PART III

DIPLOMATIC INTERCOURSE OF STATES

§ 407. In General.

TITLE A

The practice of enlightened States has revealed the fact that both the processes and instrumentalities of diplomatic intercourse are matters requiring, for sake of mutual convenience, adherence to certain principles designed to promote justice. It is significant, moreover, that among the earliest rules in which States were ready to acquiesce, in token of recognition of the need of a law of nations, were those pertaining to the treatment to be accorded diplomatic officers.

When the United States came into being many of these rules were well established. During the interval that has since elapsed some have been modified. It seems important to observe those on which the United States has placed reliance and laid special emphasis.

It must be constantly borne in mind that the canons of international law restraining the action of States are distinct from and may in fact oppose theories of diplomacy to which particular powers may be committed. The conflict between law and policy is vividly illustrated in the nature of the tasks too frequently imposed upon public ministers. Because the method of fulfillment of essentially legal obligations pertaining to diplomatic intercourse rests largely with the discretion of the individual State, the nature and scope of its duties may have been at times obscured. The success, therefore, of any attempt to ascertain what, in the light of American opinion, they entail, and wherein they should be modified, must depend upon the care taken to distinguish that which by common consent is assigned to local regulation according to domestic policy, from that which is demanded as of right by the international society from each of its members.

TITLE B

AGENTS OF A STATE

1

$408. The President of the United States.

The foreign relations of a State are necessarily conducted by an agent or agents who act either directly or through subordinates.1 Each member of the family of nations enjoys a large freedom in

1 Respecting American diplomatic officers, see Instructions to the Diplomatic Officers of the United States, 1897, and continuations thereof; Documents in Moore, Dig., IV, 425-806.

See, also, generally, Bonfils-Fauchille, 7 ed., §§ 652-732, with bibliography; Edward S. Corwin, The President's Control of Foreign Relations, Princeton, 1917; bibliography in Clunet, Tables Générales, I, 449-451, 875-876; A. de Clercq and C. de Vallat, Formulaire des chancelleries diplomatiques et consulaires, 7 ed., Paris, 1909; John W. Foster, A Century of American Diplomacy, Boston, 1901; American Diplomacy in the Orient, 1903; The Practice of Diplomacy, Boston, 1906; Diplomatic Memoirs, Boston, 1909; Hall, Higgins' 7 ed., 306-333; Hershey, Int. L., 275-297, with bibliography; David Jayne Hill, History of Diplomacy in the International Development of Europe, New York, 1905-1914; Gaillard Hunt, A History of the Department of State, New Haven, 1914; H. C. R. Lisboa, Les Fonctions Diplomatiques en Temps de Paix, Santiago de Chile, 1908; Baron Charles de Martens, Causes Célèbres, Leipzig, 1827; Denys P. Myers, Notes on the Control of Foreign Relations, The Hague, 1917; J. B. Moore, Principles of American Diplomacy, New York, 1918; Charles Ozanam, L'Immunité Civile de Juridiction des Agents Diplomatiques, Paris, 1912; C. Oscar Paullin, Diplomatic Negotiations of American Naval Officers: 1778-1883, Baltimore, 1912; Phillimore, II, §§ 94-242; Walter Alison Phillips, "Diplomacy", in Encyc Brit. Eleventh ed., VIII, 294; Coleman Phillipson, International Law and Custom of Ancient Greece and Rome, London, 1911; P. Pradier-Fodéré, Cours de Droit Diplomatique, Paris, 1899; E. T. Rayneli, Derecho Diplomático Moderno, Buenos Aires, 1914; Jean Roederer, De l'Application des Immunités de l'Ambassadeur au Personnel de l'Ambassade, Paris, 1904; Sir Ernest Satow, Guide to Diplomatic Practice, London, 1917; Eugene Schuyler, American Diplomacy, New York, 1895, 105-190; Charlemagne Tower, Essays Political and Historical, Philadelphia, 1914; Frederick Van Dyne, Our Foreign Service: The "A B C" of American Diplomacy, with bibliography, Rochester, 1909; T. A. Walker, History of the Law of Nations, London, 1899; R. P. Ward, An Inquiry into the Foundation and History of the Law of Nations in Europe, from the time of the Greeks and Romans to the age of Grotius, Dublin, 1795; Dana's Wheaton, §§ 206251, also Dana's Note, No. 129; G. G. Wilson, Int. L., 159-180; Woolsey, 6 ed., §§ 86-98.

THE PRESIDENT OF THE UNITED STATES [§ 408

determining through what instrumentalities it will hold intercourse with the outside world.1

The Constitution of the United States confides the direction of its foreign affairs to the President, whose freedom of action is, however, in certain matters, made dependent upon the approval of the Senate.2 The President is, therefore, the representative of the nation in its official correspondence with foreign powers. It has been deemed improper for a foreign diplomatic officer to attempt to make official communication to the Government through any channel other than the executive.3

It is not without interest that following the so-called "Boxer" trouble in China in 1900, the Imperial Government of that State was obliged by the Powers to reform its Office of Foreign Affairs (Tsungli Yamen) and to transform it into a Ministry of Foreign Affairs (Wai-wu Pu) which should take precedence over the six other Ministries of State. Art. XII of protocol of Sept. 7, 1901, Malloy's Treaties, II, 2011; also Imperial Edict of July 24, 1901, For. Rel. 1901, Appendix (Affairs in China), 337.

According to paragraph 2, Section 2, Art. II, the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.". According to paragraph 11, Section 8, Art. I, the power "to declare war " is entrusted to the Congress.

