International Law. A Treatise Volume I Part 55

III

KINDS AND CLa.s.sES OF DIPLOMATIC ENVOYS

Vattel, IV. ---- 69-75--Phillimore, II. ---- 211-224--Twiss, I. ---- 204-209--Moore, IV. -- 624--Heffter, -- 208--Geffcken in Holtzendorff, III. pp. 635-646--Calvo, III. ---- 1326-1336--Bonfils, Nos. 668-676--Pradier-Fodere, III. ---- 1277-1290--Rivier, I. pp.

443-453--Nys, II. pp. 342-352.

[Sidenote: Envoys Ceremonial and Political.]

-- 363. Two different kinds of diplomatic envoys are to be distinguished--namely, such as are sent for political negotiations and such as are sent for the purpose of ceremonial function or notification of changes in the headship. For States very often send special envoys to one another on occasion of coronations, weddings, funerals, jubilees, and the like; and it is also usual to send envoys to announce a fresh accession to the throne. Such envoys ceremonial have the same standing as envoys political for real State negotiations. Among the envoys political, again, two kinds are to be distinguished--namely, first, such as are permanently or temporarily accredited to a State for the purpose of negotiating with such State, and, second, such as are sent to represent the sending State at a Congress or Conference. The latter are not, or need not be, accredited to the State on whose territory the Congress or Conference takes place, but they are nevertheless diplomatic envoys and enjoy all the privileges of such envoys as regards exterritoriality and the like which concern the inviolability and safety of their persons and the members of their suites.

[Sidenote: Cla.s.ses of Diplomatic Envoys.]

-- 364. Diplomatic envoys accredited to a State differ in cla.s.s. These cla.s.ses did not exist in the early stages of International Law. But during the sixteenth century a distinction between two cla.s.ses of diplomatic envoys gradually arose, and at about the middle of the seventeenth century, after permanent legations had come into general vogue, two such cla.s.ses became generally recognised--namely, extraordinary envoys, called Amba.s.sadors, and ordinary envoys, called Residents; Amba.s.sadors being received with higher honours and taking precedence of the other envoys. Disputes arose frequently regarding precedence, and the States tried in vain to avoid them by introducing during the eighteenth century another cla.s.s--namely, the so-called Ministers Plenipotentiary. At last the Powers a.s.sembled at the Vienna Congress came to the conclusion that the matter ought to be settled by an international understanding, and they agreed, therefore, on March 19, 1815, upon the establishment of three different cla.s.ses--namely, first, Amba.s.sadors; second, Ministers Plenipotentiary and Envoys Extraordinary; third, Charges d'Affaires. And the five Powers a.s.sembled at the Congress of Aix-la-Chapelle in 1818 agreed upon a fourth cla.s.s--namely, Ministers Resident, to rank between Ministers Plenipotentiary and Charges d'Affaires. All the other States either expressly or tacitly accepted these arrangements, so that nowadays the four cla.s.ses are an established order. Although their privileges are materially the same, they differ in rank and honours, and they must therefore be treated separately.

[Sidenote: Amba.s.sadors.]

-- 365. Amba.s.sadors form the first cla.s.s. Only States enjoying royal honours[721] are ent.i.tled to send and to receive Amba.s.sadors, as also is the Holy See, whose first-cla.s.s envoys are called _Nuncios_, or _Legati a latere_ or _de latere_. Amba.s.sadors are considered to be personal representatives of the heads of their States and enjoy for this reason special honours. Their chief privilege--namely, that of negotiating with the head of the State personally--has, however, little value nowadays, as almost all States have to a certain extent const.i.tutional government, which necessitates that all the important business should go through the hands of a Foreign Secretary.

[Footnote 721: See above, -- 117, No. 1.]

[Sidenote: Ministers Plenipotentiary and Envoys Extraordinary.]

-- 366. The second cla.s.s, the Ministers Plenipotentiary and Envoys Extraordinary, to which also belong the Papal Internuncios, are not considered to be personal representatives of the heads of their States.

