Diplomatic and Consular Law

Diplomatic and Consular Law

Rules regulating the various aspect of diplomatic relations are the result of centuries of States practice. They constitute one of the earliest expressions of International Law. Whenever in history there have been independent States coexisting, special customs have developed on how the representatives of one State would be treated by other State.[1]

Traditionally, diplomatic relations have been conducted through ambassadors and their staffs. However, with the growth of trade and commercial transactions the office of consul was established.

Today, diplomats and consuls perform useful functions in the host states. They provide permanent presence in host States, pursue friendly relations between their States and the host States, and promote the various interests of their States in the host states.

Because of the important roles played by diplomats and consuls in international relations, it is necessary to treat this subject in the following two sections. Thus, section one is devoted to diplomatic mission, while section two is devoted to consular post.

Section 1: Diplomatic Mission [2]

Today, all States are represented in foreign States by diplomatic representatives. These diplomatic representations are of a permanent nature, although representatives are changeable.

The emergence of permanent as distinct from temporary diplomatic missions is dated back to the 17th Century. Rules related to rights, duties, privileges and immunities of diplomatic representatives were developed through customs in the 18th Century. In the early 19th Century, some common understandings on the rules were reached to at the Congress of Vienna of 1815. Developments of diplomatic rules have continued since that date. The new and the most extensive codification of the diplomatic law was achieved in 1961 by the conclusion of the Vienna Convention on Diplomatic Relations.[3] This Convention both codified existing rules and established others. It laid down rules related to classes of heads of a diplomatic mission, members of a mission, appointment and reception of the head of a mission, functions of a mission, the privileges and immunities of a mission and its members, the duties of the members of a mission, the duties of the receiving State, and the termination of the mission. It provided that matters not regulated by the Convention

continue to be governed by the rules of customary International Law. In the following, all these rules are dealt with.

A. Members of a Mission and Classification of Heads of a Mission [4]

Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic mission are the following:

(1) The head of the mission: The person who is charged by the sending State with the duty of acting in that capacity.

(2) Members of the diplomatic staff: The members who have diplomatic rank.

(3) Members of the administrative and technical staff: The members who are employed in the administrative and technical service of the mission.

(4) Members of service staff: The members who are employed in the domestic service of the mission.

The Convention divided Heads of diplomatic missions into three classes, namely:

(1) Ambassadors accredited to Heads of States.

(2) Special envoys and ministers accredited to Heads of States.

(3) Charges d’affaires accredited to Ministers for Foreign Affairs.

The class to which the head of a mission is assigned is a matter of agreement between the concerned States. Except as concerns precedence and etiquette, there is no differentiation between heads of a mission by reason of their class. However, heads of missions are to take precedence in their respective classes in the order of the date and time of taking up their functions.

B. Appointment of Heads and Diplomatic Members of the Missions [5]

Under the Convention, the appointment of a diplomatic agent (the head of the diplomatic mission or any member of the diplomatic staff) is subject to the agreement of the receiving States which has the right to refuse the appointment of any particular person without being obliged to give reasons. Because of the possibility of refusing the proposed person, it is the practice of States that the sending State usually notifies the receiving State of the name of

the person proposed to be appointed a diplomatic agent. When the receiving State gives its consent to the proposed person, then the sending State can proceed with the formal appointment of the diplomat and accredit him. Accreditation is done by furnishing the head of the mission or any member of the diplomatic staff with certain official papers known as “letter of credence” or credentials. The credentials of the head of a mission are presented to the Head of the receiving State in a ceremonial reception.

It is still, however, that the receiving state can at any time without obliged to explain its decision to notify the sending State that a particular diplomat is persona non grata; in such case, he should be recalled and his functions should be terminated.

C. Functions of the Diplomatic Mission [6]

The functions of a diplomatic mission as stated by the Convention consist among other things of:

(1) representing the sending State in the receiving State;

(2) protecting in the receiving State the interests of the sending state and its nationals, within the limits permitted by International Law;

(3) negotiating with the Government of the receiving State;

(4) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(5) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

In addition to these functions, the diplomatic mission can perform consular functions since nothing in the Convention prevents it from performing such functions.

D. Privileges and Immunities of a Diplomatic Agent [7]

The Convention grants the head of the diplomatic mission and members of the diplomatic staff of the mission as well as members of their families certain privileges and immunities from jurisdiction of the receiving State. It has been the practice that an ambassador to a certain State submits to the Ministry for Foreign Affairs of that State a list containing the names of members of the diplomatic mission with their positions, ranks and functions, and the names of persons who should be granted full or limited immunity.

