Oxford Diplomatic Council 2010

QUESTION FOR 2nd ASSIGNMENT: What was the need to establish a Consular law in 1963, how does the consular law differs from diplomatic law and to what extent it is still needed in the 21 century?

Student : Razvan Hoinaru Tutor: Dr. James Daniels Words: 3269

The consular practices have had a wider history than the diplomatic practice. This made some scholars to argue that consular institution is more important than the diplomatic one. This can be arguably wrong; which one is more important really depends on each particular situation. A hierarchy between consular staff and diplomatic staff cannot be done, as they are two separate institutions and represent different sides of the same coin: foreign affairs. The modernconsular practice started in the sixteenth century when centralized states started to exist. From now on states began to send out consuls for performing different missions in the name of the state. At that time there were couples of treaties establishing common practices among states. Early examples are Ordonnance de la Marine, Colbert in 1681, the Treaty of Ryswick between France and Netherlands in 1697, the Treaty of Utrecht in 1713, the FrancoSpanish Convention of Pardo from 1769. These treaties and others addressed in certain articles different aspects of the consular practice. The confusion between a diplomat and a consul dates back to this time.1 It is important to know what the difference between a consul and a diplomat is, as these terms are highly misused by important international actors such as mass media. Therefore, the scope of this essay is to cast clarity on the definition of a consul and of a diplomat and their functions. Further on, I will outline the differences between consular missions and diplomatic mission and their functions in regards to establishment, functions and immunities. As it may have been already noticed from the up-mentioned treaties, the consular treaties used to be bilateral or regional. Nowadays, the consular law is being governed by international law; same for the diplomatic law. The yard stick of the contemporary system of consular law is the Vienna Convention of 1963, while the Diplomatic Relations ABC was provided by the Vienna Convention of 1961. The need of international conventions was obvious in the light of an increasingly global word. In 1949 the Secretary-General of UN Trygve Lie stated: in view of the continual expansion of international trade, the legal position and functions of consuls should be regulated on as universal as possible. 2 By 1957, a Special Rapporteur, Jaroslav Zourek was appointed to conduct the work on Consular law. For the Diplomatic law (Vienna Convention on Diplomatic Relations), the Special Rapporteur who conducted the work was the Swedish diplomat A.E.F Sandstrm. The numerous similarities with diplomatic immunities and intercourse led to the adoption of an accelerated procedure by the Commission on the consular topic. The United Nations conference on Consular Relation was held in March-April 1963, in Vienna. A total of 92 states took part at that point in the Conference. The Convention itself consists of 79 Articles, unlike its sister convention in Diplomatic Relations (1961) that consists of only 53 Articles. By 1990, 130 States had ratified the Vienna Convention on Consular Relations and 154 the Vienna Convention on Diplomatic Relations. In spite of this convention on consular law, the most powerful countries of the world at that time, decided to make a separate agreement. During the Cold War, in 1964 the United States-Soviet Consular Convention was sign for clarity reasons, concerning their "special relationship".3 Later on, France and Sweden would sign separate agreements with Russia as well. The Vienna Convention on Consular Relations is divided in five Chapters: I. Consular relations in general; Establishment and conduct of consular relations, II. Facilities, Privileges and Immunities relating to the Consular Post, Career Consular Officers and Other Member of the Consular Posts, Chapter III Regime Relating to Honorary Consular. Officers and Consular
1 2

Daniels, James, Consular Law, Oxford : Oxford Diplomatic Council, 2004, pp.5-10. Ibidem, p.27 3 Donaldson, Charlie, Soviet Consular Convention : Post-Vienna, in International Law Journal, Volume 10, nr.2, Spring 1969, Available at URL: http://heinonline.org/HOL/LandingPage? collection=journals&handle=hein.journals/hilj10&div=18&id=&page=

