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American Treaty Provisions Relating to Consular Privileges and Immunities
Published online by Cambridge University Press: 04 May 2017
Extract
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.
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References
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(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).
3 The meaning of the term “most-favored-nation” is explained in articles by Hombeck S. K. , The most-favored-nation clause in this Journal , Vol. 3, pp. 395, 619, 797; and Crandall S. B., American construction of the most-favored-nation clause, id., Vol. 7, p. 707; and with special reference to consular treaties in In re Fattiosinis 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.
4 Moore, Int. Law Digest, V: 42.
5 To the same effect is the treaty of friendship, commerce, and extradition with the Orange Free State entered into in 1871 (Art. V).
6 The last named treaty provision was applied in 1897. See Moore, Digest, V: 52.
7 Applied in Kessler v. Best (1903), 121 Fed. 439.
8 Rockhill, third Asst. Sec. of State, to Mr. Mason, July 31, 1894 (Moore, Digest, V: 83>). This position was again maintained in 1899. Hay, Sec. of State, to Mr. White, March 6,1899> (Moore, Digest, V: 82).
9 This provision was adopted by Zanzibar in the treaty of amity, commerce and navigation of 1886 (Art. II).
10 Marcy, Sec. of State, to Mr. Clay, Jan. 24, 1854 (Wharton, Digest, 1 :676); same to Mr. Wheeler, May 11, 1855 (ibid.) ; Hunter, Acting Sec. of State, to Mr. Peck, Oct. 4, 1865 (ibid., p. 678). But this does not mean that the consulate can be invaded at will on the suspicion that it is being used as an asylum. Hay, Sec. of State, to Mr. Powell, April 25-Nov. 27, 1899 (Moore, Digest, V: 55-57).
11 The Italian Government in denouncing the consular convention on September 14, 1877, referred to the provision under consideration as follows:
“It is not necessary for me to use words to explain to you how such a state of things is in little harmony with the modem principles of international law, which principles have to take into consideration the progress of civilization and of the greatly extended guarantees sanctioned by modern laws for the protection of individual liberty and of the inviolability of domicile, and have then to leave open the way for the common law, reserving the privilege of exemption only to dwellings of diplomatic agents, the true representatives of foreign sovereignty.
“On the other hand, once that the principle is admitted to consular officers being liable, to summons before the tribunals of the kingdom, to there answer for responsibilities contracted by them, it does not seem logical that to them should be granted, by means of this exemption, the way of evading for themselves and their effects the execution of the sentence.” Foreign Relations, 1878, 462-463.
A new consular convention entered into in the following year omitted the objectionable clause.
12 Applying the provisions of this treaty, Secretary of State Frelinghuysen held in 1884 that where the right to display the national flag had been secured by treaty, it could not be interfered with by municipal ordinance. Moore>, Digest, V: 58; For. Rel. 1884, pp. 18, 19.
13 Action of the German Government which would result in the virtual imprisonment of an American consul within the consulate, while not within the letter of this article, will be protested against as violating its meaning.Hay, Sec. of State, to Mr.White, March 6, 1899. Moore, Digest, V : 82.
14 Evarts, Sec. of State, to Mr.Foster, Feb. 20, 1880. Moore, Digest, V: 34.
15 Moore, Digest, V: 51. The article in question was Art. XXXV of the treaty of amity, commerce, and consular privileges (1870) with Salvador.
16 Moore, Digest, V: 54. The action of the local authorities in Italy in entering, to levy upon property therein, a consular dwelling protected by a clause identical with the one quoted, caused a protest by the United States. Fish, See. of State, to Mr. Marsh, Dec. 6, 1876. Moore, Digest, V : 37.
17 Netherlands, Consular convention of 1855, Art. XIII; Spain, Treaty of friendship and: general relations, 1902, Art. XV.
