Diplomatic and Consular Law

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Diplomatic and Consular Law

• Commentary on the Vienna Conventions on
  Diplomatic and Consular Relations

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Università degli Studi della CalabriaFaculty
of Political Science

• Course of Diplomatic and Consular Law
• (5 cfu)

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• First Part

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Foreward

• Since we can imagine relationship between at
  least two sovereign, autonomous and independent
  states, we can basically say that Diplomacy has
  started his long way. As you already know,
  International law is defined as the body of rules
  governing the relations between states.
• This module considers Diplomatic and Consular law
  as the practice and techniques of Diplomacy. So
  we can state that the art of Diplomacy is the
  technical profile of International law. In fact,
  all International law can be considered
  diplomatic law and, on the contrary, all
  diplomatic law can be considered international
  law. For this reason, it is necessary to know,
  first of all, basically, International law and
  then approach to diplomatic law.
• As we will see later on, diplomatic law is a
  flexible law, as diplomacy is a flexible mission.

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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 Historic Development of Diplomacy

• We start our topic with a few historic
  references, clarifying immediately that we like
  to date the beginning of (modern) diplomacy at
  the Romans time.
• It is not necessarily to go backward.
• Romans were rulers and administrators. They
  increased interstate relationships and ratify the
  Latin expression jus legationis, just to
  provide the rules of conduct of interstate
  relationship. We have 1) jus legationis active
  and 2) jus legationis passive. The first one
  is when the state can send our diplomats
  (legatus) the second when the state receive on
  our territory an alien mission. At that time, the
  legatus was a state organ more similar at the to
  days consul that a real diplomat.

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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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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. 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).

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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 Sees diplomatic relations with
  states, including the establishment of Concordats
  or similar agreements for the Holy Sees
  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

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• European Union Treaty
• European Community Treaty

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European Union Diplomacy
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• 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 (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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• The Coreper is chaired by the Member State which
  holds the Council Presidency.
• Coreper occupies a pivotal position in the
  Community decision-making system, in which it is
  both a forum for dialogue (among the Permanent
  Representatives and between them and their
  respective national capitals) and a means of
  political control (guidance and supervision of
  the work of the expert groups).
• It thus carries out preliminary scrutiny of the
  dossiers on the Council agenda (proposals and
  drafts for acts tabled by the Commission). It
  seeks to reach agreement at its own level on each
  dossier, failing which it may suggest guidelines,
  options or suggested solutions to the Council.
• Coreper works in two configurations
• Coreper I, consisting of the deputy permanent
  representatives, deals with technical matters
• Coreper II, consisting of the ambassadors, deals
  with political, commercial, economic or
  institutional matters.
• Coreper deals with all areas of the Council's
  work apart from agricultural issues, for which
  Agriculture Council dossiers are prepared by the
  Special Committee on Agriculture (SCA).

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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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• 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

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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

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Vienna Convention on the Law of TreatiesDone at
Vienna, this twenty-third day of May, one
thousand nine hundred and sixty-nine (23rd of
may 1969)entered into force January 27, 1980

• Article 2 Use of terms1. 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

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Vienna Convention on the Law of Treaties

• Article 2 Use of terms1. 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)

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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.

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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.

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(No Transcript)
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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.

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CHAPTER IPURPOSES 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.

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CHAPTER VIPACIFIC 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.

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Third Part

• Commentary on the Vienna Convention on Diplomatic
  Relations
• April, the 18th of 1961

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• 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. 

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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.

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Vienna Convention on Diplomatic
RelationsVIENNA 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.

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Vienna Convention on Diplomatic
RelationsVIENNA 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.

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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.

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Vienna Convention on Diplomatic
RelationsVIENNA 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. ()

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Vienna Convention on Diplomatic
RelationsVIENNA 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

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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  ()

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The Diplomatic Career Pathin 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 byA return to the Ministry of Foreign
  Affairs (2 - 3 years)
• New foreign destinationFirst Counsellor
  (duration of appointment at that grade at least
  four years)
• Assignment abroad or to the Ministry(approximatel
  y 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(approximatel
  y 2/3 of the career spent abroad)
• Ambassador
• Assignment abroad or to the Ministry(approximate
  ly 2/3 of the career spent abroad)
• Appointment conferred under Presidential Degree
  subject to the approval of the Council of
  Ministers on proposal of the Ministry of Foreign
  Affairs.

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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.

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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.

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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).

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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.

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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.

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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.

51
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.

52
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.
  

53
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.

54
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.

55

• 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.

56
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.

57
To be continued

• 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..

58
Diplomatic Titles

• 1. Chiefs of Mission
• Mr./Madam Ambassador or Ambassador Fulci.
• Sir RichardBritish ambassador who is a knight
  (Sir Richard's wife would be addressed as "Lady
  Smith.")
• Lord MontgomeryBritish ambassador who is a baron
  Mr./Mrs. Douglas or Ms. Williamsthe ambassador's
  spouse
• 2. Chargé d'Affaires Mr./Ms/Mrs./Madam
  Biancheri
• 3. Ministers and Others Mr./Madam Fulci

59
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)

60
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

61
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.

62
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.

63
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.

64
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.

65

• 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.

66
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.

67
Diplomatic Corp (Service)

• We have two different diplomatic corps
• The whole of foreign states accredited to the
  receiving state at the same moment.
• The whole of all national diplomats involved
  abroad within international relations.

68
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.

69
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.

70
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)

71
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.

72
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. ()

73
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.

74
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.

75
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.

76
Status

• 1. Facilities
• 2. Privileges
• 3. Immunities
• 4. Inviolability
• 5. Exemptions
• 6. Special freedoms
• 7. Protection

77
Status/facilities,privileges,exemptions

• 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).

78
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.

79
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.

80
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.

81
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.

82
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.

83
Diplomatic immunity

• We have two category of diplomatic immunity
• immunity from criminal jurisdiction
• 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.

84
Criminal immunity

• Article 31
• 1.    A diplomatic agent shall enjoy immunity
  from the criminal jurisdiction of the receiving
  State. ()
• to be continued

85
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

86
Civil immunity

• Article 31
• () 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.

87
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.
  

88
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.

89
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. ()

90
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)

91
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.

92
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.