IV.

When the interest of the country or its citizens require being looked

after, the legation is entitled to gather information from, and to give

orders to the Consul concerned. Such orders must not conflict with actual

law and statute, nor with instructions or other regulations given by the

Home authority.

With regard to a Consul's duty to obey the injunctions mentioned above,

the last passage of § 3 should be applied.

[-- -- --]

5.

Extracts from the outlines for laws of the same wording drawn up by His

Excellency Boström, in November 1904.

[-- -- --]

[-- -- --]

With regard to the relations between the Minister for Foreign affairs and

the Consular administration, and in addition to general precepts as to

their duty of mutual cooperation and of mutual interchange of information

about such resolutions and steps, etc. as may be of importance for them

to know it should be directed:

that a new Consulate must not be established until the Minister for

Foreign affairs has stated as to whether any obstacles to its

establishment are raised on the part of Foreign Powers;

that, before the appointment of a Consul, the Foreign Minister shall have

an opportunity of making the remarks he may find appropriate, as to the

persons possible to be taken into consideration for the appointment;

that, for obtaining a Foreign Power's recognition of a Consul, the

Consular administration has to make a proposition of it to the Foreign

Minister just as is the case when, in other matters belonging to the

province of the Consular administration the question arises about

applying to the Government of a Foreign Power;

and that if, in matters being dealt with by the Consular administration,

the Minister for Foreign affairs has given instructions to a Consul, the

Consular administration must not give the Consul an order conflicting

with such an instruction.

As to the Foreign Minister's relation to the Consuls and _vice versâ_,

the law should say that the Consuls are subordinate to the Minister for

Foreign affairs in such a way:

that, in matters belonging to his province, he has the right to request

information directly from the Consul and to give him instructions;

and that the Consul on his part is bound not only to execute implicitly

what he is thus requested to do, but also, in such matters dealt with by

him as, owing to their nature and other circumstances, may be supposed to

affect the relation to a Foreign Power, to send of his own accord a

report of the origination of the matter as well as of its further

development.

Besides it should be instituted:

[-- -- --]

that, in case a Consul should act in such a way as may have a disturbing

effect upon the friendly relations between the United Kingdoms and the

Foreign Power concerned, and also in case a Consul should neglect to

execute the instructions of the Minister for Foreign affairs or the

Legation, the Foreign Minister shall have the right to address a humble

request to the King about the Consul's revocation, whereupon the Consular

administration concerned should be informed of the resolution.

In order to regulate the relations between the Legation and the Consuls

concerned, it should, apart from the general precept of their duty of

mutual cooperation, be laid down in the law:

that the legation is bound to guard the Consul's rights and to lend him

necessary assistance and, in matters belonging to the province of the

legation, entitled to demand information from the Consul and to give him

instructions;

that the Consul has the same duties towards the Legation as towards the

Minister for Foreign affairs;

and that, if the Consul, by participating in political demonstrations or

in another way, should openly disregard the consideration he is bound to

have for the authorities of the country he is employed in, or if an

action affecting his civil repute should he brought against him, the

legation has the right to suspend him from his office until further

notice.

6.

Extract from the answer given by His Excellency Hagerup to the preceeding

draft, on November 26, 1904.

[-- -- --]

2. No approval on the part of Norway can be expected for an arrangement

that would give Swedish authorities the possibility of interfering with

measures taken by a Norwegian authority. Also in this respect we merely

adhere to the Communiqué and the Protocols of December that, as a basis

of agreement, give prominence to the establishment of a separate Consular

service for Sweden and for Norway, in which case »the Consuls of each

Kingdom shall be subordinate to the authority of their own country which

the latter shall have to determine.» This arrangement does not however

preclude, as is also presupposed in the Norwegian draft, a certain

possibility for the Foreign Minister to address direct requests to the

consuls.

