CONSULS
I
THE INSTITUTION OF CONSULS
Hall, § 105--Phillimore, II. §§ 243-246--Halleck, I. p.
369--Taylor, §§ 325-326--Twiss, I. § 223--Ullmann, §§
54-55--Bulmerincq in Holtzendorff, II. pp. 687-695--Heffter, §§
241-242--Rivier, I. § 41--Nys, II. pp. 394-399--Calvo, III. §§
1368-1372--Bonfils, Nos. 731-743--Pradier-Fodéré, IV. §§
2034-2043--Martens, II. §§ 18-19--Fiore, II. Nos.
1176-1178--Warden, "A Treatise on the Origin, Nature, &c., of the
Consular Establishment" (1814)--Miltitz, Manuel des Consuls, 5
vols. (1837-1839)--Cussy, "Règlements consulaires des principaux
États maritimes" (1851)--H. B. Oppenheim, "Handbuch der Consulate
aller Länder" (1854)--Clercq et Vallat, "Guide pratique des
consulats" (5th ed. 1898)--Salles, "L'institution des consulats,
son origine, &c." (1898)--Chester Lloyd Jones, "The Consular
Service of the United States. Its History and Activities"
(1906)--Stowell, "Le Consul" (1909), and "Consular Cases and
Opinions, &c." (1910)--Pillaut, "Manuel de droit Consulaire"
(1910)--Jordan in R.I. 2nd Ser. VIII. (1906), pp. 479-507 and
717-750.
[Sidenote: Development of the Institution of Consuls.]
§ 418. The roots of the consular institution go back to the second half
of the Middle Ages. In the commercial towns of Italy, Spain, and France
the merchants used to appoint by election one or more of their
fellow-merchants as arbitrators in commercial disputes, who were called
_Juges Consuls_ or _Consuls Marchands_. When, between and after the
Crusades, Italian, Spanish, and French merchants settled down in the
Eastern countries, founding factories, they brought the institution of
consuls with them, the merchants belonging to the same nation electing
their own consul. The competence of these consuls became, however, more
and more enlarged through treaties, so-called "Capitulations," between
the home States of the merchants and the Mohammedan monarchs on whose
territories these merchants had settled down.[770] The competence of
consuls comprised at last the whole civil and criminal jurisdiction
over, and protection of, the privileges, the life, and the property of
their countrymen. From the East the institution of consuls was
transferred to the West. Thus, in the fifteenth century Italian consuls
existed in the Netherlands and in London, English consuls in the
Netherlands, Sweden, Norway, Denmark, Italy (Pisa). These consuls in the
West exercised, just as those in the East, exclusive civil and criminal
jurisdiction over the merchants of their nationality. But the position
of the consuls in the West decayed in the beginning of the seventeenth
century through the influence of the rising permanent legations on the
one hand, and, on the other, from the fact that everywhere foreign
merchants were brought under the civil and criminal jurisdiction of the
State in which they resided. This change in their competence altered the
position of consuls in the Christian States of the West altogether.
Their functions now shrank into a general supervision of the commerce
and navigation of their home States, and into a kind of protection of
the commercial interests of their countrymen. Consequently, they did not
receive much notice in the seventeenth and eighteenth centuries, and it
was not until the nineteenth century that the general development of
international commerce, navigation, and shipping drew the attention of
the Governments again to the value and importance of the institution of
consuls. The institution was now systematically developed. The position
of the consuls, their functions, and their privileges, were the subjects
of stipulations either in commercial treaties or in special consular
treaties,[771] and the several States enacted statutes regarding the
duties of their consuls abroad, such as the Consular Act passed by
England in 1826.[772]
[Footnote 770: See Twiss, I. §§ 253-263.]
[Footnote 771: Phillimore, II. § 255, gives a list of such treaties.]
[Footnote 772: 6 Geo. IV. c. 87.]
[Sidenote: General Character of Consuls.]
