THE STATUS OF MR. BAKHMETEFF, THE RUSSIAN AMBASSADOR AT WASHINGTON1 We have searched the records in vain for a historical parallel to the strange case of Mr. Bakhmeteff, the Russian Ambassador at Washington still representing a government (the Kerensky régime) which has been defunct for nearly five years, and which enjoyed a short-lived existence of but a few months in 1917. Most of the cases cited by the authorities bearing on the termination of diplomatic missions deal with the recall or dismissal of ministers and lack applicability to this case. Among the eleven different causes resulting in the termination of a diplomatic mission, Oppenheim (Vol. I, 3rd ed., pp. 581 ff.) includes "revolutionary change of government in the sending or receiving state." This Anglo-German authority, who among all the publicists consulted, treats this particular topic most carefully, distinguishes between the "termination" and mere "suspension" of diplomatic missions. He says that "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." He adds: "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." From which it appears that in Oppenheim's view a revolutionary change may result either in the termination or mere suspension of the diplomatic mission. But he does not clearly indicate the differing circumstances causing these different results, though he is clear on the point (p. 585) that "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. 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." There seems to be a difference of opinion among the authorities as to whether a revolutionary change in the form of government results in the termination or mere suspension of a diplomatic mission. 1 Written before the publication of the letter of Mr. Bakhmeteff to Secretary of State Hughes dated April 28, 1922, and the Secretary's reply of April 29th. (For the letters referred to, see The Washington Post, June 5, 1922).—Ed. Thus Hall (5th ed., p. 304) notes that "there is some difference of opinion as to whether the death of a sovereign to whom an ambassador or minister is accredited in strictness necessitates a fresh letter of credence, but it is, at least, the common habit to furnish him with a new one; though the practice is otherwise when the form of government is republican." He adds: "A like difference of opinion exists as to the consequences of change of government through revolution, it being laid down on one hand that the relations between the state represented by a minister or other diplomat and the new government may be regarded as informal or official at the choice of the parties, and on the other that a new letter of credence is not only necessary, but that the necessity is one of the distinctive marks separating the position of a diplomatist from that of a consul. Practice appears to be in favor of the latter view." In his Digest of International Law, Moore (IV, p. 472) thus summarizes the American viewpoint: "A change in the government of the country to which a minister is sent, although it involves furnishing him with new credentials to the ruling authorities, does not terminate the mission." And in his recent treatise on International Law as Interpreted and Applied by the United States (I, p. 730), Hyde observes: "The change of a head of a state, or the change of its government, is not believed to terminate a foreign mission. The utmost consequence of either event is the suspension of the functions of the minister until the presentation of new letters of credence." On the main question as to whether a revolutionary movement in the sending or receiving state has the effect of terminating or merely suspending diplomatic missions, it would seem that this should be made to depend upon the success or failure of the movement. If the revolution succeeds and the former government is definitely overthrown, diplomatic missions, whether sent by or accredited to it, should be regarded as having terminated once and for all. So long as a state of uncertainty prevails as to the issue of the revolutionary movement, the missions may be looked upon as suspended during the interval. If the movement definitely fails, their former status may be said to revive.2 Applying these principles to the strange case of Mr. Bakhmeteff, does it not seem reasonably clear that his mission should have been regarded as at an end as soon as it was reasonably clear that the Kerensky régime which he represented was definitely overthrown, and that there was little or no prospect of its revival? In any case, official intercourse with him and his aids should have been suspended during the longer or shorter period of uncertainty which appears to have existed in the official mind at Washington after the establishment of the Russian Soviet Republic in November, 1917. If this had been done, much subsequent embarrassment might have been avoided, and our Government would not find itself in its present awkward position. 2 See Pradier-Fodéré, Traité, III, p. 462, on this point. Of course our Government is probably as much within its rights in continuing to recognize an ambassador from a government which has long ceased to exist as it would be in recognizing one purporting to come from the planet Jupiter or some island in the Pacific Ocean which had been destroyed by a volcano or an earthquake. And as long as we continue to recognize him, he is entitled, by custom and courtesy at least, to diplomatic privileges and immunities. As Satow (Diplomatic Practice, I, p. 368) observes: "Whatever may be the causes that lead to the termination of a mission, the minister remains in possession of the immunities and privileges attached to his public character until he leaves the country to which he has been accredited."3 AMOS S. HERSHEY. THE SWISS DECISION IN THE BOUNDARY DISPUTE On March 24, 1922, the Federal Council of Switzerland rendered its award upon certain boundary disputes pending between Colombia and Venezuela. The dispute, as is so often the case between nations, has a long history. It was due, in first instance, to the uncertain boundaries of the Spanish possessions in America, and the desire of the Republics succeeding to the Spanish dominions in America to render definite what had been indefinite with due regard to their respective interests. There is one passage from the award which should be quoted by way of introduction, as it lays down a principle common to the Spanish-American Republics, and suggests a connection with a famous doctrine of North-American origin, which did not escape the keen eye and trained intelligence of the arbitrator. In English, of course the text is in French, this part of the award is as follows: When the Spanish colonies of Central and South America proclaimed their independence in the second decade of the nineteenth century, they adopted a principle of constitutional and international law to which they gave the name of uti possidetis juris of 1810. The principle laid down the rule that the boundaries of the newly established republics would be the frontiers of the Spanish provinces which they were succeeding. This general principle offered the advantage of establishing the absolute rule