CHAPTER III 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.
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]
[770] See Twiss, I. §§ 253-263.
[771] Phillimore, II. § 255, gives a list of such treaties.
[772] 6 Geo. IV. c. 87.
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).
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.
[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.
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.
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.
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.
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.
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.
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.
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.
[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.
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.
[776] Hall, §§ 26* and 105, and Moore, I. § 72.
[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.
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.
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.
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.
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.
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.
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.
[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.
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:
[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.
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.
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.
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.
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.
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.
[783] See Piggott, op. cit.
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.
[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.
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.