diplomatic and consular law part two

8/13/2019 Diplomatic and Consular Law PART TWO

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Diplomatic and Consular

Law

SUMMARYFirst Step


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The Beginnings of Classical

Diplomacy The characteristics of classical diplomacy,

namely the art of negotiation:

Bilateral diplomacy

Secrecy of negotiations

Protocol/Ceremonial [(precedence,etiquette, etc.) what we call comitasgentium)]


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To daysDiplomacy

Diplomacy better reflected society, asglobalization expertsand trade negotiatorsreplaced noblemenand traditional political

officers. This is because:

Rapid communications(leave little time forreflection)

Public opinionandpoliticsplay a greater role Intelligence services (range of action)

Increase of multilateral diplomacy

Greater role of international organizations.


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e-diplomacy and cyber

diplomacy

Diplomats make extensive use of computers

and the Internetin their daily work. The

sheer amount of information available has

made IT a vital tool in most diplomatic

activities.


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Sources of Diplomatic law*

1. Customary law

2. General legal principles

3. Agreement (conventions, treaties etc.) 4. Acts rising from IO and EU

5. Analogy

6. Comitas gentium, international comity,courtesy,precedenceand 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 in to forceJanuary 27, 1980

Article 2 Use of terms

1. For the purposes of the present Convention:

(a) "treaty" means an international agreement concludedbetween States in writtenform and governed byinternational law, whether embodied in a single

instrument or in two or more related instruments andwhatever its particular designation ().


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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 thecompetent authority of a State designating a person or

persons to represent the State for negotiating, adoptingor authenticating the text of a treaty, for expressing theconsent 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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Subjects of Diplomatic law

1. Stateare subjects of diplomatic law.

2. (II rank) international organizations(i.o.) and

European Union.therefore

individualsin the International and DiplomaticLaw are considered only if organsof the (sending-

receiving) state.Consequently, diplomats and consul as organs ofinternational affairs.


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Sovereignty of the State and

diplomatic relations In international law, states aresuperiorem non

recognoscentes, which means that only states (and i.o.) canbegin diplomatic relation with other state or subjects of

international community. Nojus legationis. For this reason, article 2 of Vienna Convention (1961)

states: The establishment of diplomatic relations betweenstates, and of permanent diplomatic missions, takes placeby mutual consent. Same for Vienna Convention on

Consular Relations 1963 (art. 2).

Therefore, there is no any ius legationis that entitle a statewithout consensusof the other state to open a mission.


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VIENNA CONVENTION ON CONSULAR RELATIONS

Article 2 : ESTABLISHMENT OF CONSULAR RELATIONS

1. The establishment of consular relations between Statestakes place by mutual consent.

2. The consent given to the establishment of diplomaticrelations between two States implies, unless otherwise

stated, consent to the establishment of consular relations.

3. The breaking of diplomatic relations shall not ipso factoinvolve the severance of consular relations.


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Vienna Convention on Diplomatic Relations

&


Two different legal instruments (1961, 1963)

Which means that diplomatic relations and

consular relations are independents, autonomous,

although coordinated. Consequently, diplomaticlaw and consular law are autonomous, although

coordinated as well.


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&


Purposes in comparison

Article 3Vienna 1961

1. The functions of a diplomatic mission consist, inter alia,in:

(a) representingthe sending State in the receiving State;

(b) protectingin the receiving State the interests of the sending State andof its nationals, within the limits permitted by international law;

(c) negotiatingwith the Government of the receiving State;

(d) ascertaining (inquiring)by all lawful means conditions anddevelopments in the receiving State, and reportingthereon to theGovernment of the sending State;

(e) promotingfriendly relations between the sending State and thereceiving State, and developing their economic, cultural and scientificrelations. ()


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&

VIENNA CONVENTION ON CONSULAR RELATIONSPurposes in comparison

Article 5 CONSULAR FUNCTIONS

Consular functions consist in:

(a) protectingin the receiving State the interests of the sending State and of itsnationals, both individuals and bodies corporate, within the limits permitted byinternational law;

(b) furthering (favouring)the development of commercial, economic, cultural andscientific relations between the sending State and the receiving State and otherwisepromoting friendly relations between them in accordance with the provisions of thepresent Convention;

(c) ascertaining (inquiring)by all lawful means conditions and developments in thecommercial, economic, cultural and scientific life of the receiving State, reportingthereon to the Government of the sending State and giving information to personsinterested; ()

see next page


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Diplomatic agent appointment

Article 4Vienna 1961

1. The sending State must make certain that theapprovalof the receiving State has been given for the

person it proposes to accredit as head of the mission to thatState.