[-- -- --]

With particular regard to the demand expressed in the »outlines» that the

Swedish Minister for Foreign affairs shall have the right--this is the,

intention according to your Excellency's verbal declaration--to

discharge in ministerial--consequently in Swedish--Cabinet Council a

consul appointed in Norwegian Council, I ventured to point out 1) that

this demand was entirely contrary to the Norwegian Constitution, 2) that

an arrangement by which a Swedish authority of state might nullify a

resolution adopted by a Norwegian authority of state would, according to

the general principles of political and international law, impress upon

Norway the stamp of a dependency, and 3) that it would therefore from a

national point of view signify an enormous retrograde step as compared

with the present arrangement of the Consular service.

[-- -- --]

7.

Extracts from the draft of laws of the same wording made by the Swedish

Government in December 1904.

[-- -- --]

§ 8.

If in a matter being dealt with by the Consular administration, the

Minister for Foreign affairs has informed that he has taken such a

measure as is alluded to in § 9, it is for the Consular administration to

observe that, from its side, no such instructions are given to the consul

concerned as are conflicting with any reorder relating to this matter

given by the Minister for Foreign affairs and known to the Consular

administration.

§ 9.

The Minister for Foreign affairs has, in a matter belonging to his

province, to request immediate information from the Consul of the country

concerned and also give him instructions about what he has to observe in

such a matter; and a consul is absolutely bound to fullfill what is thus

requested of him.

[-- -- --]

§ 11.

If the Minister for Foreign Affairs should learn that a Consular employé

has not acted with good and worthy behaviour towards the authorities of

the country where he is employed, or that he has participated in

political demonstrations, or secretely, or openly encouraged or supported

attacks on the existing Government, or else behaves in a way that may

have a disturbing effect upon the good relations between the United

Kingdoms and the Foreign Power concerned, then the minister has humbly to

give notice of it to the King in Joint or in Ministerial Cabinet Council

whereupon the matter is submitted to the King's consideration in the

Cabinet Council of the country concerned.

[-- -- --]

§ 16.

If a legation should find a Consul guilty of a proceeding or a neglect

alluded to in § 11, or if a Consul should be prosecuted for a crime

affecting his civil repute, the legation, if finding it justified by

circumstances, has to suspend the Consul from his office; and the matter

should immedately be reported both to the Minister for Foreign affairs

and to the Consular administration concerned.

A Consul thus suspended from his office, must not again come into office

until the King, after hearing the Minister for Foreign affairs, has

resolved upon it.

[-- -- --]

8.

Extracts from notes made, in consequence of the Swedish Government's

draft of laws of the same wording by the Norwegian Cabinet Council, on

January 11, 1905.

[-- -- --]

To § 8. It is stated here that, when. in a matter being dealt with by the

Consular administration, the Foreign Minister has given a Consul an

order, it is for the Consular administration to observe that, from its

side, no order conflicting with it is given to the Consul. It is

difficult to understand what is meant by this paragraph, which is without

a parallel in the present Consular statutes which do not direct any

similar injunction to the Norwegian Consular department. To judge from

reference to § 4, it does not seem to have been intended to give the

Foreign Minister the right, in whatever be which matter being dealt with

by the Consular administration, to stop the function of the latter and to

assert his own authority instead; for this would be equivalent to

instituting a relation of subordination that no Governmental department

can submit to. The intention, then, can only be supposed to have been

the following:--to try, in a consular matter, that has assumed a

diplomatic aspect or that is simultaneously subject to a consular and a

diplomatic treatment, to prevent the Consular administration from

arbitrarily trespassing upon the province of the Foreign Minister. It

stands to reason that this must not occur. But just because it stands to

reason, the precept is superfluous. And what is of more importance: it is

calculated to excite indignation. For, as it is obvious that an

interference of the said kind must be a manifestation either of want of

judgment or of disloyalty, it should be admitted that it is not very

appropriate to give in a law, even in an indirect way, an expression to

the thought that such qualities may prevail in the department concerned.

