, children, and such of his other near relatives as live within his family and under his roof. And, lastly, the fourth class consists of the so-called couriers. They are the bearers of despatches sent by the envoy to his home State, who on their way back also bear despatches from the home State to the envoy. Such couriers are attached to most legations for the guarantee of the safety and secrecy of the despatches.

[Sidenote: Privileges of Members of Legation.]

§ 402. It is a universally recognised[757] rule of International Law that all members of a legation are as inviolable and exterritorial as the envoy himself. They must, therefore, be granted by the receiving State exemption from criminal and civil jurisdiction, exemption from police,[758] subpoena as witnesses, and taxes. They are considered, like the envoy himself, to retain their domicile within their home State. Children born to them during their stay within the receiving State are considered born on the territory of the home State. And it must be emphasised that it is not within the envoy's power to waive these privileges of members of legation, although the home State itself can waive these privileges. Thus when, in 1909, Wilhelm Beckert, the Chancellor of the German Legation in Santiago de Chili, murdered the porter of this legation, a Chilian subject, and then set fire to the Chancery in order to conceal his embezzlements of money belonging to the legation, the German Government consented to his being prosecuted in Chili; he was tried, found guilty, and executed at Santiago on July 5, 1910.

[Footnote 757: Some authors, however, plead for an abrogation of this rule. See Martens, II. § 16.]

[Footnote 758: A case of this kind occurred in 1904 in the United States. Mr. Gurney, Secretary of the British Legation at Washington, was fined by the police magistrate of Lee, in Massachusetts, for furiously driving a motor-car. But the judgment was afterwards annulled, and the fine imposed remitted.]

[Sidenote: Privileges of Private Servants.]

§ 403. It is a customary rule of International Law that the receiving State must grant to all persons in the private service of the envoy and of the members of his legation, provided such persons are not subjects of the receiving State, exemption from civil and criminal jurisdiction.[759] But the envoy can disclaim these exemptions, and these persons cannot then claim exemption from police, immunity of domicile, and exemption from taxes. Thus, for instance, if such a private servant commits a crime outside the residence of his employer, the police can arrest him; he must, however, be at once released if the envoy does not waive the exemption from criminal jurisdiction.

[Footnote 759: This rule seems to be everywhere recognised except in Great Britain. When, in 1827, a coachman of Mr. Gallatin, the American Minister in London, committed an assault outside the embassy, he was arrested in the stable of the embassy and charged before a local magistrate, and the British Foreign Office refused to recognise the exemption of the coachman from the local jurisdiction. See Wharton, I. § 94, and Hall, § 50.]

[Sidenote: Privileges of Family of Envoy.]

§ 404. Although the wife of the envoy, his children, and such of his near relatives as live within his family and under his roof belong to his retinue, there is a distinction to be made as regards their privileges. His wife must certainly be granted all his privileges in so far as they concern inviolability and exterritoriality. As regards, however, his children and other relatives, no general rule of International Law can safely be said to be generally recognised, but that they must be granted exemption from civil and criminal jurisdiction. But even this rule was formerly not generally recognised. Thus, when in 1653 Don Pantaleon Sà, the brother of the Portuguese Ambassador in London and a member of his suite, killed an Englishman named Greenway, he was arrested, tried in England, found guilty, and executed.[760] Nowadays the exemption from civil and criminal jurisdiction of such members of an envoy's family as live under his roof is always granted. Thus, when in 1906 Carlo Waddington,[761] the son of the Chilian envoy at Brussels, murdered the secretary of the Chilian Legation, the Belgian authorities did not take any step to arrest him. Two days afterwards, however, the Chilian envoy waived the privilege of the immunity of his son, and on March 2 the Chilian Government likewise agreed to the murderer being prosecuted in Belgium. The trial took place in July 1907, but Waddington was acquitted by the Belgian jury.

[Footnote 760: The case is discussed by Phillimore, II. § 169.]

[Footnote 761: See R.G. XIV. (1907), pp. 159-165.]

[Sidenote: Privileges of Couriers of Envoy.]

§ 405. To insure the safety and secrecy of the diplomatic despatches they bear, couriers must be granted exemption from civil and criminal jurisdiction and afforded special protection during the exercise of their office. It is particularly important to observe that they must have the right of innocent passage through third States, and that, according to general usage, those parts of their luggage which contain diplomatic despatches and are sealed with the official seal must not be opened and searched. It is usual to provide couriers with special passports for the purpose of their legitimation.

XII

TERMINATION OF DIPLOMATIC MISSION

Vattel, IV. §§ 125-126--Hall, § 98**--Phillimore, II. §§ 237-241--Moore, IV. §§ 636, 639, 640, 666--Taylor, §§ 320-323--Wheaton, §§ 250-251--Ullmann, § 53--Heffter, §§ 223-226--Rivier, I. § 40--Nys, II. p. 392--Bonfils, Nos. 730-732--Pradier-Fodéré, III. §§ 1515-1535--Fiore, II. Nos. 1169-1175--Calvo, III. §§ 1363-1367--Martens, II. § 17.

[Sidenote: Termination in contradistinction to Suspension.]

§ 406. A diplomatic mission may come to an end from eleven different causes--namely, accomplishment of the object for which the mission was sent; expiration of such Letters of Credence as were given to an envoy for a specific time only; recall of the envoy by the sending State; his promotion to a higher class; the delivery of passports to him by the receiving State; request of the envoy for his passports on account of ill-treatment; war between the sending and the receiving State; constitutional changes in the headship of the sending or receiving State; revolutionary change of government of the sending or receiving State; extinction of the sending or receiving State; and, lastly, death of the envoy. These events must be treated singly on account of their peculiarities. But the termination of diplomatic missions must not be confounded with their suspension. Whereas from the foregoing eleven causes a mission comes actually to an end, and new Letters of Credence are necessary, a suspension does not put an end to the mission, but creates an interval during which the envoy, although he remains in office, cannot exercise his office. Suspension may be the result of various causes, as, for instance, a revolution within the sending or receiving State. Whatever the cause may be, an envoy enjoys all his privileges during the duration of the suspension.

[Sidenote: Accomplishment of Object of Mission.]

§ 407. A mission comes to an end through the fulfilment of its objects in all cases of missions for special purposes. Such cases may be ceremonial functions like representations at weddings, funerals, coronations; or notification of changes in the headship of a State, or representation of a State at Conferences and Congresses; and other cases. Although the mission is terminated through the accomplishment of its object, the envoys enjoy all their privileges on their way home.

[Sidenote: Expiration of Letter of Credence.]

§ 408. If a Letter of Credence for a specified time only is given to an envoy, his mission terminates with the expiration of such time. A temporary Letter of Credence may, for instance, be given to an individual for the purpose of representing a State diplomatically during the interval between the recall of an ambassador and the appointment of his successor.

[Sidenote: Recall.]

§ 409. The mission of an envoy, be he permanently or only temporarily appointed, terminates through his recall by the sending State. If this recall is not caused by unfriendly acts of the receiving State but by other circumstances, the envoy receives a Letter of Recall from the head, or, in case he is only a Chargé d'Affaires, from the Foreign Secretary of his home State, and he[762] hands this letter over to the head of the receiving State in a solemn audience, or in the case of a Chargé d'Affaires to the Foreign Secretary. In exchange for the Letter of Recall the envoy receives his passports and a so-called Lettre de récréance, a letter in which the head of the receiving State (or the Foreign Secretary) acknowledges the Letter of Recall. Although therewith his mission ends, he enjoys nevertheless all his privileges on his home journey.[763] A recall may be caused by the resignation of the envoy, by his transference to another post, and the like. It may, secondly, be caused by the outbreak of a conflict between the sending and the receiving State which leads to a rupture of diplomatic intercourse, and under these circumstances the sending State may order its envoy to ask for his passports and depart at once without handing in a Letter of Recall. And, thirdly, a recall may result from a request of the receiving State by reason of real or alleged misconduct of the envoy. Such request of recall[764] may lead to a rupture of diplomatic intercourse, if the receiving State insists upon the recall, although the sending State does not recognise the act of its envoy as misconduct.

[Footnote 762: But sometimes his successor presents the letter recalling his predecessor to the head of the receiving State, or to the Foreign Secretary in the case of Chargés d'Affaires.]

[Footnote 763: See the interesting cases discussed by Moore, IV. § 666.]

[Footnote 764: Notable cases of request of recall of envoys are reported by Taylor, § 322; Hall, § 98**; Moore, IV. § 639.]

[Sidenote: Promotion to a higher Class.]

§ 410. When an envoy remains at his post, but is promoted to a higher class--for instance, when a Chargé d'Affaires is created a Minister Resident or a Minister Plenipotentiary is created an Ambassador--his original mission technically ends, and he receives therefore a new Letter of Credence.

[Sidenote: Delivery of Passports.]

§ 411. A mission may terminate, further, through the delivery of his passports to an envoy by the receiving State. The reason for such dismissal of an envoy may be either gross misconduct on his part or a quarrel between the sending and the receiving State which leads to a rupture of diplomatic intercourse. Whenever such rupture takes place, diplomatic relations between the two States come to an end and all diplomatic privileges cease with the envoy's departing and crossing the frontier. If the archives of the legations are not removed, they must be put under seal by the departing envoy and confided to the protection[765] of some other foreign legation.

[Footnote 765: As regards the case of Montagnini, see above, §§ 106 and 386.]

[Sidenote: Request for Passports.]

§ 412. Without being recalled, an envoy may on his own account ask for his passports and depart in consequence of ill-treatment by the receiving State. This may or may not lead to a rupture of diplomatic intercourse.

[Sidenote: Outbreak of War.]

§ 413. When war breaks out between the sending and the receiving State before their envoys accredited to each other are recalled, their mission nevertheless comes to an end. They receive their passports, but nevertheless they must be granted their privileges[766] on their way home.

[Footnote 766: See below, vol. II. § 98.]

[Sidenote: Constitutional Changes.]

§ 414. If the head of the sending or receiving State is a Sovereign, his death or abdication terminates the missions sent and received by him, and all envoys remaining at their posts must receive new Letters of Credence. But if they receive new Letters of Credence, no change in seniority is considered to have taken place from the order in force before the change. And during the time between the termination of the missions and the arrival of new Letters of Credence they enjoy nevertheless all the privileges of diplomatic envoys.

As regards the influence of constitutional changes in the headship of republics on the missions sent or received, no certain rule exists.[767] Everything depends, therefore, upon the merits of the special case.

[Footnote 767: Writers on International Law differ concerning this point. See, for instance, Ullmann, § 53, in contradistinction to Rivier, I. p. 517.]

[Sidenote: Revolutionary Changes of Government.]

§ 415. A revolutionary movement in the sending or receiving State which creates a new government, changing, for example, a republic into a monarchy or a monarchy into a republic, or deposing a Sovereign and enthroning another, terminates the missions. All envoys remaining at their posts must receive new Letters of Credence, but no change in seniority takes place if they receive them. It happens that in cases of revolutionary changes of government foreign States for some time neither send new Letters of Credence to their envoys nor recall them, watching the course of events in the meantime and waiting for more proof of a real settlement. In such cases the envoys are, according to an international usage, granted all privileges of diplomatic envoys, although in strict law they have ceased to be such. In cases of recall subsequent to revolutionary changes, the protection of subjects of the recalling States remains in the hands of their consuls, since the consular office[768] does not come to an end through constitutional or revolutionary changes in the headship of a State.

[Footnote 768: See below, § 438.]

[Sidenote: Extinction of sending or receiving State.]

§ 416. If the sending or receiving State of a mission is extinguished by voluntary merger into another State or through annexation in consequence of conquest, the mission terminates ipso facto. In case of annexation of the receiving State, there can be no doubt that, although the annexing State will not consider the envoys received by the annexed State as accredited to itself, it must grant those envoys the right to leave the territory of the annexed State unmolested and to take their archives away with them. In case of annexation of the sending State, the question arises what becomes of the archives and legational property of the missions of the annexed State accredited to foreign States. This question is one on the so-called succession[769] of States. The annexing State acquires, ipso facto, by the annexation the property in those archives and other legational goods, such as the hotels, furniture, and the like. But as long as the annexation is not notified and recognised, the receiving States have no duty to interfere.

[Footnote 769: See above, § 82.]

[Sidenote: Death of Envoy.]