The most important privileges and immunities granted to a diplomatic agent (the head of the mission and members of diplomatic staff) are:

(1) A complete immunity from the criminal jurisdiction of the receiving State;

(2) Immunity from the civil and administrative jurisdiction of the receiving state, except in the case of:

i. a real action related to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending State for the purpose of the mission.

ii. an action related to succession in which he is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

iii. an action related to any professional or commercial activity exercised by him in the receiving State outside his official functions.

(3) The inviolability of his person.

(4) Exemption from all dues and taxes, personal or real, national, regional or municipal in the receiving state, except indirect taxes, taxes and dues on private immovable, dues on inheritance, dues and taxes on private income, and charges levied for specific services rendered;

(5) Freedom of communication for official purposes;

(6) The right to move freely in the territory of the receiving State.

(7) The inviolability of his private residence.

(8) The inviolability of his papers, correspondence and property

The above privileges and immunities are enjoyed by a diplomatic agent from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs. He also enjoys such privileges and immunities when passes through or is in the territory of a third State on proceeding to take up or to return to his post, or when returning to his own country.

The immunity from jurisdiction granted to a diplomatic agent is immunity from the jurisdiction of the receiving State and not from liability. He is not immune from the

jurisdiction of the sending State. Moreover, he can be sued in the receiving state after a reasonable time elapses from the ending of his mission.

The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the sending State. The waiver must be express. However, such waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver is required. Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.

Members of the family of a diplomatic agent, if they are not nationals of the receiving State, likewise enjoy the same privileges and immunities. The same privileges and immunities, with certain exceptions, is enjoyed by members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, if they are not nationals or permanent residents of the receiving State. Members of the service staff who are not nationals or permanent residents of the receiving State enjoy immunity from jurisdiction only in respect of acts performed in the course of their official duties.

As regard the mission itself, the Convention makes its premises, achieves, documents, correspondence and diplomatic bag inviolable. Moreover, it grants the premises of the mission, their furniture and other property thereon, and the means of transport of the mission the immunity from search, requisition, attachment or execution. The premises of the mission are also exempt from all national, regional or municipal dues and taxes, other than such as represent payment for specific services rendered.

E. Termination of a Diplomatic Mission or of the Functions of a Diplomatic Agent [8]

A diplomatic mission or the functions of a diplomatic agent may be terminated permanently or temporary by various means and for various reasons, some are stated in the Convention and others are established by States practice. Among these means and reasons are the following:

(1) Breaking off the diplomatic relations between the sending and the receiving States because of a war or any other reason.

(2) A recall of the diplomatic agent by his sending State upon its initiative, or at the request of the receiving State.

(3) A notification by the sending State to the receiving State that the functions of the mission or the diplomatic agent has come to its end.

(4) A notification by the receiving State that the diplomatic agent is a persona non grata.

(5) Resignation of the diplomatic agent.

(6) Death of the diplomatic agent.

Section 2: Consular Post [9]

The institution of consular post is much older than that of diplomatic mission. The modern system of consular post is dated back to the 16th Century. The 1963 Vienna Convention on Consular Relations is the law governing consular representation.[10] A consular officer (any person, including the head of the consular post, entrusted with the capacity to exercise consular functions) like a diplomatic agent, represents his State in the receiving State. However, unlike a diplomatic agent, he is not concerned with political relations between the two States, but with a variety of administrative functions, such as issuing visas and passports, looking after the commercial interests of his State, and assisting the nationals of his State in distress.

In the following, the rules governing consular relations, namely members of the consular post, classification of the head of the post, the appointment of consular officers, functions of the consular post, privileges and immunities of consular officers, and the termination of post, are dealt with.

A. Members of the Consular Post and Classification of the Heads of the Post [11]

The members of the consular post as stated by the 1963 Vienna Convention are:

(1) The head of the post: The person charged by the sending State with the duty of acting in that capacity.

(2) Consular officers, other than the head of the consular post: Persons entrusted to exercise consular functions.

(3) Consular employees: Persons employed in the administrative and technical service of a consular post.

(4) Members of the service staff: Persons employed in the domestic service of the consular post.

(5) Members of the private staff: Persons employed exclusively on the private service of members of the consular post.

The heads of a consular post are divided into four classes, namely:

(1) Consuls-General.

(2) Consuls.

(3) Vice-Consuls.

(4) Consular agents.

The class to which a head of a consular post is assigned is a matter of agreement between the concerned states.

B. Appointment of a Head of the Consular Post [12]

The head of a consular post is appointed by the sending State and is admitted to exercise his functions by the receiving State. The sending State normally notify the appointment of a consul to the receiving State which has the right either to issue an “exequatur” or refuse to issue it without obliged to give reasons. The exequatur is a written official recognition and authorization of the consul. If the receiving State has no objection against the appointment, the exequatur is issued. Normally, a consul does not take his post until receiving an exequatur. If subsequently, an objection is raised, the receiving State may notify the appointing State that the consul is no longer acceptable. Then the appointing State must recall him, if it does not, the receiving State may withdraw the exequatur. Furthermore, a receiving State may notify the sending State that any member of the consular post is not acceptable.

