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Diplomatic and Consular Law

New Trends in Polarized World


• All over, diplomacy became more serious,
spurred on by pressures of the Cold War,
decolonization and the need to manage an
increasingly complex international
economy. Diplomacy better reflected
society, as disarmament experts and trade
negotiators replaced noblemen and
traditional political officers.

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The business suit largely replaced braided
uniforms and gleaming decorations.
Also:
• Rapid communications leave little time for
reflection
• Public opinion and politics play a greater
role
• Greater role of international organizations
(multilateral).
• 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.

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• 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.

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• 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.

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Section 1: Diplomatic Mission
• Today, all States are represented in
foreign States by diplomatic
representatives. These diplomatic
representations are of a permanent
nature, although representatives are
changeable.

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• In the early 19th Century, some common
understandings on the rules were reached
to at the Congress of Vienna of
1815. Developments of diplomatic rules
have continued since that date. The new
and the most extensive codification of the
diplomatic law was achieved in 1961 by
the conclusion of the Vienna Convention
on Diplomatic Relations.

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A. Members of a Mission and Classification
of Heads of a Mission
Under the 1961 Vienna Convention on
Diplomatic Relations, members of the
diplomatic mission are the following:

(1) The head of the mission: The person


who is charged by the sending State with
the duty of acting in that capacity.

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(2) Members of the diplomatic staff: The
members who have diplomatic rank.
(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: The
members who are employed in the
domestic service of the mission.
The Convention divided Heads of
diplomatic missions into three classes,
namely:

(1) Ambassadors accredited to Heads of


States.
(2) Special envoys and ministers
accredited to Heads of States.
(3) Charges d’affaires accredited to
Ministers for Foreign Affairs.
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B. Appointment of Heads and Diplomatic
Members of the Missions
Under the Convention, the appointment
of a diplomatic agent (the head of the
diplomatic mission or any member of the
diplomatic staff) is subject to the
agreement of the receiving States which
has the right to refuse the appointment of
any particular person without being
obliged to give reasons.

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• It is still, however, that the receiving state
can at any time without obliged to explain
its decision to notify the sending State that
a particular diplomat is persona non grata;
in such case, he should be recalled and
his functions should be terminated.
C. Functions of the Diplomatic Mission
The functions of a diplomatic mission as
stated by the Convention consist among
other things of:
(1)representing the sending State in the
receiving State;
(2) protecting in the receiving State the
interests of the sending state and its
nationals, within the limits permitted by
international Law;
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(3) negotiating with the Government of the
receiving State;
(4) ascertaining by all lawful means
conditions and developments in the
receiving State, and reporting thereon to the
Government of the sending State;
(5) promoting friendly relations between the
sending State and the receiving State, and
developing their economic, cultural and
scientific relations.
D. Privileges and Immunities of a Diplomatic
Agent

The most important privileges and


immunities granted to a diplomatic agent
(the head of the mission and members of
diplomatic staff) are:

(1) A complete immunity from the criminal


jurisdiction of the receiving State;

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(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.

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(3) The inviolability of his person.
(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) Freedom of communication for official
purposes;
(6) The right to move freely in the territory
of the receiving State.
(7) The inviolability of his private
residence.
(8) The inviolability of his papers,
correspondence and property

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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.

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• Exceptions to the immunity of a diplomatic
agent from jurisdiction of the receiving
State:
– Waiver by the sending State which 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.

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• 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.
E. Termination of a Diplomatic Mission or of the
Functions of a Diplomatic Agent

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:

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(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) Resignation of the diplomatic agent.
(6) Death of the diplomatic agent.

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Section 2: Consular Post
The institution of consular post is much older
than that of diplomatic mission. The modern
system of consular post is dated back to the
16th Century. The 1963 Vienna Convention
on Consular Relations is the law governing
consular representation.
A consular officer is any person, including
the head of the consular post, entrusted with
the capacity to exercise consular functions.
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A consular officer, like a diplomatic agent,
represents his State in the receiving State
but he is not concerned with political
relations between the two States, but with a
variety of administrative functions:
issuing visas and passports,
looking after the commercial interests of
his State, and
assisting the nationals of his State in
distress.
Members of the Consular Post and
Classification of the Heads of the Post
The members of the consular post as stated
by the 1963 Vienna Convention are:
(1) The head of the post
(2)Consular officers, other than the head of
the consular post
(3) Consular employees
(4) Members of the service staff
(5) Members of the private staff
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The heads of a consular post are divided
into four classes, namely:

