Diplomatic & Consular Relations Ast.Prof. Sami Dogru Spring Semester

Diplomatic & Consular Relations Ast.Prof. Sami Dogru Spring Semester
International Law II Diplomatic & Consular Relations Ast.Prof. Sami Dogru Spring Semester

Objectives Diplomacy - General Background Information
Diplomatic Relations Initiation & Termination Diplomatic Ranks & Functions of Agents Privileges, Immunities, & Restraints Dismissal of Agents Status of Staff Members Embassy Buildings & Diplomatic Premises The United Nations & The ICJ

Objectives (cont’d) Consular Relations – General Background Info.
Functions of Consular Agents Classes of Consuls & Honorary Consuls Beginning & Termination of Consular Commission Consular Privileges & Immunities

Diplomacy - General Background
Rules regulating the various aspects of diplomatic relations constitute one of the earliest expressions of international law. Diplomacy as a method of communication between various parties, including negotiations between recognised agents, is an ancient institution and international legal provisions governing its manifestations are the result of centuries of state practice.

States must negotiate and consult with each other and with international organisations and in order to do so need diplomatic staffs. Since these persons (diplomatic staffs ) represent their states in various ways, they thus benefit from the legal principle of state sovereignty. This is also an issue of practical convenience.

Diplomatic relations have traditionally been conducted - through the medium of ambassadors and their staffs, - but with the growth of trade and commercial intercourse the office of consul was established and expanded. The development of speedy communications stimulated the creation of special missions designed to be sent to particular areas for specific purposes, often with the head of state or government in charge

In diplomacy, there is an active right (aktif elçilik hakkı) and a passive right (pasif elçilik hakkı). The active right consists of the authority to send diplomatic agents abroad. Every independent member of the family of nations has this right. The passive right is the right to receive diplomatic agents.

After WWII, more serious efforts were made towards the drafting and codification of rules relating to Diplomatic Persons. The UN Conference on Diplomatic Intercourse & Immunities met in Vienna from March 2 to April 14, During this time, three documents were prepared: 1. Vienna Convention on Diplomatic Relations, 1961. 2. Optional Protocol Concerning Acquisition of Nationality. 3. Optional Protocol Concerning the Compulsory Settlement of Disputes.

The Vienna Convention on Diplomatic Relations (April 14, 1961) is the most important. The instrument entered into force on April 24, 1964 for almost all of the 75 representative states who signed. Today, the convention has 192 (2019) parties. With this many participating states, the convention has been accepted almost universally. 3&chapter=3&clang=_en

Diplomatic Relations - Initiation
No state is required to accept any principal agent of another state’s choosing. Why? The ability to communicate effectively with the foreign government depends upon the willingness of the other government to deal with the agent.

In other words, it is important for the states to be able to trust each other. In order to have trust, the agents must be acceptable. There are two terms that describe acceptability: Persona Grata Persona Non Grata

If a diplomatic candidate is acceptable and welcome, then he or she is persona grata. If a diplomatic candidate is persona non grata, then he or she is not acceptable and has been rejected. The rejecting state may or may not choose to give a reason for the rejection. Traditionally no reason is given or expected. Before appointing a diplomatic agent, it is wise for a state to first ask if an agent is acceptable. This will avoid complications.

Appointment of Diplomatic Agents “The appointment of diplomatic agents is a constitutional act of the sending state. (Turkish Const. Art. 104/b) Their rights and duties begin formally with the handing over and acceptance of credentials (lettre de créance) (güven mektubu/itimatname) in the receiving state… [The] acceptance of that document recognizes the position of the individual concerned as the agent of his or her government.

1982 Constitution CHAPTER TWO The Executive Power I. President of the Republic D. Duties and powers b) Those relating the executive: ARTICLE 104- ….. To accredit representatives of the Turkish State to foreign states and to receive the representatives of foreign states appointed to the Republic of Turkey,

“If you wish your diplomats to be treated with courtesy and respect, then you must treat diplomats stationed in your country with equal courtesy and respect.” Remember that “every diplomat abroad represents a potential hostage.” Not all governments value the system of diplomacy.

