vienna conventions-diplomatic & consular relations

CONTENTS

A. A BRIEF HISTORY OF DIPLOMACY
B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961
1. FUNCTIONS OF THE DIPLOMATIC MISSION
2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION
3. WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION
4. DIVISION OF THE HEAD OF MISSION
5. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION
6. PRIVILEGES TO THE DIPLOMATIC MISSION
7. THE END OF THE DIPLOMATIC MISSION

C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963
1. ESTABLISHEMENT OF A CONSULAR POST
2. CONSULAR FUNCTIONS
3. CLASSES OF HEADS OF CONSULAR POSTS
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
6. PERSONS DECLARED “NON GRATA”
7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
8. INVIOLABILITY OF THE CONSULAR PREMISES
9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES
10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
11. FREEDOM OF MOVEMENT
12. FREEDOM OF COMMUNICATION
13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
14. PROTECTION OF CONSULAR OFFICERS
15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
17. IMMUNITY FROM JURISDICTION
18. LIABILITY TO GIVE EVIDENCE
19. WAIVER OF PRIVILEGES AND IMMUNITIES

A. A BRIEF HISTORY OF DIPLOMACY

The ability to practice diplomacy is one of the defining elements of a state, and diplomacy has been practiced since the formation of the first city-states. Originally diplomats were sent only for specific negotiations, and would return immediately after their mission concluded. Diplomats were usually relatives of the ruling family or of very high rank in order to give them legitimacy when they sought to negotiate with the other state.
Modern diplomacy's origins are often traced to the states of Northern Italy in the early Renaissance, with the first embassies being established in the thirteenth century.
The practice spread from Italy to the other European powers. Milan was the first to send a representative to the court of France in 1455. Milan however refused to host French representatives fearing espionage and possible intervention in internal affairs. As foreign powers such as France and Spain became increasingly involved in Italian politics the need to accept emissaries was recognized. Soon all the major European powers were exchanging representatives. Spain was the first to send a permanent representative when it appointed an ambassador to the Court of England in 1487. By the late 16th century, permanent missions became the standard.
Many of the conventions of modern diplomacy developed during this period. The top rank of representatives was an ambassador. An ambassador at this time was almost always a nobleman - the rank of the noble varied with the prestige of the country he was posted to.
Ambassadors at that time were nobles with little foreign or diplomatic experience and needed to be supported by a large embassy staff. These professionals were sent on longer assignments and were far more knowledgeable about the host country. Embassy staff consisted of a wide range of employees, including some dedicated to espionage.
At the same time, permanent foreign ministries were established in almost all European states to coordinate embassies and their staffs. These ministries were still far from their modern form.
The elements of modern diplomacy slowly spread to Eastern Europe and arrived in Russia by the early eighteenth century
After the fall of Napoleon, the Congress of Vienna of 1815 established an international system of diplomatic rank. Disputes on precedence among nations (and the appropriate diplomatic ranks used) persisted for over a century until after World War II, when the rank of ambassador became the norm.

SOURCE: http://www.ediplomat.com/nd/history.htm



B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961

SOURCE: http://www.ediplomat.com/nd/treaties/diplomatic_relations.htm

1. FUNCTIONS OF THE DIPLOMATIC MISSION

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 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. (ART 3)

2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION

Art. 7. Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Art. 8. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
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.
If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission. (Art 9.)

WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION

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.
1. 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. (ART 13)

3. DIVISION OF THE HEAD OF MISSION

Heads of mission are divided into three classes, namely:
that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
that of envoys, ministers and internuncios accredited to Heads of State;
that of charges d'affaires accredited to Ministers for Foreign Affairs.
Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class. (ART 14)

4. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION

The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class. (ART 18)
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission. (ART 19)

6. PRIVILEGES TO THE DIPLOMATIC MISSION

AS TO PREMISES

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.
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.
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. (ART 22)

AS TO TAX DUTIES

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.
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. (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. (ART 28), (ART 34), (ART 36)

C. AS TO ARCHIVES, DOCUMENTS AND COMMUNICATION

The archives and documents of the mission shall be inviolable at any time and wherever they may be. (ART 24)
The receiving State shall accord full facilities for the performance of the functions of the mission. (ART 25) The receiving State shall permit and protect free communication on the part of the mission for all official purposes. (ART 27)

D. AS TO MOVEMENT WITHIN THE TERRITORY

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 26)

E. AS TO ARREST AND DETENTION

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. (ART 29)
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.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (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.
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. (ART 31)

7. THE END OF THE DIPLOMATIC MISSION

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. ART (43)




C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963

SOURCE: http://www.sos.state.tx.us/border/intlprotocol/vienna.shtml


1. ESTABLISHEMENT OF A CONSULAR POST

A consular post may be established in the territory of the receiving State only with that State's consent.
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. (ART 4)

2. CONSULAR FUNCTIONS

Consular functions consist in:
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;
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;
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;
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;
helping and assisting nationals, both individuals and bodies corporate, of the sending State;
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;
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;
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;
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;
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;
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;
extending assistance to vessels and aircraft mentioned in sub-paragraph 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;
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. (ART 5)

3. CLASSES OF HEADS OF CONSULAR POSTS

Heads of consular posts are divided into four classes, namely:
consuls-general;
consuls;
vice-consuls;
(consular agents. (ART 9)
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.
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS

Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.
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. (ART 10)

5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS

Heads of consular posts shall rank in each class according to the date of the grant of the exequatur.
If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, his precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.
The order of precedence as between two or more heads of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of Article 11 were presented to the receiving State.
Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of Article 15.
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.
Heads of consular posts shall have precedence over consular officers not having that status. (ART 16)

6. PERSONS DECLARED “NON GRATA”

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.
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.
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.
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. (ART 23)

7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST

The functions of a member of a consular post shall come to an end inter alia:
on notification by the sending State to the receiving State that his functions have come to an end;
on withdrawal of the exequatur;
on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff. (ART 25)

8. INVIOLABILITY OF THE CONSULAR PREMISES

Consular premises shall be inviolable to the extent provided in this Article.
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. (art 31)

9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES

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.
The exemption from taxation referred to in 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. (ART 32)

10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS

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

11. FREEDOM OF MOVEMENT

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 freedom of movement and travel in its territory to all members of the consular post.(ART 34)

12. FREEDOM OF COMMUNICATION

The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. (ART 35)

13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (ART 36)

14. PROTECTION OF CONSULAR OFFICERS

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity. (ART 40)

15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS

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. (ART 41)

16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION

In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel. (ART 42)

17. IMMUNITY FROM JURISDICTION

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.
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
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
by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. (ART 43)

18. LIABILITY TO GIVE EVIDENCE

Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State. (ART 44)

19. WAIVER OF PRIVILEGES AND IMMUNITIES

The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in Articles 41, 43 and 44.
The waiver shall in all cases be express, except as provided in paragraph 3 of this Article, and shall be communicated to the receiving State in writing.
The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decisio n; in respect of such measures, a separate waiver shall be necessary. (ART 45)