§ 417. A mission ends, lastly, by the death of the envoy. As soon as an envoy is dead, his effects, and especially his papers, must be sealed. This is done by a member of the dead envoy's legation, or, if there be no such members, by a member of another legation accredited to the same State. The local Government must not interfere, unless at the special request by the home State of the deceased envoy.

Although the mission and therefore the privileges of the envoy come to an end by his death, the members of his family who resided under his roof and the members of his suite enjoy their privileges until they leave the country. But a certain time may be fixed for them to depart, and on its expiration they lose their privilege of exterritoriality. It must be specially mentioned that the Courts of the receiving State have no jurisdiction whatever over the goods and effects of the deceased envoy, and that no death duties can be demanded.

III. CONSULS

I

THE INSTITUTION OF CONSULS

Hall, § 105--Phillimore, II. §§ 243-246--Halleck, I. p. 369--Taylor, §§ 325-326--Twiss, I. § 223--Ullmann, §§ 54-55--Bulmerincq in Holtzendorff, II. pp. 687-695--Heffter, §§ 241-242--Rivier, I. § 41--Nys, II. pp. 394-399--Calvo, III. §§ 1368-1372--Bonfils, Nos. 731-743--Pradier-Fodéré, IV. §§ 2034-2043--Martens, II. §§ 18-19--Fiore, II. Nos. 1176-1178--Warden, "A Treatise on the Origin, Nature, &c., of the Consular Establishment" (1814)--Miltitz, Manuel des Consuls, 5 vols. (1837-1839)--Cussy, "Règlements consulaires des principaux États maritimes" (1851)--H. B. Oppenheim, "Handbuch der Consulate aller Länder" (1854)--Clercq et Vallat, "Guide pratique des consulats" (5th ed. 1898)--Salles, "L'institution des consulats, son origine, &c." (1898)--Chester Lloyd Jones, "The Consular Service of the United States. Its History and Activities" (1906)--Stowell, "Le Consul" (1909), and "Consular Cases and Opinions, &c." (1910)--Pillaut, "Manuel de droit Consulaire" (1910)--Jordan in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and 717-750.

[Sidenote: Development of the Institution of Consuls.]

§ 418. The roots of the consular institution go back to the second half of the Middle Ages. In the commercial towns of Italy, Spain, and France the merchants used to appoint by election one or more of their fellow-merchants as arbitrators in commercial disputes, who were called Juges Consuls or Consuls Marchands. When, between and after the Crusades, Italian, Spanish, and French merchants settled down in the Eastern countries, founding factories, they brought the institution of consuls with them, the merchants belonging to the same nation electing their own consul. The competence of these consuls became, however, more and more enlarged through treaties, so-called "Capitulations," between the home States of the merchants and the Mohammedan monarchs on whose territories these merchants had settled down.[770] The competence of consuls comprised at last the whole civil and criminal jurisdiction over, and protection of, the privileges, the life, and the property of their countrymen. From the East the institution of consuls was transferred to the West. Thus, in the fifteenth century Italian consuls existed in the Netherlands and in London, English consuls in the Netherlands, Sweden, Norway, Denmark, Italy (Pisa). These consuls in the West exercised, just as those in the East, exclusive civil and criminal jurisdiction over the merchants of their nationality. But the position of the consuls in the West decayed in the beginning of the seventeenth century through the influence of the rising permanent legations on the one hand, and, on the other, from the fact that everywhere foreign merchants were brought under the civil and criminal jurisdiction of the State in which they resided. This change in their competence altered the position of consuls in the Christian States of the West altogether. Their functions now shrank into a general supervision of the commerce and navigation of their home States, and into a kind of protection of the commercial interests of their countrymen. Consequently, they did not receive much notice in the seventeenth and eighteenth centuries, and it was not until the nineteenth century that the general development of international commerce, navigation, and shipping drew the attention of the Governments again to the value and importance of the institution of consuls. The institution was now systematically developed. The position of the consuls, their functions, and their privileges, were the subjects of stipulations either in commercial treaties or in special consular treaties,[771] and the several States enacted statutes regarding the duties of their consuls abroad, such as the Consular Act passed by England in 1826.[772]

[Footnote 770: See Twiss, I. §§ 253-263.]

[Footnote 771: Phillimore, II. § 255, gives a list of such treaties.]

[Footnote 772: 6 Geo. IV. c. 87.]

[Sidenote: General Character of Consuls.]

§ 419. Nowadays consuls are agents of States residing abroad for purposes of various kinds, but mainly in the interests of commerce and navigation of the appointing State. As they are not diplomatic representatives, they do not enjoy the privileges of diplomatists. Nor have they, ordinarily, anything to do with intercourse between their home State and the State in which they reside. But these rules have exceptions. Consuls of Christian Powers in non-Christian States, Japan now excepted, have retained their former competence and exercise full civil and criminal jurisdiction over their countrymen. And sometimes consuls are charged with the tasks which are regularly fulfilled by diplomatic representatives. Thus, in States under suzerainty the Powers are frequently represented by consuls, who transact all the business otherwise transacted by diplomatic representatives, and who have, therefore, often the title of "Diplomatic Agents." Thus, too, on occasions small States, instead of accrediting diplomatic envoys to another State, send only a consul thither, who combines the consular functions with those of a diplomatic envoy. It must, however, be emphasised that consuls thereby neither become diplomatic envoys, although they may have the title of "Diplomatic Agents," nor enjoy the diplomatic envoys' privileges, if such privileges are not specially provided for by treaties between the home State and the State in which they reside. Different, however, is the case in which a consul is at the same time accredited as Chargé d'Affaires, and in which, therefore, he combines two different offices; for as Chargé d'Affaires he is a diplomatic envoy and enjoys all the privileges of such an envoy, provided he has received a Letter of Credence.

II

CONSULAR ORGANISATION

Hall, "Foreign Powers and Jurisdiction," § 13--Phillimore, II. §§ 253-254--Halleck, I. p. 371--Taylor, § 528--Moore, V. § 696--Ullmann, § 57--Bulmerincq in Holtzendorff, III. pp. 695-701--Rivier, I. § 41--Calvo, III. §§ 1373-1376--Bonfils, Nos. 743-748--Pradier-Fodéré, IV. §§ 2050-2055--Mérignhac, II. pp. 320-333--Martens, II. § 20--Stowell, "Le Consul," pp. 186-206--"General Instructions for His Majesty's Consular Officers" (1907).

[Sidenote: Different kinds of Consuls.]

§ 420. Consuls are of two kinds. They are either specially sent and paid for the administration of their consular office (Consules missi), or they are appointed from individuals, in most cases merchants, residing in the district for which they are to administer the consular office (Consules electi).[773] Consuls of the first kind, who are so-called professional consuls and are always subjects of the sending State, have to devote their whole time to the consular office. Consuls of the second kind, who may or may not be subjects of the sending State, administer the consular office besides following their ordinary callings. Some States, such as France, appoint professional consuls only; most States, however, appoint Consuls of both kinds according to the importance of the consular districts. But there is a general tendency with most States to appoint professional consuls for important districts.

[Footnote 773: To this distinction corresponds in the British Consular Service the distinction between "Consular Officers" and "Trading Consular Officers."]

No difference exists between the two kinds of consuls as to their general position according to International Law. But, naturally, a professional consul enjoys actually a greater authority and a more important social position, and consular treaties often stipulate special privileges for professional consuls.

[Sidenote: Consular Districts.]

§ 421. As the functions of consuls are of a more or less local character, most States appoint several consuls on the territory of other larger States, limiting the duties of the several consuls within certain districts of such territories or even within a certain town or port only. Such consular districts as a rule coincide with provinces of the State in which the consuls administer their offices. The different consuls appointed by a State for different districts of the same State are independent of each other and conduct their correspondence directly with the Foreign Office of their home State, the agents-consular excepted, who correspond with their nominators only. The extent of the districts is agreed upon between the home State of the consul and the admitting State. Only the consul appointed for a particular district is entitled to exercise consular functions within its boundaries, and to him only the local authorities have to grant the consular privileges, if any.

[Sidenote: Different Classes of Consuls.]

§ 422. Four classes of consuls are generally distinguished according to rank: consuls-general, consuls, vice-consuls, and agents-consular. Consuls-general are appointed either as the head of several consular districts, and have then several consuls subordinate to themselves, or as the head of one very large consular district. Consuls are usually appointed for smaller districts, and for towns or even ports only. Vice-consuls are such assistants of consuls-general and consuls as themselves possess the consular character and take, therefore, the consul's place in regard to the whole consular business; they are, according to the Municipal Law of some States, appointed by the consul, subject to the approbation of his home State. Agents-consular are agents with consular character, appointed, subject to the approbation of the home Government, by a consul-general or consul for the exercise of certain parts of the consular functions in certain towns or other places of the consular district. Agents-consular are not independent of the appointing consul, and do not correspond directly with the home State, as the appointing consul is responsible to his Government for the agents-consular. The so-called Proconsul is not a consul, but a locum tenens of a consul only during the latter's temporary absence or illness; he possesses, therefore, consular character for such time only as he actually is the locum tenens.

The British Consular Service consists of the following six ranks: (1) Agents and consuls-general, commissioners and consuls-general; (2) consuls-general; (3) consuls; (4) vice-consuls; (5) consular agents; (6) proconsuls. In the British Consular Service pro-consuls only exercise, as a rule, the notarial functions of a consular officer.

[Sidenote: Consuls subordinate to Diplomatic Envoys.]

§ 423. Although consuls conduct their correspondence directly with their home Government, they are nevertheless, subordinate to the diplomatic envoy of their home Government accredited to the State in which they administer the consular offices. According to the Municipal Law of almost every State except the United States of America, the diplomatic envoy has full authority and control over the consuls. He can give instructions and orders, which they have to execute. In doubtful cases they have to ask his advice and instructions. On the other hand, the diplomatic envoy has to protect the consuls in case they are injured by the local Government.

III

APPOINTMENT OF CONSULS

Hall, § 105--Phillimore, II. § 250--Halleck, I. p. 371--Moore, V. §§ 697-700--Ullmann, § 58--Bulmerincq in Holtzendorff, III. pp. 702-706--Rivier, I. § 41--Nys, II. p. 400--Calvo, III. §§ 1378-1384--Bonfils, Nos. 749-752--Pradier-Fodéré, IV. §§ 2056-2067--Fiore, II. Nos. 1181-1182--Martens, II. § 21--Stowell, "Le Consul," pp. 207-216.

[Sidenote: Qualification of Candidates.]

§ 424. International Law has no rules in regard to the qualifications of an individual whom a State can appoint consul. Many States, however, possess such rules in their Municipal Law as far as professional consuls are concerned. The question, whether female consuls could be appointed, cannot be answered in the negative, but, on the other hand, no State is obliged to grant female consuls the exequatur, and many States would at present certainly refuse it.

[Sidenote: No State obliged to admit Consuls.]

§ 425. According to International Law a State is not at all obliged to admit consuls. But the commercial interests of all the States are so powerful that practically every State must admit consuls of foreign Powers, as a State which refused such admittance would in its turn not be allowed to have its own consuls abroad. The commercial and consular treaties between two States stipulate as a rule that the contracting States shall have the right to appoint consuls in all those parts of each other's country in which consuls of third States are already or shall in future be admitted. Consequently a State cannot refuse admittance to a consul of one State for a certain district if it admits a consul of another State. But as long as a State has not admitted any other State's consul for a district, it can refuse admittance to a consul of the State anxious to organise consular service in that district. Thus, for instance, Russia refused for a long time for political reasons to admit consuls in Warsaw.

[Sidenote: What kind of States can appoint Consuls.]

§ 426. There is no doubt that it is within the faculty of every full-Sovereign State to appoint consuls. As regards not full-Sovereign States, everything depends upon the special case. As foreign States can appoint consuls in States under suzerainty, it cannot be doubted that, provided the contrary is not specially stipulated between the vassal and the suzerain State, and provided the vassal State is not one which has no position within the Family of Nations,[774] a vassal State is in its turn competent to appoint consuls in foreign States. In regard to member-States of a Federal State it is the Constitution of the Federal State which settles the question. Thus, according to the Constitution of Germany, the Federal State is exclusively competent to appoint consuls, in contradistinction to diplomatic envoys who may be sent and received by every member-State of the German Empire.

[Footnote 774: See above, § 91.]

