Diplomatic and Consular Law

One of the principles of the Public International Law is the duty of co – operation between the States. One of the forms of co – operation between the States is held by diplomatic and consular relations, the status, obligations, duties, rights and responsibilities of which are regulated under the Public International Law. Specifically, they are written in the codified Vienna Conventions: 1) on Diplomatic Relations of 1961; 2) on Consular Relations of 1961. Here, the author of essay will explain and describe the status, rights, obligations, immunities and responsibilities of the diplomats and consular.

First and foremost thing we need to do is to define who the diplomats, consular, are and what diplomacy is. Diplomats and Consular are official representatives of their State, represented in another State. The difference between diplomats and consular is that consular do not have a political functions, while diplomats have. Consular are rather performs its functions with regard to cultural, economical, legal, administrative matters and issuing cards and visas. However, the question would be how diplomatic relations are established. We know that all recognized States are sovereign, it means that no one could dictate them what they need to do and what not. Thus, it also means that no one could force them to enter into diplomatic relations. Therefore, the conclusion is that the diplomatic relations are mostly established by free will of the parties.

Indeed, Article 2 of the Vienna Convention provides that ‘the establishment of diplomatic relations between States, and of permanent diplomatic mission, takes place by mutual agreement thatcan be done in bilateral or multilateral way. It also shows another principle of Public International Law of equal sovereign States.. According to James, H, Wolfe (2002) defines the word diplomacy as means of communication among [States] essential for existence of an international legal order (Modern International Law, p.167). Clearly, diplomats and consular are those people, who were chosen to be the representatives of their State in another, according to the mutual agreement between these specific States.

Diplomatic mission is the group of natural persons, which were chosen to represent their State in receiving State. According to Article 1 the staff of the people who work in the embassy or consular is divided into three groups. First, is the diplomatic staff; second, the administrative and technical staff; finally, is the service staff. The difference between them are in immunities, and possible in the citizenship, because technical and service staff can be the residents of the receiving State. According to I, Brownlie(1990) there are two major terms should be differentiated in the Convention. A ‘diplomatic agent’ is the head or a member of the diplomatic staff of the mission; the ‘head of the mission’ is ‘the person charged by the sending State with the duty of acting in that capacity ‘(Principles of Public International Law, p. 350).

Artilcle 14 of Vienna Convention divided the heads of mission into three classes:

(a)Ambassadors or nuncios [representatives of the Holy See] accredited to Heads f State, and other heads of mission of equivalent rank; (b) envoys, minister and internuncios, accredited to Heads of State; charge d’affaires accredited to Ministers for Foreign Affairs. Indeed, there is no differentiation between heads of mission by reason of their class, except for those acts that concerns etiquette and precedence. Clearly, diplomatic mission has its own head that can be named differently according to their State they come from; also the staff of diplomatic missions is divided into groups for the purposes of differentiation of immunity between them.

As we mentioned above that sending state appoints the head of the mission. So, in this regard, the receiving State according to Article 4 of the Vienna Convention has an opportunity to refuse appointed head of diplomatic mission of sending State, so that they indirectly can control who will be the head of diplomatic mission. The question of acceptance of head of mission is called agrement or exequatur (in case of consular). The sending state gives agrement letter

To receiving state, and receiving state decides whether to accept or not, unless it is provided otherwise for cases when the head of mission is charges d’affaires, because there is no need to agrement.

The Article 13 provides information about the actual taking up of diplomatic functions. There are a few ways when the head of mission is considered as having taken up his functions in the receiving State, for example, when his credential has been presented by him [ to Head of State, or to Ministry For Foreign Affairs] or he notifies about his arrival to the receiving State. Now, we will consider the functions of the diplomatic missions.

According to Article 3 of the Vienna Convention, there are only 5 main of the 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 by all lawful means[under local law] conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; d) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. As wee see almost all these 5 points are written in accordance with the principles of International Law. Consular functions are dedicated to the matters they work with such as economical, cultural, legal, administrative. Thus, when the office is taken by head of mission, he starts to observe and maintain these above written functions.

The immunities and privileges of diplomats and consular are almost the same. The only difference is that consuls are immune only according to their acts of omission or commission in the performance of their official functions, while diplomats not. According to Martin Dixon (2007) the reason or purpose of [diplomatic and consular] immunities ‘is to enable them to carry out their designated functions on behalf of the State’ (Textbook on International Law, p. 199). Article 31(1) of the Vienna Convention provides that diplomats enjoy immunity from criminal liability, civil and administrative, [tax [except for indirect taxation]], so that the receiving State could not interfere to their work. However, there are some exceptions, when the immunity would not be working like ‘an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’. Generally, States shall not prevent by any means to work of diplomatic missions, even to enter into the building of the diplomatic mission without the permission of the head of diplomatic mission, unless it is or will be provided otherwise under the Public International Law. So, it means that State are obliged to provide all well conditions to diplomatic mission to make them work better and proper.

Personnel immunities of the diplomats are the same for their family, if they live with him or her. In case if they are nationals of the receiving state, they would not have the immunity (Malanczuk, Modern Introduction to International Law, 2001, p. 125). They could not be arrested; the diplomat’s paper and other documentations are inviolable. Diplomats do not pay taxes, except for indirect taxes like Value – added tax or excess tax, those are added in the cost of the bought thing, or for taxes on private income tax from the sources of receiving State, which is a rather privilege than immunity. So the reason why diplomats and consular enjoy the privileges and immunities is that it would be considered as interfering of a receiving State, if they would apply their jurisdiction to diplomats and consular, so that they could by threat of something to prevent for proper work of sending State’ mission. In order to prevent such kind of acts from the States, Public International Law specifically provides such information about privileges and immunities to make sure that they are and will be observed.

The last topic is the termination of diplomatic mission. James, H, Wolfe (2002) argues that one of the main principal reasons for the termination of a mission is debelatio, or ‘ subjugation of a state through conquest’ (Modern International Law, p.170). So, simply it means termination of mission is case of war or revolution. There are also a lot of conditions of termination of the diplomatic mission like declaration of persona non – grata which means that a receiving State does not trust to the head of the mission of sending State for some reasons. To have the embassy or consular in another State means to support them financially, it might be happen that the diplomatic mission would be terminated, just because the sending State could not support them financially. Clearly, termination of diplomatic missions leads to stopping working of diplomatic relations between the parties.

Clearly, Vienna Convention on Diplomatic and Consular Relations of 1961 and 1963 respectively, are trying to make an order in its field. That is why it defines the statuses, the rights and obligations, duties and responsibilities of the receiving State or sending State, and diplomats or consular. Also, it defines the immunities from receiving jurisdiction, within the limits that are written in Vienna Conventions. What is more, it defines the cases of terminations of diplomatic missions between the parties. These two conventions are important because it closely related mostly to politics.

Дата добавления: 2015-11-14