The Swedish-Norwegian Union Crisis Part 9

Besides it should be inst.i.tuted:

that, in case a Consul should act in such a way as may have a disturbing effect upon the friendly relations between the United Kingdoms and the Foreign Power concerned, and also in case a Consul should neglect to execute the instructions of the Minister for Foreign affairs or the Legation, the Foreign Minister shall have the right to address a humble request to the King about the Consul's revocation, whereupon the Consular administration concerned should be informed of the resolution.

In order to regulate the relations between the Legation and the Consuls concerned, it should, apart from the general precept of their duty of mutual cooperation, be laid down in the law:

that the legation is bound to guard the Consul's rights and to lend him necessary a.s.sistance and, in matters belonging to the province of the legation, ent.i.tled to demand information from the Consul and to give him instructions;

that the Consul has the same duties towards the Legation as towards the Minister for Foreign affairs;

and that, if the Consul, by partic.i.p.ating in political demonstrations or in another way, should openly disregard the consideration he is bound to have for the authorities of the country he is employed in, or if an action affecting his civil repute should he brought against him, the legation has the right to suspend him from his office until further notice.

6.

Extract from the answer given by His Excellency Hagerup to the preceeding draft, on November 26, 1904.

2. No approval on the part of Norway can be expected for an arrangement that would give Swedish authorities the possibility of interfering with measures taken by a Norwegian authority. Also in this respect we merely adhere to the Communique and the Protocols of December that, as a basis of agreement, give prominence to the establishment of a separate Consular service for Sweden and for Norway, in which case the Consuls of each Kingdom shall be subordinate to the authority of their own country which the latter shall have to determine. This arrangement does not however preclude, as is also presupposed in the Norwegian draft, a certain possibility for the Foreign Minister to address direct requests to the consuls.

With particular regard to the demand expressed in the outlines that the Swedish Minister for Foreign affairs shall have the right--this is the, intention according to your Excellency's verbal declaration--to discharge in ministerial--consequently in Swedish--Cabinet Council a consul appointed in Norwegian Council, I ventured to point out 1) that this demand was entirely contrary to the Norwegian Const.i.tution, 2) that an arrangement by which a Swedish authority of state might nullify a resolution adopted by a Norwegian authority of state would, according to the general principles of political and international law, impress upon Norway the stamp of a dependency, and 3) that it would therefore from a national point of view signify an enormous retrograde step as compared with the present arrangement of the Consular service.

7.

Extracts from the draft of laws of the same wording made by the Swedish Government in December 1904.

-- 8.

If in a matter being dealt with by the Consular administration, the Minister for Foreign affairs has informed that he has taken such a measure as is alluded to in -- 9, it is for the Consular administration to observe that, from its side, no such instructions are given to the consul concerned as are conflicting with any reorder relating to this matter given by the Minister for Foreign affairs and known to the Consular administration.

-- 9.

The Minister for Foreign affairs has, in a matter belonging to his province, to request immediate information from the Consul of the country concerned and also give him instructions about what he has to observe in such a matter; and a consul is absolutely bound to fullfill what is thus requested of him.

-- 11.

If the Minister for Foreign Affairs should learn that a Consular employe has not acted with good and worthy behaviour towards the authorities of the country where he is employed, or that he has partic.i.p.ated in political demonstrations, or secretely, or openly encouraged or supported attacks on the existing Government, or else behaves in a way that may have a disturbing effect upon the good relations between the United Kingdoms and the Foreign Power concerned, then the minister has humbly to give notice of it to the King in Joint or in Ministerial Cabinet Council whereupon the matter is submitted to the King's consideration in the Cabinet Council of the country concerned.

-- 16.

If a legation should find a Consul guilty of a proceeding or a neglect alluded to in -- 11, or if a Consul should be prosecuted for a crime affecting his civil repute, the legation, if finding it justified by circ.u.mstances, has to suspend the Consul from his office; and the matter should immedately be reported both to the Minister for Foreign affairs and to the Consular administration concerned.

A Consul thus suspended from his office, must not again come into office until the King, after hearing the Minister for Foreign affairs, has resolved upon it.

8.

Extracts from notes made, in consequence of the Swedish Government's draft of laws of the same wording by the Norwegian Cabinet Council, on January 11, 1905.

To -- 8. It is stated here that, when. in a matter being dealt with by the Consular administration, the Foreign Minister has given a Consul an order, it is for the Consular administration to observe that, from its side, no order conflicting with it is given to the Consul. It is difficult to understand what is meant by this paragraph, which is without a parallel in the present Consular statutes which do not direct any similar injunction to the Norwegian Consular department. To judge from reference to -- 4, it does not seem to have been intended to give the Foreign Minister the right, in whatever be which matter being dealt with by the Consular administration, to stop the function of the latter and to a.s.sert his own authority instead; for this would be equivalent to inst.i.tuting a relation of subordination that no Governmental department can submit to. The intention, then, can only be supposed to have been the following:--to try, in a consular matter, that has a.s.sumed a diplomatic aspect or that is simultaneously subject to a consular and a diplomatic treatment, to prevent the Consular administration from arbitrarily trespa.s.sing upon the province of the Foreign Minister. It stands to reason that this must not occur. But just because it stands to reason, the precept is superfluous. And what is of more importance: it is calculated to excite indignation. For, as it is obvious that an interference of the said kind must be a manifestation either of want of judgment or of disloyalty, it should be admitted that it is not very appropriate to give in a law, even in an indirect way, an expression to the thought that such qualities may prevail in the department concerned.

