PROTECTION DUE TO CONSUL

3

$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.2 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. 9 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.

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. 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

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.5

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.

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.

CORRESPONDENCE

[$ 468 each individual case. It was accordingly announced as the general rule of the Department to place all emphasis upon the responsibility of the officer concerned, and within the foregoing limitations to permit him, at his discretion, to afford temporary refuge where such might be necessary to preserve innocent human life.1

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CORRESPONDENCE

a

§ 468. With Governmental Agencies of the Consul's State. A consular officer is believed to possess the right of free communication with his own government, and with its diplomatic or consular representatives in the State of his appointment.2 To that end he may avail himself of the post or telegraph. When so desired his communications may be in cipher.3

A State engaged in war may, however, not unreasonably restrict the use of a cipher by neutrals to messages passing between diplomatic missions and their respective governments. Pursuant to such regulations a cipher telegram from the American Minister at Peking addressed to the American Consul-General at Hong Kong was obstructed by the British censor at that place late in 1914. It does not appear that the United States deemed this action worthy of protest.5

Official mail bags or pouches of a consular officer are generally

1 Mr. Knox, Secy. of State, to the American Chargé d'Affaires in Mexico, Oct. 29, 1912, For. Rel. 1912, 925; Mr. Adee, Acting Secy. of State, to the American Vice-Consul at Foochow, Nov. 7, 1911, For. Rel. 1912, 174.

2 Mr. Blaine, Secy. of State, to Mr. Shannon, Minister to Central merica, April 6, 1892, invoking Art. XXXV of the convention with Salvador of Dec. 6, 1870, For. Rel. 1892, 34, Moore, Dig., V, 98. A consular officer doubtless possesses also the right of communication with the naval forces of his country in the waters of the State to which he is appointed.

See also Art. 15, declaration of the Institute of International Law, Sept. 26, 1896, Annuaire, XV, 307.

Coöperation with the Diplomatic Service. According to a circular instruction of May 22, 1907, an American diplomatic officer is deemed to possess general supervision over the consular service of the United States in the State of his residence. Consular officers therein are to report to him all political information, and all contentions which are, or may by their nature become, the subject of diplomatic action.

3 Mr. Olney, Secy. of State, to Mr. Taylor, Minister to Spain, telegram, Feb. 17, 1897, For. Rel. 1897, 501, Moore, Dig., V, 100.

4

Mr. W. H. Page, American Ambassador to Great Britain, to Secy. of State, telegram, Aug. 27, 1914, American White Book, European War, II, 72.

5 Same to Same, telegram, Dec. 29, 1914, id., II, 86; Acting Secy. of State, to Mr. Reinsch, American Minister to China, telegram, Jan. 2, 1915, id., II, 86.

1

deemed inviolable; likewise official communications addressed to such an officer from agencies of his own government or other sources. Such inviolability is not, however, conceded for the personal communications to or from a consul, in relation, for example, to his own commercial transactions in the country of his residence and outside of the scope of his official duties.2

In time of war it becomes highly desirable to establish uniform regulations for transmission of the correspondence of neutral consular as well as diplomatic officers in belligerent territory. To such an end the United States on November 25, 1914, directed that inquiry be made of the Austro-Hungarian Government (and mutatis mutandis, of that of other belligerent Powers), whether it would agree to the following regulations for American diplomatic and consular officers in Austria-Hungary :

First, all correspondence between American diplomatic and consular officers within Austrian territory to be inviolable if under seal of office; second, no correspondence of private individuals to be forwarded by diplomatic and consular officers under official cover or seal; third, official correspondence between American diplomatic officers residing in different countries is not to be opened or molested if under seal of office; fourth, official correspondence under seal of office between Department of State and American diplomatic and consular officers is not to be opened or molested; fifth, pouches under seal passing between American diplomatic missions by mail or courier not to be opened or molested; sixth, correspondence other than that described in foregoing sent by ordinary mail to be subject to usual censorship.3

The Austro-Hungarian Government promptly acquiesced, and in May, 1915, the Department of State announced that the

1 Case of mail of Mr. Bunce, British Consul at Charleston in 1861, Moore, Dig., V, 96, and documents there cited, in connection with which Mr. Seward, Secy. of State, regarded as indefensible the enclosure of private letters by the Consul in his official bag.