Diplomatic Relations - Termination
The Vienna Treaty contains no provisions concerning the termination of diplomatic missions other than in time of war. A mission may end; - by mutual consent or - when the sending state decides that it no longer wishes to maintain a presence in the receiving state. In time of war, the receiving state has the duty to permit diplomatic personnel to exit in timely fashion and to facilitate [help] their exit (Article 44).

Diplomatic Ranks & Functions of Agents
Today there are four classes, or categories, of diplomatic representatives: 1. Ambassadors (Büyükelçi) & Papal Nuncios (diplomatic representatives of the Holy See) Ambassadors extraordinary Ambassadors plenipotentiary 2. Ministers (Elçi) Envoys extraordinary(Olağanüstü Elçiler) Ministers plenipotentiary (Tam Yetkili Elçiler) Papal internuncios (pg. 367)

3. Ministers Resident (rare & represents the lowest rank) 4. Chargés d’affaires (Maslahatgüzar/işgüder) & Chargés d’afffaires ad interim Explanations of Terminology Extraordinary – highest rank & sent on special missions Plenipotentiary – capacity to bind the government by word or signature

Chargés d’affaires means “charged with affairs” in French. This person is primarily an assistant with specified administrative functions , to an ambassador or minister. Ad interim means that he/she will assume the functions of his/her superior during an absence or until a replacement is sent.

Functions of Diplomatic Agents There are six main functions: 1. Negotiation (today the role is more similar to spokesperson, due to advancement in communications) 2. Representation – the agent is representative of his/her state and presents its policies. He/she also files inquiries or protests with the receiving government.

3. Information – “A diplomat reports to his government on political events, policies, & other related matters.” 4. Protection – Looks after the “interests, persons, and property of citizens of his own state in the receiving state” (for ex., assists during times of trouble or death).

5. Public Relations – “Creates goodwill for his own state and policies. . .[Functions include] giving and attending parties and dinners, giving lectures/speeches, attending dedications, foreign assistance”, etc. Refraining from participation creates ill will. 6. Administration – “The chief of the diplomatic mission is the administrative head [and ultimately] is responsible for the operation and administration of the embassy…”

Diplomatic Privileges, Immunities, & Restraints
The reason for having privileges and immunities is to enable diplomats to perform their duties without disturbance from (& without fear of) authorities of the receiving state. Personal Inviolability (Kişi dokunulmazlığı) “Diplomatic agents may not be detained, arrested, or otherwise harassed. The families, residence, papers, correspondence, and property of … agents held in conjunction with their official duties also have inviolable status. Exempt from all taxes and customs duties.”

So, in other words, diplomatic agents and their families enjoy almost complete immunity from the legal system of the receiving state. But there is a condition: They have an obligation to be law abiding.

There are some exceptions: 1. No immunity for real action relating to private immovable property in the receiving state (unless the agent holds it on behalf of his government for official purposes). 2. No immunity for an action relating to succession where the agent serves as an executor (vasi), administrator or legatee as a private person (i.e., not on behalf of his government). 3. No immunity for any action relating to any professional or commercial activity in the receiving state outside his official duties.

The main restraint for diplomats is the duty to abstain from interference – by word or deed – in the internal affairs of the receiving state. Do Not Interfere!

This prohibition is all-inclusive: Do not discuss pending legislation Do not comment on political controversies Do not endorse or criticize the host government, political parties, or party platforms. Do not correspond with the press and other news media on any matter that is still a subject of communication between their governments. Do not spread propaganda on any matter of disagreement between governments. No spying. Do not assist or participate in terrorist activities

Dismissal of Agents Minor Violations
May be overlooked or may lead to a protest by the appropriate authorities of the receiving state Repeated or Serious Violations The host state has two main options: 1. Ask for a waiver of immunity, or 2. If the waiver is not granted, declare the alleged offender persona non grata

Dismissal of Agents Points to Remember:
“If declared persona non grata, the agent must be withdrawn by the sending state.” “Agents cannot personally waive their immunities because the right belongs to the sending state, not the individual.” “Individuals can, however, voluntarily yield their immunities by simply resigning their position and remaining in the country.”

