International Law. A Treatise Volume I Part 61

(1899)--Stowell, "Le Consul," pp. 137-185.

[Sidenote: Position.]

-- 434. Like diplomatic envoys, consuls are simply objects of International Law. Such rights as they have are granted to them by Munic.i.p.al Laws in compliance with rights of the appointing States according to International Law.[779] As regards their position, it should nowadays be an established and uncontested fact that consuls do not enjoy the position of diplomatic envoys, since no Christian State actually grants to foreign consuls the privileges of diplomatic agents.

On the other hand, it would be incorrect to maintain that their position is in no way different from that of any other individual living within the consular district. Since they are appointed by foreign States and have received the _exequatur_, they are publicly recognised by the admitting State as agents of the appointing State. Of course, consuls are not diplomatic representatives, for they do not represent the appointing States in the totality of their international relations, but for a limited number of tasks and for local purposes only. Yet they bear a recognised public character, in contradistinction to mere private individuals, and, consequently, their position is different from that of mere private individuals. This is certainly the case with regard to professional consuls, who are officials of their home State and are specially sent to the foreign State for the purpose of administering the consular office. But in regard to non-professional consuls it must likewise be maintained that the admitting State by granting the _exequatur_ recognises their official position towards itself, which demands at least a special protection[780] of their persons and residences. The official position of consuls, however, does not involve direct intercourse with the Government of the admitting State. Consuls are appointed for _local_ purposes only, and they have, therefore, direct intercourse with the _local authorities_ only. If they want to approach the Government itself, they can do so only through the diplomatic envoy, to whom they are subordinate.

[Footnote 779: See above, -- 384.]

[Footnote 780: According to British and American practice a consul of a neutral Power accredited to the enemy State who embarks upon mercantile ventures, is not by his official position protected against seizure of his goods carried by enemy vessels, for by trading in the enemy country he acquires to a certain extent enemy character; see the case of the Indian Chief, 3 C. Rob. 12.]

[Sidenote: Consular Privileges.]

-- 435. From the undoubted official position of consuls no universally recognised privileges of importance emanate as yet. Apart from the special protection due to consuls according to International Law, there is neither a custom nor a universal agreement between the Powers to grant them important privileges. Such privileges as consuls actually enjoy are granted to them either by courtesy or in compliance with special stipulations of a Commercial or Consular Treaty between the sending and the admitting State. I doubt not that in time the Powers will agree upon a universal treaty in regard to the position and privileges of consuls.[781] Meanwhile, it is of interest to take notice of some of the more important stipulations which are to be found in the innumerable treaties between the several States in regard to consular privileges:

[Footnote 781: The Inst.i.tute of International Law at its meeting at Venice in 1896 adopted a _Reglement sur les immunites consulaires_ comprising twenty-one articles. See Annuaire, XV. p. 304.]

(1) A distinction is very often made between professional and non-professional consuls in so far as the former are accorded more privileges than the latter.

(2) Although consuls are not exempt from the local civil and criminal jurisdiction, the latter is in regard to professional consuls often limited to crimes of a more serious character.

(3) In many treaties it is stipulated that consular archives shall be inviolable from search or seizure. Consuls are therefore obliged to keep their official doc.u.ments and correspondence separate from their private papers.

(4) Inviolability of the consular buildings is also sometimes stipulated, so that no officer of the local police, Courts, and so on, can enter these buildings without special permission of the consul. But it is then the duty of consuls to surrender criminals who have taken refuge in these buildings.

(5) Professional consuls are often exempt from all kinds of rates and taxes, from the liability to have soldiers quartered in their houses, and from the duty to appear in person as witnesses before the Courts. In the latter case consuls have either to send in their evidence in writing, or their evidence may be taken by a commission on the premises of the consulate.

(6) Consuls of all kinds have the right to put up the arms of the appointing State over the door of the consular building and to hoist the national flag.

VI

TERMINATION OF CONSULAR OFFICE

Hall, -- 105--Moore, V. -- 701--Ullmann, -- 59--Bulmerincq in Holtzendorff, III. p. 708--Rivier, I. -- 41--Calvo, III. ---- 1382, 1383, 1450--Bonfils, No. 775--Fiore, II. No. 1187--Martens, II. -- 21--Stowell "Le Consul," pp. 217-222.

[Sidenote: Undoubted Causes of Termination.]

-- 436. Death of the consul, withdrawal of the _exequatur_, recall or dismissal, and, lastly, war between the appointing and the admitting State, are universally recognised causes of termination of the consular office. When a consul dies or war breaks out, the consular archives must not be touched by the local authorities. They remain either under the care of an _employe_ of the consulate, or a consul of another State takes charge of them until the successor of the deceased arrives or peace is concluded.

[Sidenote: Doubtful Causes of Termination.]

-- 437. It is not certain in practice whether the office of a consul terminates when his district, through cession, conquest followed by annexation, or revolt, becomes the property of another State. The question ought to be answered in the affirmative, because the _exequatur_ given to such consul originates from a Government which then no longer possesses the territory. A practical instance of this question occurred in 1836, when Belgium, which was then not yet recognised by Russia, declared that she would henceforth no longer treat the Russian consul Aegi at Antwerp as consul, because he was appointed before the revolt and had his _exequatur_ granted by the Government of the Netherlands. Although Belgium gave way in the end to the urgent remonstrances of Russia, her original att.i.tude was legally correct.

[Sidenote: Change in the Heads.h.i.+p of States not Cause of Termination.]

-- 438. It is universally recognised that, in contradistinction to a diplomatic mission, the consular office does not come to an end through a change in the heads.h.i.+p of the appointing or the admitting State.

