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Summary of Consul

A government official sent abroad to a permanent station for the purpose of sustaining trade relations between his home country and the one to which he is accredited. A consul’s duties revolve around the day-to-day administration of trade-related activities, including validation of shipping documents, issuance of visas, and aiding citizens of his country who are in distress. In many cases, a consul serves as a source of information to foreign businessmen seeking commercial contracts in his country. As a rule, consuls do not normally become involved in the negotiation of trade or political relationships with the host country.

Consular officers are not diplomats, and usually do not enjoy diplomatic immunity; a rather less comprehensive form of consular immunity applies to consuls while stationed abroad, including exemption from local taxes in the country to which they are assigned.

In some cases, usually in smaller cities or outlying areas, a country may appoint as its consul a national of the host country. Persons so appointed usually have commercial or other ties to the country they represent. These individuals are commonly known as consular agents or honorary consuls. [1]

Introduction to Consul in the Roman Law

Consul, chief magistrate of the ancient Roman Republic. According to tradition the office was created with the expulsion of the kings from Rome about 510 bc and had become firmly established by about 300 bc. The consuls were always two in number, and they held office for only one year. At first they differed from kings in little else than their limited tenure of office and the power that their fellow citizens retained of calling them to account at the ends of their terms. They never assumed the golden crown, but their dress in almost every other respect was regal. They made peace and negotiated foreign alliances, had supreme command of the army, appointed the public treasurers, and exercised the judicial functions of royalty. In the calendar, years were named after the consuls.

Under the early Republic, consuls, who were at first called praetors (later a different magistracy) or judges (iudices), nominated their successors, who were then elected annually by an assembly of the people called the comitia curiata (in very early times) or by the comitia centuriata. Candidates for the consulship under the later Republic were usually those who had held lesser magistracies, such as the office of quaestor. For a considerable time consuls were chosen exclusively from the populus, or patricians, as opposed to the plebs, or common people. At length, however, two plebeian officers called tribuni plebis were appointed in a sort of democratic rivalry to the aristocratic consuls. This eventually led to the opening of the consulship to plebeians, and in 367 BC the famous Lex Licini ordained that one of the consuls should belong to that order.

The establishment of new magistracies, such as censor after 443 bc and aediles and praetors after 367, diminished the extent of consular jurisdiction. The responsibility of each of the two consuls was shared, insofar as possible, or rotated. The power (imperium) of each was supreme, provided it was not contravened by the other. In wartime the troops were divided between them, or the command alternated daily. As territory was acquired, portions or departments (provinciae) were allocated to each consul. From this custom developed the allocation of provinces to consuls after their term of office and finally, in the later Republic, the regular practice of dividing the provinces for administrative purposes among the ex-magistrates; ex-consuls became provincial governors called proconsuls.

Under the empire, which nominally preserved the institutions of the Republic in altered forms, the consulship was preserved. Consuls were elected by the Senate after ad 14, and the office remained the highest to which a private citizen could aspire, although with decreasing and eventually only nominal authority. The last civilian consul was chosen in AD 541. See also Aediles; Comitia; Praetor; Quaestor; Ancient Rome: Political Institutions of the Republic.” [2]

Power of a consul to take evidence of his own Nationals in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Articles 15, 27(b), 28(g), 32, 33(1)

It is well to emphasize again that the entirety of Chapter II is subject to optional clauses and the right of reservation. The policy differences existing between those States which apply a stringent doctrine of ‘judicial sovereignty’ and those States which apply it to a limited extent, or not at all, were so extensive as to prevent the drafting of any rules which could be of universal application.

An effort was made to set minimum standards which might hopefully be agreed to by all signatories, but even these had to be made subject to a right of reservation. It should also be emphasized that Chapter II grants no power to a consul to take evidence, it merely gives him a privilege. The law of the consul’s State will determine whether he has the power to take evidence as part of his functions. It is conceivable that the domestic law of a certain State might not authorize its consuls to take evidence in the State where they will exercise their functions. In such a situation, nothing in Chapter II will grant the consul a power which his own Government denies him. All that Chapter II can provide is that, if his own Government gives him the power to take evidence, the State of execution will permit him to exercise this power, upon the terms and conditions set forth in Chapter II.