[-- -- --]

To § 11. [-- --] We should not however dwell upon these formal

considerations which are of a merely secondary importance as compared

with the far-reaching question: exclusively Norwegian or partly joint

treatment of matters concerning the relations of Norwegian Consuls

wheteher to the Foreign Minister, or to legations, or to Foreign

authorities. In this connection we want to quote a passage from the

report of the last Consular Committee made up of members from both

countries where we read (Norwegian edition, p. 16): »Furthermore the

Norwegian Consular administration has to leave it to the Foreign Minister

(and the legations) to receive and reply to reclamations from Foreign

Governments in the rare cases when subjects of contention arise by the

actions of Norwegian Consuls. For this kind of correspondence, although

dealing with the behaviour of Consuls, is owing to its nature diplomatic

and not consular, and in as much as the matter has a political moment,

the Foreign Minister should continue to keep the management of it; if the

matter should become critical so as to grow into a real international

conflict, he should report it to the King and procure the instructions

necessary for its treatment. It stands to reason that he should not be

debarred from influencing the course of the matter by informing the

Norwegian Consular administration of his opinion as to the steps suitable

to take with regard to the consul Concerned. But the very instructions to

the latter or the disciplinary steps occasioned by the matter belong to

the home consular management and should therefore be issued from the

Norwegian department.» We concur in the opinion expressed here and the

demand for an exclusively Norwegian treatment of questions concerning

measures against Norwegian Consuls, appears still more justified in the

cases when the matter is without a political moment, but the question

regards the consul's relation to the Foreign Minister and the legations.

In the last-mentioned respect we want again to refer to the statement of

the Consular Committee (Norwegian edition, pp. 25-26), from which it is

evident that they did not intend any joint treatment of matters relating

to the Consul's disobedience of instructions or omission of duties; nor

was this intention expressed during the negotiations that took place

before the appearance of the Communiqué. Such a joint treatment that

should precede the treatment from the Norwegian side, can only imply one

of two things. Either it means to be a mere formality only calculated to

delay matters perhaps requiring a speedy decision. Or else it means to be

a real treatment, in which case, the Foreign Minister is intended to get

influence on the settlement of the matter; but in this case it will

signify an encroachment upon a department which, as it maintained, should

be exclusively reserved for a Norwegian authority of State. Besides, it

is self-evident that the Consular administration which may justly be

supposed to be equally interested as the Foreign Minister in Norway not

being compromised by her agents abroad, cannot forbear, when demands for

a Consul's revocation are made on the part of diplomacy, to make the

matter the object of a humble report.

[-- -- --]

To § 16. It is proposed here that the legation shall have the right to

suspend a Consul guilty of such conduct as is spoken of in § 11, or

prosecuted for a crime affecting his civic reputation. In this connection

it should be remembered that, according to the present consular statute,

the right to suspend a consular official does not lie with the legations,

but with the Foreign Minister who, after having taken his measures, has

to submit the matter to his Majesty. As to the right to suspend future

Norwegian consular officials, this right, just as is done with regard to

other state officials, shall according to the Constitution be exercised

by the King (see the Constitution, § 22 and Aschehoug, Norges nuværende

statsforfatning, ii, 474.) To transfer this right upon the legations

would be incongruous with the Constitution. But not even with regard to

consular functionaries who are not state officials, and who, during the

present community in Consular service, are suspended, by the superior

consul concerned, the right of suspension should be granted to the

legations. For, the view is held, in accordance with the Consular

Committee of the joint Kingdoms (see their report, Norwegian edition, pp.

24, 25) that between consular functionaries exclusively subject to

Norwegian authonity and ambassadors exclusively subject to a Swedish

minister, there is no possibility of establishing truly hierarchic

relations: [-- -- --]

[-- -- --]

After the considerations made above, it will be obvious that from a

Norwegian point of view, these paragraphs appear as unacceptable, partly

because they are incongruous with the Constitution of Norway or with the

claims that in this country are put upon the contents and the forms of

independecy, partly because, by this, the aim cannot be gained, that is

intended by the whole negotiation, viz--to use the words of the Swedish

negotiators--to establish a separate Consular service for Sweden and

for Norway The Consuls of each Kingdom are subject to the home authority

that each country decides for itself. (see the Communiqué of March 24,

1903).

