“Consular jurisdiction. On the history of the judicial functions of consulates (12th-20th century). An introduction”

 

Introduction of the conference “Consular jurisdiction. On the history of the judicial functions of consulates (12th-20th century)” (Hamburg, November 2-4, 2023) by Arnaud Bartolomei (Université Côte d’Azur), Jörg Ulbert (Université de Bretagne-Sud) and Lars Regula (Universität Hamburg).

 

Le colloque s’est tenu dans la magnifique bibliothèque de la Warburg-Haus (Hambourg)

Arnaud Bartolomei opens the introductory discussion of the conference by thanking all the participants and the institutions that took part in its organization (the DFG/Deutsche Forschungsgemeinschaft, the Deutsch-Französische Hochschule/Université franco-allemande, the Akademie der Wissenschaften, the École française de Rome, the Universität Hamburg, the Université de Bretagne-Sud, the École Universitaire de Recherche Odyssée of the Université Côte d’Azur and the magnific Warburg Haus that hosts the symposium). Then he proposes to evoke two memories which are linked to the theme of the conference and allow us to insist, from the outset, on several essential questions raised by the history of contentious consular jurisdiction.               

The first memory is the movie Midnight Express which he first saw when he was younger and which he watched again recently in preparation for this conference. It is a film by Allan Parker, with a scenario of Oliver Stone, inspired by real facts (the arrest, in Turkia, of an American tourist for trafficking of narcotics). It is a very violent film, giving a very dark vision of the Turkish judicial system of the seventies. The newspaper Le Monde quoted from: « la succession à l’écran des scènes de torture et de viol, la cruauté des gardiens, la corruption des juges et la vénalité des avocats dressaient un tableau très noir du pays » (Le Monde, 21 juin 2007). The film was the subject of significant controversy, but we don’t want to come back here either on the veracity of the scenario (largely called into question by the very author of the facts described), nor on the posterity of the film, but rather on its anteriority: the barbaric vision given by Allan Parker and Oliver Stone of the Turkish prison system reflects, as post-colonial studies have widely demonstrated, a belief deeply rooted in the collective imagination that Westerners have about “Oriental” institutions, and more precisely about their judicial institutions. To take just one example of the antiquity of such prejudices, we will mention a memoir of the French merchants of Livorno from 1692, cited by Guillaume Calafat, who contested to their consul, the exercise of his jurisdictional power over them, remarking about Livorno port: “L’on répète qu’il ne s’agit pas du Levant & de la Barbarie ou, à cause du pays & de la domination bien différente de celle des Chrétiens, le caractère de Consul exige une certaine autorité de distinction nécessaire pour contenir les Français dans une retenue convenable parmi des barbares & des infidèles qui ne respirent qu’après les prétextes de faire des avanies sur le public pour les fautes des particuliers ; mais cela n’a nul rapport ni convenance avec les États chrétiens tels que ceux de l’Italie et, pour cette raison, la charge des Consuls du Levant est une véritable magistrature” (Mémoire, Livourne, 1692, cited in Calafat, “Les juridictions du consul”, 2017).              

So, if the conference must be dedicated primarily to the history of law and institutions, it’s also obvious that it will be necessary to pay great attention too to the cultural dimension of our research object and to the ideologic and social representations which have led to the construction of the legal orders that we will study.              

The second memory that Arnaud Bartolomei evokes is a news item known in France under the name of the “Florence Cassez” affair. This case is about of a young French woman who was arrested in Mexico in 2005 in the company of her boyfriend, who was charged with kidnapping. She was sentenced to 96 years in prison – as provided for by Mexican law for this incrimination. The French political authorities (then led by President Nicolas Sarkozy) and public opinion immediately sided with the young woman, denouncing the irregularities in the procedure which had led to her detention. French officials became vigorously involved in the case, requesting at first a retrial procedure and, then, demanding the transfer of the young convict to France. A “binational commission” (according to the terms used by the Mexican media) or “Franco-Mexican legal working group” (according to the terms used by the French media) – expressions that find an echo in the nature of the mixed courts which we will talk about during the conference -, was formed in 2011, to find, in three weeks, according to Nicolas Sarkozy:“une solution qui permette de préserver les intérêts de la justice mexicaine, de la justice française, les intérêts des victimes et le droit de chacun, même s’il a été condamné, à se voir respecter dans l’application des droits qui sont les siens” (reported by France Info, November 1, 2011)               