“Immunities and privileges are role or function specific. They do not attach to the person, but to the office.” “Immunities and privileges end upon leaving the country at the end of a term – or, if no longer serving for other reasons, after a reasonable period of time in which to leave.”

“If the diplomat is in an incident or crime that did not involve official duties, immunity only suspends arrest and process at the time.” “Immunities and privileges do not last forever and do not remove culpability for any offense an individual agent may have committed outside his or her official duties.”

Status of Staff Members
“Members of administrative and technical staff (and their households)…have immunity as well.” Exception: Staff members who are nationals or permanent residents of the receiving state “have immunity only for activities connected with their official duties.” Is there immunity for diplomatic communication?

Yes. “Diplomatic correspondence is immune from seizure, search, and censorship by the receiving state.” Codes and ciphers are allowed, but “embassies may install and operate radio transmitters only with the consent of the receiving state.” “Diplomatic couriers, traveling on diplomatic passports, may not be arrested or impeded. The contents of their pouch or baggage cannot be inspected of confiscated.”

When do immunities and privileges begin? They begin “from the moment the person enters the state, but they depend upon acknowledgment of the agent by the receiving state.”

Embassy Buildings & Diplomatic Premises
“The embassy or legation quarters, as well as the residence of a diplomatic agent, are inviolable. The agents of the receiving state may not enter any official building except with the explicit consent of the head of the diplomatic mission.”

True or False? Because embassies are protected and have inviolable status, the territory on which the embassy is located belongs to the embassy, not the receiving state.

False. “Despite their inviolable status, embassies and consulates remain the territory of the receiving state. . . [The] law simply suspends certain rights normally associated with the control of territory.”

Question: If a crime is committed within an embassy, in which state does it occur? The sending state (since it happened in the embassy) or the receiving state?

Answer: The receiving state. So, for example, “if embassy personnel [catch] a burglar on the premises, they have no right to try and impose sentence. They must hand him or her over to the authorities of the sending state for prosecution.”

Question: Does the sending state have the right to punish its own officers and nationals for crimes committed within diplomatic premises?

Yes. Security of Diplomatic Premises Question: Who is responsible for the security of embassies? The sending state or the receiving state?

The receiving state. “Because the embassy forms part of its territory, the receiving state – not the sending state – has primary responsibility for ensuring the security of legation premises from attack or damage (Article 22 (2)).”

The United Nations & The ICJ
Privileges and Immunities: “These rights apply to delegates to The principal and subsidiary organs of the UN and Conferences convened by the UN.” “But they apply only while these representatives exercise their functions and during their travel to and from the place of meeting.”

Privileges include “Immunity from arrest or detention Immunity from seizure of personal luggage Immunity from legal process of every kind for all acts in their capacity as representatives Inviolability of all papers and documents The right to use codes and receive correspondence and papers by courier or in sealed bags Exemption for representatives and their spouses from immigration restrictions or national service obligations en route or while visiting in the exercise of their functions Equality of treatment as respects currency or exchange restrictions with representatives of foreign governments on temporary official missions.”

Privileges and Immunities are not for personal gain or benefit. The purpose is only to allow members to fulfill their UN duties effectively. So if immunity could interfere with the course of justice in any situation, then a member nation has the right and duty to waive immunity for its representative.

The UN Headquarters District in the US “The Headquarters Agreement outlines the rules governing the Headquarters District in New York City.” “Normally,…the United Nations makes regulations for the district, and no federal state, or local law of the US conflicting with such regulations can be applied within (Art. 3, Sect. 8). The district is inviolable.”