18 The expression is “ all personal service.”
19 Algiers, treaties of peace and amity,1795, 1815, and 1816, Art. XXI: “ The consul of the United States of America shall not be required to pay any customs or duties whatever on anything he imports from a foreign country for the use of his house and family.” Tunis, treaty of amity, commerce and navigation, 1797, Art. XVII: “He may import for his own use all his provisions and furniture without paying any duty; and if he shall import merchandise (which it shall be lawful for him to do), he shall pay duty for it”.Egypt, convention relating to commerce and customs, 1884, Art. X : “ Articles and personal effects belonging to consuls general and consuls not engaged in other than consular business, not performing other duties, not engaged in commercial or manufacturing business, and not owning or controlling reai estate in Egypt, shall be exempt from any examination, both when imported and exported, and likewise from the payment of dues.”
20 This treaty makes the exemption from “ taxes, imposts, and contributions levied especially on them.”
21 This treaty places the consul on the same plane as a private citizen in similar circumstances with reference to taxes from which the consular officer is not exempt.
22 The word “ taxes” was omitted from this treaty.
23 This placed the consular officer on the same plane with “other private individuals” in the matter of taxation from which the consular officer is not exempt. An interpretation of the treaty by Secretary of State Sherman in 1898 is given in Moore, Digest, V: 88.
24 The increasing popularity of income taxes as sources of revenue has caused the question of exemption therefrom to arise a number of times in communications between consuls abroad and the Department of State. While the official income of foreign consuls in the United States is exempt by statute and treasury rulings, the United States has not entered into any treaties, save the one under consideration, which makes a special reference to taxation of the consular income.
25 A unique exception was contained in the Moroccan convention as to protection entered into in 1880, in which it was stated that consular officers were subject to no duties, imposts, or taxes except the tax on cultivated land and the gate-tax on beasts of burden.
26 The following extract from an opinion of the Fiscal of the Supreme Court of Chile on a claim by a British consul for exemption from the use of stamped paper and from other judicial duties under number 5of clause 4 of the Chile-Peruvian consular convention of 1870, invoked by virtue of the most-favored-nation clause of the treaty of 1854 between Great Britain and Chile, shows that the dissatisfaction with the usual phrases is more than local:
“Now, from what imposts is the consul of Peru exempt (that of England in his stead) by virtue of the clause which frees him from personal direct contributions, fiscal or municipal? From the quinta militar and capitacidn& Neither exists in Chile. From industrial and professional patents? Assuming that these are included in the classification of personal taxes, which is far from certain, he would owe them by virtue of the exception contained in the same number 5 of article 4 which establishes that the consul is liable for the taxes on his commercial or scientific profession or on his property in the country of his charge. From imposts, customs duties, consumption, and other local taxes (sisa, puertas)? But such tributes are not personal or direct, and for these reasons, as well as according to the principles and practices of international law, always fall on consular agents and even upon diplomatic ministers of the highest rank. From land taxes or from customs or import duties (contribución territorial i de la aduana o inlernaoional)? These do not fall within the limited definition of article 4. The one is not direct, both are not personal; and still supposing that they had contrary characters, the consul would have to satisfy the catastro as proprietor of the land and that of aduana as lacking a diplomatic character. Will he be exempt, finally, from the stamp tax or other duties of the administration of justice applied to every litigant and from which agents of the public ministry, charitable institutions and paupers are not exempted?
“. . . The tax of stamped paper is not personal, nor is it direct, nor is it extraordinary; far from belonging in the conditions specified in the consular pact with Peru, where the exemption is stipulated and classified, it presents the contrary characters of an indirect and casual tax, onerous only to those who demand or appear before justice.”Jurisdiceion Consular Dictamen del Fiscal de la Excelenttsima Corte Suprema don Ambrosio Montt,referente a prerogativas i exeneiones de los cdnsules extranjeros en Chile. Santiago, December 19, 1890. Contained in Venegas, Legislaci6n Consular de la Repiiblica de Chile.
27 Bayard, Sec. of State, to Mr.Lee, Nov. 6, 1885, interpreting Art. II of the consular convention with Austria-Hungary (1870): Moore, Digest, V: 90. See also ibid., p. 88, interpreting consular convention of 1878 with Italy.
