the State, but drafted in the form of a letter of attorney or mandate to transact business with the civil, administrative and judicial authorities. Unlike diplomatic agents, consuls are not recognised as such directly they present their Letters Patent, but only when they have received their exequatur.

The jurisdiction of diplomatic agents always extends over the whole country to which they are accredited. That of consuls is limited by their Letters Patent and the exequatur granted them.

Diplomatic agents have a representative character which consuls do not possess. The latter, except in a few cases, do not transact business with the Minister for Foreign Affairs, but only with the local authorities of their

area.

Whereas the former are political agents, the latter are only civil agents. The attributes of diplomatic agents and of consuls differ to such an extent that it is hard to find any analogy between them, other than the protection which both diplomatic agents and consuls are bound to accord to their nationals.

Diplomatic agents are responsible for the major interests of their nation, good international understanding, and the preparation of treaties which guarantee those interests and consolidate good will.

Consuls are concerned with developing trade and watching over the interests of their nationals.

It is clear, therefore, that the former must, if they are to carry out their mission properly, possess certain prerogatives and privileges which originate in the representative character with which they are invested, whereas it is sufficient for consuls to possess the legal status which is indispensable for the discharge of their less-important duties.

We will consider separately each of the prerogatives which have given rise to discussion:

Exequatur. Only when the exequatur has been granted may the consul communicate with the authorities and, generally speaking, perform his other duties. He cannot claim any privilege until he has received this document. The exequatur may be refused, or even withdrawn, without giving his Government a right to demand explanations from the Government of the country to which he has been accredited.

Inviolability of the consular archives.-This privilege, which must certainly be accorded to consuls, is indispensable to enable them to carry out their duties. The documents in the archives are the property of the foreign Government which installed the consulate, with the approval of the Government of the country. It would be a lack of courtesy towards the former Government if the secrecy of the archives were violated on any pretext whatever. Moreover, all countries, except England, recognise the inviolability of consular archives.

Immunity from civil jurisdiction.-This immunity, and indeed all immunity from jurisdiction, depends on the fiction of extra-territoriality which

can really only apply to diplomatic agents. Consuls, accordingly, are subject to local jurisdiction, and indeed a civil action would hardly prevent a consul from carrying on his duties.

As he possesses no immunity from civil jurisdiction, a consul should be subject to attachment of his property as security for his personal debts. Immunity from criminal jurisdiction.—It would seem that, as a consul could not carry out his duties if he were placed under arrest, he should be allowed immunity in criminal matters. Against this, it may be argued that as the consul and the consulate are not the same thing, the arrest of the consul would not mean the discontinuance of the work of his country's consular service.

Such cases have often arisen in various countries, and judicial decisions have answered the question in the sense of disallowing any immunity, either civil or criminal, for consuls. We may quote the decision of the Court of Aix of April 14th, 1829, that of the Court of Rouen of June 27th, 1849, and the judgment delivered by the Tribunal de la Seine on January 21st, 1875. The last-mentioned judgment laid down that although consuls are entitled to carry out their duties without hindrance, they are, nevertheless, subject to the jurisdiction of the French Courts in all that concerns their private actions.

The foregoing observations, with respect not only to immunities but to all the privileges which should be refused to consuls, may be modified by bilateral treaties.

Right of asylum.—This right is a prerogative which need not be discussed; it is quite inadmissible. No State would admit such a privilege, and at the present time it ought no longer to exist, in however limited a form, even in the case of diplomatic agents.

Taxation. The custom is to exempt consuls from direct and, occasionally, indirect taxation. Where no treaty exists, however, this privilege could not be claimed as a right. It is granted subject to the principle of reciprocity. We would propose to lay down that "consuls de carrière" not engaging in any form of trade in the country to which they are appointed should be exempted from taxation.

None of the foregoing remarks apply to consuls who are Chargés d'Affaires, since the second character invests them with the privileges and rights which international law accords to diplomatic agents.

Although the question of precedence is entirely unconnected with the legal status of consuls, we must mention it in this report because it forms the subject of a question submitted to our Committee for the Progressive Codification of International Law.

The rule applied to diplomatic agents should also be observed in the case of consular officials; that is to say, they should take precedence in each class according to the date of their exequatur.

Nevertheless, we would draw a distinction between "consuls de carrière"

and honorary consuls who are not nationals of the country which appoints them.

In the present stage of development of the institution of consuls and in the interest of the prestige of the career, the latter class of consuls should no longer exist. In point of fact, most honorary consuls of foreign nationality are far busier with their personal affairs than with those of the country which has conferred the title upon them, and as they generally engage in commerce in their consular area they occasion appreciable loss to other merchants. The commercial invoices submitted to them enable them to obtain valuable information which is of great use to them in their private affairs. They are thus able to compete on an unfair basis with the traders in their area. Moreover, nationals of the country which appoints these foreign consuls do not obtain from them the protection to which they are entitled and which they would always obtain from a consul of their own nationality.

