International Law Part 17

7. A copy of the Consular Regulations of the United States.

(FORM OF)

LETTER OF CREDENCE

A.............. B..............,

_President of the United States of America._

To ................................

+Great and Good Friend+:

I have made choice of ...............................

one of our distinguished citizens, to reside near the Government of Your ............ in the quality of ...............................

He is well informed of the relative interests of the two countries and of our sincere desire to cultivate to the fullest extent the friendship which has so long subsisted between the two Governments. My knowledge of his high character and ability gives me entire confidence that he will constantly endeavor to advance the interest and prosperity of both Governments, and so render himself acceptable to Your ......

I therefore request Your ............ to receive him favorably and to give full credence to what he shall say on the part of the United States, and to the a.s.surances which I have charged him to convey to you of the best wishes of this Government for the prosperity of ......

May G.o.d have Your ............ in His wise keeping.

Written at Washington this ............ day of ............ in the year ................

Your good friend,

A ............ B ............

By the President, ............................

_Secretary of State._

-- 75. Ceremonial

(_a_) =General.= In certain countries diplomatic ceremonial has been very elaborate and complex. The tendency during the nineteenth century has been toward simplification. Each state has the power to determine its own ceremonial for the most part. Of course no state can disregard established rules as to rank, precedence, and similarly generally recognized practices. At the time when these practices originated it was imperative that there should be some fixed mode of procedure which a state could follow without giving offense in its treatment of a foreign representative. Much of the ceremonial became fixed during the latter part of the seventeenth and during the eighteenth century. In the days of absolutism the monarch naturally demanded such recognition of his representative in a foreign country as befitted his own estimate of the dignity of the monarchical office. It may not be unfortunate that the monarch placed a high estimate upon the sovereign office and devised a ceremonial commensurate with this estimate, for what was once done out of respect for and in response to the demand of a personal sovereign, is now done out of respect for the dignity of the state itself. Thus in the days of more democratic sovereignties international representatives are clothed with a dignity which both elevates the att.i.tude of partic.i.p.ants in international negotiations and gives greater weight to their conclusions. The ceremonial also fixes a definite course of procedure which any state may follow without giving offense to another, whether it be weak or powerful.

(_b_) While the minor details of the ceremonial of =reception= of a diplomatic agent are not invariable, certain customs are well established. A diplomat officially notifies the receiving state of his arrival by sending, (1) if he be of the first rank, a secretary of the emba.s.sy to the minister of foreign affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state in order to present his credentials, (2) if of the second rank, while sometimes the above procedure is allowed, he usually makes the announcement and request in writing, (3) if of the third rank he always observes the last-mentioned procedure, (4) if of the fourth rank, charge d'affaires, he notifies the minister of foreign affairs of his arrival and requests an audience.

The audience may be for any grade more or less formal, public or private. Usually diplomats of the first rank are received in public audience. At the audience the diplomat presents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the minister of foreign affairs in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar solemn audience. This may or may not be granted to ministers of the third rank. Official visits, varying somewhat in ceremonial in different states, follow.

(_c_) From the time when permanent missions began to be common, conflict between the representatives of different states made necessary fixed rules of =precedence=. As Wicquefort said in the latter part of the seventeenth century, "One of the things that most hinders Emba.s.sadors from paying one another civilities, is the Contest they have concerning Honours and Rank; not only on Account of the Compet.i.tion of their Masters, but sometimes also by Reason of some Pretensions they have amongst themselves."[216] Wicquefort's citations of cases give ample evidence of the confusion prevailing in his day. Bynkershoek, in "De Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely less in 1721, though the rank by t.i.tle was coming to be more fully recognized. Vattel in 1758 shows that there had arisen a more definite ceremonial[217] and a fairly clear gradation, yet as this had never been agreed to by any considerable number of states, and was not in accordance with any generally recognized principle, there were contests still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818) many of the disputed points in regard to precedence were adjusted.

Certain general propositions are now admitted, such as, that no diplomat can pretend to special honors or immunities above other diplomats of the same rank.[218] The rule of the Congress of Vienna is followed, by which diplomats of the same cla.s.s rank according to the precedence in the date of the official notification of their arrival.

