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Exemptions and immunities of Consuls regulated on the principle of perfect reciprocity.
Statement of Sir
with regard to
7°. Exterritorial Jurisdiction such as conceded by treaties between Western Nations and China, Japan, Turkey and other Eastern States.
Exemptions and immunities are granted by every State to foreign Consular officers on the international principle of perfect reciprocity. *
With regard to the international status of a Consular officer, Sir Robert Phillimore makes the following statements :---
"Consuls in Christian countries are not, legally speaking, public ministers of the State to which they belong, though, having a public character, they are under a more special protection of International Law than uncommissioned individuals. This protection they have a right to claim both
* In the Netherlands the exemptions and immunities of foreign Consuls are regulated on the principle of reciprocity by Royal Decree of 5th June, 1822, and by the Laws of 29th March, 1833, Art. 24, § 7, in connection with Art. 13 of that of 24th April, 1843. We William, etc. Having seen, etc. Have decreed and decree.
The principle of perfect reciprocity, with respect to the granting of exemptions and immunities to Consuls of foreign Powers, shall be generally adopted upon the footing and in the manner determined by the following articles.
Art. 1. Netherland subjects to whom permission has been or shall be given to exercise Consular functions for foreign Powers or States, shall in general be liable to the payment of all taxes and contributions of whatsoever nature; should they, however, so desire they may be exempted from service to be rendered personally in the towns, saving their obligation, in the event of their being called up for service in the militia, of providing a fit substitute if required, and provided moreover they can show that the Powers from whom they received their appointment allow similar facilities to those of their subjects who act as Netherland Consuls in their dominions.
Art. 2. Consuls who are not natives of the Netherlands or recognized Netherland subjects, or at the time of their appointment are not established as inhabitants of this country, for so far as they do not carry on any profession or occupation other than their Consular functions, shall be exempt from providing lodging for soldiers, from serving in or contributing to the militia, and also from personal taxes, and further from all public or municipal imposts which might be regarded as being of a direct and at the same time personal nature; but this exemption shall in no case extend to any indirect taxes or imposts upon real property. The above being subject to the condition that they shall produce satisfactory proof that the Governments from which they derive their commissions grant similar exemptions and immunities to Consuls who are natives or subjects of this Kingdom, whenever such Consuls may at any time be resident in their dominions.
from the State which sends, and from the State which admits them. But they are not the representatives of their State, nor entitled to any of the privileges and immunities accorded to such representatives, whether they be full ambassadors or simple chargés d'affaires, and for these more especial reasons.
1. They are not, except in cases where they are also chargés d'affaires furnished with credentials (lettres de créance), but with a mere commission (lettres de provision) to watch over the commercial rights and privileges of their Nations.
2. They cannot enter upon the discharge of their functions without the permission and confirmation of their commission by the Sovereign of the country to which they are deputed. That commission is termed the exequatur and may, at any time, be revoked by such Sovereign.
3. As a general rule, they are amenable to the civil and criminal jurisdiction of the country in
Art. 3. Consuls who are not natives of the Netherlands or recognized Netherland subjects, shall, if during their residence in the Netherlands, they carry on any business or profession other than and besides their Consular functions, from that moment and for so long as they continue to do so, be regarded as inhabitants and shall be obliged to bear and to pay the said taxes, imposts and contributions upon the same footing as all other subjects and inhabitants, unless they can furnish satisfactory evidence that Consuls, being natives or recognized subjects of this Kingdom, situated in like circumstances in the dominions of the Powers to whom they are commissioned, enjoy any privileges with respect to the billeting of soldiers, to municipal services, including service in the militia, to contributions for the same, and to personal taxes; in which case similar immunities shall be accorded to them.
Art. 4. These, etc.
Given at the Hague, on the 5th June of the year 1822, and the ninth of our reign.
By command of the King,
J. G. de Meij van Streefkerk.
N.B.-According to the Law of the 29th March, 1833, Art. 24, § 7, in connection with Art. 13 of that of the 24th April, 1843, foreign Consuls, who practise any profession or carry on any business for which a licence is required, can, in no casc, be exempted from the personal tax. Art. 3 of above decree is modified to that extent.
which they reside. Vattel's position that they are exempted from the latter, is wholly unsupported by the requisite proof.
