Diplomatic and Consular Law

Diplomatic and Consular Law

Commentary on the Vienna Conventions on Diplomatic and

Consular Relations

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First Part

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Foreward

• Since we can imagine relationship between at least two sovereign, autonomous and independent states, we can basically say that Diplomacy has started his long way. As you already know, International law is defined as the body of rules governing the relations between states.

• This module considers Diplomatic and Consular law as the practice and techniques of Diplomacy. So we can state that the «art» of Diplomacy is the technical profile of International law. In fact, all International law can be considered diplomatic law; and, on the contrary, all diplomatic law can be considered international law. For this reason, it is necessary to know, first of all, basically, International law and then approach to diplomatic law.

• As we will see later on, diplomatic law is a flexible law, as diplomacy is a flexible mission.

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«Let us never negotiate out of fear.

But let us never fear to negotiate»

John Kennedy, 1961

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Ambassadors in the 18th Century

The Historic Development of Diplomacy We start our topic with a few historic references, clarifying immediately that we like to date the beginning of (modern) diplomacy at the Romans time. It is not necessarily to go backward. Romans were rulers and administrators. They increased interstate relationships and ratify the Latin expression: «jus legationis», just to provide the rules of conduct of interstate relationship. We have: 1) jus legationis «active» and 2) jus legationis «passive». The first one is when the state can send our diplomats («legatus»); the second when the state receive on our territory an alien mission. At that time, the legatus was a state organ more similar at the to day’s «consul» that a real diplomat.

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The Beginnings of Classical Diplomacy

• The characteristics of classical diplomacy were :

• Basically bilateral diplomacy• Secrecy of negotiations • Protocol/Ceremonial [(precedence,

etiquette, etc.) what we call “comitas gentium”)]

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New Trends in Polarized World

• All over, diplomacy became more serious, spurred on by pressures of the Cold War, decolonization and the need to manage an increasingly complex international economy. Diplomacy better reflected society, as disarmament experts and trade negotiators replaced noblemen and traditional political officers. The business suit largely replaced braided uniforms and gleaming decorations. Also:

• Rapid communications leave little time for reflection • Public opinion and politics play a greater role • Greater role of international organizations (multilateral).

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«e-diplomacy» and «cyber diplomacy»

• Diplomats make extensive use of computers and the Internet in their daily work. The sheer amount of information available has made IT a vital tool in most diplomatic activities. But are diplomats - and other people interested in international affairs – using IT tools to their best and fullest advantage? This part of our course aims to explore the various opportunities offered by new technologies to improve diplomatic activities. The different components of the course will highlight some of the risks (and opportunities) of the tools and the information available.

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Bilateral and Multilateral Diplomacy

• Bilateral Diplomacy: Embassies, consular posts, and unconventional resident missions such as interests sections and representative offices. Why they are the major part of the modern counter-revolution in diplomatic practice.

• Multilateral Diplomacy: Ad hoc and standing conferences. Questions of procedure: venue, membership, agenda, transparency, and above all decision-making. The triumph of “consensus-decision making” and its various techniques.

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Holy See Diplomacy

• International subjectivity of Holy See• The ancient diplomacy.• THE SECRETARIAT OF STATE• Secretary of State• Section for international relations with states • the Section for Relations with states has the specific

duty of attending to matters which involve civil governments. It has responsibility for the Holy See’s diplomatic relations with states, including the establishment of Concordats or similar agreements; for the Holy See’s presence in international organizations (i.o.) and conferences.

http://www.vatican.va/index.htm

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Article 14 – Vienna 1961

• 1. “Heads of mission are divided into three classes, namely: • (a) that of ambassadors or nuncios accredited to Heads of

State, and other heads of mission of equivalent rank; • (b) that of envoys, ministers and internuncios accredited to

Heads of State; • (c) that of charges d'affaires accredited to Ministers for Foreign

Affairs.• 2. Except as concerns precedence and etiquette, there shall be no

differentiation between heads of mission by reason of their class.

Please see page 43

http://www.vatican.va/index.htm

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European Union Treaty

European Community Treaty

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European Union Diplomacy

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Second Part

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Sources of Diplomatic law

• 1. Customary law • 2. General legal principles • 3. Agreement (conventions, treaties etc.)

see next page

• 4. Acts• 5. Analogy• 6. Comitas gentium , international comity,

courtesy, precedence and etiquette, protocol (customary source) and diplomatic practice

• 7. Others sources: doctrine; jurisdiction

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Vienna Convention on the Law of TreatiesDone at Vienna, this twenty-third day of May, one thousand nine hundred and sixty-nine

(23rd of may 1969)

entered into force January 27, 1980

• Article 2 “Use of terms”

1. For the purposes of the present Convention:

• (a) "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

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Vienna Convention on the Law of Treaties

• Article 2 “Use of terms”

1. For the purposes of the present Convention:

• (c) "full powers" means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

• These persons are called “Plenipotentiaries” (bind the sending state)

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Vienna Convention on the Law of Treaties

• Article 85 “Authentic texts”

The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

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Subjects of Diplomatic law

• 1. The state as a subjects of diplomatic law.• 2. International organizations (i.o.) and

European Union.• 3. The individuals in the International and

Diplomatic Law.• 4. Individuals as organs of the state.