Therefore they do not enjoy all the special honours of the Amba.s.sadors, and have not the privilege of treating with the head of the State personally. But otherwise there is no difference between these two cla.s.ses.

[Sidenote: Ministers Resident.]

-- 367. The third cla.s.s, the Ministers Resident, enjoy fewer honours and rank below the Ministers Plenipotentiary. But beyond the fact that Ministers Resident do not enjoy the t.i.tle "Excellency," there is no difference between them and the Ministers Plenipotentiary.

[Sidenote: Charges d'Affaires.]

-- 368. The fourth cla.s.s, the Charges d'Affaires, differs chiefly in one point from the first, second, and third cla.s.s--namely, in so far as its members are accredited from Foreign Office to Foreign Office, whereas the members of the other cla.s.ses are accredited from head of State to head of State. Charges d'Affaires do not enjoy, therefore, so many honours as other diplomatic envoys. And it must be specially mentioned that a distinction ought to be made between a Charge d'Affaires who is the head of a Legation, and who, therefore, is accredited from Foreign Office to Foreign Office, and a Charge d'Affaires _ad interim_. The latter is a member of a Legation whom the head of the Legation delegates for the purpose of taking his place during absence on leave. Such Charge d'Affaires _ad interim_, who had better be called a Charge des Affaires,[722] ranks below the ordinary Charge d'Affaires; he is not accredited from Foreign Office to Foreign Office, but is simply a delegate of the absent head of the Legation.

[Footnote 722: See Rivier, II. pp. 451-452.]

[Sidenote: The Diplomatic Corps.]

-- 369. All the Diplomatic Envoys accredited to the same State form, according to a diplomatic usage, a body which is styled the "Diplomatic Corps." The head of this body, the so-called "Doyen," is the Papal Nuncio, or, in case there is no Nuncio accredited, the oldest Amba.s.sador, or, failing Amba.s.sadors, the oldest Minister Plenipotentiary, and so on. As the Diplomatic Corps is not a body legally const.i.tuted, it performs no legal functions, but it is nevertheless of great importance, as it watches over the privileges and honours due to diplomatic envoys.

IV

APPOINTMENT OF DIPLOMATIC ENVOYS

Vattel, IV. ---- 76-77--Phillimore, II. ---- 227-231--Twiss, I. ---- 212-214--Ullmann, -- 48--Calvo, III. ---- 1343-1345--Bonfils, Nos.

677-680--Wheaton, ---- 217-220--Moore, IV. ---- 632-635.

[Sidenote: Person and Qualification of the Envoy.]

-- 370. International Law has no rules as regards the qualification of the individuals whom a State can appoint as diplomatic envoys, States being naturally competent to act according to discretion, although of course there are many qualifications a diplomatic envoy must possess to fill his office successfully. The Munic.i.p.al Laws of many States comprise, therefore, many details as regards the knowledge and training which a candidate for a permanent diplomatic post must possess, whereas, regarding envoys ceremonial even the Munic.i.p.al Laws have no provisions at all. The question is sometimes discussed whether females[723] might be appointed envoys. History relates a few cases of female diplomatists.

Thus, for example, Louis XIV. of France accredited in 1646 Madame de Guebriant amba.s.sador to the Court of Poland. During the last two centuries, however, no such case has to my knowledge occurred, although I doubt not that International Law does not prevent a State from sending a female as diplomatic envoy. But under the present circ.u.mstances many States would refuse to receive her.

[Footnote 723: See Mirus, "Das europaische Gesandtschaftsrecht," I. ---- 127-128; Phillimore, II. -- 134; and Focherini, "Le Signore Ambasciatrici dei secoli XVII. e XVIII. e loro posizione nel diritto diplomatico"

(1909).]

[Sidenote: Letter of Credence, Full Powers, Pa.s.sports.]