(1) Consuls-General
(2) Consuls
(3) Vice-Consuls
(4) Consular agents

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Appointment of a Head of the Consular
Post
The head of a consular post is
appointed by the sending State and is
admitted to exercise his functions by the
receiving State. The sending State
normally notify the appointment of a
consul to the receiving State which has the
right either to issue an “exequatur” or
refuse to issue it without obliged to give
reasons.
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• Normally, a consul does not take his post
until receiving an exequatur. If
subsequently, an objection is raised, the
receiving State may notify the appointing
State that the consul is no longer
acceptable. Then the appointing State
must recall him, if it does not, the receiving
State may withdraw the exequatur.
Functions of a Consular Post

(1) Protecting the interests of the sending


State and its nationals in the receiving
State.
(2)Furthering the development of
commercial, economic, cultural and
scientific relations between the sending
State and the receiving State.

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(3) Promoting friendly relations between
the sending State and the receiving
State.
(4) Reporting to the sending State on the
conditions and developments of the
commercial, economic, cultural and
scientific life of the receiving State, and
giving such information to interested
persons.
(5) Issuing passports and travel
documents to nationals of the sending
State, and giving visas to persons wishing to
travel to that State.
(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.
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(7) Transmitting judicial and extra-judicial
documents to the receiving 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.
Privileges and Immunities of Consular
Officers
(1)A consular officer
- 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;
- is immune from imprisonment or any other
restrictions on his personal freedom
save in execution of a final judicial
decision.
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(2) A consular officer and a consular
employee
- are immune from the jurisdiction of the
judicial or administrative authorities of
the receiving State only in respect of acts
performed in exercise of consular
functions.

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(3) A consular officer and a consular
employee and members of their
families forming part of their
households - are exempt from all dues &
taxes, except on certain specified cases.
(4) A member of the consular staff
- no obligation to give evidence concerning
matters connected with the exercise of his
functions or to produce official
correspondence and documents related
thereto;
- is also entitled to decline to give evidence
as expert witness with regard to the law of
the sending state;
- enjoys the freedom of communication for
official purposes;
- enjoys the right to move freely in the
territory of the receiving State;

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Termination of a Consular Functions

The consular functions may be terminated


by various ways and reasons as follow:
(1) A recall of the member of the consular
post by his appointing State upon its
initiative, or at the request of the receiving
State.
(2) A notification by the appointing State to
the receiving State that the functions of the
post or any of its members are terminated.
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(3) The withdrawal of the exequatur by the
receiving State.
(4) Resignation of the member of the
consular post.
(5) Death of the member of the consular
post.
(6) The breaking off relations between the
sending and receiving States, such as in
case of a war.
Thank you.

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«Let us never negotiate out of fear.
But let us never fear to negotiate»

John Kennedy, 1961

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Ambassadors in the 18th
Century

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The Beginnings of Classical
Diplomacy
• The characteristics of classical diplomacy
were :

• Basically bilateral diplomacy


• Secrecy of negotiations
• Protocol/Ceremonial [(precedence,
etiquette, etc.) what we call “comitas
gentium”)]
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«e-diplomacy» and «cyber diplomacy»
• 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. But are diplomats - and other
people interested in international affairs – using IT tools
to their best and fullest advantage? This part of our
course aims to explore the various opportunities offered
by new technologies to improve diplomatic activities. The
different components of the course will highlight some of
the risks (and opportunities) of the tools and the
information available.

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Bilateral and Multilateral Diplomacy

• Bilateral Diplomacy: Embassies, consular


posts, and unconventional resident missions
such as interests sections and representative
offices. Why they are the major part of the
modern counter-revolution in diplomatic practice.

