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Published online by Cambridge University Press: 06 June 2017
The reëstablishment of treaty relations with Germany seems to have afforded occasion for a new type of treaty incorporating new principles,restating old ones and generally rearranging the subject-matter considered.Provisions relating to consular privileges and immunities show the influence of this new consideration. The Treaty of Friendship, Commerce and Consular Rights with Germany has been followed by similar treaties with Estonia and Hungary. Ratification of a like treaty with Salvador has been advised and consented to by the United States Senate, but the exchange of ratifications has not yet been announced. A consular convention with Cuba follows the corresponding provisions in the treaties of friendship, commerce and consular rights so far as consular privileges and immunities are concerned. As press reports have indicated that similar treaties may be negotiated with other states, it is possible that there may be an extensive redefinition of consular privileges and immunities along the lines of the provisions of the recently published treaties. In the light of this possibility the contents of this part of the treaties are of great importance and an examination of them of present interest. As the Treaty of Friendship, Commerce and Consular Rights with Germany was the first of the series,the following discussion is based upon the provisions of that treaty, with attention being given to the more important departures in the later treaties.
For a discussion of the provisions of earlier treaties, see this Journal, Vol. 20, p. 81.
1. Treaty Series No. 725.
2. Ibid., No. 736.
3. Ibid., No. 748.
4. May 28, 1926. Cong. Bee., 69th Cong., 1st Sess., p. 1024.1
5. Treaty Series No. 750.
6. The provisions considered are all or parts of the following articles in the German treaty:
XVII, XVIII, XIX, XX, XXVII. The corresponding articles of the other treaties mentioned are: Estonia, ArticlesXVI, XVII, XVIII, XIX, XXVI; Hungary, Articles XIV, XV, XVI, XVII, XXII; Cuba, Articles III, IV, V, VI, VII, VIII, XVI; Salvador, Articles XV, XVI, XVII, XVIII, XXV. As contained in the German treaty the provisions are: Article XVII. . . . Consular officers of each of the High Contracting Parties shall, after entering upon their duties, enjoy reciprocally in the territories of the other all the rights, privileges, exemptions and immunities which are enjoyed by officers of the same grade of the most favored nation. As official agents, such officers shall be entitled to the high consideration of all officials, national or local, with whom they have official intercourse in the state which receives them. . . .
Article XVIII. Consular officers, nationals of the state by which they are appointed, shall be exempt from arrest except when charged with the commission of offenses locally designated as crimes other than misdemeanors and subjecting the individual guilty thereof to punishment. Such officers shall be exempt from military billetings, and from service of any military or naval, administrative or police character whatsoever.
In criminal cases the attendance at the trial by a consular officer as a witness may be demanded by the prosecution or defense. The demand shall be made with all possible regard for the consular dignity and the duties of the office; and there shall be compliance on the part of the consular officer.
Consular officers shall be subject to the jurisdiction of the courts in the state which receives them in civil cases, subject to the proviso, however, that when the officer is a national of the state which appoints him and is engaged in no private occupation for gain, his testimony shall be taken orally or in writing at his residence or office and with due regard for his convenience. The officer should, however, voluntarily give his testimony at the trial whenever it is possible to do so without serious interference with his official duties.
Article XIX. Consular officers, including employees in a consulate, nationals of the State by which they are appointed other than those engaged in private occupations for gain within the State where they exercise their functions shall be exempt from all taxes, National, State, Provincial and Municipal, levied upon their persons or upon their property, except taxes levied on account of the possession or ownership of immovable property situated in, or income derived from property of any kind situated or belonging within the territories of the State within which they exercise their functions. All consular officers and employees, nationals of the State appointing them shall be exempt from the payment of taxes on the salary, fees or wages received by them in compensation for their consular services. . . .
Article XX. Consular officers may place over the outer door of their respective offices the arms of their State with an appropriate inscription designating the official office. Such officers may also hoist the flag of their country on their offices including those situated in the capitals of the two countries. They may likewise hoist such flag over any boat or vessel employed in the exercise of the consular function.