C. Functions of a Consular Post [13]

Consular post is different from diplomatic mission in its functions. While diplomatic mission is concerned with political relations between the two States, the consular post exercises a variety of administrative functions. Furthermore, while there is only one diplomatic mission in a State, there can be more than one consulate in one State. The major functions of consular posts are:

(1) Protecting the interests of the sending State and its nationals in the receiving State.

(2) Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State.

(3) Promoting friendly relations between the sending State and the receiving State.

(4) Reporting to the sending State on the conditions and developments of the commercial, economic, cultural and scientific life of the receiving State, and giving such information to interested persons.

(5) Issuing passports and travel documents to nationals of the sending State, and giving visas to persons wishing to travel to that State.

(6) Helping and assisting nationals of the sending State, safeguarding their interests in certain cases, and representing or arranging for their representation before the courts and other authorities of the receiving State.

(7) Transmitting judicial and extra-judicial documents to the receiving State.

(8) Exercising a supervision and inspection powers over vessels and aircrafts having the nationality of the sending State, and over the crews of these vessels and aircrafts.

(9) Acting as notary and civil registrar, and performing certain functions of administrative nature.

A consular post can perform other functions entrusted to it by the sending State which are not prohibited by the laws and regulations of the receiving State, not objected by the receiving State, or referred to in the international agreements in force between the sending state and the receiving State.

D. Privileges and Immunities of Consular Officers [14]

Nowadays, many States combine its diplomatic and consular services together. Thus, a person who acts simultaneously as a diplomatic agent and a consular officer enjoys the diplomatic privileges and immunities under the 1961 Vienna Convention on Diplomatic Relations. If the consular functions are exercised by the consular post, then the consular officer enjoys the consular privileges and immunities under the 1963 Vienna Convention on the Consular Relations.

Under the 1963 Vienna Convention on the Consular Relations, consular posts, members of a consular post (consular officers and employees), members of their families and members of their private staff enjoy certain privileges and immunities. These privileges and immunities are less than what diplomatic mission and diplomatic agents are entitled to. The most important privileges and immunities are the following:

(1) A consular officer (the head of the consular post and any person entrusted to exercise consular functions) is immune from an arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. He is immune from imprisonment or any other restriction on his personal freedom save in execution of a final judicial decision. If criminal proceedings are instituted against him, he must appear before the competent authorities. The proceedings must be conducted in a manner that respects his official position and does not hamper the exercise of consular functions, and with the minimum delay.

(2) A consular officer and a consular employee (any person employed in the administrative or technical service of the consular post) are immune from the jurisdiction of the judicial or administrative authorities of the receiving State only in respect of acts performed in exercise of consular functions. However, they do not enjoy such immunity in respect of a civil action either:

i. Arising out of a contract concluded by them not as agents of the sending State; or

ii. Brought by third party for damages arising from an accident in the receiving State caused by vehicle, vessels or aircraft.

(3) A consular officer and a consular employee and members of their families forming part of their households are exempt from all dues and taxes, except on certain specified cases.

(4) A member of the consular post (the head of the post, any person entrusted to exercise consular functions, any person employed in administrative or technical service of the post and in the domestic service of the post) is under no obligation to give evidence concerning matters connected with the exercise of his functions or to produce official correspondence and documents related thereto. He is also entitled to decline to give evidence as expert witness with regard to the law of the sending state.

(5) A member of the consular post enjoys the freedom of communication for official purposes.

(6) A member of the consular post enjoys the right to move freely in the territory of the receiving State.

(7) The archives, documents, official correspondence and consular bag are inviolable at any time and whenever they may be.

(8) The premises of the consular post and the private residences of members of the consular post are inviolable. They are, also, exempt from all taxes and dues other than such as represent payment for specific services.

The above privileges and immunities are enjoyed by the member of the consular post from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties. The same privileges and immunities are enjoyed by members of the families of the members of the consular post.

The privileges and immunities of the consular post may be waived by the sending State. The waiver must be express and be communicated to the receiving State in writing. However, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is required. Immunity may also be waived by the member of the consular post himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.

E. Termination of a Consular Functions [15]

The consular functions may be terminated by various ways and reasons. Among these ways and reasons are the following:

(1) A recall of the member of the consular post by his appointing State upon its initiative, or at the request of the receiving State.

(2) A notification by the appointing State to the receiving State that the functions of the post or any of its members are terminated.

(3) The withdrawal of the exequatur by the receiving State.

(4) Resignation of the member of the consular post.

(5) Death of the member of the consular post.

(6) The breaking off relations between the sending and receiving States, such as in case of a war.