[Sidenote: Mode of Appointment and of Admittance.]

§ 427. Consuls are appointed through a patent or commission, the so-called Lettre de provision, of the State whose consular office they are intended to administer. Vice-consuls are sometimes, and agents-consular are always, appointed by the consul, subject to the approval of the home State. Admittance of consuls takes place through the so-called exequatur, granted by the head of the admitting State.[775] The diplomatic envoy of the appointing State hands the patent of the appointed consul on to the Secretary for Foreign Affairs for communication to the head of the State, and the exequatur is given either in a special document or by means of the word exequatur written across the patent. But the exequatur can be refused for personal reasons. Thus, in 1869 England refused the exequatur to an Irishman named Haggerty, who was naturalised in the United States and appointed American consul for Glasgow. And the exequatur can be withdrawn for personal reasons at any moment. Thus, in 1834 France withdrew it from the Prussian consul at Bayonne for having helped in getting into Spain supplies of arms for the Carlists.

[Footnote 775: That, in case a consul is appointed for a State which is under the protectorate of another, it is within the competence of the latter to grant or refuse the exequatur, has been pointed out above, § 92, p. 144, note 4.]

[Sidenote: Appointment of Consuls includes Recognition.]

§ 428. As the appointment of consuls takes place in the interests of commerce, industry, and navigation, and has merely local importance without political consequences, it is maintained[776] that a State does not indirectly recognise a newly created State ipso facto by appointing a consul to a district in such State. This opinion, however, does not agree with the facts of international life. Since no consul can exercise his functions before he has handed over his patent to the local State and received the latter's exequatur, it is evident that thereby the appointing State enters into such formal intercourse with the admitting State as indirectly[777] involves recognition. But it is only if consuls are formally appointed and formally receive the exequatur on the part of the receiving State, that indirect recognition is involved. If, on the other hand, no formal[778] appointment is made, and no formal exequatur is asked for and received, foreign individuals may actually with the consent of the local State exercise the functions of consuls without recognition following therefrom. Such individuals are not really consuls, although the local State allows them for political reasons to exercise consular functions.

[Footnote 776: Hall, §§ 26* and 105, and Moore, I. § 72.]

[Footnote 777: See above, § 72.]

[Footnote 778: The case mentioned by Hall, § 26*, of Great Britain appointing, in 1823, consuls to the South American Republics, without gazetting the various consuls and--as must be presumed--without the individuals concerned asking formally for the exequatur of the various South American States, would seem to be a case of informal appointment.]

IV

FUNCTIONS OF CONSULS

Hall, § 105--Phillimore, II. §§ 257-260--Taylor, § 327--Halleck, I. pp. 380-385--Moore, V. §§ 717-731--Ullmann, § 61--Bulmerincq in Holtzendorff, III. pp. 738-749--Rivier, I. § 42--Calvo, III. §§ 1421-1429--Bonfils, Nos. 762-771--Pradier-Fodéré, IV. §§ 2069-2113--Fiore, II. Nos. 1184-1185--Martens, II. § 23--Stowell, "Le Consul," pp. 15-136.

[Sidenote: On Consular Functions in general.]

§ 429. Although consuls are appointed chiefly in the interest of commerce, industry, and navigation, they are nevertheless charged with various functions for other purposes. Custom, commercial and consular treaties, Municipal Laws, and Municipal Consular Instructions contain detailed rules in regard to these functions. They may be grouped under the heads of fosterage of commerce and industry, supervision of navigation, protection, notarial functions.

[Sidenote: Fosterage of Commerce and Industry.]

§ 430. As consuls are appointed in the interest of commerce and industry, they must be allowed by the receiving State to watch over the execution of the commercial treaties of their home State, to send reports to the latter in regard to everything which can influence the development of its commerce and industry, and to give such information to merchants and manufacturers of the appointing State as is necessary for the protection of their commercial interests. Municipal Laws of the several States and their Consular Instructions comprise detailed rules on these consular functions, which are of the greatest importance. Consular reports, on the one hand, and consular information to members of the commercial world, on the other, have in the past and the present rendered valuable assistance to the development of commerce and industry of their home States.

[Sidenote: Supervision of Navigation.]

§ 431. Another task of consuls consists in supervision of the navigation of the appointing State. A consul at a port must be allowed to keep his eye on all merchantmen sailing under the flag of his home State which enter the port, to control and legalise their ship papers, to exercise the power of inspecting them on their arrival and departure, to settle disputes between the master and the crew or the passengers. He assists sailors in distress, undertakes the sending home of shipwrecked crews and passengers, attests averages. It is neither necessary nor possible to enumerate all the duties and powers of consuls in regard to supervision of navigation. Consular and commercial treaties, on the one hand, and, on the other, Municipal Laws and Consular Instructions, comprise detailed rules regarding these consular functions. It should, however, be added that consuls must assist in every possible way any public vessel of their home State which enters their port, if the commander so requests. But consuls have no power of supervision over such public vessels.

[Sidenote: Protection.]

§ 432. The protection which consuls must be allowed by the receiving State to provide for subjects of the appointing State is a very important task. For that purpose consuls keep a register, in which these subjects can have their names and addresses recorded. Consuls make out passports, they have to render a certain assistance and help to paupers and the sick, and to litigants before the Courts. If a foreign subject is wronged by the local authorities, his consul has to give him advice and help, and has eventually to interfere on his behalf. If a foreigner dies, his consul may be approached for securing his property and for rendering all kind of assistance and help to the family of the deceased.

As a rule, a consul exercises protective functions over subjects of the appointing State only; but the latter may charge him with the protection of subjects of other States which have not nominated a consul for his district.

[Sidenote: Notarial Functions.]

§ 433. Very important are the notarial and the like functions with which consuls are charged. They attest and legalise signatures, examine witnesses and administer oaths for the purpose of procuring evidence for the Courts and other authorities of the appointing State. They conclude or register marriages of the latter's subjects, take charge of their wills, legalise their adoptions, register their births and deaths. They provide authorised translations for local as well as for home authorities, and furnish attestations of many kinds. All consular functions of this kind are specialised by Municipal Laws and Consular Instructions. But it should be specially observed that whereas fosterage of commerce, supervision of navigation, and protection are functions the exercise of which must, according to a customary rule of International Law, be granted to consuls by receiving States, many of their notarial functions need not be permitted by such receiving States in the absence of treaty stipulations.

V

POSITION AND PRIVILEGES OF CONSULS

Hall, § 105--Phillimore, II. §§ 261-271--Halleck, I. pp. 371-379--Taylor, §§ 326, 332-333--Moore, V. §§ 702-716--Ullmann, §§ 60 and 62--Bulmerincq in Holtzendorff, III. pp. 710-720--Rivier, I. § 42--Calvo, III. §§ 1385-1420--Bonfils, Nos. 753-761--Pradier-Fodéré, IV. §§ 2114-2121--Fiore, II. No. 1183--Martens, II. § 22--Bodin, "Les immunités consulaires" (1899)--Stowell, "Le Consul," pp. 137-185.

[Sidenote: Position.]

§ 434. Like diplomatic envoys, consuls are simply objects of International Law. Such rights as they have are granted to them by Municipal Laws in compliance with rights of the appointing States according to International Law.[779] As regards their position, it should nowadays be an established and uncontested fact that consuls do not enjoy the position of diplomatic envoys, since no Christian State actually grants to foreign consuls the privileges of diplomatic agents. On the other hand, it would be incorrect to maintain that their position is in no way different from that of any other individual living within the consular district. Since they are appointed by foreign States and have received the exequatur, they are publicly recognised by the admitting State as agents of the appointing State. Of course, consuls are not diplomatic representatives, for they do not represent the appointing States in the totality of their international relations, but for a limited number of tasks and for local purposes only. Yet they bear a recognised public character, in contradistinction to mere private individuals, and, consequently, their position is different from that of mere private individuals. This is certainly the case with regard to professional consuls, who are officials of their home State and are specially sent to the foreign State for the purpose of administering the consular office. But in regard to non-professional consuls it must likewise be maintained that the admitting State by granting the exequatur recognises their official position towards itself, which demands at least a special protection[780] of their persons and residences. The official position of consuls, however, does not involve direct intercourse with the Government of the admitting State. Consuls are appointed for local purposes only, and they have, therefore, direct intercourse with the local authorities only. If they want to approach the Government itself, they can do so only through the diplomatic envoy, to whom they are subordinate.

[Footnote 779: See above, § 384.]

[Footnote 780: According to British and American practice a consul of a neutral Power accredited to the enemy State who embarks upon mercantile ventures, is not by his official position protected against seizure of his goods carried by enemy vessels, for by trading in the enemy country he acquires to a certain extent enemy character; see the case of the Indian Chief, 3 C. Rob. 12.]

[Sidenote: Consular Privileges.]

§ 435. From the undoubted official position of consuls no universally recognised privileges of importance emanate as yet. Apart from the special protection due to consuls according to International Law, there is neither a custom nor a universal agreement between the Powers to grant them important privileges. Such privileges as consuls actually enjoy are granted to them either by courtesy or in compliance with special stipulations of a Commercial or Consular Treaty between the sending and the admitting State. I doubt not that in time the Powers will agree upon a universal treaty in regard to the position and privileges of consuls.[781] Meanwhile, it is of interest to take notice of some of the more important stipulations which are to be found in the innumerable treaties between the several States in regard to consular privileges:

[Footnote 781: The Institute of International Law at its meeting at Venice in 1896 adopted a Règlement sur les immunités consulaires comprising twenty-one articles. See Annuaire, XV. p. 304.]

(1) A distinction is very often made between professional and non-professional consuls in so far as the former are accorded more privileges than the latter.

(2) Although consuls are not exempt from the local civil and criminal jurisdiction, the latter is in regard to professional consuls often limited to crimes of a more serious character.

(3) In many treaties it is stipulated that consular archives shall be inviolable from search or seizure. Consuls are therefore obliged to keep their official documents and correspondence separate from their private papers.

(4) Inviolability of the consular buildings is also sometimes stipulated, so that no officer of the local police, Courts, and so on, can enter these buildings without special permission of the consul. But it is then the duty of consuls to surrender criminals who have taken refuge in these buildings.

(5) Professional consuls are often exempt from all kinds of rates and taxes, from the liability to have soldiers quartered in their houses, and from the duty to appear in person as witnesses before the Courts. In the latter case consuls have either to send in their evidence in writing, or their evidence may be taken by a commission on the premises of the consulate.

(6) Consuls of all kinds have the right to put up the arms of the appointing State over the door of the consular building and to hoist the national flag.

VI

TERMINATION OF CONSULAR OFFICE

Hall, § 105--Moore, V. § 701--Ullmann, § 59--Bulmerincq in Holtzendorff, III. p. 708--Rivier, I. § 41--Calvo, III. §§ 1382, 1383, 1450--Bonfils, No. 775--Fiore, II. No. 1187--Martens, II. § 21--Stowell "Le Consul," pp. 217-222.

[Sidenote: Undoubted Causes of Termination.]

§ 436. Death of the consul, withdrawal of the exequatur, recall or dismissal, and, lastly, war between the appointing and the admitting State, are universally recognised causes of termination of the consular office. When a consul dies or war breaks out, the consular archives must not be touched by the local authorities. They remain either under the care of an employé of the consulate, or a consul of another State takes charge of them until the successor of the deceased arrives or peace is concluded.

[Sidenote: Doubtful Causes of Termination.]

§ 437. It is not certain in practice whether the office of a consul terminates when his district, through cession, conquest followed by annexation, or revolt, becomes the property of another State. The question ought to be answered in the affirmative, because the exequatur given to such consul originates from a Government which then no longer possesses the territory. A practical instance of this question occurred in 1836, when Belgium, which was then not yet recognised by Russia, declared that she would henceforth no longer treat the Russian consul Aegi at Antwerp as consul, because he was appointed before the revolt and had his exequatur granted by the Government of the Netherlands. Although Belgium gave way in the end to the urgent remonstrances of Russia, her original attitude was legally correct.

[Sidenote: Change in the Headship of States not Cause of Termination.]

§ 438. It is universally recognised that, in contradistinction to a diplomatic mission, the consular office does not come to an end through a change in the headship of the appointing or the admitting State. Neither a new patent nor a new exequatur is therefore necessary whether another king comes to the throne or a monarchy turns into a republic, or in any like case.