On this account we recommend to omit from the Swedish draft the

paragraphs 5, 6, 8, 11, 16, and 19. If they should be adhered to, further

discussion about the Swedish draft will be futile.

9.

Extracts from the answer of the Swedish Cabinet Council to the memorandum

made by the Norwegian Cabinet Council on January 11, 1905. Dated January

30, 1905.

[-- -- --]

In the memorandum of the Norwegian Cabinet Council it is suggested that §

8 of the Swedish draft can be interpreted so as to be meant with regard

to any matter being treated by the Consular administration, to give the

Foreign Minister the right to stop the function of the latter and to

assert his own authority instead. But as it is expressly indicated in the

draft that the precept concerned is meant to be relevant only to a

certain case specially mentioned, the opinion expressed does not seem to

be justified. The precept has in view to regulate the relations between

the Foreign Minister and the Consular administration, if, in a matter

subject to consular treatment, the Foreign Minister, owing to the

origination of diplomatic or political circumstances, has found reason to

interfere by virtue of the right the laws are meant to bestow upon him.

When thus a matter is simultaneously treated by different authorities,

that each within its province has to treat it, the possibility of a

conflict can hardly be denied, and still less so as the limits between

the diplomatic and the consular province, as is generally acknowledged,

are extremely uncertain, and as on both sides there is a natural tendency

to extend the sphere of activity to departments formerly looked upon as

exclusively belonging to the other party. It cannot therefore be

incongruous with the laws now being under discussion to insert

regulations for the case alluded to; on the contrary, it seems to be

entirely in consistency with the basis of these laws and with the end of

their institution that such regulations should be given. And it can

hardly be denied that in this case that authority, is the Foreign

Minister, who represents both countries, and in the present case it must

be considered that attention to the interests most important to the joint

countries should be preferred.

The precepts of §§ 11 and 16 contain the particular instructions meant to

guarrantee that the Consuls shall not transgress the due limits of their

province. Such a guarrantee cannot be dispensed with in the opinion of

the Swedish Cabinet Council. For, cases may be imagined when in a foreign

country a Consul behaves in a way threatening to disturb the good

relations between the Government of the country and the United Kingdoms.

To deprive the representatives of the United Kingdoms, as to their

relations to Foreign Powers; i. e. the Foreign Minister and the

legations, of all possibility of interfering against the Consul under

such circumstances would, in the opinion of the Swedish Cabinet Council,

hardly be compatible with the dignity of the United Kingdoms and might,

with regard to the Foreign Power, involve a danger that should be

escaped. The Norwegian and the Swedish draft alike contain regulations

enjoining upon the Consul the duty of obedience towards the Foreign

Minister and the legation. Also in case the Consul should violate his

duty of obedience, the proper consideration and regard for the position

held by the Foreign Minister and the legation seem to demand the

possibility for them to interfere. For this interference, however, such a

form has been proposed that the decision of the Consul's conduct, of his

remaining in office or his dismissal would be made by the King in the

Cabinet Council of that country represented by the Consul.

In support of his standpoint that »a joint treatment of matters

concerning the Consul's relations whether to the Foreign Minister, or the

legations or the Foreign Authorities» must not occur, the Norwegian

Cabinet Council refers to the contents of the report of the Consular

Committee and quotes especially a passage terminating in these words.

»But the very instructions to the latter (i. e. the consul) or the

disciplinary steps that may be occasioned by the matter, belong to the

internal consular management and must therefore be issued by the

Norwegian department.» To this the objection should be made that the

opinion of the Consular committee is naturally not binding to the Swedish

Cabinet Council, and that besides the Norwegian Cabinet Council has

itself given up the same opinion in granting in its draft the Foreign

Minister and the legations, the right to address »injunctions» that the

Consul cannot forbear to pay heed to. This seems to imply a giving-up of

the claim that, in the diplomatic part of a matter, Norwegian consuls

shall be exclusively subject to Norwegian authorities.