The UN Headquarters District in the US “Federal, state, or local officers or officials of the United States cannot enter the district without the consent and under the conditions agreed to by the secretary-general. On the other hand, the district may not become a place of asylum.”

The UN Headquarters District in the US Travel to or from the district may not be hindered But travel within the US may be restricted For member states not recognized by the US, privileges and immunities for representatives need apply only within the district, at their residences or offices outside the district, in transit between the district and their residences/offices, and in transit on official business to and from foreign countries.”

The International Court of Justice “ICJ judges enjoy diplomatic privileges and immunities when engaged in official business.” “Lesser staff members and employees of the court are treated in the same manner as are the comparable ranks among the members of the diplomatic missions at The Hague.” “Similar rights and privileges are accorded to the members of the Permanent Court of Arbitration … when such members are on official duty outside their own country.”

Consular Relations – General Background Info.
“The United Nations Conference on Consular Relations met at the Neue Hofburg from March 4 – April 22, 1963 and prepared [3 specific instruments].” The most important instrument for this course is The Vienna Convention on Consular Relations (VCCR).

The Vienna Convention on Consular Relations Signed on April 24, 1963 Entered into force on March 19, 1967

Important Points to Remember “Consuls are not diplomatic representatives of their state because generally the consul’s duties are more commercial than political (diplomatic) in …nature.” Normally, the consent required for the establishment of diplomatic relations also implies consent to the establishment of consular relations. In other words, saying yes to diplomatic relations usually includes the yes required for consular relations.

True or False? Breaking off diplomatic relations automatically means a breaking off of consular relations.

False. “A severance of diplomatic relations does not, [by itself], mean a breaking off of consular relations.” “It is also possible to establish consular relations between states that do not have diplomatic relations with each other. In this situation, the consular relations represent the only permanent official relations between the states in question. In most instances of this sort, the consular relation constitute a preliminary to diplomatic relations.”

Question Is it possible for diplomatic missions to carry out consular relations?

Yes. “Consular relations are normally exercised through consular posts, but it is possible for them to be carried out through diplomatic missions.”

Functions of Consular Agents
There are nine major functions, altogether. An agent 1. Protects the interests of his state and its nationals within the limits of int’l law 2. Promotes trade and the development of economic, cultural, and scientific relations 3. Reports and provides information on the conditions and developments in economic, cultural, and scientific areas 4. Issues passports and travel documents (visas, etc.)

5. Gives legitimate assistance to nationals of his state 6. Acts as notary and civil registrar & performs specific administrative functions to protect the interests of nationals (for ex., in cases of succession in territory of the receiving state. 7. Represents nationals before courts and other authorities when they can’t defend themselves to ensure their rights are preserved

8. Serves judicial documents or executing commissions to gain evidence for the courts of his state (in accordance with existing treaties or, if there are no relevant treaties, in accordance with the laws of the receiving state) 9. Has the right of supervision and inspection (under laws of receiving state) in regards to his state’s vessels, aircraft, and crews. This includes examining the stamping of ships’ papers, conducting investigations into any incidents that have occurred during the voyage, and settling disputes between the master, the officers, and the seamen [in accordance to the laws of his state].” (pg. 390)

Other Points There is freedom of communication between nationals and consulates. “Competent authorities of the receiving state have the obligation to notify the consulate of a sending state without undue delay if in the relevant district a national of the sending state is committed to prison or to custody pending trial or is detained in any manner.”

Other Points “Any communication from such nationals is to be forwarded to the relevant consulate without undue delay.” “Consular officials have the right to visit any national who is in prison, custody, or detention for the purpose of gaining information and arranging for legal representation.”

In other words, if there is trouble, the freedom to communicate must be allowed. Also note that these communication rights must be “exercised in accordance with the laws and regulations of the receiving state, [as long as those they] do not nullify the rights of consular officials.”

Classes of Consuls & Honorary Consuls
There are four classes of heads of consular posts (VCCR, Article 9): 1. Consuls General 2. Consuls 3. Vice Consuls 4. Consular Agents (a title seldom utilized today) States are not obligated to utilize all four titles.

