Lecture 6

Diplomatic and consular law is very important. If there is a Vienna convention on diplomatic
relations of 1961, what is the need to have a consumer convention in 1963? It's logical: everything
related to the human being at the individual level, not at the state level, is related to consular
matters and functions that are executed by consuls. It has become a practice to send consuls in
parallel with the Ambassador because the Ambassador works at the very high level and does not
work with individual citizens, their daily needs and protection. 

The consuls are the first emissaries, the first envoys. Most of the practical work and necessities
are done by consuls. The state practice is that you have both consular and diplomatic relations.
When you establish diplomatic relations, there can be a separate treaty also on consular relations,
which is allowed. Otherwise, the diplomatic relations also include consular relation. Why are they
separated? 

First communication between different countries or different people (even when sovereign states
in the way we perceive it now did not exist), there were the trade men, bringing goods from one
place to another, and also migrants going back and forth. The art of developing business relations,
trade and commerce became somewhat mixed functions. Such people started the growth of these
institutions called the consuls, sometimes performing the type of judicature and education
functions. 

Human rights and history of consuls

Nobody talked about human rights in the olden days, however, there always has been the
necessity to protect your own citizens abroad and engage in public diplomacy (ancient
function). Consuls also focused on the treatment of minorities, concentrated on managing the
matters of their own citizens, the trade and commerce. When the institution of consuls, emerged in
Ancient Greece, in the proxeny (pro-states), and then in the Roman Republic, or even in medieval
Europe (consules mercatorum), consuls were mainly associated with mercantile activities, trade
and commerce. 

We have the presence of consuls as early as 8 century in China, in India in the 9th century and in
the Arab states in the 9th century. A lot of them were outside functioning outside the countries.
Consuls were themselves trading or were supervising the trading while in the Italian
republic, especially in the Venetian Republic, where the institution of diplomacy further developed. 

The evolution of the institution of consuls is a very interesting phenomenon. Consular people who
were exercising trade, commerce, economic issues were sometimes elected among the locals, in
different forms, and they were prominent individuals who could represent interests and take care
of their people. This idea underwent the Revolution and manifested itself in the institution of the
honorary consuls (nationals of the receiving country). 

In the 16th and 17th century, consuls performed the judicial functions (mediating and adjudicating
the difficult disputes). They have certain extraterritorial rights: for example, the consular authorities
have given some rights to be exercised towards their citizens. And in certain countries it prevails,
there are bilateral agreements between states which enable their consuls to execute such
functions. 

The position of a consul first came as a career opportunity in France and Britain, in 1825, quite
late. In 1906, the US launched the practice of honorary consuls and then it was combined with
foreign service for all countries. Honorary consuls are very important - they are the citizens of the
sending state, they are given the honor to help the country but do not enjoy any payment (no
remuneration, salaries). 
An important thing to remember: you may have consular relations even if you don't have
diplomatic relations with the state. You may have a consular post in a place which is not a real
sovereign state. Consular functions do not go away: even if you stop having diplomatic
relations, the process of communication is very important to sustain, also, you may have property,
assets, people there. In the case of the war against Russia, consular relations may be ceased,
too, but sometimes a third state is entrusted with the consular function on your behalf to execute
only consular functions. So, Switzerland will take care of the consular issues of Ukrainian citizens
in Russia. 

There is distinguishment between the consular department within an embassy and consul as
a separate consulate. The embassy performs full-fledged representation, consulate is lower. It
has a territorial marker which means that any consulate is designated to a particular geographical
area within the country. 

Countries can choose where they want to have the console consulate because those countries
may have more citizens among the population as well as ethnic groups, cultural and trade
interests. Most of the port cities (like Odesa) had many consular institutions. 
 
The consuls are performing very down-to-earth and day-to-day activities. They do not need that
high-flying immunity or full powers. Most of the time only efficiency is needed from those people,
and for that, they need functional immunity as per the Vienna Convention of 1963. But in
addition, for example, the Great Britain practices separate bilateral agreements on consular
relations. In case of conflict, the Vienna convention is chosen over the bilateral convention
because it provides more privileges and immunities.  

