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
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: — — — — —
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.