§ 419. Nowadays consuls are agents of States residing abroad for
purposes of various kinds, but mainly in the interests of commerce and
navigation of the appointing State. As they are not diplomatic
representatives, they do not enjoy the privileges of diplomatists. Nor
have they, ordinarily, anything to do with intercourse between their
home State and the State in which they reside. But these rules have
exceptions. Consuls of Christian Powers in non-Christian States, Japan
now excepted, have retained their former competence and exercise full
civil and criminal jurisdiction over their countrymen. And sometimes
consuls are charged with the tasks which are regularly fulfilled by
diplomatic representatives. Thus, in States under suzerainty the Powers
are frequently represented by consuls, who transact all the business
otherwise transacted by diplomatic representatives, and who have,
therefore, often the title of "Diplomatic Agents." Thus, too, on
occasions small States, instead of accrediting diplomatic envoys to
another State, send only a consul thither, who combines the consular
functions with those of a diplomatic envoy. It must, however, be
emphasised that consuls thereby neither become diplomatic envoys,
although they may have the title of "Diplomatic Agents," nor enjoy the
diplomatic envoys' privileges, if such privileges are not specially
provided for by treaties between the home State and the State in which
they reside. Different, however, is the case in which a consul is at the
same time accredited as Chargé d'Affaires, and in which, therefore, he
combines two different offices; for as Chargé d'Affaires he is a
diplomatic envoy and enjoys all the privileges of such an envoy,
provided he has received a Letter of Credence.
II
CONSULAR ORGANISATION
Hall, "Foreign Powers and Jurisdiction," § 13--Phillimore, II. §§
253-254--Halleck, I. p. 371--Taylor, § 528--Moore, V. §
696--Ullmann, § 57--Bulmerincq in Holtzendorff, III. pp.
695-701--Rivier, I. § 41--Calvo, III. §§ 1373-1376--Bonfils, Nos.
743-748--Pradier-Fodéré, IV. §§ 2050-2055--Mérignhac, II. pp.
320-333--Martens, II. § 20--Stowell, "Le Consul," pp.
186-206--"General Instructions for His Majesty's Consular
Officers" (1907).
[Sidenote: Different kinds of Consuls.]
§ 420. Consuls are of two kinds. They are either specially sent and paid
for the administration of their consular office (_Consules missi_), or
they are appointed from individuals, in most cases merchants, residing
in the district for which they are to administer the consular office
(_Consules electi_).[773] Consuls of the first kind, who are so-called
professional consuls and are always subjects of the sending State, have
to devote their whole time to the consular office. Consuls of the second
kind, who may or may not be subjects of the sending State, administer
the consular office besides following their ordinary callings. Some
States, such as France, appoint professional consuls only; most States,
however, appoint Consuls of both kinds according to the importance of
the consular districts. But there is a general tendency with most States
to appoint professional consuls for important districts.
[Footnote 773: To this distinction corresponds in the British Consular
Service the distinction between "Consular Officers" and "Trading
Consular Officers."]
No difference exists between the two kinds of consuls as to their
general position according to International Law. But, naturally, a
professional consul enjoys actually a greater authority and a more
important social position, and consular treaties often stipulate special
privileges for professional consuls.
[Sidenote: Consular Districts.]
§ 421. As the functions of consuls are of a more or less local
character, most States appoint several consuls on the territory of other
larger States, limiting the duties of the several consuls within
certain districts of such territories or even within a certain town or
port only. Such consular districts as a rule coincide with provinces of
the State in which the consuls administer their offices. The different
consuls appointed by a State for different districts of the same State
are independent of each other and conduct their correspondence directly
with the Foreign Office of their home State, the agents-consular
excepted, who correspond with their nominators only. The extent of the
districts is agreed upon between the home State of the consul and the
admitting State. Only the consul appointed for a particular district is
entitled to exercise consular functions within its boundaries, and to
him only the local authorities have to grant the consular privileges, if
any.
[Sidenote: Different Classes of Consuls.]
§ 422. Four classes of consuls are generally distinguished according to
rank: consuls-general, consuls, vice-consuls, and agents-consular.
Consuls-general are appointed either as the head of several consular
districts, and have then several consuls subordinate to themselves, or
as the head of one very large consular district. Consuls are usually
appointed for smaller districts, and for towns or even ports only.