that in law no territory of old Spanish America was without an owner. To be sure there were many regions that had not been occupied by the Spanish and many regions that were unexplored or inhabited by uncivilized natives, but these sections were regarded as belonging in 3 As if in some doubt as to whether this statement is not too absolute, Satow adds: "In any case, his person continues to be inviolable." Vattel (IV, chap. 9, p. 125) indicated as the reason for the retention by an ambassador of his diplomatic rights and privileges after the termination of his mission that he must "return to his principal, to whom he is to make a report of his embassy." This reason can hardly be said to be operative in the case of Mr. Bakhmeteff. law to the respective republics that had succeeded the Spanish provinces to which these lands were connected by virtue of old royal decrees of the Spanish mother country. These territories, although not occupied in fact, were by common agreement considered as being occupied in law by the new republics from the very beginning. Encroachments and ill-timed efforts at colonization beyond the frontiers, as well as occupations in fact, became invalid and ineffectual in law. This principle also had the advantage, it was hoped, of doing away with boundary disputes between the new states. Finally it put an end to the designs of the colonizing states of Europe against lands which otherwise they could have sought to proclaim as res nullius. The international status of Spanish America was from the very beginning quite different from that of Africa for example. This principle later received general sanction under the name of the Monroe Doctrine, but had long before been the basis of South American public law.1 As long as Colombia and Venezuela were united, the delimitation of boundaries was not so important as it became after 1830, in which year the union of Venezuela, Colombia and Ecuador was dissolved, each state asserting the independence which it has since maintained. Finally, on September 14, 1881, the representatives of Colombia and of Venezuela signed a treaty of arbitration submitting to the Crown of Spain the question of boundaries between the United States of Colombia and the United States of Venezuela. The decision was not to be a compromise. The government of His Majesty the King of Spain was to decide the disputes as a judge according to principles of law-the French phrase "en qualité d'arbitre Juge de droit". Each of the contracting governments was to present its side of the case within eight months after His Majesty had been invited to act as arbiter. The award was to determine once and for all the boundaries in dispute between the two countries, and the award itself was to become binding immediately upon its publication in the official Gaceta of the government rendering it. A difficulty which had not been foreseen arose, because of the death of Alphonse XII in 1885. Apparently there were intimations that it might be impossible to draw the lines in accordance to law, and that it would be desirable in such case to allow the arbiter to exercise his discretion. Therefore, on January 15, 1886, there was signed what is called "The Act of Paris", completing the arbitration agreement of September 14, 1881. In the first place, the plenipotentiaries of Colombia and Venezuela agreed that the submission was really to the government of Spain, not to the particular person who happened to be King at the time when the agreement was made and that, therefore, the government of the Queen Regent would be authorized to render the award in place of His Majesty Alphonse XII, who had died in the meantime. It was also agreed that the arbiter should fix the boundary in the manner which he felt would best accord with the documents whenever 1 Sentence arbitrale du Conseil Fédéral Suisse sur diverses questions de limites pendantes entre la Colombie et le Vénézuéla, Berne, 24 Mars 1922. Neuchatel, Imprimerie Paul Attinger, 1922, pp. 5-6. It is the unanimous opinion of this court that the plaintiffs herein are not entitled to injunctive relief and that their application for a temporary injunction should be denied; that the California Statute here involved violates no provision of the Constitution of the United States, nor does it conflict with any provision or stipulation of the Treaty between Japan and the United States. We are entirely satisfied with the decision of the court in the recent cases of Terrance vs. Thompson, 274 Fed. 841; Porterfield and Mizuno vs. Webb, Attorney General, et al., 279 Fed. 114, and O'Brien and Moye vs. Webb, Attorney General, et al., 279 Fed. 117, and believe the opinion in each of those cases is sound law and correctly interprets those provisions of the constitution and treaty here involved. In Terrance vs. Thompson, 274 Fed. 841 (1921), the nature of the treaty between the United States and Japan, and the extent to which it conferred rights upon Japanese subjects residing within the United States, are considered in detail. In this case the plaintiffs, Terrance, et ab., were the owners of certain land in the State of Washington, who wished to lease their lands to Nakatsuka, a subject of Japan, who desired a lease of the lands. It is stated that the Japanese in question was engaged in farming, wholesale and retail trading in foreign products, and that the leasing of the land in question would be prevented by the enforcement by Thompson, the Attorney General of the State of Washington, of Chapter 50, Laws of Washington, 1921, commonly known as the Alien Land Bill. The United States District Court of the State of Washington held that the treaty with Japan did not grant the right to lease property for agricultural purposes; that the law of the State did not conflict with the provisions of the treaty, and that, therefore, the Attorney General of the State should not be enjoined from enforcing the provisions of the state law. The act in question prohibited the purchase or lease of lands by an alien who had not declared his intention to become a citizen. Inasmuch as it is held that a Japanese may not become a citizen of the United States, it necessarily follows that he could not legally declare his intention to assume a status which he could not acquire. In Porterfield and Mizuno vs. Webb, Attorney General, et al., 279 Fed. 114 (1921), it appeared that Porterfield owned 80 acres of land peculiarly adapted to raising vegetables; that he desired to lease the land in question to Mizuno, a subject of the Emperor of Japan, but that he was prevented from so doing because of the California Alien Land Law. For the reason stated in the Terrance case, which was cited with approval, Dooling, District Judge, denied the motion for preliminary injunction against the Attorney General. In O'Brien and Moye vs. Webb, Attorney General, et al., 279 Fed. 117 (1921), it appeared that one O'Brien wished to employ one Inouye, a Japanese subject, lawfully residing in the State of California, to take possession of the land in question for a period of four years "for the purpose of planting, cultivating, and harvesting crops to be grown on owner's land." The owner |
