XX when by lapse of time treaties have come to impose a heavier CHAP. burden upon one of the contracting parties than upon the other, the party so burdened has taken advantage of technicalities as a means of escape from its obligations. Moreover, the absence of an international executive agency protecting the fundamental rights of states has made the political existence of certain states so precarious that they have resorted to treaty agreements under circumstances equivalent to moral duress. With the duress removed by a change of conditions, the obligations of the treaty have been. regarded lightly. In more modern times the economic life of industrial states has become so dependent upon circumstances outside the state as to introduce wholly new conditions of secure existence, and to force states to reconsider obligations assumed under earlier conditions. Again, owing to the failure of international law until recent years to attempt a solution of the problem of nationalities and to determine on its own merits the unit of national life to which the right of separate statehood was to be accorded,3 a number of treaties were entered into which it was obvious to observers at the time represented nothing more than temporary adjustments, to be set aside when subsequent circumstances should make it possible. There remains in the midst of this uncertainty merely the rule of good faith in its most general terms. The detailed applications of the rule in particular cases continue above the law, a matter for the moral conscience of the individual state, acting under a responsibility which international law creates but does not guide. 4 1As in the case of China in respect to the agreements with Japan in 1915. Above, p. 329. * See above, Chap. XIX, b. 3 See above, p. 106. Of such character, for example, was the Treaty of Vienna in 1815 in respect to the national status of Belgium, and the Treaty of Berlin in 1878 in respect to Bulgaria. a. Histori. cal origins of the law CHAPTER XXI THE AGENTS OF INTERNATIONAL INTERCOURSE The law regulating the diplomatic intercourse between nations is one of the oldest parts of the general body of international law. Indeed, in some of its branches it antedates all other parts of that law. The records of ancient China, India, and Egypt show a respect for the person of ambassadors and for the sacred character of their office. The Greeks and Romans, while having no permanent embassies, recognized the right of sovereign states to send ambassadors, and received their envoys with great respect and accorded to them a personal inviolability supported by the strongest sanctions. In Rome the principle of exterritoriality found definite, if only partial, recognition.1 After the fall of the Roman Empire and the establishment of the feudal system, ambassadors became rather the personal messengers of princes than the formal representatives of states. But with the development of the independent Italian states in the fourteenth century, embassies took on a more formal character, particularly in the case of the papal representatives sent out from the Holy See to the various secular courts. By the fifteenth century the permanent inter-representation of states, in the form of resident embassies, made its appearance; and within two centuries an elaborate code of diplomatic procedure was built up. Questions of precedence and of the personal inviolability of the ambassador occupied the attention of statesmen and writers, and were the occasions of numerous disputes between states. Since the adoption in 1815 and 1818 of a formal classification of diplomatic agents there have been few changes in the law. Naturally, however, the actual importance of the ambassador's functions has greatly diminished in consequence of the development of more direct means of communication between states.2 The primary agents of international intercourse are the consti For details, see Phillipson, The International Law and Custom of Ancient Greece and Rome, I, Chap. XIII. For a brief sketch of the origin and development of modern diplomacy, see Potter, Introduction to the Study of International Organization, Chap. VII. XXI sentative the head of tutional heads of the separate states. While international law has CHAP. no jurisdiction over the organization and personnel of a state's government, it recognizes the domestic constitutional law of each b. Represtate to the extent of accepting as head of the state the person character of holding that position with apparent legal right. It is for consti- the state tutional law to determine whether the titular head of the state, British king or French president, for example, shall enjoy formal or actual powers of government; international law merely records that the legal head of the state has spoken or has taken action. Granted that a given government has been recognized as the de jure government of the state, international law recognizes the responsibility of that government and its legal successors for the state which it represents,' and justifies foreign states in concluding that the policies announced or the measures pursued by the government are in effect the will of the state. In consequence of this representative character of the head of the state, certain formalities. and courtesies attend the visit of the monarch or president of one state to the head of another state, and the privileges and immunities regularly extended to ambassadors are extended to them with scrupulous exactness. Moreover, however limited his actual powers have come to be within recent times, the head of the state continues to be the personality in whose name ambassadors and ministers are sent from one state and received by another. In other respects, however, the old rules conditioned upon the actual exercise of governmental power by the head of the state have been to a considerable degree modified by the general adoption of democratic constitutions.