Chapter 8

that, in matters belonging to his province, he has the right to request information directly from the Consul and to give him instructions;

and that the Consul on his part is bound not only to execute implicitly what he is thus requested to do, but also, in such matters dealt with by him as, owing to their nature and other circumstances, may be supposed to affect the relation to a Foreign Power, to send of his own accord a report of the origination of the matter as well as of its further development.

Besides it should be instituted:

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that, in case a Consul should act in such a way as may have a disturbing effect upon the friendly relations between the United Kingdoms and the Foreign Power concerned, and also in case a Consul should neglect to execute the instructions of the Minister for Foreign affairs or the Legation, the Foreign Minister shall have the right to address a humble request to the King about the Consul's revocation, whereupon the Consular administration concerned should be informed of the resolution.

In order to regulate the relations between the Legation and the Consuls concerned, it should, apart from the general precept of their duty of mutual cooperation, be laid down in the law:

that the legation is bound to guard the Consul's rights and to lend him necessary assistance and, in matters belonging to the province of the legation, entitled to demand information from the Consul and to give him instructions;

that the Consul has the same duties towards the Legation as towards the Minister for Foreign affairs;

and that, if the Consul, by participating in political demonstrations or in another way, should openly disregard the consideration he is bound to have for the authorities of the country he is employed in, or if an action affecting his civil repute should he brought against him, the legation has the right to suspend him from his office until further notice.

6.

Extract from the answer given by His Excellency Hagerup to the preceeding draft, on November 26, 1904.

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2. No approval on the part of Norway can be expected for an arrangement that would give Swedish authorities the possibility of interfering with measures taken by a Norwegian authority. Also in this respect we merely adhere to the Communiqué and the Protocols of December that, as a basis of agreement, give prominence to the establishment of a separate Consular service for Sweden and for Norway, in which case »the Consuls of each Kingdom shall be subordinate to the authority of their own country which the latter shall have to determine.» This arrangement does not however preclude, as is also presupposed in the Norwegian draft, a certain possibility for the Foreign Minister to address direct requests to the consuls.

[-- -- --]

With particular regard to the demand expressed in the »outlines» that the Swedish Minister for Foreign affairs shall have the right--this is the, intention according to your Excellency's verbal declaration--to discharge in ministerial--consequently in Swedish--Cabinet Council a consul appointed in Norwegian Council, I ventured to point out 1) that this demand was entirely contrary to the Norwegian Constitution, 2) that an arrangement by which a Swedish authority of state might nullify a resolution adopted by a Norwegian authority of state would, according to the general principles of political and international law, impress upon Norway the stamp of a dependency, and 3) that it would therefore from a national point of view signify an enormous retrograde step as compared with the present arrangement of the Consular service.

[-- -- --]

7.

Extracts from the draft of laws of the same wording made by the Swedish Government in December 1904.

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§ 8.

If in a matter being dealt with by the Consular administration, the Minister for Foreign affairs has informed that he has taken such a measure as is alluded to in § 9, it is for the Consular administration to observe that, from its side, no such instructions are given to the consul concerned as are conflicting with any reorder relating to this matter given by the Minister for Foreign affairs and known to the Consular administration.

§ 9.

The Minister for Foreign affairs has, in a matter belonging to his province, to request immediate information from the Consul of the country concerned and also give him instructions about what he has to observe in such a matter; and a consul is absolutely bound to fullfill what is thus requested of him.

[-- -- --]

§ 11.

If the Minister for Foreign Affairs should learn that a Consular employé has not acted with good and worthy behaviour towards the authorities of the country where he is employed, or that he has participated in political demonstrations, or secretely, or openly encouraged or supported attacks on the existing Government, or else behaves in a way that may have a disturbing effect upon the good relations between the United Kingdoms and the Foreign Power concerned, then the minister has humbly to give notice of it to the King in Joint or in Ministerial Cabinet Council whereupon the matter is submitted to the King's consideration in the Cabinet Council of the country concerned.

[-- -- --]

§ 16.

If a legation should find a Consul guilty of a proceeding or a neglect alluded to in § 11, or if a Consul should be prosecuted for a crime affecting his civil repute, the legation, if finding it justified by circumstances, has to suspend the Consul from his office; and the matter should immedately be reported both to the Minister for Foreign affairs and to the Consular administration concerned.

A Consul thus suspended from his office, must not again come into office until the King, after hearing the Minister for Foreign affairs, has resolved upon it.

[-- -- --]

8.

Extracts from notes made, in consequence of the Swedish Government's draft of laws of the same wording by the Norwegian Cabinet Council, on January 11, 1905.