• Multilateral Diplomacy: Ad hoc and standing


conferences. Questions of procedure: venue,
membership, agenda, transparency, and above
all decision-making. The triumph of “consensus-
decision making” and its various techniques.
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Holy See Diplomacy

• International subjectivity of Holy See


• The ancient diplomacy.
• THE SECRETARIAT OF STATE
• Secretary of State
• Section for international relations with states
• the Section for Relations with states has the specific
duty of attending to matters which involve civil
governments. It has responsibility for the Holy See’s
diplomatic relations with states, including the
establishment of Concordats or similar agreements; for
the Holy See’s presence in international organizations
(i.o.) and conferences.
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Article 14 – Vienna 1961

• 1. “Heads of mission are divided into three classes, namely:


• (a) that of ambassadors or nuncios accredited to Heads of State,
and other heads of mission of equivalent rank;
• (b) that of envoys, ministers and internuncios accredited to
Heads of State;
• (c) that of charges d'affaires accredited to Ministers for Foreign
Affairs.
• 2. Except as concerns precedence and etiquette, there shall be no
differentiation between heads of mission by reason of their class.
Please see page 43

52
European Union Treaty

European Community Treaty

53
European Union Diplomacy

54
Legal personality

• Article 281 European Community


• The Community shall have legal personality.

• Article 282 European Community


• In each of the Member States, the Community shall
enjoy the most extensive legal capacity accorded to legal
persons under their laws; it may, in particular, acquire or
dispose of movable and immovable property and may be
a party to legal proceedings. To this end, the Community
shall be represented by the Commission.

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TREATY ESTABLISHING THE

EUROPEAN COMMUNITY (EC)

PART TWO
“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”.
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TREATY ESTABLISHING THE EUROPEAN COMMUNITY

• Article 207 (in Italian “COREPER”)

• “1. A committee consisting of the Permanent Representatives of the Member


• States shall be responsible for preparing the work of the Council and for
• carrying out the tasks assigned to it by the Council. The Committee may adopt
• procedural decisions in cases provided for in the Council's Rules of Procedure.
• 2. The Council shall be assisted by a General Secretariat, under the
• responsibility of a Secretary-General, High Representative for the common
• foreign and security policy, who shall be assisted by a Deputy Secretary-General
• responsible for the running of the General Secretariat. The Secretary-General
• and the Deputy Secretary-General shall be appointed by the Council acting by a
• qualified majority.
• The Council shall decide on the organization of the General Secretariat (…)”.

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TREATY ESTABLISHING THE EUROPEAN COMMUNITY

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.]
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European Union Treaty

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”.

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European Union Treaty
• TITLE V—Provisions on a common foreign and security policy
(in Italian ”PESC”)
[Articles 11-28]

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”.

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• Article 48 - European Union Treaty – “AMENDMENT”

“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 constitutional
requirements”.

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• Article 49 - European Union Treaty – “New States Admissions”

“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”.

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Second Part

63
Sources of Diplomatic law
• 1. Customary law
• 2. General legal principles
• 3. Agreement (conventions, treaties etc.)
see next page
• 4. Acts
• 5. Analogy
• 6. Comitas gentium , international comity,
courtesy, precedence and etiquette, protocol
(customary source) and diplomatic practice
• 7. Others sources: doctrine; jurisdiction
64
Vienna Convention on the Law of Treaties
Done 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;

65
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 the
consent 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)

66
Vienna Convention on the Law of Treaties

• Article 85 “Authentic texts”

The original of the present Convention, of which


the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the
United Nations.

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Subjects of Diplomatic law
• 1. The state as a subjects of diplomatic law.
• 2. International organizations (i.o.) and
European Union.
• 3. The individuals in the International and
Diplomatic Law.
• 4. Individuals as organs of the state.

• 5. Diplomats as organs of international


affairs.
68
Sovereignty of the State
• In International law, states are superiorem non
recognoscentes, which means that only states
(and i.o.) can begin diplomatic relation with other
subjects of international community.
• 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).
• There is no any ius legationis that entitle a state
without consensus of the other state.
69
70
PREAMBLE

• WE THE PEOPLES OF THE UNITED NATIONS DETERMINED



• to save succeeding generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind, and
• to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small, and
• to establish conditions under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom,

• AND FOR THESE ENDS


• to practice tolerance and live together in peace with one another as good neighbours, and
• to unite our strength to maintain international peace and security, and
• to ensure, by the acceptance of principles and the institution of methods, that armed force shall
not be used, save in the common interest, and
• to employ international machinery for the promotion of the economic and social advancement of
all peoples,

• HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS


• Accordingly, our respective Governments, through representatives assembled in the city of San
Francisco, who have exhibited their full powers found to be in good and due form, have agreed to
the present Charter of the United Nations and do hereby establish an international organization to
be known as the United Nations.