• 5. Diplomats as organs of international affairs.

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Sovereignty of the State

• In International law, states are superiorem non recognoscentes, which means that only states (and i.o.) can begin diplomatic relation with other subjects of international community.

• For this reason, article 2 of Vienna Convention (1961) states: «The establishment of diplomatic relations between states, and of permanent diplomatic missions, takes place by mutual consent». Same for Vienna Convention on Consular Relations 1963 (art. 2).

• There is no any ius legationis that entitle a state without consensus of the other state.

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PREAMBLE

• WE THE PEOPLES OF THE UNITED NATIONS DETERMINED• • to save succeeding generations from the scourge of war, which twice in our lifetime has brought

untold sorrow to mankind, and • to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in

the equal rights of men and women and of nations large and small, and • to establish conditions under which justice and respect for the obligations arising from treaties

and other sources of international law can be maintained, and • to promote social progress and better standards of life in larger freedom,

• AND FOR THESE ENDS• to practice tolerance and live together in peace with one another as good neighbours, and • to unite our strength to maintain international peace and security, and • to ensure, by the acceptance of principles and the institution of methods, that armed force shall

not be used, save in the common interest, and • to employ international machinery for the promotion of the economic and social advancement of

all peoples,

• HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS• Accordingly, our respective Governments, through representatives assembled in the city of San

Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

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CHAPTER I

PURPOSES AND PRINCIPLES

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Article 1

• The Purposes of the United Nations are:

• To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

• To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

• To be a centre for harmonizing the actions of nations in the attainment of these common ends.

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CHAPTER VIPACIFIC SETTLEMENT OF DISPUTES

• Article 33• The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

• The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

• • Article 34

• The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

•

• Article 35

• Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.

• A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

• The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

•

• Article 36

• The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.

• The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

• In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

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Third Part

Commentary on the Vienna Convention on Diplomatic Relations

April, the 18th of 1961

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• Entry into force: 24 April 1964, in accordance with article 51.

• Registration: 24 June 1964, No. 7310.• Status: Signatories: 60 ,Parties: 184.• Text: United Nations, Treaty Series,

vol. 500, p. 95.

http://www.treaty.un.org/LibertyIMS::/Cmd=Request;Request=TREATYBYLOC;Form=none;VF_Volume=UNVOL39;VF_File=00001467;Page=1;Type=page

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Vienna Convention 1961

• The Convention was adopted on 14 April 1961 by the United Nations Conference on Diplomatic Intercourse and Immunities held at the Neue Hofburg in Vienna, Austria, from 2 March to 14 April 1961. The Conference also adopted the Optional Protocol concerning the Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. The Convention and two Protocols were deposited with the Secretary-General of the United Nations. The Final Act, by unanimous decision of the Conference, was deposited in the archives of the Federal Ministry for Foreign Affairs of Austria.

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Vienna Convention on Diplomatic Relations&

VIENNA CONVENTION ON CONSULAR RELATIONS

• Two different agreements (1961, 1963)• Which means that diplomatic relations and

consular relations are independents, autonomous, although coordinated. Consequently, diplomatic law and consular law are autonomous, although coordinated as well.

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• Article 2 : “ESTABLISHMENT OF CONSULAR RELATIONS”

• “1. The establishment of consular relations between States takes place by mutual consent.

• 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 (breaking) of diplomatic relations shall not ipso facto involve the severance of consular relations”.

• NOTE: paragraphs 2 and 3 well explain the relation between two Conventions.

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• Article 3 : ”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”.