Places of honor are now quite definitely fixed. On ceremonial occasions, where the representatives are seated at a table, as in an international congress, it may be somewhat varied as fronting the main window, opposite the main entrance to the room, in the place receiving the light over the left shoulder. When the place is determined by the relation to the head of the table or the presiding officer, the first honor, except in Turkey, is at his right, the second at his left, the third in the second place on the right, the fourth in the second place on the left, and so on. In processions the place of honor is sometimes first, sometimes last. For relatively short processions, certain more definite rules are usually observed. When only two partic.i.p.ate, the first place is the place of honor; when three partic.i.p.ate, the middle place, the place in advance being the second honor and the place in the rear the third; when four partic.i.p.ate, the second place is the place of honor, the place in advance the second, the third and fourth being in honor in order; when five partic.i.p.ate, the middle is the place of honor, the second place being the second in honor, the first the fourth in honor, the fourth the third in honor, and the fifth the fifth in honor.[219]

To avoid friction as to place of honor in signing treaties, etc., the principle of the alternat is usually followed, by which the copy going to a given nation has the name of its own representative first in order.[220] Sometimes the order is determined by lot, and sometimes is alphabetical in the order of the names of the states parties to the treaty.

(_d_) Certain =prerogatives= are held to appertain to the office of amba.s.sador and to diplomats of the first rank. Among these are: (1) the t.i.tle of Excellency, (2) the right to remain covered in the presence of the sovereign, unless the sovereign himself is uncovered, (3) the privilege of a dais in his own home, (4) the right to use a "coach and six" with outriders, (5) military and naval honors, (6) the use of the coat of arms over the door, (7) invitations to all court ceremonies.

This last is usually extended to all diplomats. Those of lower rank than the amba.s.sador sometimes claim modified forms of the above prerogatives.

Many of the interesting phases of diplomatic ceremonial are survivals of forms which in earlier days were most jealously and strenuously guarded.

The closer relations of states and better understanding of mutual relations have made unnecessary the observance of many forms once vital to harmony.

Many courtesies are regarded as due diplomatic representatives by virtue of their rank. These are not uniform at the various courts, but generally include, notification of accession to the throne, notifications of births and deaths in the royal family, congratulations and condolences as public events warrant, and many others.

Diplomats are also ent.i.tled to receive salutes, which are usually arranged for in advance. The amba.s.sador receives a salute of fifteen guns; the minister, eleven; and the charge d'affaires, nine.

-- 76. Functions

The functions of a diplomatic representative in a broad sense are, to direct the internal business of the legation, to conduct the negotiations with the state to which he is accredited, to protect citizens of his state[221] and to issue pa.s.sports under proper restrictions,[222] and to make reports to his home government.

(_a_) The =internal business= of the mission may in general be cla.s.sified as concerned with (1) the custody of archives, (2) diplomatic correspondence[223] involving at times the use of cipher, (3) record of the work of the legation, (4) the exercise of a measure of jurisdiction over the household. In grave cases the diplomat must send the offender home for trial, or under certain circ.u.mstances, if a native of the state, hand the offender over to the local authorities. Otherwise his jurisdiction is mainly of a minor disciplinary sort. The a.s.sumption of such authority as claimed by Sully, in 1603, when he tried and condemned to death one of the French suite, is now absolutely denied. Indeed, James I. pardoned the offender whom Sully had delivered to him for execution. In 1896 Great Britain denied the right of the Chinese amba.s.sador to detain a Chinaman who was held in the legation under charge of political conspiracy, and compelled his release.

(_b_) The =conduct of negotiations= with the state to which he is accredited may involve, (1) verbal communications with the sovereign or ministers. The purport of such communications may be preserved in writing known as _briefs of the conversation_, or _aids to the memory_.

In cases of somewhat formal conversations the written reports may be called _notes_ or _memoranda_. To the _proces-verbaux_, or reports of international conferences for the discussion of treaty stipulations, the name _protocol_ is usually given. (2) Formal communications with the sovereign or ministers, (3) the maintenance of diplomatic privileges and immunities, (4) such action as may be necessary to protect his state's interests so far as possible, and particularly its treaty rights.

(_c_) The diplomat's =relations to the citizens of his own country= are largely determined by the domestic law of his own state, and usually involve, (1) a measure of protection to his fellow-citizens; (2) issue and _vise_ of pa.s.sports, and in some countries the issue of certificates of nationality and travel certificates; (3) in cases of extradition of citizens of his own state from the foreign state, the presentation of the requisition for extradition; and in cases of extradition of citizens of the state to which he is accredited from his own state, usually the certification that the papers submitted as evidence are "properly and legally authenticated."[224] In some states diplomats are authorized to perform notarial acts.[225] (4) The exercise of a reasonable courtesy in the treatment of his fellow-citizens.

All these functions vary with local law. The practice is not uniform, as is evidenced in the inconsistencies in regard to regulations as to the marriage by the diplomatic agent.[226]

(_d_) In making reports the diplomat is supposed to =keep his own government informed= upon, (1) the views and policy of the state to which he is accredited, and (2) such facts as to events, commerce, discoveries, etc., as may seem desirable. These reports may be regular at specified periods, or special.

-- 77. Termination of Mission

The mission of a diplomatic representative may terminate in various ways.

