Diplomatic and Consular Law

Atty. George David Siton

• Since we can imagine relationship between at least two sovereign,
autonomous and independent states, we can basically say that
Diplomacy has started his long way. As you already know,
International law is defined as the body of rules governing the
relations between states.
• This module considers Diplomatic and Consular law as the practice
and techniques of Diplomacy. So we can state that the «art» of
Diplomacy is the technical profile of International law. In fact, all
International law can be considered diplomatic law; and, on the
contrary, all diplomatic law can be considered international law. For
this reason, it is necessary to know, first of all, basically, International
law and then approach to diplomatic law.
• As we will see later on, diplomatic law is a flexible law, as diplomacy is
a flexible mission
• «Let us never negotiate out of fear. But let us never fear to negotiate»
• John Kennedy, 1961
The Historic Development of Diplomacy
• We start our topic with a few historic references, clarifying
immediately that we like to date the beginning of (modern)
diplomacy at the Romans time
• Romans were rulers and administrators. They increased interstate
relationships and ratify the Latin expression: «jus legationis», just to
provide the rules of conduct of interstate relationship. We have: 1) jus
legationis «active» and 2) jus legationis «passive». The first one is
when the state can send our diplomats («legatus»); the second when
the state receive on our territory an alien mission. At that time, the
legatus was a state organ more similar at the to day’s «consul»
The Beginnings of Classical Diplomacy
• The characteristics of classical diplomacy were :
• Basically bilateral diplomacy
• • Secrecy of negotiations
• Protocol/Ceremonial [(precedence, etiquette, etc.) what we call
“comitas gentium”)]
New Trends in Polarized World
• All over, diplomacy became more serious, spurred on by pressures of
the Cold War, decolonization and the need to manage an increasingly
complex international economy. Diplomacy better reflected society,
as disarmament experts and trade negotiators replaced noblemen
and traditional political officers. The business suit largely replaced
braided uniforms and gleaming decorations
• Rapid communications leave little time for reflection
• Public opinion and politics play a greater role
• Greater role of international organizations (multilateral).
«e-diplomacy» and «cyber diplomacy>>
• Diplomats make extensive use of computers and the Internet in their
daily work. The sheer amount of information available has made IT a
vital tool in most diplomatic activities. But are diplomats - and other
people interested in international affairs – using IT tools to their best
and fullest advantage? This part of our course aims to explore the
various opportunities offered by new technologies to improve
diplomatic activities. The different components of the course will
highlight some of the risks (and opportunities) of the tools and the
information available.
Bilateral and Multilateral Diplomacy
• Bilateral Diplomacy: Embassies, consular posts, and unconventional
resident missions such as interests sections and representative
offices. Why they are the major part of the modern counter-
revolution in diplomatic practice
• Multilateral Diplomacy: Ad hoc and standing conferences. Questions
of procedure: venue, membership, agenda, transparency, and above
all decision-making. The triumph of “consensusdecision making” and
its various techniques.
Article 14 – Vienna 1961
• • 1. “Heads of mission are divided into three classes, namely:
• (a) that of ambassadors or nuncios accredited to Heads of State, and
other heads of mission of equivalent rank;
• (b) that of envoys, ministers and internuncios accredited to Heads of
State;
• (c) that of charges d'affaires accredited to Ministers for Foreign
Affairs.
• 2. Except as concerns precedence and etiquette, there shall be no
differentiation between heads of mission by reason of their class.
Sources of Diplomatic law
• 1. Customary law
• • 2. General legal principles
• • 3. Agreement (conventions, treaties etc.)
• • 4. Acts
• • 5. Analogy
• • 6. Comitas gentium , international comity, courtesy, precedence
and etiquette, protocol (customary source) and diplomatic practice
• • 7. Others sources: doctrine; jurisdiction
• Vienna Convention on the Law of Treaties Done at Vienna, this
twenty-third day of May, one thousand nine hundred and sixty-nine
(23rd of may 1969) entered into force January 27, 1980
Article 2 “Use of terms”
• 1. For the purposes of the present Convention:
• • (a) "treaty" means an international agreement concluded between
States in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation;
Vienna Convention on the Law of Treaties
• • Article 2 “Use of terms”
• 1. For the purposes of the present Convention:
• • (c) "full powers" means a document emanating from the competent
authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty,
for expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty;
• • These persons are called “Plenipotentiaries” (bind the sending state
Vienna Convention on the Law of Treaties
• Article 85 “Authentic texts”
• The original of the present Convention, of which the Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
Subjects of Diplomatic law
• • 1. The state as a subjects of diplomatic law.
• • 2. International organizations (i.o.) and European Union.
• • 3. The individuals in the International and Diplomatic Law.
• • 4. Individuals as organs of the state.
• • 5. Diplomats as organs of international affairs.
Sovereignty of the State
• In International law, states are superiorem non recognoscentes, which
means that only states (and i.o.) can begin diplomatic relation with
other subjects of international community.
