TITLE D

PRIVILEGES AND IMMUNITIES

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§ 464. Under International Law and Treaty.

Consuls are not diplomatic officers, and cannot of right claim the privileges and immunities accorded the latter. Consuls are, nevertheless, officers both of the State which appoints and that which receives them.1 They possess, moreover, a certain representative character as affecting the commercial interests of the appointing country. Such officers are for many purposes the spokesmen of their fellow countrymen residing in the same district; and upon the death of the latter are oftentimes made by treaty the legal representatives of the non-resident heirs.3 The right of intercourse with local authorities, executive or judicial, is frequently expressly acknowledged, and upon occasion, in the absence of diplomatic representation, the right of access to the national government of the State.5

The bare authorization of a consular officer to perform certain duties commonly entrusted to diplomatic officers does not serve to attach to him a diplomatic character, or to clothe him with diplomatic immunity. A foreign consul not acknowledged by the Department of State to possess the character of a public

1 Consular Regulations of the United States (1896), § 72. See, also, Moore, Dig., V, 32-33, and documents there cited; The Anne, 3 Wheat. 435, 445-446. Concerning Consular Jurisdiction in Oriental and Certain Other Countries, see Extraterritorial Jurisdiction, supra, §§ 259–264.

2 Consular Regulations of the United States (1896), § 71.

See, for example, Art. X, consular convention with the German Empire, Dec. 11, 1871, Malloy's Treaties, I, 553; Art. XV, consular convention with Belgium, March 9, 1880, id., I. 99.

See, for example, Art. IX, consular convention with Sweden, June 1, 1910, Charles' Treaties, 114.

5 Id.; also Art. VIII, consular convention with the German Empire, Dec. 11, 1871, Malloy's Treaties, I, 552.

It is oftentimes provided in extradition treaties that requisitions for the surrender of fugitives from justice shall be made by consular officers of the contracting parties in the absence from the country or its seat of government of diplomatic representatives. See, for example, Art. III, convention with France, Jan. 6, 1909, Charles' Treaties, 35. Also Consular Regulations of the United States (1896), § 71.

RESPECT FOR THE CONSULAR FUNCTION

[$ 465

minister will not be regarded as such by the courts of the United States.1

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$465. Respect for the Consular Function.

The yielding of consular privileges and immunities is for the purpose of facilitating the performance of the consular function.2 Such performance is retarded unless respect for that function be maintained, and contempt for it both prevented and penalized.3 Respect is enhanced by provisions in numerous conventions of the United States conferring upon a consul special privileges, such as, for example, that of giving his testimony in a civil case, at his consulate rather than in open court. The consular function is 1 In re Baiz, 135 U. S. 403, 424, 431-432, Moore, Dig., IV, 650; also Mr. Foster, Secy. of State, to Mr. Heard, No. 151, Dip. Series, Oct. 31, 1892, MS. Inst. Corea, I, 414, Moore, Dig., IV, 445.

The statutory law of the United States forbids an American consular officer to exercise diplomatic functions, or to hold any diplomatic correspondence or relation on the part of the United States in, with or to the government or country to which he is appointed, or any other country or government, when there is in such country any officer of the United States authorized to perform diplomatic functions therein; or in any case, unless expressly authorized by the President to do so. Rev. Stat. § 1738.

It may be noted that Mr. D. C. Poole, Jr., a consul, was accorded the "rank of counselor" and assigned to the American Embassy in Russia in 1918. Diplomatic and Consular Service of the United States, corrected to July 26, 1919. Concerning the situation where a consular office is formally superadded to the diplomatic office filled by a single individual, see Diplomatic Missions, Classification of Ministers, supra, § 411.

2 Stowell, Le Consul, 139, calling attention to Art. XVI of the Jay Treaty with Great Britain, of Nov. 19, 1794, Malloy's Treaties, I, 600.

3 "Consuls are to be considered as distinguished foreigners, dignified by a commission from their sovereign, and specially recommended by him to the respect of the nation with whom they reside. They are subject to the laws of the land indeed precisely as other foreigners are, a convention where there is one making a part of the laws of the land; but if, at any time, their conduct should render it necessary to assert the authority of the laws over them, the rigor of those laws should be tempered by our respect for their sovereign, as far as the case will admit. This moderate and respectful treatment towards foreign consuls it is my duty to recommend, and press on our citizens, because I ask it for their good, towards our own consuls, from the people with whom they reside." Communication of Mr. Jefferson, Secy. for Foreign Affairs, to Mr. Newton, Sept. 8, 1791, 4 MS. Am. Let. 283, Moore, Dig., V, 33.

