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DIPLOMATIC AGENTS OF NEUTRAL POWERS TO HOSTILE GOVERNMENT, SAFE CONDUCT TO,
THROUGH BELLIGERENT TERRITORY.
Ambassadors, and all other diplomatic agents of neutral
powers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military reasons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no international affront if the safe-conduct is declined. Such passes are usually given by the supreme authority of the State, and not by subordinate officers.-Lieber, Section 87.
Extension of rule.
To attack or to hinder the transportation of the following diplomats or diplomatic messengers is forbidden: 1. neutrals; 2. those accredited to neutral governments; 3. those sailing under a neutral flag between neutral ports or between a neutral and a belligerent port.
Institute, 1896, p. 130. He [Vattel] afterwards limits this right of passage to the ambassadors of sovereigns with whom the State through which the attempt to pass is, at the time, in the relations of peace and amity; and adduces, in support of this limitation of the right, the case of Marshal Belle-Isle, French ambassador at the Prussian court, in 1744, (France and Great Britain being then at war,) who, in attempting to pass through Hanover, was arrested and carried off a prisoner to England.
Dana's Wheaton, p. 322; Vattel, Droit des Gens, Liv. ir, ch. 7, secs. 84, 85. To preclude the ambassadors of the neutral from egress and ingress into enemy's territory is unfriendly.
Woolsey, p. 283. Neutral States may continue to maintain diplomatic intercourse with the belligerent Powers undisturbed, so far as military measures do not raise obstacles in the way of it. German War Book, p. 199.
CONSULS OF NEUTRAL POWERS IN TERRITORY UNDER MILITARY OCCUPATION.
Consuls, among American and European nations, are not
diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only: their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.--Lieber, Section 8.
Contra, to some extent.
Except as specified in Article 5 above (for acts performed in their official capacity and within the limits of their powers), consuls are amenable to the courts of the country in which they exercise their functions as regards both civil and criminal matters.
Nevertheless, every proceeding directed against a consul is suspended until his government, duly notified through the diplomatic channel, has been able to confer with the government of the receiving State on a fitting settlement of the incident.
This previous notice is not necessary:
2. In suits in rem, including suits for possession, whether relating to personal property or to real estate situated in the country;
3. When the consul himself has begun the litigation or accepted suit in the local courts.
In no case may consuls be arrested or detained, except for grave infractions of the law.
Institute, 1896, p. 125.
(3) war taxes.
if guilty of illegal or improper conduct
[they] may be punished by the laws of the State where they reside * In civil and criminal cases they are subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the State.
Dana's Wheaton, p. 324. But a consul does not come within this exception, although mere residence in the performance of his oflicial duties may not confer on him a foreign domicil, nevertheless, his consular character affords no protection to his mercantile adventures. “If,” says Duer, “he reside in a belligerent country, his ships and goods are liable to confiscation as those of an enemy, by the hostile belligerent." Halleck, pp. 708, 709; Duer on Insurance, vol. 1, pp. 513, 514.
They [consuls] have, during their term of office, according to the prevailing opinion, no special privileges beyond other foreigners, and are thus subject to the laws, both civil and criminal, of the country where they reside.
Woolsey, pp. 155, 156. As a general rule de la consul] is subjected to the laws of the country in which he lives to the same extent as persons who are of like status with himself in all points except that of holding the consular office.
It is agreed however that the official position of a consul commands some ill-defined amount of respect and protection; that he can not be arrested for political reasons; that he has the specific privileges of exemption from any personal tax and from liability to have soldiers quartered in his house,
Hall, pp. 334, 335. He sa merchant who is the consul for a neutral power] has (under the practice of England and the United States] the mercantile character of the country in which he is commercially domiciled, and he receives no protection or harm in his private affairs from his official position. If his property is liable to condemnation upon his mereantile character it is condemned; * The French practice is so far different that the property of a neutral subject, consul for a neutral state in a belligerent country, and carrying on trade in the latter, is held to be itself neutral.