Posts headed by such officers, Chapter IV General Provisions and Chapter IV Final provisions. The names of the chapters give a hint on the clarifications and classification the Conventions came with. The Vienna Convention on Diplomatic Relations is not divided in chapters, but addresses the same issues. Chapter 1, Art. 2 from Vienna Convention on Consular Relations suggest that the establishment of diplomatic relations and the opening of permanent missions are somehow distinct one from the other, though not necessarily.4 The consent given to the establishment of diplomatic relations between two states implies, unless otherwise stated, the consent to the establishment of consular relations as well. However, Art. 4 (1) reads as follows: A consular post may be established in the territory of the receiving state only with that states consent. Though not clearly stated, Art. 4 refers only to the new consular posts that are to be established. The severance of diplomatic relations does not implicitly involve the severance of consular relations, in spite of the fact it looks like it should. Article 2(3) specifies that the severance of diplomatic relations shall not ipso facto involve the severance of consular relations. In 1965, as a result of the African Unity severance their relationship with the United Kingdom, the United Arab Republic (not existing any longer) broke off diplomatic relations with the UK, however not with the Consulate. In this respect, the British Consul John Wilton was permitted to do business as usual and ran the Consulate. 5 Article 6 of the Vienna Convention on Diplomatic Relations (1961) provides more information on the accreditation of a diplomatic mission and implicitly of a consular mission. Worth mentioning is that in spite of the fact both the Diplomatic Mission and the Consular Mission are institutions acting under the authority of one sovereign state they are different. The Vienna Convention on Diplomatic Relations Art. 31 (1) (c) states that the functions of a diplomatic mission are wider in scope than those ones of a consular mission. This is the first big difference among them. Art. 3 (2) from the Diplomatic Relations Convention states that nothing in the present Convention shall be constructed as preventing the performance of consular functions by a diplomatic mission. In practice, diplomatic missions have long conducted also consular functions, especially in times of poor financial situation, or due to little qualified staff at disposal. In some particular cases, the opposite is valid as well. Kazakhstani law stipulates that if no diplomatic mission is present, a consul may be given diplomatic powers. Also, in Sweden, by the virtue of the Law of 1 April 1929 dual appointment, consular-diplomatic is possible. During history anyway, consuls have been involved in on the boarder diplomatic-consular cases anyway. 6 Art. 3 of the Vienna Convention on Consular Relations state that although consular functions are exercised by consular posts they can also be exercised by diplomatic missions in accordance with the provisions of the Consular Convention. Therefore, the diplomatic agent can perform in addition to his job, tasks related to the consular mission. This is once more underlined in Art. 70 (1) of the Vienna Convention on Consular Relations , which concludes that the provisions of the present Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission. As far it looks like now, there is not much need of a separate institution called Consulate, when it seems that the embassy can perform its duties very well. Further on, I will describe the functions of both the diplomatic missions and

Denza Eileen, Diplomatic law : a commentary on the Vienna Convention on Diplomatic Relations, Oxford : Clarendon Press ; New York : Oxford University Press, 1998, pp.17-18. 5 Daniels, Consular Law, pp.68-69. 6 Sir Ivor Roberts, Satow's Diplomatic Practice, Oxford: Oxford University Press, 2009, p.544-549.

of consular missions and I will outline any possible existing differences in order for one to understand the need and activities of a consular mission.7 A consulate has usually its headquarters in important localities, of strategic importance or where large amounts of nationals of the foreign state reside. For instance, the United Kingdom has its Embassy of the United Kingdom in Washington, D.C., but maintains seven consulates-general and four consulates elsewhere in the US. Romania has one embassy in London (4 Palace Green), one Consulate in London (344 Kensington High Street, ) and one Cultural Institute attached to these institution at 1 Belgrave Square, London. Apart from these, there are five Honorary Consulates* in Leeds, Southampton, Morpeth, Cardiff and Belfast. As a general rule it is necessary to be recognised as a state in order to establish a consular post abroad. A special case in the Hong Kong Special Administrative Region which by virtue of some bilateral treaties such as the Sino-British Joint declaration of 1984 for instance, has a right to conduct commercial activities with some states. For the time being Hong Kong governments operates missions for trading purposes in Brussels, London, Geneva, Washington, New York and Tokyo. 8 Sometimes between states, the principle of parity and reciprocity sets the allowed number of consulates that can be established. As each state is sender and receiver, each one of them would like to have the same amount of missions on the other's territory, as the other state has on its own. In this respect, Art. 4(1) articulates that a state can only establish a consulate only with the receiving state's approval. Art 2 states that once a diplomatic mission is establish a consulate can be establish, but for each consulate a state wants to open, a new approval is needed. In history, this principle posed some great problems. In 1952, prior to the convention on Consular law, Iran requested that Great Britain close all the consulates from its territory as Iran did not have any consulates on the territory of the UK. This may look right from the perspective of the principle of parity and reciprocity, however not much from that one of the citizens. Citizens have the freedom of movement. British citizens that were living in Iran had to have a consulate to deal with the eventual problems they could have, while it was not Britain's fault, there were not many Iranians in Britain at that time, and no consulate was opened by the Iranian authorities as there was no need to. Such requests, like Iran's, can affect a diplomatic relation and effect in the severance of it.9 The person in charge of a consulate or consulate-general is known as a consul or consulgeneral. Under Art. 11 of the Vienna Consular Convention, the head of a consular post must be provided by the sending State with a document, usually named a Commission which certifies the appointment. The procedure of appointment of a head of a diplomatic mission is different only in regards to some details. Art. 12 states that the head of the consular post is allowed to exercise his functions after he receives an authorisation form the receiving state named exequatur. Members of the consular staff can be freely appointed by the sending state, but their names, category and ranks must be notified in advance to the receiving state. Same goes with the diplomats. The receiving state may refuse some of the staff if too many persons
7

