PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR CHAPTER I. RIGHTS OF LEGATION. §1. Usage nent diplo sions. THERE is no circumstance which marks more distinctly the progress of modern civilization, than the of permainstitution of permanent diplomatic missions between matic misdifferent States. The rights of ambassadors were known, and, in some degree, respected by the classic nations of antiquity. During the middle ages they were less distinctly recognized, 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, giving them the right of mutual inspection as to all transactions by which that balance might be affected. Hence the rights of legation have become definitely ascertained and incorporated into the international code. to send, and obligation Every independent State has a right to send public 2. Right ministers to, and receive ministers from, any other sovereign State with which it desires to maintain the rela- to receive, public min tions of peace and amity. No State, strictly speaking, isters. is obliged, by the positive law of nations, to send or receive public ministers, although the usage and comity of nations seem to have established 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 § 3. Rights of legation, to what States belonging. 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 (a) 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 1 Vattel, Droit des Gens, liv. iv. ch. 5, §§ 55-65. Rutherforth's Institutes, 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. Klüber, Droit des Gens Moderne de l'Europe, st. 2, tit. 2, ch. 3, § 175. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 1. No. 3, 4. (a) [Les chargés d'affaires de Moldavie et de Valachie près de la Porte Ottomane, dont parle le traité de Kainardgy, ne sont pas proprement des agens diplomatiques, ni ne résident avec le corps diplomatique accrédité auprès de la Porte. Dès long temps les Pachas et Gouverneurs des Provinces Ottomanes étoient dans l'habitude d'entretenir auprès de l'Administration Centrale, c'est à dire, auprès de la Porte, des agens appellés Kayson Kehagasi, (littéralement agens auprès de la Porte): servant d'intermédiaires entre cette administration et leur commettans. Comme les Hospodars de la Moldavie et de la Valachie, à l'époque de la paix de Kainardgy, trahissoient régulièrement le Sultan dans toute crise politique un peu sérieuse, et qu'alors la Porte s'en prenoit volontiers aux Kayson Kehagasi des Hospodars, d'ordinaire les confidens de ceux-ci lesquels se rétiroient au besoin en pays étranger, la stipulation en question du traité de Kainardgy n'eut proprement pour l'objet que de conserver, en pareil cas, la vie sauve au Phanariote chargé des fonctions de Kayson Kehagasi. Kupfer's Remarks on the "Elements of International Law." Wheaton's MS. Papers.] 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 Ame rica 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.' civil war or the sove The question, to what department of the government § 4. How belongs the right of sending and receiving public minis- affected by ters, also depends upon the municipal constitution of contest for the State. In monarchies, whether absolute or consti- reignty. tutional, this prerogative usually resides in the sovereign. In republics, it is 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 recognize the government de facto, by sending to, and receiving ambassadors 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.2 1 Heffter, das Europäische Völkerrecht, § 200. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 1, No. 5. 2 Vide suprà, Pt. I. ch. 2, §§ 7-10, pp. 31-34. Merlin, Répertoire, tit. Ministre publique, sect. ii. § 6. |