2. The receiving State is not obliged to give reasons tothe sending State for a refusal of approval (acceptance).


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Diplomatic agent appointment

Article 10 Vienna 1961

1. The Ministry for Foreign Affairs of the receiving State, or such other ministry asmay be agreed, shall be notifiedof:

(a) the appointment of members of the mission, their arrivaland their final departureor the terminationof their functions with the mission;

(b) the arrival and final departure of aperson belonging to the familyof a member ofthe mission and, where appropriate, the fact that a person becomes or ceases tobe amember of the familyof a member of the mission;

(c) the arrival and final departure ofprivate servantsin the employ of persons referredto in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they areleaving the employ of such persons;

(d) the engagement and discharge ofpersons residentin the receiving State asmembers of the mission or private servants entitled to privileges and immunities.

2. Where possible,prior notificationof arrival and final departure shall also be given.


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Consul appointment

Article 10 - APPOINTMENT AND ADMISSION OF HEADS OFCONSULAR POSTS

1. Heads of consular posts are appointed by the sendingState and are admitted to the exercise of their functions bythe receiving State.

2. Subject to the provisions of the present Convention, theformalities for the appointment and for the admission ofthe head of a consular post are determined by the laws,regulations and usages of the sending State and of thereceiving State respectively.


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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 commissionor similar instrument,made out for each appointment, certifying his capacity and showing, asa general rule, his full name, his category and class, the consulardistrict and the seat of the consular post.

2. The sending State shall transmit the commission or similarinstrument through the diplomatic or other appropriate channelto theGovernment of the State in whose territory the head of a consular postis to exercise his functions.

3. If the receiving State agrees, the sending State may, instead of acommission or similar instrument, send to the receiving State anotificationcontaining the particulars required by paragraph 1 of thisArticle.


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APPOINTMENT AND ADMISSION OF

Consul Article 12 THEEXEQUATUR

1. The head of a consular post is admitted to the exercise of

his functions by an authorizationfrom the receiving Statetermed an exequatur, whatever the form of thisauthorization.

2. A State which refuses to grant an exequatur is not

obliged to give to the sending State reasons for suchrefusal.

3. Subject to the provisions of Articles 13 and 15, the headof a consular post shall not enter upon his duties until hehas received an exequatur.


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Diplomats withdrawal

Withdrawal of diplomaticcredentials

Article 9

1. The receiving State may at any timeand withouthaving to explain its decision, notify the sending State thatthe head of the mission or any member of the diplomaticstaff of the mission is persona non grataor that any other

member of the staff of the mission is not acceptable. Inany such case, the sending State shall, as appropriate,either recall the person concerned or terminate hisfunctions with the mission. A person may be declared non

grata or not acceptable before arriving in the territory ofthe receiving State.


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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 Stateto the receivingState that the function of the diplomatic agent has come toan end;

(b) on notification by the receiving Stateto the sendingState that, in accordance with paragraph 2 of Article 9, itrefuses to recognizethe diplomatic agent as a member ofthe mission (persona non grata).


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Protocol,Ceremonial, Etiquette,

Courtesy, diplomatic practice[Comitas gentium]


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Simplifying

diplomatic protocolis based in

pragmaticthinking,

common sense,

good manners.


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Vienna 1961

Article 17

Theprecedenceof the members of the

diplomatic staff of the mission shall benotified by the head of the mission to the

Ministry for Foreign Affairs or such other

ministry as may be agreed.


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Vienna 1961

Article 16

1. Heads of mission shall takeprecedencein their respective classesin the order of the date and time of taking up their functionsin

accordance with Article 13. 2. Alterations in the credentialsof a head of mission not involving

any change of class shall not affect his precedence.

3. This article is without prejudice to any practice accepted by thereceiving State regarding the precedenceof the representative of theHoly See.


