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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 3 Organs of the states for their international relations, Ch.11 Consuls, The Institution of Consuls

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 December 2018

Subject(s):
Consulates — Diplomatic relations — Consular relations

The Institution of Consuls

Puente, The Foreign Consul (1926) Torroba, Derecho Consular (1927) Desaint, Essai de classification juridique des actes et des attributions des consuls (1927) Heyking, Les Principes et la pratique des services consulaires (1928), and, Hag R, 34 (1930), iv, pp 816–29 Ferrara, Manuale di diritto consolare (1936) Jordan, Répertoire, i, pp 284–302 Harv Research (1932), pp 201–16 Stuart, Hag R, 48 (1934), ii, pp 483–501 Stuart, American Diplomatic and Consular Practice (2nd ed, 1952), pp 277–91 Zourek, Hag R, 106 (1962), ii, pp 370–85, and Clunet, 90 (1963), pp 4–67 Lee, Consular Law and Practice (2nd ed, 1991), pp 3–27, and Vienna Convention on Consular Relations (1966), pp 25–9 Parry, BDIL, 8, pp 3–28 Maresca, Hag R, 134 (1971), iii, pp 105, 111–27 Satow, pp 211–12 Sen, A Diplomat’s Handbook of International Law and Practice (3rd ed, 1988), pp 243–52.

§ 534  Development of the institution of consuls

The roots of the institution of consuls go back to the second half of the Middle Ages.1 In the commercial towns of Italy, Spain, and France the merchants used to elect one or more of their fellow merchants as arbitrators in commercial disputes, and these were called juges consuls or consuls marchands. When, between and after the Crusades, Italian, Spanish, and French merchants established themselves in Near Eastern countries, they brought the institution of consuls with them, merchants from the same nation electing their own consul. The competence of these consuls became gradually enlarged through treaties, called ‘capitulations’, between the home states of the merchants and the mohammedan monarchs in whose territories they had settled.2 The competence of consuls came to comprise all civil and criminal jurisdiction over, and protection of, the privileges, life, and property of their countrymen. The institution of consuls was then brought to Western Europe. Thus, in the fifteenth century, Italian consuls existed in the Netherlands and in London, English consuls in the Netherlands, Sweden, Norway, Denmark, and Italy (Pisa). However, the position of consuls in Western Europe decayed in the (p. 1133) beginning of the seventeenth century with the growth of permanent legations, and because everywhere foreign merchants were brought under the civil and criminal jurisdiction of the state in which they resided. The functions of consuls in Western Europe shrank to a general supervision of the commerce and navigation of their home states, and to a kind of protection of the commercial interests of their countrymen.3 It was not until the nineteenth century that the general development of international commerce, navigation, and shipping revived the value and importance of the institution of consuls, which was systematically developed. The position of consuls, their functions and privileges were the subject of provisions, either in commercial treaties or in special consular treaties,4 and a number of states enacted statutes regarding the duties of their consuls abroad, such as the Consular Act passed by Great Britain in 1825.

§ 535  Nature of consular activity

Nowadays consuls are agents of states residing abroad for various purposes, but mainly in the interests of the commerce and navigation of the appointing state.1 As they are not diplomatic representatives, they do not enjoy diplomatic privileges. Nor have they, ordinarily, anything to do with political relations between their home state and the receiving state. However, modern practice increasingly blurs the distinction between diplomatic and consular representatives. Sometimes consuls are charged with tasks which are normally fulfilled by diplomatic representatives. Thus, too, on occasions small states, instead of accrediting diplomatic envoys to another state, send only a consul, who, with the consent of the receiving state, is authorised to perform diplomatic acts in addition to his consular functions.2 However, consuls thereby neither acquire diplomatic status3 nor any right to diplomatic privileges and immunities (except under special treaty provisions).

Different, however, is the case in which a member of a diplomatic mission is at the same time charged with the exercise of consular functions:4 his privileges and immunities are then determined by his diplomatic status.5 The diplomatic or (p. 1134) consular status of a person will often be determined with conclusive effect by a certificate from the executive branch of government.6

§ 536  Consular conventions

Although the institution of consuls has been known a long time, the absence of any consistent practice regarding their functions or treatment has prevented the development of many clearly established rules of international law such as have long existed in connection with diplomatic relations. States have preferred in many cases to regulate their consular relations by special bilateral treaties1 (many of which contain a ‘most favoured nation’ clause in respect of treatment to be granted to consular officials).

