U.N. Negative Force In Dealing With Iran
Last week's opening of the United Nations General Assembly demonstrated just how morally bankrupt that body is. Holocaust-denying, nuke-seeking Iranian President Mahmoud Ahmadinejad is treated as a celebrity, even as his nation defies sanctions from the U.N. Security Council.
That's the pattern with this international body. Aggressors are coddled; nuclear ambitions are ignored. And states that sponsor terrorism are given an international podium.
The U.N.'s failures are astounding, as its dealings with Iran show.
"Ahmadinejad's radical regime continues to defy U.N. Security Council resolutions regarding its nuclear program and seeks to destabilize fragile democracies that the U.N. supports in Iraq, Afghanistan, and Lebanon," the Heritage Foundation's James Phillips points out. "Moreover, Ahmadinejad has -- in statements that can be construed as incitement for genocide -- repeatedly called for the destruction of the state of Israel, a member in good standing of the United Nations. Despite Ahmadinejad's aggressive foreign policy and repression of Iranian human rights at home, the president of U.N. General Assembly has regrettably seen fit to honor the Iranian leader by attending a dinner for him later this week."
Iran has successfully stared down the United Nations on the nuclear issue -- despite clear evidence that it seeks weapons, in violation of the Nuclear Non-Proliferation Treaty.
"But past American and European efforts to ratchet up sanctions against Iran have been frustrated by Russia and China, both of which have lucrative trade relationships and strategic ties to Tehran," Phillips says. "Both countries have delayed and diluted efforts to impose sanctions at the Security Council."
In fact, Russia is selling more and more weapons to Iran -- including anti-aircraft missiles that will be used, presumably to protect its nuclear facilities.
"Given Moscow's increasingly confrontational behavior, the U.N. Security Council is likely to remain ineffective in addressing the Iranian nuclear issue because of the threat of the Russian veto," Phillips says.
Russia is enabling Iran to openly flout the existing U.N. sanctions.
"It's disturbing that Ahmadinejad will be allowed to parade before the United Nations. General Assembly and smugly hector a global audience," Phillips says. "Ahmadinejad seeks to shore up his flagging political support at home by lambasting the United States and engaging in a chest-thumping lecture on the superiority of Iran's radical Islamist regime."
It should be clear to all that the United States is both spineless and toothless.
"The U.N. Security Council has missed many opportunities to apply strong and effective sanctions against Iran," Phillips says.
We now have no choice but to forego the United Nations in our dealings with Iran.
"The United States should try to ramp up further sanctions against Iran outside the U.N. framework by working directly with its Japanese and European allies to impose the strongest possible bans on investments, loans, and trade with Iran," Phillips contends. "But the bottom line is that the failure of the United Nations to enforce the Nuclear Non-Proliferation Treaty and advance the collective security of its members has increased the chances of war in the near future."
Dealing with Taiwan's Referendum on the United Nations
by John J. Tkacik, Jr.
WebMemo #1606
Bizarre as it may seem, a peaceful referendum in Taiwan may portend war. Dozens of challenges bedevil U.S.–China relations, but the "Taiwan Issue" was first on the agenda for President George W. Bush's talks with China's Hu Jintao at the Asia Pacific Economic Cooperation forum last week. Hu has warned Bush directly that this year and the next will be a "highly dangerous period" in the Taiwan Strait and accused Taiwan President Chen Shui-bian of "brazenly" pushing a referendum to secure Taiwan's admission to the U.N., which China sees as a move toward independence.[1] Hu alluded to a legal mandate under China's 2005 "Anti-Secession Law" to use "nonpeaceful means" to counter "major incidents entailing Taiwan's secession from China,"[2] and Beijing has informed Washington that, regardless of the actual wording of Taiwan's referendum, the referendum itself is just such a "major incident." "Referenda" and "wars" have thus become psychically entwined in America's distracted China policy, and shooting in the Taiwan Strait is the last thing the United States needs right now.
Taiwan's Referendum
Because Taiwan's last 12 attempts to join the United Nations as the "Republic of China" all failed, Taiwan is holding a popular referendum in March 2008 seeking the electorate's advice on whether Taiwan should apply to join the United Nations as "Taiwan" (or some other "flexible" nomenclature). The previous attempts failed because there already is a "China" in the U.N., so perhaps applying as something other than "China," Taiwan reasons, might work.
The specifics of Taiwan's referendum are irrelevant to China's threats of war. Chances are, partisan squabbling over the referendum's wording and the supermajority threshold that Taiwan's constitution places on referenda will prevent the referendum itself from passing. And referendum or no, Taiwan's application for U.N. membership has little hope of ever being approved. And just to make sure, in 2005, China embarked on a multi-year diplomatic campaign to remove Taiwan from every international forum it can find, including the U.N. and all its specialized and associated agencies.
Still, American officials are irritated by Taiwan's referendum. They see it as a cynical political move by some Taipei leaders seeking domestic electoral advantage. Of course, politics cannot but be some part of the equation. Policy and politics intersect in the U.S. political system—especially during election time. Why would it not be the case in Taiwan, a sister democracy approaching two momentous national elections?
But this is about more than just about politicians jockeying for position. Surely, Beijing's single-minded determination to stamp out all international reference to the democratic government in Taipei in an effort to bolster its own legitimacy is no more extraordinary than democratic Taiwan's desperate struggle to shore up its eroding international personality. So, as President Bush and his advisors fret about Taiwan's democratic processes, they might also consider that China's war threats are far more inimical to U.S. interests than Taiwan's referendum.
Taiwan's Problem
There is plenty of blame to go around for the Bush Administration's current confusion over Taiwan policy, much of which belongs in Taipei.
As former Taiwan President Lee Teng-hui observed to me last month, "U.N. membership is not a legal issue, it is a political issue." The former Taiwanese president explained that membership is a matter of votes, and to get votes in the U.N. "the most important things are power and friends." Taiwan's "power" pales in comparison to China's, so that leaves "friends." Taiwan's most important friends, President Lee said, are the United States and Japan, and "if you alienate people, you have a problem."[3] And so Taiwan has a problem.
President Bush was, no doubt, irritated to have Taiwan (democratic though it may be) inject its domestic politics into his broad China agenda, superseding Iran, North Korea, Darfur, trade, product safety, and climate change.[4] Moreover, the Administration appears to care little about Taiwan's referendum, except that China seems serious about a shooting war to resolve the matter. In the end, President Bush reassured his Chinese interlocutor of America's "one China policy" and the "consistent U.S. position of opposing any changes to the status quo."[5] After the meeting one White House aide, gratified, said he thought the Chinese "were pleased at the public reiteration of our position last week by John Negroponte" which called the Taiwan referendum a "mistake" and an "alteration of the status quo."[6]
What Is the "Status Quo"?
Alas, the Bush Administration (nor any previous administration since before World War II) has never defined just what the status quo in the Taiwan Strait actually is. Rather, U.S. policy toward Taiwan's "status" has been dogmatically agnostic—that is, the United States has "not formally recognized Chinese sovereignty over Taiwan and [has] not made any determination as to Taiwan's political status."[7]
Taiwan's "undetermined" status is, of course, a diplomatic fiction designed to propitiate Beijing. U.S. domestic law treats Taiwan as it does all other "foreign countries, nations, states, governments, or similar entities."[8] Moreover, given that Taiwan possesses "a permanent population; a defined territory; government; and capacity to enter into relations with the other states" it meets the description of a "state" under the 1933 Montevideo Convention, which the United States ratified in 1934.[9] Accordingly, the United States has no trouble—legal, philosophical, strategic, or otherwise—treating Taiwan as it does any other "country." Not incidentally, "undetermined" has also always meant that the U.S. does not regard Taiwan as a part of the Peoples' Republic of China.
But a crisis is in the making. While Taiwan's leaders remain tone-deaf amid the vast global preoccupations of their most important friend, the United States, the Bush Administration appears on the verge of reversing its "long-standing" agnosticism on the "status quo" in the Taiwan Strait to punish Taiwan's tone-deafness. On August 30, a National Security Council aide flatly and un-agnostically declaimed that "Taiwan is not a state in the international community."[10]
Beijing, naturally, is delighted. An American declaration that Taiwan is "not a state" has been Beijing's dream for a half a century. That the United States would, in the face of Chinese threats, appear to simply abandon a "long-standing" policy must also send a sobering signal to the rest of Asia: Washington is so distracted with real shooting wars that it cannot bring itself to risk Beijing's ill will under any circumstances. Even President Bush's "reiteration" at the Sydney APEC of "America's commitment to help strengthen the expansion of freedom" in the region looks squishy as Taiwan's political legitimacy erodes.[11]
Recommendations for Taiwan and the U.S.
To avoid an irreversible crisis in the U.S.-Taiwan relationship, both sides must recognize the gravity of the referendum issue.
Taipei should:
Rethink the referendum. Taiwan's referendum may be complicated by new and competing referenda texts which could wind up cancelling each other out. Taiwan's experience has been that a referendum that cannot pass is worse than no referendum at all. So it is still possible to finesse the matter.
Cease "alienating…friends." Coordinating with the United States and other key democracies is essential to preserving Taiwan's international personality in the United Nations, in its agencies, and across a broad spectrum of world organizations. Taiwan's leaders must approach these issues with a systematic and strategic outlook. Precipitate action will fail, and without friends, failure can be disasterous.
Washington should:
Think through the endgame for Taiwan. The United States must appreciate Taiwan's desperation as it struggles to preserve its identity. The last legs of Taiwan's democratic legitimacy are buckling as Washington signals—perhaps inadvertently—an end to a half-century-old doctrine that Taiwan's status is "undetermined" and endorses Beijing's stance that, whatever Taiwan is, it isn't sovereign. From there, it is a slippery slide to the next question: Who has sovereignty over Taiwan if not the people of Taiwan? To have lost Chiang Kai-shek's China in 1949 may be seen as a misfortune, but to lose democratic Taiwan 60 years later will look like carelessness. If, indeed, the NSC staff statement appearing to resolve Taiwan's "undetermined" sovereign status was inadvertent, it ought to be immediately corrected.
Articulate U.S. policy. The U.N. Secretary-General has promulgated documents asserting that the United Nations considers "Taiwan for all purposes to be an integral part of the PRC." This assertion is not universally held by U.N. member states. The State Department, apparently, has only mentioned the U.S.'s objection to a U.N. Under-Secretary-General because apparently U.S. Taiwan policy is a secret. Secret foreign policies are counter to America's democratic traditions and confuse the American public. The Bush Administration must be able to say forthrightly to the American people what it is willing to say to the United Nations Secretary-General.[12]
Negotiate with Taiwan. The U.S. and Taiwan should agree on a limit to Taiwan's declarations of its own independent identity from China in return for United States reassurances, first pledged by President Ronald Reagan in 1982,[13] that it will not recognize Chinese sovereignty over the Island without the express and uncoerced assent of the Taiwanese people as envisioned in the Taiwan Relations Act. Former U.S. Deputy Assistant Secretary of State for East Asia and Pacific Affairs, Randall G. Schriver, has suggested that the United States offer "six new assurances"[14] in return for Taiwan's reaffirming of President Chen Shui-bian's May 2000 "Five No's" on Taiwan's independence.
Establish better, higher level, on-going communication links with Taiwan's government. Matters should not need to rise to the level of a severe problem or crisis before being considered at senior U.S. government levels. Upgrading the rank and influence of the top U.S. representative in Taiwan would be a good start. Giving Taiwan's representatives in the U.S. regular access to the National Security Counsel, along with Defense, State, and Commerce Department staff, is also desirable.
Conclusion
Taiwan is the canary in America's Asia policy mineshaft. Clearly, a distracted Washington is allowing a laser-focused Beijing to shape the strategic agenda in the Pacific. America's democratic friends and allies in Asia, from Japan to Singapore to India to Australia, anxiously watch America's new willingness to accept China's new preeminence in the region. How the United States defends democratic Taiwan's international identity in its current crisis will tell Asia and the world much about Washington's willingness to defend them in future challenges from China.
Monday, October 6, 2008
Saturday, September 27, 2008
COMPARATIVE STUDY: SC's Dealings with Treatises
1. LIM vs. EXECUTIVE SECRETARY, G.R. No. 151445
April 11, 2002
Supreme Court Ruling:
The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
2. ABAYA vs. EBDANE, G.R. No. 167919
February 14, 2007
Supreme Court Ruling
It is well to understand the definition of an "exchange of notes" under international law. The term is defined in the United Nations Treaty Collection in this wise:
An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.
It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." It is further explained that-
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.
Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. The following disquisition by Francis B. Sayre, former United States High Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments � treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The point where ordinary correspondence between this and other governments ends and agreements � whether denominated executive agreements or exchange of notes or otherwise � begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments.
3. DEPARTMENT of BUDGET and MANAGEMENT PROCUREMENT SERVICE vs. KOLONWEL TRADING,
G.R. No. 175616, June 8, 2007
Supreme Court Ruling
Under the fundamental international law principle of pacta sunt servanda, [36] which is in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.
4. BAYAN vs. EXEC. SEC. ZAMORA, G.R. No. 138570.
January 25, 2000
Supreme Court Ruling
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty.To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument 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.” There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.”
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:
“x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
5. COMMISSIONER OF INTERNAL REVENUE vs. S.C. JOHNSON AND SON,INC., G.R. No. 127105 June 25, 1999
Supreme Court Ruling
The phrase "paid under similar circumstances in Article 13 (2) (b), (iii) of the RP-US Tax Treaty should be interpreted to refer to payment of royalty, and not to the payment of the tax, for the reason that the phrase "paid under similar circumstances" is followed by the phrase "to a resident of a third state". The respondent court held that "Words are to be understood in the context in which they are used", and since what is paid to a resident of a third state is not a tax but a royalty "logic instructs" that the treaty provision in question should refer to royalties of the same kind paid under similar circumstances.
The above construction is based principally on syntax or sentence structure but fails to take into account the purpose animating the treaty provisions in point. To begin with, we are not aware of any law or rule pertinent to the payment of royalties, and none has been brought to our attention, which provides for the payment of royalties under dissimilar circumstances. The tax rates on royalties and the circumstances of payment thereof are the same for all the recipients of such royalties and there is no disparity based on nationality in the circumstances of such payment.6 On the other hand, a cursory reading of the various tax treaties will show that there is no similarity in the provisions on relief from or avoidance of double taxation7 as this is a matter of negotiation between the contracting parties.
