[715] See Mirus, "Das europäische Gesandtschaftsrecht," I. §§ 266-268.
II RIGHT OF LEGATION
Grotius, II. c. 18—Vattel, IV. §§ 55-68—Hall, § 98—Phillimore, II. §§ 115-139—Taylor, §§ 285-288—Twiss, §§ 201-202—Wheaton, §§ 206-209—Bluntschli, §§ 159-165—Heffter, § 200—Geffcken in Holtzendorff, III. pp 620-631—Ullmann, § 45—Rivier, I. § 35—Nys, II. p. 339—Bonfils, Nos. 658-667—Pradier-Fodéré, II. Nos. 1225-1256—Fiore, II. Nos. 1112-1117—Calvo, III. §§ 1321-1325—Martens, II. §§ 7-8.
Conception of Right of Legation.
§ 360. Right of legation is the right of a State to send and receive diplomatic envoys. The right to send such envoys is termed active right of legation, in contradistinction to the passive right of legation, as the right to receive such envoys is termed. Some writers[716] on International Law assert that no right but a mere competence to send and receive diplomatic envoys exists according to International Law, maintaining that no State is bound by International Law to send or receive such envoys. But this is certainly wrong in its generality. Obviously a State is not bound to send diplomatic envoys or to receive permanent envoys. But, on the other hand, the very existence[717] of the Family of Nations makes it necessary for the members or some of the members to negotiate occasionally on certain points. Such negotiation would be impossible in case one member could always and under all circumstances refuse to receive an envoy from the other members. The duty of every member to listen, under ordinary circumstances, to a message from another brought by a diplomatic envoy is, therefore, an outcome of its very membership of the Family of Nations, and this duty corresponds to the right of every member to send such envoys. But the exercise of the active right of legation is discretionary. No State need send diplomatic envoys at all, although practically all States do at least occasionally send such envoys, and most States send permanent envoys to many other States. The passive right of legation is discretionary as regards the reception of permanent envoys only.
[716] See, for instance, Wheaton, § 207; Heilborn, "System," p. 182.
What States possess the Right of Legation.
§ 361. Not every State, however, possesses the right of legation. Such right pertains chiefly to full-Sovereign States,[718] for other States possess this right under certain conditions only.
[718] It should be emphasised that the Holy See, which is in some respects treated as though an International Person, can send and receive envoys, who must in every respect be considered as though they were diplomatic envoys. That they are actually not diplomatic envoys, although so treated, becomes apparent from the fact that they are not agents for international affairs of States, but exclusively for affairs of the Roman Catholic Church. (See above, § [106].)