Professional Documents
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Diplomatic and Consular Law
Diplomatic and Consular Law
Diplomatic and Consular Law
Rules regulating the various aspect of diplomatic relations are the result of
centuries of States practice. They constitute one of the earliest expressions
of International Law. Whenever in history there have been independent
States coexisting, special customs have developed on how the
representatives of one State would be treated by other State.[1]
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.
Because of the important roles played by diplomats and consuls in
international relations, it is necessary to treat this subject in the following
two sections. Thus, section one is devoted to diplomatic mission, while
section two is devoted to consular post.
(3)
Members of the administrative and technical staff: The members who
are employed in the administrative and technical service of the mission.
(4)
Members of service staff:
domestic service of the mission.
(2)
(3)
(1)
A complete immunity from the criminal jurisdiction of the receiving
State;
(2)
Immunity from the civil and administrative jurisdiction of the receiving
state, except in the case of:
i.
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.
ii. 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;
iii. an action related to any professional or commercial activity exercised by
him in the receiving State outside his official functions.
(3)
(4)
Exemption from all dues and taxes, personal or real, national, regional
or municipal in the receiving state, except indirect taxes, taxes and dues on
private immovable, dues on inheritance, dues and taxes on private income,
and charges levied for specific services rendered;
(5)
(6)
(7)
(8)
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. 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.
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.
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. Immunity may also be waived by the diplomatic agent
himself, by submitting voluntarily to the jurisdiction of the court of the
receiving State.
Members of the family of a diplomatic agent, if they are not nationals of
the receiving State, likewise enjoy the same privileges and immunities. 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, if
they are not nationals or permanent residents of the receiving State.
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.
As regard the mission itself, the Convention makes its premises, achieves,
documents, correspondence and diplomatic bag inviolable. Moreover, it
grants the premises of the mission, their furniture and other property
thereon, and the means of transport of the mission the immunity from
search, requisition, attachment or execution. The premises of the mission
are also exempt from all national, regional or municipal dues and taxes,
other than such as represent payment for specific services rendered.
E. Termination of a Diplomatic Mission or of the Functions of a Diplomatic
Agent [8]
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:
(1)
Breaking off the diplomatic relations between the sending and the
receiving States because of a war or any other reason.
(2)
A recall of the diplomatic agent by his sending State upon its
initiative, or at the request of the receiving State.
(3)
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.
(4)
A notification by the receiving State that the diplomatic agent is a
persona non grata.
(5)
(6)
A. Members of the Consular Post and Classification of the Heads of the Post
[11]
The members of the consular post as stated by the 1963 Vienna
Convention are:
(1)
The head of the post: The person charged by the sending State with
the duty of acting in that capacity.
(2)
Consular officers, other than the head of the consular post: Persons
entrusted to exercise consular functions.
(3)
Consular employees: Persons employed in the administrative and
technical service of a consular post.
(4)
Members of the service staff: Persons employed in the domestic
service of the consular post.
(5)
Members of the private staff: Persons employed exclusively on the
private service of members of the consular post.
The heads of a consular post are divided into four classes, namely:
(1)
Consuls-General.
(2)
Consuls.
(3)
Vice-Consuls.
(4)
Consular agents.
(6)
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.
(7)
State.
(8)
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.
(9)
Acting as notary and civil registrar, and performing certain functions
of administrative nature.
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.
(1)
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.
He is immune from
(8)
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 dues other than such as represent payment for specific services.
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.
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.
(4)
(5)
(6)
The breaking off relations between the sending and receiving States,
such as in case of a war.