In a few states, consular officials (esp., among the lower two ranks) are allowed to do business in the receiving state. However, there are no privileges and immunities connected to these activities because they are not a part of official duties. Nevertheless, “the Vienna Consular Convention Forbids career consular officers to carry on for personal profit any professional or commercial activity in the receiving state (Article 57, para.1).”

Come from the among the nationals of the receiving state or even of a third state – subject to the consent of the receiving state (this consent may be withdrawn at any time) Most “carry on a private gainful activity in addition to their consular functions” Although there are some differences, they generally “enjoy the same privileges and immunities as do career consuls”

Beginning & Termination of Consular Commission
“The receiving state formally accredits the head of a consular mission by issuing a document known as an exequatur.” “Municipal law determines which organ of the state may issue the exequatur, although normally it would be issued by the Ministry of Foreign Affairs.” “The granting of an exequatur to the head of a consular post automatically covers the members of the staff working under his or her orders.”

If conduct is seriously wrong, then the receiving state can notify the official’s state that he/she is no longer acceptable. If this happens, then the official’s state must recall him or end his connection with the consulate. What if the official’s state refuses to do this or does not do this in a timely manner?

If the official’s state (i.e., the sending state) refuses to do this, or fails to do it in a timely manner, then the receiving state has a right to either Withdraw the exequatur from the official in question or Stop regarding him as a member of the consular staff Can a person be declared unacceptable even before arriving in the territory of the receiving state?

Yes, this is possible. No reasons have to be given for the rejection, either. In such cases, the sending state must withdraw the appointment.

Sometimes, in rare cases, a state may close its consular facilities to indicate strong disapproval of the receiving state. If consular relations are severed (even during armed conflict), consular premises and their contents must still be respected and protected. Can a sending state entrust the premises and their contents to the care of a third state?

Yes. “The sending state may entrust the premises and their contents to the care of a third state acceptable to the receiving state, just as it may entrust the protection of its interests and those of its nationals to a third state acceptable to the receiving state.”

Consular Privileges & Immunities
Consular Premises are inviolable. Immune from search, requisition, attachment, or execution Exempt under int’l law from state and local real estate taxes Immunity also extends to consular archives & documents Agents of the receiving state may not enter without the consent of the head of the consular post. Receiving state has the duty to appropriately protect consular premises

Inviolability of Means of Communication Freedom of communication for all official purposes The consulate may employ diplomatic or consular couriers and the diplomatic or consular bag Freedom to send and receive messages in code or cipher Freedom to install and use a wireless transmitter only with the express consent of the receiving state Correspondence is inviolable from all interference, including inspection and censorship

Personal and Family Immunity If a consular official appears on the diplomatic list (the official roster of accredited diplomats in a state), he or she will have full diplomatic immunity If he is not on the list, immunity applies only for actions performed as part of their official duties. Also, he does not have immunity from all legal process, but must respond to any process and plead and prove immunity on the grounds that he was acting within his official duties. (pg. 394)

Waiver of Immunity The sending state alone may…waive its consular official’s immunity, but such a waiver must in all cases be express. If immunity is waived for the purpose of civil or administrative proceedings, it does not also mean a waiver from measures of execution resulting from a judicial decision. A separate [express waiver is required]. (Article 45)

Waiver of Immunity A consular official who initiates proceedings in a matter in which he might normally enjoy immunity is precluded from invoking such immunity from local jurisdictions in respect of any counterclaim directly connected with the principal claim (reciprocity). In other words, if an official normally has immunity in a particular area, and yet wishes to start proceedings, he cannot claim immunity later on if there is a counterclaim against him. (pg. 395)

The End! If you have any questions, please feel free to stop by my office during office hours or make an appointment! 

Diplomatic & Consular Relations Ast.Prof. Sami Dogru Spring Semester

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Diplomatic & Consular Relations Ast.Prof. Sami Dogru Spring Semester

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