UN Treaty, Vienna Convention on Consular Relations, text available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf 8 Roberts, Satow's Diplomatic Practice, p.253. 9 Daniels, p.53 *A Honorary Consulate is different from a Consulate General. The Honorary consulate is usually located outside the Capital of the receiving state, it is run by a person that already resides there and has a private occupation there. Usually he is not paid on regular basis by the sending state, but he can collect some fees from the official activities he is required to do from time to time. Also the Honorary Consul is not normally entitled to immunities and privileges, though this is to decide between the sending and receiving state.

are appointed. In 1961, Cuban government asked the US to reduce its 300 member staff in 48 hours to an appropriate number. In the case of the consulate is part of the embassy and not a separate established institution, the diplomatic mission has to notify the Ministry of Foreign Affairs of the receiving state of the diplomatic agents assigned to the consular section. One good reason for which a diplomat would do consular work, is avoiding obtaining the birocracy of obtaining exequaturs. The immunities the diplomat performing consular work will be entitled to will be those of a diplomat established under the Vienna Diplomatic Convention. This is important as consular officers are entitled to less extensive privileges, immunities than diplomatic agent. This is important especially when interference activities are carried. Art. 55 (1) of the Vienna Convention on Consular relations which is identically with Art. 41 (1) from Consular law prohibit officials from carrying any activities designed to interfere in the internal affairs of the receiving state. These officials will nevertheless be shield by their diplomatic immunity in the event of their interference in the internal affairs of the receiving state. At least in theory, there is not much difference between diplomatic practice and consular practice, as the embassy can perform the tasks of a consulate as well. This means that a diplomat does not necessarily need additional skills or technical knowledge to perform consular functions. It seems that an embassy and a consulate are similar, but as it will be seen later on, not the same. Both diplomatic missions and consular posts are charged with the task of representation and protection of the interests of the sending state and its nationals. The main big difference between these two categories of functions (diplomatic and consular) is how they are actually performed, namely whether they are exercise their duties through contact with the Ministry for Foreign Affairs or more with local authorities. A special case is a permanent representation (establish under the rules of Vienna Convention on Diplomatic Relationship) that represents a state to a group of states, like the Perm. Rep. of Romania to the EU represents Romania at central EU level. 10 The nature of work an individual consul is entitled to, vary to a greater degree, as between different posts than that one of an individual diplomat to another. By this I mean that a work of a diplomat is similar to that one of another diplomat, but the work of a consul can be much different from that one of another consul. A consul in a port may not do anything less then dealing with trading and commerce between the sending and receiving state, whereas in other places the consul will deal more with any other local problems like migrant workers, tourists, etc. 11 Traditionally, promotion of trade between two countries was the exclusive function of a consul. In this respect, the Supreme Court of the US in 1849 characterized the functions of a consul as principally to watch over trade. Consuls may get involve if a sending state firm finds itself in a dispute with the receiving state government. The only role a consul can play is to provide information or any other technical expertise. 12 Art.5 of the Vienna Convention on Consular Relations lists among consular functions "furthering the development of commercial, economic, cultural and scientific relations." This can be no longer true, as nowadays the embassy can have a commercial attach or an economic attach. As a rule, negotiations between state on trading is a duty of the embassy, while from the embassy perspective the consul can only deal with local businessmen, give them advice and provide them contacts in his home state. In spite of the fact different articles from the Vienna
10 11

Denza, Diplomatic law, p.33. Roberts, p.265. 12 Roberts, p.334.

