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F. Diplomatic and consular law

a. 1961 VIENNA CONVENTION ON DIPLOMATIC RELATIONS

1) Concepts

The “head of the mission” – is the person charged by the sending State with the duty of acting in that capacity. (Article 1[a], 1961 Vienna Convention on Diplomatic Relations)

The “members of the mission” – are the head of the mission and the members of the staff of the mission. (Article 1[b], Ibid.)

The “members of the staff of the mission” – are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; (Article 1[c], Ibid.)

The “members of the diplomatic staff” – are the members of the staff of the mission having diplomatic rank; (Article 1[d], Ibid.)

A “diplomatic agent” – is the head of the mission or a member of the diplomatic staff of the mission; (Article 1[e], Ibid.)

The “members of the administrative and technical staff” – are the members of the staff of the mission employed in the administrative and technical service of the mission. (Article 1[f], Ibid.)

The “members of the service staff” – are the members of the staff of the mission in the domestic service of the mission. (Article 1[g], Ibid.)

The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. (Article 1[i], Ibid.)

2) Covenants

a) Mutual consent to establish diplomatic relations

The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent. (Article 2, Ibid.)

b) Function of a diplomatic mission

The functions of a diplomatic mission consist, inter alia, in:

1) Representing the sending State in the receiving State;

2) Protecting in the receiving State the interests of the sending State and of 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. (Article 3[1], Ibid.)

c) Agrément

1) The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. (Article 4[1], Ibid.)

2)The receiving State is not obliged to give reasons to the sending State for a refusal of agrément. (Article 4[2], Ibid.)

d) Persona non grata

1)The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. (Article 9[1], Ibid.)

e) Inviolability of premises

1) The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. (Article 22[1], Ibid.)

2) The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. (Article 22[2], Ibid.)

3) The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution. (Article 22[3], Ibid.)

f) Tax exemption

1) The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered. (Article 23[1], Ibid.)

2) The exemption from taxation referred to in this article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. (Article 23[2], Ibid.)

g) Archives and documents of the mission

The archives and documents of the mission shall be inviolable at any time and wherever they may be. (Article 24, Ibid.)

h) Inviolability of private residence

1) The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

2) His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability. (Article 30, Ibid.)

i) Immunity from criminal, civil and administrative jurisdiction

1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (Article 31[1], Ibid.)

2) A diplomatic agent is not obliged to give evidence as a witness. (Article 31[2], Ibid.)

3) No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. (Article 31[3], Ibid.)

4) The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. (Article 31[4], Ibid.)

j) Waiver of immunity

1) The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. (Article 32[1], Ibid.)

2) Waiver must always be express. (Article 32[2], Ibid.)

3) The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. (Article 32[3], Ibid.)

4) Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary. (Article 32[4], Ibid.)

b. 1963 VIENNA CONVENTION ON CONSULAR RELATIONS

1) Concepts

“Consular post” – means any consulate-general, consulate, vice-consulate or consular agency. (Article 1[a], 1964 Vienna Convention on Consular Relations)

“Consular district” – means the area assigned to a consular post for the exercise of consular functions; (Article 1[b], Ibid.)

“Head of consular post” – means the person charged with the duty of acting in that capacity; (Article 1[c], Ibid.)

“Consular officer” – means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; (Article 1[d], Ibid.)

“Consular employee” – means any person employed in the administrative or technical service of a consular post; (Article 1[e], Ibid.)

“Member of the service staff” – means any person employed in the domestic service of a consular post; (Article 1[f], Ibid.)

“Members of the consular post” – means consular officers, consular employees and members of the service staff; (Article 1[g], Ibid.)

“Members of the consular staff” – means consular officers, other than the head of a consular post, consular employees and members of the service staff; (Article 1[h], Ibid.)

“Member of the private staff” – means a person who is employed exclusively in the private service of a member of the consular post; (Article 1[i], Ibid.)

“Consular premises” – means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post; (Article 1[j], Ibid.)