2 Mr. Uhl, Acting Secy. of State, to Mr. Terres, No. 113, Dip. Series, Oct. 23, 1895, MS. Inst. Haiti, III, 463, Moore, Dig., V, 99; also Mr. Root, Secy. of State, to Mr. Leishman, Minister to Turkey Feb. 24, 1906, For. Rel. 1906, II, 1416, in which it was said: "The department is inclined to take your view, that circumspection should be exercised in claiming immunity for postal matter not obviously official. The department sedulously guards against needless extension of the privilege of immunity to include matter for private purposes.

3 Mr. Bryan, Secy. of State, to Mr. Penfield, American Ambassador to Austria-Hungary, telegram, Nov. 25, 1914, American White Book, European War, II, 67.

INTERPOSITION WITH LOCAL AUTHORITIES [§ 469

arrangement was "apparently working out satisfactorily." 1 It is understood that the plan was acceptable also to the other belligerent governments.2

b

§ 469. Interposition with Local Authorities.

3

The right of a consular officer to interpose with the local authorities for the protection of his countrymen from unlawful acts in violation of a treaty or of principles of justice has been declared by the Department of State to be "so generally admitted as to form an accepted doctrine of international law." This right has received recognition in consular conventions of the United States.* Although the matter giving rise to interposition may ultimately become the theme of diplomatic negotiation, that possibility does not deprive a consul of the right, nor absolve him from the duty

1 Same to Same, May 20, 1915, id., II, 67.

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2 Id., enclosing telegram of Secy. of State, to Mr. Sharp, American Ambassador to France, April 23, 1915, referring to Department's circular of Dec. 18, 1914, and embracing the following rules established by the Department in respect to diplomatic and consular correspondence:

"1. Communications from private individuals or institutions abroad to private individuals or institutions in United States should not be sent in Department pouches.

"2. Personal letters from United States Diplomatic or Consular officers or employees of American missions or consulates abroad addressed to private individuals in United States may be sent in pouches but should be censored by heads of missions with a view to prevent transmission of statements which would otherwise be censored by Governments, and should be left unsealed with postage fully prepaid.

3. Official correspondence of diplomatic and consular officers to individuals outside of Department should be marked 'Official business', and should be left unsealed.

"4. Communications from nations at war to agents in the United States should not be transmitted through pouches.

"5. The Department reserves right to censor all mail received in the pouches." See, also, Mr. F. W. Seward, Acting Secy. of State, to Lord Lyons, British Minister, Feb. 6, 1862, Dip. Cor. 1862, 253, Moore, Dig., V, 97; Same to Same, Oct. 18, 1861, Dip. Cor. 1861, 174, Moore, Dig., V, 97. See, also, Special Instructions to American Diplomatic and Consular Officers, No. 486, Oct. 28, 1916; Instructions to American Diplomatic Officers, April 19,

1917.

3 Mr. Olney, Secy. of State, to Mr. Dupuy de Lôme, Sept. 26, 1895, For. Rel. 1895, II, 1209, Moore, Dig., V, 102; also Von Thororovich v. Franz Josef Beneficial Ass'n, 154 Fed. 911, 913.

Declared Mr. Wilbur J. Carr, of the Department of State in 1907: "It is the duty of a consul to endeavor upon all occasions to maintain and promote all the rightful interests of his countrymen; to protect them in all the privileges provided for by treaty or conceded by usage; and to aid them before the local authorities of the foreign country in all cases in which they may be injured or oppressed." Am. J., I, 891, 906.

See, also, circular instructions to American consular officers, July 12, 1909, respecting the assistance to be rendered American travelers.

4 See, for example, Art. VIII, consular convention with Germany, Dec. 11, 1871, Malloy's Treaties, I, 552; Art. IX, consular convention with Serbia, Oct. 14, 1881, id., II, 1620; Art. XXI, treaty with Spain, July 3, 1902, id., II, 1707; Art. IX, consular convention with Sweden, June 1, 1910, Charles' Treaties, 114.