Convention on Diplomatic Relations and Vienna Convention on Consular Relations the difference between a consul and a diplomat is not clear cut and their functions overlap.13 The vast majority of the key provisions found in the Consular Convention can be found in the Diplomatic Convention as well. Art. 5, where the functions of the consul are listed, provide similar specifications with Art.3 from the Diplomatic Convention. Art.23 stating that a consular staff member can become persona non grata is similar to Art.9 from Convention on Diplomatic Relations where it is stated that a diplomat can become a persona non grata. Art. 31 concerning the inviolability of the premises of the mission is similar to Art.27 from the Convention on diplomatic Relations. Art.35 from consular law, concerning the diplomatic bag, is similar with Art. 27 (3) from the diplomatic law. Art 36 from consular law is particular only to the consular law. A foreign national who was arrested has the right to notify the consulate or the embassy. This is not specified in the Vienna Convention on Diplomatic relations, but as it can be seen from the article, the arrested person can notify the embassy or the consulate. Therefore, the consulate and embassy go hand in hand in each situation. For clarity reasons, in 1957 the European Convention on Consular functions was established; however it never entered into force. Over there the functions of a consul were described to be: issuing of passports to the nationals of the sending state and visas, intensification of documents, registration of births and marriages in the receiving state of nationals of sending state. Because some states will not keep a separate consulate, these issues can be addressed within the embassy by the consular section oft he embassy.14 For instance in Belgium, Romanian does not keep a separate institutions called consulate, but a consular section exists within the Romanian embassy to the Kingdom of Belgium. No exhaustive list of consular functions from a working treaty is to be found. As far as now, the treaties state mainly immunities and not functions. The consular functions were rather indirectly listed. 15 The consul acts in accordance with the situations that he faces. He acts in accordance with the instructions send by the home state and on the laws of the receiving state. The consul has to keep himself informed of the legislation in order to take good care of the interests of the sending state. No consul or diplomatic official is entitled to exercise functions prohibited under the national or local law in the receiving state. Art. 5 of the Vienna Convention on Consular Convention authorise consuls to perform "any other functions entrusted to a consular post by the sending State which are prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending state and the receiving State". The agreements between the sending state and the receiving state may be more important then the Vienna Convention. Which is more important is being agreed by the concerned states. A particular case is that one of the United States of America. In March 2005, the United States pulled out of the Optional Protocol to the Convention, which allows the International Court of Justice to have compulsory jurisdiction over disputes arising under the Convention. Moreover, Art. 36 has a special statute in US' vision. Art. 36 in the view of the Inter American Court of Human Right creats other invidivual rights, thn those which are essentially. In 2001, the International Court of Justice in LaGrand (Germany v. United States of America) found that where a violation of article 36 occurs, a remedy is due consisting of review and
13 14

Ibidem, pp.259-260. Luke Lee and John Quigley, Consular law and practice, Oxford, Oxford University press, 2008, p.112-114. 15 Ibidem, p.108.

reconsideration by United States courts of convictions and sentences, in light of the breach of the Convention.16 The consular law and the diplomatic law represent different side of the same coin: foreign affairs. Both the consulate and the embassy are well established historical institutions. Diplomats deal more with the government of the receiving state, while consuls more with local authorities and both of them with citizens. The functions of a diplomatic mission are wider in scope than those ones of a consular mission, as a diplomatic mission can do the job of a consulate. In some particular cases like Kazakhstan and Sweden, the Consulate can do the job of the embassy. There is no clear cut between diplomatic law and consular law, however two separate conventions were needed by the 1960s. Local authorities in some cases are as important as the national ones. Once with the establishment of supra-states like the EU, both diplomatic law and consular law lost importance. It will be a good idea the UN to address in a separate convention the Permanent Representations of a country to supra-states and suprastates delegations to individual states.

Bibliography Denza Eileen, Diplomatic law : a commentary on the Vienna Convention on Diplomatic Relations, Oxford : Clarendon Press ; New York : Oxford University Press, 1998.
16

UN, Audio-Visual Library of International Law, Juan Manuel Gmez Robledo, Deputy Foreign Minister for Multilateral Affairs and Human Rights of Mexico, Vienna Convention on consular Relations, 2008, Available at URL http://untreaty.un.org/cod/avl/ha/vccr/vccr.html

Donaldson, Charlie, Soviet Consular Convention : Post-Vienna, in International Law Journal, Volume 10, nr.2, Spring 1969, Available at URL: http://heinonline.org/HOL/LandingPage? collection=journals&handle=hein.journals/hilj10&div=18&id=&page= Luke Lee and John Quigley, Consular law and practice, Oxford, Oxford University press, 2008. Daniels James, Consular Law, Oxford : Oxford Diplomatic Council, 2004. Sir Ivor Roberts, Satow's Diplomatic Practice, Oxford: Oxford University Press, 2009. UN, Audio-Visual Library of International Law, Juan Manuel Gmez Robledo, Deputy Foreign Minister for Multilateral Affairs and Human Rights of Mexico, Vienna Convention on consular Relations, 2008, Available at URL http://untreaty.un.org/cod/avl/ha/vccr/vccr.html UN Treaty, Vienna Convention on Consular Relations, text available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf