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Diplomatic and Consular Law. SUMMARY First Step. The Beginnings of Classical Diplomacy. The characteristics of classical diplomacy, namely “the art of negotiation” : Bilateral diplomacy Secrecy of negotiations

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the beginnings of classical diplomacy
The Beginnings of Classical Diplomacy
  • The characteristics of classical diplomacy, namely “the art of negotiation”:
  • Bilateral diplomacy
  • Secrecy of negotiations
  • Protocol/Ceremonial [(precedence, etiquette, etc.) what we call “comitas gentium”)]
to day s diplomacy
To day’sDiplomacy
  • Diplomacy better reflected society, as globalization experts and trade negotiators replaced noblemen and traditional political officers. This is because:
  • Rapid communications (leave little time for reflection)
  • Public opinion and politics play a greater role
  • Intelligence services (range of action)
  • Increase of multilateral diplomacy
  • Greater role of international organizations.
e diplomacy and cyber diplomacy
«e-diplomacy» and «cyberdiplomacy»
  • 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.
sources of diplomatic law
Sources of Diplomatic law*
  • 1.      Customary law
  • 2.      General legal principles
  • 3. Agreement (conventions, treaties etc.)
  • 4. Acts rising from IO and EU
  • 5. Analogy
  • 6. Comitas gentium , international comity, courtesy, precedence and etiquette, protocol (customary source) and diplomatic practice
  • 7. Others sources: doctrine; jurisdiction
slide6

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 (…).
vienna convention on the law of treaties
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 theconsent 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)
subjects of diplomatic law
Subjects of Diplomatic law
  • 1. State are subjects of diplomatic law.
  • 2. (II rank) international organizations (i.o.) and European Union.

therefore

individuals in the International and Diplomatic Law are considered only if organs of the (sending-receiving) state.

Consequently, diplomats and consul as organs of international affairs.

sovereignty of the state and diplomatic relations
Sovereignty of the State and diplomaticrelations
  • In international law, states are superiorem non recognoscentes, which means that only states (and i.o.) can begin diplomatic relation with other state or subjects of international community. No jus legationis.
  • 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).
  • Therefore, there is no any ius legationis that entitle a state without consensus of the other state to open a mission.
vienna convention on consular relations
VIENNA CONVENTION ON CONSULAR RELATIONS
  • 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 breaking of diplomatic relations shall not ipso facto involve the severance of consular relations”.
vienna convention on diplomatic relations vienna convention on consular relations
Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS
  • Two different legal instruments (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.
vienna convention on diplomatic relations vienna convention on consular relations1
Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS

Purposes in comparison

  • Article 3 – Vienna 1961

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”. (…)

vienna convention on diplomatic relations vienna convention on consular relations2
Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS

Purposes in comparison

Article 5 ”CONSULAR FUNCTIONS”

  • Consular functions consist in:
  • (a) protectingin 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
diplomatic agent appointment
Diplomaticagentappointment
  • 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).
diplomatic agent appointment1
Diplomaticagentappointment
  • 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.
consul appointment
Consulappointment
  • 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.
appointment and admission of consul
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.
appointment and admission of consul1
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.
diplomats withdrawal
Diplomatswithdrawal

“Withdrawal of diplomaticcredentials”

  • 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”.
end of functions of diplomats
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 (persona non grata).
simplifying
Simplifying
  • diplomatic protocol is based in
  • pragmatic thinking,
  • common sense,
  • good manners.
vienna 1961
Vienna 1961

Article 17

  • The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.
vienna 19611
Vienna 1961

Article 16

  • 1.    Heads of mission shall take precedence in their respective classesin the order of the date and time of taking up their functions in accordance with Article 13.
  • 2.    Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence.
  • 3.    This article is without prejudice to any practice accepted by the receiving State regarding the precedenceof the representative of the Holy See.
slide25
LEARNING TEST

First Part

learning test
LEARNING TEST
  • General aspects
  • When we can date the birth of diplomacy?
  • What does the expression “diplomacy” means?
  • Which the ancient diplomacy is?
  • Why we say “old” and “new” diplomacy?
  • How do you explain the mission of the diplomat; and how the function of consul?
  • Which are the difference between diplomatic relations and consular relations?
learning test1
LEARNING TEST

