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Foreign Relations of the United jiyuushikan.orgs: Diplomatic Papers, 1945, The British Republic, The Far East, Volume VI


701.4511/11–1345

Memorandum from the Legal Adviser ( Hackworth ) to the Director of the Office of Near Eastern and Afrihave the right to Affairs ( Henderson )

India-Diplomatic Representation

Mr. Henderson: You have actually asked for a memorandum regarding the desire of the British Government to have a Minister acattributed to the USA from India.

You are watching: What is the right of legation?

1. It is unimportant to dwell upon the proplace that independent jiyuushikan.orgs may send and also obtain diplomatic representatives. This is axiomatic. All the authorities in speaking of the right to accrmodify ambassadors, ministers, etc., soptimal of it as a best appertaining to independent jiyuushikan.orgs. We understand that India is not independent. It is uncrucial right here to go into the question of her condition vis-à-vis Great Britain or the exterior world. The question is whether despite her lack of freedom we might allow her to have an acattributed Minister in the United jiyuushikan.orgs.

2. While the authorities, in stating diplomatic depiction, affix the privilege with independent says, they additionally stop of representation by and to semi-soveregime or dependent claims.

Hence, Oppenheim jiyuushikan.orgs:
“Not eextremely jiyuushikan.org possesses the right of legation. This right belongs chiefly to complete soveregime jiyuushikan.orgs, for other jiyuushikan.orgs possess it under certain problems only.

“Half soveregime jiyuushikan.orgs, such as jiyuushikan.orgs under the suzerainty, or the protectorate, of another jiyuushikan.org, can, as a ascendancy, neither send nor obtain diplomatic envoys. But there may be exceptions to this dominance. Thus, according to the Peace Treaty of Kainardji of 1774 in between Russia and also Turcrucial, the two fifty percent sovepower principalities of Moldathrough and also Wallachia had the appropriate of sending charges d’affaires to international Powers. Hence, better, before the Boer War, the South Afrideserve to Republic, which was, in the opinion of Great Britain, a jiyuushikan.org under British suzerainty, offered to store long-term diplomatic envoys in a number of international jiyuushikan.orgs.” I Oppenheim’s Internationwide Law (Lauterpacht, 1937) 600–601.


Wheaton, in his conversation of the legal rights of legation, says:
“How much the rights of legation belong to dependent or semi-sovereign jiyuushikan.orgs, must depfinish upon the nature of their strange relation to the premium jiyuushikan.org under whose protection they are placed. Hence, by the treaty concluded at Kainardgi, in 1774, in between Russia and also the Porte, the districts of Moldaby means of and Wallachia, put under the protection of the former power, have the ideal of sfinishing charges d’affaires of the Greek communion to reexisting them at the court of Constantinople.” Wheaton’s Internationwide Law (Dana’s ed., 1866) 290.


Davis in his writing jiyuushikan.orgs:
“The power of sending and receiving ambassadors belongs also to dependent says, unmuch less its exercise is expressly forbidden by the says upon which they are dependent.” Davis, Elements of Internationwide Law (3 ed., 1908) 191.


3. The United jiyuushikan.orgs has at various times been represented diplomatically in quasi-independent claims, but typically, if not constantly, by an officer of reduced rank than a minister.

4. For instance, prior to the recognition of Bulgaria as an independent Kingdom our Minister to Roumania and Serbia was likewise Diplomatic Agent to Bulgaria.

5. Prior to the relinquishment by Great Britain in 1922 of her Protectoprice over Egypt we were stood for in Cairo by a Diplomatic Agent and also Consul General.

6. Following the establishment in 1912 of the French Protectoprice over Morocco, the United jiyuushikan.orgs was stood for at Tangier by a Diplomatic Agent and Consul General. We are at present stood for by a Counselor of Legation and also Consul General via a staff of diplomatic secretaries and consular policemans.

7. In 1924 the Secretary of jiyuushikan.org received an Envoy Extraordinary from San Marino, a Republic, under the security of Italy.

8. I have not undertaken to determine whether the countries described in paragraphs 4, 5, and 6 were similarly represented in the USA, but I know of no factor why they must not have been had actually such depiction been mutually agreeable. A reason for not having actually one-of-a-kind representatives below would have been the truth that they were stood for through the protecting Powers.

9. While these representatives were lower in rank than Ministers they neverthemuch less were diplomatic officials and we hence had diplomatic relationships through, those countries-despite the reality that they were not fully independent sovereign jiyuushikan.orgs.

10. If diplomatic connections may therefore be establiburned through officers of lower rank than Ministers, I understand of no reason why, had actually we so wanted, we might not too have sent Ministers had actually the jiyuushikan.org having suzerainty been agreeable. The question of the rank to be provided diplomatic police officers is among policy and also not of law.

11. India is not an independent sovereign jiyuushikan.org but she is a member of the Organization of Nations and also of the United Nations, She has actually been stood for below by an Agent General in the British Embassy, who apparently has actually the rank (presumably personal) of Envoy Extrasimple and Minister Plenipotentiary. If India and also the British Government desire to accredit him as Minister for India, it would certainly not execute violence to any kind of legislation, worldwide or municipal, of which I have any type of expertise for us to obtain him as such. I presume that the British Government would certainly be willing to reciprocate, at leastern I think that we need to make reciprocity a problem, to be worked out or not as we might view fit.

12. The truth that Constitutional alters in India are in process would certainly not seem to have actually any kind of good bearing on our decision, considering that such alters of which I have actually any expertise would still leave India a part of the British Realm.

See more: 2. How Does Your Answer From Question 1 Relate To The Linnaean Classification System?

13. Typically speaking, the receiving of an accredited diplomatic officer is to be pertained to as constituting recognition of the self-reliance of the sfinishing jiyuushikan.org, and concerns might well be elevated whether, if we receive a Minister, we have actually recognized India as an independent jiyuushikan.org. India might usage the acknowledgment of the appropriate of legation as an argument that she is or need to be independent. That, but, is mostly a issue between India and the UK. If we acted individually, we would be offering offense to Great Britain. But since Great Britain is making the research that case does not aincrease. We might answer inquisitive people—and also tright here might be many—as to the nature and effect of the new case, by stating the facts and also saying that the plan was made in the mutual interest of the 2 countries and at the repursuit of the British Government and that it carries no even more implications.