“Consular archives” – includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safe keeping. (Article 1[k], Ibid.)

1) Career consular officers

a) Establishment of consular relations

1)The establishment of consular relations between States takes place by mutual consent. (Article 2[1], Ibid.)

2) The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations.

3)The severance of diplomatic relations shall not ipso facto involve the severance of consular relations. (Article 2[2], Ibid.)

b) Exercise of consular functions

Consular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention. (Article 3, Ibid.)

c) Establishment of a consular post

1) A consular post may be established in the territory of the receiving State only with that State’s consent. (Article 4[1], Ibid.)

2)The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State. (Article 4[2], Ibid.)

3) Subsequent changes in the seat of the consular post, its classification or the consular district may be made by the sending State only with the consent of the receiving State. (Article 4[3], Ibid.)

4) The consent of the receiving State shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality other than that in which it is itself established. (Article 4[4], Ibid.)

5) The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof. (Article 4[5], Ibid.)

d) Consular functions

Consular functions consist in:

1) Protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;

2) Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;

3) Ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;

4) Issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;

5) Helping and assisting nationals, both individuals and bodies corporate, of the sending State;

6) Acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;

7) Safeguarding the interests of nationals, both individuals and bodies corporate, of the sending States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;

8) Safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;

9) Subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume

the defence of their rights and interests;

10) Transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

11) Exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;

12) Extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State;

13) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State. (Article 5, Ibid.)

d) The exequatur

1) The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization. (Article 12[1], Ibid.)

2) A State which refused to grant an exequatur is not obliged to give to the sending State reasons for such refusal. (Article 12[2], Ibid.)

3) Subject to the provisions of articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur.

e) Persons declared “non grata”

1) The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post. (Article 23[1], Ibid.)

2) If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff. (Article 23[2], Ibid.)

3) A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment. (Article 23[3], Ibid.)

4) In the cases mentioned in paragraphs 1 and 3 of this article, the receiving State is not obliged to give to the sending State reasons for its decision. (Article 23[24], Ibid.)

f) Facilities for the work of the consular post

The receiving State shall accord full facilities for the performance of the functions of the consular post. (Article 28, Ibid.)

g) Inviolability of the consular premises

1) Consular premises shall be inviolable to the extent provided in this article. (Article 31[1], Ibid.)

2) The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action. (Article 31[2], Ibid.)

3) Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. (Article 31[3], Ibid.)

4) The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State. (Article 31[4], Ibid.)

h) Exemption from taxation of consular premises

1) Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered. (Article 32[1], Ibid.)

2) The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf. (Article 32[2], Ibid.)

i) Inviolability of the consular archives and documents

The consular archives and documents shall be inviolable at all times and wherever they may be. (Article 33, Ibid.)

i) Personal inviolability of consular officers

1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. (Article 41[1], Ibid.)

2) Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect. (Article 41[2], Ibid.)

3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay. (Article 41[3], Ibid.)

j) Immunity from jurisdiction

1) Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. (Article 43[1], Ibid.)

2) The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:

(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. (Article 43[2], Ibid.)

2) Honorary consular officers

a) General provisions relating to facilities, privileges and immunities

1) Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of article 54 and paragraphs 2 and 3 of article 55 shall apply to consular posts headed by an honorary consular officer. In addition, the facilities, privileges and immunities of such consular posts shall be governed by articles 59, 60, 61 and 62. (Article 58[1], Ibid.)

2) Articles 42 and 43, paragraph 3 of article 44, articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by articles 63, 64, 65, 66 and 67. (Article 58[2], Ibid.)

3) Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. (Article 58[3], Ibid.)

4) The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned. (Article 58[4], Ibid.)

b) Protection of the consular premises

The receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. (Article 9, Ibid.)

c) Inviolability of consular archives and documents

The consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be, provided that they are kept separate from other papers and documents and, in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade. (Article 61], Ibid.)

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