B) Law aspects

  • What are diplomatic and consular law sources?
  • Can you explain the role and the differences of two Vienna conventions?
  • It is possible to derogate to these conventions?
  • How states (and i.o.) can establish diplomatic and consular relations?
  • What about ius legationis ?
  • What in international law the expression “treaty”, “agreement” or “convention” means?
learning test2
LEARNING TEST

B) Law aspects

  • Clarify what "full powers" means.
  • What (usually) are considered diplomatic languages?
  • Explain the position of individuals in diplomatic and consular law.
  • When Vienna convention 1961 entry into force?
learning test3
LEARNING TEST

B) Law aspects

  • Clarify the consular functions.
  • Heads of diplomatic mission are divided into how many classes?
  • What is the position of the Nuncios?
  • And how many class for heads of consular post?
learning test b law aspects
LEARNING TESTB) Law aspects
  • Explaindiplomatic agent appointment.
  • Diplomatic credential.
  • Consul appointment.
  • Commission and exequatur.
  • Persona non grata.
  • Persona not acceptable.
  • Diplomatic channel.
learning test b law aspects1
LEARNING TESTB) Law aspects
  • How many type of “Diplomatic Corp” or “Diplomatic Service” we have?
  • Why we say that “Diplomatic Corp” is a de facto reunion?
  • What about “Consular Corp”?
  • In what part of the Vienna Convention you find Honorary Consul regulation?
learning test b law aspects2
LEARNING TESTB) Law aspects
  • What precedence between heads of consular posts?
  • Give details about diplomatic and consular “status”?
  • Is the “status” recalled in Vienna Convention?
  • Explain differences between: (diplomats) facilities, privileges, immunities, inviolability, exemptions, and special freedoms.
learning test b law aspects3
LEARNING TESTB) Law aspects
  • How do you find the special regime relating to honorary consul?
  • How honorary consul, heads of consular posts, shall rank in same class as regards career heads of consular posts?
  • What nationality (in general) must have a consular officers?
learning test b law aspects4
LEARNING TESTB) Law aspects
  • What does means diplomatic “status”?
  • Explain facilities, privileges, immunities, inviolability, exemptions, and special freedoms.
  • How many type of inviolability we have?
  • Can you explain “diplomatic bag”?
  • And diplomatic courier?
learning test b law aspects5
LEARNING TESTB) Law aspects
  • Is there any legal duty (obligation) of diplomatic protection in order to the receiving state?
  • What does means diplomatic “immunity”?
  • From where rise (originate) the rule of diplomatic immunity?
learning test b law aspects6
LEARNING TESTB) Law aspects
  • Why the criminal immunity is “full”?
  • How many exceptions Vienna convention decree for civil immunity?
  • When the head of the mission is considered having taken up his functions in the receiving State?
  • It is possible to waive diplomatic immunity?
learning test b law aspects7
LEARNING TESTB) Law aspects
  • Who is the subject that can waive the diplomatic immunity?
  • How waiver must be?
  • Do we have a different kind of waiver in art. 32? Explain.
  • What are the differences between diplomatic and consular immunities?
learning test c protocol aspects
LEARNING TESTC) Protocol aspects
  • Would you explain what isComitas gentium ?
  • How do you address to an Ambassador and how he address other people?
  • How Madame Ambassadors dress?
  • In diplomatc protocol is there any gender issues?
learning test c protocol aspects1
LEARNING TESTC) Protocol aspects
  • Do we have a seating arrangement for a men's/women's luncheon or dinner?
  • Where must seat at table the guest of honour?
  • In what occasion you must wear black tie?
  • When white tie?
  • What the expression “formal wear” means?
learning test d european union
LEARNING TESTD) European Union
  • Is the European Community entitle to subscribe international agreements?
  • Do citizen of the Union enjoy diplomatic protection within third country (abroad)?
  • What are the purpose of the committee consisting of the Permanent Representatives of the Member States?
learning test d european union1
LEARNING TESTD) European Union
  • What are the persons enjoying immunity under Protocol n. 36 EC?
  • Art, 48 EU.
  • Art. 49 EU.