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corporations." It was evidently desired by the resolution to protect American nationals for their pro-rata losses as stockholders in corporations. But why mention American stockholders in American corporations? Can not American corporations, as such, claim as American "nationals," as in most claims protocols? The Umpire suggests that American stockholders in American corporations were especially named, "so as to include American minority stockholding interests in corporations American in name only and foreign in majority stock ownership and control, because of which the United States... may, acting within its undoubted discretion, well decline to espouse the claims of the corporations as such." 19 Possibly so; but a more plausible explanation, it is believed, is that the draftsmen of the section, in the laudable desire to make it as comprehensive and to include as many categories as possible, inadvertently inserted an extra adjective American, thus giving rise to the superficial inference that perhaps not American corporations, but only American stockholders therein-no distinction is made between majority and minority-were to be protected as claimants. This in fact is assumed as a legal conclusion by the German Agent in resisting the claims of American corporations as such, if large foreign stock-ownership is shown. Nothing in the history of the section or of the diplomatic correspondence seems to sustain the inference that it was intended to exclude from the jurisdiction of the commission American corporations, claiming as such, regardless of the nationality of the stockholders. The section seems merely to have been carelessly drafted, in the desire to make it as comprehensive as possible; it was unnecessarily and, as it proves, ambiguously cautious in seeking to make special provision for American stockholders, not only in foreign, but in domestic, corporations.

Administrative Decision No. VIII 20 dealing with "Claims of the Association of American Holders of Foreign Securities, Incorporated, and its Members" presented a novel case. This Association was evidently organized by a Washington attorney, Mr. Lewis A. McGowan, for the purpose of getting before the commission the claims of the many persons who had purchased German mark securities and had lost through the unprecedented depreciation of the mark. The time for filing notice of claim before the commission expired on April 9, 1923. The time was admittedly short. Mr. McGowan appears to have conceived the idea of organizing his association, securing from brokerage houses the names of their American purchasers of German securities, and electing them to membership in the association. A blanket notice of claim was thus filed with the commission on April 9, 1923, without specifying the nature of the claims or the names of the "members" of the association. These "members" for the most part were not apparently "elected" until some time after April 9, 1923, and often did not know of their election. They were requested by the organizer, however, to ratify their Opinions, p. 325; this JOURNAL, p. 185, infra.

20 Opinions, p. 347; reprinted in this JOURNAL, p. 202, infra.

election, and several hundred of them did so. The question was, whether the claims of these "members" could be deemed within the jurisdiction of the commission. The association relied on the municipal law doctrine of ratification and relation back. The commission held that, under the rules, the association and its members had no standing. They held that the circular letter of the Department of State requiring notice of claims before April 9, 1923, "so that they may be examined and prepared for notification to the commission," implied that the claims had to be identified, and that a blanket notice on behalf of unknown claimants did not satisfy this requirement. The "ratification" subsequent to April 9, 1923, of an earlier "election" was ineffective to cure this defect. In fact, even had the commission assumed jurisdiction, practically all of the claims would have been disallowed on the merits, because bonds and other mark securities are only valorizable if it can be shown that they were subjected to an "exceptional war measure," such as preventing their removal from Germany before January 11, 1920, after a special demand or effort of the claimant to take them out, as a result of which damages can be proved. This difficult test, adopted by the Anglo-German Mixed Arbitral Tribunal, was almost impossible of fulfillment in most cases, so that few bond claims have been allowed by the commission.

In closing this examination of the work of the commission, it is appropriate to call attention to the high degree of conscientiousness, impartiality and learning displayed by Judge Parker as Umpire of the commission. As an American citizen, passing upon the claims of his fellow-citizens against a foreign country, under a treaty imposing obligations on the defendant government "far beyond those for which she would have been held liable under the rules of international law," the Umpire's position was one of peculiar delicacy. The skill with which his judicial duties have been performed commands respect and admiration and reflects credit upon the United States and upon the institution of international arbitration.

