Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether an Act of an Ambassador Is Valid When Contrary to His Secret Instructions
IT would be a mistake to suppose that an ambassador is anything but an agent of his prince. Envoys were formerly called ‘procurators’, which, in fact, they are, and their commissions, which now are called ‘volmagten’, plenipotentiary, were formerly called ‘procuration’ among the Dutch. This was, in fact, the title of the commission given by the States-General to their ambassadors who were sent to make a treaty of peace with Spain on March 22, 1646. If, therefore, we apply the laws of agency, not only has the prince the right to bring action against his ambassador for abusing his powers as ambassador, but the commissioning prince is not even bound if the agent exceeds his commission. However, no one will rightly judge in these matters who has not learned the nature of the instructions usually given. When an ambassador is sent upon important business, he usually carries his commission in two parts, one which he presents to the prince to whom he is sent, and which now is usually called ‘credentials’ or ‘investment of full powers’, another called ‘instructions’, which he does not present. The first is public, being communicated to those with whom he deals, and it seldom contains anything but the assignment of power to act. The second, which is not communicated but kept secret, contains the principal points to be discussed and the mode in which the ambassador is to endeavour to gain those points. This second might be called the form of procedure. The validity of the ambassador’s act is to be measured by the scope of both of these documents. The first part follows a standing formula both here and in foreign nations, and reads to the effect that what is transacted with these ambassadors will be valid even as if it were transacted with the prince in person, and the prince will consider it binding in every respect. There is no standing formula for the second part, for it depends upon the various circumstances of the different cases, and a different one is given in each case.
Hence the question is properly raised whether the ambassador’s action, taken in accord with the public and general instructions, is valid if it be contradictory to his secret instructions. Gentili thinks it valid, otherwise the prince with whom he is negotiating may be deceived. Even Grotius seems to be of the same opinion. He says, On the Law of War and Peace, ‘In a general agency it may happen that the person appointed binds us while acting contrary to our will as signified to him alone. For here there are two distinct acts of will: one by which we bind ourselves to hold valid whatever he does in this kind of business; the other in which we put him under an obligation to us not to act except according to our directions, known to him and not to others.’ This he repeats in Book III, Chapter XXII, 4, 1, and illustrates with an example of an action against an agent. Moreover, in the preceding passage he adds: ‘This is to be noted in those things which ambassadors promise for Icings in virtue of their written powers, when they go beyond their secret instructions.’ He wishes, therefore, to consider valid what has been done with an envoy even contrary to secret instructions, preserving, however, for the prince the right of action against the envoy for abuse of his powers. Zouche is content to repeat what Gentili and Grotius say, but adds no opinion of his own; nor does it matter, for it would not be of great worth. My own opinion is as follows.
I do not choose to follow the authorities of former time, for I do not consider that their decisions are in every respect true according to the Law of Nations that obtains to-day. In acting contrary to instructions an ambassador does wrong, and therefore does not bind his principal, for the principal is not bound except by his consent, and that obviously does not exist if contrary instructions or none at all have been given. I will agree with those authorities only if the public instructions given were of a special nature, describing fully the terms of action, for if action is taken accordingly under these conditions, the prince is voluntarily bound. Then obviously it will not profit him if he later gives secret instructions contrary to the public ones, for his feigned consent is expressed in the public ones, and a feigned consent has the force of a real one as Ulpian shows by a neat example. It is not to be presumed that any one gives two sets of instructions mutually contradictory; if he does, he commits fraud and pays the penalty. But it seldom occurs that the public commission is special and full, more seldom that the secret instructions contradict the public ones, it is most unusual that the ambassador rejects the secret ones given later and follows the previously given public ones.
But to pass over these rare cases which, according to line 6 of De Legibus, legislators generally disregard, we usually have an ambassador supported by a general public commission, and by one that is special and private. Whatever be the powers, even the fullest, bestowed by the public and general instructions, the ambassador, in my opinion, does not bind his prince if he exceeds the special and private ones. It is clear even from Roman law that general instructions do not always empower the agent to act freely and at will, but they convey certain exceptions according to the intentions of the principal, as in the case treated by Paulus, who says: ‘And so if the principal does not ratify the compromise, he is not debarred from exercising his original right of action.’ I would say that the very same holds true of the ambassador, for however general the public commission may be, because it is general, it refers in the intentions of the principal to the special, private commission, so that to this extent there is a tacit exception to the public commission. You will say, perhaps, that this exception must be made public in order to be valid, as is prescribed under the law of agency. But the case of the envoy is different from that of the agent. He who appoints an agent is bound by the very appointment if a contract is made in business over which the agent is appointed, but he who sends an ambassador is not bound unless the ambassador in good faith follows the instructions which the prince has given or will give later. According to present customs of nations those general commissions usually confer, as I have said, nothing but authority of action, but by no means authority to act at will contrary to the private instructions of the prince. There is a tacit understanding in all appointments of envoys that they shall diligently follow such instructions, and hence it is perhaps that those who dispatch envoys usually insert among the public instructions the statement that the person sent is suitable, skilled, upright, and trustworthy, as though on this condition the authority had been given him of making contracts and treaties rightly and properly, and by that I mean simply in accordance with instructions. Those who exceed their instructions are not upright and trustworthy, and if they do so one might perhaps say with justice that they have by law forfeited their position as ambassadors. To this may be referred the paragraph of the decree of August 10, 1651, by which the States-General ordained that if an envoy accepted a gift, he thereby forfeited all his dignities and privileges. In that case he is no longer an envoy, since it is presumed that his loyalty is corrupted by the gift.
