Consular jurisdiction
The term consular jurisdiction , even Konsularjurisdiktion or consular jurisdiction named, described the jurisdiction of the consular post of a country of origin in a host country for cases of which citizens of the country of origin were affected during the stay in the host country. In practice, it represented almost complete immunity for foreigners from the jurisdiction of those host countries in which their home country exercised consular jurisdiction. It was an exception to the principle known as the principle of territoriality that all persons are subject to the jurisdiction of the state on whose territory they are located. The principle of consular justice was most widespread in the 19th century and was gradually abolished by the middle of the 20th century.
Historical information
Consular jurisdiction as a contractually fixed principle goes back historically to the agreements known as the surrender of the Ottoman Empire , which were concluded between the Ottoman Empire and various European countries and later also the United States from the 16th century . It was expanded from most European states to their colonies and other dependent areas such as Egypt during British rule in the 19th century . In addition, it was also valid in the countries of the Middle East as well as in Far Eastern countries such as Japan , in which, for historical reasons, the principle of personality, which opposed the principle of territoriality, was the basis of national jurisdiction. The strongest form of consular jurisdiction developed in the treaty ports in Asia operated by the European colonial powers .
Since the consular jurisdiction represented a considerable encroachment on the sovereign rights of the host country on its own territory and was also perceived by the host countries as a form of outside determination, it was gradually dismantled from the end of the 19th century. The complete abolition took place beginning with the First World War in the first half of the 20th century. In Egypt, consular jurisdiction ended in parts as early as 1876 with the introduction of the mixed courts , but not completely until 1949, in Turkey in 1923, in Thailand in 1927 and in Persia in 1928. In China , the United States and European countries did not renounce until 1943 and in 1947 as a result of the Second World War . The last systems of consular jurisdiction to be abandoned were the renunciation of the United States in Morocco in 1956 and the abolition of the corresponding privileges of Great Britain in the Sultanate of Oman at the end of 1961 . The consular jurisdiction is therefore currently only of legal theoretical and historical interest.
Legal aspects
The consular jurisdiction was based either on bilateral international treaties between the country of origin and the host country or on customary tolerance by the host country. A further prerequisite was the authorization of the consular post concerned to carry out the case law, granted by their country of origin. As a rule, it comprised all civil , commercial and criminal law proceedings in which foreigners were involved in countries in which either their country of origin or another country acting as a protecting power exercised consular jurisdiction. As a rule, the basis was the national law of the country of origin, supplemented by specific regulations such as the German Reich Law on Consular Jurisdiction (KonsGG) in the versions of July 10, 1879 and April 7, 1900.
Depending on the procedure and legal situation, the decision-making power had either the consul of the country of origin as a single judge, a consulate court consisting of the consul and several assessors, or national courts in the country of origin. In disputes between foreigners from different states with consular jurisdiction in the same host country, the consul of the defendant was responsible according to the principle Actor sequitur forum rei (“The plaintiff must follow the defendant's place of jurisdiction”).
literature
- Eduard Brücklmeier : The historical development of the consular jurisdiction and its legal structure for Germany after the world war . Mäser, Leipzig 1927. (= also dissertation, University of Würzburg, 1927)
- Consular jurisdiction. In: Karl Strupp (Ed.), Hans-Jürgen Schlochauer (Ed.): Dictionary of international law. Second edition. Verlag Walter de Gruyter, Berlin 1961, ISBN 3-11-001031-3 ; Volume 2, pp. 278-281
- Consular jurisdiction. In: Heinrich Schnee (Ed.): German Colonial Lexicon. Quelle & Meyer, Leipzig 1920, Volume 2, pp. 357f.
