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128

*

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would be a violation of the positive rule and fundamental principle of international jurisprudence, and no civilized Nation can now be found to refuse to another an acknowledged and indisputable right. They may dispute the right itself, and deny its existence as a right, but there is none so low and debased in moral character as to deny the duty and obligation to respect what is a manifest and acknowledged international right of another. Moreover, this obligation of the State is equally binding upon all its rulers, officers, and citizens,-in short upon each and every individual member that belongs to a State or body politic.

* VATTEL. Droit des Gens. Liv. II. Ch. V. § 63. HALLECK. Intern. Law. Edit. Sir Sherston Baker. Vol. I. p. 392.

Right of presentation and legation.

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CHAPTER XIX.

RIGHT OF LEGATION, NEGOTIATION
AND TREATY.

129. The measures generally resorted to in order to secure international relationship are in the first place those by which regular international communication is established between the respective Governments as the national organs of the States. This necessity establishes the right of presentation and of legation combined with that of negotiation and treaty.

The institution of permanent diplomatic missions between different States is the natural result of the progress of civilization. Among the ancient classical nations ambassadors were often employed and thus also in the Middle Ages, but permanent missions were first established in Europe after the peace of Westphalia. This is the era par excellence, and the starting point of the recognition accorded to permanent international intercourse which, growing more and more indispensable in proportion with the growing commercial and political interests of European States, caused the right of legation to become an established right in International Law. Thus it is now admitted that every independent State has both the right to send a public Minister any other State with which it wishes to entertain amicable relations, and the duty to receive the public Ministers of other States. This right

to

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IV

129

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is however modified in proportion to the means of individual States and the nature of their reciprocal relations. *

of

States.

With regard to the right of legation (jus lega- Right of embassy tionis), Sir Robert Phillimore makes the following remarks. "The principal rights and duties incident to embassies have been recognized by all communities at all removed from the condition of savages. Every Nation, so far sui juris as to be capable of negotiating, in its own name, with another Nation, has the right of sending an embassy (droit actif, Actives Gesandtschaftsrecht). Therefore, not only independent States have this, among other jura majestatis, but dependent States which have not an entire sovereignty, may possess this right if the nature of their connexion with the protecting State allows them the liberty of conducting their foreign relations with other States." †

The same necessity and reasons have very generally caused the jus legationis to be granted to the European governors of American or Asiatic dependencies. The cases of the Governor-General of British India, the GovernorGeneral of Netherlands India and the Spanish Governor-General of the Philippines are examples which readily occur. The great companies of European States, such as the Dutch, the French, and the British East India Companies, have often possessed this power. But this authority cannot be presumed; it must be conferred by the special and express grant of the respective Governments.

* VATTEL. Droit des Gens. Liv. IV. Chap. V. § 55-65. † PHILLIMORE. Comm. Intern. Law. Vol. II, p. 156.

of or

"International Law, strictly speaking," says Right of embassy Sir Robert Phillimore further, "is not concerned rebels. with cases of rebellion. There is no doubt that

The right of sending an ambas

:

sador involves that of receiving

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rebellious subjects are not entitled to the jus legationis in their communications with their sovereign; the foundation of right is wanting. Nevertheless, when rebellion has grown, from the numbers who partake in it, the duration of it, the severity of the struggle, and other causes, into the terrible magnitude of a civil war, the emissaries of both parties have been considered entitled to the privilege of ambassadors, so far as their personal safety is concerned. 'In hoc eventu," Grotius says, 'gens una pro tempore quasi duæ gentes habetur.'* Peace and order, under these circumstances, can only be restored, the shedding of blood can only be stayed, through the medium of negotiation: negotiation must be carried on through negotiators, and negotiators cannot act unless their personal security be guaranteed. So far as the State itself, in which the rebellion has broken out, is concerned, it must always be a question of circumstances, and incapable of definition beforehand, when the citizen is to be considered as entitled to the privilege of an enemy rather than the punishment of a rebel."

"States which have the right to send, have the right to receive (droit passif, passives Gesandtschaftsrecht). The active and the passive right of legation are inseparably connected, and, as will be seen, the rule extends generally to the sending and reception of the same grade of diplomatic agents. It is said by Klüber and Miruss that dependent States have not necessarily the latter, because they have the former right. But it does not appear on what principle this position is to be maintained, and no authority is cited in support of it. On the other hand, Vattel, Martens, Wheaton and other writers do not qualify the general principle which has been laid down.

* GROTIUS. L. II. B. 18, 2.

Perhaps, however, where the right to send is exclusively derived from treaty, (as in the now obsolete cases of Moldavia and Wallachia), the right of reception, not being mentioned in the instrument, cannot be inferred as a matter of necessary implication. But, as a general proposition, the right of sending and receiving embassies is inherent in all States; and it therefore follows that to prevent the free exercise, in either way, of this right, would constitute a very heinous violation of International Law, a crime, which, inasmuch as it affected the interests, would justify the interference of all Nations on behalf of the one which had been so injured. A State has a right to receive, as it has to send, an embassy; but a State is not under an obligation of duty to send or to receive an embassy."

"Upon the consideration of this last point, Questions with three questions arise, viz.:

regard the obligation of sending and

1. Is a State bound, as a general proposition, receiving an to receive an ambassador at all?

ambassador.

2. Is it bound to receive any ambassador duly commissioned?

3. Is it bound to allow a resident embassy within its territories (legationem assiduam)?

"With respect to the first question, the sound opinion appears to be that a State is bound to give audience to an ambassador, and, except under most extraordinary circumstances, to receive him for that purpose within its territories and at its Court. If, however, such circumstances do exist, some place must be specified-Vattel suggests the frontier-at which the ambassador's message must be received. A State may be aware that an ambassador is sent for a mischievous purpose, or, it may be, from a third Nation for a purpose conceived to be inexpedient by the refusing State,

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