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Purposes in comparison

• Article 3 – Vienna 19611. “The functions of a diplomatic mission consist, inter alia, in: (a) representing the sending State in the receiving State; (b) protecting in the receiving State the interests of the sending State

and of its nationals, within the limits permitted by international law; (c) negotiating with the Government of the receiving State; (d) ascertaining (inquiring) by all lawful means conditions and

developments in the receiving State, and reporting thereon to the Government of the sending State;

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

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VIENNA CONVENTION ON CONSULAR RELATIONSPurposes in comparison

Article 5 ”CONSULAR FUNCTIONS”

• Consular functions consist in:

• (a) 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;

(b) furthering (favouring) 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;

(c) ascertaining (inquiring) 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; (…)

• see next page

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follow art. 5: “(d) 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;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) 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;

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

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

• (i) 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;

• (j) 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;

• (k) 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;

(l) extending assistance to vessels and aircraft mentioned in sub-paragraph (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 in so far as this may be authorized by the laws and regulations of the sending State; (…)

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The Diplomatic Career Path

in Italy (by The Minister for Foreign Affairs) • Second Secretary on trial (9 months) at the Diplomatic Institute and in the

ministerial offices (9 months) • Second Secretary (duration of appointment at that grade: 10 years and 6

months, including the 9 month trial period)• At the Ministry of Foreign Affairs (2 to 3 years) followed by the first

assignment abroad to two or three foreign offices (6 to 8 years) followed by a refresher course at the Diplomatic Institute (for at least 6 months)

• Second Counsellor (duration of appointment at that grade: at least four years)

• The first foreign posting cycle reaches an end, followed by:A return to the Ministry of Foreign Affairs (2 - 3 years)

• New foreign destination

• First Counsellor (duration of appointment at that grade: at least four years)• Assignment abroad or to the Ministry

(approximately 2/3 of the career spent abroad) followed by another refresher course at the Diplomatic Institute (at least 3 months)

• Minister Plenipotentiary* (duration of appointment at that grade: at least 7 years)

• Assignment abroad or to the Ministry(approximately 2/3 of the career spent abroad)

• Ambassador *

Assignment abroad or to the Ministry(approximately 2/3 of the career spent abroad)

* Appointment conferred under Presidential Degree subject to the approval of the Council of Ministers on proposal of the Ministry of Foreign Affairs.

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Diplomats rank

Article 14 – Vienna 1961

• 1. “Heads of mission are divided into three classes, namely: • (a) that of ambassadors or nuncios accredited to Heads of State, and

other heads of mission of equivalent rank; • (b) that of envoys, ministers and internuncios accredited to Heads of

State; • (c) that of charges d'affaires accredited to Ministers for Foreign Affairs.• 2. Except as concerns precedence and etiquette, there shall be no

differentiation between heads of mission by reason of their class.

Article 15• “The class to which the heads of their missions are to be assigned shall be

agreed between States”.

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Consul ranks

• Article 9 ”CLASSES OF HEADS OF CONSULAR POSTS”

• 1. Heads of consular posts are divided into four classes, namely:

• (a) consuls-general; (b) consuls; (c) vice-consuls; (d) consular agents.

• 2. Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.

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Diplomatic agent appointment

• Article 4 – Vienna 1961

• “1. The sending State must make certain that the approval of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.

• 2. The receiving State is not obliged to give reasons to the sending State for a refusal of approval” (acceptance).

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Consul appointment

• Article 10 - “APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS”

• 1. Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.

• 2. Subject to the provisions of the present Convention, the formalities for the appointment and for the admission of the head of a consular post are determined by the laws, regulations and usages of the sending State and of the receiving State respectively.

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Diplomats withdrawal

“Withdrawal of diplomatic credentials”

• Article 9

• “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”.

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APPOINTMENT AND ADMISSION OF Consul

• Article 11 ”THE CONSULAR COMMISSION OR NOTIFICATION OF APPOINTMENT”

• 1. The head of a consular post shall be provided by the sending State with a document, in the form of a commission or similar instrument, made out for each appointment, certifying his capacity and showing, as a general rule, his full name, his category and class, the consular district and the seat of the consular post.

• 2. The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions.

• 3. If the receiving State agrees, the sending State may, instead of a commission or similar instrument, send to the receiving State a notification containing the particulars required by paragraph 1 of this Article.

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APPOINTMENT AND ADMISSION OF Consul

• Article 12 “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.

• 2. A State which refuses to grant an exequatur is not obliged to give to the sending State reasons for such refusal.

• 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.

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Diplomatic agent appointment

• Article 10 Vienna 1961

• 1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:

• (a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;

• (b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;

• (c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;

• (d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.

• 2. Where possible, prior notification of arrival and final departure shall also be given.

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End of functions of diplomats

• Article 43 Vienna 1961

• The function of a diplomatic agent comes to an end, inter alia:

• (a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

• (b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.

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Protocol for the Modern Diplomat

• Comitas gentium = Protocol,Ceremonial,diplomatic practice.

• Few things are as anxiety provoking for the first-time embassy or mission employee or family member as the notion of diplomatic protocol. Protocol can sound both stuffy and mysterious at the same time; the rules and processes of diplomatic protocol are based in pragmatic thinking, common sense, and good manners.