The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation, which is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. The apparent rationale for doing away with double taxation is of encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.
Double taxation usually takes place when a person is resident of a contracting state and derives income from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited.
The second method for the elimination of double taxation applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation.
There are two methods of relief � the exemption method and the credit method. In the exemption method, the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital.
On the other hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax.
In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by the other country.
6. AKBAYAN vs. Aquino, G.R. No. 170516
July 16, 2008
Supreme Court Ruling
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is “executive altogether.”
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations.
7. PIMENTEL vs. EXECUTIVE SECRETARY, G.R. No. 158088
July 6, 2005
Supreme Court Ruling
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
April 11, 2002
Supreme Court Ruling:
The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
2. ABAYA vs. EBDANE, G.R. No. 167919
February 14, 2007
Supreme Court Ruling
It is well to understand the definition of an "exchange of notes" under international law. The term is defined in the United Nations Treaty Collection in this wise:
An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.
It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." It is further explained that-
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.
Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. The following disquisition by Francis B. Sayre, former United States High Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments � treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The point where ordinary correspondence between this and other governments ends and agreements � whether denominated executive agreements or exchange of notes or otherwise � begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments.
3. DEPARTMENT of BUDGET and MANAGEMENT PROCUREMENT SERVICE vs. KOLONWEL TRADING,
G.R. No. 175616, June 8, 2007
Supreme Court Ruling
Under the fundamental international law principle of pacta sunt servanda, [36] which is in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.
4. BAYAN vs. EXEC. SEC. ZAMORA, G.R. No. 138570.
January 25, 2000
Supreme Court Ruling
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty.To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument 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.” There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.”
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:
“x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
5. COMMISSIONER OF INTERNAL REVENUE vs. S.C. JOHNSON AND SON,INC., G.R. No. 127105 June 25, 1999
Supreme Court Ruling
The phrase "paid under similar circumstances in Article 13 (2) (b), (iii) of the RP-US Tax Treaty should be interpreted to refer to payment of royalty, and not to the payment of the tax, for the reason that the phrase "paid under similar circumstances" is followed by the phrase "to a resident of a third state". The respondent court held that "Words are to be understood in the context in which they are used", and since what is paid to a resident of a third state is not a tax but a royalty "logic instructs" that the treaty provision in question should refer to royalties of the same kind paid under similar circumstances.
The above construction is based principally on syntax or sentence structure but fails to take into account the purpose animating the treaty provisions in point. To begin with, we are not aware of any law or rule pertinent to the payment of royalties, and none has been brought to our attention, which provides for the payment of royalties under dissimilar circumstances. The tax rates on royalties and the circumstances of payment thereof are the same for all the recipients of such royalties and there is no disparity based on nationality in the circumstances of such payment.6 On the other hand, a cursory reading of the various tax treaties will show that there is no similarity in the provisions on relief from or avoidance of double taxation7 as this is a matter of negotiation between the contracting parties.
The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation. The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions. More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation, which is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. The apparent rationale for doing away with double taxation is of encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.
Double taxation usually takes place when a person is resident of a contracting state and derives income from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited.
The second method for the elimination of double taxation applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation.
There are two methods of relief � the exemption method and the credit method. In the exemption method, the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital.
On the other hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax.
In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by the other country.
6. AKBAYAN vs. Aquino, G.R. No. 170516
July 16, 2008
Supreme Court Ruling
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is “executive altogether.”
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations.
7. PIMENTEL vs. EXECUTIVE SECRETARY, G.R. No. 158088
July 6, 2005
Supreme Court Ruling
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
Thursday, September 18, 2008
Bar Questions
1. May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.
No, a treaty does not generally violate international law. A treaty to be valid must posses the following essential elements: a) treaty making capacity; b) authorized representatives; c)freedom of consent; d) lawful subject-matter; and e) compliance with constitutional processes.Therefore, a violation of the international law makes subject-matter unlawful. Any agreement which is contrary to international law makes a treaty null and void. Although it has been provided that one of the functions of treaty is...to make it possible for the parties to modify the rules of international customary law by means of optional principles or standards, but it does not mean that it can be violated. Instead, it serves to augment and strengthen the existence of international laws.
2. The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
The President of the Philippines has the sole right or duty to make or enter into treaties. The Constitution does not provide for the authority to abrogate. But since it has been stressed in the Constitution of the Philippines that the power to ratify treaties is vested in the President and not, as is commonly believed, in the Legislature,thus,it can be inferred that the power to abrogate is rightfully lodged in the same authority.
No, a treaty does not generally violate international law. A treaty to be valid must posses the following essential elements: a) treaty making capacity; b) authorized representatives; c)freedom of consent; d) lawful subject-matter; and e) compliance with constitutional processes.Therefore, a violation of the international law makes subject-matter unlawful. Any agreement which is contrary to international law makes a treaty null and void. Although it has been provided that one of the functions of treaty is...to make it possible for the parties to modify the rules of international customary law by means of optional principles or standards, but it does not mean that it can be violated. Instead, it serves to augment and strengthen the existence of international laws.
2. The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
The President of the Philippines has the sole right or duty to make or enter into treaties. The Constitution does not provide for the authority to abrogate. But since it has been stressed in the Constitution of the Philippines that the power to ratify treaties is vested in the President and not, as is commonly believed, in the Legislature,thus,it can be inferred that the power to abrogate is rightfully lodged in the same authority.
Convention on Diplomatic Relations
Vienna Convention on Diplomatic Relations, 1961
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
Have agreed as follows:
Article 1
For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;
(b) the "members of the mission" are the head of the mission and the members of the staff of the mission;
(c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;
(e) a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;
(f) the "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission;
(g) the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;
(h) a "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;
(i) the "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.
Article 3
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 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.
2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.
Article 4
1. The sending State must make certain that the agrement 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 agrement.
Article 5
1. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.
2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a charge d'affaires ad interim in each State where the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.
Article 6
Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.
Article 7
Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Article 8
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
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.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.
Article 10
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;
(b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;
(c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;
(d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.
2. Where possible, prior notification of arrival and final departure shall also be given.
Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a nondiscriminatory basis, refuse to accept officials of a particular category.
Article 12
The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.
Article 13
1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.
Article 14
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.
Article 16
1. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with Article 13.
2. Alterations in the credentials of 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 the receiving State regarding the precedence of the representative of the Holy See.
Article 17
The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.
Article 18
The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.
Article 19
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.
Article 20
The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.
Article 21
1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.
2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.
Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23
1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.
Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the performance of the functions of the mission.
Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply
when such a courier has delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
Article 28
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.
Article 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.
Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.
Article 35
The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
Article 37
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Article 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.
Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
Article 42
A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.
Article 43
The function of a diplomatic agent comes to an end, inter alia:
(a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.
Article 44
The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.
Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:
(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.
Article 46
A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third State and of its nationals.
Article 47
1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;
(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.
Article 48
The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations Headquarters in New York.
Article 49
The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 50
The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in Article 48. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 51
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 52
The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in Article 48:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 48, 49 and 50;
(b) of the date on which the present Convention will enter into force, in accordance with Article 51.
Article 53
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, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 48.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this eighteenth day of April one thousand nine hundred and sixty-one.
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
Have agreed as follows:
Article 1
For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;
(b) the "members of the mission" are the head of the mission and the members of the staff of the mission;
(c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;
(e) a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;
(f) the "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission;
(g) the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;
(h) a "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;
(i) the "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.
Article 3
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 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.
2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.
Article 4
1. The sending State must make certain that the agrement 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 agrement.
Article 5
1. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.
2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a charge d'affaires ad interim in each State where the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.
Article 6
Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.
Article 7
Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Article 8
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
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.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.
Article 10
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;
(b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;
(c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;
(d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.
2. Where possible, prior notification of arrival and final departure shall also be given.
Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a nondiscriminatory basis, refuse to accept officials of a particular category.
Article 12
The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.
Article 13
1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.
Article 14
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.
Article 16
1. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with Article 13.
2. Alterations in the credentials of 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 the receiving State regarding the precedence of the representative of the Holy See.
Article 17
The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.
Article 18
The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.
Article 19
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.
Article 20
The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.
Article 21
1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.
2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.
Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23
1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.
Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the performance of the functions of the mission.
Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply
when such a courier has delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
Article 28
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.
Article 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.
Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.
Article 35
The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
Article 37
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Article 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.
Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
Article 42
A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.
Article 43
The function of a diplomatic agent comes to an end, inter alia:
(a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.
Article 44
The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.
Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:
(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.
Article 46
A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third State and of its nationals.
Article 47
1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;
(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.
Article 48
The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations Headquarters in New York.
Article 49
The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 50
The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in Article 48. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 51
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 52
The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in Article 48:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 48, 49 and 50;
(b) of the date on which the present Convention will enter into force, in accordance with Article 51.
Article 53
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, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 48.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this eighteenth day of April one thousand nine hundred and sixty-one.
CONVENTION ON CONSULAR RELATIONS
VIENNA CONVENTION ON CONSULAR RELATIONS
AND OPTIONAL PROTOCOLS
DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Convention,
Recalling that consular relations have been established between peoples
since ancient times,
Having in mind the Purposes and Principles of the Charter of the United
Nation concerning the sovereign equality of States, the maintenance of
international peace and security, and the promotion of friendly relations
among nations,
Considering that the United Nations Conference on Diplomatic Intercourse
and Immunities adopted the Vienna Convention on Diplomatic Relations which
was opened for signature on 18 April 1961,
Believing that an international convention on consular relations,
privileges and immunities would also contribute to the development of
friendly relations among nations, irrespective of their differing
constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to
benefit individuals but to ensure the efficient performance of functions by
consular posts on behalf of their respective States,
Affirming that the rules of customary international law continue to govern
matters not expressly regulated by the provisions of the present
Convention,
Have agreed as follows:
Article 1
DEFINITIONS
1. For the purposes of the present Convention, the following expressions
shall have the meanings hereunder assigned to them:
(a) "consular post" means any consulate-general, consulate,
vice-consulate or consular agency;
(b) "consular district" means the area assigned to a consular post for
the exercise of consular functions;
(c) "head of consular post" means the person charged with the duty of
acting in that capacity;
(d) "consular officer" means any person, including the head of a consular
post, entrusted in that capacity with the exercise of consular
functions;
(e) "consular employee" means any person employed in the administrative
or technical service of a consular post;
(f) "member of the service staff" means any person employed in the
domestic service of a consular post;
(g) "members of the consular post" means consular officers, consular
employees and members of the service staff;
(h) "members of the consular staff" means consular officers, other than
the head of a consular post, consular employees and members of the
service staff;
(i) "member of the private staff" means a person who is employed
exclusively in the private service of a member of the consular post;
(j) "consular premises" means the buildings or parts of buildings and the
land ancillary thereto, irrespective of ownership, used exclusively
for the purposes of the consular post;
(k) "consular archives" includes all the papers, documents,
correspondence, books, films, tapes and registers of the consular
post, together with the ciphers and codes, the card-indexes and any
article of furniture intended for their protection or safekeeping.
2. Consular officers are of two categories, namely career consular officers
and honorary consular officers. The provisions of Chapter II of the present
Convention apply to consular posts headed by career consular officers; the
provisions of Chapter III govern consular posts headed by honorary consular
officers.
3. The particular status of members of the consular posts who are nationals
or permanent residents of the receiving State is governed by Article 71 of
the present Convention.
CHAPTER I
CONSULAR RELATIONS IN GENERAL
Section I
ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONS
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 of diplomatic relations shall not ipso facto involve the
severance of 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.
Article 4
ESTABLISHMENT OF A CONSULAR POST
1. A consular post may be established in the territory of the receiving
State only with that State's consent.
2. The seat of the consular post, its classification and the consular
district shall be established by the sending State and shall be subject to
the approval of the receiving State.
3. Subsequent changes in the seat of the consular post, its classification
or the consular district may be made by the sending State only with the
consent of the receiving State.
4. The consent of the receiving State shall also be required if a
consulate-general or a consulate desires to open a vice-consulate or a
consular agency in a locality other than that in which it is itself
established.
5. The prior express consent of the receiving State shall also be required
for the opening of an office forming part of an existing consular post
elsewhere than at the seat thereof.
Article 5
CONSULAR FUNCTIONS
Consular functions consist in:
(a) protecting in 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 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 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;
(d) issuing passports and travel documents to nationals of the sending
State, and visas or appropriate documents to persons wishing to
travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies
corporate, of the sending State;
(f) acting as notary and civil 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 who are nationals of the sending State,
particularly where any guardianship or trusteeship 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;
(m) performing any other functions entrusted to a consular post by the
sending State which are not prohibited by the laws and regulations of
the receiving State or to which no objection is taken by the
receiving State or which are referred to in the international
agreements in force between the sending State and the receiving
State.
Article 6
EXERCISE OF CONSULAR FUNCTIONS OUTSIDE THE CONSULAR DISTRICT
A consular officer may, in special circumstances, with the consent of the
receiving State, exercise his functions outside his consular district.
Article 7
EXERCISE OF CONSULAR FUNCTIONS IN A THIRD STATE
The sending State may, after notifying the States concerned, entrust a
consular post established in a particular State with the exercise of
consular functions in another State, unless there is express objection by
one of the States concerned.
Article 8
EXERCISE OF CONSULAR FUNCTIONS ON BEHALF OF A THIRD STATE
Upon appropriate notification to the receiving State, a consular post of
the sending State may, unless the receiving State objects, exercise
consular functions in the receiving State on behalf of a third State.
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.
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.
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.
Article 12
THE EXEQUATUR
1. The head of a consular post is admitted to the exercise of his functions
by an authorization from the receiving State termed an exequatur, whatever
the form of this authorization.
2. A State which refuses to grant an exequatur is not obliged to give to
the sending State reasons for such refusal.
3. Subject to the provisions of Articles 13 and 15, the head of a consular
post shall not enter upon his duties until he has received an exequatur.