It must also be noted that there is no provision dealing with the question of costs and expenses when evidence is taken by a consul or commissioner. This follows because no functionary of the State of execution is used. The consul or commissioner will be designated by the tribunal where the action is pending in the State of origin and the payment of the costs and expenses will be determined by the law of that State. The State of execution will have no participation, except to the extent that it chooses to have an official representative present under article 19. There should be no cost for this.

There is one situation where costs and expenses may be a problem. Assume that the witness declines to appear and the consul or commissioner seeks and receives compulsion assistance from the competent authority of the State of execution under article 18. Here there will be some expense involved. But article 18 provides that the compulsion may be granted subject to whatever terms and conditions the declaring State may impose. It can be expected that one of these conditions will be that the consul or commissioner pay the costs and expenses attendant upon the compulsion. For these reasons, the Convention contains no provision for costs and expenses in Chapter II.

Article 15(1) is a redraft of article 13 of the draft Convention. It states a conventional rule setting forth the power of the consul (‘diplomatic officer or consular agent’) to take the evidence of nationals of the State or States which he represents in the State of execution.

All the conditions of the rule are self-explanatory:

  • the consul may act only in the area in which he exercises his consular functions;
  • the consul may take evidence only without compulsion, i.e. of willing witnesses;
  • the consul may take the evidence only of nationals of a State or States which he represents in the State of execution;
  • the consul may take the evidence only with respect to proceedings which are pending in the courts of a State which he represents in the State of execution.

Article 15(1), and in fact all of Chapter II, deals only with the power to ‘take evidence’. The power to ‘perform some other judicial act’, given in article 1(1), is not given to consuls or commissioners. They will have no such power, except to the extent that the State of execution may grant such power to foreign consuls by an agreement under article 28(g), by a convention under article 32 or by internal law or practice under article 27(b).

This omission was deliberate. The taking of evidence by consuls is a well-recognized function. It appears in all the United Kingdom bilateral conventions and in many other bilateral conventions; it appears in many consular conventions and it was specifically authorized in article 15 of the 1954 Convention. On the other hand, the ‘other judicial acts’ tend to be matters which are part of the exclusively judicial function, and which should be performed by judges or by lawyers designated by the judges for the purpose.

Article 15(1) differs in an important aspect from article 1(2). The latter permits evidence to be taken under a Letter of Request in connection with a ‘contemplated’ action, i.e. ‘perpetuation of testimony’ and its Civil Law equivalents. But a consul, under article 15(1) can take evidence only with respect to ‘proceedings commenced’. Accordingly, the consul cannot be used for purposes of ‘perpetuation of testimony’ unless a provision to this effect can be found in agreements, or conventions or internal law or practice under articles 27(b), 28(g) or 32.

This is the conventional rule, but it is subject to a multitude of exceptions:

  • Article 15(2) permits a State, by declaration, to make the consul’s powers under article 15(1) permissive only. It may require the consul, in every case, to make an application to an authority designated by the declaring State for permission to take the evidence and article 19 provides that the permission may be made subject to any conditions which that authority may impose (see discussion of article 19 in this legal Encyclopedia).
  • Article 28(g) permits side agreements and article 32 permits side conventions which may set up such other or different rules, inter se, as the participating States may desire.
  • Article 33(1) permits a Contracting State, at the time of signature, ratification or accession to exclude, by reservation, all or any part of article 15.
  • Article 27(b) permits any State, by unilateral action through internal law or practice, to permit a consul to take evidence on conditions even less restrictive than are provided in article 15.

It is obvious that this collection of rules can create a morass of non-uniformity. However in order to create a structure into which all Members of the Conference may enter, without first changing their basic internal policy with respect to the power of consuls to take evidence, maximum flexibility was essential.