"Ministers and Consuls of foreign nations are the means and agents of communication between us and those nations, and it is of the utmost importance that while residing in the country they should feel a perfect security so long as they discharge their respective duties and are guilty of no violation of the law of nations. As in war the bearers of flags of truce are sacred,

or else wars would be interminable, so in peace ambassadors, public ministers, and consuls, charged with friendly national intercourse, are objects of especial respect and protection, each according to the rights belonging to his rank and station." President Fillmore, Annual Message, Dec. 2, 1851, Richardson's Messages, V, 118.

4 See, for example, Art. IV of consular convention with Sweden, June 1, 1910, Charles' Treaties, 113; Art. IV of consular convention with Belgium, March 9, 1880, Malloy's Treaties, I, 95. Also infra, § 476.

upheld in the United States by the Federal law punishing one who falsely assumes or pretends to be a consular officer of a foreign government duly accredited as such to the Government of the United States, with intent to defraud such government or any person, and takes upon himself to act as such officer, or in such pretended character demands or obtains, or attempts to obtain from any person or from such foreign government, or from any officer thereof, any money, paper, document, or other thing of value. It is doubtless also possible to enjoin one who interferes with or obstructs the performance by a consul of his official duties.2

In their intercourse with local or minor officials oftentimes ignorant of the law of nations and of the terms of existing conventions, consular officers are not infrequently subjected to humiliation, and occasionally to insult.3 When a foreign consular officer within the United States is the victim of such treatment, there appears to be no law which subjects the offender to criminal prosecution in the Federal courts. Frank expression of regret is, nevertheless, to be anticipated upon reasonable protest duly lodged with the superior authorities, State or Federal. If, because of the absence of an appropriate statute or for any other reason, the State authorities are unable or indisposed to inflict any penalty upon the offender, the country to which the consul belongs may justly seek redress through the diplomatic channel.

1 Act of June 15, 1917, Chap. 30, title VIII, § 2, 40 Stat. 217, 226. Also Von Thororovitch v. Franz Josef Beneficial Association, 154 Fed. 911. See also For. Rel. 1906, II, 931-934, respecting the counterfeiting of the American consular seal at Palermo.

2 If the consul be an alien, it is believed that he may rely upon paragraph 17, § 24, Chap. 2, of the Federal Judicial Code of Mar. 3, 1911, conferring original jurisdiction upon the United States District Courts, "of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States." Interference with the performance of the consular functions of one empowered to exercise the same by the State to which he is appointed as well as by his own country, violates the law of nations, and in most instances, also, the provisions of treaties which the consular officer may justly invoke.

See, also, Act No. 51 of April 15, 1913, Pennsylvania Sess. Laws of 1913, making it under certain circumstances unlawful for any person, firm or corporation to use the word "Consul" or "Consulate", or the coat of arms of a foreign country for exhibition, display, or advertising purposes, and providing a penalty therefor.

3 For. Rel. 1905, 517-524, respecting treatment accorded Mr. Winslow the American Consul-General, by a judge of the first instance at Guatemala, in 1905.

4 Case of the German consul at Cincinnati, Moore, Dig., V, 41, and documents there cited; also Opinion of Mr. Garland, Atty.-Gen., May 5, 1887, respecting the operation of § 4062, Rev. Stats., 19 Ops. Attys.-Gen., 16; also Opinion of Mr. Bradford, Atty.-Gen.. 1 Ops. Attys.-Gen. 41.

PROTECTION DUE TO CONSUL

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$466. Protection of the Person of a Consul.

[§ 467

To enable him to perform his official duties effectively and without molestation, the person of a consul as well as his reputation are entitled to complete protection. The State to which he is appointed should make the utmost endeavor to accord it. Neglect in this regard always evokes protest and justifies demands for reparation.1

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§ 467. Protection of the Consular Archives and Dwelling. A consul may claim inviolability for the archives and official property of his office, and their exemption from seizure or examination. Such inviolability is secured by numerous treaties of the United States. A consul is also protected from the billeting of soldiers in the consular residence. It is oftentimes agreed that

1 Instances are numerous. See cases in Moore, Dig., V, 42-48, especially cases in Venezuela in 1900, For. Rel. 1900, 943–953, and case of Riot at Mollendo, Peru, 1893, For. Rel. 1893, 509–525.

Declared Mr. Webster, Secy. of State, to Mr. Calderon da la Barca, Spanish Minister, Nov. 13, 1851, in connection with the riot in New Orleans in 1851 : "While the Government has manifested a willingness and determination to perform every duty which one friendly nation has a right to expect from another in cases of this kind, it supposes that the rights of the Spanish consul, a public officer residing here under the protection of the United States Government, are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens, and here to pursue their private business and objects. The former may claim special indemnity the latter are entitled to such protection as is afforded to our own citizens.' 6 Webster's Works, 509, 511, Moore, Dig., VI, 812-813.