VII

CONSULS IN NON-CHRISTIAN STATES

Tarring, "British Consular Jurisdiction in the East" (1887)--Hall, "Foreign Powers and Jurisdiction," §§ 64-85--Halleck, I. pp. 385-398--Phillimore, II. §§ 272-277--Taylor, §§ 331-333--Twiss, I. § 136--Wheaton, § 110--Ullmann, §§ 63-65--Bulmerincq in Holtzendorff, III. pp. 720-738--Rivier, I. § 43--Nys, II. pp. 400-414--Calvo, III. §§ 1431-1449--Bonfils, Nos. 776-791--Pradier-Fodéré, IV. 2122-2138--Mérignhac, II. pp. 338-351--Martens, II. §§ 24-26--Martens, "Konsularwesen und Konsularjurisdiction im Orient" (German translation from the Russian original by Skerst, 1874)--Bruillat, "Étude historique et critique sur les juridictions consulaires" (1898)--Lippmann, "Die Konsularjurisdiction im Orient" (1898)--Vergé, "Des consuls dans les pays d'occident" (1903)--Hinckley, "American Consular Jurisdiction in the Orient" (1906)--Piggott, "Exterritoriality. The Law relating to Consular Jurisdiction, &c. in Oriental Countries" (new edition, 1907)--Mandelstam, "La justice ottomane dans ses rapports avec les puissances étrangères" (1911), and in R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384.

[Sidenote: Position of Consuls in non-Christian States.]

§ 439. Fundamentally different from the regular position is that of consuls in non-Christian States, with the single exception of Japan. In the Christian countries of the West alone consuls have, as has been stated before (§ 418), lost jurisdiction over the subjects of the appointing States. In the Mohammedan States consuls not only retained their original jurisdiction, but the latter became by-and-by so extended through the so-called Capitulations that the competence of consuls soon comprised the whole civil and criminal jurisdiction, the power of protection of the privileges, the life, and property of their countrymen, and even the power to expel one of their countrymen for bad conduct. And custom and treaties secured to consuls inviolability, exterritoriality, ceremonial honours, and miscellaneous other rights, so that there is no doubt that their position is materially the same as that of diplomatic envoys. From the Mohammedan countries this position of consuls has been extended and transferred to China, Japan, Persia, and other non-Christian countries, but in Japan the position of consuls shrank in 1899 into that of consuls in Christian States.

[Sidenote: Consular Jurisdiction in non-Christian States.]

§ 440. International custom and treaties lay down the rule only that all the subjects of Christian States residing in non-Christian States shall remain under the jurisdiction of the home State as exercised by their consuls.[782] It is a matter for the Municipal Laws of the several Christian States to organise this consular jurisdiction. All States have therefore enacted statutes dealing with this matter. As regards Great Britain, several Orders in Council and the Foreign Jurisdiction Act (53 & 54 Vict., c. 37) of 1890 are now the legal basis of the consular jurisdiction.[783] The working of this consular jurisdiction is, however, not satisfactory in regard to the so-called mixed cases. As the national consul has exclusive jurisdiction over the subjects of his home State, he exercises this jurisdiction also in cases in which the plaintiff is a native or a subject of another Christian State, and which are therefore called mixed cases.

[Footnote 782: See above, § 318.]

[Footnote 783: See Piggott, op. cit.]

[Sidenote: International Courts in Egypt.]

§ 441. To overcome in some points the disadvantages of the consular jurisdiction, an interesting experiment is being made in Egypt. On the initiative of the Khedive, most of the Powers in 1875 agreed upon an organisation of International Courts in Egypt for mixed cases.[784] These Courts began their functions in 1876. They are in the main competent for mixed civil cases, mixed criminal cases of importance remaining under the jurisdiction of the national consuls. There are three International Courts of first instance--namely, at Alexandria, Cairo, and Ismailia (formerly at Zagazig), and one International Court of Appeal at Alexandria. The tribunals of first instance are each composed of three natives and four foreigners, the Court of Appeal is composed of four natives and seven foreigners.

[Footnote 784: See Holland, "The European Concert in the Eastern Question," pp. 101-102; Scott, "The Law Affecting Foreigners in Egypt as the Result of the Capitulations" (1907); Goudy in The Law Quarterly Review, XXIII. (1907), pp. 409-413.]

[Sidenote: Exceptional Character of Consuls in non-Christian States.]

§ 442. There is no doubt that the present position of consuls in non-Christian States is in every point an exceptional one, which does not agree with the principles of International Law otherwise universally recognised. But the position is and must remain a necessity as long as the civilisation of non-Christian States has not developed their ideas of justice in accordance with Christian ideas, so as to preserve the life, property, and honour of foreigners before native Courts. The case of Japan is an example of the readiness of the Powers to consent to the withdrawal of consular jurisdiction in non-Christian States as soon as they have reached a certain level of civilisation.

IV. MISCELLANEOUS AGENCIES

I

ARMED FORCES ON FOREIGN TERRITORY

Hall, §§ 54, 56, 102--Lawrence, § 107--Halleck, I. pp. 477-479--Phillimore, I. § 341--Taylor, § 131--Twiss, I. § 165--Wheaton, § 99--Moore, II. § 251--Westlake, I. p. 255--Stoerk in Holtzendorff, II. pp. 664-666--Rivier, I. pp. 333-335--Calvo, III. § 1560--Fiore, I. Nos. 528-529.

[Sidenote: Armed Forces State Organs.]

§ 443. Armed forces are organs of the State which maintains them, because such forces are created for the purpose of maintaining the independence, authority, and safety of the State. And in this respect it matters not whether armed forces are at home or abroad, for they are organs of their home State even when on foreign territory, provided only they are there in the service of their State and not for their own purposes. For if a body of armed soldiers enters foreign territory without orders from, or without being otherwise in the service of, its State, but on its own account, be it for pleasure or for the purpose of committing acts of violence, it is no longer an organ of its State.

[Sidenote: Occasions for Armed Forces abroad.]

§ 444. Besides war, there are several occasions for armed forces to be on foreign territory in the service of their home State. Thus, a State may have a right to keep troops in a foreign fortress or to send troops through foreign territory. Thus, further, a State which has been victorious in war with another may, after the conclusion of peace, occupy a part of the territory of its former opponent as a guarantee for the execution of the Treaty of Peace. After the Franco-German war, for example, the Germans in 1871 occupied a part of the territory of France until the final instalments of the indemnity for the war costs of five milliards of francs were paid. It may also be a case of necessity for the armed forces of a State to enter foreign territory and commit acts of violence there, such as the British did in the case of the Caroline.[785]

[Footnote 785: See above, § 133, and below, § 446.]

[Sidenote: Position of Armed Forces abroad.]

§ 445. Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter. A crime committed on foreign territory by a member of the force cannot be punished by the local civil or military authorities, but only by the commanding officer of the forces or by other authorities of its home State.[786] This is, however, valid only in case the crime is committed either within the place where the force is stationed, or anywhere else where the criminal was on duty. If, for example, soldiers belonging to a foreign garrison of a fortress leave the rayon of the latter, not on duty but for recreation and pleasure, and then and there commit a crime, the local authorities are competent to punish them.

[Footnote 786: This is nowadays the opinion of the vast majority of writers on International Law. There are, however, still a few dissenting authorities, such as Bar ("Lehrbuch des internationalen Privat- und Strafrecht" (1892), p. 351), and Rivier (I. p. 333).]

[Sidenote: Case of McLeod.]

§ 446. An excellent example of the position of armed forces abroad is furnished by the case of McLeod,[787] which occurred in 1841. Alexander McLeod, who was a member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the Caroline, a boat equipped for crossing into Canadian territory and taking help to the Canadian insurgents, came in 1841 on business to the State of New York, and was arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the Caroline. The English Ambassador at Washington demanded the release of McLeod, on the ground that he was at the time of the alleged crime a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. McLeod was not released, but had to take his trial; he was, however, acquitted on proof of an alibi. It is of importance to quote a passage in the reply of Mr. Webster, the Secretary of Foreign Affairs of the United States, to a note of the British Ambassador concerning this affair. The passage runs thus:--"The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not ... to be holden personally responsible in the ordinary tribunals for their participation in it."

[Footnote 787: See Wharton, I. § 21, and Moore, II. § 179.]

[Sidenote: The Casa Blanca Incident.]

§ 446_a_. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers--three of them Germans--belonging to the French Foreign Legion which formed part of the French troops at Morocco, deserted at Casa Blanca and asked for and obtained the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German Consulate and a native soldier in the service of the consulate who were conducting them. Considering all Germans in Morocco without exception exterritorial and under the exclusive jurisdiction of her consul, Germany complained of this act of force and demanded that those of the deserters concerned who were German subjects should be given up to her by France, acknowledging the fact that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had even after their desertion remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 24, 1908, to bring it before the Hague Court of Arbitration, which gave its award[788] on May 22, 1909, on the whole in favour of France. The Court considered: that there was a conflict of jurisdiction with regard to the German deserters because they were as German subjects under the exclusive jurisdiction of the German Consulate, but as deserters from the French Foreign Legion under the exclusive jurisdiction of the French Army of Occupation; that under the circumstances of the case the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action on account of the fact that in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German Consulate and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, to have offered to leave them in sequestration of the German Consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the restitution on the part of France of the three German deserters to Germany.[789]

[Footnote 788: See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An English translation of the Award is printed in A.J. III. (1909), p. 755.]

[Footnote 789: The ambiguity of the award has justly been severely criticised. If, as the Court correctly asserts, the jurisdiction of an Army of Occupation must prevail over the jurisdiction of a consul over his nationals in a country granting exterritorial jurisdiction, a decision of the conflict on mere legal grounds would have to be entirely in favour of France, for it is difficult to see how a wrongfully acquired and illegally asserted protection can create any obligation on the part of those who are exclusively competent to exercise jurisdiction. But it is a well-known fact that Courts of Arbitration frequently endeavour to give an award which satisfies both parties and the ambiguity of the award in the Casa Blanca incident is manifestly due to this fact. The award is not of such a kind as one would expect from a Court of Justice, although it may be an excellent specimen of an arbitral decision. See A.J. III. (1909), pp. 698-701.]

II

MEN-OF-WAR IN FOREIGN WATERS

Hall, §§ 54-55--Halleck, I. pp. 215-230--Lawrence, §§ 107-109--Phillimore, II. §§ 344-350--Westlake, pp. 256-259--Taylor, § 261--Moore, II. §§ 252-256--Twiss, I. § 165--Wheaton, § 100--Bluntschli, § 321--Stoerk in Holtzendorff, II. pp. 434 and 446--Perels, §§ 11, 14, 15--Heilborn, "System," pp. 248-279--Rivier, I. pp. 333-335--Bonfils, Nos. 614-623--Mérignhac, II. pp. 554-564--Calvo, III. §§ 1550-1559--Fiore, I. Nos. 547-550--Testa, p. 86--Jordan, R.I. 2nd Ser. X. (1908), p. 343.

[Sidenote: Men-of-war State Organs.]

§ 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters nought whether men-of-war are at home or in foreign territorial waters or on the High Seas. But it must be emphasised that men-of-war are State organs only as long as they are manned and under the command of a responsible officer, and, further, as long as they are in the service of a State. A shipwrecked man-of-war abandoned by her crew is no longer a State organ, nor does a man-of-war in revolt against her State and sailing for her own purposes retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the Custom House of a State; further, private vessels chartered by a State for the transport of troops and war materials; and, lastly, vessels carrying a head of a State and his suite exclusively, are also considered State organs, and are, consequently, in every point treated as though they were men-of-war.

[Sidenote: Proof of Character as Men-of-war.]

§ 448. The character of a man-of-war or of any other vessel treated as a man-of-war is, in the first instance, proved by their outward appearance, such vessels flying the war flag and the pennant of their State.[790] If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops or for the purpose of carrying its head are indeed not the property of such State, although they bear, by virtue of their commission, the same character as men-of-war.[791]

[Footnote 790: Attention ought to be drawn here to Convention VII. (concerning the conversion of merchant-ships into war-ships) of the second Hague Peace Conference of 1907. Although this convention concerns the time of war only, it is indirectly of importance for the time of peace. Its stipulations are the following:--No merchant-ship converted into a war-ship can have the rights and duties appertaining to that status unless it is placed under the direct authority, immediate control, and responsibility of the Power whose flag it flies (art. 1). Merchant-ships converted into war-ships must bear the external marks which distinguish the war-ships of their nationality (art. 2). The commander must be in the service of the State and duly commissioned by the proper authorities. His name must figure on the list of the officers of the military fleet (art. 3). The crew must be subject to the rules of military discipline (art. 4). Every merchant-ship converted into a war-ship is bound to observe, in its operations, the laws and customs of war (art. 5). A belligerent who converts a merchant-ship into a war-ship must, as soon as possible, announce such conversion in the list of the ships of its military fleet (art. 6).]