-- 371. The appointment of an individual as a diplomatic envoy is announced to the State to which he is accredited in certain official papers to be handed in by the envoy to the receiving State. _Letter of Credence_ (_lettre de creance_) is the designation of the doc.u.ment in which the head of the State accredits a permanent amba.s.sador or minister to a foreign State. Every such envoy receives a sealed Letter of Credence and an open copy. As soon as the envoy arrives at his destination, he sends the copy to the Foreign Office in order to make his arrival officially known. The sealed original, however, is handed in personally by the envoy to the head of the State to whom he is accredited. Charges d'Affaires receive a Letter of Credence too, but as they are accredited from Foreign Office to Foreign Office, their Letter of Credence is signed, not by the head of their home State, but by its Foreign Office. Now a permanent diplomatic envoy needs no other empowering doc.u.ment in case he is not entrusted with any task outside the limits of the ordinary business of a permanent legation. But in case he is entrusted with any such task, as, for instance, if any special treaty or convention is to be negotiated, he requires a special empowering doc.u.ment--namely, the so-called _Full Powers_ (_Pleins Pouvoirs_). They are given in Letters Patent signed by the head of the State, and they are either limited or unlimited Full Powers, according to the requirements of the case. Such diplomatic envoys as are sent, not to represent their home State permanently, but on an extraordinary mission such as representation at a Congress, negotiation of a special treaty, and other transactions, receive full Powers only, and no Letter of Credence. Every permanent or other diplomatic envoy is also furnished with so-called _Instructions_ for the guidance of his conduct as regards the objects of his mission. But such Instructions are a matter between the Envoy and his home State exclusively, and they have therefore, although they may otherwise be very important, no importance for International Law. Every permanent diplomatic envoy receives, lastly, _Pa.s.sports_ for himself and his suite specially made out by the Foreign Office. These Pa.s.sports the envoy after his arrival deposits at the Foreign Office of the State to which he is accredited, where they remain until he himself asks for them because he desires to leave his post, or until they are returned to him on his dismissal.

[Sidenote: Combined Legations.]

-- 372. As a rule, a State appoints different individuals as permanent diplomatic envoys to different States, but sometimes a State appoints the same individual as permanent diplomatic envoy to several States. As a rule, further, a diplomatic envoy represents one State only. But occasionally several States appoint the same individual as their envoy, so that one envoy represents several States.

[Sidenote: Appointment of several Envoys.]

-- 373. In former times States used frequently[724] to appoint more than one permanent diplomatic envoy as their representative in a foreign State. Although this would hardly occur nowadays, there is no rule against such a possibility. And even now it happens frequently that States appoint several envoys for the purpose of representing them at Congresses and Conferences. In such cases one of the several envoys is appointed senior, to whom the others are subordinate.

[Footnote 724: See Mirus, op. cit. I. ---- 117-119.]

V

RECEPTION OF DIPLOMATIC ENVOYS

Vattel, IV. ---- 65-67--Hall, -- 98--Phillimore, II. ---- 133-139--Twiss, I. ---- 202-203--Taylor, ---- 285-290--Moore, IV. ---- 635, 637-638--Martens, II. -- 8--Calvo, III. ---- 1353-1356--Pradier-Fodere, III. ---- 1253-1260--Fiore, II. Nos.

1118-1120--Rivier, I. pp. 455-457.

[Sidenote: Duty to receive Diplomatic Envoys.]

-- 374. Every member of the Family of Nations that possesses the pa.s.sive right of legation is under ordinary circ.u.mstances bound to receive diplomatic envoys accredited to itself from other States for the purpose of negotiation. But the duty extends neither to the reception of permanent envoys nor to the reception of temporary envoys under all circ.u.mstances.

(1) As regards permanent envoys, it is a generally recognised fact that a State is as little bound to receive them as it is to send them.

