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!