Read Ebook: International Law by Tucker George Fox Wilson George Grafton

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? 66. Servitudes

Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states.

PROPERTY

? 67. Property in General

In the sense commonly used in international law the property of a state is held to be all the lands and water within its limits. Within this territory the state has rights to the exclusion of other states, and upon the land area may exercise the right of eminent domain.

The idea of property in this international sense is distinct from that of private ownership, which is merely relative and depends upon the regulations of the state; indeed, private property may be seized for the debts of the state.

? 68. State Property in International Law

Hall outlines this subject as follows: "A state may own property as a private individual within the jurisdiction of another state; it may possess the immediate as well as the ultimate property in movables, land, and buildings within its own territory; and it may hold property in its state capacity in places not belonging to its own territory, whether within or outside the jurisdiction of other states." Property of the first class falls under the local law of the state in which it is. Property of the second class may come within the scope of international law in time of war. Property of the third class may come with the scope of international law both in time of peace and of war.

DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE

? 69. General Development

Diplomacy may be broadly defined as the art and science of international negotiation. The conditions which make possible established relations among states are of comparatively recent origin. In the days when stranger and enemy were not distinguished, and when "strange air made a man unfree," there could be no extended relations among states. In very early times, however, states had some relations with each other, and general principles were observed in carrying on such business as might be necessary. These growing relations have given rise to what is known as the right of legation. Sometimes a right of intercourse between states has been claimed on the ground that the citizens of one state cannot be excluded from the natural advantages of another state, on the ground that all men have an equal right to innocent use of the earth's resources, or on more abstract grounds of moral duty variously interpreted. As the actual practice of states never has recognized such a right to contend for it would hardly be necessary. States put restrictions upon commerce, even to the exclusions of goods and persons. In some cases where the terms of the state enactment may not be prohibitive, the conditions of admission amount to practical prohibition.

The influence of commerce in its many forms, the idea of unity of mankind in its various manifestations, the growth of neighborhood on the part of European states, and the necessity of respect for each other on the part of these states, made interstate relations imperative and convenient. While the right of intercourse might be questioned, the necessity and convenience of interstate relations admitted of no question.

? 70. Diplomatic Agents

With the pre?minence of the Italian city states in the Middle Ages there came the development of diplomacy as an art. The most distinguished men of the times were called to this state service. Machiavelli's name is inseparably linked to one school of diplomacy. Dante, Petrarch, Boccaccio, and others whose names have become famous, were sent on missions.

During the thirteenth century, Venice outlined the policy which her ambassadors should follow, and there the system of foreign representation became well established. This system included the granting of a commission, instructions, letter of credence, attach?s, etc. Italy may, indeed, be called the home of the diplomatic system.

The Peace of Westphalia in 1648, which marks the beginning of modern international relations, showed that modern diplomacy had already obtained a recognition, and served to give it a more definite form. This date serves as a boundary to the first division of the modern period in the history of diplomacy. The years from the early part of the fifteenth century to the Peace of Westphalia are the years of beginnings. From this time the system of permanent ministers, which so greatly changed the character of international negotiations, became almost a necessity through the development of the equilibrium of the states of Europe.

During the years 1648 to 1815 the relations of states became more complex, and the business of international negotiation more delicate. Diplomatic practice, always tending to look to precedent, suffered severe strains under the ambitious monarchs occupying the thrones of Europe after the Peace of Westphalia. Principles and precedent were often disregarded to obtain political ends. So great was the friction that at length some of the more commonly disputed questions were settled at the Congress of Vienna, 1815.

"In order to prevent in future the inconveniences which have frequently occurred, and which may still occur, from the claims of Precedence among the different Diplomatic characters, the Plenipotentiaries of the Powers who signed the Treaty of Paris have agreed on the following Articles, and think it their duty to invite those of other Crowned Heads to adopt the same regulations:--

+Division of Diplomatic Characters+

That of Envoys, Ministers, or other persons accredited to Sovereigns.

That of Charg?s d'Affaires accredited to Ministers for foreign affairs.

+Representative Character+

+Special Missions+

+Diplomatic Precedence+

+Representatives of the Pope+

The present Regulation shall not occasion any change respecting the Representative of the Pope.

+Form for Reception of Diplomatic Agents+

+Diplomatic Agents of Courts Allied by Family or Other Ties+

+Alteration of Signatures in Acts or Treaties+

To the articles, except the last, Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and Sweden were not parties to the eighth article. Theoretically these rules are binding only upon those states parties to the treaties, but practically they are accepted by all civilized states.

The four grades are as follows:--

The first three grades are accredited to the sovereign. The fourth grade, charg?s d'affaires, is accredited to the minister of foreign affairs.

The rank of the agent does not necessarily have any relation to the importance of the business which may be intrusted to him. The titles given to the different diplomatic agents, at the present time, are in a general way descriptive, as follows:--

There is no rule as to the grade of diplomatic agent which one state shall send to another, though it was formerly held that only states entitled to royal honors could send ambassadors. It is now customary for states to agree among themselves as to the relative rank of their diplomatic agent. Thus the United States by a recent act provided that "whenever the President shall be advised that any foreign government is represented or is about to be represented in the United States by an ambassador, envoy extraordinary, minister plenipotentiary, minister resident, or special, envoy or charg? d'affaires, he is authorized in his discretion to direct that the representative of United States to such government shall bear the same designation. This provision shall in no wise affect the duties, powers, or salary of such representative."

The rank of a diplomatic agent is a mark of dignity and honor particularly of consequence in matters of etiquette and ceremonial. Reciprocity between states is the general rule in the grade of agents. The old theory that agents of the first rank had access to the ear of the sovereign is no longer held, and all grades alike represent both the sovereign and the state from which they come.

? 71. Suite

The personnel of a mission may be distinguished as the official and the non-official.

? 72. Who may send Diplomatic Agents

It is the general rule that sovereign states only may send ambassadors or other diplomatic agents. Sometimes diplomatic relations are maintained between states when both are not fully sovereign, as in the relations between Bavaria, a member of the German Empire, and France. In general, where the sovereignty of a state is not complete, its right of legation is fixed by the treaty which impairs its sovereignty. A state which has not full sovereign powers may have a partial right of legation, either active or passive, or a right to send diplomatic agents with limited functions.

The sending of a diplomatic agent is essentially an act of the sovereign person, whether he be a monarch, president, council, or have other title. The domestic law determines who this person shall be. International law makes no distinction.

In each state a department, usually called the department of foreign affairs, has the business of international intercourse in charge. The organization of this department and the general methods are matters of domestic law. All foreign states need to know is to what extent this department is competent to carry on negotiations.

? 73. Who may be Sent

? 74. Credentials, Instructions, Passport

The diplomatic agent also receives for himself, family, and suite a special passport. The special passport "differs from the ordinary passport in that it usually describes the official rank or occupation of the holder, and often also the purpose of his traveling abroad, while generally omitting the description of his person." This may serve not only the purpose of the ordinary passport, but may also give an official introduction to the bearer.

The papers furnished to diplomatic representatives of the United States include:--

LETTER OF CREDENCE

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

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 assurances which I have charged him to convey to you of the best wishes of this Government for the prosperity of ...... ............

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