Vice-consuls are such assistants of consuls-general and consuls as
themselves possess the consular character and take, therefore, the
consul's place in regard to the whole consular business; they are,
according to the Municipal Law of some States, appointed by the consul,
subject to the approbation of his home State. Agents-consular are agents
with consular character, appointed, subject to the approbation of the
home Government, by a consul-general or consul for the exercise of
certain parts of the consular functions in certain towns or other places
of the consular district. Agents-consular are not independent of the
appointing consul, and do not correspond directly with the home State,
as the appointing consul is responsible to his Government for the
agents-consular. The so-called Proconsul is not a consul, but a _locum
tenens_ of a consul only during the latter's temporary absence or
illness; he possesses, therefore, consular character for such time only
as he actually is the _locum tenens_.
The British Consular Service consists of the following six ranks: (1)
Agents and consuls-general, commissioners and consuls-general; (2)
consuls-general; (3) consuls; (4) vice-consuls; (5) consular agents; (6)
proconsuls. In the British Consular Service pro-consuls only exercise,
as a rule, the notarial functions of a consular officer.
[Sidenote: Consuls subordinate to Diplomatic Envoys.]
§ 423. Although consuls conduct their correspondence directly with their
home Government, they are nevertheless, subordinate to the diplomatic
envoy of their home Government accredited to the State in which they
administer the consular offices. According to the Municipal Law of
almost every State except the United States of America, the diplomatic
envoy has full authority and control over the consuls. He can give
instructions and orders, which they have to execute. In doubtful cases
they have to ask his advice and instructions. On the other hand, the
diplomatic envoy has to protect the consuls in case they are injured by
the local Government.
III
APPOINTMENT OF CONSULS
Hall, § 105--Phillimore, II. § 250--Halleck, I. p. 371--Moore, V.
§§ 697-700--Ullmann, § 58--Bulmerincq in Holtzendorff, III. pp.
702-706--Rivier, I. § 41--Nys, II. p. 400--Calvo, III. §§
1378-1384--Bonfils, Nos. 749-752--Pradier-Fodéré, IV. §§
2056-2067--Fiore, II. Nos. 1181-1182--Martens, II. § 21--Stowell,
"Le Consul," pp. 207-216.
[Sidenote: Qualification of Candidates.]
§ 424. International Law has no rules in regard to the qualifications of
an individual whom a State can appoint consul. Many States, however,
possess such rules in their Municipal Law as far as professional
consuls are concerned. The question, whether female consuls could be
appointed, cannot be answered in the negative, but, on the other hand,
no State is obliged to grant female consuls the _exequatur_, and many
States would at present certainly refuse it.
[Sidenote: No State obliged to admit Consuls.]
§ 425. According to International Law a State is not at all obliged to
admit consuls. But the commercial interests of all the States are so
powerful that practically every State must admit consuls of foreign
Powers, as a State which refused such admittance would in its turn not
be allowed to have its own consuls abroad. The commercial and consular
treaties between two States stipulate as a rule that the contracting
States shall have the right to appoint consuls in all those parts of
each other's country in which consuls of third States are already or
shall in future be admitted. Consequently a State cannot refuse
admittance to a consul of one State for a certain district if it admits
a consul of another State. But as long as a State has not admitted any
other State's consul for a district, it can refuse admittance to a
consul of the State anxious to organise consular service in that
district. Thus, for instance, Russia refused for a long time for
political reasons to admit consuls in Warsaw.
[Sidenote: What kind of States can appoint Consuls.]
§ 426. There is no doubt that it is within the faculty of every
full-Sovereign State to appoint consuls. As regards not full-Sovereign
States, everything depends upon the special case. As foreign States can
appoint consuls in States under suzerainty, it cannot be doubted that,
provided the contrary is not specially stipulated between the vassal and
the suzerain State, and provided the vassal State is not one which has
no position within the Family of Nations,[774] a vassal State is in its
turn competent to appoint consuls in foreign States. In regard to
member-States of a Federal State it is the Constitution of the Federal
State which settles the question. Thus, according to the Constitution of
Germany, the Federal State is exclusively competent to appoint consuls,
in contradistinction to diplomatic envoys who may be sent and received
by every member-State of the German Empire.
