Memorandum from the Legal Adviser (Hackworth) to the Director of the Office of Near Eastern and African Affairs (Henderson)
Mr. Henderson: You have requested a memorandum regarding the desire of the British Government to have a Minister accredited to the United States from India.
1. It is unnecessary to dwell upon the proposition that independent states may send and receive diplomatic representatives. This is axiomatic. All the authorities in speaking of the right to accredit ambassadors, ministers, etc., speak of it as a right appertaining to independent states. We know that India is not independent. It is unnecessary here to go into the question of her status vis-à-vis Great Britain or the outside world. The question is whether despite her lack of independence we may allow her to have an accredited Minister in the United States.
2. While the authorities, in discussing diplomatic representation, connect the privilege with independent states, they also speak of representation by and to semi-sovereign or dependent states.
Thus, Oppenheim states:
“Not every State possesses the right of legation. This right belongs chiefly to full sovereign States, for other States possess it under certain conditions only.
“Half sovereign States, such as States under the suzerainty, or the protectorate, of another State, can, as a rule, neither send nor receive diplomatic envoys. But there may be exceptions to this rule. Thus, according to the Peace Treaty of Kainardji of 1774 between Russia and Turkey, the two half sovereign principalities of Moldavia [Page 266]and Wallachia had the right of sending charges d’affaires to foreign Powers. Thus, further, before the Boer War, the South African Republic, which was, in the opinion of Great Britain, a State under British suzerainty, used to keep permanent diplomatic envoys in several foreign States.” I Oppenheim’s International Law (Lauterpacht, 1937) 600–601.
Wheaton, in his discussion of the rights of legation, says:
“How far the rights of legation belong to dependent or semi-sovereign States, must depend upon the nature of their peculiar relation to the superior State under whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the protection of the former power, have the right of sending charges d’affaires of the Greek communion to represent them at the court of Constantinople.” Wheaton’s International Law (Dana’s ed., 1866) 290.
Davis in his treatise states:
“The power of sending and receiving ambassadors belongs also to dependent states, unless its exercise is expressly forbidden by the states upon which they are dependent.” Davis, Elements of International Law (3 ed., 1908) 191.
3. The United States has at different times been represented diplomatically in quasi-independent states, but usually, if not always, by an officer of lower rank than a minister.
4. For example, prior to the recognition of Bulgaria as an independent Kingdom our Minister to Roumania and Serbia was also Diplomatic Agent to Bulgaria.
5. Prior to the relinquishment by Great Britain in 1922 of her Protectorate over Egypt we were represented in Cairo by a Diplomatic Agent and Consul General.
6. Following the establishment in 1912 of the French Protectorate over Morocco, the United States was represented at Tangier by a Diplomatic Agent and Consul General. We are at present represented by a Counselor of Legation and Consul General with a staff of diplomatic secretaries and consular officers.
7. In 1924 the Secretary of State received an Envoy Extraordinary from San Marino, a Republic, under the protection of Italy.
8. I have not undertaken to determine whether the countries referred to in paragraphs 4, 5, and 6 were similarly represented in the United States, but I know of no reason why they should not have been had such representation been mutually agreeable. A reason for not having special representatives here would have been the fact that they were represented through the protecting Powers.
9. While these representatives were lower in rank than Ministers they nevertheless were diplomatic officials and we thus had diplomatic [Page 267]relations with, those countries-despite the fact that they were not fully independent sovereign states.
10. If diplomatic relations may thus be established through officers of lower rank than Ministers, I know of no reason why, had we so desired, we could not as well have sent Ministers had the state having suzerainty been agreeable. The question of the rank to be given diplomatic officers is one of policy and not of law.
11. India is not an independent sovereign State but she is a member of the League of Nations and of the United Nations, She has been represented here by an Agent General in the British Embassy, who apparently has the rank (presumably personal) of Envoy Extraordinary and Minister Plenipotentiary. If India and the British Government desire to accredit him as Minister for India, it would not do violence to any law, international or municipal, of which I have any knowledge for us to receive him as such. I presume that the British Government would be willing to reciprocate, at least I think that we should make reciprocity a condition, to be exercised or not as we may see fit.
12. The fact that Constitutional changes in India are in process would not seem to have any great bearing on our decision, since such changes of which I have any knowledge would still leave India a part of the British Empire.
13. Generally speaking, the receiving of an accredited diplomatic officer is to be regarded as constituting recognition of the independence of the sending state, and questions may well be raised whether, if we receive a Minister, we have recognized India as an independent State. India might use the recognition of the right of legation as an argument that she is or should be independent. That, however, is largely a matter between India and the United Kingdom. If we acted independently, we would be giving offense to Great Britain. But since Great Britain is making the request that situation does not arise. We could answer inquisitive people—and there may foe many—as to the nature and effect of the new situation, by stating the facts and saying that the arrangement was made in the mutual interest of the two countries and at the request of the British Government and that it carries no further implications.