Hall, p. 521. Consuls are not clothed with the diplomatic character, nor do they possess diplomatic immunities, except in the special cases that will be considered immediately. They are appointed by the sovereign of the country whose agents they are, and they receive from the foreign office of the state where they reside a document called an exequatur, which authorizes them to act as consuls in that state, and to hold official communication with the functionaries of its internal administration. They are under the local law and jurisdiction, and their private residences are not held to be exempt from the authority of the local functionaries.
Lawrence, pp. 321, 322. It was held by the Attorney General of the United States in 1899 that the condemnation by the United States of tobacco belonging to the Portuguese vice consul at Gibara, Cuba, and seized aboard a Spanish vessel was valid, notwithstanding the consular character of its owner.
22 Op. Atty. Gen., 327. The Commercial Domicil of a Consul who trades is in the place of his Trade, not in the country which he represents.
Holland, p. 11. The "Indian Chief," 3 C. Rob., 12.-In this case the cargo of the vessel, belonging to the American consul at Calcutta, was condemned, as he was held to have a commercial domicil in British territory.
The “Aina," Spinks Prize Cases, 8.—In this case, the court said: “Two questions have arisen with respect to the present claim: first,
as to the national character of the claimant, whether he is to be considered an enemy or a neutral;
“ Now, with reference to the first question, it is stated that he is a citizen of the Free Hanse Town of Lubeck, and Consul of his Majesty the King of the Netherlands at Helsingfors in Finland.' Upon this I can put but one construction, that he is resident in Finland, and carrying on his business there. I take it to be a point beyond controversy, that where a neutral, after the commencement of war, continues to reside in the enemy's country for the purposes of trade, he is considered as adhering to the enemy, and as disqualified for claiming as a neutral altogether."
The "Johanna Emilie," Spinks Prize Cases, 12.—The court said: “Now Mr. Rucker is a gentleman who, according to the evidence, is an Hanoverian subject, acting as the Hanoverian Consul, resident at Riga, a Russian port. He has been domiciled there for many years, and must therefore, in consequence of his domicile, in all that relates to his national character be taken to be a Russian, not an Hanoverian."
TREATIES BETWEEN NEUTRALS AND BELLIGERENTS, EFFECT OF WAR UPON.
Treaties between Belligerent States and a Third State.
The provisions of Articles 1 to 6 shall apply, in the relations between belligerent States, to treaties concluded between them and a third State, with the following reservations.
When the obligations which bind belligerent States in their relations with each other have the same object as their contracts with a third State, they shall be carried out in the interest of the latter. Thus collective treaties of guarantee shall remain in force in spite of war between two of the contracting States.
Collective agreements shall remain in force in the relations of each of the belligerent States with the third contracting State.
They may not be altered by a treaty of peace to the detriment of the third contracting State, without the participation or the consent of the latter.
Treaties concluded between a belligerent State and a third State, are not affected by the war.
In default of a formal clause to the contrary or of a provision leaving no doubt as to the intention of the parties, collective treaties relating to the law of war apply only if the belligerents are all contracting parties.
The provisions of Articles 1 to 6, above mentioned, are as follows:]
Art. 1. The opening and the carrying en of hostilities shall have no effect upon the existence of treaties, conventions and agreements. whatever be their title and subject, concluded between themselves by belligerent States. The same is true of the special obligations arising from the said treaties, conventions and agreements.
ART. 2. War, however, automatically terminates:
1. Agreements of international associations, treaties of protection, control, alliance, guarantee; treaties concerning subsidies, treaties establishing a right of security or a sphere of influence, and, generally. treaties of a political nature;
2. All treaties, the application or the interpretation of which shall have been the direct cause of the war, in consequence of the official acts of either of the governments before the opening of hostilities.
Art. 3. In applying the rule set forth in Article 2, account must be taken of the contents of the treaty. If, in the same act, occur clauses of different kinds, only those shall be considered annulled which come under the categories enumerated in Article 2. When, however, the treaty is of the character of an indivisible act, it terminates as a whole.
ART. 4. The treaties which remain in force and the carrying out of which is still, in spite of hostilities. practically possible, shall be observed as in the past. Belligerent States may not disregard them except to the degree and for the time required by the necessities of war.