71
CHAPTER I
PURPOSES AND PRINCIPLES

Article 1

• The Purposes of the United Nations are:

• To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law, adjustment or
settlement of international disputes or situations which might lead to a breach of the
peace;
• To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
• To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
• To be a centre for harmonizing the actions of nations in the attainment of these common
ends.

72
CHAPTER VI
PACIFIC SETTLEMENT OF DISPUTES

• Article 33
• The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.
• The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

• Article 34

• The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a
dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of
international peace and security.

• Article 35

• Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention
of the Security Council or of the General Assembly.
• A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General
Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific
settlement provided in the present Charter.
• The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the
provisions of Articles 11 and 12.

• Article 36

• The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature,
recommend appropriate procedures or methods of adjustment.
• The Security Council should take into consideration any procedures for the settlement of the dispute which have already been
adopted by the parties.
• In making recommendations under this Article the Security Council should also take into consideration that legal disputes
should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the
Statute of the Court.

73
Third Part

Commentary on the Vienna Convention


on Diplomatic Relations
April, the 18th of 1961

74
• Entry into force: 24 April 1964, in
accordance with article 51.
• Registration: 24 June 1964, No. 7310.
• Status: Signatories: 60 ,Parties: 184.
• Text: United Nations, Treaty Series, vol.
500, p. 95.

75
Vienna Convention 1961
• The Convention was adopted on 14 April 1961 by the
United Nations Conference on Diplomatic Intercourse
and Immunities held at the Neue Hofburg in Vienna,
Austria, from 2 March to 14 April 1961. The Conference
also adopted the Optional Protocol concerning the
Acquisition of Nationality, the Optional Protocol
concerning the Compulsory Settlement of Disputes, the
Final Act and four resolutions annexed to that Act. The
Convention and two Protocols were deposited with the
Secretary-General of the United Nations. The Final Act,
by unanimous decision of the Conference, was
deposited in the archives of the Federal Ministry for
Foreign Affairs of Austria.
76
Vienna Convention on Diplomatic Relations
&
VIENNA CONVENTION ON CONSULAR RELATIONS

• Two different agreements (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.

77
Vienna Convention on Diplomatic Relations
&
VIENNA CONVENTION ON CONSULAR RELATIONS

Vienna Convention 1963

• 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 severance (breaking) of diplomatic relations shall not ipso
facto involve the severance of consular relations”.

• NOTE: paragraphs 2 and 3 well explain the relation between two


Conventions.

78
VIENNA CONVENTION ON CONSULAR
RELATIONS

• Article 3 : ”EXERCISE OF CONSULAR FUNCTIONS”

“Consular functions are exercised by


consular posts. They are also exercised by
diplomatic missions in accordance with the
provisions of the present Convention”.

79
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”. (…)

80
Vienna Convention on Diplomatic Relations
&
VIENNA CONVENTION ON CONSULAR RELATIONS
Purposes in comparison

Article 5 ”CONSULAR FUNCTIONS”

• Consular functions consist in:

• (a) protecting in 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

81
VIENNA CONVENTION ON CONSULAR
RELATIONS
follow art. 5:
“(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to
travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(f) acting as notary and civil 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; (…)

82
The Diplomatic Career Path
in Italy (by The Minister for Foreign Affairs)
• Second Secretary on trial (9 months) at the Diplomatic Institute and in the ministerial offices (9
months)
• Second Secretary (duration of appointment at that grade: 10 years and 6 months, including the 9
month trial period)
• At the Ministry of Foreign Affairs (2 to 3 years) followed by the first assignment abroad to two or
three foreign offices (6 to 8 years) followed by a refresher course at the Diplomatic Institute (for
at least 6 months)
• Second Counsellor
(duration of appointment at that grade: at least four years)
• The first foreign posting cycle reaches an end, followed by:
A return to the Ministry of Foreign Affairs (2 - 3 years)
• New foreign destination
First Counsellor (duration of appointment at that grade: at least four years)
• Assignment abroad or to the Ministry
(approximately 2/3 of the career spent abroad) followed by another refresher course at the
Diplomatic Institute (at least 3 months)
• Minister Plenipotentiary* (duration of appointment at that grade: at least 7 years)
• Assignment abroad or to the Ministry
(approximately 2/3 of the career spent abroad)
• Ambassador *