Most of the countries in Europe have none but professional consuls, and it is to be hoped that other States will follow this example.

As honorary consuls of foreign nationality are not really public officials— for only nationals can be that-we propose that "consuls de carrière" should be given precedence over honorary consuls of foreign nationality of the same class, without taking into consideration the date of the exequatur. This means that honorary consuls-general will always come after other consulsgeneral in the town.

From the above it may be inferred that the regulation of the legal status of consuls by international agreement is not only desirable from every point of view but it is even indispensable, in order to avoid disputes which the absence of definite rules on the matter must certainly cause.

We do not think it necessary to define the functions of consuls by way of a convention, because these functions are perfectly well known and do not give rise to any disagreement, and because the determination of such functions is rather a matter of domestic law, since each State is alone able to determine the functions of its own officials.

(Signed) J. Gustavo GUERRERO,

Rapporteur.

A. MASTNY.

CONCLUSIONS AMENDED AS THE RESULT OF DISCUSSION IN THE COMMITTEE

Exequatur.-Only when the exequatur has been granted may the consul communicate with the authorities and, generally speaking, perform his other duties. He cannot claim any privilege until he has received this document. The exequatur may be refused, or even withdrawn, without giving his Government a right to demand explanations.

Consular archives and correspondence.—The consular archives are inviolable. The same rule should apply to official correspondence.

Immunity from civil jurisdiction.-The immunity from civil jurisdiction which is accorded to diplomatic agents cannot be applicable in a general manner to consuls who should only enjoy such immunity in connection with the exercise of their functions.

Immunity from criminal jurisdiction.-Consuls do not possess this immunity.

Right of asylum.-Consuls do not possess this prerogative.

Taxation.-Exemption from direct taxes should be accorded to "consuls de carrière," not carrying on any trade in the country where they exercise their functions.

None of the foregoing remarks apply to consuls who are Chargé d'Affaires, since the second character invests them with the privileges and rights which international law accords to diplomatic agents.

Although the question of precedence is entirely unconnected with the legal status of consuls, we must mention it in this report because it forms the subject of a question submitted to our committee for the Progressive Codification of International Law.

The rule applied to diplomatic agents should also be observed in the case of consular officials; that is to say, they should take precedence in each class according to the date of their exequatur.

Nevertheless, we would draw a distinction between "consuls de carrière" and honorary consuls.

We propose that "consuls de carrière" should be given precedence over honorary consuls without taking into consideration the date of the exequatur, which means that honorary consuls will always come after other consuls in the town.

From the above it may be inferred that the regulation of the legal status of consuls by international agreement is desirable from every point of view, and is even indispensable, in order to avoid disputes which the absence of definite rules on the matter must certainly cause.

The question of consular functions is reserved for later examination.

Committee of Experts for the Progressive Codification of International Law

QUESTIONNAIRE No. 10

Adopted by the Committee at its Third Session, held March-April 1927

REVISION OF THE CLASSIFICATION OF DIPLOMATIC AGENTS* The Committee has the following terms of reference:

(1) To prepare a provisional list of the subjects on international law the regulation of which by international agreement would seem to be most desirable and realisable at the present moment;

(2) After communication of the list by the Secretariat to the Governments of States, whether Members of the League or not, for their opinion, to examine the replies received; and

(3) To report to the Council on the questions which are sufficiently ripe and on the procedure which might be followed with a view to preparing eventually for conferences for their solution. The Committee has decided to include in its list the following questions:

"Is it desirable to revise the classification of diplomatic agents made by the Congresses of Vienna and Aix-la-Chapelle? In the affirmative case, to what extent should the existing classes of diplomatic agents be amalgamated, and should each State be recognized to have the right, in so far as existing differences of class remain, to determine at its discretion in what class its agents are to be ranked?"

The Committee reached this decision on the basis of a report submitted to it by a Sub-Committee consisting of M. GUERRERO, Rapporteur, and M. MASTNY. This report has been fully discussed by the Committee. It is to be understood that the Committee has not felt that it should at present pronounce upon the actual proposals presented in the report.

The Committee has the honour to request the various Governments to inform it whether they consider that these questions could advantageously be examined at the present moment with a view to the conclusion of a general convention.

In order to be able to continue its work without delay, the Committee will be glad to be put in possession of the replies of the Governments before December 31st, 1927.

The Sub-Committee's report is annexed to the present communication. Geneva, April 2nd, 1927.

(Signed) Hj. L. HAMMARSKJÖLD, Chairman of the Committee of Experts.

* Publications of the League of Nations. V. Legal. 1927. V. 8.