Article 13
PROVISIONAL ADMISSION OF HEADS OF CONSULAR POSTS
Pending delivery of the exequatur, the head of a consular post may be
admitted on a provisional basis to the exercise of his functions. In that
case, the provisions of the present Convention shall apply.
Article 14
NOTIFICATION TO THE AUTHORITIES OF THE CONSULAR DISTRICT
As soon as the head of a consular post is admitted even provisionally to
the exercise of his functions, the receiving State shall immediately notify
the competent authorities of the consular district. It shall also ensure
that the necessary measures are taken to enable the head of a consular post
to carry out the duties of his office and to have the benefit of the
provisions of the present Convention.
Article 15
TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A CONSULAR POST
1. If the head of a consular post is unable to carry out his functions or
the position of head of consular post is vacant, an acting head of post may
act provisionally as head of the consular post.
2. The full name of the acting head of post shall be notified either by the
diplomatic mission of the sending State or, if that State has no such
mission in the receiving State, by the head of the consular post, or, if he
is unable to do so, by any competent authority of the sending State, to the
Ministry for Foreign Affairs of the receiving State or to the authority
designated by that Ministry. As a general rule, this notification shall be
given in advance. The receiving State may make the admission as acting head
of post of a person who is neither a diplomatic agent nor a consular
officer of the sending State in the receiving State conditional on its
consent.
3. The competent authorities of the receiving State shall afford assistance
and protection to the acting head of post. While he is in charge of the
post, the provisions of the present Convention shall apply to him on the
same basis as to the head of the consular post concerned. The receiving
State shall not, however, be obliged to grant to an acting head of post any
facility, privilege or immunity which the head of the consular post enjoys
only subject to conditions not fulfilled by the acting head of post.
4. When, in the circumstances referred to in paragraph 1 of this Article, a
member of the diplomatic staff of the diplomatic mission of the sending
State in the receiving State is designated by the sending State as an
acting head of post, he shall, if the receiving State does not object
thereto, continue to enjoy diplomatic privileges and immunities.
Article 16
PRECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
1. Heads of consular posts shall rank in each class according to the date
of the grant of the exequatur.
2. If, however, the head of a consular post before obtaining the exequatur
is admitted to the exercise of his functions provisionally, his precedence
shall be determined according to the date of the provisional admission;
this precedence shall be maintained after the granting of the exequatur.
3. The order of precedence as between two or more heads of consular posts
who obtained the exequatur or provisional admission on the same date shall
be determined according to the dates on which their commissions or similar
instruments or the notifications referred to in paragraph 3 of Article 11
were presented to the receiving State.
4. Acting heads of posts shall rank after all heads of consular posts and,
as between themselves, they shall rank according to the dates on which they
assumed their functions as acting heads of posts as indicated in the
notifications given under paragraph 2 of Article 15.
5. Honorary consular officers who are heads of consular posts shall rank in
each class after career heads of consular posts, in the order and according
to the rules laid down in the foregoing paragraphs.
6. Heads of consular posts shall have precedence over consular officers not
having that status.
Article 17
PERFORMANCE OF DIPLOMATIC ACTS BY CONSULAR OFFICERS
1. In a State where the sending State has no diplomatic mission and is not
represented by a diplomatic mission of a third State, a consular officer
may, with the consent of the receiving State, and without affecting his
consular status, be authorized to perform diplomatic acts. The performance
of such acts by a consular officer shall not confer upon him any right to
claim diplomatic privileges and immunities.
2. A consular officer may, after notification addressed to the receiving
State, act as representative of the sending State to any inter-governmental
organization. When so acting, he shall be entitled to enjoy any privileges
and immunities accorded to such a representative by customary international
law or by international agreements; however, in respect of the performance
by him of any consular function, he shall not be entitled to any greater
immunity from jurisdiction than that to which a consular officer is
entitled under the present Convention.
Article 18
APPOINTMENT OF THE SAME PERSON BY TWO OR MORE STATES
AS A CONSULAR OFFICER
Two or more States may, with the consent of the receiving State, appoint
the same person as a consular officer in that State.
Article 19
APPOINTMENT OF MEMBERS OF CONSULAR STAFF
1. Subject to the provisions of Articles 20, 22 and 23, the sending State
may freely appoint the members of the consular staff.
2. The full name, category and class of all consular officers, other than
the head of a consular post, shall be notified by the sending State to the
receiving State in sufficient time for the receiving State, if it so
wishes, to exercise its rights under paragraph 3 of Article 23.
3. The sending State may, if required by its laws and regulations, request
the receiving State to grant an exequatur to a consular officer other than
the head of a consular post.
4. The receiving State may, if required by its laws and regulations, grant
an exequatur to a consular officer other than the head of a consular post.
Article 20
SIZE OF THE CONSULAR STAFF
In the absence of an express agreement as to the size of the consular
staff, the receiving State may require that the size of the staff be kept
within limits considered by it to be reasonable and normal, having regard
to circumstances and conditions in the consular district and to the needs
of the particular post.
Article 21
PRECEDENCE AS BETWEEN CONSULAR OFFICERS OF A CONSULAR POST
The order of precedence as between the consular officers of a consular post
and any change thereof shall be notified by the diplomatic mission of the
sending State or, if that State has no such mission in the receiving State,
by the head of the consular post, to the Ministry for Foreign Affairs of
the receiving State or to the authority designated by that Ministry.
Article 22
NATIONALITY OF CONSULAR OFFICERS
1. Consular officers should, in principle, have the nationality of the
sending State.
2. Consular officers may not be appointed from among persons having the
nationality of the receiving State except with the express consent of that
State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals
of a third State who are not also nationals of the sending State.
Article 23
PERSONS DECLARED "NON GRATA"
1. The receiving State may at any time notify the sending State that a
consular officer is persona non grata or that any other member of the
consular staff is not acceptable. In that event, the sending State shall,
as the case may be, either recall the person concerned or terminate his
functions with the consular post.
2. If the sending State refuses or fails within a reasonable time to carry
out its obligations under paragraph 1 of this Article, the receiving State
may, as the case may be, either withdraw the exequatur from the person
concerned or cease to consider him as a member of the consular staff.
3. A person appointed as a member of a consular post may be declared
unacceptable before arriving in the territory of the receiving State or, if
already in the receiving State, before entering on his duties with the
consular post. In any such case, the sending State shall withdraw his
appointment.
4. In the cases mentioned in paragraphs 1 and 3 of this Article, the
receiving State is not obliged to give to the sending State reasons for its
decision.
Article 24
NOTIFICATION TO THE RECEIVING STATE OF APPOINTMENTS,
ARRIVALS AND DEPARTURES
1. The Ministry for Foreign Affairs of the receiving State or the authority
designated by that Ministry shall be notified of:
(a) the appointment of members of a consular post, their arrival after
appointment to the consular post, their final departure or the
termination of their functions and any other changes affecting their
status that may occur in the course of their service with the
consular post;
(b) the arrival and final departure of a person belonging to the family
of a member of a consular post forming part of his household and,
where appropriate, the fact that a person becomes or ceases to be
such a member of the family;
(c) the arrival and final departure of members of the private staff and,
where appropriate, the termination of their service as such;
(d) the engagement and discharge of persons resident in the receiving
State as members of a consular post or as members of the private
staff entitled to privileges and immunities.
2. When possible, prior notification of arrival and final departure shall
also be given.
Section II
END OF CONSULAR FUNCTIONS
Article 25
TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
The functions of a member of a consular post shall come to an end inter
alia:
(a) on notification by the sending State to the receiving State that his
functions have come to an end;
(b) on withdrawal of the exequatur;
(c) on notification by the receiving State to the sending State that the
receiving State has ceased to consider him as a member of the
consular staff.
Article 26
DEPARTURE FROM THE TERRITORY OF THE RECEIVING STATE
The receiving State shall, even in case of armed conflict, grant to members
of the consular post and members of the private staff, other than nationals
of the receiving State, and to members of their families forming part of
their households irrespective of nationality, the necessary time and
facilities to enable them to prepare their departure and to leave at the
earliest possible moment after the termination of the functions of the
members concerned. In particular, it shall, in case of need, place at their
disposal the necessary means of transport for themselves and their property
other than property acquired in the receiving State the export of which is
prohibited at the time of departure.
Article 27
PROTECTION OF CONSULAR PREMISES AND ARCHIVES AND OF THE INTERESTS OF THE
SENDING STATE IN EXCEPTIONAL CIRCUMSTANCES
1. In the event of the severance of consular relations between two States:
(a) the receiving State shall, even in case of armed conflict, respect
and protect the consular premises, together with the property of the
consular post and the consular archives;
(b) the sending State may entrust the custody of the consular premises,
together with the property contained therein and the consular
archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and
those of its nationals to a third State acceptable to the receiving
State.
2. In the event of the temporary or permanent closure of a consular post,
the provisions of sub-paragraph (a) of paragraph 1 of this Article shall
apply. In addition,
(a) if the sending State, although not represented in the receiving State
by a diplomatic mission, has another consular post in the territory
of that State, that consular post may be entrusted with the custody
of the premises of the consular post which has been closed, together
with the property contained therein and the consular archives, and,
with the consent of the receiving State, with the exercise of
consular functions in the district of that consular post; or
(b) if the sending State has no diplomatic mission and no other consular
post in the receiving State, the provisions of sub-paragraphs (b) and
(c) of paragraph 1 of this Article shall apply.
CHAPTER II
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO CONSULAR POSTS, CAREER CONSULAR OFFICERS
AND OTHER MEMBERS OF A CONSULAR POST
Section I
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO A CONSULAR POST
Article 28
FACILITIES FOR THE WORK OF THE CONSULAR POST
The receiving State shall accord full facilities for the performance of the
functions of the consular post.
Article 29
USE OF NATIONAL FLAG AND COAT-OF-ARMS
1. The sending State shall have the right to the use of its national flag
and coat-of-arms in the receiving State in accordance with the provisions
of this Article.
2. The national flag of the sending State may be flown and its coat-of-arms
displayed on the building occupied by the consular post and at the entrance
door thereof, on the residence of the head of the consular post and on his
means of transport when used on official business.
3. In the exercise of the right accorded by this Article regard shall be
had to the laws, regulations and usages of the receiving State.
Article 30
ACCOMMODATION
1. The receiving State shall either facilitate the acquisition on its
territory, in accordance with its laws and regulations, by the sending
State of premises necessary for its consular post or assist the latter in
obtaining accommodation in some other way.
2. It shall also, where necessary, assist the consular post in obtaining
suitable accommodation for its members.
Article 31
INVIOLABILITY OF THE CONSULAR PREMISES
1. Consular premises shall be inviolable to the extent provided in this
Article.
2. The authorities of the receiving State shall not enter that part of the
consular premises which is used exclusively for the purpose of the work of
the consular post except with the consent of the head of the consular post
or of his designee or of the head of the diplomatic mission of the sending
State. The consent of the head of the consular post may, however, be
assumed in case of fire or other disaster requiring prompt protective
action.
3. Subject to the provisions of paragraph 2 of this Article, the receiving
State is under a special duty to take all appropriate steps to protect the
consular premises against any intrusion or damage and to prevent any
disturbance of the peace of the consular post or impairment of its dignity.
4. The consular premises, their furnishings, the property of the consular
post and its means of transport shall be immune from any form of
requisition for purposes of national defence or public utility. If
expropriation is necessary for such purposes, all possible steps shall be
taken to avoid impeding the performance of consular functions, and prompt,
adequate and effective compensation shall be paid to the sending State.
Article 32
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises and the residence of the career head of consular post
of which the sending State or any person acting on its behalf is the owner
or lessee shall be exempt from all national, regional or municipal dues and
taxes whatsoever, other than such as represent payment for specific
services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article
shall not apply to such dues and taxes if, under the law of the receiving
State, they are payable by the person who contracted with the sending State
or with the person acting on its behalf.
Article 33
INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and
wherever they may be.
Article 34
FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security, the receiving
State shall ensure freedom of movement and travel in its territory to all
members of the consular post.
Article 35
FREEDOM OF COMMUNICATION
1. The receiving State shall permit and protect freedom of communication on
the part of the consular post for all official purposes. In communicating
with the Government, the diplomatic missions and other consular posts,
wherever situated, of the sending State, the consular post may employ all
appropriate means, including diplomatic or consular couriers, diplomatic or
consular bags and messages in code or cipher. However, the consular post
may install and use a wireless transmitter only with the consent of the
receiving State.
2. The official correspondence of the consular post shall be inviolable.
Official correspondence means all correspondence relating to the consular
post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless, if
the competent authorities of the receiving State have serious reason to
believe that the bag contains something other than the correspondence,
documents or articles referred to in paragraph 4 of this Article, they may
request that the bag be opened in their presence by an authorized
representative of the sending State. If this request is refused by the
authorities of the sending State, the bag shall be returned to its place of
origin.
4. The packages constituting the consular bag shall bear visible external
marks of their character and may contain only official correspondence and
documents or articles intended exclusively for official use.
5. The consular courier shall be provided with an official document indicat
ing his status and the number of packages constituting the consular bag.
Except with the consent of the receiving State he shall be neither a
national of the receiving State, nor, unless he is a national of the
sending State, a permanent resident of the receiving State. In the
performance of his functions he shall be protected by the receiving State.
He shall enjoy personal inviolability and shall not be liable to any form
of arrest or detention.
6. The sending State, its diplomatic missions and its consular posts may
designate consular couriers ad hoc. In such cases the provisions of
paragraph 5 of this Article shall also apply except that the immunities
therein mentioned shall cease to apply when such a courier has delivered to
the consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a
commercial aircraft scheduled to land at an authorized port of entry. He
shall be provided with an official document indicating the number of
packages constituting the bag, but he shall not be considered to be a
consular courier. By arrangement with the appropriate local authorities,
the consular post may send one of its members to take possession of the bag
directly and freely from the captain of the ship or of the aircraft.
Article 36
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating
to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with
and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State
if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention
shall also be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without delay of
his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State
who is in prison, custody or detention in their district in pursuance
of a judgment. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or
detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised
in conformity with the laws and regulations of the receiving State, subject
to the proviso, however, that the said laws and regulations must enable
full effect to be given to the purposes for which the rights accorded under
this Article are intended.