• For this reason, article 2 of Vienna Convention (1961) states: «The
establishment of diplomatic relations between states, and of
permanent diplomatic missions, takes place by mutual consent».
Same for Vienna Convention on Consular Relations 1963 (art. 2).
• There is no any ius legationis that entitle a state without consensus of
the other state.
United Nations
• • WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
• • • to save succeeding generations from the scourge of war, which
twice in our lifetime has brought untold sorrow to mankind, and
• • to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women
and of nations large and small, and
• • to establish conditions under which justice and respect for the
obligations arising from treaties and other sources of international
law can be maintained, and • to promote social progress and better
standards of life in larger freedom,
• AND FOR THESE ENDS • to practice tolerance and live together in
peace with one another as good neighbours, and • to unite our
strength to maintain international peace and security, and • to
ensure, by the acceptance of principles and the institution of
methods, that armed force shall not be used, save in the common
interest, and • to employ international machinery for the promotion
of the economic and social advancement of all peoples,
• HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE
AIMS • Accordingly, our respective Governments, through
representatives assembled in the city of San Francisco, who have
exhibited their full powers found to be in good and due form, have
agreed to the present Charter of the United Nations and do hereby
establish an international organization to be known as the United
Nation
CHAPTER I PURPOSES AND PRINCIPLE
• Article 1
• • The Purposes of the United Nations are:
• • To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to a
breach of the peace; • To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace; • To achieve international co-
operation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language, or religion;
and • To be a centre for harmonizing the actions of nations in the attainment of these
common ends.
CHAPTER VI PACIFIC SETTLEMENT OF
DISPUTES
• Article 33
• • The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own
choice. • The Security Council shall, when it deems necessary, call
upon the parties to settle their dispute by such means
• Article 34
• • The Security Council may investigate any dispute, or any situation
which might lead to international friction or give rise to a dispute, in
order to determine whether the continuance of the dispute or
situation is likely to endanger the maintenance of international peace
and security.
• Article 35
• • Any Member of the United Nations may bring any dispute, or any
situation of the nature referred to in Article 34, to the attention of the
Security Council or of the General Assembly. • A state which is not a
Member of the United Nations may bring to the attention of the
Security Council or of the General Assembly any dispute to which it is
a party if it accepts in advance, for the purposes of the dispute, the
obligations of pacific settlement provided in the present Charter. •
The proceedings of the General Assembly in respect of matters
brought to its attention under this Article will be subject to the
provisions of Articles 11 and 12.
• • Article 36
• • The Security Council may, at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment. • The Security
Council should take into consideration any procedures for the
settlement of the dispute which have already been adopted by the
parties. • In making recommendations under this Article the Security
Council should also take into consideration that legal disputes should
as a general rule be referred by the parties to the International Court
of Justice in accordance with the provisions of the Statute of the
Court.
Vienna Convention on Diplomatic Relations
April, the 18th of 1961
• Entry into force: 24 April 1964, in accordance with article 51. •
Registration: 24 June 1964, No. 7310.
• • Status: Signatories: 60 ,Parties: 184.
Vienna Convention 1961
• The Convention was adopted on 14 April 1961 by the United Nations
Conference on Diplomatic Intercourse and Immunities held at the
Neue Hofburg in Vienna, Austria, from 2 March to 14 April 1961. The
Conference also adopted the Optional Protocol concerning the
Acquisition of Nationality, the Optional Protocol concerning the
Compulsory Settlement of Disputes, the Final Act and four resolutions
annexed to that Act. The Convention and two Protocols were
deposited with the Secretary-General of the United Nations. The Final
Act, by unanimous decision of the Conference, was deposited in the
archives of the Federal Ministry for Foreign Affairs of Austria.
• Vienna Convention on Diplomatic Relations & VIENNA CONVENTION
ON CONSULAR RELATIONS
• Two different agreements (1961, 1963)
• Which means that diplomatic relations and consular relations are
independents, autonomous, although coordinated. Consequently,
diplomatic law and consular law are autonomous, although
coordinated as well.
Vienna Convention 1963
• • Article 2 : “ESTABLISHMENT OF CONSULAR RELATIONS”
• • “1. The establishment of consular relations between States takes
place by mutual consent. • 2. The consent given to the establishment
of diplomatic relations between two States implies, unless otherwise
stated, consent to the establishment of consular relations. • 3. The
severance (breaking) of diplomatic relations shall not ipso facto
involve the severance of consular relations”.
• • NOTE: paragraphs 2 and 3 well explain the relation between two
Conventions
VIENNA CONVENTION ON CONSULAR
RELATIONS
• • Article 3 : ”EXERCISE OF CONSULAR FUNCTIONS”
• “Consular functions are exercised by consular posts. They are also
exercised by diplomatic missions in accordance with the provisions of
the present Convention”.