transmitted to the Ministry of Foreign Affairs, where it is examined in the light of its origin and according to the interest of the country. A principle of law is invoked by the claimant in favor of his claim; a principle of law is opposed to defeat the claim by the country against which it is brought. Better than principle is the practise of one or other nation in dispute, and stronger still are the precedents of many nations, which are likewise the permanent evidence of agreement upon conflicting views. It is the process of the law court on a larger scale where principle is opposed to principle, and precedent to precedent. The court is enlightened by the argument of contending counsel; in full knowledge of the cause at issue and of the principles of law advanced as applicable, it decides. A judgment is a precedent because it has been carefully considered and argued; on the other hand, a judgment rendered without argument is treated with scant respect, and judges are wont from the bench to inform counsel who cite such a judgment as an authority, that it was decided without the benefit of argument. Conceived in the practise of law, born in the law court, and matured in the study, the treatise on the law of nations has prevailed and still prevails, because of this extraordinary combination of theory and practice in the exposition of a subject in which nations are and must be interested, if their relations are to be decided by principles and their practical application.

It is rare that any man born of woman has a title to continued remembrance; it is still rarer that he has more than one title; and certainly there can be few in the annals of history who have more varied and more permanent claims to remembrance than Grotius, who in his youth was called the "Miracle of Holland", and who has justified that title before posterity. Great as are these titles, he is held in grateful remembrance for what many have called an incident in a busy life, but which we know was his very life, his treatise on the Rights and Duties of Nations, which, written at various times, culminated in the three books on the Rights and Duties of Nations in War and Peace.

If it is immortality to live in the lives of others, how sure must the immortality be of him who lived not merely in the lives of those with whom he came into contact when he was still a thing of flesh and blood, but who lives in the lives of subsequent centuries, and whose life has influenced nations and bids fair to control their actions for a period to which we can not assign definite bounds?

His book has become the law of nations of which it was the first systematic exposition, if, indeed, he is not the father of the system. Sir James Mackintosh, a man of large and varied learning, impressionable and subject to emotion, has said, and truly, of the work of Grotius, that it "is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the genius and learning of one man." And the judicious. Hallam, who was not prone to exaggeration, and whose views are not colored

'Bynkershoek calls Grotius & Méyas in his De Dominio Maris, p. 374.

by enthusiasm, as he was a man of cold and discriminating judgment, may be considered as pronouncing the judgment of mankind upon Grotius and his services to international law when he says:

The book may be considered as nearly original, in its general platform, as any work of man in an advanced stage of civilization and learning can be. It is more so, perhaps, than those of Montesquieu and Smith. No one had before gone to the foundations of international law so as to raise a complete and consistent superstructure; few had handled even separate parts, or laid down any satisfactory rules concerning it."

Expressed differently, the views of Mackintosh and Hallam are to the effect that if everything which Grotius had written, or spoken, should pass away, leaving us only the three books on the Law of War and Peace, he would, indeed, have justified his existence. It would be exaggeration, but it would be pardonable exaggeration, to say that his life and his works would alone give to his country a claim to remembrance, if the waters of oblivion should threaten it.

Perhaps the best comment upon his life and influence is that, although he gave war first place in the rights and duties of nations, any man writing today would give peace that predominance; in other words, the whole standard of thought has been changed, peace being in conception, and bound to be in fact, the normal state of things in any system of law; whereas war is at best an abnormal condition and as such opposed to a settlement of disputes according to any system of law which is itself derived from justice.

'Henry Hallam, Introduction to the Literature of Europe (fourth edition, 1854), Vol. II, p. 545.

DIPLOMATIC PREROGATIVES OF NON-DIPLOMATS

BY C. VAN VOLLENHOVEN

University of Leyden
I

The third item on the first list of subject-matters taken up for further consideration by the League of Nations Committee of Experts for the Progressive Codification of International Law (Geneva, April 8, 1925) reads: "Diplomatic privileges and immunities." It is to be hoped and expected that the committee, in considering a problem as old as international law itself, will not feel satisfied with clinging to conceptions and solutions of by-gone centuries, but will endeavor to give them, within the frame-work of post-war international law, a new stamp.

Two reasons for a fresh start come to the forefront.

The first one relates to the fact that, between 1899 and 1920, diplomatic prerogatives have been extended-more or less incidentally, at all events not in a complete and consistent manner to authorities, not of foreign countries, but of the family of nations: members of tribunals taken from the Hague Arbitration Court, members of the Council and Assembly of the League of Nations (and other representatives of League members), Geneva officials of the League, members of the Permanent Court of International Justice. There is plenty of cause to inquire how far the traditional practice and theory concerning diplomatic prerogatives are applicable indeed to international authorities of this type, and how far they are not.

The second motive for carefully examining this topic is in the ambiguity or amphibiousness of its meaning and scope. When, at the Hague Peace Conference of 1899, the Belgian delegate Chevalier Descamps first suggested to grant these prerogatives to members of the Hague Court when engaged on the business of the court, and when, supported by the American delegate Mr. F. W. Holls (New York City), he carried the day,1 two rival ideas appear to have been mixed in the thoughts of the promoters. Mr. Descamps obviously saw the main value of the provision in the fact that the prerogatives would add honor: "It was desired especially to honor the position of arbitrator," he said; the provision "brings out the high position of the members of the Court and can only contribute to increase the prestige which should surround them," he wrote. On the other hand, Mr. Holls seems to have laid stress rather on

1 Conférence internationale de la Paix, 1899, première partie, p. 125; quatrième partie, pp. 23– 24, 66, 69–70, 150, 162–163, 171, 189. American translation of the same (Carnegie Endowment), 1920, pp. 134, 606-607, 653, 656–657, 743, 757, 765, 785–786.