[Footnote 791: Privateers used to enjoy the same character and exemptions as men-of-war.]

[Sidenote: Occasions for Men-of-war abroad.]

§ 449. Whereas armed forces in time of peace have no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly crossing the High Seas in all parts of the world for all kinds of purposes. Occasions for men-of-war to sail through foreign territorial waters and to enter foreign ports necessarily arise therefrom. And a special convention between the flag-State and the littoral State is not necessary to enable a man-of-war to enter and sail through foreign territorial waters and to enter a foreign port. All territorial waters and ports of the civilised States are, as a rule, quite as much open to men-of-war as to merchantmen of all nations, provided they are not excluded by special international stipulations or special Municipal Laws of the littoral States. On the other hand, it must be emphasised that, provided special international stipulations or special treaties between the flag-State and the littoral State do not prescribe the contrary in regard to one port or another and in regard to certain territorial waters, a State is in strict law always competent to exclude men-of-war from all or certain of its ports, and from those territorial waters which do not serve as highways for international traffic.[792] And a State is, further, always competent to impose what conditions it thinks necessary upon men-of-war which it allows to enter its ports, provided these conditions do not deny to men-of-war their universally recognised privileges.

[Footnote 792: The matter is controversial. See above, § 188, and Westlake, I. p. 192, in contradistinction to Hall, § 42.]

[Sidenote: Position of Men-of-war in foreign waters.]

§ 450. The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally recognised that the owner State of the waters into which foreign men-of-war enter must treat them in every point as though they were floating portions of their flag-State.[793] Consequently, a man-of-war, with all persons and goods on board, remains under the jurisdiction of her flag-State even during her stay in foreign waters. No official of the littoral State is allowed to board the vessel without special permission of the commander. Crimes committed on board by persons in the service of the vessel are under the exclusive jurisdiction of the commander and the other home authorities. Individuals who are subjects of the littoral State and are only temporarily on board may, although they need not, be taken to the home country of the vessel, to be there punished if they commit a crime on board. Even individuals who do not belong to the crew, and who after having committed a crime on the territory of the littoral State have taken refuge on board, cannot be forcibly taken off the vessel; if the commander refuses their surrender, it can be obtained only by means of diplomacy from the home State.

[Footnote 793: This rule became universally recognised during the nineteenth century only. On the change of doctrines formerly held in this country and the United States of America, see Hall, § 54, and Lawrence, § 107. English and American Courts now recognise the exterritoriality of foreign public vessels. Thus, in the case of the Exchange (7 Cranch, 116), the Supreme Court of the United States recognised the fact that the latter had no jurisdiction over this French man-of-war. In the case of the Constitution, an American man-of-war, the High Court of Admiralty in 1879 held that foreign public ships cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in the case of the Parlement Belge (L.R. 5 P.D. 197) the Court of Appeal, affirmed by the House of Lords in 1878, held that foreign public vessels cannot be sued in English Courts for damages for collision. Again the same was held in 1906 in the case of the Jassy, a Roumanian ship, 10 Aspinall, Mar. Cas. p. 278. See also the Charkieh (1873), L.R. 4 Adm. and Eccl. 59.]

On the other hand, men-of-war cannot do what they like in foreign waters. They are expected voluntarily to comply with the laws of the littoral States with regard to order in the ports, the places for casting anchor, sanitation and quarantine, customs, and the like. A man-of-war which refuses to do so can be expelled, and, if on such or other occasions she commits acts of violence against the officials of the littoral State or against other vessels, steps may be taken against her to prevent further acts of violence. But it must be emphasised that even by committing acts of violence a man-of-war does not fall under the jurisdiction of the littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.[794]

[Footnote 794: Attention ought to be drawn to the "Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law, in 1898, at its meeting at the Hague of which articles 8-24 deal with men-of-war in foreign waters; see Annuaire, XVII. (1898), pp. 275-280.]

[Sidenote: Position of Crew when on Land abroad.]

§ 451. Of some importance is the unsettled question respecting the position of the commander and the crew of a man-of-war in foreign ports when they are on land.

The majority of publicists distinguish between a stay on land in the service of the man-of-war and a stay for other purposes.[795] The commander and members of the crew on land officially in the service of their vessel, to buy provisions or to make other arrangements respecting the vessel, remain under the exclusive jurisdiction of their home State, even for crimes they commit on the spot. Although they may, if the case makes it necessary, be arrested to prevent further violence, they must at once be surrendered to the vessel. On the other hand, if they are on land not officially, but for purposes of pleasure and recreation, they are under the territorial supremacy of the littoral State like any other foreigners, and they may be punished for crimes committed ashore.

[Footnote 795: So also Moore, II. § 256.]

There are, however, a number of publicists[796] who do not make this distinction, and who maintain that commanders or members of the crew whilst ashore are in every case under the local jurisdiction.

[Footnote 796: See, for instance, Hall, § 55; Phillimore, I. § 346; Testa, p. 109. See also art. 18 of the "Règlement sur les régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law, in 1898, at its meeting at the Hague (Annuaire, XVII. (1898), p. 278).]

III

AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER

Hall, §§ 103-104*--Moore, IV. § 623--Bluntschli, §§ 241-243--Ullmann, §§ 66-67--Heffter, § 222--Rivier, I. § 44--Calvo, III. §§ 1337-1339--Fiore, II. Nos. 1188-1191--Martens, II. § 5--Adler, "Die Spionage" (1906), pp. 63-92.

[Sidenote: Agents lacking diplomatic or consular character.]

§ 452. Besides diplomatic envoys and consuls, States may and do send various kinds of agents abroad--namely, public political agents, secret political agents, spies, commissaries, bearers of despatches. Their position is not the same, but varies according to the class they belong to, and they must therefore be severally treated.

[Sidenote: Public Political Agents.]

§ 453. Public political agents are agents sent by one Power to another for political negotiations of different kinds. They may be sent for a permanency or for a limited time only. As they are not invested with diplomatic character, they do not receive a Letter of Credence, but a letter of recommendation or commission only. They may be sent by one full-Sovereign State to another, but also by and to insurgents recognised as a belligerent Power, and by and to States under suzerainty. Public (or secret) political agents without diplomatic character are, in fact, the only means for personal political negotiations with such insurgents and States under suzerainty.

As regards the position and privileges of such agents, it is obvious that they enjoy neither the position nor the privileges of diplomatic envoys.[797] But, on the other hand, they have a public character, being admitted as public political agents of a foreign State. They must, therefore, certainly be granted a special protection, but no distinct rules concerning special privileges to be granted to such agents seem to have grown up in practice. Inviolability of their persons and official papers ought to be granted to them.[798]

[Footnote 797: Heffter, § 222, is, as far as I know, the only publicist who maintains that agents not invested with diplomatic character must nevertheless be granted the privileges of diplomatic envoys.]

[Footnote 798: Ullmann, § 66, and Rivier, I. § 40, maintain that they must be granted the privilege of inviolability to the same extent as diplomatic envoys.]

[Sidenote: Secret Political Agents.]

§ 454. Secret political agents may be sent for the same purposes as public political agents. But two kinds of secret political agents must be distinguished. An agent may be secretly sent to another Power with a letter of recommendation and admitted by that Power. Such agent is a secret one in so far as third Powers do not know, or are not supposed to know, of his existence. As he is, although secretly, admitted by the receiving State, his position is essentially the same as that of a public political agent. On the other hand, an agent may be secretly sent abroad for political purposes without a letter of recommendation, and therefore without being formally admitted by the Government of the State in which he is fulfilling his task. Such agent has no recognised position whatever according to International Law. He is not an agent of a State for its relations with other States, and he is therefore in the same position as any other foreign individual living within the boundaries of a State. He may be expelled at any moment if he becomes troublesome, and he may be criminally punished if he commits a political or ordinary crime. Such secret agents are often abroad for the purpose of watching the movements of political refugees or partisans, or of Socialists, Anarchists, Nihilists, and the like. As long as such agents do not turn into so-called agents provocateurs, the local authorities will not interfere.

[Sidenote: Spies.]

§ 455. Spies are secret agents of a State sent abroad[799] for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is neither morally nor politically and legally considered wrong to send spies, such agents have, of course, no recognised position whatever according to International Law, since they are not agents of States for their international relations. Every State punishes them severely when they are caught committing an act which is a crime by the law of the land, or expels them if they cannot be punished. And a spy cannot legally excuse himself by pleading that he only executed the orders of his Government. The latter, on the other hand, will never interfere, since it cannot officially confess to having commissioned a spy.

[Footnote 799: Concerning spies in time of war, see below, vol. II. §§ 159 and 210, and Adler, "Die Spionage" (1906), pp. 7-62.]

[Sidenote: Commissaries.]

§ 456. Commissaries are agents sent with a letter of recommendation or commission by one State to another for negotiations, not of a political but of a technical or administrative character only. Such commissaries are, for instance, sent and received for the purpose of arrangements between the two States as regards railways, post, telegraphs, navigation, delineation of boundary lines, and so on. A distinct practice of guaranteeing certain privileges to such commissaries has not grown up, but inviolability of their persons and official papers ought to be granted to them, as they are officially sent and received for official purposes. Thus Germany, in 1887, in the case of the French officer of police Schnaebélé, who was invited by local German functionaries to cross the German frontier for official purposes and then arrested, recognised the rule that a safe-conduct is tacitly granted to foreign officials when they enter officially the territory of a State with the consent of the local authorities, although Schnaebélé was not a commissary sent by his Government to the German Government.

[Sidenote: Bearers of Despatches.]

§ 457. Individuals commissioned to carry official despatches from a State to its head or to diplomatic envoys abroad are agents of such State. Despatch-bearers who belong to the retinue of diplomatic envoys as their couriers must enjoy, as stated above (§ 405), exemption from civil and criminal jurisdiction and a special protection in the State to which the envoy is accredited, and a right of innocent passage through third States. But bearers of official despatches who are not in the retinue of the diplomatic envoys employing them must nevertheless be granted inviolability for their person and official papers, provided they possess special passports stating their official character as despatch-bearers. And the same is valid respecting bearers of despatches between the head of a State who is temporarily abroad and his Government at home.

IV

INTERNATIONAL COMMISSIONS

Rivier, I. pp. 564-566--Ullmann, § 68--Gareis, §§ 51-52--Liszt, § 16--Moore, IV. § 623.

[Sidenote: Permanent in Contradistinction to Temporary Commissions.]

§ 458. A distinction must be made between temporary and permanent international commissions. The former consist of commissaries delegated by two or more States to arrange all kinds of non-political matters, such as railways, post, telegraphs, navigation, boundary lines, and the like. Such temporary commissions dissolve as soon as their purpose is realised.[800] Besides temporary commissions, there are, however, permanent commissions in existence. They have been instituted by the Powers[801] in the interest of free navigation on two international rivers and the Suez Canal; further, in the interest of international sanitation; thirdly, in the interest of the foreign creditors of several States unable to pay the interest on their stocks; and, lastly, concerning bounties on sugar.

[Footnote 800: The position of their members has been discussed above, § 456. Quite novel institutions are the International Commissions of Inquiry recommended by the Hague Peace Conferences of 1890 and 1907. Articles 9 to 36 of the Hague Convention for the peaceful adjustment of international differences provide that, in international differences involving neither honour nor vital interests, and arising from a difference of opinion on matters of fact, the parties should institute an International Commission of Inquiry; this commission to present a report to the parties, which shall be limited to a statement of the facts. See below, vol. II. § 5.]

