Consular Relations Ast.Prof. Sami Dogru Spring Semester International Law II Consular Relations Ast.Prof. Sami Dogru Spring Semester

Objectives Consular Relations – General Background Info. Functions of Consular Agents Classes of Consuls & Honorary Consuls Beginning & Termination of Consular Commission Consular Privileges & Immunities

Consular Relations – General Background Info. “The United Nations Conference on Consular Relations met at the Neue Hofburg from March 4 – April 22, 1963 and prepared [3 specific instruments].” The most important instrument for this course is The Vienna Convention on Consular Relations (VCCR).

Consular Relations – General Background Info. The Vienna Convention on Consular Relations Signed on April 24, 1963 Entered into force on March 19, 1967

Consular Relations – General Background Info. Important Points to Remember “Consuls are not diplomatic representatives of their state because generally the consul’s duties are more commercial than political (diplomatic) in …nature.” Normally, the consent required for the establishment of diplomatic relations also implies consent to the establishment of consular relations. In other words, saying yes to diplomatic relations usually includes the yes required for consular relations.

Consular Relations – General Background Info. True or False? Breaking off diplomatic relations automatically means a breaking off of consular relations.

Consular Relations – General Background Info. False. “A severance of diplomatic relations does not, [by itself], mean a breaking off of consular relations.” “It is also possible to establish consular relations between states that do not have diplomatic relations with each other. In this situation, the consular relations represent the only permanent official relations between the states in question. In most instances of this sort, the consular relation constitute a preliminary to diplomatic relations.”

Consular Relations – General Background Info. Question Is it possible for diplomatic missions to carry out consular relations?

Consular Relations – General Background Info. Yes. “Consular relations are normally exercised through consular posts, but it is possible for them to be carried out through diplomatic missions.”

Functions of Consular Agents There are nine major functions, altogether. An agent 1. Protects the interests of his state and its nationals within the limits of int’l law 2. Promotes trade and the development of economic, cultural, and scientific relations 3. Reports and provides information on the conditions and developments in economic, cultural, and scientific areas 4. Issues passports and travel documents (visas, etc.)

Functions of Consular Agents 5. Gives legitimate assistance to nationals of his state 6. Acts as notary and civil registrar & performs specific administrative functions to protect the interests of nationals (for ex., in cases of succession in territory of the receiving state. 7. Represents nationals before courts and other authorities when they can’t defend themselves to ensure their rights are preserved

Functions of Consular Agents 8. Serves judicial documents or executing commissions to gain evidence for the courts of his state (in accordance with existing treaties or, if there are no relevant treaties, in accordance with the laws of the receiving state) 9. Has the right of supervision and inspection (under laws of receiving state) in regards to his state’s vessels, aircraft, and crews. This includes examining the stamping of ships’ papers, conducting investigations into any incidents that have occurred during the voyage, and settling disputes between the master, the officers, and the seamen [in accordance to the laws of his state].” (pg. 390)

Functions of Consular Agents Other Points There is freedom of communication between nationals and consulates. “Competent authorities of the receiving state have the obligation to notify the consulate of a sending state without undue delay if in the relevant district a national of the sending state is committed to prison or to custody pending trial or is detained in any manner.”

Functions of Consular Agents Other Points “Any communication from such nationals is to be forwarded to the relevant consulate without undue delay.” “Consular officials have the right to visit any national who is in prison, custody, or detention for the purpose of gaining information . . . and arranging for legal representation.”

Functions of Consular Agents In other words, if there is trouble, the freedom to communicate must be allowed. Also note that these communication rights must be “exercised in accordance with the laws and regulations of the receiving state, [as long as those they] do not nullify the rights of consular officials.”

Classes of Consuls & Honorary Consuls There are four classes of heads of consular posts (VCCR, Article 9): 1. Consuls General 2. Consuls 3. Vice Consuls 4. Consular Agents (a title seldom utilized today) States are not obligated to utilize all four titles.