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
83
on proposal of the Ministry of Foreign Affairs.
Diplomats rank
Article 14 – Vienna 1961

• 1. “Heads of mission are divided into three classes, namely:


• (a) that of ambassadors or nuncios accredited to Heads of State, and
other heads of mission of equivalent rank;
• (b) that of envoys, ministers and internuncios accredited to Heads of
State;
• (c) that of charges d'affaires accredited to Ministers for Foreign Affairs.
• 2. Except as concerns precedence and etiquette, there shall be no
differentiation between heads of mission by reason of their class.

Article 15
• “The class to which the heads of their missions are to be assigned shall be
agreed between States”.

84
Consul ranks

• Article 9 ”CLASSES OF HEADS OF CONSULAR POSTS”

• 1. Heads of consular posts are divided into four classes,


namely:
• (a) consuls-general;
(b) consuls;
(c) vice-consuls;
(d) consular agents.

• 2. Paragraph 1 of this Article in no way restricts the right


of any of the Contracting Parties to fix the designation of
consular officers other than the heads of consular posts.

85
Diplomatic agent appointment

• 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).

86
Consul appointment
• 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.

87
Diplomats withdrawal
“Withdrawal of diplomatic credentials”

• 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”.
88
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.

89
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.

90
Diplomatic agent appointment
• 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.

91
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.

92
Protocol for the Modern Diplomat
• Comitas gentium =
Protocol,Ceremonial,diplomatic practice.
• Few things are as anxiety provoking for the first-
time embassy or mission employee or family
member as the notion of diplomatic protocol.
Protocol can sound both stuffy and mysterious at
the same time; the rules and processes of
diplomatic protocol are based in pragmatic
thinking, common sense, and good manners.

93
• Protocol makes the job of representing
sending state easier by facilitating our
work as a mission team, making our
relationships and interactions within the
diplomatic and host country communities
more predictable, and by providing a basic
social framework and hierarchy to follow.

94
Addressing Others
• Although guidelines exist, proper forms of address vary
greatly from culture to culture. Be sure to check local
customs, but a few general rules follow. The spirit of
formality among diplomatic representatives usually
means not addressing others by their first names. One
should rely on courtesy titles until invited to do otherwise.
Socially, one can refer to a spouse by his/her first name
or as "my husband," or "my wife" rather than as "Mr./Mrs.
Smith." When dealing with household employees
however, you should still refer to your spouse as
"Mr./Mrs. Rossi." Ambassadors are addressed as
Mr./Madam Ambassador or Ambassador Fulci. Only by
special invitation or long friendship should one address
an ambassador by first name and then only when not in
the public eye.
95
• An ambassador may continue to be addressed
as "Mr./Madam Ambassador" after retirement or
after returning from his/her duties abroad. In
some French-speaking countries, the wife of the
ambassador may be referred to as Madam
Ambassador. Therefore, in those countries, refer
to a female ambassador by her last name
• (Ambassador Deneuve) to avoid confusion and
ensure that she receives her due respect.
• Those of rank below Ambassador are addressed
as Mr., Ms. or Mrs., if marital status is known..
96
Diplomatic Titles
1. Chiefs of Mission
• Mr./Madam Ambassador or Ambassador Fulci.
Sir Richard—British ambassador who is a knight
(Sir Richard's wife would be addressed as "Lady
Smith.")
• Lord Montgomery—British ambassador who is a
baron Mr./Mrs. Douglas or Ms. Williams—the
ambassador's spouse
2. Chargé d'Affaires: Mr./Ms/Mrs./Madam
Biancheri
3. Ministers and Others : Mr./Madam Fulci

97
Hierarchy
• Diplomatic ranks can be confusing and unfamiliar. The
following list ranks many of the positions (from the top
down) one may find in an embassy. Not all positions
exist in every embassy.
• Ambassador
• Ministers Plenipotentiary
• Ministers
• Chargé d'Affaires ad hoc or pro tempore
• Charge d' Affaires ad interim
• Minister-Counselors
• Counselors (or Senior Secretaries in the absence of
Counselors)

98
Hierarchy (to be continued)
• Army, Naval and Air Attachés
• Civilian Attaches not in the Foreign Service
• First Secretaries
• Second Secretaries
• Assistant Army, Naval and Air Attachés
• Civilian Assistant Attaches not in the Foreign
Service
• Third Secretaries and Assistant Attachés

99
Dress

• Dress varies according to country and


event. Women should be particularly
mindful of conservative dress rules, such
as skirt length, low necklines, and having
one's arms covered.
• Remember that "casual" in other countries
almost never means jeans or shorts. It is
always better to be too dressed up than
too dressed down.

