Despite the fact that consular law is often regarded as an institution or sub-branch of diplomatic law, its emergence and development for a very long time was carried out without any connection with diplomacy. The need for consuls arose among states in connection with the expansion of international trade, especially by sea. The establishment of ever closer economic relations between the metropolises and dependent territories, as well as between the allied states of antiquity and the Middle Ages, led to the emergence of a large number of disputes and lawsuits involving foreign merchants. This, in turn, necessitated the protection of their interests by creating bodies of special jurisdiction. Such bodies (officials) patronized foreigners in the host country and were a kind of guarantors of freedom and development of entrepreneurship in the relevant era. Some echoes of the original functions of the consuls have survived in international law to this day.
The prototype of the first consuls and consular offices in ancient times (in ancient Greece and in ancient Rome) were the institutions of proxenia, patronage, and foreign praetors. Common to the functions of proxens, patrons and praetors was that they constantly monitored the trade of foreigners who arrived in the country and protected their legitimate interests.
The powers of the praetors, in addition, included the resolution of disputes between foreigners and their own citizens and between foreigners. Proper consuls were persons elected in the colonies and having jurisdiction over all cases and disputes involving a foreign element. Thus, in ancient times, the functions of consuls were very extensive: from protecting the personal rights of foreigners (for example, Greek proxenes provided them with freedom to perform religious rites) to adjudicating trade disputes involving foreign merchants. Common to the legal status of these officials was that they were appointed or elected by the host state, interested in creating on its territory a favorable regime for international trade.
Despite the fact that the status of ancient consuls has little in common with the legal status of modern consular institutions, there is a certain continuity between them. It is no coincidence that the preamble to the Vienna Convention on Consular Relations of 1963 states that consular relations have been established between peoples since ancient times.
In the Middle Ages, the judicial functions of the consuls became dominant: first, in the port cities of the Mediterranean, and later in numerous dependent territories, special consular courts were created, whose judges (consuls) had jurisdiction over all cases involving foreign merchants in the host state. Such consuls were appointed (elected) by foreign states themselves or by merchants, as a rule, from among local citizens. Thus, in the period of the XII-XVI centuries. there was a fundamental change in the legal status of consuls – they became the body of a foreign state. By the 16th century, almost all European states had a developed network of consular offices abroad.
The practice of capitulations, which became widespread at that time, is known – agreements between Christian and Muslim monarchies on the right of foreign consuls to administer justice to their compatriots abroad. Of course, the establishment of consular courts of that time should be considered as a certain element of the colonial, aggressive policy. However, the positive aspect of their activities was the promotion of international trade by protecting the rights and interests of their citizens in the host country.
Some jurisdictional powers of consuls, their subordination to the sending state, the possibility of appointing local citizens to this position (the institution of honorary consuls) are also characteristic of the current legal status of consuls, provided for by current international law.
Over time, the practice of exercising judicial functions on the territory of the state by foreign officials began to contradict the emerging concept of national sovereignty. Therefore, the institution of consuls as judicial bodies for the consideration of disputes involving foreigners in the 16th-17th centuries actually began to disappear. The emergence of the first permanent embassies, which claimed to maintain the entire spectrum of interstate relations, had a significant impact on this process. For some time, consular relations between states were not only not carried out in fact, but also legally denied. Known, for example, is an agreement between France and the Netherlands in 1739, in which the parties proclaimed the rejection of the practice of receiving foreign consuls.
Consular offices began to take on a more or less modern look in the 18th century, when it became clear that close trade and economic relations between states were not covered by the activities of permanent embassies. Practice has shown that embassies, which are mainly focused on protecting the public interests of the sending state, cannot fully protect the private legal interests of its citizens. Thus, the foreign policy functions of the state and its bodies began to become more complex and differentiated, which led to the emergence of various types of state bodies for external relations.
Until the 18th century, consular relations between states were regulated mainly by customary norms or domestic laws. The first consular convention was concluded in 1769 between France and Spain. Over the next century, the newly revived institution of consuls began to spread throughout the world, which was reflected in the growth in the number of bilateral agreements between states and in the appearance of the first legislative acts entirely devoted to the legal status of consuls. One of the first such documents was the Consular Charter of Russia, adopted in 1820.
During the 20th century, consular relations finally formed into an autonomous area of interstate cooperation. During the first half of the last century, there was a steady trend towards expanding the functions and powers of consular offices, which gradually turned into full-fledged representations of their countries in the host states. The recognition of the role and importance of consulates was the practice of creating consular departments at embassies, which is widespread today. Naturally, this process could not but be reflected in international law. In 1928, the Havana Convention on Consular Officers of 1928 was concluded – the first multilateral (regional) agreement regulating the status and functions of consulates.
At present, consular relations are an important area of international cooperation between states on a bilateral basis. There are tens of thousands of consular offices in the world that promote the development of trade, economic, cultural and scientific ties between states, as well as protecting the rights and interests of their compatriots abroad. The institute of consuls allows for bilateral cooperation even to those states between which there are no diplomatic relations. With the deepening of globalization processes, the importance of consular relations for the international legal order will increase.
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The emergence and development of consular relations
In the past, consular relations were not a major issue. However, with the rise of terrorism and international conflicts, consular relations have become a hot topic. The United States has been particularly active in this area because it is a large exporter of products.
The United States’ role in international diplomacy and its impact on foreign policy is often debated.