To go a step farther, it would be correct to hold that nothing done with envoys under the general instructions is valid nowadays unless ratified by the prince. It may be valid as to form, but practically it has no force without the added authority of ratification. Bodin has proved that even in certain other instances general instructions have no force without ratification. That this is true in the case of embassies is sufficiently proved by the frequent promises of ratification that are inserted among the general instructions. Nor does any prince consider it entirely safe to transact business with an envoy unless the acts have been confirmed by the principals on both sides. Thus it is always permissible to rescind action, if anything has been inserted contrary to, or exceeding, the purpose of the contracting parties. And yet Wicquefort holds that such confirmation is by no means necessary, saying, ‘As the Civil Laws compel the private person to ratify what his agent has done by virtue of his commission, so the Law of Nations compels the prince to ratify what his minister has done by virtue of his commission, above all if the power committed is full and absolute without any condition that limits or qualifies it.’ And presently he rebukes some princes who did not wish to ratify the treaties and compacts entered into by their envoys. We must, however, carefully distinguish between international customs which were formerly in vogue and those that now exist, for the most important part of the Law of Nations depends upon customary practice. Among the Romans the Senate and people ratified the treaties which consuls, without instructions to make agreements or treaties, entered into with foreign nations, as is found in Polybius, and in the Excerptae Legationes from Polybius. This, I say, was when there were no instructions about making compacts and treaties. But when there were such instructions, as when the senate decreed ‘that Scipio should make peace with Carthage on whatever terms seemed best to him’, there was no need of confirmation, and I do not find that the Romans made use of it on that occasion, or at any other time when the case was of the same nature.
However, former practices do not now hold, for the customs of nations constantly change. After the practice arose of ratifying treaties, it has come to be a wellnigh universal custom not to consider treaties and pacts made by ambassadors valid unless the princes whom they represented confirmed the acts. Wicquefort himself recognized ratification as necessary in the following words: ‘The powers, be they ever so full and unrestricted, always bear some relation to the secret orders bestowed, which may be changed, as they often are, according to the turns and changes of affairs.’ However, if the envoy makes compacts and treaties strictly in accordance with the public instructions, if these be particular, or in accordance with the private ones, which are always particular, I would not deny that it is the duty of the upright prince to approve of these, and that if he does not, he stands guilty of breach of faith and exposes his envoy to scorn. If, however, the envoy has exceeded instructions, or matters have been inserted in the compacts or treaties on which there were no instructions, the prince has full right to defer confirmation and even to refuse it. According to this rule I would condemn or approve of the instances of refused confirmation of which Wicquefort speaks so fully. In particular cases which he there reviews, I should not like to pronounce judgement, for they involve many facts that lie beyond the range of my knowledge, and perhaps also of his. However, nations are right in requiring ratification, for, as I have said, the public instructions seldom cover particulars, and the envoy guards the private ones in his strong box, so that those with whom he treats can hardly know anything about them.
From what I have said above we can judge of a case which brought the King of Sweden into a dispute with the States-General in 1667. On account of a previous suit the Swedish ambassador secured an indemnity of 1400 imperials from the States-General, and so acknowledged satisfaction of all claims, also renounced claim to certain places in Guinea, and to all further right of navigating those waters. When later in the same year the matter was discussed again between the States-General and other envoys of the Swedish King, the latter refused to acknowledge the previous agreement on the ground that the former envoy had not followed the secret instructions of the King. To this the States-General answered, that that was not their affair and that the King had ground for action against his envoy for abuse of ambassadorial powers. They said that they had made a contract with an envoy authorized by general instructions of the King, and that it was not their duty to ferret out his secret instructions. However, since the King had not ratified the treaty made by his envoy, his contention was favoured on the score of equity. And yet the States-General prevailed according to section 5 of the Treaty between the King of Sweden and the States-General, July 28, 1667.