But this commission failed largely because of the partiality displayed by Nicolas Sarkozy in this case. This led the Mexican authorities to fear that Florence Cassez would be released once transferred to France. The result was a diplomatic crisis and a radicalization of public opinion on both sides of the Atlantic, with the French denouncing the inequity of Mexican justice, necessarily incompetent and corrupt, and the Mexicans denouncing, beyond the traditional “French arrogance”, the attacks by the French government on their national sovereignty and the independence of their judicial system. After multiple political, mediatic and legal twists and turns, Florence Cassez’s conviction was finally invalidated by the Mexican Supreme Court in 2013 and the young woman was released.              

The case presents two interests for our purposes:

– It allows us to underline the close links, to which we will return, existing between the questions of the exercise of justice and the idea of sovereignty. The exercise of justice is considered one of the most essential attributes of sovereignty. So, it is obvious that the very idea of a foreign jurisdiction, or even of simple foreign interference in a judicial decision, immediately raises diplomatic complications. After having underlined the cultural dimension of our research, this leads us to insist on its eminently political dimension.

– Furthermore, and as in the first case mentioned, the Florence Cassez affair illustrates the strength that old prejudices continue to hold within French public opinion. In this case, it was not the supposed barbarity of a non-European judicial system that was pointed out, but rather its inequity, its corruption, and its venality. What we see here, is that the French public opinion, was convinced that Florence Cassez should have been judged by French justice. This is what deplored two of the rare French voices who adopted a more nuanced position. That of former Minister Badinter who remarked “Plaçons-nous du côté cette fois-ci du Mexique et des autorités mexicaines. Voilà une jeune femme qui a été accusée, jugée, condamnée. À tort ou à raison, ce n’est pas à nous de le dire” (Le Figaro, February 15, 2011) and that of Chantal Brunel, a deputy of majority, who criticized the official French attitude by declaring: “ce n’est pas parce qu’on est Français à l’étranger qu’on est innocent” (reported by France Info, February 15, 2011).              

So, if Allan Parker’s film speaks to us about a very old belief that the past has transmitted to us about the Oriental world, the Florence Cassez affair evokes nostalgia for an imperial era, during which it was “normal”, “natural” or “obvious” that European citizens benefit from a form of personal judicial immunity, or at least extra-territoriality, when they were travelling outside Europe. But did this era really exist? Or is it just a fantasy, an a posteriori reconstruction of an invented past? This will probably be one of the main scientific issues of this conference which, beyond the general considerations that here mentioned, will have to document what the consular jurisdiction consisted in very concrete terms, in the different frameworks considered? Who could really benefit from it? And in what cases was it used?               

Before giving the floor to Jörg Ulbert and Lars Regula, Arnaud Bartolomei provides a first review of these questions in the historiography dedicated to the consular courts that have existed within the European continent and its immediately colonial extensions (the so called “Chrétienté” in the sources). From his own knowledge of Spanish and Mexican sources of 18th  and 19th  centuries, and the very rich bibliography about the Italian field, he can highlight three general ideas on the subject:

– The first is that “at all times and all places”, French nationals expatriated in the Hispanic world have always considered indigenous justice systems as inequitable, corrupt and, sometimes also, “barbaric” systems.

– As a result, they have constantly demanded the right to be subject to extraordinary jurisdictions, specially dedicated to them – as consular jurisdiction

– And finally, even if, with rare exceptions, they have never won on this last point, everywhere and always they have been able to count on the formal or informal support of their consular and diplomatic authorities in the litigations opposing them to local administration. And it was particularly the case when they were considered as useful subjects for the French mercantilists authorities.              

But the historiography on the existence of such consular jurisdictions within the European continent and its colonial and post-colonial extensions remains very embryonic – as evidenced by the few responses we obtained to our call for papers. And it is clearly an issue for the conference to discuss and validate these hypotheses. The situation of historical knowledge is, however, very different when we move away, in the time and in the space, from modern European, as proven by the historiographical research carried out by Jörg Ulbert and Lars Regula.               