It is also obvious that it was the hope of Commission III that all States would, to the maximum extent, initially approach the minimum standard set forth in article 15(1); and that those States which could not do so initially would do so as soon as possible. It was the hope that no State would find it necessary to file a reservation to article 15(1) and that no State would find it necessary to file a declaration under article 15(2). [3]

Power of a consul to take evidence of his own nationals in other Nationals in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Articles 16, 27(b), 28(g), 32, 33(1)

In articles 13 and 14 of the draft Convention a distinction was drawn between the power of the consul to take evidence from his own nationals (for whom he has primary responsibilities and duties) and nationals of the State of execution (for whom the State of execution has primary responsibilities and duties).

This distinction led to a decision that the normal rule for the taking of evidence of nationals of the State of execution should be the permission of that State. Thereby that State could protect its nationals against possible abuse or pressure on the part of the foreign consul.

The third group, nationals of third States, falls into a different category. However, the formulation in article 14 of the draft Convention of a separate rule for this group was not approved. Article 16 states a single rule for all witnesses who do not fall under article 15 (see the extended discussion in the Report to the draft Convention, articles 13 and 14).

Article 16(1) contains the same three conditions stated as (a), (b) and (d) in the discussion of article 15(1). It further provides that the consul can take no testimony without the express permission of the designated authority of the State of execution. The permission may be granted generally, which will relieve the consul of the need to make separate applications in each case where he wishes to act. Or a separate application may be required for each case. The State of execution has full choice.

Further, article 19 gives complete freedom to the State of execution to fix the terms and conditions on which the consul may act; and article 16(1)(b) imposes on the consul the duty to comply with those terms and conditions as a condition precedent to his right to take the evidence.

Article 16(2) permits the State of execution to waive the permission clauses of article 16(1) by declaration to that effect. The permission could also be waived in a side agreement under article 28(g) or in a side convention under article 32 or by the internal law or practice of the State of execution under article 27(b).

Finally, any State may file a reservation against all of article 16 under article 33(1) and forbid absolutely the taking of the evidence of witnesses who are not nationals of the State or States which the consul represents. Articles 15 and 16 are therefore identical insofar as they are subject to the variant provisions of article 27(b), 28(g), 32 and 33(1). However, they differ fundamentally in their approach to the basic power of the consul. As to the nationals of the States which the consul represents, the rule of article 15 is power to take the evidence without advance permission, but with the right of the State of execution, by declaration, to require advance permission. As to all other nationals, the rule of article 16 is no power to take the evidence without advance permission, but with the right in the State of execution, by declaration, to waive the need for advance permission. [4]

Murder of a German Consul in Mexico: International Incident

In the book “International Incidents for Discussion in Conversation Classes”, in relation to this subject, L. Oppenheim wrote in 1909: In 1906 the German consul in Oaxaca, a town in the Mexican state of Puebla, was murdered while in the house of a Mexican named Conttolene, with whom he had had a dispute. Conttolene was arrested and prosecuted, but acquitted. However his nephew, a Mexican named Rangel, gave himself up for the crime and was condemned to two years’ imprisonment. As this punishment was considered too light the prosecuting counsel appealed, but withdrew his appeal by order of the public prosecutor; and the light sentence on Rangel was therefore allowed to stand. The German government considered the punishment meted out to Rangel insufficient, and made representations to the Mexican government complaining of the fact that the appeal was withdrawn by order of the public prosecutor. The Mexican government answered that it disapproved of the action of the public prosecutor, because it recognised its international duty sufficiently to protect the lives of foreigners in Mexico and to punish adequately any murder of a foreign resident. On its recommendation the governor of the state of Puebla deprived the public prosecutor concerned of his office.


Embracing mainstream international law, this section on consul explores the context, history and effect of the area of the law covered here.


Further Reading

  • The entry “consul” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press


Notes and References

  1. Main Author: William J. Miller
  2. Information about Consul in the Encarta Online Encyclopedia
  3. Ph.W. Amram, Explanatory Report on the 1970 Hague Evidence Convention (1970); Offprint from the Acts and Documents of the Eleventh Session (1968), tome IV, Taking of evidence abroad.
  4. Id.

Guide to Consul

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