7. Право внешних сношений. Консульские функции. Консульский иммунитет.

Customary rules on the legal status of consular agents were codified in the 1963Vienna Convention on Consular Relations (VCCR): entered into force in 1967.

Consular agents perform activities designed to protect the commercial and other interests of the appointing State and in particular render assistance to nationals of that State.

CR establishment:

• by mutual consent

• establishment of DR implies establishment of CR

• severance of DR does NOT imply severance of CR

Functions:

• protect interests of its state and nationals (both individuals and bodies corporate)

• further the development of relations (cultural, commercial, economic, scientific)

• help and assist nationals

• 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

• 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

• representation of nationals before the tribunals and other authorities

Career consul – official appointed by the sending State with consent of the receiving State

Honorary consul:

• not member of a diplomatic mission,

• may be citizen of the host State,

• appointed by the sending State with consent of the host State,

• usually a representative of business.

Consulate – office of consul (usually subordinate to the state’s main representation in the host State, may be part of embassy)

Privileges and immunities:

• not enjoy personal immunities

• only immune from criminal and civil jurisdiction for acts done in the official exercise of their consular functions (functional immunities)

• inviolability of premises, archives, and documents

• exemption from taxation

• freedom of movement and communication

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.

(Refusal must not be reasoned).

8. Право внешних сношений. Привилегии и иммунитеты дипломатических агентов.

Rights and privileges are not granted for the personal benefit of the individuals concerned, but to ensure the efficient performance of the functions of the diplomatic mission.

Privileges and immunities of diplomatic agents:

• The person of a diplomatic agent shall be inviolable (not liable to any form of arrest or detention)

• Must be treated him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

• enjoys 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 real action relating to private immovable property not on behalf of the sending State for the purposes of the mission;

• 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;

• an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

• not obliged to give evidence as a witness.

• immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

• are not exempt from administrative or civil proceedings whenever they voluntarily submit to jurisdiction, waiving their right to immunity from jurisdiction.

• The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

• His papers, correspondence shall likewise enjoy inviolability

• A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

• indirect taxes of a kind which are normally incorporated in the price of goods or services;

• 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;

• estate, succession or inheritance duties levied by the receiving State

• 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;

• charges levied for specific services rendered

• registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property

By way of quid pro quo for the enjoyment of privileges and immunities, members of diplomatic missions owe certain duties towards the receiving State. These are:

• the duty to respect the laws and regulations of the receiving State;

• the duty not to interfere in the internal affairs of the receiving State;

• all official business of the communication by the mission with the receiving State should be through the Ministry of Foreign Affairs of the receiving State, or with such other ministries as may be agreed;

• the premises of the mission must not be used in any manner incompatible with the functions of the mission;

• a diplomatic agent must not carry out any professional or commercial activity for personal profit in the receiving State.