Practically, however, every full-Sovereign State which desires its voice to be heard among the States receives and sends permanent envoys, as without such it would, under present circ.u.mstances, be impossible for a State to have any influence whatever in international affairs. It is for this reason that Switzerland, which in former times abstained entirely from sending permanent envoys, has abandoned her former practice and nowadays sends and receives several. The insignificant Princ.i.p.ality of Lichtenstein is, as far as I know, the only full-Sovereign State which neither sends nor receives one single permanent legation.

But a State may receive a permanent legation from one State and refuse to do so from another. Thus the Protestant States never _received_ a permanent legation from the Popes, even when the latter were heads of a State, and they still observe this rule, although one or another of them, such as Prussia for example, keeps a permanent legation at the Vatican.

(2) As regards temporary envoys, it is likewise a generally recognised fact among those writers who a.s.sert the duty of a State to receive under ordinary circ.u.mstances temporary envoys that there are exceptions to that rule. Thus, for example, a State which knows beforehand the object of a mission and does not wish to negotiate thereon can refuse to receive the mission. Thus, further, a belligerent can refuse[725] to receive a legation from the other belligerent, as war involves the rupture of all peaceable relations.

[Footnote 725: But this is not generally recognised. See Vattel, IV. -- 67; Phillimore, II. -- 138; and Pradier-Fodere, III. No. 1255.]

[Sidenote: Refusal to receive a certain Individual.]

-- 375. But the refusal to receive an envoy must not be confounded with the refusal to receive a certain individual as envoy. A State may be ready to receive a permanent or temporary envoy, but may object to the individual selected for that purpose. International Law gives no right to a State to insist upon the reception of an individual appointed by it as diplomatic envoy. Every State can refuse to receive as envoy a person objectionable to itself. And a State refusing an individual envoy is neither compelled to specify what kind of objection it has, nor to justify its objection. Thus, for example, most States refuse to receive one of their own subjects as an envoy from a foreign State.[726] Thus, again, the King of Hanover refused in 1847 to receive a minister appointed by Prussia, because the individual was of the Roman Catholic faith. Italy refused in 1885 to receive Mr. Keiley as amba.s.sador of the United States of America because he had in 1871 protested against the annexation of the Papal States. And when the United States sent the same gentleman as amba.s.sador to Austria, the latter refused him reception on the ground that his wife was said to be a Jewess. Although, as is apparent from these examples, no State has a right to insist upon the reception of a certain individual as envoy, in practice States are often offended when reception is refused. Thus, in 1832 England did not cancel for three years the appointment of Sir Stratford Canning as amba.s.sador to Russia, although the latter refused reception, and the post was practically vacant. In 1885, when, as above mentioned, Austria refused reception to Mr. Keiley as amba.s.sador of the United States, the latter did not appoint another, although Mr. Keiley resigned, and the legation was for several years left to the care of a Charge d'Affaires.[727] To avoid such conflicts it is a good practice of many States never to appoint an individual as envoy without having ascertained beforehand whether the individual would be _persona grata_.

And it is a customary rule of International Law that a State which does not object to the appointment of a certain individual, when its opinion has been asked beforehand, is bound to receive such individual.[728]

[Footnote 726: In case a State receives one of its own subjects as diplomatic envoy of a foreign State, it has to grant him all the privileges of such envoys, including exterritoriality. Thus in the case of Macartney _v._ Garb.u.t.t and others (1890, L.R. 24 Q.B. 368) it was decided that a British subject accredited to Great Britain by the Chinese Government as a Secretary of its emba.s.sy and received by Great Britain in that capacity without an express condition that he should remain subject to British jurisdiction, was exempt from British jurisdiction. See, however, article 15 of the Reglement sur les Immunites Diplomatiques, adopted in 1895 by the Inst.i.tute of International Law (see Annuaire, XIV. p. 244), which denies to such an individual exemption from jurisdiction. See also Phillimore, II. -- 135, and Twiss, I. -- 203.]

[Footnote 727: See Moore, IV. -- 638, p. 480.]