• Edition in French, quatrième partie, p. 24; edition in English, p. 606. • Edition in French, première partie, p. 125; edition in English, p. 134.

8

the advantage of immunity, that is of inviolability, as advocated by Mr. Descamps when he first suggested the insertion. The proceedings of the Second Hague Peace Conference, 1907, relative to these prerogatives in connection either with the Arbitration Court,5 or with the planned Court of Arbitral Justice, or with the planned International Prize Court, did not furnish any new illumination; nor has the extension of these prerogatives in the Covenant of the League of Nations to international representatives and officials, an extension which originated in the British League of Nations section draft of January 20, 1919 (Lord Robert Cecil), been elucidated by any comment. The dilemma of either granting honor or granting immunity returned, however, at the creation of the Permanent Court of International Justice. Assigning prerogatives to members of the World Court had been advocated by the Advisory Committee of Jurists (The Hague, 1920) on the ground that "the grant of these privileges will increase the prestige due to their great personal merits"; 10 but in the third committee of the First Assembly meeting (Geneva, 1920) a British proposal to extend them even to judges belonging to the country where the Court would have its seat seemed to have in view inviolability rather than honor, and an amendment proposed by Mr. Politis (Greece) explicitly mentioned "inviolability" for official correspondence and for acts relating to the performance of the judges' duties."11

The current handbooks of international law, while bestowing ample attention on these prerogatives in relation to the diplomats themselves, do not give them more than a passing attention in connection with these modern groups of international non-diplomats. Yet the position of a national representative in a foreign country is different from the position of any representative of the family of nations, and the conditions and needs of diplomats as such are different from the conditions and needs of, for instance, international judges or arbitrators. In pointing out some of these differences which will require attention in future drafts of treaty provisions, we will constantly see in the background the dilemma of either granting honor or granting immunity.

• Edition in French, quatrième partie, pp. 150, 162; edition in English, pp. 743, 757.

• Deuxième Conférence internationale de la Paix, 1907, tome I, p. 420; tome II, pp. 123, 355, 575, 714, 741, 765. American translation of the same (Carnegie Endowment), 1921, I, pp. 417-418; II, pp. 121, 357, 577, 712, 738, 762.

• Edition in French, tome I, pp. 362-363; tome II, pp. 183, 600, 662-663, 1036. Edition in English I, pp. 357–358; II, pp. 184, 603, 664-665, 1020.

"Edition in French, tome I, p. 195; tome II, pp. 25, 822, 841, 1081. Edition in English I, p. 194; II, pp. 24, 818, 836, 1061.

" Article 12 (Baker, Woodrow Wilson and World Settlement, III, 1922, p. 134). 'Hurst-Miller compromise draft of February 3, 1919, Article 5, and official draft of February 14, 1919, Article VI (Baker, Woodrow Wilson and World Settlement, III, 1922, pp. 146, 165).

10 Procès-verbaux des séances du Comité consultatif (in French and English), 1920, p. 717 (cf. pp. 326, 376, 479).

11 Documents au sujet de Mesures prises

aux termes de l'article 14 du Pacte (in French and English), 1921, pp. 127–128 (cf. pp. 56, 70, 81, 191, 208, 216, 228, 261).

II

(a) In regard to ambassadors and other diplomats, the treatment afforded them in the country of their temporary residence is by far the main thing; the right of unhampered passage to the receiving state or from that state is of minor importance, and has been left to international courtesy rather than been regulated by international law. As a consequence, authors only occasionally speak of a "right of passage," existing in a vague way only and with doubtful extent. As for international judges or arbitrators, League representatives and League officials, on the contrary, a right of free transit on their way to and from their duties seems to be of vital interest, as Mr. RicciBusatti (Italy) rightly pointed out at The Hague in 1920.12 No special reason appears why this first immunity should have less force as against the home state of the grantee (France versus a French member of one of the Hague Courts) than against foreign states.

(b) Foremost among diplomatic prerogatives is the right of free communication of diplomats with their respective governments. In this very form it has no equivalent for international judges or arbitrators and League officials (it would have importance for those who act as agents and counsel in international law suits); for representatives of League Members it is indispensable. Even the home state of a League representative (Switzerland versus a Swiss delegate at Geneva) will fully recognize this immunity: it has all the benefit of it.

(c) The dwelling houses (hotels, apartments), offices (chanceries), archives and perhaps vehicles of diplomats may not, as a rule, be entered or searched by authorities of the receiving state; and their personal effects may not, as a rule, be detained by these authorities. This immunity should have no inferior significance for international judges, arbitrators or League authorities than it has for diplomats; and as far as it is indispensable to enable them to fulfill their international functions "without hindrance or molestation," 13 it ought to be respected quite as liberally by the arbitrator's home state (the Netherlands versus a Dutch arbitrator at the Peace Palace) as by foreign states.

(d) The delicate problem of exemption from actual coercion by the local police, a prerogative which is going to suffer more and more encroachments,14 from compulsion to give evidence as witnesses in criminal or civil law suits, and even from execution of awards in suits for which the diplomat has waived his prerogative and has walked into court of his own will, is one where the distinction between authorities residing in a foreign country and authorities residing in their own country should play its part. When applied to international judges and similar persons, this immunity and the

12 Procès-verbaux des séances du Comité consultatif (in French and English), 1920, p. 479. 13 Cf. Hyde, International Law, I, 1922, p. 739.

14 IV Moore, Digest, 678; Oppenheim, International Law, third edition, I, 1920, pp. 570– 571; Eagleton in AMERICAN JOURNAL OF INTERNATIONAL LAW, 1925, p. 296, et seq.