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LEARNING TEST

F irst Part


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LEARNING TEST

A) General aspects

1. When we can date the birth of diplomacy?

2. What does the expression diplomacy means?

3. Which the ancient diplomacy is?

4. Why we say old and new diplomacy?

5. How do you explain the mission of the diplomat;and how the function of consul?

6. Which are the difference between diplomaticrelations and consular relations?


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LEARNING TEST

B) Law aspects

1. What are diplomatic and consular law sources?

2. Can you explain the role and the differences of twoVienna conventions?

3. It is possible to derogate to these conventions?

4. How states (and i.o.) can establish diplomatic andconsular relations?

5. What about ius legationis ?6. What in international law the expression treaty,

agreement or convention means?


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LEARNING TEST

B) Law aspects

1. Clarify what "full powers"means.2. What (usually) are considered diplomatic

languages?

3. Explain the position of individualsin diplomaticand consular law.

4. When Vienna convention 1961 entry into force?


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LEARNING TEST

B) Law aspects

1. Clarify the consular functions.2. Heads of diplomatic mission are divided

into how many classes?

3. What is the position of theNuncios?4. And how many class for heads of consular

post?


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LEARNING TEST

B) Law aspects

1. Explain diplomatic agent appointment.

2. Diplomatic credential.

3. Consul appointment.

4. Commission andexequatur.

5. Persona non grata.

6. Persona not acceptable.

7. Diplomatic channel.


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LEARNING TEST

B) Law aspects

1. How many type of Diplomatic Corp or

Diplomatic Service we have?

2. Why we say that Diplomatic Corp is ade facto reunion?

3. What aboutConsular Corp?

4. In what part of the Vienna Convention

you find Honorary Consul regulation?


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LEARNING TEST

B) Law aspects

1. What precedence between heads of consular

posts?

2. Give details about diplomatic and consularstatus?

3. Is the status recalled in Vienna Convention?

4. Explain differences between: (diplomats)

facilities, privileges, immunities, inviolability,

exemptions, and special freedoms.


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LEARNING TEST

B) Law aspects1. How do you find the special regime

relating to honorary consul?

2. How honorary consul, heads of consularposts, shall rank in same class as regards

career heads of consular posts?

3. What nationality (in general) must have aconsular officers?


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LEARNING TEST

B) Law aspects1. What does means diplomatic status?

2. Explain facilities, privileges, immunities,

inviolability, exemptions, and specialfreedoms.

3. How many type of inviolability we have?

4. Can you explain diplomatic bag?

5. And diplomatic courier?


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LEARNING TEST

B) Law aspects1. Is there any legal duty (obligation) of

diplomatic protection in order to the

receiving state?2. What does means diplomatic immunity?

3. From where rise (originate) the rule of

diplomatic immunity?


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LEARNING TEST

B) Law aspects Why the criminal immunity is full?

How many exceptions Vienna convention

decree for civil immunity? When the head of the mission is considered

having taken up his functions in thereceiving State?

It is possible to waive diplomaticimmunity?


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LEARNING TEST

B) Law aspects Who is the subject that can waive the

diplomatic immunity?

How waiver must be?

Do we have a different kind of waiver in

art. 32? Explain.

What are the differences between

diplomatic and consular immunities?


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LEARNING TEST

C) Protocol aspects

1. Would you explain what isComitas

gentium?2. How do you address to an Ambassador

and how he address other people?

3. How Madame Ambassadors dress?4. In diplomatc protocol is there any gender

issues?


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LEARNING TEST

C) Protocol aspects

1. Do we have aseating arrangementfor a

men's/women's luncheon or dinner?2. Where must seat at table theguest of honour?

3. In what occasion you must wear black tie?

4. Whenwhite tie?5. What the expressionformal wear means?


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LEARNING TEST

D) European Union

Is the European Community entitle to

subscribe international agreements?

Do citizen of the Union enjoy diplomaticprotection within third country (abroad)?

What are the purpose of the committee

consisting of the Permanent Representativesof the Member States?


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LEARNING TEST

D) European Union

What are the persons enjoying immunity

under Protocol n. 36 EC?

Art, 48 EU.

Art. 49 EU.

diplomatic and consular law part two

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