Respecting indignities suffered by American consular officers at the hands of German frontier authorities in the course of the World War before the United States became a belligerent, see. House Report No. 1, 65 Cong., I Sess., Cong. Record, Vol. LV, 319, 321.

See, also, Mr Hunter, Acting Secy. of State, to Mr. Molina, Aug. 6, 1852, MS. Notes to Central America, I, 33, Moore, Dig., V, 48; Case of Mr. Jenkins, American Consular Agent at Puebla, Mexico, in 1919, under. Claims, supra, § 286; E. C. Stowell, The Magee Incident, Washington, 1920, illustrating from Parliamentary Papers, 1875, Vol. 82, how Great Britain in 1874, secured redress for the ill-treatment of its consular representative at San José, Guatemala.

2 Consular Regulations of the United States (1896), § 73; also Mr. Hunter, Acting Secy. of State, to Mr. Molina, Aug. 6, 1852, MS. Notes to Central America, I, 33, Moore, Dig., V, 48; case of outrage on the American Consulate at Malaga, April, 1898, For. Rel. 1898, 1078-1085, Moore, Dig., V, 52-53; Arts. and 10, declaration of the Institute of International Law, Sept. 26, 1896, XV, Annuaire, 306.

3 Art. VI of the consular convention with Sweden of June 1, 1910, Charles' Treaties, 114; Mr. Sherman, Secy. of State, to Mr. Neill, No. 250, June 26, 1897, respecting a violation by local authorities at Piura, of Art. XXXI of the treaty with Peru, of Aug. 31, 1887, MS. Inst. Peru, XVIII, 37, Moore, Dig., V, 52.

4 Consular Regulations of the United States (1896), § 73; also id., § 84, with respect to certain treaty provisions.

the consular office and dwelling shall at all times be inviolable, and that the local authorities shall not, under any pretext, invade them.1 Business establishments belonging to a consul and separate from the consular premises are not inviolable.2 In the absence of treaty, the territorial sovereign is not believed to be shorn of the right to make domiciliary searches or serve writs of judicial process within the consular offices and dwelling, provided, however, that such steps are taken with suitable consideration for the official position of the consular officer.3

4

Treaties yielding inviolability of the consular office and dwelling commonly provide also that they shall, under no circumstances, be used as places of asylum. Hence it behooves a consul not to endeavor to shield from the local jurisdiction any employee sought to be subjected to process, but rather, upon due notice, to facilitate access to him, by placing the employee, if need be, outside of the consular premises.

In 1912, the Department of State declared, in an instruction for the guidance of the American consul at Vera Cruz, that the United States does not claim what is technically known as the right of asylum in the strictest sense. It was said, however, that there is "an evident distinction between cases of this kind and cases in which temporary refuge is given in order to preserve innocent human life." In those of the latter kind the Department found it expedient to give a certain latitude to the judgment of the officer who might be called upon to determine within his discretion the course recommended by broad considerations of humanity in

1 Consular Regulations of the United States (1896), § 80; also Art. VI, convention with Sweden, June 1, 1910, Charles' Treaties, 114. The same Article contains also the common provision that "when a consular officer is engaged in other business, the papers relating to the consulate shall be kept separate." See Myers' Case, arising under Art. XXXV of the treaty with Salvador of Dec. 6, 1870, Moore, Dig., V, 51-52, and documents there cited; also Tourgée's Case, arising under Art. III of consular convention with France of Feb. 23, 1853, For. Rel. 1900, 429-456, Moore, Dig., V, 53-54.

According to Art. V of the consular convention with Germany of Dec. 11, 1871, provision as to inviolability was limited to "the offices and dwellings of Consuls missi who are not citizens of the country of their residence." Malloy's Treaties, I, 552.

2 Mr. Hay, Secy. of State, to Mr. Powell, Minister to Haiti, April 25, 1899, For. Rel. 1899, 377, Moore, Dig., V, 55.

3 Case of Invasion by Haitian authorities in 1899, of the residence of the American Deputy Consul-General, For. Rel. 1899, 405-407, Moore, Dig., V, 55-57.

4 See, for example, Art. VI of consular convention with Servia, Oct. 14, 1881, Malloy's Treaties, II, 1619; also, in this connection, Mr. Hay, Secy. of State, to Mr. White, Ambassador to Germany, March 6, 1899, For. Rel. 1899, 302, Moore, Dig., V, 82.

5 Compare Stowell, Le Consul, 154.