3 Declared Mr. Jefferson, Secy. of State, to Mr. Genet, the French Minister, Nov. 22, 1793, "In my letter of October 2, I took the liberty of noticing to you, that the commission of consul to M. Dannery ought to have been addressed to the President of the United States. He being the only channel of communication between this country and foreign nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation; and whatever he communicates as such, they have a right, and are bound to consider as the expression of the nation, and no foreign agent can be allowed to question it, to interpose between him and any other branch of Government, under the pretext of either's transgressing their functions, nor to make himself the umpire and final judge between them." Am. State Pap., For. Rel. I, 184. See, also, Moore, Dig., IV, 680–682, and documents there cited.

In December, 1920, the Guatemalan Minister at Washington, and also the Secretary of the British Embassy sought to communicate information (the former, in a personal conference, and the latter, by writing) to members of the Senate respecting matters of international import and bearing upon the foreign relations of the United States. It is understood that in both instances, the Department of State made known the incorrectness of this procedure to the foreign governmental agencies which doubtless inadvertently had recourse to it.

The communications of the President to the Congress in relation to foreign affairs are not regarded as justifying any demand for explanation from abroad, or as an appropriate subject for diplomatic discussion. See documents in Moore, Dig., IV, 683-686, especially Mr. Forsyth, Secy. of State, to Mr. Livingston, Minister to France, March 5, 1835, MS. Inst. France, XIV, 191,

193.

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." John Marshall, in House of Representatives, March 7, 1800, 6 Cong., Annals, 613, quoted in Crandall, Treaties, 2 ed., § 47.

§ 409.

2

Communications through Non-Governmental

Channels.

The government of a State may in fact communicate information to that of another through the public press rather than the diplomatic channel. The propriety of such action may be regarded as dependent upon the circumstances of the particular case. If the design is to advise the people of the State thus sought to be informed of conditions calculated to arouse popular opposition to its own government in a matter of international concern, that government must be expected to take offense.1

Until very recent times it was not assumed in intercourse between friendly States that the governments constitutionally entrusted with the management of foreign affairs were to be regarded as other than identical with the States which they purported to represent. Therefore, it was not supposed that a government could win the acquiescence or approval of a foreign State whose government was in any sense sought to be overridden. The theory of an essential agreement or of singleness of purpose between States in opposition to the government of either did not obtain, and thus found little room for application in practice. Impressive invocation of such a theory appears, however, lately to have been observed by high representatives (if not the Governments) of the United States and Great Britain.2

On April 23, 1919, when the subject was under discussion between representatives of the United States and Italy, at the Peace Conference, President Wilson permitted the publication in the press of a statement indicating what in his judgment was the sole basis of the just solution of the controversy concerning Fiume, and which opposed the position taken by the Italian plenipotentiaries. In his guarded reply, Premier Orlando adverted to the procedure as constituting an innovation in international relations. Without charging that such was the case, he declared that if such appeals were to be "considered as addressed to the nations outside of the governments which represent them (I might even say

1 The necessary implication in such case is that the employment of such a channel of communication was due to a belief that possibly the information would not have been revealed to the people had it been communicated through the customary diplomatic agencies, and that fear of such a contingency induced recourse to a more direct procedure.

2 See, in connection with this subject, as supplementary thereto, Official Negotiations, The Diplomatic Channel, infra, § 454.

3 For the text of President Wilson's statement, see Current History, June, 1919, X, Part I, p. 405.

NON-GOVERNMENTAL CHANNELS

[§ 409

against the governments)," he would feel deep regret in recalling that such process, previously applied to enemy governments, was then applied for the first time to a government which had been and intended to remain a loyal ally of the great American Republic, namely, the Italian Government.1

On January 31, 1920, Lord Grey, British Ambassador to the United States, while in England, permitted the publication in the London Times of an unofficial communication from himself, in which he expressed sympathy for those who in the United States sought to attach reservations to the pending treaty of peace with Germany, and announced that Great Britain might be disposed to acquiesce should the United States ratify the treaty with reservations.2 This information was deemed to possess unusual significance in view of the existing conflict of opinion as to the terms, if any, on which the Senate should advise and consent to ratification, and at a time when it was not generally known in the United States how an Associated Power such as Great Britain would regard reservations such as had been proposed.

The foregoing instances illustrate more than the innovation which they record. They reveal the fact that at the present time information of such vital concern to a foreign State as to be likely to influence its conduct will necessarily be brought home to it by the straightest path and through the simplest means; and that when any conventional channel seems for any reason to obstruct rather than facilitate the communication of intelligence of such a kind, other means of enlightenment will be employed. In a word, govern

1 Current History, June, 1919, X, Part I, p. 407. Premier Orlando added: "To place the Italian people in opposition to the Government would be to admit that this great free nation would submit to the yoke of a will other than its own, and I should be forced to protest strongly against suppositions justly offensive to my country."

2 This communication was published in the Philadelphia Public Ledger, and in the New York Times Feb. 1, 1920. No opinion is ventured as to the propriety of the discussion by a diplomatic officer accredited to the United States of a matter of political importance to it, and calling for possible action on the part of one branch of the Congress. It may be observed, however, in this connection, that the distinguished Ambassador gave expression to his views while in his own country, and that his action in so doing doubtless had the warm approval of his Government. Had the Government of the United States expressed disapproval of Lord Grey's course as at variance with the traditional obligations of a minister to abstain from interference in the domestic politics of the State to which he is accredited, the British Government might have evinced readiness to ratify the statement and to assume themselves responsibility for recourse to the procedure followed. The case raised a larger question than one concerning the propriety of conduct of a particular diplomatic officer, involving rather the issue whether a government such as that of Great Britain might not reasonably, under the circumstances, make known to the people of the United States and incidentally to the Senate, information deemed to be of vital concern to both.