4. They are subject to the payment of taxes. 5. The permission to have places of worship in their houses is very rarely accorded to Consuls.
6. They have no claim to any foreign ceremonial or mark of respect, and no right of precedence except among themselves according to the rank of the different States to which they belong, but they have a right to place the arms of their country over the door of their residence."
De Martens is of opinion that, unless they are engaged in trade, or become owners of immovable property in the country, Consular officers cannot be arrested or incarcerated for any less offence than a criminal act.
The privileges of Consuls, so far as they are derived from the country to which they are sent, are, generally speaking, an exemption from any personal tax, and generally from the liability to have soldiers quartered in their houses; and in cases where the ambassadors are absent, or non-resident, they have a right of access to the authorities of the State in which they reside. They are usually allowed to grant passports to subjects of their (the Consuls') own country, living within the range of their Consulate, but not to foreigners. As a general rule, the muniments and papers of the Consulate are inviolable, and under no pretext to be seized or examined by the local authorities.
As a general rule, too, Consuls in Christian countries have no contentious jurisdiction over their fellow-countrymen, but simply a sort of voluntary jurisdiction-a power of arbitration (jurisdiction arbitrale) in disputes, more especially
those relating to matters of commerce. functions must, in great measure, depend upon the Municipal Law of their own country. No contentious jurisdiction can be exercised over their fellow-countrymen without the express permission of the State in which they reside; and no Christian State has as yet permitted the criminal jurisdiction of foreign Consuls. But usage and the rule adopted in most treaties concede to the Consul the assistance of the local police when it may be necessary for the exercise of his functions over the seamen of merchantvessels belonging to his own country."
"In England it has been decided that in a suit for wages by seamen on board a foreign vessel, the Court of Admiralty has jurisdiction, but will not exercise it without first giving notice, in accordance with the directions of the tenth of the Rules and Orders of 1859 for the practice of the High Court of Admiralty, to the Consul of the Nation to which the foreign vessel belongs; and if the Consul, by protest, objects to the prosecution of the suit, the Court of Admiralty will determine whether it is fit and proper that the suit should proceed or be stayed. Such protest does not, ipso facto, operate as a bar to the prosecution of the suit, as the foreign Consul has not the power to put a veto on the exercise of jurisdiction by the Court of Admiralty. In such a suit it makes no difference that the plaintiff is a British subject; it is the nationality of the vessel, and not the nationality of the individual seaman suing for his wages, that regulates the course of procedure."
The cases in the American Courts may be also consulted on this subject; they contain the following propositions:
"A suit cannot be brought in a State Court against a Consul of a foreign Government, admitted as such by the Government of the United States. He does not waive his privileges by appearing in the State Court, and pleading to
"A Consul represents the subjects of his Nation, if they are not otherwise represented." †
"A Consul of a foreign Power, though not entitled to represent his Sovereign in a country where the Sovereign has an ambassador, is entitled to intervene for all subjects of that Power interested; and though he should not set forth the particulars of his claim, still it will be sufficient if they can be fully gathered from the allegations of the libel, and the case it sets forth."‡
"A Consul, though a public agent, is supposed to be clothed with authority only for commercial purposes; he has a right to interpose claims for the restitution of property belonging to the subjects of his own country, but he is not entitled to be considered as a minister, or diplomatic agent of his Sovereign, intrusted, by virtue of his office, with authority to represent him in his negotiations with foreign States, or to vindicate his prerogative." ||
"Although a foreign Consul is admitted to interpose a claim in the Admiralty for unknown subjects of his Nation, yet before restitution can be decreed, proof of the individual proprietary interest must be exhibited." ¶
* Valarino v. Thompson. 3 Seldon (N.S.) 576.
Gernon v. Cochran. Bee. 209.
Robson v. The Huntress. 2. Wallace Junior, 59.
"A foreign Consul has a right, without special authority from those for whose benefit he acts,
The Anne. 3. Wheat. 435.
The Antelope. 10. Wheat. 66,