Consular 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 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. § 435. From the undoubted official position of Privileges. 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. Meanwhile, it is of interest to take notice of some of the more important stipulations which are to be found in the innumerable treaties 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. between the different States in regard to consular privileges: (1) A distinction is very often made between professional and non-professional consuls in so far as the former is 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, from the duty to appear in person as witnesses before the Courts. In the latter case either consuls have 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. Undoubted Causes of tion. VI TERMINATION OF CONSULAR OFFICE Hall, § 105-Ullmann, § 49-Bulmerincq in Holtzendorff, III. 708- §436. Death of the consul, withdrawal of the exequatur, recall or dismissal, and, lastly, war between Termina- 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. Doubtful Termina tion. المعدل 437. It is not certain in practice whether the causes of 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 now 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. § 438. It is universally recognised that, in contrathe Head distinction to a diplomatic mission, the consular Change in ship of Cause of office does not come to an end through a change States no in the headship of the appointing or the admitting TerminaState. Neither a new patent nor a new exequatur is tion. therefore necessary whether another king comes to the throne or a monarchy turns into a republic, and the like. VII CONSULS IN NON-CHRISTIAN STATES Tarring, "British Consular Jurisdiction in the East" (1887)-Hall, "Foreign Powers and Jurisdiction," §§ 64-85-Halleck, I. pp. 385398-Phillimore, II. §§ 272-277-Taylor, §§ 331-333-Twiss, I. § 136-Wheaton, § 110-Ullmann, §§ 54-55-Bulmerincq in Holtzendorff, III. pp. 720-738-Rivier, I. § 43-Calvo, III. §§ 1431-1449-Bonfils, Nos. 776-791-Pradier-Fodéré, IV. 21222138-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)—Vergé, “ Des consuls dans les pays d'occident" (1903). Consuls States. $439. Fundamentally different from their regular Position of position is that of consuls in non-Christian States, with the single exception of Japan. In the Christian 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 comprised soon 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 Consular Christian Inter national Courts in 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, Korea, Persia, and other non-Christian countries, but in Japan the position of consuls shrank in 1899 into that of consuls in 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.1 It is a matter for the Municipal Laws of the different 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. 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. § 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.2 These Courts began 1 See above, § 318. 2 See Holland, The European Concert in the Eastern Question, pp. 101-102. |