THE CONSUL

Evening Post, Volume CVIII, Issue 81, 2 October 1924, Page 9

THE CONSUL

DUTIES AND ATTRIBUTES

SOME HISTORICAL REFERENCES

(By Humberto Bidone, Doctor of Laws, Buenos Aires and-Rome.) (Written for "The Post.")

Consular duties in the countries of Eastern civilisation, have a characteristic aspect; one might almost say a-par-ticular and specific form..-. In fact, the Consul is not, as in Occident, a commercial agent and an official of.a'dihlnistrative character. The Consular figure (simultaneously both judge and political and administrative agent) shows us a remarkable combination of diverse powers. This accumulation of attributes in one Consul is due to the fact that in the Orient the consul has to impersonate, before, his own fellowcitizens, the "authority of the State under, .which they remain subjected, although outside their national territory. As it is ;easy. to understand, the le^al condition, of the foreigh'er is sufficiently characterised in the Orient by the fact that he. is still subjected to the, law and authority of pis original nationality.: As can be seen/it is diametrically opposed to .what happens in Western lands, where Grozio's formula of "un subditus ternporaneus" is applied. .' This'special juridical condition in the Orient has its origin in a series of international stipulations, from which the complicated structure of the capitulations is built up. The. Consul is the typical organ of capitulatory law, and: we expose : here the essential elements which illustrate some - aspects of the manage•ment of'capitulations. Why has the foreigner been subjected to the law ajid authority of his original nationality? , .. ..■.';.. • There is no doubt that this circumstance limits the Ottoman state, which

is thereby' deprived of some of the nor-.-mar'attributes of its sovereignity; aa," ~--fbr example,- in making laws in penal ' 'and, police matters, which govern in- - differently everyone who is within the ; territorial- limits of the statute. This obvious v limitation of.. Ottoman sover- * \ eignty, which has been existing now for four centuries, is inexplicable to anyone; who only superficially looks at the political arena hi the Ottoman Empire; -because it was conceded when this '~ Empire was a'- formidable, military power; and >even to-day one must remember that the Sublime Port's governs 'more than 30 million subjects scattered over three-quarters of the; Globe. The Peace Treaty of Sevres (10th Augj list,- 1920), and the ones following it, have modified the extent and population of Turkey. It is worthy of note that the regimen of capitulations, as established with the Ottoman Empire, : has been the model which inspired in later treaties ,the exceptional privileges which foreigners enjoy in the Far East; in China, Persia, Siam, etc.; so that whereas a part of Europe, Eastern Africa, and almost all Asia (except Japan and the countries annexed or v protected by European Powers, or the League of Nations) are subjected to the special regimen of capitulations, the - nations of Christian Europe' alone enjoy -.all";their, sovereignty (within the limits of. their respective/ territories) towards all individuals without distinction. It will be-very interesting to establish * the social 'and historical conditions which have determined the first limita- . tion of Ottoman sovereignty, implied in the capitulatory regimen.

The starting point in the formation of Capitulatory Law is generally said to exist in the Treaty signed between Francois I. and the Sultan . Soliman 11. in February, 1535. The circumstances which induced the King of France to seek-alliahce with the Sultan are well known, as well "as all the considerations which arose out of an irremediable divergence of religious belief. While Carlos V. was menacing France in the West, he was also holding up the triumphal aUvance of the Turks in the East. Thus a mutuality of interests was bound to unite, the Christian King and the Mussulman Sovereign against a common danger. Francois, I. began negotiations hv1534 by sending to Constantinople an official mission. An educated nobleman, one M. de la Foret, was appointed ambassador, and concluded the Treaty.

In this first Capitulation of 1535 two very distinct divisions are included and superposed: a treaty of commerce and a treaty of establishment. Article 2 settles the reciprocity 02 the Custom.House duties and the interchange -of goods, that is to say, everything related to commerce. On the other hand, Article tguarantees the individual liberty of all French people settled in or travelling through every land belonging to the Ottoman Empire. Article 6 assures religious liberty; Article 3 accords the King of France the right of appointing and accrediting Consuls in every town of the -Ottoman Empire. This same Article 3 and Article 9 fix the competency of the .Consuls to judge Frenchmen in all civil .and criminal matters )p> in accordance with .French law; while the final clause of 3 accords to the French Consuls the right of seeking the aid of the Sultan's officers . for the execution of their sentences. ' ' •■ .

If the commercial treaty has gradually ,'evolved, the treaty of establishment, on f the other hand, has remained unchanged, not only between France and Turkey but also between the latter and various other foreign Powers. We find it invariably in the XVTI. Century in the .Dutch, English, Venetian, and Austrian .Capitulations; in the XVIII. Century in ./the Sapitulations which Turkey concluded with Switzerland, the Kingdom of the Two Sicilies, Prussia, Russia/ Denmark, and Spain. Finally, in more recent times the nations which havo arisen in the XIX." Century (U.S.A., Belgium, Greece, etc.) obtained the same benefits which were contained in the first French Capitulation of 1535. From this it is obvious that the Treaty of 1535 did not accord to the French any very exceptional privileges—there was even a clause in the first Treaty which stipulated that the Pope, the King of Scotland, and the King of England could obtain the same -advantages of the Treaty, simply by ratifying it within the delay of eight months. The truth, as a notable French writer 'has clearly said, is that the concessions allowed- to France generalised certain ■rules of law, and extended to all the provinces of the Ottoman Empire the application of principles and customs which, in the course of time, were adopted for the most part by the Mussulman lands, which had been recently conquered by the Turkish armies. -\ ■

These historical precedents of the first Capitulation are of two kinds: the older are of a religious order. After the death of the Prophet, the Arabs, under Amru's leadership, seized Palestine and Jerusalem. Caliph Omar granted liberty, property, judges, and laws to the inhabitants. A concession by Ihe conqueror allowed the Christians to maintain their Churches, and guaranteed them the free oxercise of their religion. (A somewhat eirailor state of affairs occurs still in the jinosfc advanced oouritries' oj jjhfl JKPf hj.j

This charter—a model of •'religious forbearance—was faithfully upheld until the Arabs were the undoubted masters of Palestine. This religious toleration and sympathy, with freedom of conscience, were not the least of that race, which, even at the end of the IX. Century had.reached a state of civilisation from which Europe was still far distant. When, however, the first Turks settled in Asia Minor, at the beginning of the X. Century, and did away .with the Caliphate, the charter, granted by Omar, was quickly forgotten. The Turks, but recently converted to Islam, brought into the manifestation of their new faith all .the violence and aggressive impulsiveness of a young and exuberant race. Religious toleration and a highly-developed •public spirit necessitate a degree of intellectual refinement, which could not be harmonised with the social conditions then uppermost in the Turkish people. It was at that time that the persecutions began against the Christians, and this was the ■ starting' .point of the "crusades," whose lengthy and. complicated course is recorded in that history, which will continue to record all events for the benefit of the coming generations."

The crusades had the important result of re-establishing, in a certain measure, relations between Christian and Mussulman authorities, f.s is shown by the Treaty signed after the fiasco of the last crusade, between Philippe 111., King of France, and Abu Abdallah Mohammed, Sultan of Tunis, in which convention an article guaranteed the ' security of all Christians in the Kingdom of Tunis. Of greater importance is the convention between Mohammed 11. and the chiefs of various religious denominations, when the Greek Empire came to an end and the Turks settled definitely in Europe. (To be concluded.)