Article 37
INFORMATION IN CASES OF DEATHS, GUARDIANSHIP OR TRUSTEESHIP,
WRECKS AND AIR ACCIDENTS
If the relevant information is available to the competent authorities of
the receiving State, such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to
inform without delay the consular post in whose district the death
occurred;
(b) to inform the competent consular post without delay of any case where
the appointment of a guardian or trustee appears to be in the
interests of a minor or other person lacking full capacity who is a
national of the sending State. The giving of this information shall,
however, be without prejudice to the operation of the laws and
regulations of the receiving State concerning such appointments;
(c) if a vessel, having the nationality of the sending State, is wrecked
or runs aground in the territorial sea or internal waters of the
receiving State, or if an aircraft registered in the sending State
suffers an accident on the territory of the receiving State, to
inform without delay the consular post nearest to the scene of the
occurrence.
Article 38
COMMUNICATION WITH THE AUTHORITIES OF THE RECEIVING STATE
In the exercise of their functions, consular officers may address:
(a) the competent local authorities of their consular district;
(b) the competent central authorities of the receiving State if and to
the extent that this is allowed by the laws, regulations and usages
of the receiving State or by the relevant international agreements.
Article 39
CONSULAR FEES AND CHARGES
1. The consular post may levy in the territory of the receiving State the
fees and charges provided by the laws and regulations of the sending State
for consular acts.
2. The sums collected in the form of the fees and charges referred to in
paragraph 1 of this Article, and the receipts for such fees and charges,
shall be exempt from all dues and taxes in the receiving State.
Section II
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO CAREER CONSULAR OFFICERS
AND OTHER MEMBERS OF A CONSULAR POST
Article 40
PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and
shall take all appropriate steps to prevent any attack on their person,
freedom or dignity.
Article 41
PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
1. Consular officers shall not be liable to arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by
the competent judicial authority.
2. Except in the case specified in paragraph 1 of this Article, consular
officers shall not be committed to prison or liable to any other form of
restriction on their personal freedom save in execution of a judicial
decision of final effect.
3. If criminal proceedings are instituted against a consular officer, he
must appear before the competent authorities. Nevertheless, the proceedings
shall be conducted with the respect due to him by reason of his official
position and, except in the case specified in paragraph 1 of this Article,
in a manner which will hamper the exercise of consular functions as little
as possible. When, in the circumstances mentioned in paragraph 1 of this
Article, it has become necessary to detain a consular officer, the
proceedings against him shall be instituted with the minimum of delay.
Article 42
NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the
consular staff, or of criminal proceedings being instituted against him,
the receiving State shall promptly notify the head of the consular post.
Should the latter be himself the object of any such measure, the receiving
State shall notify the sending State through the diplomatic channel.
Article 43
IMMUNITY FROM JURISDICTION
1. Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or impliedly
as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft.
Article 44
LIABILITY TO GIVE EVIDENCE
1. Members of a consular post may be called upon to attend as witnesses in
the course of judicial or administrative proceedings. A consular employee
or a member of the service staff shall not, except in the cases mentioned
in paragraph 3 of this Article, decline to give evidence. If a consular
officer should decline to do so, no coercive measure or penalty may be
applied to him.
2. The authority requiring the evidence of a consular officer shall avoid
interference with the performance of his functions. It may, when possible,
take such evidence at his residence or at the consular post or accept a
statement from him in writing.
3. Members of a consular post are under no obligation to give evidence
concerning matters connected with the exercise of their functions or to
produce official correspondence and documents relating thereto. They are
also entitled to decline to give evidence as expert witnesses with regard
to the law of the sending State.
Article 45
WAIVER OF PRIVILEGES AND IMMUNITIES
1. The sending State may waive, with regard to a member of the consular
post, any of the privileges and immunities provided for in Articles 41, 43
and 44.
2. The waiver shall in all cases be express, except as provided in
paragraph 3 of this Article, and shall be communicated to the receiving
State in writing.
3. The initiation of proceedings by a consular officer or a consular
employee in a matter where he might enjoy immunity from jurisdiction under
Article 43 shall preclude him from invoking immunity from jurisdiction in
respect of any counter-claim directly connected with the principal claim.
4. The waiver of immunity from jurisdiction for the purposes of civil or
administrative proceedings shall not be deemed to imply the waiver of
immunity from the measures of execution resulting from the judicial decisio
n; in respect of such measures, a separate waiver shall be necessary.
Article 46
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
1. Consular officers and consular employees and members of their families
forming part of their households shall be exempt from all obligations under
the laws and regulations of the receiving State in regard to the
registration of aliens and residence permits.
2. The provisions of paragraph 1 of this Article shall not, however, apply
to any consular employee who is not a permanent employee of the sending
State or who carries on any private gainful occupation in the receiving
State or to any member of the family of any such employee.
Article 47
EXEMPTION FROM WORK PERMITS
1. Members of the consular post shall, with respect to services rendered
for the sending State, be exempt from any obligations in regard to work
permits imposed by the laws and regulations of the receiving State
concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular
employees shall, if they do not carry on any other gainful occupation in
the receiving State, be exempt from the obligations referred to in
paragraph 1 of this Article.
Article 48
SOCIAL SECURITY EXEMPTION
1. Subject to the provisions of paragraph 3 of this Article, members of the
consular post with respect to services rendered by them for the sending
State, and members of their families forming part of their households,
shall be exempt from social security provisions which may be in force in
the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall apply
also to members of the private staff who are in the sole employ of members
of the consular post, on condition:
(a) that they are not nationals of or permanently resident in the
receiving State; and
(b) that they are covered by the social security provisions which are in
force in the sending State or a third State.
3. Members of the consular post who employ persons to whom the exemption
provided for in paragraph 2 of this Article does not apply shall observe
the obligations which the social security provisions of the receiving State
impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall
not preclude voluntary participation in the social security system of the
receiving State, provided that such participation is permitted by that
State.
Article 49
EXEMPTION FROM TAXATION
1. Consular officers and consular employees and members of their families
forming part of their households shall be exempt from all dues and taxes,n
personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price
of goods or services;
(b) dues or taxes on private immovable property situated in the territory
of the receiving State, subject to the provisions of Article 32;
(c) estate, succession or inheritance duties, and duties on transfers,
levied by the receiving State, subject to the provisions of paragraph
(b) of Article 51;
(d) dues and taxes on private income, including capital gains, having its
source in the receiving State and capital taxes relating to
investments made in commercial or financial undertakings in the
receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duties,
subject to the provisions of Article 32.
2. Members of the service staff shall be exempt from dues and taxes on the
wages which they receive for their services.
3. Members of the consular post who employ persons whose wages or salaries
are not exempt from income tax in the receiving State shall observe the
obligations which the laws and regulations of that State impose upon
employers concerning the levying of income tax.
Article 50
EXEMPTION FROM CUSTOMS DUTIES AND INSPECTION
1. The receiving State shall, in accordance with such laws and regulations
as it may adopt, permit entry of and grant exemption from all customs
duties, taxes, and related charges other than charges for storage, cartage
and similar services, on:
(a) articles for the official use of the consular post;
(b) articles for the personal use of a consular officer or members of his
family forming part of his household, including articles intended for
his establishment. The articles intended for consumption shall not
exceed the quantities necessary for direct utilization by the persons
concerned.
2. Consular employees shall enjoy the privileges and exemptions specified
in paragraph 1 of this Article in respect of articles imported at the time
of first installation.
3. Personal baggage accompanying consular officers and members of their
families forming part of their households shall be exempt from inspection.
It may be inspected only if there is serious reason to believe that it
contains articles other than those referred to in sub-paragraph (b) of
paragraph 1 of this Article, or articles the import or export of which is
prohibited by the laws and regulations of the receiving State or which are
subject to its quarantine laws and regulations. Such inspection shall be
carried out in the presence of the consular officer or member of his family
concerned.
Article 51
ESTATE OF A MEMBER OF THE CONSULAR POST
OR OF A MEMBER OF HIS FAMILY
In the event of the death of a member of the consular post or of a member
of his family forming part of his household, the receiving State:
(a) shall permit the export of the movable property of the deceased, with
the exception of any such property acquired in the receiving State
the export of which was prohibited at the time of his death;
(b) shall not levy national, regional or municipal estate, succession or
inheritance duties, and duties on transfers, on movable property the
presence of which in the receiving State was due solely to the
presence in that State of the deceased as a member of the consular
post or as a member of the family of a member of the consular post.
Article 52
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt members of the consular post and members
of their families forming part of their households from all personal
services, from all public service of any kind whatsoever, and from military
obligations such as those connected with requisitioning, military
contributions and billeting.
Article 53
BEGINNING AND END OF CONSULAR PRIVILEGES AND IMMUNITIES
1. Every member of the consular post shall enjoy the privileges and immunit
ies provided in the present Convention from the moment he enters the
territory of the receiving State on proceeding to take up his post or, if
already in its territory, from the moment when he enters on his duties with
the consular post.
2. Members of the family of a member of the consular post forming part of
his household and members of his private staff shall receive the privileges
and immunities provided in the present Convention from the date from which
he enjoys privileges and immunities in accordance with paragraph 1 of this
Article or from the date of their entry into the territory of the receiving
State or from the date of their becoming a member of such family or private
staff, whichever is the latest.
3. When the functions of a member of the consular post have come to an end,
his privileges and immunities and those of a member of his family forming
part of his household or a member of his private staff shall normally cease
at the moment when the person concerned leaves the receiving State or on
the expiry of a reasonable period in which to do so, whichever is the
sooner, but shall subsist until that time, even in case of armed conflict.
In the case of the persons referred to in paragraph 2 of this Article,
their privileges and immunities shall come to an end when they cease to
belong to the household or to be in the service of a member of the consular
post provided, however, that if such persons intend leaving the receiving
State within a reasonable period thereafter, their privileges and
immunities shall subsist until the time of their departure.
4. However, with respect to acts performed by a consular officer or a
consular employee in the exercise of his functions, immunity from
jurisdiction shall continue to subsist without limitation of time.
5. In the event of the death of a member of the consular post, the members
of his family forming part of his household shall continue to enjoy the
privileges and immunities accorded to them until they leave the receiving
State or until the expiry of a reasonable period enabling them to do so,
whichever is the sooner.
Article 54
OBLIGATIONS OF THIRD STATES
1. If a consular officer passes through or is in the territory of a third
State, which has granted him a visa if a visa was necessary, while
proceeding to take up or return to his post or when returning to the
sending State, the third State shall accord to him all immunities provided
for by the other Articles of the present Convention as may be required to
ensure his transit or return. The same shall apply in the case of any
member of his family forming part of his household enjoying such privileges
and immunities who are accompanying the consular officer or travelling
separately to join him or to return to the sending State.
2. In circumstances similar to those specified in paragraph 1 of this
Article, third States shall not hinder the transit through their territory
of other members of the consular post or of members of their families
forming part of their households.
3. Third States shall accord to official correspondence and to other
official communications in transit, including messages in code or cipher,
the same freedom and protection as the receiving State is bound to accord
under the present Convention. They shall accord to consular couriers who
have been granted a visa, if a visa was necessary, and to consular bags in
transit, the same inviolability and protection as the receiving State is
bound to accord under the present Convention.
4. The obligations of third States under paragraphs 1, 2 and 3 of this
Article shall also apply to the persons mentioned respectively in those
paragraphs, and to official communications and to consular bags, whose
presence in the territory of the third State is due to force majeure.
Article 55
RESPECT FOR THE LAWS AND REGULATIONS OF THE RECEIVING STATE
1. Without prejudice to their privileges and immunities, it is the duty of
all persons enjoying such privileges and immunities to respect the laws and
regulations of the receiving State. They also have a duty not to interfere
in the internal affairs of that State.
2. The consular premises shall not be used in any manner incompatible with
the exercise of consular functions.
3. The provisions of paragraph 2 of this Article shall not exclude the
possibility of offices of other institutions or agencies being installed in
part of the building in which the consular premises are situated, provided
that the premises assigned to them are separate from those used by the
consular post. In that event, the said offices shall not, for the purposes
of the present Convention, be considered to form part of the consular
premises.
Article 56
INSURANCE AGAINST THIRD PARTY RISKS
Members of the consular post shall comply with any requirement imposed by
the laws and regulations of the receiving State in respect of insurance
against third party risks arising from the use of any vehicle, vessel or
aircraft.
Article 57
SPECIAL PROVISIONS CONCERNING PRIVATE GAINFUL OCCUPATION
1. Career consular officers shall not carry on for personal profit any
professional or commercial activity in the receiving State.
2. Privileges and immunities provided in this Chapter shall not be
accorded:
(a) to consular employees or to members of the service staff who carry on
any private gainful occupation in the receiving State;
(b) to members of the family of a person referred to in sub-paragraph (a)
of this paragraph or to members of his private staff;
(c) to members of the family of a member of a consular post who
themselves carry on any private gainful occupation in the receiving
State.
CHAPTER III
REGIME RELATING TO HONORARY CONSULAR OFFICERS
AND CONSULAR POSTS HEADED BY SUCH OFFICERS
Article 58
GENERAL PROVISIONS RELATING TO FACILITIES,
PRIVILEGES AND IMMUNITIES
1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of Article
54 and paragraphs 2 and 3 of Article 55 shall apply to consular posts
headed by an honorary consular officer. In addition, the facilities,
privileges and immunities of such consular posts shall be governed by
Articles 59, 60, 61 and 62.
2. Articles 42 and 43, paragraph 3 of Article 44, Articles 45 and 53 and
paragraph 1 of Article 55 shall apply to honorary consular officers. In
addition, the facilities, privileges and immunities of such consular
officers shall be governed by Articles 63, 64, 65, 66 and 67.
3. Privileges and immunities provided in the present Convention shall not
be accorded to members of the family of an honorary consular officer or of
a consular employee employed at a consular post headed by an honorary
consular officer.
4. The exchange of consular bags between two consular posts headed by
honorary consular officers in different States shall not be allowed without
the consent of the two receiving States concerned.
Article 59
PROTECTION OF THE CONSULAR PREMISES
The receiving State shall take such steps as may be necessary to protect
the consular premises of a consular post headed by an honorary consular
officer against any intrusion or damage and to prevent any disturbance of
the peace of the consular post or impairment of its dignity.