[Footnote 774: See above, § 91.]
[Sidenote: Mode of Appointment and of Admittance.]
§ 427. Consuls are appointed through a patent or commission, the
so-called _Lettre de provision_, of the State whose consular office they
are intended to administer. Vice-consuls are sometimes, and
agents-consular are always, appointed by the consul, subject to the
approval of the home State. Admittance of consuls takes place through
the so-called _exequatur_, granted by the head of the admitting
State.[775] The diplomatic envoy of the appointing State hands the
patent of the appointed consul on to the Secretary for Foreign Affairs
for communication to the head of the State, and the _exequatur_ is given
either in a special document or by means of the word _exequatur_ written
across the patent. But the _exequatur_ can be refused for personal
reasons. Thus, in 1869 England refused the _exequatur_ to an Irishman
named Haggerty, who was naturalised in the United States and appointed
American consul for Glasgow. And the _exequatur_ can be withdrawn for
personal reasons at any moment. Thus, in 1834 France withdrew it from
the Prussian consul at Bayonne for having helped in getting into Spain
supplies of arms for the Carlists.
[Footnote 775: That, in case a consul is appointed for a State which is
under the protectorate of another, it is within the competence of the
latter to grant or refuse the _exequatur_, has been pointed out above, §
92, p. 144, note 4.]
[Sidenote: Appointment of Consuls includes Recognition.]
§ 428. As the appointment of consuls takes place in the interests of
commerce, industry, and navigation, and has merely local importance
without political consequences, it is maintained[776] that a State does
not indirectly recognise a newly created State _ipso facto_ by
appointing a consul to a district in such State. This opinion, however,
does not agree with the facts of international life. Since no consul can
exercise his functions before he has handed over his patent to the local
State and received the latter's _exequatur_, it is evident that thereby
the appointing State enters into such formal intercourse with the
admitting State as indirectly[777] involves recognition. But it is only
if consuls are formally appointed and formally receive the _exequatur_
on the part of the receiving State, that indirect recognition is
involved. If, on the other hand, no formal[778] appointment is made, and
no formal _exequatur_ is asked for and received, foreign individuals may
actually with the consent of the local State exercise the functions of
consuls without recognition following therefrom. Such individuals are
not really consuls, although the local State allows them for political
reasons to exercise consular functions.
[Footnote 776: Hall, §§ 26* and 105, and Moore, I. § 72.]
[Footnote 777: See above, § 72.]
[Footnote 778: The case mentioned by Hall, § 26*, of Great Britain
appointing, in 1823, consuls to the South American Republics, without
gazetting the various consuls and--as must be presumed--without the
individuals concerned asking formally for the _exequatur_ of the various
South American States, would seem to be a case of informal appointment.]
IV
FUNCTIONS OF CONSULS
Hall, § 105--Phillimore, II. §§ 257-260--Taylor, § 327--Halleck,
I. pp. 380-385--Moore, V. §§ 717-731--Ullmann, § 61--Bulmerincq in
Holtzendorff, III. pp. 738-749--Rivier, I. § 42--Calvo, III. §§
1421-1429--Bonfils, Nos. 762-771--Pradier-Fodéré, IV. §§
2069-2113--Fiore, II. Nos. 1184-1185--Martens, II. § 23--Stowell,
"Le Consul," pp. 15-136.
[Sidenote: On Consular Functions in general.]
§ 429. Although consuls are appointed chiefly in the interest of
commerce, industry, and navigation, they are nevertheless charged with
various functions for other purposes. Custom, commercial and consular
treaties, Municipal Laws, and Municipal Consular Instructions contain
detailed rules in regard to these functions. They may be grouped under
the heads of fosterage of commerce and industry, supervision of
navigation, protection, notarial functions.
[Sidenote: Fosterage of Commerce and Industry.]
§ 430. As consuls are appointed in the interest of commerce and
industry, they must be allowed by the receiving State to watch over the
execution of the commercial treaties of their home State, to send
reports to the latter in regard to everything which can influence the
development of its commerce and industry, and to give such information
to merchants and manufacturers of the appointing State as is necessary
for the protection of their commercial interests. Municipal Laws of the
several States and their Consular Instructions comprise detailed rules
on these consular functions, which are of the greatest importance.