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• Protocol makes the job of representing sending state easier by facilitating our work as a mission team, making our relationships and interactions within the diplomatic and host country communities more predictable, and by providing a basic social framework and hierarchy to follow.

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Addressing Others • Although guidelines exist, proper forms of address vary

greatly from culture to culture. Be sure to check local customs, but a few general rules follow. The spirit of formality among diplomatic representatives usually means not addressing others by their first names. One should rely on courtesy titles until invited to do otherwise. Socially, one can refer to a spouse by his/her first name or as "my husband," or "my wife" rather than as "Mr./Mrs. Smith." When dealing with household employees however, you should still refer to your spouse as "Mr./Mrs. Rossi." Ambassadors are addressed as Mr./Madam Ambassador or Ambassador Fulci. Only by special invitation or long friendship should one address an ambassador by first name and then only when not in the public eye.

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• An ambassador may continue to be addressed as "Mr./Madam Ambassador" after retirement or after returning from his/her duties abroad. In some French-speaking countries, the wife of the ambassador may be referred to as Madam Ambassador. Therefore, in those countries, refer to a female ambassador by her last name

• (Ambassador Deneuve) to avoid confusion and ensure that she receives her due respect.

• Those of rank below Ambassador are addressed as Mr., Ms. or Mrs., if marital status is known..

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Diplomatic Titles

1. Chiefs of Mission • Mr./Madam Ambassador or Ambassador Fulci.

Sir Richard—British ambassador who is a knight (Sir Richard's wife would be addressed as "Lady Smith.")

• Lord Montgomery—British ambassador who is a baron Mr./Mrs. Douglas or Ms. Williams—the ambassador's spouse 2. Chargé d'Affaires: Mr./Ms/Mrs./Madam Biancheri3. Ministers and Others : Mr./Madam Fulci

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Hierarchy • Diplomatic ranks can be confusing and unfamiliar. The

following list ranks many of the positions (from the top down) one may find in an embassy. Not all positions exist in every embassy.

• Ambassador • Ministers Plenipotentiary • Ministers • Chargé d'Affaires ad hoc or pro tempore • Charge d' Affaires ad interim • Minister-Counselors • Counselors (or Senior Secretaries in the absence of

Counselors)

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Hierarchy (to be continued)

• Army, Naval and Air Attachés • Civilian Attaches not in the Foreign Service • First Secretaries • Second Secretaries • Assistant Army, Naval and Air Attachés • Civilian Assistant Attaches not in the Foreign

Service • Third Secretaries and Assistant Attachés

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Dress

• Dress varies according to country and event. Women should be particularly mindful of conservative dress rules, such as skirt length, low necklines, and having one's arms covered.

• Remember that "casual" in other countries almost never means jeans or shorts. It is always better to be too dressed up than too dressed down.

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Gender issues

• Gender roles vary from country to country, and sometimes even within regions of one country. For example, a husband may be expected to precede his wife in a receiving line, or men and women may go into separate rooms for dessert.

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Respect of “status”

When everyone is treated respectfully, only a few status issues merit special note. As mentioned earlier, stand when an ambassador and his/her spouse enter the room, and allow him/her to enter and exit a room first. When making introductions, introduce someone to the more distinguished or older person. In addition, reserve the far right-hand seat of a sofa, as you sit, for the guest of honour.

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Sample Seating Arrangement for a Men's/Women's Luncheon or Dinner

• As a general rule, an even number of men and women alternate seats at a table. In American homes, foreign guests take precedence over Americans of comparable rank with the exception of the Ambassador of the United States. The Ambassador is seated as a host or hostess to avoid seating precedence conflicts. This courtesy also applies to the ambassador's spouse.

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• To seat the host(ess) and the guest of honor opposite each other in the middle of the long sides of the dining table and then alternate from there. Place a seating chart in the entrance hall so that each guest may find his/her place before entering the dining room.

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Formal "Black Tie" or "White Tie"

• Formal wear may be worn at evening performances of the opera, the theater, balls, and for the most formal dinners and evening affairs.

• Black tie is generally not worn in the daytime.

• White tie requires the additional formality of a cutaway ("tails") for men and a floor-length ball gown for women.

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Diplomatic Corp (Service)

• We have two different “diplomatic corps”:

1. The whole of foreign states accredited to the receiving state at the same moment.

2. The whole of all national diplomats involved abroad within international relations.

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Diplomatic Corp (Service)

• Definition:

“Diplomatic corp is de facto reunion of foreign states involved in diplomatic relation with the same state in the same historical moment”.