Article 60
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises of a consular post headed by an honorary consular
officer of which the sending State is the owner or lessee shall be exempt
from all national, regional or municipal dues and taxes whatsoever, other
than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article
shall not apply to such dues and taxes if, under the laws and regulations
of the receiving State, they are payable by the person who contracted with
the sending State.
Article 61
INVIOLABILITY OF CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents of a consular post headed by an honorar
y consular officer shall be inviolable at all times and wherever they may
be, provided that they are kept separate from other papers and documents
and, in particular, from the private correspondence of the head of a
consular post and of any person working with him, and from the materials,
books or documents relating to their profession or trade.
Article 62
EXEMPTION FROM CUSTOMS DUTIES
The receiving State shall, in accordance with such laws and regulations as
it may adopt, permit entry of, and grant exemption from all customs duties,
taxes, and related charges other than charges for storage, cartage and
similar services on the following articles, provided that they are for the
official use of a consular post headed by an honorary consular officer:
coats-of-arms, flags, signboards, seals and stamps, books, official printed
matter, office furniture, office equipment and similar articles supplied by
or at the instance of the sending State to the consular post.
Article 63
CRIMINAL PROCEEDINGS
If criminal proceedings are instituted against an honorary consular officer
, he must appear before the competent authorities. Nevertheless, the
proceedings shall be conducted with the respect due to him by reason of his
official position and, except when he is under arrest or detention, in a
manner which will hamper the exercise of consular functions as little as
possible. When it has become necessary to detain an honorary consular
officer, the proceedings against him shall be instituted with the minimum
of delay.
Article 64
PROTECTION OF HONORARY CONSULAR OFFICERS
The receiving State is under a duty to accord to an honorary consular
officer such protection as may be required by reason of his official
position.
Article 65
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
Honorary consular officers, with the exception of those who carry on for
personal profit any professional or commercial activity in the receiving
State, shall be exempt from all obligations under the laws and regulations
of the receiving State in regard to the registration of aliens and
residence permits.
Article 66
EXEMPTION FROM TAXATION
An honorary consular officer shall be exempt from all dues and taxes on the
remuneration and emoluments which he receives from the sending State in
respect of the exercise of consular functions.
Article 67
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt honorary consular officers from all
personal services and from all public services of any kind whatsoever and
from military obligations such as those connected with requisitioning,
military contributions and billeting.
Article 68
OPTIONAL CHARACTER OF THE INSTITUTION
OF HONORARY CONSULAR OFFICERS
Each State is free to decide whether it will appoint or receive honorary
consular officers.
CHAPTER IV
GENERAL PROVISIONS
Article 69
CONSULAR AGENTS WHO ARE NOT HEADS OF CONSULAR POSTS
1. Each State is free to decide whether it will establish or admit consular
agencies conducted by consular agents not designated as heads of consular
post by the sending State.
2. The conditions under which the consular agencies referred to in
paragraph 1 of this Article may carry on their activities and the
privileges and immunities which may be enjoyed by the consular agents in
charge of them shall be determined by agreement between the sending State
and the receiving State.
Article 70
EXERCISE OF CONSULAR FUNCTIONS BY DIPLOMATIC MISSIONS
1. The provisions of the present Convention apply also, so far as the
context permits, to the exercise of consular functions by a diplomatic
mission.
2. The names of members of a diplomatic mission assigned to the consular
section or otherwise charged with the exercise of the consular functions of
the mission shall be notified to the Ministry for Foreign Affairs of the
receiving State or to the authority designated by that Ministry.
3. In the exercise of consular functions a diplomatic mission may address:
(a) the local authorities of the consular district;
(b) the central authorities of the receiving State if this is allowed by
the laws, regulations and usages of the receiving State or by
relevant international agreements.
4. The privileges and immunities of the members of a diplomatic mission
referred to in paragraph 2 of this Article shall continue to be governed by
the rules of international law concerning diplomatic relations.
Article 71
NATIONALS OR PERMANENT RESIDENTS OF THE RECEIVING STATE
1. Except in so far as additional facilities, privileges and immunities may
be granted by the receiving State, consular officers who are nationals of
or permanently resident in the receiving State shall enjoy only immunity
from jurisdiction and personal inviolability in respect of official acts
performed in the exercise of their functions, and the privilege provided in
paragraph 3 of Article 44. So far as these consular officers are concerned,
the receiving State shall likewise be bound by the obligation laid down in
Article 42. If criminal proceedings are instituted against such a consular
officer, the proceedings shall, except when he is under arrest or
detention, be conducted in a manner which will hamper the exercise of
consular functions as little as possible.
2. Other members of the consular post who are nationals of or permanently
resident in the receiving State and members of their families, as well as
members of the families of consular officers referred to in paragraph 1 of
this Article, shall enjoy facilities, privileges and immunities only in so
far as these are granted to them by the receiving State. Those members of
the families of members of the consular post and those members of the
private staff who are themselves nationals of or permanently resident in
the receiving State shall likewise enjoy facilities, privileges and immunit
ies only in so far as these are granted to them by the receiving State. The
receiving State shall, however, exercise its jurisdiction over those
persons in such a way as not to hinder unduly the performance of the
functions of the consular post.
Article 72
NON-DISCRIMINATION
1. In the application of the provisions of the present Convention the
receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the
present Convention restrictively because of a restrictive application
of that provision to its consular posts in the sending State;
(b) where by custom or agreement States extend to each other more
favourable treatment than is required by the provisions of the
present Convention.
Article 73
RELATIONSHIP BETWEEN THE PRESENT CONVENTION
AND OTHER INTERNATIONAL AGREEMENTS
1. The provisions of the present Convention shall not affect other
international agreements in force as between States parties to them.
2. Nothing in the present Convention shall preclude States from concluding
international agreements confirming or supplementing or extending or
amplifying the provisions thereof.
CHAPTER V
FINAL PROVISIONS
Article 74
SIGNATURE
The present Convention shall be open for signature by all States Members of
the United Nations or of any of the specialized agencies or Parties to the
Statute of the International Court of Justice, and by any other State
invited by the General Assembly of the United Nations to become a Party to
the Convention, as follows until 31 October 1963 at the Federal Ministry
for Foreign Affairs of the Republic of Austria and subsequently, until 31
March 1964, at the United Nations Headquarters in New York.
Article 75
RATIFICATION
The present Convention is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article 76
ACCESSION
The present Convention shall remain open for accession by any State belongi
ng to any of the four categories mentioned in Article 74. The instruments
of accession shall be deposited with the Secretary-General of the United
Nations.
Article 77
ENTRY INTO FORCE
1. The present Convention shall enter into force on the thirtieth day
following the date of deposit of the twenty-second instrument of
ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit
of the twenty-second instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day after deposit by
such State of its instrument of ratification or accession.
Article 78
NOTIFICATIONS BY THE SECRETARY-GENERAL
The Secretary-General of the United Nations shall inform all States belongi
ng to any of the four categories mentioned in Article 74:
(a) of signatures to the present Convention and of the deposit of
instruments of ratification or accession, in accordance with Articles
74, 75 and 76;
(b) of the date on which the present Convention will enter into force, in
accordance with Article 77.
Article 79
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, who shall send certified
copies thereof to all States belonging to any of the four categories
mentioned in Article 74.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present
Convention.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING
ACQUISITION OF NATIONALITY. DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Protocol and to the Vienna Convention on
Consular Relations, hereinafter referred to as "the Convention", adopted by
the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to establish rules between them concerning
acquisition of nationality by members of the consular post and by members
of their families forming part of their households,
Have agreed as follows:
Article I
For the purposes of the present Protocol, the expression "members of the
consular post" shall have the meaning assigned to it in sub-paragraph (g)
of paragraph 1 of Article 1 of the Convention, namely, "consular officers,
consular employees and members of the service staff".
Article II
Members of the consular post not being nationals of the receiving State,
and members of their families forming part of their households, shall not,
solely by the operation of the law of the receiving State, acquire the
nationality of that State.
Article III
The present Protocol shall be open for signature by all States which may
become Parties to the Convention, as follows: until 31 October 1963 at the
Federal Ministry for Foreign Affairs of the Republic of Austria and,
subsequently, until 31 March 1964, at the United Nations Headquarters in
New York.
Article IV
The present Protocol is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article V
The present Protocol shall remain open for accession by all States which
may become Parties to the Convention. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article VI
1. The present Protocol shall enter into force on the same day as the
Convention or on the thirtieth day following the date of deposit of the
second instrument of ratification of or accession to the Protocol with the
Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its
entry into force in accordance with paragraph 1 of this Article, the
Protocol shall enter into force on the thirtieth day after deposit by such
State of its instrument of ratification or accession.
Article VII
The Secretary-General of the United Nations shall inform all States which
may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of
instruments of ratification or accession, in accordance with Articles
III, IV and V;
(b) of the date on which the present Protocol will enter into force, in
accordance with Article VI.
Article VIII
The original of the present Protocol, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary-General of the United Nations, who shall send certified
copies thereof to all States referred to in Article III.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING
THE COMPULSORY SETTLEMENT OF DISPUTES. DONE AT VIENNA, ON 24 APRIL
1963
The States Parties to the present Protocol and to the Vienna Convention on
Consular Relations, hereinafter referred to as "the Convention", adopted by
the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to resort in all matters concerning them in respect
of any dispute arising out of the interpretation or application of the
Convention to the compulsory jurisdiction of the International Court of
Justice, unless some other form of settlement has been agreed upon by the
parties within a reasonable period,
Have agreed as follows:
Article I
Disputes arising out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the International Court of
Justice and may accordingly be brought before the Court by an application
made by any party to the dispute being a Party to the present Protocol.
Article II
The parties may agree, within a period of two months after one party has
notified its opinion to the other that a dispute exists, to resort not to
the International Court of Justice but to an arbitral tribunal. After the
expiry of the said period, either party may bring the dispute before the
Court by an application.
Article III
1. Within the same period of two months, the parties may agree to adopt a
conciliation procedure before resorting to the International Court of
Justice.
2. The conciliation commission shall make its recommendations within five
months after its appointment. If its recommendations are not accepted by
the parties to the dispute within two months after they have been
delivered, either party may bring the dispute before the Court by an
application.
Article IV
States Parties to the Convention, to the Optional Protocol concerning
Acquisition of Nationality, and to the present Protocol may at any time
declare that they will extend the provisions of the present Protocol to
disputes arising out of the interpretation or application of the Optional
Protocol concerning Acquisition of Nationality. Such declarations shall be
notified to the Secretary-General of the United Nations.
Article V
The present Protocol shall be open for signature by all States which may
become Parties to the Convention as follows: until 31 October 1963 at the
Federal Ministry for Foreign Affairs of the Republic of Austria and,
subsequently, until 31 March 1964, at the United Nations Headquarters in
New York.
Article VI
The present Protocol is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article VII
The present Protocol shall remain open for accession by all States which
may become Parties to the Convention. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article VIII
1. The present Protocol shall enter into force on the same day as the
Convention or on the thirtieth day following the date of deposit of the
second instrument of ratification or accession to the Protocol with the
Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its
entry into force in accordance with paragraph 1 of this Article, the
Protocol shall enter into force on the thirtieth day after deposit by such
State of its instrument of ratification or accession.
Article IX
The Secretary-General of the United Nations shall inform all States which
may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of
instruments of ratification or accession, in accordance with Articles
V, VI and VII;
(b) of declarations made in accordance with Article IV of the present
Protocol;
(c) of the date on which the present Protocol will enter into force, in
accordance with Article VIII.
Article X
The original of the present Protocol, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary-General of the United Nations, who shall send certified
copies thereof to all States referred to in Article V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
AND OPTIONAL PROTOCOLS
DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Convention,
Recalling that consular relations have been established between peoples
since ancient times,
Having in mind the Purposes and Principles of the Charter of the United
Nation concerning the sovereign equality of States, the maintenance of
international peace and security, and the promotion of friendly relations
among nations,
Considering that the United Nations Conference on Diplomatic Intercourse
and Immunities adopted the Vienna Convention on Diplomatic Relations which
was opened for signature on 18 April 1961,
Believing that an international convention on consular relations,
privileges and immunities would also contribute to the development of
friendly relations among nations, irrespective of their differing
constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to
benefit individuals but to ensure the efficient performance of functions by
consular posts on behalf of their respective States,
Affirming that the rules of customary international law continue to govern
matters not expressly regulated by the provisions of the present
Convention,
Have agreed as follows:
Article 1
DEFINITIONS
1. For the purposes of the present Convention, the following expressions
shall have the meanings hereunder assigned to them:
(a) "consular post" means any consulate-general, consulate,
vice-consulate or consular agency;
(b) "consular district" means the area assigned to a consular post for
the exercise of consular functions;
(c) "head of consular post" means the person charged with the duty of
acting in that capacity;
(d) "consular officer" means any person, including the head of a consular
post, entrusted in that capacity with the exercise of consular
functions;
(e) "consular employee" means any person employed in the administrative
or technical service of a consular post;
(f) "member of the service staff" means any person employed in the
domestic service of a consular post;
(g) "members of the consular post" means consular officers, consular
employees and members of the service staff;
(h) "members of the consular staff" means consular officers, other than
the head of a consular post, consular employees and members of the
service staff;
(i) "member of the private staff" means a person who is employed
exclusively in the private service of a member of the consular post;
(j) "consular premises" means the buildings or parts of buildings and the
land ancillary thereto, irrespective of ownership, used exclusively
for the purposes of the consular post;
(k) "consular archives" includes all the papers, documents,
correspondence, books, films, tapes and registers of the consular
post, together with the ciphers and codes, the card-indexes and any
article of furniture intended for their protection or safekeeping.
2. Consular officers are of two categories, namely career consular officers
and honorary consular officers. The provisions of Chapter II of the present
Convention apply to consular posts headed by career consular officers; the
provisions of Chapter III govern consular posts headed by honorary consular
officers.
3. The particular status of members of the consular posts who are nationals
or permanent residents of the receiving State is governed by Article 71 of
the present Convention.
CHAPTER I
CONSULAR RELATIONS IN GENERAL
Section I
ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONS
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 of diplomatic relations shall not ipso facto involve the
severance of 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.
Article 4
ESTABLISHMENT OF A CONSULAR POST
1. A consular post may be established in the territory of the receiving
State only with that State's consent.