Then Jörg Ulbert speaks to present historical knowledge relating to the medieval origins of contentious consular jurisdiction. He begins by emphasizing that whenever a group of merchants settles for a prolonged period in a foreign country, the topic of their legal status emerges. This question arises for the authorities of both the host country and the country of origin of the foreign community. Must this community of foreigners submit to the laws, and therefore to the judges, of the host country? In every case? Even when the dispute to be decided involves no natives and only foreigners? Should we grant privileges to these merchant communities? And should mechanisms be devised to guarantee their protection? Does that protection have to be provided by a representative chosen from among the foreign merchants or from among the indigenous population?              

Over the course of history, these questions have led to the emergence of different functions: the proxenos and the prostatei in Ancient Greece, or the praetor qui inter cives et peregrinos ius dicet, who later became praetor peregrinus in Rome. The Visigoth telonarius also seems to have had judicial powers, as did the wakīl al-tujjār in Fatimid Egypt, the hezmeh in southern India, the hunarman in the Punjab and fanzhang or fan-ch’iu [fanqiu], literally the “chief of foreigners”, appointed in the tenth century by the Chinese authorities.              

However different these functions may have been, they all met similar needs: leading or representing a community of foreigners and acting as their judge. The emergence of consuls in the twelfth and thirteenth centuries met the same needs.              

After centuries of mistrust of foreign merchants, the countries of the Near East finally allowed foreign merchants to set up colonies in the ports under their domination from the eleventh and twelfth centuries onwards. Byzantium and the Eastern Latin states, then the Fatimid caliphate and finally the Armenian kingdom of Cilicia and the kingdom of Cyprus granted these communities privileges to encourage them to set up. These included fiscal privileges (reduction or abolition of taxes and customs duties), territorial privileges (concession of buildings such as a fondouk, oven, church, or cemetery) and legal privileges (recognition of the consul’s authority, and even judicial power over his compatriots).              

The rights, prerogatives and recruitment procedures of medieval consuls varied according to the emissary state as much as the host state. However, beyond the differences, they all shared certain characteristics. They were all mandated to administer a community of compatriots living abroad. To this end, they had broad powers that made them the “administrative link between the home state and expatriate merchants”. Consuls had to defend the interests of their compatriots with the local authorities and ensure that the privileges granted by the host countries were respected. They were the leaders and judges of their community. As such, they exercised at least civil jurisdiction, provided of course that the dispute did not involve a native. If the privileges granted by the host countries and the mandates of their emissary state allowed, they also judged criminal matters. This was the case for all the European consuls in Ifriqiya. In Aleppo, Venice obtained similar rights under a treaty signed in 1229.              

The transition from the Middle Ages to early modernity brought major changes in the development of consulates. The Ottomans took control of the Black Sea and the eastern and southern shores of the Mediterranean. Since the twelfth century, this area had been the main focus for the deployment of medieval consulates. Henceforth, the Christian powers had only one interlocutor to negotiate the scope of their consuls’ activities. At the same time, the merchant cities of southern Europe lost their maritime, military, and commercial dominance to the great emerging powers: France, England, and the Netherlands. These three countries then managed to negotiate separate treaties with the Ottoman authorities: the “capitulations”. These set out the rights and prerogatives of the consuls. The extent of the jurisdictional powers that the Sultan was prepared to accept was also specified. Outside the Ottoman Empire, where consulates began to multiply from the 16th century onwards, they were generally defined in commercial or peace treaties.              

Thus, the consul’s jurisdictional powers are limited by two boundaries: the one defined by his emissary state, and the one imposed by host country. A power struggle ensued when the latter refused to accept the extent of the prerogatives granted to a consul. In particular, the capitulations conceded by the Ottomans were long interpreted as a sign that the balance of power was tipped in favor of the West. Scholars stressed that, as early as the 16th century, they were “unequal treaties extracted from Ottoman weakness, and therefore spoliations of sovereignty” (Jacques Lafon, “Les capitulations ottomanes : un droit para-colonial ?”, 2001). But at that time, the sultan was certainly not yet in a position of weakness. It was not until the eighteenth century that the balance of power shifted definitively to the side of the Western powers.              