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To § 8. It is stated here that, when. in a matter being dealt with by the Consular administration, the Foreign Minister has given a Consul an order, it is for the Consular administration to observe that, from its side, no order conflicting with it is given to the Consul. It is difficult to understand what is meant by this paragraph, which is without a parallel in the present Consular statutes which do not direct any similar injunction to the Norwegian Consular department. To judge from reference to § 4, it does not seem to have been intended to give the Foreign Minister the right, in whatever be which matter being dealt with by the Consular administration, to stop the function of the latter and to assert his own authority instead; for this would be equivalent to instituting a relation of subordination that no Governmental department can submit to. The intention, then, can only be supposed to have been the following:--to try, in a consular matter, that has assumed a diplomatic aspect or that is simultaneously subject to a consular and a diplomatic treatment, to prevent the Consular administration from arbitrarily trespassing upon the province of the Foreign Minister. It stands to reason that this must not occur. But just because it stands to reason, the precept is superfluous. And what is of more importance: it is calculated to excite indignation. For, as it is obvious that an interference of the said kind must be a manifestation either of want of judgment or of disloyalty, it should be admitted that it is not very appropriate to give in a law, even in an indirect way, an expression to the thought that such qualities may prevail in the department concerned.

[-- -- --]

To § 11. [-- --] We should not however dwell upon these formal considerations which are of a merely secondary importance as compared with the far-reaching question: exclusively Norwegian or partly joint treatment of matters concerning the relations of Norwegian Consuls wheteher to the Foreign Minister, or to legations, or to Foreign authorities. In this connection we want to quote a passage from the report of the last Consular Committee made up of members from both countries where we read (Norwegian edition, p. 16): »Furthermore the Norwegian Consular administration has to leave it to the Foreign Minister (and the legations) to receive and reply to reclamations from Foreign Governments in the rare cases when subjects of contention arise by the actions of Norwegian Consuls. For this kind of correspondence, although dealing with the behaviour of Consuls, is owing to its nature diplomatic and not consular, and in as much as the matter has a political moment, the Foreign Minister should continue to keep the management of it; if the matter should become critical so as to grow into a real international conflict, he should report it to the King and procure the instructions necessary for its treatment. It stands to reason that he should not be debarred from influencing the course of the matter by informing the Norwegian Consular administration of his opinion as to the steps suitable to take with regard to the consul Concerned. But the very instructions to the latter or the disciplinary steps occasioned by the matter belong to the home consular management and should therefore be issued from the Norwegian department.» We concur in the opinion expressed here and the demand for an exclusively Norwegian treatment of questions concerning measures against Norwegian Consuls, appears still more justified in the cases when the matter is without a political moment, but the question regards the consul's relation to the Foreign Minister and the legations. In the last-mentioned respect we want again to refer to the statement of the Consular Committee (Norwegian edition, pp. 25-26), from which it is evident that they did not intend any joint treatment of matters relating to the Consul's disobedience of instructions or omission of duties; nor was this intention expressed during the negotiations that took place before the appearance of the Communiqué. Such a joint treatment that should precede the treatment from the Norwegian side, can only imply one of two things. Either it means to be a mere formality only calculated to delay matters perhaps requiring a speedy decision. Or else it means to be a real treatment, in which case, the Foreign Minister is intended to get influence on the settlement of the matter; but in this case it will signify an encroachment upon a department which, as it maintained, should be exclusively reserved for a Norwegian authority of State. Besides, it is self-evident that the Consular administration which may justly be supposed to be equally interested as the Foreign Minister in Norway not being compromised by her agents abroad, cannot forbear, when demands for a Consul's revocation are made on the part of diplomacy, to make the matter the object of a humble report.

[-- -- --]

To § 16. It is proposed here that the legation shall have the right to suspend a Consul guilty of such conduct as is spoken of in § 11, or prosecuted for a crime affecting his civic reputation. In this connection it should be remembered that, according to the present consular statute, the right to suspend a consular official does not lie with the legations, but with the Foreign Minister who, after having taken his measures, has to submit the matter to his Majesty. As to the right to suspend future Norwegian consular officials, this right, just as is done with regard to other state officials, shall according to the Constitution be exercised by the King (see the Constitution, § 22 and Aschehoug, Norges nuværende statsforfatning, ii, 474.) To transfer this right upon the legations would be incongruous with the Constitution. But not even with regard to consular functionaries who are not state officials, and who, during the present community in Consular service, are suspended, by the superior consul concerned, the right of suspension should be granted to the legations. For, the view is held, in accordance with the Consular Committee of the joint Kingdoms (see their report, Norwegian edition, pp. 24, 25) that between consular functionaries exclusively subject to Norwegian authonity and ambassadors exclusively subject to a Swedish minister, there is no possibility of establishing truly hierarchic relations: [-- -- --]