(_a_) A mission may terminate =through the death of the diplomat=. In such a case there may properly be a funeral befitting the rank of the diplomat. The property and papers of the mission are inventoried and sealed by the secretary, or in case of absence of secretaries and other proper persons, by the diplomats of one or more friendly powers. The inheritance and private property of the diplomat, of course, follow the law of his country, and the property of the deceased is exempt from local jurisdiction.

(_b_) The mission may terminate =in ordinary course= of events, by (1) expiration of the period for which the letter of credence or full power is granted, (2) fulfillment of the purpose of the mission if on a special mission, (3) change of grade of diplomat, (4) the death or dethronement of the sovereign to whom the diplomatic agent is accredited, except in cases of republican forms of government. In the above case new letters of credence are usually regarded as essential to the continuance of the mission. The weight of opinion seems to indicate that the mission of a diplomat is terminated by a change in the government of his home country through revolution, and that new letters of credence are necessary for the continuance of his mission.

(_c_) A mission may be interrupted or broken off through =strained relations= between the two states or between the diplomatic agent and the receiving state. (1) A declaration of war immediately terminates diplomatic relations. (2) Diplomatic relations may be broken off by the personal departure of the agent, which departure is for a stated cause, such as the existence of conditions making the fulfillment of his mission impossible, or the violation of the principles of international law. (3) Diplomatic relations may be temporarily suspended, owing to friction between the states, as in the case of the suspension of diplomatic relations between Great Britain and Venezuela from 1887 to 1897, owing to dispute upon questions of boundary. In 1891 Italy recalled her minister from the United States on account of alleged tardiness of the United States authorities in making reparation for the lynching of Italians in New Orleans on March 14, 1891.[227] (4) A diplomatic agent is sometimes dismissed either on grounds personal to the diplomat, or on grounds involving the relations of the two states.

When, in 1888, the demand for the recall of Lord Sackville, the British minister at Washington, was not promptly complied with, Lord Sackville was dismissed and his pa.s.sport sent to him. Lord Sackville had, in response to a letter purporting to be from an ex-British subject, sent a reply which related to the impending presidential election. His recall was demanded by telegraph Oct. 27. The British government declined to grant it without time for investigation, and his pa.s.sport was sent him on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister at Washington, having been for some time past such as materially to impair his usefulness to his own Government, and to render intercourse with him for either business or social purposes highly disagreeable," it was the expressed opinion of the President that "the interests of both countries would be promoted ... if the head of the Russian legation here was to be changed." The President, however, agreed to tolerate the minister till after the contemplated visit of the grand duke. The communication also stated, "That minister will then be dismissed if not recalled."[228]

(_d_) =The ceremonial of departure= is similar to that of reception. (1) The diplomat seeks an interview according to the method outlined in the ceremonial of reception, in order to present his letter of recall. (2) In case of remoteness from the seat of government the agent may, if necessary, take leave of the sovereign by letter, forwarding to the sovereign his letter of recall. (3) It very often happens that a diplomatic agent presents his successor at the time of his own departure. (4) In case of change of t.i.tle the diplomat follows the ceremonial of departure in one capacity with that of arrival in his new capacity. (5) It is understood that the agent, after the formal close of his mission, will depart with convenient speed, and until the expiration of such period he enjoys diplomatic immunities.

-- 78. Immunities and Privileges

Few subjects involved in international relations have been more extensively discussed than the privileges and immunities of diplomatic agents. Many of the earliest treatises on international affairs were devoted to such questions. In order that any business between states might be carried on, some principles upon which the diplomatic agent could base his action were necessary. The treatment of the agent could not be left to chance or to the feeling of the authorities of the receiving state. Gradually fixed usages were recognized. These immunities and privileges may be considered under two divisions: personal inviolability, and exemption from local jurisdiction, otherwise known as exterritoriality.

(_a_) =Inviolability.= The person of the agent was by ancient law inviolable. According to the dictum of the Roman Law, _sancti habentur legati_. In accord with this principle the physical and moral person is inviolable. Any offense toward the person of the amba.s.sador is in effect an offense to the state which he represents, and to the law of nations.

The receiving state is bound to extend to the diplomatic agent such protection as will preserve his inviolability. This may make necessary the use of force to preserve to the diplomatic agent his privileges. The idea of inviolability, as Calvo says, is absolute and unlimited, and based, not on simple convenience, but upon necessity. Without it diplomatic agents could not perform their functions, for they would be dependent upon the sovereign to whom they might be accredited.[229] In many states laws have been enacted during the last half of the nineteenth century fixing severe penalties for acts which affect the diplomatic agent unfavorably in the performance of his functions, or reflect upon his dignity.[230]