Research on capitulations has advanced considerably in recent decades. The same is true of our understanding of the consular function, at least for the seventeenth, eighteenth and nineteenth centuries. The results for the Middle Ages and early modernity, are less prolific. Admittedly, since the pioneering work of Wilhelm Heyd, Adolf Schaube and Georges Salles, our knowledge of the workings of medieval consulates has improved considerably. However, works devoted exclusively to medieval consuls are still rare: Pierre Racine has sketched the beginnings of the Italian consulates, David Abulafia has studied the Pisan consulates, Maria Teresa Ferrer i Mallol, Daniel Duran i Duelt and Damien Coulon those of the Catalans and Mallorcans, and Yutaka Horii and Maria Pia Pedani those of Venice. The history of trade, mobility and migration, as well as international relations, are the areas in which we should be looking to complement these articles, with works by Benjamin Arbel, Eliyahu Ashtor, Michel Balard, Claude Cahen, Abner Cohen, Olivia Remie Constable, David Jacoby, Catherine Otten-Froux and Dominique Valérian.             

Despite the results obtained by these authors, the communities of historians and legal historians of the Middle Ages and early modernity have not yet been able to unite around the question of overseas consulates. No conference or specific research program has been devoted to it to date. Especially the question of the judicial functions of consuls has largely remained in the shadows. Although the legal situation of dhimmi and of Europeans living in Muslim countries has recently attracted attention (in particular the collective volume on the Legal Status of dhimmis in the Islamic West and Francisco Apellániz’s Breaching the Bronze Wall), the role played by consuls in this system remains to be explored, both in Muslim and Christian countries, in the Middle Ages and in early modern times. We hope that your papers will pave the way for an in-depth study of the judicial functions of consuls in these periods and explain how they prefigured and prepared the consular courts of later centuries.                

Finally, Lars Regula takes the floor to present a first state of the art of knowledge on the consular courts which existed in contemporary times in the Middle East and the Far East. He proposes to pick up the threat and focus attention on the “long” 19th century. The starting point is, of course, the Levant and Jörg Ulbert has just elaborated the framework consuls exercised their jurisdiction. In fact, little changed up to the 1830s, except that the circle of nations gaining a capitulation grew and with it the corpus of treaty law with the Ottoman Empire. From the 1830s on, however, consular jurisdiction experienced a major boost. Most-favoured nation’s clauses and fixed tariffs oiled the potential for exports. The industrial motor looked for new sales markets. After the end of the Mediterranean piracy by the French invasion of Algeria, the Levant trade attracted more states. Even small players on the field of international diplomacy like Hamburg entered the club. Moreover, Great Britain, France and the United States opened the Chinese and Japanese markets by force and introduced consular jurisdiction in the new “treaty ports”. A mixture of Western pressure and demand for technological advancement led to profound changes in the affected societies. The Ottoman tanzimat, the Japanese Meiji period and the Chinese 100-day reforms caused tremendous changes in social, economic, and legal life.                

But also, domestic law experienced major reforms. The legal fragmentation of European countries evolved into a uniform legal system. The introduction of the French codes is maybe the best-known example. But also, Great Britain and Germany underwent almost parallel major reforms of their legal systems in the 1870s. That, of course, had repercussions on consular jurisdiction where the ad hoc dispute settlement of earlier times developed into a formalised court system embedded in the domestic legal system. The law had difficulties keeping up with such rapid developments. International law as European law in core suddenly needed global solutions. International private law, that is the field of law which deals with the question of which law “governs” a legal relationship like a marriage, a contract and so on, had to find solutions for an ever-growing number of mixed cases.               

There is a file in the local State archive of Hamburg which pictures the problems and leading questions of consular jurisdiction. The file contains a letter from the Hanseatic consul in Egypt, Annibale di Rossetti, to the Hanseatic chargé d’affaires. Di Rossetti was an Italian whose family had lived in Egypt for generations. He didn’t speak German and presumably never was in Germany. He was a merchant and did not have any legal training whatsoever. But suddenly he had to decide that case and the letter shows the confusion of the consul. What would he have said if the chargé d’affaires had sent him the (correct) Hamburg statutes of 1410? Fortunately for him, the chargé d’affaires wasn’t a lawyer himself and he advised the poor consul in a rather pragmatic way to simply use the French code de commerce. At least, this code was understandable for the consul. So was consular jurisdiction functioning at all? Where was consular jurisdiction located in the legal system? What were its problems?              