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After the considerations made above, it will be obvious that from a Norwegian point of view, these paragraphs appear as unacceptable, partly because they are incongruous with the Constitution of Norway or with the claims that in this country are put upon the contents and the forms of independecy, partly because, by this, the aim cannot be gained, that is intended by the whole negotiation, viz--to use the words of the Swedish negotiators--to establish a separate Consular service for Sweden and for Norway The Consuls of each Kingdom are subject to the home authority that each country decides for itself. (see the Communiqué of March 24, 1903).

On this account we recommend to omit from the Swedish draft the paragraphs 5, 6, 8, 11, 16, and 19. If they should be adhered to, further discussion about the Swedish draft will be futile.

9.

Extracts from the answer of the Swedish Cabinet Council to the memorandum made by the Norwegian Cabinet Council on January 11, 1905. Dated January 30, 1905.

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In the memorandum of the Norwegian Cabinet Council it is suggested that § 8 of the Swedish draft can be interpreted so as to be meant with regard to any matter being treated by the Consular administration, to give the Foreign Minister the right to stop the function of the latter and to assert his own authority instead. But as it is expressly indicated in the draft that the precept concerned is meant to be relevant only to a certain case specially mentioned, the opinion expressed does not seem to be justified. The precept has in view to regulate the relations between the Foreign Minister and the Consular administration, if, in a matter subject to consular treatment, the Foreign Minister, owing to the origination of diplomatic or political circumstances, has found reason to interfere by virtue of the right the laws are meant to bestow upon him. When thus a matter is simultaneously treated by different authorities, that each within its province has to treat it, the possibility of a conflict can hardly be denied, and still less so as the limits between the diplomatic and the consular province, as is generally acknowledged, are extremely uncertain, and as on both sides there is a natural tendency to extend the sphere of activity to departments formerly looked upon as exclusively belonging to the other party. It cannot therefore be incongruous with the laws now being under discussion to insert regulations for the case alluded to; on the contrary, it seems to be entirely in consistency with the basis of these laws and with the end of their institution that such regulations should be given. And it can hardly be denied that in this case that authority, is the Foreign Minister, who represents both countries, and in the present case it must be considered that attention to the interests most important to the joint countries should be preferred.

The precepts of §§ 11 and 16 contain the particular instructions meant to guarrantee that the Consuls shall not transgress the due limits of their province. Such a guarrantee cannot be dispensed with in the opinion of the Swedish Cabinet Council. For, cases may be imagined when in a foreign country a Consul behaves in a way threatening to disturb the good relations between the Government of the country and the United Kingdoms. To deprive the representatives of the United Kingdoms, as to their relations to Foreign Powers; i. e. the Foreign Minister and the legations, of all possibility of interfering against the Consul under such circumstances would, in the opinion of the Swedish Cabinet Council, hardly be compatible with the dignity of the United Kingdoms and might, with regard to the Foreign Power, involve a danger that should be escaped. The Norwegian and the Swedish draft alike contain regulations enjoining upon the Consul the duty of obedience towards the Foreign Minister and the legation. Also in case the Consul should violate his duty of obedience, the proper consideration and regard for the position held by the Foreign Minister and the legation seem to demand the possibility for them to interfere. For this interference, however, such a form has been proposed that the decision of the Consul's conduct, of his remaining in office or his dismissal would be made by the King in the Cabinet Council of that country represented by the Consul.

In support of his standpoint that »a joint treatment of matters concerning the Consul's relations whether to the Foreign Minister, or the legations or the Foreign Authorities» must not occur, the Norwegian Cabinet Council refers to the contents of the report of the Consular Committee and quotes especially a passage terminating in these words. »But the very instructions to the latter (i. e. the consul) or the disciplinary steps that may be occasioned by the matter, belong to the internal consular management and must therefore be issued by the Norwegian department.» To this the objection should be made that the opinion of the Consular committee is naturally not binding to the Swedish Cabinet Council, and that besides the Norwegian Cabinet Council has itself given up the same opinion in granting in its draft the Foreign Minister and the legations, the right to address »injunctions» that the Consul cannot forbear to pay heed to. This seems to imply a giving-up of the claim that, in the diplomatic part of a matter, Norwegian consuls shall be exclusively subject to Norwegian authorities.