• We can say that Diplomatic Corp is an international institution.

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Consular Corp

• The whole of Consuls accredited (appointment) to the receiving state, in the same city and at the same instant.

• Definition: “Consular corp is de facto reunion of Consuls involved in consular relation within the same state, in the same place and in the same historical moment”.

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HONORARY CONSULAR OFFICERS


CHAPTER III:

“REGIME RELATING TO HONORARY CONSULAR OFFICERS AND CONSULAR POSTS HEADED BY SUCH OFFICERS”

(Articles 58 to 68)

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CHAPTER IIIArticle 58

“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.

• 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.

• 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.

• 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.

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HONORARY CONSULS

• Article 16 ”PRECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS”

1. Heads of consular posts shall rank in each class according to the date of the grant of the exequatur. (…) 5. Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs. (…)

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HONORARY CONSULS

• Article 22 “NATIONALITY OF CONSULAR OFFICERS”

• 1. Consular officers should, in principle, have the nationality of the sending State.

• 2. Consular officers may not be appointed from among persons having the nationality of the receiving State except with the express consent of that State, which may be withdrawn at any time.

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“Status”

• 1. Diplomatic status• 2. Consular status

Definition:

“Status” means the special (legal) condition which grant extraordinary individual facilities, privileges,immunities, inviolability, exemptions, and special freedoms.

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“Status”

“Status” means the special condition:

1.legal condition: customary law and written agreements because codified in the two Vienna Conventions which grant extraordinary individual facilities, privileges,immunities, inviolability, exemptions, and special freedoms.

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“Status”

1. Facilities

2. Privileges

3. Immunities

4. Inviolability

5. Exemptions

6. Special freedoms

7. Protection

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“Status”/facilities,privileges,exemptions

1. Facilities/2. Privileges: all honours, benefits and conveniences rising from the diplomatic status. But art. 20 “The mission and its head shall have the right to use the flag and symbol of the sending State on the location of the mission, including the residence of the head of the mission, and on his means of transport”.

2. Exemptions: mainly exclusion from all national, regional or municipal dues (imposte) and taxes (art. 23). The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. But (art. 21) the receiving State shall facilitate the sending State for the acquisition on its territory of buildings necessary for the mission and grant accommodation for their members . The receiving State shall accord full facilities for the performance of the functions of the mission (art. 25).

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“Status”/special freedom

3. Special freedoms: art. 26 “Subject to its laws and regulations

concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory”.

art. 27 “The receiving State shall permit and protect free communication on the part of the mission for all official purposes”.

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“Status”/inviolability

4. Inviolability: a) persons; b) buildings; c) things.

Art. 22 “The buildings 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”.

Art. 24 “The archives and documents of the mission shall be inviolable at any time and wherever they may be”.

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Art. 27, n. 2 “The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions. n. 3 “The diplomatic bag shall not be opened or detained. n. 4 ”The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use”. n. 5 “The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention”.

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• Art. 29 “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

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• Article 30• 1. The private residence of a diplomatic

agent shall enjoy the same inviolability and protection as the building of the mission.

• 2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.

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Diplomatic immunity

• We have two category of diplomatic immunity:

1) immunity from criminal jurisdiction:2) immunity from civil and administrative

jurisdiction.• Immunity means exemption from any

judgment (tribunals of receiving state). Diplomat not be subject to any form of arrest or detention.

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Criminal immunity

Article 31

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. (…)

to be continued…

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Criminal immunity

• Criminal immunity means full exemption from any criminal judgment and act.

• We have a full immunity: the diplomat is covered for all action and act, any diplomatic act (related to the function); any private act and action even if out of diplomatic mission.

• Remember difference: iure imperii (or iure privatorum) acts and iure gestionis acts

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Civil immunity

Article 311. (…) 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, except 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 (erede) 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.

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Immunity / “status”• Article 10

• 1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:

• (a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;

• (b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;

• (c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;

• (d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.

• 2. Where possible, prior notification of arrival and final departure shall also be given.

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Immunity / “status”• Article 13

• 1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.

• 2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.

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Diplomatic immunity

• Article 32 – Waiver (renounce)

• 1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived (renounce) by the sending State.

• 2. Waiver must always be express. (…)

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Diplomatic immunity


Waiver must always be express means that the sending State must waive in a written diplomatic document.

(Diplomatic note)

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Diplomatic immunity


• ”Counterclaim” (domanda riconvenzionale)

• (…) 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 counter-claim directly connected with the principal claim”.

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Consul immunity

• Vienna 1963 - Article 43 “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.

Diplomatic and Consular Law

Education

Transcript of Diplomatic and Consular Law