Consular reports, on the one hand, and consular information to members
of the commercial world, on the other, have in the past and the present
rendered valuable assistance to the development of commerce and industry
of their home States.
[Sidenote: Supervision of Navigation.]
§ 431. Another task of consuls consists in supervision of the navigation
of the appointing State. A consul at a port must be allowed to keep his
eye on all merchantmen sailing under the flag of his home State which
enter the port, to control and legalise their ship papers, to exercise
the power of inspecting them on their arrival and departure, to settle
disputes between the master and the crew or the passengers. He assists
sailors in distress, undertakes the sending home of shipwrecked crews
and passengers, attests averages. It is neither necessary nor possible
to enumerate all the duties and powers of consuls in regard to
supervision of navigation. Consular and commercial treaties, on the one
hand, and, on the other, Municipal Laws and Consular Instructions,
comprise detailed rules regarding these consular functions. It should,
however, be added that consuls must assist in every possible way any
public vessel of their home State which enters their port, if the
commander so requests. But consuls have no power of supervision over
such public vessels.
[Sidenote: Protection.]
§ 432. The protection which consuls must be allowed by the receiving
State to provide for subjects of the appointing State is a very
important task. For that purpose consuls keep a register, in which these
subjects can have their names and addresses recorded. Consuls make out
passports, they have to render a certain assistance and help to paupers
and the sick, and to litigants before the Courts. If a foreign subject
is wronged by the local authorities, his consul has to give him advice
and help, and has eventually to interfere on his behalf. If a foreigner
dies, his consul may be approached for securing his property and for
rendering all kind of assistance and help to the family of the deceased.
As a rule, a consul exercises protective functions over subjects of the
appointing State only; but the latter may charge him with the protection
of subjects of other States which have not nominated a consul for his
district.
[Sidenote: Notarial Functions.]
§ 433. Very important are the notarial and the like functions with which
consuls are charged. They attest and legalise signatures, examine
witnesses and administer oaths for the purpose of procuring evidence for
the Courts and other authorities of the appointing State. They conclude
or register marriages of the latter's subjects, take charge of their
wills, legalise their adoptions, register their births and deaths. They
provide authorised translations for local as well as for home
authorities, and furnish attestations of many kinds. All consular
functions of this kind are specialised by Municipal Laws and Consular
Instructions. But it should be specially observed that whereas fosterage
of commerce, supervision of navigation, and protection are functions
the exercise of which must, according to a customary rule of
International Law, be granted to consuls by receiving States, many of
their notarial functions need not be permitted by such receiving States
in the absence of treaty stipulations.
V
POSITION AND PRIVILEGES OF CONSULS
Hall, § 105--Phillimore, II. §§ 261-271--Halleck, I. pp.
371-379--Taylor, §§ 326, 332-333--Moore, V. §§ 702-716--Ullmann,
§§ 60 and 62--Bulmerincq in Holtzendorff, III. pp.
710-720--Rivier, I. § 42--Calvo, III. §§ 1385-1420--Bonfils, Nos.
753-761--Pradier-Fodéré, IV. §§ 2114-2121--Fiore, II. No.
1183--Martens, II. § 22--Bodin, "Les immunités consulaires"
(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
Municipal 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 Institute of International Law at its meeting at
Venice in 1896 adopted a _Règlement sur les immunités 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 documents 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 _employé_ 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 attitude was legally correct.
[Sidenote: Change in the Headship 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 headship 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-Fodéré, IV. 2122-2138--Mérignhac, II. pp.
338-351--Martens, II. §§ 24-26--Martens, "Konsularwesen und
Konsularjurisdiction im Orient" (German translation from the
Russian original by Skerst, 1874)--Bruillat, "Étude historique et
critique sur les juridictions consulaires" (1898)--Lippmann, "Die
Konsularjurisdiction im Orient" (1898)--Vergé, "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 étrangères" (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 Japan. 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, Japan, Persia,
and other non-Christian countries, but in Japan 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 Municipal 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 Japan 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.