[-- -- --]

From the detailed statement given it may be gathered that the Swedish Cabinet Council considers itself neither bound nor, out of regard to the welfare of the Union, justified to cancel outright, in the way demanded in the Norwegian memorandum, the abovementioned paragraphs of its draft. This does not however imply that from the Swedish side alterations and modifications of the precepts proposed cannot be granted, but what is important in them must however be adhered to; and concerning possible modifications, which can be exactly stated only by continued negotiations, there is at present no occasion for entering into particulars.

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10.

Record of Foreign Office affair, made before H. M. the King in the presence of H. R. H. the Crown Prince in Joint Cabinet Council at Stockholm Palace, on February 7, 1905.

His Excellency the Minister for Foreign Affairs gave, in all humility, an account of a humble report about terminating the negotiations for the establishment of a separate Consular service for Sweden and for Norway. In answer to the Foreign Minister's recommendation in Joint Swedish and Norwegian Cabinet Council of the 6th inst., this proposal had been made by Royal Norwegian Government on the same day, and a copy of it has been appended to this Protocol.

After having given an account of the contents of the report of the Norwegian Government, the Minister proceeded to say:

»The report of the Norwegian Government does not lead to any alteration of the recommendation[84:1] previously made by me. I venture however, to draw attention to the fact that, if it has been impossible to come to terms about the present question, the principal cause of it should be sought in the present arrangement for treating questions affecting the relations between the United Kingdoms and Foreign Powers. That this arrangement does not satisfy the positions of the two countries within the Union, has long been admitted.

In connection with what was expressed by all the Swedish and the Norwegian Cabinet Ministers who signed the above-mentioned document of March 24, 1903, I want therfore, to emphasize the desirability that the question as to arranging on other principles the management of Foreign affairs should again be taken up for negotiations between the two countries. I do not, however, find any reason now to make proposal as to taking steps to that end; I only refer to what I have previously advocated».

What the Minister had thus stated and recommended, was endorsed by the other members of the Swedish Cabinet Council.

The Norwegian part of the Cabinet Council referred to the Norwegian Government's humble report of the 6th inst. and proceeded to state that in its opinion a solution of the question at issue might, in the way expressed by the Swedish Cabinet ministers in the document of March 24, 1903, also have been found with the present arrangement for treating Foreign affairs. The Norwegian part of the Cabinet Council naturally agreed upon the opinion that this arrangement did not harmonize with the positions of the two countries within the Union. Whereas, however, the Minister for Foreign Affairs, on the plea of the document of March 24, 1903, had pointed out the desirability that the question as to arranging on other principles the management of Foreign affairs should again be taken up for negotiation between the two countries, the Norwegian part of the Cabinet Council could not forbear to hold forth, partly that the said document presupposed a solution of the question as an independent case, partly that, after the recent occurrences in the Consular question, the chances of further negotiations between the two countries, concerning the above-mentioned matters, were considerably clouded.

_His Majesty the King_ was hereupon pleased to dictate:

»In the present state of things I find Myself unable to take any other resolution than to assent to what has been recommended to Me by the Minister for Foreign Affairs. But I cannot forbear to express to My peoples My heart-felt desire that the two Kingdoms, united almost a century ago, shall never suffer any differences of opinion to endanger the Union itself. The latter is truly the safest security for the independence, the safety and the happiness of the Scandinavian Peninsula and her two peoples».

Upon this, the Norwegian part of the Cabinet Council stated that they, in all humility, had ventured to dissuade His Majesty from making this dictate.

In accordance with the recommendations made by the Swedish and the Norwegian Cabinet Council, _His Majesty the King_ was pleased to resolve that the commission entrusted to the Swedish and the Norwegian Cabinet Council in persuance of the King's resolution of December 21, 1903, shall not lead to any further steps, and also to decree that the Protocols of the Cabinet Council regarding this matter shall be published!

FOOTNOTES:

[84:1] In Joint Cabinet Council of February 6 the Foreign Minister had recommended that the task of negotiation, entrusted by the King to the Cabinet Councils of the two countries, should not lead to any further steps.

11.

The note of the Crown-Prince-Regent to the special committee of the Storthing. Dated February 28, 1905.

It is my wish to make the following declaration to the Committee. In these fatal days I feel it a necessity to open My heart to you and I do so now only in the capacity of Norway's Regent.

I fully understand the sentiments the Norwegian people, in these days, are animated with and that you as the loyal sons of the Fatherland in passing your resolutions will solely have in view the welfare of Norway. But what is Norway's welfare, nay, I say with the same emphasis, what is the welfare of both countries? I do not hesitate a moment to answer this question with the one word: Union.