ÆäÀÌÁö À̹ÌÁö
PDF
ePub

garded as an affront to the government appointing him, but the exercise of a clearly established right. The theory of modern diplomatic intercourse is that it is designed to promote friendly relations and afford a convenient and efficient method of adjusting all questions arising between the governments. It is therefore necessary that the representative of the foreign government be a person with whom it is agreeable to deal. As a result of this custom there is at the capital of each of the leading nations a body of diplomats representing all the other nations that see fit to be so represented. Though these diplomats are in general commissioned solely to deal with the government to which they are accredited, they in fact are often empowered to deal with representatives of other nations on matters of general concern. Through informal conferences and social intercourse among the members of the diplomatic corps matters of general interest are sometimes brought to the attention of their governments, and they are often appointed plenipotentiaries to represent their government in general conferences for the purpose of dealing with matters of general interest to a number or all of the nations.

The ambassador represents his government in all dealings with the power to which he is accredited which are committed to his charge. The regular line of communication is for his home government to send to him all notes, messages and communications addressed to the power to which he is accredited, and he then delivers them to the foreign office. Answers to such communications and messages to his government may be passed through him, or through the ambassador resident at the seat of his government. When matters of very great importance are under consideration sovereigns and prime ministers sometimes confer directly with each other, but such conferences are quite exceptional and the final binding agreement is always made through the foreign offices. For the negotiation of treaties and conventions special ministers plenipotentiary are often appointed. The executive head of each nation employs such agencies and follows such methods as it sees fit in dealing with other powers. Whatever the particular powers or designation of these agencies, they are all entitled

to the privileges and immunities of ambassadors. The rank of each and the extent of his powers is determined by the government appointing him.16

Nations which have only a qualified sovereignty sometimes send and receive diplomatic representatives, but only those states which are recognized as enjoying full sovereignty are generally accorded this right.

17

As the ambassador or other minister does not subject himself to the laws of the country to which he goes, it naturally follows that he and all his household, domestic and official, remain subject to the laws of his own country. This law in all civil matters the minister himself administers over those attached to his legation. If criminal offenses are committed by them he may send them to their own country for trial or deliver them up to the courts of the State where the offense is committed. Formerly ambassadors sometimes exercised criminal jurisdiction over their suites, but the modern usage is otherwise.18 While the personal effects of the minister are exempt from the jurisdiction of all local officers, if he engages in any business not connected with his mission or deals in real or personal property otherwise than for use in his family or office, he is, as to all such transactions, subject to the laws of the country where they take place,1o but it has been held in England that as to such dealings the ambassador cannot be sued, but that the remedies of a creditor are confined to process against the property as to which the exemption does not apply.20 The Constitution of the United States gives the Supreme Court original jurisdiction "in all cases affecting Ambassadors, other public Ministers and Consuls," but this does not change the law which exempts them from the jurisdiction of the courts of the country to which they are accred

16 Wheaton, § 226. Vattel, 498.

17 Wheaton, § 214.

18 Wheaton, § 215.

19 Wheaton, S 227.

20 Magdalena S. N. Co. v. Martin, 2 E. & E. 94, 105 E. C. L. 94. Vattel Book 4, Ch. IX § 113.

21 Const. of U. S. Art. 3, § 2.

ited. Local jurisdiction cannot be exercised so as to interfere in any way with the minister's freedom of diplomatic action, or the property of his legation, except regulations necessary for the health and safety of the community." Assaults and

other offenses committed against foreign ministers are punishable by the courts of the country where the offenses are committed.23

The diplomatic officers who are entitled to the privileges and exemptions of ambassadors are defined in the United States by statute. "Diplomatic officer' shall be deemed to include ambassadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commissioners, charges d'affaires, counselors, agents, secretaries of embassy and legation, and secretaries in the Diplomatic Service and none others."***

The mission of a diplomatic officer may be terminated at any time by recall by his own government or dismissal by the government to which he is accredited. His functions can only be exercised while peaceful relations subsist between his country and that to which he is sent. On the breaking out of hostilities he is entitled to a safe conduct out of the enemy country and a reasonable time to leave it." Diplomatic intercourse has been greatly extended in recent years. In 1827 Henry Wheaton was appointed charge d'affaires at the court of Denmark, and from that time till 1835 was the American representative for all Germany and Austria, there being no other minister to either of these countries.26

Since Wheaton's time the number of diplomatic officers throughout the world has increased very greatly, and the business transacted through them now includes a multiplicity of matters of both public and private concern. Increased travel, commerce, and foreign investments, greatly complicate international relations, and call for the settlement of many 22 Hall Int. L. 180, Glenn Int. L. 70. Gladstone v. Musurus Bey, 32 L. J., Ch. 155.