[Footnote 801: Only such permanent commissions are mentioned in the text as have been instituted by the Powers in conference. There are, however, many permanent commissions in existence which have been instituted by neighbouring Powers for local purposes, as for example:--(1) The American-Canadian International Fisheries Commission, instituted according to article 1 of the Treaty of Washington of April 11, 1908; see Treaty Series, 1908, No. 17. (2) The American-Canadian International Joint Commission concerning boundary waters, instituted by articles 7-12 of the Treaty of Washington of January 11, 1909; see Treaty Series, 1910, No. 23. (3) The permanent Mixed Fisheries Commission between the United States, Canada, and Newfoundland, instituted in consequence of the award of the Hague Court of Arbitration in the North Atlantic Fisheries Case.]

As regards the privileges to be granted to the members of either temporary or permanent international commissions, no distinct practice has grown up. If the treaty according to which a commission concerned does not stipulate anything as regards such privileges, none need be granted, but the persons of the commissioners must be specially protected. However that may be, there is no doubt that members of international commissions cannot, unless this be specially stipulated, claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs. Gore and Pinkney,[802] the American Commissioners in London under article 7 of the Jay Treaty, claimed these privileges, Great Britain refused to concede them.

[Footnote 802: See Moore, IV. § 623, p. 428.]

[Sidenote: Commissions in the interest of Navigation.]

§ 459. Four international commissions have been instituted in the interest of navigation--namely, two for the river Danube, one for the Congo river, and one for the Suez Canal.

1. With regard to navigation on the Danube, the European Danube Commission was instituted by article 16 of the Peace Treaty of Paris in 1856. This commission, whose members are appointed by the signatory Powers of the Treaty of Paris, was reconstituted by the Berlin Conference in 1878 and again by the Conference of London in 1883. The commission is totally independent of the territorial Governments, its rights are clearly defined, and its members, offices, and archives enjoy the privilege of inviolability. The competence of the European Danube Commission comprehends the Danube from Ibraila downwards to its mouth.[803]

[Footnote 803: Details in Twiss, I. §§ 150-152.]

2. The above-mentioned London Conference of 1883 has sanctioned regulations[804] in regard to the navigation and river-police of the Danube from the Iron Gates down to Ibraila, and has, by article 96 of these regulations, instituted the Mixed Commission of the Danube to enforce the observance of the regulations. The members of this Commission are delegates from Austria-Hungary, Bulgaria, Roumania, Servia, and the European Danube Commission--one member from each.[805]

[Footnote 804: Martens, N.R.G. 2nd Ser. IX. p. 394.]

[Footnote 805: Details in Twiss, § 152.]

3. The Powers represented at the Berlin Congo Conference of 1884 have sanctioned certain regulations in regard to navigation on the Congo river, and have, by articles 17-21 of the General Act of the Conference, instituted an International Commission of the Congo to enforce the observance of these regulations. This Commission, in which every signatory Power may be represented by one member, is totally independent of the territorial Governments, and its members, offices, and archives enjoy the privilege of inviolability.[806]

[Footnote 806: Details in Calvo, I. § 334. According to Liszt, § 16, II. 3, this Commission has never been appointed.]

4. By article 8 of the Treaty of Constantinople of 1888 in regard to the neutralisation of the Suez Canal, a Commission was instituted for the supervision of the execution of that treaty. The Commission consists of all the consuls of the signatory Powers in Egypt.[807]

[Footnote 807: See above, § 183.]

[Sidenote: Commissions in the interest of Sanitation.]

§ 460. Three international commissions in the interest of sanitation are in existence. For the purpose of supervising the sanitary arrangements in connection with the navigation on the lower part of the Danube, the International Council of Sanitation was instituted at Bucharest in 1881.[808] The Conseil supérieur de santé at Constantinople has the task of supervising the arrangements concerning cholera and plague. The Conseil sanitaire maritime et quarantenaire at Alexandria has similar tasks and is subject to the control of the Conseil supérieur de santé at Constantinople.[809] As regards the International Health Office at Paris, see below, § 590, No. 6.

[Footnote 808: See article 6 of the Acte additionnel à l'Acte public du 2 novembre 1865 pour la navigation des embouchures du Danube, signed on May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.]

[Footnote 809: Details in Liszt, § 16, III., where likewise information is to be found as regards the Conseil sanitaire at Tangiers, which consists of all the foreign envoys in Morocco.]

[Sidenote: Commissions in the Interest of Foreign Creditors.]

§ 461. Three international commissions in the interest of foreign creditors are in existence--namely, in Turkey since 1878, in Egypt since 1880, and in Greece since 1897.[810]

[Footnote 810: See Kaufmann, "Das internationale Recht der aegyptischen Staatsschuld" (1891), and Murat, "Le contrôle international sur les finances de l'Egypte, de la Grèce et de la Turquie" (1899).]

[Sidenote: Permanent Commission concerning Sugar.]

§ 462. According to article 7 of the Brussels Convention concerning bounties on sugar, a permanent commission was instituted in 1902 at Brussels.[811]

[Footnote 811: See below, § 585, No. 3.]

V

INTERNATIONAL OFFICES

Rivier, I. pp. 564-566--Nys, II. pp. 264-270--Ullmann, § 58--Liszt, § 17--Gareis, § 52--Descamps, "Les offices internationaux et leur avenir" (1894).

[Sidenote: Character of International Offices.]

§ 463. During the second half of the nineteenth century a great number of general treaties were entered into by a greater or lesser number of States for the purpose of settling in common certain non-political matters. These general treaties create so-called unions among the parties, and the business of these unions is in most cases transacted by international offices created specially for that purpose. The functionaries of these offices, however, ordinarily enjoy no privilege whatever. The number of these offices is constantly increasing. Only the more important ones are here enumerated, with the exclusion of the International Bureau of Arbitration,[812] which, although an international office, has no relation to those here discussed.

[Footnote 812: See below, § 474.]

[Sidenote: International Telegraph Offices.]

§ 464. In 1868 the international telegraph office of the International Telegraph Union was created at Berne. It is administered by four functionaries under the supervision of the Swiss Bundesrath. It edits the Journal Télégraphique in French.[813] Connected with this office is, since 1906, the International Office for Radiotelegraphy.[814]

[Footnote 813: See below, § 582, No. 2.]

[Footnote 814: See below, § 582, No. 4.]

[Sidenote: International Post Office.]

§ 465. The pendant of the international telegraph office is the international post office of the Universal Postal Union created at Berne in 1874. It is administered by seven functionaries under the supervision of the Swiss Bundesrath, and edits a monthly, L'Union Postale, in French, German, and English.[815]

[Footnote 815: See below, § 582, No. 1.]

[Sidenote: International Office of Weights and Measures.]

§ 466. The States which have introduced the metric system of weights and measures created in 1875 the international office of weights and measures in Paris. Of functionaries there are a director and several assistants. Their task is the custody of the international prototypes of the metre and kilogramme and the comparison of the national prototypes with the international.[816]

[Footnote 816: See below, § 588, No. 1.]

[Sidenote: International Office for the Protection of Works of Literature and Art and of Industrial Property.]

§ 467. In 1883 an International Union for the Protection of Industrial Property, and in 1886 an International Union for the Protection of Works of Literature and Art, were created, with an international office in Berne. There are a secretary-general and three assistants, who edit a monthly, Le Droit d'Auteur, in French.[817]

[Footnote 817: See below, §§ 584 and 585, No. 2.]

[Sidenote: The Pan-American Union.]

§ 467_a_. The first Pan-American Conference of 1889 created "The American International Bureau," which, since the fourth Conference of 1910, bears the name "The Pan-American Union." There are a director, an assistant director, and several secretaries. This office[818] publishes a "Monthly Bulletin."

[Footnote 818: See below, § 595.]

[Sidenote: Maritime Office at Zanzibar, and Bureau Spécial at Brussels.]

§ 468. In accordance with the General Act of the Anti-Slavery Conference of Brussels, 1890, the International Maritime Office at Zanzibar and the "Bureau Spécial" at Brussels were established; the latter is attached to the Belgian Foreign Office at Brussels.[819]

[Footnote 819: See below, § 592, No. 1.]

[Sidenote: International Office of Customs Tariffs.]

§ 469. The International Union for the Publication of Customs Tariffs, concluded in 1890, has created an international office[820] at Brussels. There are a director, a secretary, and ten translators. The office edits the Bulletin des Douanes in French, German, English, Italian, and Spanish.

[Footnote 820: See below, § 585, No. 1.]

[Sidenote: Central Office of International Transports.]

§ 470. Nine States--namely, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg, Russia, Switzerland--entered in 1890 into an international convention in regard to transports and freights on railways and have created the "Office Central des Transports[821] Internationaux" at Berne.

[Footnote 821: See below, § 583, No. 1.]

[Sidenote: Permanent Office of the Sugar Convention.]

§ 471. The States which concluded on March 5, 1902, at Brussels the Convention concerning bounties on sugar[822] have, in compliance with article 7 of this Convention, instituted a permanent office at Brussels. The task of this office, which is attached to the permanent commission,[823] also instituted by article 7, is to collect, translate, and publish information of all kinds respecting legislation on and statistics of sugar.

[Footnote 822: See below, § 585, No. 3.]

[Footnote 823: See above, § 462.]

[Sidenote: Agricultural Institute.]

§ 471_a_. In 1905 the Agricultural Institute[824] was established at Rome. It consists of a General Assembly and a Permanent Committee with a general secretary.

[Footnote 824: See below, § 586, No. 1.]

[Sidenote: International Health Office.]

§ 471_b_. In 1907 the International Health Office[825] was established at Paris. It consists of a director, a general secretary, and a number of clerks. It publishes at least once a month a bulletin in French.

[Footnote 825: See below, § 590, No. 6.]

VI

THE INTERNATIONAL COURT OF ARBITRATION

Lawrence, § 221--Bonfils, No. 970[8]--Despagnet, Nos. 736-740.

[Sidenote: Organisation of Court in general.]

§ 472. In compliance with articles 20 to 29 of the Hague Convention for the peaceful adjustment of international differences, the signatory Powers in 1900 organised the International Court of Arbitration at the Hague. This organisation comprises three distinct bodies--namely, the Permanent Administrative Council of the Court, the International Bureau of the Court, and the Court of Arbitration itself. But a fourth body must also be distinguished--namely, the tribunal to be constituted for the decision of every case. Articles 20 to 29 are now replaced by articles 41 to 50 of the Convention for the peaceful adjustment of international differences produced by the second Hague Peace Conference of 1907.

[Sidenote: The Permanent Council.]

§ 473. The Permanent Council (article 49) consists of the diplomatic envoys of the contracting Powers accredited to Holland and the Dutch Secretary for Foreign Affairs, who acts as president of the Council. The task of the Council is the control of the International Bureau of the Court, the appointment, suspension, and dismissal of the employés of the bureau, the fixing of the payments and salaries, the control of the general expenditure, and the decision of all questions of administration with regard to the business of the Court. The Council has, further, the task of furnishing the signatory Powers with a report of the proceedings of the Court, the working of the administration, and the expenses. At meetings duly summoned, the presence of nine members is sufficient to give the Council power to deliberate, and its decisions are taken by a majority of votes.

[Sidenote: The International Bureau.]

§ 474. The International Bureau (article 43) serves as the Registry for the Court. It is the intermediary for communications relating to the meetings of the Court. It has the custody of the archives and the conduct of all the administrative business of the Court. The contracting Powers have to furnish the Bureau with a certified copy of every stipulation concerning arbitration arrived at between them, and of any award concerning them rendered by a special tribunal. They likewise have to communicate to the Bureau the laws, regulations, and documents, if any, showing the execution of the awards given by the Court. The Bureau is (article 47) authorised to place its premises and its staff at the disposal of the contracting Powers for the work of any special[826] tribunal of arbitration not constituted within the International Court of Arbitration. The expense (article 50) of the Bureau is borne by the signatory Powers in the proportion established for the International Office of the International Postal Union.

[Footnote 826: See below, vol. II. § 20.]

[Sidenote: The Court of Arbitration.]

§ 475. The Court of Arbitration (article 44) consists of a large number of individuals "of recognised competence in questions of International Law, enjoying the highest moral reputation," selected and appointed by the contracting Powers. No more than four members may be appointed by one Power, but two or more Powers may unite in the appointment of one or more members, and the same individual may be appointed by different Powers. Every member is appointed for a term of six years, but his appointment may be renewed. The place of a resigned or deceased member is to be refilled by the respective Powers, and in this case the appointment is made for a fresh period of six years. The names of the members of the Court thus appointed are enrolled upon a general list, which is to be kept up to date and communicated to all the contracting Powers. The Court thus constituted has jurisdiction over all cases of arbitration, unless there shall be an agreement between the parties for a special tribunal of arbitrators not selected from the list of the members of the Court (article 42).

