Diplomatic and Consular Law

1. Diplomatic and Consular Law Commentary on the Vienna Conventions on Diplomatic and ConsularRelations

2. Università degli Studi della CalabriaFaculty of Political Science Course of Diplomatic and Consular Law (5 cfu)

3. First Part

4. 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.

5. «Let us never negotiate out of fear. But let us never fear to negotiate» John Kennedy, 1961

6. Ambassadors in the 18th Century

7. 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 day’s «consul» that a real diplomat.

8. 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”)]

9. NewTrends in PolarizedWorld • 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).

10. «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.

11. 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.

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

13. 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

14. European Union Treaty European Community Treaty

15. EuropeanUnionDiplomacy

16. 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.

17. 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”.

18. TREATY ESTABLISHING THE EUROPEAN COMMUNITY • Article 207 (in Italian “COREPER”) • “1. A committee consisting of the Permanent Representatives of the Member • States shall be responsible for preparing the work of the Council and for • carrying out the tasks assigned to it by the Council. The Committee may adopt • procedural decisions in cases provided for in the Council's Rules of Procedure. • 2. The Council shall be assisted by a General Secretariat, under the • responsibility of a Secretary-General, High Representative for the common • foreign and security policy, who shall be assisted by a Deputy Secretary-General • responsible for the running of the General Secretariat. The Secretary-General • and the Deputy Secretary-General shall be appointed by the Council acting by a • qualified majority. • The Council shall decide on the organization of the General Secretariat (…)”.

19. 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.]

20. 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”.

21. European Union Treaty • TITLE V—Provisions on a common foreign and security policy (in Italian ”PESC”) [Articles 11-28] Art. 11, n. 2.“The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. The Council shall ensure that these principles are complied with”.

22. 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 constitutionalrequirements”.

23. 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”.

24. Second Part

25. 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

26. 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 terms”1. For the purposes of the present Convention: •  (a) "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single         instrument or in two or more related instruments and whatever its particular designation;

27. Vienna Convention on the Law of Treaties • Article 2 “Use of terms”1. For the purposes of the present Convention: •    (c) "full powers" means a document emanating from the         competent authority of a State designating a person or         persons to represent the State for negotiating, adopting         or authenticating the text of a treaty, for expressing 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)

28. 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.

29. 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.

30. 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.

32. 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.

33. 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.

34. 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.

35. Third Part Commentary on the Vienna Convention on Diplomatic Relations April, the 18th of 1961

36. 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. 

37. 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.

38. Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS • Two different agreements (1961, 1963) • Which means that diplomatic relations and consular relations are independents, autonomous, although coordinated. Consequently, diplomatic law and consular law are autonomous, although coordinated as well.

39. Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS Vienna Convention 1963 • Article 2 : “ESTABLISHMENT OF CONSULAR RELATIONS” • “1. The establishment of consular relations between States takes place by mutual consent. • 2. The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations. • 3. The severance (breaking) of diplomatic relations shall not ipso facto involve the severance of consular relations”. • NOTE: paragraphs 2 and 3 well explain the relation between two Conventions.

40. 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”.

41. Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS Purposes in comparison • Article 3 – Vienna 1961 1.    “The functions of a diplomatic mission consist, inter alia, in: (a)    representing the sending State in the receiving State; (b)    protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c)    negotiating with the Government of the receiving State; (d)    ascertaining (inquiring) by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e)    promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations”. (…)

42. Vienna Convention on Diplomatic Relations&VIENNA CONVENTION ON CONSULAR RELATIONS Purposes in comparison Article 5 ”CONSULAR FUNCTIONS” • Consular functions consist in: • (a) protectingin 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

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

44. 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 by:A 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(approximately 2/3 of the career spent abroad) followed by another refresher course at the Diplomatic Institute (at least 3 months) • Minister Plenipotentiary* (duration of appointment at that grade: at least 7 years) • Assignment abroad or to the Ministry(approximately 2/3 of the career spent abroad) • Ambassador * Assignment abroad or to the Ministry(approximately 2/3 of the career spent abroad) * Appointment conferred under Presidential Degree subject to the approval of the Council of Ministers on proposal of the Ministry of Foreign Affairs.

45. 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”.

46. 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.

47. Diplomaticagentappointment • 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).

48. Consulappointment • 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.

49. Diplomatswithdrawal “Withdrawal of diplomaticcredentials” • 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”.

50. 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.