PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR CHAPTER I. RIGHTS OF LEGATION. missions. THERE is no circumstance which marks more distinctly the § 1. progress of modern civilization than the institution of perma- Usage of permanent nent diplomatic missions between different states. The rights diplomatic of ambassadors were known and in some degree respected by the classic nations of antiquity. During the middle ages they were less distinctly recognised, and it was not until the seventeenth century that they were firmly established. The institution of resident permanent legations at all the European courts took place subsequently to the peace of Westphalia, and was rendered expedient by the increasing interest of the different states in each other's affairs growing out of more extensive commercial and political relations, and more refined speculations respecting the balance of power. Hence the rights of legation have become definitely ascertained, and incorporated into the international code. § 2. Every independent state has a right to send public ministers to, and receive ministers from, any other sovereign Right to send, and state with which it desires to maintain the relations of peace obligation to receive, and amity. No state, strictly speaking, is obliged, by the positive law of nations, to send or receive public ministers, nisters. although the usage and comity of nations seem to have esta public mi § 3. Rights of legation, to what states be longing. blished a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different states by means of diplomatic intercourse.1 How far the rights of legation belong to dependent or semi-sovereign states, must depend upon the nature of their peculiar relation to the superior state under whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending chargés d'affaires of the Greek communion to represent them at the court of Constantinople.2 So also of confederated states; their right of sending public ministers to each other, or to foreign states, depends upon the peculiar nature and constitution of the union by which they are bound together. Under the constitution of the former German empire, and that of the present Germanic confederation, this right is preserved to all the princes and states composing the federal union. Such was also the former constitution of the United Provinces of the Low Countries, and such is now that of the Swiss confederation. By the constitution of the United States of America every state is expressly forbidden from entering, without the consent of congress, into any treaty, alliance, or confederation, with any other state of the union, or with a foreign state, or from entering, without the same consent, into any agreement or compact with another state, or with a foreign power. The original power of sending and receiving public ministers is essentially modified, if it be not entirely taken away, by this prohibition. 1 Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Insti tutes, vol. ii. b. ii. ch. 9, § 20. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii. ch. 1, §§ 187-190. 2 Vattel, liv. iv. ch. 5, § 60. ~ Kluber, Droit des Gens Moderne de l'Europe, st. 2. tit. 2, ch. 3, § 175. $4. contest for The question, to what department of the government belongs the right of sending and receiving public ministers, also How af fected by depends upon the municipal constitution of the state. In civil war or monarchies, whether absolute or constitutional, this prerog- the soveative usually resides in the sovereign. In republics, it is reignty. vested either in the chief magistrate, or in a senate or council, conjointly with, or exclusive of such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign states must of necessity judge for themselves whether they will recognise the government de facto, by sending to, and receiving ambassa dors from it, or whether they will continue their accustomed diplomatic relations with the prince whom they choose to regard as the legitimate sovereign, or suspend altogether these relations with the nation in question. So also where an empire is severed by the revolt of a province or colony declaring and maintaining its independence, foreign states are governed by expediency in determining whether they will commence diplomatic intercourse with the new state, or wait for its recognition by the metropolitan country. For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions; diplomatic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities of ministers, though they are not invested with the representative character, nor entitled to diplomatic honours. Condition al recep As no state is under a perfect obligation to receive minis 5. ters from another, it may annex such conditions to their reception as it thinks fit; but when once received, they are in tion of fo all other respects entitled to the privileges annexed by the reign mi law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power; and * Vide ante, pt. i. ch. 2, §§ 17, 18, ་་ nisters: § 6. Classification of public minis ters. a government may receive one of its own subjects under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So also one court may refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded.4 The primitive law of nations makes no distinction between the different classes of public ministers: but the modern usage of Europe having introduced into the voluntary law of nations certain distinctions in this respect, which, for want of exact definition, became the perpetual source of controversies, a uniform rule was at last adopted by the congress of Vienna, and that of Aix la Chapelle, which put an end to those disputes. By the rule thus established, public ministers are divided into the four following classes : 1. Ambassadors, and papal legates or nuncios. 2. Envoys, ministers, or others accredited to sovereigns, (auprès des souverains.) 3. Ministers resident accredited to sovereigns. 4. Chargés d'Affaires accredited to the minister of foreign affairs.5 Ambassadors and other public ministers of the first class are exclusively entitled to what is called the representative character, being considered as peculiarly representing the sovereign or state by whom they are delegated, and entitled to the same honours to which their constituent would be entitled were he personally present. This must, however, be taken in a general sense, as indicating the sort of honours to which they are entitled; and the exact ceremonial to be observed towards this class of ministers depends upon usage, which has fluctuated at different periods of European history. There is a slight shade of difference between ambassadors ordinary and extraordinary; the former designation being 4 Bynkershoek, de Foro Competent. Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. 5 Récez du Congrès de Vienne du 19 Mars, 1815. Protocol du Congrès d'Aix la Chapelle du 21 Novembre, 1818. Martens, Manuel Diplomatique, ch. 4, § 38. exclusively applied to those sent on permanent missions, the latter to those employed on a particular or extraordinary occasion, or residing at a foreign court for an indeterminate period. The right of sending ambassadors is exclusively confined to crowned heads, the great republics, and other states entitled to royal honours." All other public ministers are destitute of that peculiar character which is supposed to be derived from representing generally the person and dignity of the sovereign. They represent him only in respect to the particular business committed to their charge at the court to which they are accredited.R Ministers of the second class are envoys, envoys extraordinary, ministers plenipotentiary, envoys extraordinary and ministers plenipotentiary, and internuncios of the pope." In the third class are included ministers, ministers resident, residents, and ministers chargés d'affaires accredited to sovereigns.1 10 Chargés d'affaires, accredited to the minister of foreign affairs of the court at which they reside, are either chargés d'affaires ad hoc, who are originally sent and accredited by their governments, or chargés d'affaires par interim, substituted in the place of the minister of their respective nations during his absence."1 According to the rule prescribed by the congress of Vienna, and which has since been generally adopted, public ministers take rank between themselves in each class according to the date of the official notification of their arrival at the court to which they are accredited.12 6 Vattel, Droit des Gens, liv. iv. ch. 6, §§ 70-79. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. vii. ch. 2, § 192. Martens, Manuel Diplomatique, ch. 1, § 9. 7 Martens, Précis, &c. liv. vii. ch. 2, § 198. Vide ante, pt. ii. ch. 3, § 2. 8 Martens, Manuel Diplomatique, ch. 1, § 10. 9 Ibid. 10 Martens, Précis, &c. liv. vii. ch. 2, § 194. 11 Martens, Manuel Diplomatique, ch. 1, § 11. 12 Recez du Congrès de Vienne du 19 Mars, 1815, art 4. |