100
Gender issues

• Gender roles vary from country to country,


and sometimes even within regions of one
country. For example, a husband may be
expected to precede his wife in a receiving
line, or men and women may go into
separate rooms for dessert.

101
Respect of “status”
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 seat of a sofa,
as you sit, for the guest of honour.
102
Sample Seating Arrangement for a
Men's/Women's Luncheon or Dinner
• As a general rule, an even number of men
and women alternate seats at a table. In
American homes, foreign guests take
precedence over Americans of
comparable rank with the exception of the
Ambassador of the United States. The
Ambassador is seated as a host or
hostess to avoid seating precedence
conflicts. This courtesy also applies to the
ambassador's spouse.
103
• To seat the host(ess) and the guest of
honor opposite each other in the middle of
the long sides of the dining table and then
alternate from there. Place a seating chart
in the entrance hall so that each guest
may find his/her place before entering the
dining room.

104
Formal "Black Tie" or "White Tie"
• Formal wear may be worn at evening
performances of the opera, the theater,
balls, and for the most formal dinners and
evening affairs.
• Black tie is generally not worn in the
daytime.
• White tie requires the additional formality
of a cutaway ("tails") for men and a floor-
length ball gown for women.
105
Diplomatic Corp (Service)
• We have two different “diplomatic corps”:

1. The whole of foreign states accredited to


the receiving state at the same moment.

2. The whole of all national diplomats


involved abroad within international
relations.
106
Diplomatic Corp (Service)
• Definition:

“Diplomatic corp is de facto reunion of


foreign states involved in diplomatic
relation with the same state in the same
historical moment”.
• We can say that Diplomatic Corp is an
international institution.
107
Consular Corp
• The whole of Consuls accredited
(appointment) to the receiving state, in the
same city and at the same instant.

• Definition: “Consular corp is de facto


reunion of Consuls involved in consular
relation within the same state, in the same
place and in the same historical moment”.

108
HONORARY CONSULAR
OFFICERS
Vienna Convention 1963

CHAPTER III:
“REGIME RELATING TO HONORARY
CONSULAR OFFICERS AND
CONSULAR POSTS HEADED BY SUCH
OFFICERS”
(Articles 58 to 68)
109
CHAPTER III
Article 58
“GENERAL PROVISIONS RELATING TO FACILITIES, PRIVILEGES AND
IMMUNITIES”

• 1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of Article 54 and
paragraphs 2 and 3 of Article 55 shall apply to consular posts headed by an honorary
consular officer. In addition, the facilities, privileges and immunities of such consular
posts shall be governed by Articles 59, 60, 61 and 62.
• 2. Articles 42 and 43, paragraph 3 of Article 44, Articles 45 and 53 and paragraph 1
of Article 55 shall apply to honorary consular officers. In addition, the facilities,
privileges and immunities of such consular officers shall be governed by Articles 63,
64, 65, 66 and 67.
• 3. Privileges and immunities provided in the present Convention shall not be
accorded to members of the family of an honorary consular officer or of a consular
employee employed at a consular post headed by an honorary consular officer.
• 4. The exchange of consular bags between two consular posts headed by honorary
consular officers in different States shall not be allowed without the consent of the
two receiving States concerned.

110
HONORARY CONSULS
• Article 16 ”PRECEDENCE AS BETWEEN
HEADS OF CONSULAR POSTS”

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. (…)

111
HONORARY CONSULS
• Article 22
“NATIONALITY OF CONSULAR OFFICERS”

• 1. Consular officers should, in principle, have the


nationality of the sending State.
• 2. Consular officers may not be appointed from
among persons having the nationality of the
receiving State except with the express consent
of that State, which may be withdrawn at any
time.

