International Law. A Treatise Volume I Part 59

[Footnote 763: See the interesting cases discussed by Moore, IV. -- 666.]

[Footnote 764: Notable cases of request of recall of envoys are reported by Taylor, -- 322; Hall, -- 98**; Moore, IV. -- 639.]

[Sidenote: Promotion to a higher Cla.s.s.]

-- 410. When an envoy remains at his post, but is promoted to a higher cla.s.s--for instance, when a Charge d'Affaires is created a Minister Resident or a Minister Plenipotentiary is created an Amba.s.sador--his original mission technically ends, and he receives therefore a new Letter of Credence.

[Sidenote: Delivery of Pa.s.sports.]

-- 411. A mission may terminate, further, through the delivery of his pa.s.sports to an envoy by the receiving State. The reason for such dismissal of an envoy may be either gross misconduct on his part or a quarrel between the sending and the receiving State which leads to a rupture of diplomatic intercourse. Whenever such rupture takes place, diplomatic relations between the two States come to an end and all diplomatic privileges cease with the envoy's departing and crossing the frontier. If the archives of the legations are not removed, they must be put under seal by the departing envoy and confided to the protection[765] of some other foreign legation.

[Footnote 765: As regards the case of Montagnini, see above, ---- 106 and 386.]

[Sidenote: Request for Pa.s.sports.]

-- 412. Without being recalled, an envoy may on his own account ask for his pa.s.sports and depart in consequence of ill-treatment by the receiving State. This may or may not lead to a rupture of diplomatic intercourse.

[Sidenote: Outbreak of War.]

-- 413. When war breaks out between the sending and the receiving State before their envoys accredited to each other are recalled, their mission nevertheless comes to an end. They receive their pa.s.sports, but nevertheless they must be granted their privileges[766] on their way home.

[Footnote 766: See below, vol. II. -- 98.]

[Sidenote: Const.i.tutional Changes.]

-- 414. If the head of the sending or receiving State is a Sovereign, his death or abdication terminates the missions sent and received by him, and all envoys remaining at their posts must receive new Letters of Credence. But if they receive new Letters of Credence, no change in seniority is considered to have taken place from the order in force before the change. And during the time between the termination of the missions and the arrival of new Letters of Credence they enjoy nevertheless all the privileges of diplomatic envoys.

As regards the influence of const.i.tutional changes in the headship of republics on the missions sent or received, no certain rule exists.[767]

Everything depends, therefore, upon the merits of the special case.

[Footnote 767: Writers on International Law differ concerning this point. See, for instance, Ullmann, -- 53, in contradistinction to Rivier, I. p. 517.]

[Sidenote: Revolutionary Changes of Government.]

-- 415. A revolutionary movement in the sending or receiving State which creates a new government, changing, for example, a republic into a monarchy or a monarchy into a republic, or deposing a Sovereign and enthroning another, terminates the missions. All envoys remaining at their posts must receive new Letters of Credence, but no change in seniority takes place if they receive them. It happens that in cases of revolutionary changes of government foreign States for some time neither send new Letters of Credence to their envoys nor recall them, watching the course of events in the meantime and waiting for more proof of a real settlement. In such cases the envoys are, according to an international usage, granted all privileges of diplomatic envoys, although in strict law they have ceased to be such. In cases of recall subsequent to revolutionary changes, the protection of subjects of the recalling States remains in the hands of their consuls, since the consular office[768] does not come to an end through const.i.tutional or revolutionary changes in the headship of a State.

[Footnote 768: See below, -- 438.]

[Sidenote: Extinction of sending or receiving State.]

-- 416. If the sending or receiving State of a mission is extinguished by voluntary merger into another State or through annexation in consequence of conquest, the mission terminates _ipso facto_. In case of annexation of the receiving State, there can be no doubt that, although the annexing State will not consider the envoys received by the annexed State as accredited to itself, it must grant those envoys the right to leave the territory of the annexed State unmolested and to take their archives away with them. In case of annexation of the sending State, the question arises what becomes of the archives and legational property of the missions of the annexed State accredited to foreign States. This question is one on the so-called succession[769] of States. The annexing State acquires, _ipso facto_, by the annexation the property in those archives and other legational goods, such as the hotels, furniture, and the like. But as long as the annexation is not notified and recognised, the receiving States have no duty to interfere.

[Footnote 769: See above, -- 82.]

[Sidenote: Death of Envoy.]

-- 417. A mission ends, lastly, by the death of the envoy. As soon as an envoy is dead, his effects, and especially his papers, must be sealed.

This is done by a member of the dead envoy's legation, or, if there be no such members, by a member of another legation accredited to the same State. The local Government must not interfere, unless at the special request by the home State of the deceased envoy.

Although the mission and therefore the privileges of the envoy come to an end by his death, the members of his family who resided under his roof and the members of his suite enjoy their privileges until they leave the country. But a certain time may be fixed for them to depart, and on its expiration they lose their privilege of exterritoriality. It must be specially mentioned that the Courts of the receiving State have no jurisdiction whatever over the goods and effects of the deceased envoy, and that no death duties can be demanded.

CHAPTER III

CONSULS

I

THE INSt.i.tUTION 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-Fodere, 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)--Milt.i.tz, Manuel des Consuls, 5 vols. (1837-1839)--Cussy, "Reglements consulaires des princ.i.p.aux etats maritimes" (1851)--H. B. Oppenheim, "Handbuch der Consulate aller Lander" (1854)--Clercq et Vallat, "Guide pratique des consulats" (5th ed. 1898)--Salles, "L'inst.i.tution 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 Inst.i.tution of Consuls.]

-- 418. The roots of the consular inst.i.tution 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 inst.i.tution 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 inst.i.tution 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 inst.i.tution of consuls. The inst.i.tution 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 pa.s.sed 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, j.a.pan 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 t.i.tle 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 t.i.tle 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 Charge d'Affaires, and in which, therefore, he combines two different offices; for as Charge 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-Fodere, IV. ---- 2050-2055--Merignhac, 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.