To -- 11. [-- --] We should not however dwell upon these formal considerations which are of a merely secondary importance as compared with the far-reaching question: exclusively Norwegian or partly joint treatment of matters concerning the relations of Norwegian Consuls wheteher to the Foreign Minister, or to legations, or to Foreign authorities. In this connection we want to quote a pa.s.sage from the report of the last Consular Committee made up of members from both countries where we read (Norwegian edition, p. 16): Furthermore the Norwegian Consular administration has to leave it to the Foreign Minister (and the legations) to receive and reply to reclamations from Foreign Governments in the rare cases when subjects of contention arise by the actions of Norwegian Consuls. For this kind of correspondence, although dealing with the behaviour of Consuls, is owing to its nature diplomatic and not consular, and in as much as the matter has a political moment, the Foreign Minister should continue to keep the management of it; if the matter should become critical so as to grow into a real international conflict, he should report it to the King and procure the instructions necessary for its treatment. It stands to reason that he should not be debarred from influencing the course of the matter by informing the Norwegian Consular administration of his opinion as to the steps suitable to take with regard to the consul Concerned. But the very instructions to the latter or the disciplinary steps occasioned by the matter belong to the home consular management and should therefore be issued from the Norwegian department. We concur in the opinion expressed here and the demand for an exclusively Norwegian treatment of questions concerning measures against Norwegian Consuls, appears still more justified in the cases when the matter is without a political moment, but the question regards the consul's relation to the Foreign Minister and the legations.

In the last-mentioned respect we want again to refer to the statement of the Consular Committee (Norwegian edition, pp. 25-26), from which it is evident that they did not intend any joint treatment of matters relating to the Consul's disobedience of instructions or omission of duties; nor was this intention expressed during the negotiations that took place before the appearance of the Communique. Such a joint treatment that should precede the treatment from the Norwegian side, can only imply one of two things. Either it means to be a mere formality only calculated to delay matters perhaps requiring a speedy decision. Or else it means to be a real treatment, in which case, the Foreign Minister is intended to get influence on the settlement of the matter; but in this case it will signify an encroachment upon a department which, as it maintained, should be exclusively reserved for a Norwegian authority of State. Besides, it is self-evident that the Consular administration which may justly be supposed to be equally interested as the Foreign Minister in Norway not being compromised by her agents abroad, cannot forbear, when demands for a Consul's revocation are made on the part of diplomacy, to make the matter the object of a humble report.

To -- 16. It is proposed here that the legation shall have the right to suspend a Consul guilty of such conduct as is spoken of in -- 11, or prosecuted for a crime affecting his civic reputation. In this connection it should be remembered that, according to the present consular statute, the right to suspend a consular official does not lie with the legations, but with the Foreign Minister who, after having taken his measures, has to submit the matter to his Majesty. As to the right to suspend future Norwegian consular officials, this right, just as is done with regard to other state officials, shall according to the Const.i.tution be exercised by the King (see the Const.i.tution, -- 22 and Aschehoug, Norges nuvaerende statsforfatning, ii, 474.) To transfer this right upon the legations would be incongruous with the Const.i.tution. But not even with regard to consular functionaries who are not state officials, and who, during the present community in Consular service, are suspended, by the superior consul concerned, the right of suspension should be granted to the legations. For, the view is held, in accordance with the Consular Committee of the joint Kingdoms (see their report, Norwegian edition, pp.

24, 25) that between consular functionaries exclusively subject to Norwegian authonity and amba.s.sadors exclusively subject to a Swedish minister, there is no possibility of establishing truly hierarchic relations: [-- -- --]

After the considerations made above, it will be obvious that from a Norwegian point of view, these paragraphs appear as unacceptable, partly because they are incongruous with the Const.i.tution of Norway or with the claims that in this country are put upon the contents and the forms of independecy, partly because, by this, the aim cannot be gained, that is intended by the whole negotiation, viz--to use the words of the Swedish negotiators--to establish a separate Consular service for Sweden and for Norway The Consuls of each Kingdom are subject to the home authority that each country decides for itself. (see the Communique of March 24, 1903).

On this account we recommend to omit from the Swedish draft the paragraphs 5, 6, 8, 11, 16, and 19. If they should be adhered to, further discussion about the Swedish draft will be futile.

9.

Extracts from the answer of the Swedish Cabinet Council to the memorandum made by the Norwegian Cabinet Council on January 11, 1905. Dated January 30, 1905.