International Law. A Treatise Volume I Part 60

[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 ent.i.tled to exercise consular functions within its boundaries, and to him only the local authorities have to grant the consular privileges, if any.

[Sidenote: Different Cla.s.ses of Consuls.]

-- 422. Four cla.s.ses 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 a.s.sistants 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 Munic.i.p.al 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 _loc.u.m 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 _loc.u.m 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 Munic.i.p.al 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-Fodere, 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 Munic.i.p.al 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 va.s.sal and the suzerain State, and provided the va.s.sal State is not one which has no position within the Family of Nations,[774] a va.s.sal State is in its turn competent to appoint consuls in foreign States. In regard to member-States of a Federal State it is the Const.i.tution of the Federal State which settles the question. Thus, according to the Const.i.tution 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 doc.u.ment 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-Fodere, 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, Munic.i.p.al Laws, and Munic.i.p.al 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. Munic.i.p.al 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 a.s.sistance 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 pa.s.sengers. He a.s.sists sailors in distress, undertakes the sending home of shipwrecked crews and pa.s.sengers, 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, Munic.i.p.al Laws and Consular Instructions, comprise detailed rules regarding these consular functions. It should, however, be added that consuls must a.s.sist 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 pa.s.sports, they have to render a certain a.s.sistance 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 a.s.sistance 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 Munic.i.p.al 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-Fodere, IV. ---- 2114-2121--Fiore, II. No.

1183--Martens, II. -- 22--Bodin, "Les immunites consulaires"