2. The seat of the consular post, its classification and the consular
district shall be established by the sending State and shall be subject to
the approval of the receiving State.
3. Subsequent changes in the seat of the consular post, its classification
or the consular district may be made by the sending State only with the
consent of the receiving State.
4. The consent of the receiving State shall also be required if a
consulate-general or a consulate desires to open a vice-consulate or a
consular agency in a locality other than that in which it is itself
established.
5. The prior express consent of the receiving State shall also be required
for the opening of an office forming part of an existing consular post
elsewhere than at the seat thereof.
Article 5
CONSULAR FUNCTIONS
Consular functions consist in:
(a) protecting in 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 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 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;
(d) issuing passports and travel documents to nationals of the sending
State, and visas or appropriate documents to persons wishing to
travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies
corporate, of the sending State;
(f) acting as notary and civil 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 who are nationals of the sending State,
particularly where any guardianship or trusteeship 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;
(m) performing any other functions entrusted to a consular post by the
sending State which are not prohibited by the laws and regulations of
the receiving State or to which no objection is taken by the
receiving State or which are referred to in the international
agreements in force between the sending State and the receiving
State.
Article 6
EXERCISE OF CONSULAR FUNCTIONS OUTSIDE THE CONSULAR DISTRICT
A consular officer may, in special circumstances, with the consent of the
receiving State, exercise his functions outside his consular district.
Article 7
EXERCISE OF CONSULAR FUNCTIONS IN A THIRD STATE
The sending State may, after notifying the States concerned, entrust a
consular post established in a particular State with the exercise of
consular functions in another State, unless there is express objection by
one of the States concerned.
Article 8
EXERCISE OF CONSULAR FUNCTIONS ON BEHALF OF A THIRD STATE
Upon appropriate notification to the receiving State, a consular post of
the sending State may, unless the receiving State objects, exercise
consular functions in the receiving State on behalf of a third State.
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.
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.
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.
Article 12
THE EXEQUATUR
1. The head of a consular post is admitted to the exercise of his functions
by an authorization from the receiving State termed an exequatur, whatever
the form of this authorization.
2. A State which refuses to grant an exequatur is not obliged to give to
the sending State reasons for such refusal.
3. Subject to the provisions of Articles 13 and 15, the head of a consular
post shall not enter upon his duties until he has received an exequatur.
Article 13
PROVISIONAL ADMISSION OF HEADS OF CONSULAR POSTS
Pending delivery of the exequatur, the head of a consular post may be
admitted on a provisional basis to the exercise of his functions. In that
case, the provisions of the present Convention shall apply.
Article 14
NOTIFICATION TO THE AUTHORITIES OF THE CONSULAR DISTRICT
As soon as the head of a consular post is admitted even provisionally to
the exercise of his functions, the receiving State shall immediately notify
the competent authorities of the consular district. It shall also ensure
that the necessary measures are taken to enable the head of a consular post
to carry out the duties of his office and to have the benefit of the
provisions of the present Convention.
Article 15
TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A CONSULAR POST
1. If the head of a consular post is unable to carry out his functions or
the position of head of consular post is vacant, an acting head of post may
act provisionally as head of the consular post.
2. The full name of the acting head of post shall be notified either by the
diplomatic mission of the sending State or, if that State has no such
mission in the receiving State, by the head of the consular post, or, if he
is unable to do so, by any competent authority of the sending State, to the
Ministry for Foreign Affairs of the receiving State or to the authority
designated by that Ministry. As a general rule, this notification shall be
given in advance. The receiving State may make the admission as acting head
of post of a person who is neither a diplomatic agent nor a consular
officer of the sending State in the receiving State conditional on its
consent.
3. The competent authorities of the receiving State shall afford assistance
and protection to the acting head of post. While he is in charge of the
post, the provisions of the present Convention shall apply to him on the
same basis as to the head of the consular post concerned. The receiving
State shall not, however, be obliged to grant to an acting head of post any
facility, privilege or immunity which the head of the consular post enjoys
only subject to conditions not fulfilled by the acting head of post.
4. When, in the circumstances referred to in paragraph 1 of this Article, a
member of the diplomatic staff of the diplomatic mission of the sending
State in the receiving State is designated by the sending State as an
acting head of post, he shall, if the receiving State does not object
thereto, continue to enjoy diplomatic privileges and immunities.
Article 16
PRECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
1. Heads of consular posts shall rank in each class according to the date
of the grant of the exequatur.
2. If, however, the head of a consular post before obtaining the exequatur
is admitted to the exercise of his functions provisionally, his precedence
shall be determined according to the date of the provisional admission;
this precedence shall be maintained after the granting of the exequatur.
3. The order of precedence as between two or more heads of consular posts
who obtained the exequatur or provisional admission on the same date shall
be determined according to the dates on which their commissions or similar
instruments or the notifications referred to in paragraph 3 of Article 11
were presented to the receiving State.
4. Acting heads of posts shall rank after all heads of consular posts and,
as between themselves, they shall rank according to the dates on which they
assumed their functions as acting heads of posts as indicated in the
notifications given under paragraph 2 of Article 15.
5. Honorary consular officers who are heads of consular posts shall rank in
each class after career heads of consular posts, in the order and according
to the rules laid down in the foregoing paragraphs.
6. Heads of consular posts shall have precedence over consular officers not
having that status.
Article 17
PERFORMANCE OF DIPLOMATIC ACTS BY CONSULAR OFFICERS
1. In a State where the sending State has no diplomatic mission and is not
represented by a diplomatic mission of a third State, a consular officer
may, with the consent of the receiving State, and without affecting his
consular status, be authorized to perform diplomatic acts. The performance
of such acts by a consular officer shall not confer upon him any right to
claim diplomatic privileges and immunities.
2. A consular officer may, after notification addressed to the receiving
State, act as representative of the sending State to any inter-governmental
organization. When so acting, he shall be entitled to enjoy any privileges
and immunities accorded to such a representative by customary international
law or by international agreements; however, in respect of the performance
by him of any consular function, he shall not be entitled to any greater
immunity from jurisdiction than that to which a consular officer is
entitled under the present Convention.
Article 18
APPOINTMENT OF THE SAME PERSON BY TWO OR MORE STATES
AS A CONSULAR OFFICER
Two or more States may, with the consent of the receiving State, appoint
the same person as a consular officer in that State.
Article 19
APPOINTMENT OF MEMBERS OF CONSULAR STAFF
1. Subject to the provisions of Articles 20, 22 and 23, the sending State
may freely appoint the members of the consular staff.
2. The full name, category and class of all consular officers, other than
the head of a consular post, shall be notified by the sending State to the
receiving State in sufficient time for the receiving State, if it so
wishes, to exercise its rights under paragraph 3 of Article 23.
3. The sending State may, if required by its laws and regulations, request
the receiving State to grant an exequatur to a consular officer other than
the head of a consular post.
4. The receiving State may, if required by its laws and regulations, grant
an exequatur to a consular officer other than the head of a consular post.
Article 20
SIZE OF THE CONSULAR STAFF
In the absence of an express agreement as to the size of the consular
staff, the receiving State may require that the size of the staff be kept
within limits considered by it to be reasonable and normal, having regard
to circumstances and conditions in the consular district and to the needs
of the particular post.
Article 21
PRECEDENCE AS BETWEEN CONSULAR OFFICERS OF A CONSULAR POST
The order of precedence as between the consular officers of a consular post
and any change thereof shall be notified by the diplomatic mission of the
sending State or, if that State has no such mission in the receiving State,
by the head of the consular post, to the Ministry for Foreign Affairs of
the receiving State or to the authority designated by that Ministry.
Article 22
NATIONALITY OF CONSULAR OFFICERS
1. Consular officers should, in principle, have the nationality of the
sending State.
2. Consular officers may not be appointed from among persons having the
nationality of the receiving State except with the express consent of that
State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals
of a third State who are not also nationals of the sending State.
Article 23
PERSONS DECLARED "NON GRATA"
1. The receiving State may at any time notify the sending State that a
consular officer is persona non grata or that any other member of the
consular staff is not acceptable. In that event, the sending State shall,
as the case may be, either recall the person concerned or terminate his
functions with the consular post.
2. If the sending State refuses or fails within a reasonable time to carry
out its obligations under paragraph 1 of this Article, the receiving State
may, as the case may be, either withdraw the exequatur from the person
concerned or cease to consider him as a member of the consular staff.
3. A person appointed as a member of a consular post may be declared
unacceptable before arriving in the territory of the receiving State or, if
already in the receiving State, before entering on his duties with the
consular post. In any such case, the sending State shall withdraw his
appointment.
4. In the cases mentioned in paragraphs 1 and 3 of this Article, the
receiving State is not obliged to give to the sending State reasons for its
decision.
Article 24
NOTIFICATION TO THE RECEIVING STATE OF APPOINTMENTS,
ARRIVALS AND DEPARTURES
1. The Ministry for Foreign Affairs of the receiving State or the authority
designated by that Ministry shall be notified of:
(a) the appointment of members of a consular post, their arrival after
appointment to the consular post, their final departure or the
termination of their functions and any other changes affecting their
status that may occur in the course of their service with the
consular post;
(b) the arrival and final departure of a person belonging to the family
of a member of a consular post forming part of his household and,
where appropriate, the fact that a person becomes or ceases to be
such a member of the family;
(c) the arrival and final departure of members of the private staff and,
where appropriate, the termination of their service as such;
(d) the engagement and discharge of persons resident in the receiving
State as members of a consular post or as members of the private
staff entitled to privileges and immunities.
2. When possible, prior notification of arrival and final departure shall
also be given.
Section II
END OF CONSULAR FUNCTIONS
Article 25
TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
The functions of a member of a consular post shall come to an end inter
alia:
(a) on notification by the sending State to the receiving State that his
functions have come to an end;
(b) on withdrawal of the exequatur;
(c) on notification by the receiving State to the sending State that the
receiving State has ceased to consider him as a member of the
consular staff.
Article 26
DEPARTURE FROM THE TERRITORY OF THE RECEIVING STATE
The receiving State shall, even in case of armed conflict, grant to members
of the consular post and members of the private staff, other than nationals
of the receiving State, and to members of their families forming part of
their households irrespective of nationality, the necessary time and
facilities to enable them to prepare their departure and to leave at the
earliest possible moment after the termination of the functions of the
members concerned. In particular, it shall, in case of need, place at their
disposal the necessary means of transport for themselves and their property
other than property acquired in the receiving State the export of which is
prohibited at the time of departure.
Article 27
PROTECTION OF CONSULAR PREMISES AND ARCHIVES AND OF THE INTERESTS OF THE
SENDING STATE IN EXCEPTIONAL CIRCUMSTANCES
1. In the event of the severance of consular relations between two States:
(a) the receiving State shall, even in case of armed conflict, respect
and protect the consular premises, together with the property of the
consular post and the consular archives;
(b) the sending State may entrust the custody of the consular premises,
together with the property contained therein and the consular
archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and
those of its nationals to a third State acceptable to the receiving
State.
2. In the event of the temporary or permanent closure of a consular post,
the provisions of sub-paragraph (a) of paragraph 1 of this Article shall
apply. In addition,
(a) if the sending State, although not represented in the receiving State
by a diplomatic mission, has another consular post in the territory
of that State, that consular post may be entrusted with the custody
of the premises of the consular post which has been closed, together
with the property contained therein and the consular archives, and,
with the consent of the receiving State, with the exercise of
consular functions in the district of that consular post; or
(b) if the sending State has no diplomatic mission and no other consular
post in the receiving State, the provisions of sub-paragraphs (b) and
(c) of paragraph 1 of this Article shall apply.
CHAPTER II
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO CONSULAR POSTS, CAREER CONSULAR OFFICERS
AND OTHER MEMBERS OF A CONSULAR POST
Section I
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO A CONSULAR POST
Article 28
FACILITIES FOR THE WORK OF THE CONSULAR POST
The receiving State shall accord full facilities for the performance of the
functions of the consular post.
Article 29
USE OF NATIONAL FLAG AND COAT-OF-ARMS
1. The sending State shall have the right to the use of its national flag
and coat-of-arms in the receiving State in accordance with the provisions
of this Article.
2. The national flag of the sending State may be flown and its coat-of-arms
displayed on the building occupied by the consular post and at the entrance
door thereof, on the residence of the head of the consular post and on his
means of transport when used on official business.
3. In the exercise of the right accorded by this Article regard shall be
had to the laws, regulations and usages of the receiving State.
Article 30
ACCOMMODATION
1. The receiving State shall either facilitate the acquisition on its
territory, in accordance with its laws and regulations, by the sending
State of premises necessary for its consular post or assist the latter in
obtaining accommodation in some other way.
2. It shall also, where necessary, assist the consular post in obtaining
suitable accommodation for its members.
Article 31
INVIOLABILITY OF THE CONSULAR PREMISES
1. Consular premises shall be inviolable to the extent provided in this
Article.
2. The authorities of the receiving State shall not enter that part of the
consular premises which is used exclusively for the purpose of the work of
the consular post except with the consent of the head of the consular post
or of his designee or of the head of the diplomatic mission of the sending
State. The consent of the head of the consular post may, however, be
assumed in case of fire or other disaster requiring prompt protective
action.
3. Subject to the provisions of paragraph 2 of this Article, the receiving
State is under a special duty to take all appropriate steps to protect the
consular premises against any intrusion or damage and to prevent any
disturbance of the peace of the consular post or impairment of its dignity.
4. The consular premises, their furnishings, the property of the consular
post and its means of transport shall be immune from any form of
requisition for purposes of national defence or public utility. If
expropriation is necessary for such purposes, all possible steps shall be
taken to avoid impeding the performance of consular functions, and prompt,
adequate and effective compensation shall be paid to the sending State.
Article 32
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises and the residence of the career head of consular post
of which the sending State or any person acting on its behalf is the owner
or lessee shall be exempt from all national, regional or municipal dues and
taxes whatsoever, other than such as represent payment for specific
services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article
shall not apply to such dues and taxes if, under the law of the receiving
State, they are payable by the person who contracted with the sending State
or with the person acting on its behalf.
Article 33
INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and
wherever they may be.