Classes of Consuls & Honorary Consuls In a few states, consular officials (esp., among the lower two ranks) are allowed to do business in the receiving state. However, there are no privileges and immunities connected to these activities because they are not a part of official duties. Nevertheless, “the Vienna Consular Convention . . . Forbids career consular officers to carry on for personal profit any professional or commercial activity in the receiving state (Article 57, para.1).”

Classes of Consuls & Honorary Consuls Come from the among the nationals of the receiving state or even of a third state – subject to the consent of the receiving state (this consent may be withdrawn at any time) Most “carry on a private gainful activity in addition to their consular functions” Although there are some differences, they generally “enjoy the same privileges and immunities as do career consuls”

Beginning & Termination of Consular Commission “The receiving state formally accredits the head of a consular mission by issuing a document known as an exequatur.” “Municipal law determines which organ of the state may issue the exequatur, although normally it would be issued by the Ministry of Foreign Affairs.” “The granting of an exequatur to the head of a consular post automatically covers the members of the staff working under his or her orders.”

Beginning & Termination of Consular Commission If conduct is seriously wrong, then the receiving state can notify the official’s state that he/she is no longer acceptable. If this happens, then the official’s state must recall him or end his connection with the consulate. What if the official’s state refuses to do this or does not do this in a timely manner?

Beginning & Termination of Consular Commission If the official’s state (i.e., the sending state) refuses to do this, or fails to do it in a timely manner, then the receiving state has a right to either Withdraw the exequatur from the official in question or Stop regarding him as a member of the consular staff Can a person be declared unacceptable even before arriving in the territory of the receiving state?

Beginning & Termination of Consular Commission Yes, this is possible. No reasons have to be given for the rejection, either. In such cases, the sending state must withdraw the appointment.

Beginning & Termination of Consular Commission Sometimes, in rare cases, a state may close its consular facilities to indicate strong disapproval of the receiving state. If consular relations are severed (even during armed conflict), consular premises and their contents must still be respected and protected. Can a sending state entrust the premises and their contents to the care of a third state?

Beginning & Termination of Consular Commission Yes. “The sending state may entrust the premises and their contents to the care of a third state acceptable to the receiving state, just as it may entrust the protection of its interests and those of its nationals to a third state acceptable to the receiving state.”

Consular Privileges & Immunities Consular Premises are inviolable. Immune from search, requisition, attachment, or execution Exempt under int’l law from state and local real estate taxes Immunity also extends to consular archives & documents Agents of the receiving state may not enter without the consent of the head of the consular post. Receiving state has the duty to appropriately protect consular premises

Consular Privileges & Immunities Inviolability of Means of Communication Freedom of communication for all official purposes The consulate may employ diplomatic or consular couriers and the diplomatic or consular bag Freedom to send and receive messages in code or cipher Freedom to install and use a wireless transmitter only with the express consent of the receiving state Correspondence is inviolable from all interference, including inspection and censorship

Consular Privileges & Immunities Personal and Family Immunity If a consular official appears on the diplomatic list (the official roster of accredited diplomats in a state), he or she will have full diplomatic immunity If he is not on the list, immunity applies only for actions performed as part of their official duties. Also, he does not have immunity from all legal process, but must respond to any process and plead and prove immunity on the grounds that he was acting within his official duties. (pg. 394)

Consular Privileges & Immunities Waiver of Immunity The sending state alone may…waive its consular official’s immunity, but such a waiver must in all cases be express. If immunity is waived for the purpose of civil or administrative proceedings, it does not also mean a waiver from measures of execution resulting from a judicial decision. A separate [express waiver is required]. (Article 45)

Consular Privileges & Immunities Waiver of Immunity A consular official who initiates proceedings in a matter in which he might normally enjoy immunity is precluded from invoking such immunity from local jurisdictions in respect of any counterclaim directly connected with the principal claim (reciprocity). In other words, if an official normally has immunity in a particular area, and yet wishes to start proceedings, he cannot claim immunity later on if there is a counterclaim against him.

The End! If you have any questions, please feel free to stop by my office during office hours or make an appointment! 