The consular offices and archives shall at all times be inviolable. They shall under no circumstances be subjected to invasion by any authorities of any character within the country where such offices are located. Nor shall the authorities under any pretext make any examination or seizure of papers or other property deposited within a consular office. Consular offices shall not be used as places of asylum. No consular officer shall be required to produce official archives in court or testify as to their contents. . . .
Article XXVII. Each of the High Contracting Parties agrees to permit the entry free of all duty and without examination of any kind, of all furniture, equipment and supplies intended for official use in the consular offices of the other, and to extend to such consular officers of the other and their families and suites as are its nationals, the privilege of entry free of duty of their baggage and all other personal property, whether accompanying the officer to his post or imported at any time during his encumbency thereof; provided, nevertheless, that no article, the importation of which is prohibited by the law of either of the High Contracting Parties, may be brought into its territories.
It is understood, however, that this privilege shall not be extended to consular officers who are engaged in any private occupation for gain in the countries to which they are accredited, save with respect to governmental supplies.
7. Article XVIII.
8. Lee, Atty. Gen., Nov. 21, 1797, I Op. 45; Wirt, Atty. Gen., Dec. 1, 1820, I Op. 300.And see Atty. Gen. Butler's opinion of September 16, 1835 in I Op. 1005.
9. Forsyth, Sec. of State, to Mr. Cass, Dec. 6, 1836, Moore, Digest, Vol. V, p. 68; same tosame, April 13, 1838, ibid. Compare Clayton, Sec. of State, to Mr. Calderon de la Barca,Aug. 28, 1849, ibid., p. 34, to the effect that a consol is liable for a violation of the criminal laws of the country of his residence.
10. Article II.
11. Consular convention of 1871 with Germany, Article III.
12. Netherlands,1878,Article III;Spain, 1902, Article XV.Google Scholar
13. Article XVIII. The provision in the Cuban consular convention, Article VI, is more extensive than this in that it also exempts the consul from “every class of requisitions.”
14. Foreign Relations, 1871, p. 272.
15. With France.
16. Colombia, Article V.
17. See in re Dillon (1854), 3 Fed. Cas. 914; Marcy, Sec. of State, to Mr. Mason, 1854-1855,Moore, Digest, Vol. V, pp. 78-80; Dana's Wheaton, p. 325.
18. Austria-Hungary, Article III; Salvador, Article XXXV.
19. Article XVIII.
20. See, for instance, Rochkill, Third Asst. Sec. of State, to Mr. Mason, July 31, 1894,Moore, Digest, Vol. V, p. 83; Hay, Sec. of State, to Mr. White, March 6, 1899, ibid., p. 82.
21. Article III. For an interpretation see Hill, Sec. of State, to Mr. Smith, Moore, Digest,Vol. V, p. 90.
22. Foreign Relations, 1909, pp. 284-286.
23. Article XXVII.
24. All of the treaties considered, except that with Estonia, provide that this equipment shall be admitted without examination of any kind.
25. The Estonian treaty, Article XXVI, substitutes a most-favored-nation clause for this provision.
26. Foreign Relations, 1912, p. 902.
27. Article XX.
28. Ibid.
29. The Cuban treaty, Article VII, differs from the others in following the old provision that when the consular officer is engaged in business in the state which receives him, the official papers must bekept in a place entirely apart from the consul's private or business papers. This article contains an obvious typographical error in the provision, “Neither shall any consular office (sic) be required to produce official archives in court or testify as to their contents.’
30. The consular convention of 1868 with Italy.Foreign Relations, 1878, pp. 462-463.
31. Article XX.
32. Article XX. The Cuban treaty, Article VIII, is more detailed than the others in that it recites the consul's duty to surrender to the proper local authorities, upon demand, persons prosecuted for crime in accordance with the domestic laws of the country which receives them, who have taken refuge in the building occupied by the consular offices.
33. Article XVII.
34. Ibid.
35. Hyde,International Law,Vol.II,p.77.Google Scholar