The main thing to know is that the levels of immunity and privileges are based on functional
necessity, which is different from that of diplomats. The details of the consular issues were more
or less underlined in the Havana Convention of 1928, long before the Vienna convention - so the
Vienna is a more like a framework, which absorbed all the other conventions and added
something else.

A consul is appointed without any agreement, but upon arrival the consul must submit to the
authorities a document called the consular commission. The consul comes because he will
serve only that region within the country, not the whole country itself. So next step will be the
consular (jurisdictional) area in the consular commission/consular patent. This document shows
the name, the particulars of the person, the functions and the consular area. After the consular
commission is submitted, the consul gets permission to start working given by the local authorities
- consular exequatur. When there is no decision of an exequatur, there can be a provisional
basis before you get the exequatur. 
 
The levels of consuls

Article 13 of the Vienna convention:

1) Alternate consul
2) Deputy consul
3) Pro-consul
4) Consular attaché

But today the usual practice is the different levels of the institution: Consulate General
(генеральне консульство), consulate is headed by the consul. Consular department can be
headed by a consular agent or a pro-consul or a counselor attaché. However, there are like
differences in the status. There may be a consular corps like the diplomatic corps, which also has
a дуайен, the same precedence: according to the rank and according to the date, and then within
each rank within each rank, according to the date of presenting of the consular
commission/consular patent. Sometimes consular accreditation can also be concurrent accreditation:
one consul functions for many countries. Today, the Polish Consulate is functioning not in Kyiv, but in
Lviv. 
 
The functions of consuls

1) The main function of a consul is to manage both physical and legal persons, and also corporate
bodies. 
2) They also deal with the economic issues that are important for the country in that region. 
3) Passports and visas are issued by the consuls. 
4) They also manage war cemeteries: they sign and authorize ships and aircraft coming to the country
with the remains of fallen heroes, but it can also be applied to ordinary citizens (consular identification
of people who suddenly died or were killed). 
5) Civil and criminal liability: the consul represents the interests of a given citizen in court within the
legal framework of the host state. 
6) In case of extradition, they help that person to be transported to their home country. This is not in
the Vienna Convention, there has to be a bilateral treaty. 
7) Consuls are responsible for the identification of citizens (check the identity of a person, their history,
test their national status), naturalization (law of soil) and registration of citizens, determination of the
level of citizenship's being active, in some cases - override of nationality. 
8) Human rights, protection of one state against the claimings of the other state (the issues connected
to children, their nationality), in accordance with the Doctrine on the Minimum Standard of Treatment;
granting the territorial asylum. The principle of non-refoulement (невидворення).
9) Taxation: whether it is fair or discriminatory. 
10) Intervention in situations where irregular migration takes place (problems on the borders of some
European countries). 
11) Property rights (destruction, demolishing, nationalization). 
12) Sometimes consuls help the citizens out in the police if they are attacked; in any case, a consul
should be informed. 
13) Making demarche (public diplomacy), e.g., claims of reparation to the court should be formulated
and presented by the consul. 

However, a consul never works beyond the scope of local rules and regulations, not to upset the
balance and leave it to the high corpus. 

The abuse of immunities and privileges by diplomats, consuls or ambassadors

In case they do things incompatible with their status, they will be announced as persona non grata.
Sometimes the domestic staff is abused; for that reason, some countries advise to register them
officially because they may not be paid well etc. If they're abusing their own citizens (domestic
helpers), in the US, the law of the land prevails. 

Such diplomats/consuls are sent back to the country.  

Asylum-seeker vs refugee

In the humanitarian law, an asylum-seeker is an individual facing persecution in his country of origin
and who has applied for protection in a country. He has that status until recognized as a refugee and
given a document. This document does not cancel his citizenship but allows him to travel all over the
world.