For the early modern age, Victor Simon has provided a comprehensive study about the capitulations. Maurits van den Boogert on the other hand made some contributions to the Dutch jurisdiction in the Levant and particularly on the background of Ottoman law. Particularly for the 19th century, Johannes Berchtold published a book about British consular jurisdiction in the Ottoman Empire and Eileen Scully examined the American presence in Chinese treaty ports. Richard Chang on the other hand examined British consular jurisdiction on the background of the Japanese view on it. A newest publication is that of Gábor Teschmayer about the Hungarian consular jurisdiction. Furthermore, researchers looked at consular jurisdiction in terms of “legal pluralism”. That is the coexistence of different legal systems in one place. Jessica Marglin made significant contributions to this field. Jörg Ulbert, for his part, has already named the most important and they are valid mutatis mutandis for the “long” 19th century, but we can only add two more. The first one is that, for a contemporaneous lawyer, the quality of the verdicts and of the institution in general seems highly questionable. Chang and Berchtold suggested that it was probably better than it seemed but it remains an open question nevertheless. The second one is the impact consular jurisdiction had on the affected societies, especially in the light of their desire to bring it to an end.               

Lars Regula concludes by emphasizing the actual knowledge is not limited to details. Wherever we start, new things wait to be discovered and learned. So he is therefore very happy about the organization of this conference in Hamburg and is looking forward to all the announced presentations.  

 

Bibliography 

Marcella AGLIETTI, L’istituto consolare tra Sette e Ottocento: funzioni istituzionali, profilo giuridico e percorsi professionali nella Toscana granducale, Pise, 2012. 

Arnaud BARTOLOMEI, Guillaume CALAFAT, Mathieu GRENET et Jörg ULBERT (ed.), De l’utilité commerciale des consuls. L’institution consulaire et les marchands dans le monde méditerranéen (XVIIe-XXe siècle), Rome-Madrid, 2017. 

Johannes BERCHTOLD, Recht und Gerechtigkeit in der Konsulargerichtsbarkeit. Britische Exterritorialität im Osmanischen Reich 1825-1914, Munich, 2009. Maurits van den BOOGERT, The Capitulations and the Ottoman Legal System. Qadis, Consuls and Beraths in the 18th Century, Leyde-Boston, 2005. 

Guillaume CALAFAT, “Les juridictions du consul: une institution au service des marchands et du commerce? Introduction”, in Arnaud Bartolomei et al. (ed.), De l’utilité commerciale des consuls. L’institution consulaire et les marchands dans le monde méditerranéen (XVIIe-XXe siècle), Rome-Madrid, 2017. 

Richard CHANG, The justice of the Western consular courts in nineteenth-century Japan, Westport, 1984. Harald FUESS, Selbstregulierung einer Fremdenkolonie. Deutsche Konsulargerichtsbarkeit in Japan und Korea, 1861-1913, Zeitschrift für Japanisches Recht 18 (2013), 53-94. 

Jessica MARGLIN, Extraterritoriality meets Islamic Law. Legal Pluralism and Elements of Proof in the International Mixed Court of Morocco, 1871-1872, Quaderni Storici 3 (2016), 673-700. 

Eileen SCULLY, Bargaining with the state from afar. American citizenship in treaty port China, 1844-1942, New York, 2001. 

Victor SIMON, Les Échelles du Levant et de Barbarie. Droit du commerce international entre la France et l’Empire Ottoman (XVIe-XVIIIe siècle), Paris, 2021. 

Gábor TESCHMAYER, A magyar konzuli tevékenység és bíráskodás az Osztrák-Magyar Monarchia alatt.  Szabályozás, szervezet és gyakorlat, Budapest, 2019. 

For more titles see also “Bibliographie” in Jörg Ulbert et Gérad Le Bouëdec (ed.), La fonction consulaire à l’époque moderne. L’affirmation d’une institution économique et politique (1500-1700), Rennes, 2006 and Jörg Ulbert, « Présentation »Cahiers de la Méditerranée [En ligne], 93 | 2016, mis en ligne le 15 juin 2017, consulté le 08 janvier 2024. URL : http://journals.openedition.org/cdlm/8496 ; DOI : https://doi.org/10.4000/cdlm.8496.


OpenEdition vous propose de citer ce billet de la manière suivante :
abartolomei (8 janvier 2024). “Consular jurisdiction. On the history of the judicial functions of consulates (12th-20th century). An introduction”. Consoli. Consulté le 19 juillet 2024 à l’adresse https://doi.org/10.58079/vk1e


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