Neither a new patent nor a new _exequatur_ is therefore necessary whether another king comes to the throne or a monarchy turns into a republic, or in any like case.

VII

CONSULS IN NON-CHRISTIAN STATES

Tarring, "British Consular Jurisdiction in the East" (1887)--Hall, "Foreign Powers and Jurisdiction," ---- 64-85--Halleck, I. pp.

385-398--Phillimore, II. ---- 272-277--Taylor, ---- 331-333--Twiss, I.

-- 136--Wheaton, -- 110--Ullmann, ---- 63-65--Bulmerincq in Holtzendorff, III. pp. 720-738--Rivier, I. -- 43--Nys, II. pp.

400-414--Calvo, III. ---- 1431-1449--Bonfils, Nos.

776-791--Pradier-Fodere, IV. 2122-2138--Merignhac, II. pp.

338-351--Martens, II. ---- 24-26--Martens, "Konsularwesen und Konsularjurisdiction im Orient" (German translation from the Russian original by Skerst, 1874)--Bruillat, "etude historique et critique sur les juridictions consulaires" (1898)--Lippmann, "Die Konsularjurisdiction im Orient" (1898)--Verge, "Des consuls dans les pays d'occident" (1903)--Hinckley, "American Consular Jurisdiction in the Orient" (1906)--Piggott, "Exterritoriality.

The Law relating to Consular Jurisdiction, &c. in Oriental Countries" (new edition, 1907)--Mandelstam, "La justice ottomane dans ses rapports avec les puissances etrangeres" (1911), and in R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384.

[Sidenote: Position of Consuls in non-Christian States.]

-- 439. Fundamentally different from the regular position is that of consuls in non-Christian States, with the single exception of j.a.pan. In the Christian countries of the West alone consuls have, as has been stated before (-- 418), lost jurisdiction over the subjects of the appointing States. In the Mohammedan States consuls not only retained their original jurisdiction, but the latter became by-and-by so extended through the so-called Capitulations that the competence of consuls soon comprised the whole civil and criminal jurisdiction, the power of protection of the privileges, the life, and property of their countrymen, and even the power to expel one of their countrymen for bad conduct. And custom and treaties secured to consuls inviolability, exterritoriality, ceremonial honours, and miscellaneous other rights, so that there is no doubt that their position is materially the same as that of diplomatic envoys. From the Mohammedan countries this position of consuls has been extended and transferred to China, j.a.pan, Persia, and other non-Christian countries, but in j.a.pan the position of consuls shrank in 1899 into that of consuls in Christian States.

[Sidenote: Consular Jurisdiction in non-Christian States.]

-- 440. International custom and treaties lay down the rule only that all the subjects of Christian States residing in non-Christian States shall remain under the jurisdiction of the home State as exercised by their consuls.[782] It is a matter for the Munic.i.p.al Laws of the several Christian States to organise this consular jurisdiction. All States have therefore enacted statutes dealing with this matter. As regards Great Britain, several Orders in Council and the Foreign Jurisdiction Act (53 & 54 Vict., c. 37) of 1890 are now the legal basis of the consular jurisdiction.[783] The working of this consular jurisdiction is, however, not satisfactory in regard to the so-called mixed cases. As the national consul has exclusive jurisdiction over the subjects of his home State, he exercises this jurisdiction also in cases in which the plaintiff is a native or a subject of another Christian State, and which are therefore called mixed cases.

[Footnote 782: See above, -- 318.]

[Footnote 783: See Piggott, _op. cit._]

[Sidenote: International Courts in Egypt.]

-- 441. To overcome in some points the disadvantages of the consular jurisdiction, an interesting experiment is being made in Egypt. On the initiative of the Khedive, most of the Powers in 1875 agreed upon an organisation of International Courts in Egypt for mixed cases.[784]

These Courts began their functions in 1876. They are in the main competent for mixed civil cases, mixed criminal cases of importance remaining under the jurisdiction of the national consuls. There are three International Courts of first instance--namely, at Alexandria, Cairo, and Ismailia (formerly at Zagazig), and one International Court of Appeal at Alexandria. The tribunals of first instance are each composed of three natives and four foreigners, the Court of Appeal is composed of four natives and seven foreigners.

[Footnote 784: See Holland, "The European Concert in the Eastern Question," pp. 101-102; Scott, "The Law Affecting Foreigners in Egypt as the Result of the Capitulations" (1907); Goudy in _The Law Quarterly Review_, XXIII. (1907), pp. 409-413.]

[Sidenote: Exceptional Character of Consuls in non-Christian States.]

-- 442. There is no doubt that the present position of consuls in non-Christian States is in every point an exceptional one, which does not agree with the principles of International Law otherwise universally recognised. But the position is and must remain a necessity as long as the civilisation of non-Christian States has not developed their ideas of justice in accordance with Christian ideas, so as to preserve the life, property, and honour of foreigners before native Courts. The case of j.a.pan is an example of the readiness of the Powers to consent to the withdrawal of consular jurisdiction in non-Christian States as soon as they have reached a certain level of civilisation.

CHAPTER IV

MISCELLANEOUS AGENCIES

I

ARMED FORCES ON FOREIGN TERRITORY

Hall, ---- 54, 56, 102--Lawrence, -- 107--Halleck, I. pp.

477-479--Phillimore, I. -- 341--Taylor, -- 131--Twiss, I. -- 165--Wheaton, -- 99--Moore, II. -- 251--Westlake, I. p. 255--Stoerk in Holtzendorff, II. pp. 664-666--Rivier, I. pp. 333-335--Calvo, III. -- 1560--Fiore, I. Nos. 528-529.