Article 34
FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security, the receiving
State shall ensure freedom of movement and travel in its territory to all
members of the consular post.
Article 35
FREEDOM OF COMMUNICATION
1. The receiving State shall permit and protect freedom of communication on
the part of the consular post for all official purposes. In communicating
with the Government, the diplomatic missions and other consular posts,
wherever situated, of the sending State, the consular post may employ all
appropriate means, including diplomatic or consular couriers, diplomatic or
consular bags and messages in code or cipher. However, the consular post
may install and use a wireless transmitter only with the consent of the
receiving State.
2. The official correspondence of the consular post shall be inviolable.
Official correspondence means all correspondence relating to the consular
post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless, if
the competent authorities of the receiving State have serious reason to
believe that the bag contains something other than the correspondence,
documents or articles referred to in paragraph 4 of this Article, they may
request that the bag be opened in their presence by an authorized
representative of the sending State. If this request is refused by the
authorities of the sending State, the bag shall be returned to its place of
origin.
4. The packages constituting the consular bag shall bear visible external
marks of their character and may contain only official correspondence and
documents or articles intended exclusively for official use.
5. The consular courier shall be provided with an official document indicat
ing his status and the number of packages constituting the consular bag.
Except with the consent of the receiving State he shall be neither a
national of the receiving State, nor, unless he is a national of the
sending State, a permanent resident of the receiving State. In the
performance of his functions he shall be protected by the receiving State.
He shall enjoy personal inviolability and shall not be liable to any form
of arrest or detention.
6. The sending State, its diplomatic missions and its consular posts may
designate consular couriers ad hoc. In such cases the provisions of
paragraph 5 of this Article shall also apply except that the immunities
therein mentioned shall cease to apply when such a courier has delivered to
the consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a
commercial aircraft scheduled to land at an authorized port of entry. He
shall be provided with an official document indicating the number of
packages constituting the bag, but he shall not be considered to be a
consular courier. By arrangement with the appropriate local authorities,
the consular post may send one of its members to take possession of the bag
directly and freely from the captain of the ship or of the aircraft.
Article 36
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating
to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with
and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State
if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention
shall also be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without delay of
his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State
who is in prison, custody or detention in their district in pursuance
of a judgment. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or
detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised
in conformity with the laws and regulations of the receiving State, subject
to the proviso, however, that the said laws and regulations must enable
full effect to be given to the purposes for which the rights accorded under
this Article are intended.
Article 37
INFORMATION IN CASES OF DEATHS, GUARDIANSHIP OR TRUSTEESHIP,
WRECKS AND AIR ACCIDENTS
If the relevant information is available to the competent authorities of
the receiving State, such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to
inform without delay the consular post in whose district the death
occurred;
(b) to inform the competent consular post without delay of any case where
the appointment of a guardian or trustee appears to be in the
interests of a minor or other person lacking full capacity who is a
national of the sending State. The giving of this information shall,
however, be without prejudice to the operation of the laws and
regulations of the receiving State concerning such appointments;
(c) if a vessel, having the nationality of the sending State, is wrecked
or runs aground in the territorial sea or internal waters of the
receiving State, or if an aircraft registered in the sending State
suffers an accident on the territory of the receiving State, to
inform without delay the consular post nearest to the scene of the
occurrence.
Article 38
COMMUNICATION WITH THE AUTHORITIES OF THE RECEIVING STATE
In the exercise of their functions, consular officers may address:
(a) the competent local authorities of their consular district;
(b) the competent central authorities of the receiving State if and to
the extent that this is allowed by the laws, regulations and usages
of the receiving State or by the relevant international agreements.
Article 39
CONSULAR FEES AND CHARGES
1. The consular post may levy in the territory of the receiving State the
fees and charges provided by the laws and regulations of the sending State
for consular acts.
2. The sums collected in the form of the fees and charges referred to in
paragraph 1 of this Article, and the receipts for such fees and charges,
shall be exempt from all dues and taxes in the receiving State.
Section II
FACILITIES, PRIVILEGES AND IMMUNITIES
RELATING TO CAREER CONSULAR OFFICERS
AND OTHER MEMBERS OF A CONSULAR POST
Article 40
PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and
shall take all appropriate steps to prevent any attack on their person,
freedom or dignity.
Article 41
PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
1. Consular officers shall not be liable to arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by
the competent judicial authority.
2. Except in the case specified in paragraph 1 of this Article, consular
officers shall not be committed to prison or liable to any other form of
restriction on their personal freedom save in execution of a judicial
decision of final effect.
3. If criminal proceedings are instituted against a consular officer, he
must appear before the competent authorities. Nevertheless, the proceedings
shall be conducted with the respect due to him by reason of his official
position and, except in the case specified in paragraph 1 of this Article,
in a manner which will hamper the exercise of consular functions as little
as possible. When, in the circumstances mentioned in paragraph 1 of this
Article, it has become necessary to detain a consular officer, the
proceedings against him shall be instituted with the minimum of delay.
Article 42
NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the
consular staff, or of criminal proceedings being instituted against him,
the receiving State shall promptly notify the head of the consular post.
Should the latter be himself the object of any such measure, the receiving
State shall notify the sending State through the diplomatic channel.
Article 43
IMMUNITY FROM JURISDICTION
1. Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or impliedly
as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft.
Article 44
LIABILITY TO GIVE EVIDENCE
1. Members of a consular post may be called upon to attend as witnesses in
the course of judicial or administrative proceedings. A consular employee
or a member of the service staff shall not, except in the cases mentioned
in paragraph 3 of this Article, decline to give evidence. If a consular
officer should decline to do so, no coercive measure or penalty may be
applied to him.
2. The authority requiring the evidence of a consular officer shall avoid
interference with the performance of his functions. It may, when possible,
take such evidence at his residence or at the consular post or accept a
statement from him in writing.
3. Members of a consular post are under no obligation to give evidence
concerning matters connected with the exercise of their functions or to
produce official correspondence and documents relating thereto. They are
also entitled to decline to give evidence as expert witnesses with regard
to the law of the sending State.
Article 45
WAIVER OF PRIVILEGES AND IMMUNITIES
1. The sending State may waive, with regard to a member of the consular
post, any of the privileges and immunities provided for in Articles 41, 43
and 44.
2. The waiver shall in all cases be express, except as provided in
paragraph 3 of this Article, and shall be communicated to the receiving
State in writing.
3. The initiation of proceedings by a consular officer or a consular
employee in a matter where he might enjoy immunity from jurisdiction under
Article 43 shall preclude him from invoking immunity from jurisdiction in
respect of any counter-claim directly connected with the principal claim.
4. The waiver of immunity from jurisdiction for the purposes of civil or
administrative proceedings shall not be deemed to imply the waiver of
immunity from the measures of execution resulting from the judicial decisio
n; in respect of such measures, a separate waiver shall be necessary.
Article 46
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
1. Consular officers and consular employees and members of their families
forming part of their households shall be exempt from all obligations under
the laws and regulations of the receiving State in regard to the
registration of aliens and residence permits.
2. The provisions of paragraph 1 of this Article shall not, however, apply
to any consular employee who is not a permanent employee of the sending
State or who carries on any private gainful occupation in the receiving
State or to any member of the family of any such employee.
Article 47
EXEMPTION FROM WORK PERMITS
1. Members of the consular post shall, with respect to services rendered
for the sending State, be exempt from any obligations in regard to work
permits imposed by the laws and regulations of the receiving State
concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular
employees shall, if they do not carry on any other gainful occupation in
the receiving State, be exempt from the obligations referred to in
paragraph 1 of this Article.
Article 48
SOCIAL SECURITY EXEMPTION
1. Subject to the provisions of paragraph 3 of this Article, members of the
consular post with respect to services rendered by them for the sending
State, and members of their families forming part of their households,
shall be exempt from social security provisions which may be in force in
the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall apply
also to members of the private staff who are in the sole employ of members
of the consular post, on condition:
(a) that they are not nationals of or permanently resident in the
receiving State; and
(b) that they are covered by the social security provisions which are in
force in the sending State or a third State.
3. Members of the consular post who employ persons to whom the exemption
provided for in paragraph 2 of this Article does not apply shall observe
the obligations which the social security provisions of the receiving State
impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall
not preclude voluntary participation in the social security system of the
receiving State, provided that such participation is permitted by that
State.
Article 49
EXEMPTION FROM TAXATION
1. Consular officers and consular employees and members of their families
forming part of their households shall be exempt from all dues and taxes,n
personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price
of goods or services;
(b) dues or taxes on private immovable property situated in the territory
of the receiving State, subject to the provisions of Article 32;
(c) estate, succession or inheritance duties, and duties on transfers,
levied by the receiving State, subject to the provisions of paragraph
(b) of Article 51;
(d) dues and taxes on private income, including capital gains, having its
source in the receiving State and capital taxes relating to
investments made in commercial or financial undertakings in the
receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duties,
subject to the provisions of Article 32.
2. Members of the service staff shall be exempt from dues and taxes on the
wages which they receive for their services.
3. Members of the consular post who employ persons whose wages or salaries
are not exempt from income tax in the receiving State shall observe the
obligations which the laws and regulations of that State impose upon
employers concerning the levying of income tax.
Article 50
EXEMPTION FROM CUSTOMS DUTIES AND INSPECTION
1. The receiving State shall, in accordance with such laws and regulations
as it may adopt, permit entry of and grant exemption from all customs
duties, taxes, and related charges other than charges for storage, cartage
and similar services, on:
(a) articles for the official use of the consular post;
(b) articles for the personal use of a consular officer or members of his
family forming part of his household, including articles intended for
his establishment. The articles intended for consumption shall not
exceed the quantities necessary for direct utilization by the persons
concerned.
2. Consular employees shall enjoy the privileges and exemptions specified
in paragraph 1 of this Article in respect of articles imported at the time
of first installation.
3. Personal baggage accompanying consular officers and members of their
families forming part of their households shall be exempt from inspection.
It may be inspected only if there is serious reason to believe that it
contains articles other than those referred to in sub-paragraph (b) of
paragraph 1 of this Article, or articles the import or export of which is
prohibited by the laws and regulations of the receiving State or which are
subject to its quarantine laws and regulations. Such inspection shall be
carried out in the presence of the consular officer or member of his family
concerned.
Article 51
ESTATE OF A MEMBER OF THE CONSULAR POST
OR OF A MEMBER OF HIS FAMILY
In the event of the death of a member of the consular post or of a member
of his family forming part of his household, the receiving State:
(a) shall permit the export of the movable property of the deceased, with
the exception of any such property acquired in the receiving State
the export of which was prohibited at the time of his death;
(b) shall not levy national, regional or municipal estate, succession or
inheritance duties, and duties on transfers, on movable property the
presence of which in the receiving State was due solely to the
presence in that State of the deceased as a member of the consular
post or as a member of the family of a member of the consular post.
Article 52
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt members of the consular post and members
of their families forming part of their households from all personal
services, from all public service of any kind whatsoever, and from military
obligations such as those connected with requisitioning, military
contributions and billeting.
Article 53
BEGINNING AND END OF CONSULAR PRIVILEGES AND IMMUNITIES
1. Every member of the consular post shall enjoy the privileges and immunit
ies provided in the present Convention from the moment he enters the
territory of the receiving State on proceeding to take up his post or, if
already in its territory, from the moment when he enters on his duties with
the consular post.
2. Members of the family of a member of the consular post forming part of
his household and members of his private staff shall receive the privileges
and immunities provided in the present Convention from the date from which
he enjoys privileges and immunities in accordance with paragraph 1 of this
Article or from the date of their entry into the territory of the receiving
State or from the date of their becoming a member of such family or private
staff, whichever is the latest.
3. When the functions of a member of the consular post have come to an end,
his privileges and immunities and those of a member of his family forming
part of his household or a member of his private staff shall normally cease
at the moment when the person concerned leaves the receiving State or on
the expiry of a reasonable period in which to do so, whichever is the
sooner, but shall subsist until that time, even in case of armed conflict.
In the case of the persons referred to in paragraph 2 of this Article,
their privileges and immunities shall come to an end when they cease to
belong to the household or to be in the service of a member of the consular
post provided, however, that if such persons intend leaving the receiving
State within a reasonable period thereafter, their privileges and
immunities shall subsist until the time of their departure.
4. However, with respect to acts performed by a consular officer or a
consular employee in the exercise of his functions, immunity from
jurisdiction shall continue to subsist without limitation of time.
5. In the event of the death of a member of the consular post, the members
of his family forming part of his household shall continue to enjoy the
privileges and immunities accorded to them until they leave the receiving
State or until the expiry of a reasonable period enabling them to do so,
whichever is the sooner.
Article 54
OBLIGATIONS OF THIRD STATES
1. If a consular officer passes through or is in the territory of a third
State, which has granted him a visa if a visa was necessary, while
proceeding to take up or return to his post or when returning to the
sending State, the third State shall accord to him all immunities provided
for by the other Articles of the present Convention as may be required to
ensure his transit or return. The same shall apply in the case of any
member of his family forming part of his household enjoying such privileges
and immunities who are accompanying the consular officer or travelling
separately to join him or to return to the sending State.
2. In circumstances similar to those specified in paragraph 1 of this
Article, third States shall not hinder the transit through their territory
of other members of the consular post or of members of their families
forming part of their households.
3. Third States shall accord to official correspondence and to other
official communications in transit, including messages in code or cipher,
the same freedom and protection as the receiving State is bound to accord
under the present Convention. They shall accord to consular couriers who
have been granted a visa, if a visa was necessary, and to consular bags in
transit, the same inviolability and protection as the receiving State is
bound to accord under the present Convention.
4. The obligations of third States under paragraphs 1, 2 and 3 of this
Article shall also apply to the persons mentioned respectively in those
paragraphs, and to official communications and to consular bags, whose
presence in the territory of the third State is due to force majeure.
Article 55
RESPECT FOR THE LAWS AND REGULATIONS OF THE RECEIVING STATE
1. Without prejudice to their privileges and immunities, it is the duty of
all persons enjoying such privileges and immunities to respect the laws and
regulations of the receiving State. They also have a duty not to interfere
in the internal affairs of that State.
2. The consular premises shall not be used in any manner incompatible with
the exercise of consular functions.
