Description

There is a custom, which has become tradition, that envoys have always enjoyed protection and could accomplish their duties and tasks without disturbance. With the Treaty of Westphalia (1648), the permanent missions became a norm so that the need had emerged to regulate officially their working scope as well as rank, privileges and duties of the representatives to foreign countries. There were two historical occasions for such a regulation of the diplomatic practice: the Congress of Vienna (1814-1815) and the Pan-American-Union-Congress in Havana (1928). The Congress of Vienna was the first attempt to codify the diplomatic law. It defined the diplomatic ranks and inviolability of diplomats as well as the principle of precedence whereas the Pan-American-Union-Congress codified in a Convention the rules that define the functions of the consular agents.

 

1. Vienna Convention on Diplomatic Relations (VCDR), issued in 1961, outlines the main principles and rules of diplomatic relations between subjects of sovereignty (states). This is the basic regulatory document for establishing of the diplomatic relations and for diplomatic conduct within the diplomatic community as well as for definition of the status of the diplomats in the receiving country. Therefore, it represents an important part of international law.

 

In concrete terms, it defines character and structure of the diplomatic mission. It establishes three classes of the head of mission: ambassador, minister and chargés d’affairs. It describes the responsibilities of the head of the mission, of the diplomatic staff and the diplomatic agent. It states that the level of diplomatic relations, which will be established between two states, depends on their mutual consent. The VCDR also defines the legal status and privileges of the diplomatic mission. This legal framework and privileges assured by the VCDR allow members of the diplomatic staff to fulfil their mission.

 

Some of the statements of the document illustrate its main provisions:

– Art. 9: The receiving state has a right to declare a member of the diplomatic staff to be persona non grata and this decision must not be justified;

– Art. 22, 24 and 30: diplomatic mission is inviolable – and this means that also the property, archives and documents, means of transport of the mission and the private residence (flat) of diplomats enjoy protection and inviolability;

– Art 27: there is absolute protection also for diplomatic bag (i.e. for any kind of container that is declared to have substantially diplomatic character) as well as for diplomatic courier;

– Art. 29: the diplomats are free from civil or criminal prosecution, detention and arrest in the receiving country and they are not obliged to give witness; Art 36: diplomats are exempted from custom duties;

– Art 37: the family members of diplomats enjoy the same protection as the diplomats themselves.

 

2. VCDR has also two protocols: the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality (1961) as well as the Optional Protocol Concerning the Compulsory Settlement of the Disputes (1963). States may ratify VCDR without necessarily ratifying these optional agreements. The first optional protocol refers to the fact that the members of the mission as well as members of their families who do not have the nationality of the sending state do not acquire it automatically with the becoming a member of the diplomatic mission. The second optional protocol points out that disputes arising from the interpretation or application of the Convention may be brought before the International Court of Justice.

 

3. Vienna Convention on Consular Affairs (VCCR), issued in 1963, represents also a substantial part of the international diplomatic and consular law. It defines the ways of defending the interests of the state and assisting the nationals in receiving state. It defines the terms such as “consular post”, “consular district”, “the head of consular post”, “consular employees” etc.

 

The consulate with the members of its staff fulfils the mission of protecting diverse interests of the citizens and national corporations in the receiving country. It fulfils this duty according to the international law as well as the law of the receiving country. Moreover, it furthers economic, commercial relations, cultural, scientific cooperation between receiving and sending states.

 

Some significant provisions of the VCCR are:

• –               Art 5: it describes different consular functions;
• –               Art 23: it refers to the potential declaration of a member of the consulate as  persona non grata;
• –               Art 31: it defines that the consular premises are inviolable;
• –               Art 35: it provides freedom of communication and contacts between consul and his sending country as well as protection of consular bags and consular couriers;
• –               Art 36 and 37: consular officer has right to be informed if a national comes to prison, custody or detention, and may visit him, or if he dies or if he was given a guardian or trustee or has experienced any kind of serious accident or tragedy. Also, the national has the same right to contact his consulate if there is a need or any kind of difficulties;
• –               Art. 40: the receiving state should treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity;
• –               Art. 43: consular officers and consular employees should not be amenable to the jurisdiction of the juridical or administrative authorities of the receiving state in respect of acts performed in the exercise of the consular functions;
• –               Art. 49: consular officers and consular employees as well as member of their families should not pay taxes except in some cases regulated by this article,
• –               Art 58-68: these articles define the functions of the honorary consul.

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