28 Rives, Asst. Sec. of State, to Mr.Smith, Jan. 3, 1889, interpreting Art. Ill of the consular convention with the German Empire (1871). Moore, Digest, V: 90.
29 Hill, Acting Sec. of State, to Mr. White, April 30, 1901. Moore, Digest, V: 88.
30 By virtue of the most-favored-nation provision, Colombian consuls became entitled to the immunity granted by the French consular convention of 1853. U. S. v. Trumbull (1891), 48 Fed. 94.
31 The provision was invoked by the French ambassador in 1901. For. Rel. 1902, pp. 391-406.
32 In re Dillon (1854), Fed. Cas. 3,914.
33 Marcy, Sec. of State, to Mr. Mason, 1854-1855. Moore, Digest, V : 78-80. One of the French claims was that the duces tecum clause was an attack on the inviolability of the archives, as the papers in question, if in existence, were a part of the consular archives.
34 Dana's Wheaton, p. 325.
35 Fish, Sec. of State, to Mr. Bassett, October 8, 1872. Wharton, Digest, I: 777.
36 The exception here was extended to cases falling within clauses in State constitutions similar to that of the sixth amendment to the Federal constitution. It was not made reciprocal.
37 Treaty of friendship and general relations, 1902, Art. XVI. The statement is similar to that in the treaty with the Netherlands.
38 Same as Netherlands.
39 Marcy, Sec. of State, to Mr. Figaniere, March 27, 1855. Moore, Digest, V: 81. The same idea is brought out in the Consular Regulations (1896), p. 32.
40 In countries with which the United States have treaty stipulations providing forassistance from the local authorities, consular officers are instructed that it is undesirable to invoke such interposition, unless it is necessary to do so. . . . If a request for assistance is refused, the consular officer should claim all the rights conferred on him by treaty or convention, and communicate at once with the diplomatic representative in the country, if there be one, and with the Department of State. When such requests are made in accordance with long-established usage, he should, when they are refused, make suitable representations to the proper local authority, and likewise advise the legation and the Department.Printed Personal Instructions to Diplomatic Agents, August, 1885. Wharton, Digest, p. 778. An explanation of this right and an indication of its importance is given in Heyking, Manual for Russian Consular Officers, 2d ed., p. 17.
41 France, Consular convention of 1853, Art. IV.
42 Belgium, Extradition treaty of 1874, Art. VI.
43 In a few instances the privilege of communicating with the receiving government in the cases mentioned has been accorded to consular officers regardless of the presence of diplomatic agents. See, for instance, treaties of friendship, commerce and extradition with Orange Free State, 1871 (Art. X), and Switzerland, 1850 (Art. XIII).
44 A fourth instance mentioned once the consular convention with the German Empire, 1871, Art. VIII is that of appeal to the government under the circumstances set out above, in case of a violation of international law. Under such provisions there is no right on the part of the consul to request general information from the local authorities. For. Rel. 1903, pp. 444-446.
45 This clause did not exempt a consular officer from a civil suit for indebtedness. Adee, Second Asst. Sec. of State, to Messrs. Hensel, Bruckman, and Lorbacher, Oct. 29, 1897. Moore, Digest, V: 63.
46 Moore, Digest, V: 81.
47 This provision was applied in the case of the United States consul general at Montreal in 1863. Moore, Digest, V : 70.
48 This treaty omits mention of offences against the government.
49 Same as Portugal.
50 Same as Portugal.
51 This same idea was carried out in a treaty dealing with commercial relations between the two countries entered into in 1902 (Art. II).
52 Instructions by Mr. Hill, Sec. of State, to Mr. Hunter, Minister to Guatemala, in 1900, contain the following paragraph:
“The Department would suggest that it would be proper for you to investigate what conventional privileges Guatemala may have conceded in this respect to consuls of other countries. If there are such privileges, this government might reasonably expect, in the absence of a treaty, that they might be extended as an act of comity by Guatemala to our consular officers in that country.” For. Rel. 1900, p. 705.
It is submitted that this view is not sound, being neither supported by the practice of other states, nor followed by the United States in its treatment of foreign consuls in the United States.