3. The provisions of paragraph 2 of this Article shall not exclude the
possibility of offices of other institutions or agencies being installed in
part of the building in which the consular premises are situated, provided
that the premises assigned to them are separate from those used by the
consular post. In that event, the said offices shall not, for the purposes
of the present Convention, be considered to form part of the consular
premises.
Article 56
INSURANCE AGAINST THIRD PARTY RISKS
Members of the consular post shall comply with any requirement imposed by
the laws and regulations of the receiving State in respect of insurance
against third party risks arising from the use of any vehicle, vessel or
aircraft.
Article 57
SPECIAL PROVISIONS CONCERNING PRIVATE GAINFUL OCCUPATION
1. Career consular officers shall not carry on for personal profit any
professional or commercial activity in the receiving State.
2. Privileges and immunities provided in this Chapter shall not be
accorded:
(a) to consular employees or to members of the service staff who carry on
any private gainful occupation in the receiving State;
(b) to members of the family of a person referred to in sub-paragraph (a)
of this paragraph or to members of his private staff;
(c) to members of the family of a member of a consular post who
themselves carry on any private gainful occupation in the receiving
State.
CHAPTER III
REGIME RELATING TO HONORARY CONSULAR OFFICERS
AND CONSULAR POSTS HEADED BY SUCH OFFICERS
Article 58
GENERAL PROVISIONS RELATING TO FACILITIES,
PRIVILEGES AND IMMUNITIES
1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of Article
54 and paragraphs 2 and 3 of Article 55 shall apply to consular posts
headed by an honorary consular officer. In addition, the facilities,
privileges and immunities of such consular posts shall be governed by
Articles 59, 60, 61 and 62.
2. Articles 42 and 43, paragraph 3 of Article 44, Articles 45 and 53 and
paragraph 1 of Article 55 shall apply to honorary consular officers. In
addition, the facilities, privileges and immunities of such consular
officers shall be governed by Articles 63, 64, 65, 66 and 67.
3. Privileges and immunities provided in the present Convention shall not
be accorded to members of the family of an honorary consular officer or of
a consular employee employed at a consular post headed by an honorary
consular officer.
4. The exchange of consular bags between two consular posts headed by
honorary consular officers in different States shall not be allowed without
the consent of the two receiving States concerned.
Article 59
PROTECTION OF THE CONSULAR PREMISES
The receiving State shall take such steps as may be necessary to protect
the consular premises of a consular post headed by an honorary consular
officer against any intrusion or damage and to prevent any disturbance of
the peace of the consular post or impairment of its dignity.
Article 60
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises of a consular post headed by an honorary consular
officer of which the sending State is the owner or lessee shall be exempt
from all national, regional or municipal dues and taxes whatsoever, other
than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article
shall not apply to such dues and taxes if, under the laws and regulations
of the receiving State, they are payable by the person who contracted with
the sending State.
Article 61
INVIOLABILITY OF CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents of a consular post headed by an honorar
y consular officer shall be inviolable at all times and wherever they may
be, provided that they are kept separate from other papers and documents
and, in particular, from the private correspondence of the head of a
consular post and of any person working with him, and from the materials,
books or documents relating to their profession or trade.
Article 62
EXEMPTION FROM CUSTOMS DUTIES
The receiving State shall, in accordance with such laws and regulations as
it may adopt, permit entry of, and grant exemption from all customs duties,
taxes, and related charges other than charges for storage, cartage and
similar services on the following articles, provided that they are for the
official use of a consular post headed by an honorary consular officer:
coats-of-arms, flags, signboards, seals and stamps, books, official printed
matter, office furniture, office equipment and similar articles supplied by
or at the instance of the sending State to the consular post.
Article 63
CRIMINAL PROCEEDINGS
If criminal proceedings are instituted against an honorary consular officer
, he must appear before the competent authorities. Nevertheless, the
proceedings shall be conducted with the respect due to him by reason of his
official position and, except when he is under arrest or detention, in a
manner which will hamper the exercise of consular functions as little as
possible. When it has become necessary to detain an honorary consular
officer, the proceedings against him shall be instituted with the minimum
of delay.
Article 64
PROTECTION OF HONORARY CONSULAR OFFICERS
The receiving State is under a duty to accord to an honorary consular
officer such protection as may be required by reason of his official
position.
Article 65
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
Honorary consular officers, with the exception of those who carry on for
personal profit any professional or commercial activity in the receiving
State, shall be exempt from all obligations under the laws and regulations
of the receiving State in regard to the registration of aliens and
residence permits.
Article 66
EXEMPTION FROM TAXATION
An honorary consular officer shall be exempt from all dues and taxes on the
remuneration and emoluments which he receives from the sending State in
respect of the exercise of consular functions.
Article 67
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt honorary consular officers from all
personal services and from all public services of any kind whatsoever and
from military obligations such as those connected with requisitioning,
military contributions and billeting.
Article 68
OPTIONAL CHARACTER OF THE INSTITUTION
OF HONORARY CONSULAR OFFICERS
Each State is free to decide whether it will appoint or receive honorary
consular officers.
CHAPTER IV
GENERAL PROVISIONS
Article 69
CONSULAR AGENTS WHO ARE NOT HEADS OF CONSULAR POSTS
1. Each State is free to decide whether it will establish or admit consular
agencies conducted by consular agents not designated as heads of consular
post by the sending State.
2. The conditions under which the consular agencies referred to in
paragraph 1 of this Article may carry on their activities and the
privileges and immunities which may be enjoyed by the consular agents in
charge of them shall be determined by agreement between the sending State
and the receiving State.
Article 70
EXERCISE OF CONSULAR FUNCTIONS BY DIPLOMATIC MISSIONS
1. The provisions of the present Convention apply also, so far as the
context permits, to the exercise of consular functions by a diplomatic
mission.
2. The names of members of a diplomatic mission assigned to the consular
section or otherwise charged with the exercise of the consular functions of
the mission shall be notified to the Ministry for Foreign Affairs of the
receiving State or to the authority designated by that Ministry.
3. In the exercise of consular functions a diplomatic mission may address:
(a) the local authorities of the consular district;
(b) the central authorities of the receiving State if this is allowed by
the laws, regulations and usages of the receiving State or by
relevant international agreements.
4. The privileges and immunities of the members of a diplomatic mission
referred to in paragraph 2 of this Article shall continue to be governed by
the rules of international law concerning diplomatic relations.
Article 71
NATIONALS OR PERMANENT RESIDENTS OF THE RECEIVING STATE
1. Except in so far as additional facilities, privileges and immunities may
be granted by the receiving State, consular officers who are nationals of
or permanently resident in the receiving State shall enjoy only immunity
from jurisdiction and personal inviolability in respect of official acts
performed in the exercise of their functions, and the privilege provided in
paragraph 3 of Article 44. So far as these consular officers are concerned,
the receiving State shall likewise be bound by the obligation laid down in
Article 42. If criminal proceedings are instituted against such a consular
officer, the proceedings shall, except when he is under arrest or
detention, be conducted in a manner which will hamper the exercise of
consular functions as little as possible.
2. Other members of the consular post who are nationals of or permanently
resident in the receiving State and members of their families, as well as
members of the families of consular officers referred to in paragraph 1 of
this Article, shall enjoy facilities, privileges and immunities only in so
far as these are granted to them by the receiving State. Those members of
the families of members of the consular post and those members of the
private staff who are themselves nationals of or permanently resident in
the receiving State shall likewise enjoy facilities, privileges and immunit
ies only in so far as these are granted to them by the receiving State. The
receiving State shall, however, exercise its jurisdiction over those
persons in such a way as not to hinder unduly the performance of the
functions of the consular post.
Article 72
NON-DISCRIMINATION
1. In the application of the provisions of the present Convention the
receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the
present Convention restrictively because of a restrictive application
of that provision to its consular posts in the sending State;
(b) where by custom or agreement States extend to each other more
favourable treatment than is required by the provisions of the
present Convention.
Article 73
RELATIONSHIP BETWEEN THE PRESENT CONVENTION
AND OTHER INTERNATIONAL AGREEMENTS
1. The provisions of the present Convention shall not affect other
international agreements in force as between States parties to them.
2. Nothing in the present Convention shall preclude States from concluding
international agreements confirming or supplementing or extending or
amplifying the provisions thereof.
CHAPTER V
FINAL PROVISIONS
Article 74
SIGNATURE
The present Convention shall be open for signature by all States Members of
the United Nations or of any of the specialized agencies or Parties to the
Statute of the International Court of Justice, and by any other State
invited by the General Assembly of the United Nations to become a Party to
the Convention, as follows until 31 October 1963 at the Federal Ministry
for Foreign Affairs of the Republic of Austria and subsequently, until 31
March 1964, at the United Nations Headquarters in New York.
Article 75
RATIFICATION
The present Convention is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article 76
ACCESSION
The present Convention shall remain open for accession by any State belongi
ng to any of the four categories mentioned in Article 74. The instruments
of accession shall be deposited with the Secretary-General of the United
Nations.
Article 77
ENTRY INTO FORCE
1. The present Convention shall enter into force on the thirtieth day
following the date of deposit of the twenty-second instrument of
ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit
of the twenty-second instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day after deposit by
such State of its instrument of ratification or accession.
Article 78
NOTIFICATIONS BY THE SECRETARY-GENERAL
The Secretary-General of the United Nations shall inform all States belongi
ng to any of the four categories mentioned in Article 74:
(a) of signatures to the present Convention and of the deposit of
instruments of ratification or accession, in accordance with Articles
74, 75 and 76;
(b) of the date on which the present Convention will enter into force, in
accordance with Article 77.
Article 79
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, who shall send certified
copies thereof to all States belonging to any of the four categories
mentioned in Article 74.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present
Convention.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING
ACQUISITION OF NATIONALITY. DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Protocol and to the Vienna Convention on
Consular Relations, hereinafter referred to as "the Convention", adopted by
the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to establish rules between them concerning
acquisition of nationality by members of the consular post and by members
of their families forming part of their households,
Have agreed as follows:
Article I
For the purposes of the present Protocol, the expression "members of the
consular post" shall have the meaning assigned to it in sub-paragraph (g)
of paragraph 1 of Article 1 of the Convention, namely, "consular officers,
consular employees and members of the service staff".
Article II
Members of the consular post not being nationals of the receiving State,
and members of their families forming part of their households, shall not,
solely by the operation of the law of the receiving State, acquire the
nationality of that State.
Article III
The present Protocol shall be open for signature by all States which may
become Parties to the Convention, as follows: until 31 October 1963 at the
Federal Ministry for Foreign Affairs of the Republic of Austria and,
subsequently, until 31 March 1964, at the United Nations Headquarters in
New York.
Article IV
The present Protocol is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article V
The present Protocol shall remain open for accession by all States which
may become Parties to the Convention. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article VI
1. The present Protocol shall enter into force on the same day as the
Convention or on the thirtieth day following the date of deposit of the
second instrument of ratification of or accession to the Protocol with the
Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its
entry into force in accordance with paragraph 1 of this Article, the
Protocol shall enter into force on the thirtieth day after deposit by such
State of its instrument of ratification or accession.
Article VII
The Secretary-General of the United Nations shall inform all States which
may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of
instruments of ratification or accession, in accordance with Articles
III, IV and V;
(b) of the date on which the present Protocol will enter into force, in
accordance with Article VI.
Article VIII
The original of the present Protocol, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary-General of the United Nations, who shall send certified
copies thereof to all States referred to in Article III.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING
THE COMPULSORY SETTLEMENT OF DISPUTES. DONE AT VIENNA, ON 24 APRIL
1963
The States Parties to the present Protocol and to the Vienna Convention on
Consular Relations, hereinafter referred to as "the Convention", adopted by
the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to resort in all matters concerning them in respect
of any dispute arising out of the interpretation or application of the
Convention to the compulsory jurisdiction of the International Court of
Justice, unless some other form of settlement has been agreed upon by the
parties within a reasonable period,
Have agreed as follows:
Article I
Disputes arising out of the interpretation or application of the Convention
shall lie within the compulsory jurisdiction of the International Court of
Justice and may accordingly be brought before the Court by an application
made by any party to the dispute being a Party to the present Protocol.
Article II
The parties may agree, within a period of two months after one party has
notified its opinion to the other that a dispute exists, to resort not to
the International Court of Justice but to an arbitral tribunal. After the
expiry of the said period, either party may bring the dispute before the
Court by an application.
Article III
1. Within the same period of two months, the parties may agree to adopt a
conciliation procedure before resorting to the International Court of
Justice.
2. The conciliation commission shall make its recommendations within five
months after its appointment. If its recommendations are not accepted by
the parties to the dispute within two months after they have been
delivered, either party may bring the dispute before the Court by an
application.
Article IV
States Parties to the Convention, to the Optional Protocol concerning
Acquisition of Nationality, and to the present Protocol may at any time
declare that they will extend the provisions of the present Protocol to
disputes arising out of the interpretation or application of the Optional
Protocol concerning Acquisition of Nationality. Such declarations shall be
notified to the Secretary-General of the United Nations.
Article V
The present Protocol shall be open for signature by all States which may
become Parties to the Convention as follows: until 31 October 1963 at the
Federal Ministry for Foreign Affairs of the Republic of Austria and,
subsequently, until 31 March 1964, at the United Nations Headquarters in
New York.
Article VI
The present Protocol is subject to ratification. The instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.
Article VII
The present Protocol shall remain open for accession by all States which
may become Parties to the Convention. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article VIII
1. The present Protocol shall enter into force on the same day as the
Convention or on the thirtieth day following the date of deposit of the
second instrument of ratification or accession to the Protocol with the
Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its
entry into force in accordance with paragraph 1 of this Article, the
Protocol shall enter into force on the thirtieth day after deposit by such
State of its instrument of ratification or accession.
Article IX
The Secretary-General of the United Nations shall inform all States which
may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of
instruments of ratification or accession, in accordance with Articles
V, VI and VII;
(b) of declarations made in accordance with Article IV of the present
Protocol;
(c) of the date on which the present Protocol will enter into force, in
accordance with Article VIII.
Article X
The original of the present Protocol, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary-General of the United Nations, who shall send certified
copies thereof to all States referred to in Article V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred
and sixty-three.
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