21 Opinions, p. 241; this JOURNAL, Vol. 19, p. 813.

AMERICAN TREATY PROVISIONS RELATING TO CONSULAR

PRIVILEGES AND IMMUNITIES

BY IRVIN STEWART

Adjunct Professor of Government, University of Texas

Apparently no consistent effort has been made to secure a uniform schedule of consular privileges and immunities applicable to all of the states with which the United States has entered into treaty relations. In the entire history of the United States up to the present time there have been only sixteen consular conventions. Some 109 other treaties, however, have secured consular exemptions in varying degrees from many different nations; and the popular most-favored-nation clause has extended the schedule still further. One of the first treaties the United States entered into was a consular convention, that of 1788 with France, but the second consular convention did not come until over sixty years later. During the interval many provisions in commercial treaties had extended exemptions in various countries, so that by 1853 every one of the privileges which are in effect today had been inserted in at least one treaty, and some of them had been repeated many times.

The more important of the specific privileges and immunities developed in treaties are of two kinds: those dealing chiefly with the consulate, and those relating to the consul himself. The former class includes the inviolability of the archives and of the consular offices, the use of the offices as an asylum, and the display of the national insignia. The latter group is composed of the exemptions from military service (with its complement the exemption from military billeting), public service, taxation, and appearance as witness in the local courts, the privilege of communication with the receiving government, immunity from arrest, and certain provisions regarding the punishment of consuls. In addition to these, there are a few miscellaneous provisions discussed separately.

GENERAL PROVISIONS

Three broad provisions supplement those specifically enumerated: the most-favored-nation clause, certain general expressions, and a statement of residual liability. The most important of these in point of frequency of occurrence as well as in extent, is the most-favored-nation clause; and it must be considered in connection with any particular treaty. As it has been inserted in sixty-five treaties with fifty different nations, it is quite possible 1 The reason for this was the dissatisfaction incident to the first convention. See Wharton, Digest of the International Law of the United States, I: 777.

2 Morocco (1787 and 1836), France (1788 and 1853), Spain (1795 and 1902), Tripoli (1805), Algiers (1815 and 1816), Colombia (1824 and 1846), Central America (1825), Denmark

that a consideration of those exemptions granted in treaties to which the United States is a party may not reveal all of those which a consul of the United States stationed at a particular post may enjoy by virtue of some treaty provision. It is very likely, however, that somewhere among the many provisions on the subject of consular privileges all of the more important exemptions have been put into operation by an American treaty; and it is believed that every such provision is quoted or cited in this study. In addition to the most-favored-nation clause, it is necessary to examine the various general provisions which, appearing from time to time, might be construed to add privileges in some cases. The earliest of these general provisions was contained in the treaty of amity, commerce, and navigation with Great Britain in 1794. No attempt was made to define consular privileges other than this: “. . . the said consuls shall enjoy those liberties and rights which belong to them by reason of their function." (Art. XVI). Three years later a similar treaty with Tunis secured to the consul, his family, and his suite, the protection of the government (Art. XVII). This was expanded in 1805 in a treaty of peace and amity with Tripoli to:

The consuls shall have liberty and personal security both by land and sea, and shall not be prevented from going on board any vessel that they may think proper to visit. They shall have likewise the liberty to appoint their own dragoman and broker (Art. XIV).

Commercial treaties in 1816 and 1827 with Sweden and Norway provided that the consular officer should enjoy all the protection and assistance necessary for the due discharge of his functions (Arts. V and XIII, respectively). Practically the same provision is to be found in Article XII of a treaty of commerce and navigation with Greece in 1837. To this grant of protection and assistance, a treaty of commerce and navigation with the Ottoman Empire in 1830 added, for the only time in the history of American treaties, "suitable distinction," a phrase of doubtful meaning (Art. XII).

