Develop ment of CHAPTER II DIPLOMATIC ENVOYS I THE INSTITUTION OF LEGATION Phillimore, II. §§ 143-153-Taylor, § 274-Twiss, § 199-Geffcken in Holtzendorff, III. pp. 605-618-Rivier, I. § 35-Ullmann, § 34Martens, 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. 1881)-Krauske, "Die Entwickelung der ständigen Diplomatie," etc. (1885). Lehr, “ Manuel théorique et pratique des agents diplomatiques" (1888). §358. Legation as an institution for the purpose Legations. 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 example1 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 2 thought permanent legations to be wholy unnecessary. The course of events has, however, shown that Grotius's views as regards permanent legations were shortsighted. 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. See Nys, Les Origines du droit international (1894), p. 295. De jure belli ac pacis, II. c. 28, 3: "Optimo autem jure VOL. I. rejici possunt, quae nunc in usu sunt, legationes assiduae, quibus cum non sit opus, docet mos antiquus, cui illae ignoratae." EE Diplomacy. § 359. The rise of permanent legations created the necessity for a new class of State officials, the socalled 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 usagesnamely, 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 is now French. However, this is a usage of diplomacy only, and not a rule of International Law.1 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. 1 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, § 35-Rivier, I. § 35 -Bonfils, Nos. 658-667-Pradier-Fodéré, II. Nos. 1225-1256Fiore, II. Nos. 1112-1117-Calvo, III. §§ 1321-1325-Martens, II. §§ 7-8. tion of 360. Right of legation is the right of a State to Concepsend and receive diplomatic envoys. The right to Right of send such envoys is termed active right of legation, Legation. in contradistinction to the passive right of legation, as the right to receive such envoys is termed. Some writers 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. A State is obviously bound neither to send diplomatic envoys nor to receive permanent envoys. On the other hand, the very existence 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 1 See, for instance, Wheaton, § 207; Heilborn, System, p. 182. 2 See above, § 141. What possess duty corresponds to the right of every member to send such envoys. But the exercise of the active right of legation is discretionary. No State need send diplomatic envoys at all, although practically all States do at least occasionally send such envoys, and most States send permanent envoys to many other States. The passive right of legation is discretionary as regards the reception of permanent envoys only. §361. Not every State, however, possesses the right of legation. Such right pertains chiefly to fullthe Right Sovereign States,' for other States possess this right under certain conditions only. of Lega tion. (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, Bulgaria 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 at several foreign States. (2) Part-Sovereign member States of a Federal State may or may not have the right of legation 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.) |