[Sidenote: The Deciding Tribunal.]

§ 476. The Court of Arbitration does not as a body decide the cases brought before it, but a tribunal is created for every special case by selection of a number of arbitrators from the list of the members of the Court. This tribunal (article 45) may be created directly by agreement of the parties. If this is not done, the tribunal is formed in the following manner:--Each party selects two arbitrators from the list, of whom one only can be its national or chosen from the persons appointed by it as members of the Permanent Court, and the four arbitrators so appointed choose a fifth as umpire and president. If the votes of the four are equal, the parties entrust to a third Power the choice of the umpire. If the parties cannot agree in their choice of such third Power, each party nominates a different Power, and the umpire is chosen by the united action of the Powers thus nominated. If within two months' time these two Powers cannot come to an agreement, each of them presents two candidates from the list of members of the Permanent Court, exclusive of the members selected by the parties and not being nationals of either of them. Which of the candidates thus selected shall be the umpire is determined by lot.

After this is done, the tribunal is constituted, and the parties communicate to the International Bureau of the Court the names of the members of the tribunal, which meets at the time fixed by the parties; the members of the tribunal must be granted the privileges of diplomatic envoys when discharging their duties outside their own country (article 46). The tribunal sits at the Hague (article 43), and, except in case of force majeure, the place of session can only be altered by the tribunal with the assent of the parties, but the parties can from the beginning designate another place than the Hague as the venue of the tribunal (article 60). The expenses of the tribunal are paid by the parties in equal shares, and each party pays its own expenses (article 85).[827]

[Footnote 827: The procedure to be followed by and before the Tribunal is described below, vol. II. § 27.]

The following nine awards have hitherto been given by the Permanent Court of Arbitration:--

(1) On October 14, 1902, in the case of the United States of America v. Mexico concerning the Fonds pieux des Californias; see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193.

(2) On February 22, 1904, in the case of Germany, Great Britain, and Italy v. Venezuela concerning certain claims of their subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57.

(3) On May 22, 1905, in the case of Germany, France, and Great Britain v. Japan concerning the interpretation of article 18 of the treaty of April 4, 1896, and of other treaties; see Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 376.

(4) On August 8, 1905, in the case of France v. Great Britain concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 356.

(5) On May 22, 1909, in the case of France v. Germany concerning the Casa Blanca incident; see Martens, N.R.G. 3rd Ser. II. (1910), p. 19.

(6) On October 23, 1909, in the case of Norway v. Sweden concerning the question of their maritime frontier; see Martens, N.R.G. 3rd Ser. III. (1910), p. 85.

(7) On September 7, 1910, in the case of the United States of America v. Great Britain concerning the North Atlantic Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89.

(8) On October 25, 1910, in the case of the United States of America v. Venezuela concerning the claims of the Orinoco Steamship Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.

(9) On February 24, 1911, in the case of France v. Great Britain concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 744.

VII

THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF JUSTICE

Lawrence, § 192--Despagnet, No. 683_bis_--Scott, "The Hague Peace Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V. (1911), pp. 302-324--Gregory in A.J. II. (1908), pp. 458-475.

[Sidenote: The International Prize Court.]

§ 476_a_. The International Prize Court will be established at the Hague according to Convention XII. of the second Hague Peace Conference of 1907. The following are the more important stipulations of this Convention concerning the constitution[828] of the Court:--The Court consists of fifteen judges and fifteen deputy-judges, who are appointed for a period of six years and who rank equally and have precedence according to the date of the notification of their appointment, but the deputy judges rank after the judges (articles 10 to 12). Of the fifteen judges of which the Court is composed, nine constitute a quorum; a judge who is absent or prevented from sitting is replaced by his deputy judge (article 14). The judges enjoy diplomatic privileges and immunities in the performance of their duties when outside their own country (article 13). Each contracting Power appoints one judge and one deputy judge, and the judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, Japan, and Russia are always summoned to sit, whereas the judges appointed by the other contracting Powers sit by rota, as shown in the table annexed to the Convention (article 15). If a belligerent Power has, according to the rota, no judge sitting in the Court, it may ask that the judge appointed by it shall take part in the settlement of all cases arising from the war; lots shall then be drawn as to which of the judges entitled to sit according to the rota shall withdraw, and this arrangement does not affect the judge appointed by the other belligerent (article 16). No judge can sit who has been a party, in any way whatever, to the sentence pronounced by the National Courts, or has taken part in the case as counsel or advocate for one of the parties; no judge or deputy judge can, during his tenure of office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever (article 17). The belligerent captor is entitled to appoint a naval officer of high rank to sit as assessor, but with no voice in the decision; a neutral Power, which is a party to the proceedings or whose national is a party, has the same right of appointment; if in applying this last provision more than one Power is concerned, they must agree among themselves, if necessary by lot, on the officer to be appointed (article 18). The Court elects its President and Vice-President by an absolute majority of the votes cast; after two ballots, the election is made by a bare majority, and, in case the votes are equal, by lot (article 19). The judges of the International Prize Court are entitled to travelling allowances in accordance with the regulations in force in their own country, and in addition thereto receive, while the Court is sitting or while they are carrying out duties conferred upon them by the Court, a sum of 100 Netherland florins per diem; the judges may not receive from their own Governments or from that of any other Power any remuneration in their capacity of members of the Court (article 20). The seat of the International Prize Court is at the Hague, and it cannot, except in the case of force majeure, be transferred elsewhere without the consent of the belligerents (article 21).

[Footnote 828: Details concerning the constitution of the International Prize Court and the mode of procedure to be followed by and before it, will be given below, vol. II. part III. chapter VI.]

[Sidenote: The proposed International Court of Justice.]

§ 476_b_. Valuable as is the Permanent Court of Arbitration at the Hague, it must be pointed out that it is not a real Court of Justice. For, firstly, it is not itself a deciding tribunal, but only a list of names out of which the parties in each case elect some members and thereby constitute the Court. Secondly, experience teaches that a Court of Arbitration endeavours more to give an award ex aequo et bono which more or less pleases both parties than to decide the conflict in a judicial manner by simply applying strict legal rules without any consideration as to whether or no the decision will please either party. Thirdly, since in conflicts to be decided by arbitration the arbitrators each time are selected by the parties, there are in most cases different individuals acting as arbitrators, so that there is no continuity in the administration of justice.

For these reasons it would be of the greatest value to institute side by side with the Permanent Court of Arbitration a real International Court of Justice consisting of a number of judges in the technical sense of the term, who are once for all appointed and will have to act in each case that the parties choose to bring before the Court. Such a Court would only take the legal aspects of the case into consideration and would base its decision on mere legal deliberations. It would secure continuity in the administration of international justice, because it would in each case consider itself bound by its former decisions. It would in time build up a valuable practice by deciding innumerable controversies which as yet haunt the theory of International Law. The second Hague Peace Conference of 1907 therefore discussed the question of creating such a Court, but only produced the draft of a Convention concerning the subject. It is, however, to be regretted that this draft Convention speaks of the creation of a judicial "Arbitration" Court, and thereby obliterates the boundary line between the arbitral and the strictly judicial decision of international disputes; it would have been better to speak simply of an International Court of Justice. However that may be, there is no doubt that the near future will bring the establishment of such a Court of Justice in contradistinction to the Permanent Court of Arbitration, for the parties to a conflict frequently hesitate to have it settled by arbitration, whereas they would be glad to have it settled by a strictly judicial decision of the legal questions involved. The same motives which urged the Powers to leave aside the Permanent Court of Arbitration in Prize Cases and to enter into a Convention for the establishment of a real International Prize Court, will in time compel the Powers to establish a real International Court of Justice.[829]

[Footnote 829: It should be mentioned that Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907--see Supplement to the American Journal of International Law, II. (1908), p. 231--established the "Central American Court of Justice" at Cartago, consisting of five judges, to which they have bound themselves to submit all controversies arising amongst them, of whatsoever nature, no matter what the origin may be, in case they cannot be settled by diplomatic negotiation. This Court is, however, only of local importance, although it is of great value, being the first Court of its kind.]

I. ON INTERNATIONAL TRANSACTIONS IN GENERAL

I

NEGOTIATION

Heffter, §§ 234-239--Geffcken in Holtzendorff, III. pp. 668-676--Liszt, § 20--Ullmann, § 71--Bonfils, Nos. 792-795--Pradier-Fodéré, III. Nos. 1354-1362--Rivier, II. § 45--Calvo, III. §§ 1316-1320, 1670-1673.

[Sidenote: Conception of Negotiation.]

§ 477. International negotiation is the term for such intercourse between two or more States as is initiated and directed for the purpose of effecting an understanding between them on matters of interest. Since civilised States form a body interknitted through their interests, such negotiation is in some shape or other constantly going on. No State of any importance can abstain from it in practice. There are many other international transactions,[830] but negotiation is by far the most important of them. And it must be emphasised that negotiation as a means of amicably settling conflicts between two or more States is only a particular kind of negotiation, although it will be specially discussed in another part of this work.[831]

[Footnote 830: See below, §§ 486-490.]

[Footnote 831: See below, vol. II. §§ 4-6.]

[Sidenote: Parties to Negotiation.]

§ 478. International negotiations can be conducted by all such States as have a standing within the Family of Nations. Full-Sovereign States are, therefore, the regular subjects of international negotiation. But it would be wrong to maintain that half- and part-Sovereign States can never be parties to international negotiations. For they can indeed conduct negotiations on those points concerning which they have a standing within the Family of Nations. Thus, for instance, while Bulgaria was a half-Sovereign State, she was nevertheless able to negotiate on several matters with foreign States independently of Turkey.[832] But so-called colonial States, as the Dominion of Canada, can never be parties to international negotiations; any necessary negotiation for a colonial State must be conducted by the mother-State to which it internationally belongs.[833]

[Footnote 832: See above, § 91.]

[Footnote 833: The demand on the part of many influential Canadian politicians, expressed after the verdict of the Arbitration Court in the Alaska Boundary dispute, that Canada should have the power of making treaties independently of Great Britain, necessarily includes the demand to become in some respects a Sovereign State.]

It must be specially mentioned that such negotiation as is conducted between a State, on the one hand, and, on the other, a party which is not a State, is not international negotiation, although such party may reside abroad. Thus, negotiations of a State with the Pope and the Holy See are not international negotiations, although all the formalities connected with international negotiations are usually observed in this case. Thus, too, negotiations on the part of States with a body of foreign bankers and contractors concerning a loan, the building of a railway, the working of a mine, and the like, are not international negotiations.

[Sidenote: Purpose of Negotiation.]

§ 479. Negotiations between States may have various purposes. The purpose may be an exchange of views only on some political question; but it may also be an arrangement as to the line of action to be taken in future with regard to a certain point, or a settlement of differences, or the creation of international institutions, such as the Universal Postal Union for example, and so on. Of the greatest importance are those negotiations which aim at an understanding between members of the Family of Nations respecting the very creation of rules of International Law by international conventions. Since the Vienna Congress at the beginning of the nineteenth century negotiations between the Powers for the purpose of defining, creating, or abolishing rules of International Law have been frequently and very successfully conducted.[834]

[Footnote 834: See below, §§ 555-568_b_.]

[Sidenote: Negotiations by whom conducted.]

§ 480. International negotiations are conducted by the agents which represent the negotiating States. The heads of these States may conduct the negotiations in person, either by letters or by a personal interview. Serious negotiations have in the past been conducted by heads of States, and, although this is comparatively seldom done, there is no reason to believe that personal negotiations between heads of States will not occur in future.[835] Heads of States may also personally negotiate with diplomatic or other agents commissioned for that purpose by other States. Ambassadors, as diplomatic agents of the first class, must, according to International Law, have even the right to approach in person the head of the State to which they are accredited for the purpose of negotiation.[836] The rule is, however, that negotiation between States concerning more important matters is conducted by their Secretaries for Foreign Affairs, with the help either of their diplomatic envoys or of agents without diplomatic character and so-called commissaries.[837]

[Footnote 835: See below, § 495.]