* 3 As in the case of the head of the state, so in that of the subordinate officer intrusted with the conduct of foreign affairs, it is for constitutional law to determine the organization and functions of his office in respect both to the diplomatic representation of the state in foreign countries and to the supervision of the conduct of the particular persons to whom that task is confided. On the other hand, international law deals with the relations between the foreign secretary and the diplomatic representatives of other states. A number of rules, many of them of little intrinsic importance, have See above, p. 112. In the case of the Government of the United States, with its legal separation of the powers of government, the President, as being intrusted with the duty of conducting foreign relations, holds the position corresponding to that of the head of the state. The secre tary of foreign affairs * See above, p. 185. See below, p. 358. CHAP. c. The "right been developed prescribing the procedure by which official communications are exchanged and interviews held between the foreign secretary and the group of resident ministers known collectively as the "diplomatic corps." Moreover, modern international practice makes the secretary of foreign affairs the responsible medium of negotiations with foreign states, so that documents sent out in the name of the state are signed by him and negotiations are conducted in his name. International usage, however, prescribes that, as a general rule, the foreign secretary of one state shall communicate with the foreign secretary of another through the medium of the diplomatic agents resident in the state to which the communication is sent.2 3 The question whether states have a "right of representation," or a "right of legation," has been a subject of controversy among writers. Arguing from accepted general principles, the very existence of a community of nations would seem to present the necessity of intercourse among its members, so that by inference one state must, when the emergency calls for it, have the right to send its agents to another state, and must be under the duty of receiving agents sent by other states under similar circumstances. Beyond this, the discussion becomes academic. As a matter of fact, for several centuries states have regularly maintained permanent diplomatic representatives at the capitals of foreign states, and no state could at the present day cut itself off from communication with the rest of the world without forfeiting its position in the community of nations. A state might, indeed, refuse to receive an envoy sent to it for an object upon which it does not desire to negotiate; but this would be no more than equivalent to a refusal to discuss the subject with the envoy when already arrived. It is still, however, a question to determine which states have a right of representation, and which of two or more contesting governments is entitled to exercise that right. International law formerly decided the first point by distinguishing between sovereign and semi-sovereign states, recognizing in the former a complete right of legation, and denying it in whole or in large part 1See Satow, Guide to Diplomatic Practice, I, Chap. VII. The procedure followed by American diplomatic agents may be found in Instructions to Diplomatic Officers of the United States. The more recent practice, illustrated by Lord Balfour's note of August 1, 1922, of "direct diplomacy," in the form of an appeal from the foreign office of one state to public opinion in another state, is still too new to be classed as a customary rule. See Satow, op. cit., I, Chap. XII. 2 XXI to the latter. The distinction, however, between sovereign and CHAP. semi-sovereign states, always ill defined, has now ceased to correspond to the facts of international life.1 Consequently, at the present day the rule of international law can only be tentatively laid down, to the effect that states whose membership in the community of nations is unrestricted, or restricted only by minor qualifications, have the right of representation; while states enjoying only partial membership do not commonly enjoy the right, although they may enjoy it under exceptional circumstances. Should Canada, as has been officially discussed, be given some form of diplomatic representation at Washington, that fact need not alter its position as a member of the British Commonwealth enjoying only a limited membership in the community of nations. It should be observed that the actual exercise of the right of legation has on occasion been referred to in evidence of the international status of a given community. In the case of the Charkieh, the court cited the fact that "no attempt appears to have been made on the part of the Pacha to exercise the principal attribute of sovereignty, namely, the jus legationis, to be represented by an ambassador or diplomatic agent at the court of foreign sovereigns," as proof that the khedive was not the sovereign of an independent state. 4 3 conflicting ments The point as to which of two or more contesting governments Case of two is entitled to exercise the right of representation is answered by governthe rules of international law concerning the recognition of new governments. When a de jure government has been overturned by domestic revolution, the diplomatic representatives of the former government continue to exercise their functions, at least nominally, until the de facto government has been formally recognized as de jure. Thereupon the foreign governments granting such recognition must maintain relations only with diplomatic agents representing the new government. By reason of the lack of precedents, no rule exists covering the case of a diplomatic agent who continues, owing to the failure of foreign governments to recognize a new revolutionary government, to exercise his functions long after the government which sent him has ceased to exist. The official relations maintained by the United States with the The exceptional status of the British self-governing dominions is discussed above, p. 99. L. R. 4 Adm. & Ecc., 59 (1873). Scott, Cases, 29. "For the general principles governing the recognition of new governments, see above, p. 112. |