DIPLOMATIC AND CONSULAR LAW
1. What is Diplomatic and Consular Law
• International rules regulating the various aspect of diplomatic relations are
the result of centuries of States practice.
• Such body of rules constitutes one of the earliest expressions of International Law.
2. Sources of Diplomatic and Consular Law
• Treaties
• Vienna Convention on Diplomatic Relations 1961
• Vienna Convention on Consular Relations 1963
• Customary laws
• Domestic Law
3. Principles of Diplomatic and Consular Law
• Equality and non-discrimination
• Respect for privileges and immunities
• Respect the laws, traditions and customs of the host country
• Reciprocity
• Consent
4. Vienna Convention on Diplomatic Relations
• This Convention, adopted in 1961, 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.
5. Vienna Convention on Diplomatic Relations
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• It provided that matters not regulated by the Convention continue to be governed
by the rules of customary International Law
6. History of Diplomatic and Consular Law
• 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.
7. Diplomatic Mission
• States are represented in foreign States by diplomatic representatives
Diplomatic mission
• A diplomatic mission is a diplomatic representation (more commonly referred to as
embassy) of the sending State (accrediting State) with the host State (receiving
State).
• These diplomatic representations are of a permanent nature, although
representatives are changeable.
8. Diplomatic Mission - History
• 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
9. Diplomatic Mission - Member
• The head of the mission: The person who is charged by the sending State with
the duty of acting in that capacity.
• Diplomatic staff: The members who have diplomatic rank.
• Administrative and technical staff: The members who are employed in the
administrative and technical service of the mission.
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• Service staff: The members who are employed in the domestic service of the
mission.
10. Diplomatic Mission - Classes
• Ambassadors accredited to Heads of States.
• Special envoys and ministers accredited to Heads of States.
• Charges d’affaires accredited to Ministers for Foreign Affairs.
11. Diplomatic Mission - Classes
• 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.
12. Diplomatic Mission - Classes
• 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.
13. Appointment of Heads and Diplomatic Members of the Missions
• 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
• The receiving state has the right to refuse the appointment of any particular
person without being obliged to give reasons.
14. Appointment of Heads and Diplomatic Members of the Missions
• 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.
15. Appointment of Heads and Diplomatic Members of the Missions
• 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.
16. Appointment of Heads and Diplomatic Members of the Missions
• 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.
17. Appointment of Heads and Diplomatic Members of the Missions
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• 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.
18. Diplomatic Mission - Functions
• Representing the sending State in the receiving State;
• Protecting in the receiving State the interests of the sending state and its nationals,
within the limits permitted by International Law;
• Negotiating with the Government of the receiving State;
• Ascertaining by all lawful means conditions and developments in the receiving
State, and reporting thereon to the Government of the sending State;
• Promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural and scientific relations.
19. Diplomatic Mission - Functions
• In addition to these functions, the diplomatic mission can perform consular
functions since nothing in the Convention prevents it from performing such
functions.
20. Privileges and Immunities of a Diplomatic Agent
• 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.
21. Privileges and Immunities of a Diplomatic Agent
• A complete immunity from the criminal jurisdiction of the receiving State
• No criminal prosecution!
• For all criminal offenses committed
• Persona non grata may be used.
22. Privileges and Immunities of a Diplomatic Agent (1)
• Immunity from the civil and administrative jurisdiction of the receiving state,
• Except in the case of:
• (1) 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.
23. Privileges and Immunities of a Diplomatic Agent (2)
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• (2) 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;
24. Privileges and Immunities of a Diplomatic Agent (3)
• (3) an action related to any professional or commercial activity exercised
by him in the receiving State outside his official functions.
25. Privileges and Immunities of a Diplomatic Agent (4)
• The inviolability of his person.
• Person?
• Inviolability?
• No arrest or detention at any form.
26. Privileges and Immunities of a Diplomatic Agent (5)
• Not liable to any form of arrest or detention.
• The receiving state should:
• treat him with due respect, and
• take all appropriate steps to prevent any attack on his person, freedom or
dignity.
27. Privileges and Immunities of a Diplomatic Agent (6)
• Exemption from all duties and taxes, personal or real, national, regional or
municipal in the receiving state,
• Except indirect taxes, taxes and duties on private immovable, duties on inheritance,
duties and taxes on private income, and charges levied for specific services
rendered;
28. Privileges and Immunities of a Diplomatic Agent (7)
• Freedom of communication for official purposes;
• The right to move freely in the territory of the receiving State.
• The inviolability of his private residence.
• The inviolability of his papers, correspondence and property
29. Privileges and Immunities of a Diplomatic Agent (8)
• A diplomatic agent is not obliged to give evidence as a witness.
• However, he is not prohibited by international law from doing so and may waive
this privilege.
30. Privileges and Immunities of a Diplomatic Agent (9)
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• 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.
31. Privileges and Immunities of a Diplomatic Agent (10)
• 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.
32. Privileges and Immunities of a Diplomatic Agent (11)
• 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.
33. Privileges and Immunities of a Diplomatic Agent (12)
• 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.
34. Privileges and Immunities of a Diplomatic Agent (13)
• Question? Immunity may also be waived by the diplomatic agent himself, by
submitting voluntarily to the jurisdiction of the court of the receiving State (very
rare).