In 1963 the multilateral2 Vienna Convention on Consular Relations was drawn up,3 on the basis of draft articles prepared by the International Law Commission;4 it entered into force in 1967. This Convention deals comprehensively with consular relations. However, given the pre-existing state of the law relating to consular relations, the Convention cannot be regarded to the same extent as the earlier Convention on Diplomatic Relations5 as a codification of rules of customary international law and it embodies a significant element of progressive development of the law.6 The many bilateral consular treaties in force are not affected by the Convention, nor are further such treaties confirming, supplementing, extending or amplifying it excluded.7

Footnotes:

For some early works see Warden, A Treatise on the Origin, Nature, etc, of the Consular Establishment (1814); Salles, L’Institution des consulats, son origine, etc (1898); Chester Lloyd Jones, The Consular Service of the United States: Its History and Activities (1906); Stowell, Le Consul (1909), and Consular Cases and Opinions, etc (1909); Pillaut, Manuel de droit consulaire, 2 vols (1910, 1912).

See Twiss, i, §§ 253–63.

See Barbour, American Historical Review, 11 (1927–28), pp 553–78, on consular service in the reign of Charles II.

Phillimore, ii, § 255, gives a list of such treaties. As to the position of consuls of European states in certain states of the Middle East and Far East, and the regime of capitulations, see vol I of 8th ed of this work, §§ 439–42, and above, § 406; see also Lee, Consular law and Practice (2nd ed, 1991), pp 7–17.

See § 406, as to the former exercise by consuls of civil and criminal jurisdiction over their own nationals. Consuls may sometimes exercise consular functions on behalf of another state: see Vienna Covention on Consular Relations 1963, Art 8. An instance of this which came to judicial notice is Singer v US, AD, 11 (1919–42), No 112. See also § 555.

See Vienna Convention, Art 17.

See Juan Ysmael & Co v SS Tasikmalaja, ILR, 19 (1952), No 94. However, they may be given some diplomatic-sounding title, such as ‘diplomatic agent’.

This situation is more likely to occur with the amalgamation of diplomatic and consular services, now widespread. The UK has had a combined service since 1943, the Soviet Union since 1918, and the USA since 1924. See as to the last, Garner, AJ, 18 (1924), pp 774–7; Rogers, ibid, pp 791–4; and Hackworth, iv, § 379. Art 3.2 of the Vienna Convention on Diplomatic Relations provides that nothing in it shall be construed as preventing the performance of consular functions by a diplomatic mission.

See Vienna Convention, Arts 15.4 and 70. See also Musmann v Engelke [1928] 1 KB 90, [1928], AC 433, and above § 491, n 4; Price v Griffin (1948) (unreported, but referred to by Lyons, BY, 26 (1949), p 434); Heirs of Shababo v Heilen et al, ILR, 20 (1953), p 391; Parkinson v Potter (1885) 16 QBD 152. But in Re Bjørnsson, ILR, 23 (1956), p 446, an official on the staff of a legation, who was assigned to consular affairs, was refused diplomatic immunity: an exequatur had been refused him some time earlier and his appointment with the legation had not been notified to the Ministry for Foreign Affairs.

See § 460, and § 550, n 8.

Thus the UK, on 1 January 1991, had 24 such bilateral treaties. See also the collection of bilateral consular treaties prepared by the Secretariat of the UN and submitted to the Vienna Conference on Consular Relations in 1963. Many consular conventions deal comprehensively with the establishment and operation of consular posts, but some are more limited in their scope, particularly where they are in effect supplementary to the operation of the Vienna Convention as between the parties to the bilateral convention. An example of such a limited convention is that concluded between the UK and China, in 1984 (TS No 14 (1985)), on which see Whomersley, ICLQ, 34 (1985), pp 621–6.

The principal earlier multilateral convention was the Convention regarding Consular Agents adopted by the Sixth International American Conference and signed at Havana on 20 February 1928 (AJ, 22 (1928), Suppl, p 147). See also the Harv Research Draft Convention on the Legal Position and Functions of Consuls, AJ, 26 (1932), Special Suppl, pp 189–449, and the Règlement sur les immunités consulaires adopted by the Institute of International Law in 1896 (Annuaire, 15, p 304).

UNTS, 596, p 261. On the Convention see Lee, Vienna Convention on Consular Relations (1966); Torres Bernardez, AFDI, 9 (1963), pp 78–118; Herndl, Archiv des Volkerrechts, 11 (1963–64), pp 417–58; Nascimento e Silva, ICLQ, 13 (1964), pp 1214–54. The Conference also drew up two Optional Protocols, on Settlement of Disputes and on Acquisition of Nationality.

YBILC (1961), vol II, p 92.

See § 490.

See paras 28–32 of Ch II of the Report of the ILC on the work of its 13th Session: YBILC (1961), p 91. The preamble to the Convention affirms that the rules of customary international law continue to govern matters not expressly regulated by its provisions. See § 11, at nn 12–14, as to the extent to which the Convention might itself contribute to the creation of customary international law.

Article 73.