23 U. S. v. Liddle 2 Wash. (U. S.) 205. U. S. v. Benner, 24 Fed. Cases 14,568.

24 U. S. Comp. Stats. (1918) $ 3116.

25 Vattel, Book 4 Ch. IX § 125.

20 Editor's Preface to Wheaton 8th Edition viii.

questions that could not have arisen a hundred years ago. The great banking houses of the world have their agencies in all countries with which their home country has large commercial dealings. Through them investments and loans of many kinds and for many purposes are made. The railroads of the Americas, Asia and Africa have been financed and built in great part by European capitalists. Telegraph cables owned by great corporations have been stretched across the oceans which are the common property of all the nations. Wireless telegraphy now supplements communication through wires. Electrical force reaches not only across the seas but throughout every nook and corner of the land, and is a common property, through which all people of the earth become neighbors within speaking distance of each other. Its uses for the promotion of good fellowship and common interests are but in their infancy, and their value is incapable of measurement. The great war has stimulated aviation to the point that navigation of the air is no longer a dream but a most important reality. The winds blow across lands and seas, and like the ocean the air is the common property of all. National boundaries cannot contain it, and mere national parliaments cannot regulate its use. Under the present organization of the world into so many sovereign nations all these conditions are constantly giving rise to questions to be settled by diplomacy and, where that fails, by war.

Through diplomatic officers all questions affecting the general interests of the nations, and the particular interests of their subjects which they cannot settle between themselves, must be handled and adjusted. If a private citizen has a debt owing to him from or a claim for damages for injuries sustained against a foreign government or any of its citizens or subjects for which satisfaction is denied him, he may apply to the foreign department of his own government for relief. It is for his government then to determine whether or not it will take action. Many considerations other than the merits and justice of his claim may influence the political departments of his government in deciding what shall be done about it. The state of international feeling, the existence of counter

demands of a similar character, the pendency of more important negotiations which might be affected by making the claim, and all the various complications with which statecraft has to deal must be weighed and considered. In a circular addressed to the representatives of Great Britain in foreign countries in 1848 Lord Palmerston said, speaking of claims on bonds and securities of foreign states: "It is for the British Government a question of discretion, and by no means a question of international right, whether they should or should not make this matter the subject of diplomatic negotiation."27 Torts committed by foreign governments or their nationals are regarded as entitled to more consideration, because of the obligation of the government to protect its citizens in their persons and property against all foreign powers. 28 This indeed has always been regarded as one of the fundamental purposes of organized government and akin to that of protecting its own subjects against the aggressions of each other.

The manner of calling on the government of the United States to assert a claim against another nation is pointed out in a circular issued by the Department of State March 6, 1901.29 A claim of an individual against a foreign government so presented becomes the property of the government of the aggrieved citizen, which it has the absolute right to relinquish or settle as it deems best, and after adjustment. between the governments the citizen has no further claim against the foreign government, but only against that of his own country.30 Where the United States releases a just claim against a foreign country it is liable to the citizen for the loss of his claim.31 No court however has power to enforce payment of any claim by the United States.

Where the claim is such that it may be asserted by the claimant in the courts of the foreign state and legal redress ob

27 Hall Int. Law, 294, 295.

28 22 Cyc. 1734.

29 22 Cyc. 1741, note 50.

30 Meade's Case 2 Ct. Cl. 224.

31 Ware v. Hylton, 3 Dallas (U. S.) 199, 245, Gray v. U. S. 21 Ct. Cl. 340, 390.

« ÀÌÀü°è¼Ó »