Diplomatic and Consular Law. Commentary on the Vienna Conventions on Diplomatic and Consular Relations. Università degli Studi della Calabria Faculty of Political Science. Course of Diplomatic and Consular Law (5 cfu). First Part. Foreward.
Commentary on the Vienna Conventions on Diplomatic and ConsularRelations
Course of Diplomatic and Consular Law
But let us never fear to negotiate»
John Kennedy, 1961
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.
European Community Treaty
EUROPEAN COMMUNITY (EC)
“CITIZENSHIP OF THE UNION”
Article 20 “Diplomatic Protection”
“Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection”.
Protocol (n. 36) (annexed to the Treaty) on the privileges and immunities of the European Communities (1965) - [beneficiary: parliamentary authorities; judges; European Council members;
Council members; members of the Commission, “coreper”, etc.]
Article 4 -– “European Council”
“The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the European Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union”.
Art. 11, n. 2.“The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. The Council shall ensure that these principles are complied with”.
“The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favor of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutionalrequirements”.
“Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State.
This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements”.
see next page
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
Commentary on the Vienna Convention on Diplomatic Relations
April, the 18th of 1961
Vienna Convention 1963
“Consular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention”.
Purposes in comparison
1. “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”. (…)
Purposes in comparison
Article 5 ”CONSULAR FUNCTIONS”
follow art. 5:
“(d) issuing passportsand travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State; (e) helpingandassistingnationals, both individuals and bodies corporate, of the sending State; (f) acting as notaryandcivil 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; (…)
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.
Article 14 – Vienna 1961
“Withdrawal of diplomaticcredentials”
1. Chiefs of Mission
Sir Richard—British ambassador who is a knight (Sir Richard's wife would be addressed as "Lady Smith.")
2. Chargé d'Affaires: Mr./Ms/Mrs./Madam Biancheri
3. Ministers and Others : Mr./Madam Fulci
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 seatof a sofa, as you sit, for the guest of honour.
“Diplomatic corp is de facto reunion of foreign states involved in diplomatic relation with the same state in the same historical moment”.
Vienna Convention 1963
“REGIME RELATING TO HONORARY CONSULAR OFFICERS AND CONSULAR POSTS HEADED BY SUCH OFFICERS”
(Articles 58 to 68)
Article 58 “GENERAL PROVISIONS RELATING TO FACILITIES, PRIVILEGES AND IMMUNITIES”
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. (…)
“Status” means the special (legal) condition which grant extraordinary individual facilities, privileges,immunities, inviolability, exemptions, and special freedoms.
“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.
6. Special freedoms
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 buildingsnecessary 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).
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”.
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”.
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 inviolabilityand shall not be liable to any form of arrest or detention”.
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. (…)
to be continued…
Waiver must always be express means that the sending State must waive in a written diplomatic document.