[Footnote 836: See above, § 365.]

[Footnote 837: Negotiations between armed forces of belligerents are regularly conducted by soldiers. See below, vol. II. §§ 220-240.]

[Sidenote: Form of Negotiation.]

§ 481. The Law of Nations does not prescribe any particular form in which international negotiations must be conducted. Such negotiations may, therefore, take place viva voce or through the exchange of written representations and arguments, or both. The more important negotiations are regularly conducted through the diplomatic exchange of written communications, as only in this way can misunderstandings be avoided, which easily arise during viva voce negotiations. Of the greatest importance are the negotiations which take place through congresses and conferences.[838]

[Footnote 838: See below, § 483.]

During viva voce negotiations it happens sometimes that a diplomatic envoy negotiating with the Secretary for Foreign Affairs reads out a letter received from his home State. In such case it is usual to leave a copy of the letter at the Foreign Office. If a copy is refused, the Secretary for Foreign Affairs can on his part refuse to hear the letter read. Thus in 1825 Canning refused to allow a Russian communication to be read to him by the Russian Ambassador in London with regard to the independence of the former Spanish colonies in South America, because this Ambassador was not authorised to leave a copy of the communication at the British Foreign Office.[839]

[Footnote 839: As regards the language used during negotiation, see above, § 359.]

[Sidenote: End and Effect of Negotiation.]

§ 482. Negotiations may and often do come to an end without any effect whatever on account of the parties failing to agree. On the other hand, if negotiations lead to an understanding, the effect may be twofold. It may consist either in a satisfactory exchange of views and intentions, and the parties are then in no way, at any rate not legally, bound to abide by such views and intentions, or to act on them in the future; or in an agreement on a treaty, and then the parties are legally bound by the stipulations of such treaty. Treaties are of such importance that it is necessary to discuss them in a special chapter.[840]

[Footnote 840: See below, §§ 491-554.]

II

CONGRESSES AND CONFERENCES

Phillimore, II. §§ 39-40--Twiss, II. § 8--Taylor, §§ 34-36--Bluntschli, § 12--Heffter, § 242--Geffcken in Holtzendorff, III. pp. 679-684--Ullmann, §§ 71-72--Bonfils, Nos. 796-814--Despagnet, Nos. 478-482--Pradier-Fodéré, VI. Nos. 2593-2599--Rivier, II. § 46--Nys, III. pp. 7-17--Calvo, III. §§ 1674-1681--Fiore, II. Nos. 1216-1224, and Code, Nos. 1206-1245--Martens, I. § 52--Charles de Martens, "Guide diplomatique," vol. I. § 58--Pradier-Fodéré, "Cours de droit diplomatique" (1881), vol. II. pp. 372-424--Zaleski, "Die völkerrechtliche Bedeutung der Congresse" (1874)--Nippold, "Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten" (1907), pp. 480-526.

[Sidenote: Conception of Congresses and Conferences.]

§ 483. International congresses and conferences are formal meetings of the representatives of several States for the purpose of discussing matters of international interest and coming to an agreement concerning these matters. As far as language is concerned, the term "congress" as well as "conference" may be used for the meetings of the representatives of only two States, but as a rule congresses or conferences denote such bodies only as are composed of the representatives of a greater number of States. Several writers[841] allege that there are characteristic differences between a congress and a conference. But all such alleged differences vanish in face of the fact that the Powers, when summoning a meeting of representatives, name such body either congress or conference indiscriminately. It is not even correct to say that the more important meetings are named congresses, in contradistinction to conferences, for the Hague Peace Conferences of 1899 and 1907 were, in spite of their grand importance, denominated conferences.

[Footnote 841: See, for instance, Martens, I. § 52; Fiore, II. §§ 1216-1224, and Code, No. 1231.]

Much more important than the mere terminological difference between congress and conference is the difference of the representatives who attend the meeting.

For it may be that the heads of the States meet at a congress or conference, or that the representatives consist of diplomatic envoys and Secretaries for Foreign Affairs of the Powers. But, although congresses and conferences of heads of States have been held in the past and might at any moment be held again in the future, there can be no doubt that the most important matters are treated by congresses and conferences consisting of diplomatic representatives of the Powers.

[Sidenote: Parties to Congresses and Conferences.]

§ 484. Congresses and conferences not being organised by customary or conventional International Law, no rules exist with regard to the parties of a congress or conference. Everything depends upon the purpose for which a congress or a conference meets, and upon the Power which invites other Powers to the meeting. If it is intended to settle certain differences, it is reasonable that all the States concerned should be represented, for a Power which is not represented need not consent to the resolutions of the congress. If the creation of new rules of International Law is intended, at least all full-Sovereign members of the Family of Nations ought to be represented. To the First Peace Conference at the Hague, nevertheless, only the majority of States were invited to send representatives, the South American Republics not being invited at all. But to the Second Peace Conference of 1907 forty-seven States were invited, although only forty-four sent representatives. Costa Rica, Honduras, and Abyssinia were invited, but did not send any delegates.

It is frequently maintained that only full-Sovereign States can be parties to congresses and conferences. This is certainly not correct, as here, too, everything depends upon the merits of the special case. As a rule, full-Sovereign States only are parties, but there are exceptions. Thus, Bulgaria, at the time a vassal under Turkish suzerainty, was a party to the First as well as to the Second Hague Peace Conference, although without a vote. There is no reason to deny the rule that half- and part-Sovereign States can be parties to congresses and conferences in so far as they are able to negotiate internationally.[842] Such States are, in fact, frequently asked to send representatives to such congresses and conferences as meet for non-political matters.

[Footnote 842: See above, § 478.]

But no State can be a party which has not been invited, or admitted at its own request. If a Power thinks it fitting that a congress or conference should meet, it invites such other Powers as it pleases. The invited Powers may accept under the condition that certain other Powers should or should not be invited or admitted. Those Powers which have accepted the invitation become parties if they send representatives. Each party may send several representatives, but they have only one vote, given by the senior representative for himself and his subordinates.

[Sidenote: Procedure at Congresses and Conferences.]

§ 485. After the place and time of meeting have been arranged--such place may be neutralised for the purpose of securing the independence of the deliberations and discussions--the representatives meet and constitute themselves by exchanging their commissions and electing a president and other officers. It is usual, but not obligatory,[843] for the Secretary for Foreign Affairs of the State within which the congress meets to be elected president. If the difficulty of the questions on the programme makes it advisable, special committees are appointed for the purpose of preparing the matter for discussion by the body of the congress. In such discussion all representatives can take part. After the discussion follows the voting. The motion must be carried unanimously to consummate the task of the congress, for the vote of the majority has no power whatever in regard to the dissenting parties. But it is possible that the majority considers the motion binding for its members. A protocol is to be kept of all the discussions and the voting. If the discussions and votings lead to a final result upon which the parties agree, all the points agreed upon are drawn up in an Act, which is signed by the representatives and which is called the Final Act or the General Act of the congress or conference. A party can make a declaration or a reservation in signing the Act for the purpose of excluding a certain interpretation of the Act in the future. And the Act may expressly stipulate freedom for States which were not parties to accede to it in future.

[Footnote 843: Thus at both Hague Peace Conferences the first Russian delegate was elected president.]

III

TRANSACTIONS BESIDES NEGOTIATION

Bluntschli, § 84--Hartmann, § 91; Gareis, § 77--Liszt, § 20.

[Sidenote: Different kinds of Transaction.]

§ 486. International transaction is the term for every act on the part of a State in its intercourse with other States. Besides negotiation, which has been discussed above in §§ 477-482, there are eleven other kinds of international transactions which are of legal importance--namely, declaration, notification, protest, renunciation, recognition, intervention, retorsion, reprisals, pacific blockade, war, and subjugation. Recognition has already been discussed above in §§ 71-75, as has also intervention in §§ 134-138, and, further, subjugation in §§ 236-241. Retorsion, reprisals, pacific blockade, and war will be treated in the second volume of this work. There are, therefore, here to be discussed only the remaining four transactions--namely, declaration, notification, protest, and renunciation.

[Sidenote: Declaration.]

§ 487. The term "declaration" is used in three different meanings. It is, first, sometimes used as the title of a body of stipulations of a treaty according to which the parties engage themselves to pursue in future a certain line of conduct. The Declaration of Paris, 1856, the Declaration of St. Petersburg, 1868, and the Declaration of London, 1909, are instances of this. Declarations of this kind differ in no respect from treaties.[844] One speaks, secondly, of declarations when States communicate to other States or urbi et orbi an explanation and justification of a line of conduct pursued by them in the past, or an explanation of views and intentions concerning certain matters. Declarations of this kind may be very important, but they hardly comprise transactions out of which rights and duties of other States follow. But there is a third kind of declarations out of which rights and duties do follow for other States, and it is this kind which comprises a specific international transaction, although the different declarations belonging to this group are by no means of a uniform character. Declarations of this kind are declarations of war, declarations on the part of belligerents concerning the goods they will condemn as contraband, declarations at the outbreak of war on the part of third States that they will remain neutral, and others.

[Footnote 844: See below, § 508, where is mentioned the attempt of the British Foreign Office to give to the term "declaration" a specific meaning.]

[Sidenote: Notification.]

§ 488. Notification is the technical term for the communication to other States of the knowledge of certain facts and events of legal importance. But a distinction must be drawn between obligatory and merely usual notification.

Notification has of late been stipulated in several cases to be obligatory. Thus, according to article 34 of the General Act of the Berlin Congo Conference of 1885, notification of new occupations and the like on the African coast is obligatory. Thus, further, according to article 84 of the Hague Convention for the peaceful adjustment of international differences, in case a number of States are parties to a treaty and two of the parties are at variance concerning the interpretation of such treaty and agree to have the difference settled by arbitration, they have to notify this agreement to all other parties to the treaty. Again, according to article 2 of the Hague Convention concerning the Commencement of Hostilities, 1907, the outbreak of war must be notified to the neutral Powers, and so must the declaration of a blockade,[845] according to article 11 of the Declaration of London, 1909.

[Footnote 845: See also Declaration of London, articles 11 (2), 16, 23, 25, and 26.]

Apart from such cases in which notification is stipulated as obligatory, it is in principle not obligatory, although in fact it frequently takes place because States cannot be considered subject to certain duties without the knowledge of the facts and events which give rise to these duties. Thus it is usual to notify to other States changes in the headship and in the form of government of a State, the establishment of a Federal State, an annexation after conquest, the appointment of a new Secretary for Foreign Affairs, and the like.

[Sidenote: Protest.]

§ 489. Protest is a formal communication on the part of a State to another that it objects to an act performed or contemplated by the latter. A protest serves the purpose of preservation of rights, or of making it known that the protesting State does not acquiesce in and does not recognise certain acts. A protest can be lodged with another State concerning acts of the latter which have been notified to the former or which have otherwise become known. On the other hand, if a State acquires knowledge of an act which it considers internationally illegal and against its rights, and nevertheless does not protest, such attitude implies renunciation of such rights, provided a protest would have been necessary to preserve a claim. It may further happen that a State at first protests, but afterwards either expressly[846] or tacitly acquiesces in the act. And it must be emphasised that under certain circumstances and conditions a simple protest on the part of a State without further action is not in itself sufficient to preserve the rights in behalf of which the protest was made.[847]

[Footnote 846: Thus by section 2 of the Declaration concerning Siam, Madagascar, and the New Hebrides, which is embodied in the Anglo-French Agreement of April 8, 1904, Great Britain withdrew the protest which she had raised against the introduction of the Customs tariff established at Madagascar after the annexation to France.]

[Footnote 847: See below, § 539, concerning the withdrawal of Russia from article 59 of the Treaty of Berlin, 1878, stipulating the freedom of the port of Batoum.]

[Sidenote: Renunciation.]

§ 490. Renunciation is the deliberate abandonment of rights. It can be given expressis verbis or tacitly. If, for instance, a State by occupation takes possession of an island which has previously been occupied by another State,[848] the latter tacitly renounces its rights by not protesting as soon as it receives knowledge of the fact. Renunciation plays a prominent part in the amicable settlement of differences between States, either one or both parties frequently renouncing their claims for the purpose of coming to an agreement. But it must be specially observed that mere silence on the part of a State does not imply renunciation; this occurs only when a State remains silent, although a protest is necessary to preserve a claim.

[Footnote 848: See above, § 247.]