112
“Status”
• 1. Diplomatic status
• 2. Consular status
Definition:
“Status” means the special (legal)
condition which grant extraordinary
individual facilities, privileges,immunities,
inviolability, exemptions, and special
freedoms.
113
“Status”
“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.

114
“Status”
1. Facilities
2. Privileges
3. Immunities
4. Inviolability
5. Exemptions
6. Special freedoms
7. Protection

115
“Status”/facilities,privileges,exemptions
1. Facilities/2. Privileges: all honours, benefits and conveniences
rising from the diplomatic status. But art. 20 “The mission and its
head shall have the right to use the flag and symbol of the sending
State on the location of the mission, including the residence of the
head of the mission, and on his means of transport”.

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 buildings
necessary 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).

116
“Status”/special freedom
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”.

117
“Status”/inviolability
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”.

118
“Status”/inviolability
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 inviolability and shall not be liable to
any form of arrest or detention”.

119
“Status”/inviolability
• Art. 29 “The person of a diplomatic agent
shall be inviolable. He shall not be liable to
any form of arrest or detention. The
receiving State shall treat him with due
respect and shall take all appropriate
steps to prevent any attack on his person,
freedom or dignity.

120
“Status”/inviolability
• Article 30
• 1. The private residence of a diplomatic
agent shall enjoy the same inviolability and
protection as the building of the mission.
• 2. His papers, correspondence and,
except as provided in paragraph 3 of
Article 31, his property, shall likewise
enjoy inviolability.

121
Diplomatic immunity
• We have two category of diplomatic
immunity:
1) immunity from criminal jurisdiction:
2) immunity from civil and administrative
jurisdiction.
• Immunity means exemption from any
judgment (tribunals of receiving state).
Diplomat not be subject to any form of
arrest or detention.
122
Criminal immunity
Article 31

1. A diplomatic agent shall enjoy immunity


from the criminal jurisdiction of the
receiving State. (…)

to be continued…

123
Criminal immunity
• Criminal immunity means full exemption
from any criminal judgment and act.
• We have a full immunity: the diplomat is
covered for all action and act, any
diplomatic act (related to the function); any
private act and action even if out of
diplomatic mission.
• Remember difference: iure imperii (or iure
privatorum) acts and iure gestionis acts
124
Civil immunity
Article 31
1. (…) He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
• (a) a real action relating to private immovable
property situated in the territory of the receiving State,
except he holds it on behalf of the sending State for
the purposes of the mission;
• (b) an action relating to succession in which the
diplomatic agent is involved as executor, administrator,
heir (erede) or legatee as a private person and not on
behalf of the sending State;
• (c) an action relating to any professional or
commercial activity exercised by the diplomatic agent
in the receiving State outside his official functions.
125
Immunity / “status”
• Article 10

• 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.

126
Immunity / “status”
• Article 13

• 1. The head of the mission is considered as having taken up his


functions in the receiving State either when he has presented his
credentials or when he has notified his arrival and a true copy of his
credentials has been presented to the Ministry for Foreign Affairs of
the receiving State, or such other ministry as may be agreed, in
accordance with the practice prevailing in the receiving State which
shall be applied in a uniform manner.

• 2. The order of presentation of credentials or of a true copy thereof


will be determined by the date and time of the arrival of the head of
the mission.

127
Diplomatic immunity
• Article 32 – Waiver (renounce)

• 1. The immunity from jurisdiction of


diplomatic agents and of persons enjoying
immunity under Article 37 may be waived
(renounce) by the sending State.

• 2. Waiver must always be express. (…)


128
Diplomatic immunity
• Article 32 – Waiver (renounce)

Waiver must always be express means


that the sending State must waive in a
written diplomatic document.
(Diplomatic note)

129
Diplomatic immunity
• Article 32 – Waiver (renounce)

• ”Counterclaim” (domanda riconvenzionale)

• (…) 3. “The initiation of proceedings by a


diplomatic agent or by a person enjoying
immunity from jurisdiction under Article 37 shall
preclude him from invoking immunity from
jurisdiction in respect of any counter-claim
directly connected with the principal claim”.

130
Consul immunity
• Vienna 1963 - Article 43 “IMMUNITY FROM
JURISDICTION”

• 1. Consular officers and consular


employees shall not be amenable to the
jurisdiction of the judicial or administrative
authorities of the receiving State in
respect of acts performed in the
exercise of consular functions.
131