(1826), Brazil (1828), Prussia (1828), Austria-Hungary (1829, 1848, and 1870), Mexico (1831), Russia (1832), Chile (1832), Venezuela (1836 and 1860), Peru-Bolivia (1836), Sardinia (1838), Ecuador (1839), Portugal (1840), Hanover (1840 and 1846), Two Sicilies (1845 and 1855), Mecklenburg-Schwerin (1847), Guatemala (1849), Hawaiian Islands (1849), Switzerland (1850), Salvador (1850), Peru (1851, 1870, and 1887), Costa Rica (1851), Argentine Republic (1853), Netherlands (1855 and 1878), Persia (1856), Bolivia (1858), Paraguay (1859), Honduras (1864), Haiti (1864), Madagascar (1867 and 1881), Nicaragua (1867), Orange Free State (1871), German Empire (1871), Belgium (1880), Servia (1881), Roumania (1881), Corea (1882), Zanzibar (1886), Tonga (1886), Congo (1891), Japan (1894 and 1911), Greece (1902), China (1903), and Sweden (1910).

The meaning of the term "most-favored-nation" is explained in articles by S. K. Hornbeck, "The most-favored-nation clause" in this JOURNAL, Vol. 3, pp. 395, 619, 797; and S. B. Crandall, "American construction of the most-favored-nation clause," id., Vol. 7, p. 707; and with special reference to consular treaties in In re Fattiosini's Estate (1900), 67 N. Y. S. 119, and in Ernest Ludwig, Consular Treaty Rights, pp. 119-179. See also the article by Wallace McClure, "German-American Commercial Relations," in this JOURNAL, Vol. 19, p. 689.

This general provision was followed in the main but was qualified by commercial treaties with the Netherlands, 1839 (Art. III), and with Belgium, 1845 (Art. XVII), and 1858 (Art. XV), the effective statement in these treaties permitting consular officers to enjoy all the privileges, protection, and assistance which usually appertained to their offices and which were necessary for the proper discharge of their functions; while the French consular convention of 1853 prefaced the immunities set forth by the statement that they were such as were usually accorded to the consular office (Art. II).

At least twice has there been expressed in American treaties the idea which American officials and text-writers have steadily declared, that consuls are not entitled to diplomatic immunities. In statements introducing the prerogatives enumerated in consular conventions with Colombia, 1850 (Art. V) and Salvador, 1870 (Art. XXXV), the contracting nations in each instance declined to recognize any diplomatic character of consuls and specifically denied to them the privileges and immunities attaching to diplomatic offices; but to enable consuls to expedite their business, certain prerogatives were granted in the treaties.

The treaty of amity, commerce, and consular privileges with Salvador in 1870 contained the unusual provision that in everything that exclusively concerned the exercise of their functions, consular officers should be independent of the state in whose territory they were residing (Art. XXXV). This was the same expression found in the consular convention of 1850 with Colombia (Art. V); otherwise the nearest approach to the position is to be found in a statement in the consular convention of 1871 with the German Empire to the effect that consular officers should not be interfered with in the exercise of their official functions any further than was necessary for the administration of the laws of the country (Art. III). This latter provision was invoked by the German consul at Cincinnati when in 1887 a certain person in that city used misleading advertisements and displayed the German flag in such a manner as to leave the impression that he was a German consul. The Attorney-General was of opinion that the case was not covered by any law of the United States; but when the matter was called to the attention of the local authorities, it was amicably settled.*

On the other hand, in many cases it has been specifically provided that the immunities enumerated by treaty are the only ones which the consular officer may claim. The ordinary expression of this idea came in 1824, though it had previously found a place in the French consular convention of 1788 (Art. II). The provision "being in everything else subject to the laws of the respective states" was included in commercial treaties with Colombia, 1824 (Art. XXVIII), 1846 (Art. XXXII), 1850 (Art. VI); Central America, 1825 (Art. XXX); Denmark, 1826 (Art. X); Brazil, 1828 (Art. XXX); Mexico, 1831 (Art. XXVIII); Chile, 1832 (Art. XXVIII); Venezuela, Moore, Int. Law Digest, V: 42.

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