[-- -- --]

From the detailed statement given it may be gathered that the Swedish

Cabinet Council considers itself neither bound nor, out of regard to the

welfare of the Union, justified to cancel outright, in the way demanded

in the Norwegian memorandum, the abovementioned paragraphs of its draft.

This does not however imply that from the Swedish side alterations and

modifications of the precepts proposed cannot be granted, but what is

important in them must however be adhered to; and concerning possible

modifications, which can be exactly stated only by continued

negotiations, there is at present no occasion for entering into

particulars.

[-- -- --]

10.

Record of Foreign Office affair, made before H. M. the King in the

presence of H. R. H. the Crown Prince in Joint Cabinet Council at

Stockholm Palace, on February 7, 1905.

His Excellency the Minister for Foreign Affairs gave, in all humility, an

account of a humble report about terminating the negotiations for the

establishment of a separate Consular service for Sweden and for Norway.

In answer to the Foreign Minister's recommendation in Joint Swedish and

Norwegian Cabinet Council of the 6th inst., this proposal had been made

by Royal Norwegian Government on the same day, and a copy of it has been

appended to this Protocol.

After having given an account of the contents of the report of the

Norwegian Government, the Minister proceeded to say:

»The report of the Norwegian Government does not lead to any alteration

of the recommendation[84:1] previously made by me. I venture however, to

draw attention to the fact that, if it has been impossible to come to

terms about the present question, the principal cause of it should be

sought in the present arrangement for treating questions affecting the

relations between the United Kingdoms and Foreign Powers. That this

arrangement does not satisfy the positions of the two countries within

the Union, has long been admitted.

In connection with what was expressed by all the Swedish and the

Norwegian Cabinet Ministers who signed the above-mentioned document of

March 24, 1903, I want therfore, to emphasize the desirability that the

question as to arranging on other principles the management of Foreign

affairs should again be taken up for negotiations between the two

countries. I do not, however, find any reason now to make proposal as to

taking steps to that end; I only refer to what I have previously

advocated».

What the Minister had thus stated and recommended, was endorsed by the

other members of the Swedish Cabinet Council.

The Norwegian part of the Cabinet Council referred to the Norwegian

Government's humble report of the 6th inst. and proceeded to state that

in its opinion a solution of the question at issue might, in the way

expressed by the Swedish Cabinet ministers in the document of March 24,

1903, also have been found with the present arrangement for treating

Foreign affairs. The Norwegian part of the Cabinet Council naturally

agreed upon the opinion that this arrangement did not harmonize with the

positions of the two countries within the Union. Whereas, however, the

Minister for Foreign Affairs, on the plea of the document of March 24,

1903, had pointed out the desirability that the question as to arranging

on other principles the management of Foreign affairs should again be

taken up for negotiation between the two countries, the Norwegian part of

the Cabinet Council could not forbear to hold forth, partly that the said

document presupposed a solution of the question as an independent case,

partly that, after the recent occurrences in the Consular question, the

chances of further negotiations between the two countries, concerning the

above-mentioned matters, were considerably clouded.

_His Majesty the King_ was hereupon pleased to dictate:

»In the present state of things I find Myself unable to take any other

resolution than to assent to what has been recommended to Me by the

Minister for Foreign Affairs. But I cannot forbear to express to My

peoples My heart-felt desire that the two Kingdoms, united almost a

century ago, shall never suffer any differences of opinion to endanger

the Union itself. The latter is truly the safest security for the

independence, the safety and the happiness of the Scandinavian Peninsula

and her two peoples».

Upon this, the Norwegian part of the Cabinet Council stated that they, in

all humility, had ventured to dissuade His Majesty from making this

dictate.

In accordance with the recommendations made by the Swedish and the

Norwegian Cabinet Council, _His Majesty the King_ was pleased to resolve

that the commission entrusted to the Swedish and the Norwegian Cabinet

Council in persuance of the King's resolution of December 21, 1903, shall

not lead to any further steps, and also to decree that the Protocols of

the Cabinet Council regarding this matter shall be published!

The Swedish-Norwegian Union Crisis A History with Documents · 第 41 / 51 题