35. Privileges and Immunities of a Diplomatic Agent (14)
• Members of the family of a diplomatic agent, if they are not nationals/residents
of the receiving State, likewise enjoy the same privileges and immunities.
36. Privileges and Immunities of a Diplomatic Agent (15)
• 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,
• Note: if they are not nationals or permanent residents of the receiving State.
37. Privileges and Immunities of a Diplomatic Agent (16)
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• 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.
38. Privileges and Immunities of a Diplomatic Mission (1)
• The inviolability of diplomatic premises
• Premises of the mission?
• Inviolability of the premises?
39. Privileges and Immunities of a Diplomatic Mission (2)
• As regard the mission itself, the Convention makes its premises, achieves,
documents, correspondence and diplomatic bag inviolable.
• Moreover, immunity is also granted to the furniture and other property thereon,
and the means of transport of the mission, including the immunity from search,
requisition, attachment or execution.
40. Privileges and Immunities of a Diplomatic Mission (3)
• The premises of the mission are also exempt from all national, regional or
municipal duties and taxes, other than such as represent payment for specific
services rendered.
41. Termination of a Diplomatic Mission or of the Functions of a Diplomatic Agent
(1)
• 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:
42. Termination of a Diplomatic Mission or of the Functions of a Diplomatic Agent
(2)
• Breaking off the diplomatic relations between the sending and the receiving States
because of a war or any other reason.
• A recall of the diplomatic agent by his sending State upon its initiative, or at the
request of the receiving State.
• 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.
• A notification by the receiving State that the diplomatic agent is a persona non
grata.
• Resignation of the diplomatic agent.
• Death of the diplomatic agent.
43. Consular Post (1)
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• 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.
44. Consular Post (2)
• The consular post is a representative of the sending State in the host State, the
setting up of which is based on the establishment of consular relations.
• A consular post can be divided into four classes:
• the consulate general,
• the consulate,
• the vice-consulate, or
• the consular agency.
45. Consular Post (3)
• 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.
46. Consular Post (4)
• 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.
47. Members of the Consular Post and Classification of the Heads of the Post
• The head of the post: The person charged by the sending State with the duty of
acting in that capacity.
• Consular officers, other than the head of the consular post: Persons entrusted to
exercise consular functions.
• Consular employees: Persons employed in the administrative and technical
service of a consular post.
• Service staff: Persons employed in the domestic service of the consular post.
• Private staff: Persons employed exclusively on the private service of members of
the consular post.
48. The heads of a consular post
• The heads of a consular post are divided into four classes, namely:
• Consuls-General.
• Consuls.
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• Vice-Consuls.
• Consular agents.
• The class to which a head of a consular post is assigned is a matter of agreement
between the concerned states.
49. Appointment of a Head of the Consular Post (1)
• 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.
50. Appointment of a Head of the Consular Post (2)
• 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.
51. Functions of a Consular Post (1)
• 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:
52. Functions of a Consular Post (2)
• Protecting the interests of the sending State and its nationals in the receiving State.
• Furthering the development of commercial, economic, cultural and scientific
relations between the sending State and the receiving State.
• Promoting friendly relations between the sending State and the receiving State.
• 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.
53. Functions of a Consular Post (3)
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• Issuing passports and travel documents to nationals of the sending State, and
giving visas to persons wishing to travel to that State.
• 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.
54. Functions of a Consular Post (4)
• Transmitting judicial and extra-judicial documents to the receiving State.
• 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.
• Acting as notary and civil registrar, and performing certain functions of
administrative nature.
55. Functions of a Consular Post (5)
• 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.
56. Privileges and Immunities of Consular Officers (1)
• 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.
57. Privileges and Immunities of Consular Officers (2)
• 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:
58. Privileges and Immunities of Consular Officers (3)
• 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.
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59. Privileges and Immunities of Consular Officers (4)
• 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.
60. Privileges and Immunities of Consular Officers (5)
• 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.
61. Privileges and Immunities of Consular Officers (6)
• However, they do not enjoy such immunity in respect of a civil action either:
• Arising out of a contract concluded by them not as agents of the sending
State; or
• Brought by third party for damages arising from an accident in the
receiving State caused by vehicle, vessels or aircraft.
62. Privileges and Immunities of Consular Officers (7)
• 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.
63. Privileges and Immunities of Consular Officers (8)
• 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.
64. Privileges and Immunities of Consular Officers (9)
• A member of the consular post enjoys the freedom of communication for official
purposes.
• A member of the consular post enjoys the right to move freely in the territory of
the receiving State.
• The archives, documents, official correspondence and consular bag are inviolable
at any time and whenever they may be
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65. Privileges and Immunities of Consular Officers (10)
• 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 duties other than such as represent
payment for specific services.
66. Privileges and Immunities of Consular Officers (11)
• 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.
62. Privileges and Immunities of Consular Officers (12)
• 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.
63. Termination of a Consular Functions
• A recall of the member of the consular post by his appointing State upon its
initiative, or at the request of the receiving State.
• A notification by the appointing State to the receiving State that the functions of
the post or any of its members are terminated.
• The withdrawal of the exequatur by the receiving State.
• Resignation of the member of the consular post.
• Death of the member of the consular post.
• The breaking off relations between the sending and receiving States, such as in
case of a war.
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