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Vienna Convention on Consular Relations (1963)
Max Planck Encyclopedia of Public International Law [MPEPIL]

Vienna Convention on Consular Relations (1963)

Anne Dienelt

Subject(s):
Consular relations — Diplomatic relations — Specific treaties

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

On 24 April 1963, only two years after the adoption of its ‘sister’ convention, the 1961 Vienna Convention on Diplomatic Relations (1961) (‘VCDR’), the UN Conference on Consular Relations adopted the Vienna Convention on Consular Relations (‘VCCR’), together with an Optional Protocol on Consular Relations concerning the Acquisition of Nationality (Nationality) and an Optional Protocol on Consular Relations concerning the Compulsory Settlement of Disputes. Before that, the International Law Commission (ILC) had adopted a final draft in 1961. The VCCR codified the existing practice and rules of customary international law on consular relations. It also contained progressive developments of the pre-existing law, including the status of consuls, both career and honorary (see also Codification and Progressive Development of International Law).

The VCCR provides the basis for the conduct of inter-State relations and sets common standards for domestic legislation and regulations. It correlates with the domestic laws of the receiving State of the consular post in question. The VCCR defines consular offices, enumerates consular functions, privileges, and immunities granted to consular personnel, and provides tools to facilitate the exercise of consular functions, such as communication with and access to nationals. Art. 36 VCCR deals with the protection of nationals of the sending State within the territory of the receiving State. In cases of arrest or detention of a foreign national, the public authorities are obliged to inform the foreigner of his right to consular information and give effective access to consular protection (right to counsel and due process).

According to Art. 73 VCCR, treaties in force before the convention remain in place, and new bilateral agreements that confirm or supplement, extend or amplify the existing rules can be concluded.

B.  General

1.  Differentiation between Consular and Diplomatic Relations

The 1961 VCDR served as a model for the drafting of the VCCR in 1963, although important differences remain. While the establishment of diplomatic relations signifies the recognition of a State as a subject of public international law (Diplomatic Relations, Establishment and Severance; Subjects of Public International Law), it is possible to have consular relations without recognizing a State as such. Consular relations primarily deal with the relations of a State with its nationals abroad and with the civil society of the receiving State. The establishment of both consular and diplomatic offices depends on the consent of the receiving State. The consent of the receiving State to establish a diplomatic mission includes the consent to establish a consular post. Since the latter can be restricted to part of the territory, the consent to establish a consular post does not allow the sending State to establish a diplomatic mission relating to the entire territory of the receiving State. Thus, a consular post may serve as a step towards the establishment of a diplomatic mission, but does not establish one itself. Vice versa, the end of diplomatic relations does not result in an automatic end of consular relations, since consular relations do not interfere at a governmental level and their only purpose is to serve the nationals of the sending State.

While both diplomatic and consular relations deal with the establishment and development of inter-State relations, important differences exist between the two. Whereas diplomatic relations regard the political relations between States as such (Art. 2 VCDR), consular relations centre at the relationship between foreigners, ie citizens of the sending State and the receiving State (Art. 5 VCCR). According to Art. 5 (b) VCCR, a consular office may also deal with political affairs in the broader sense of the term, eg economic development and cultural relations, but not with political State-to-State affairs in the narrow sense.

Thus, consular relations may involve a triangle of legal relationships—not only between the sending and receiving State, but also between the national of the sending State towards the sending and the receiving State, respectively. Whether international law also involves the relationships of States towards individual nationals belongs to the most contentious issues of contemporary consular relations law (see also Individuals in International Law). In the LaGrand Case (Germany v United States of America) and in the Avena and Other Mexican Nationals Case (Mexico v United States of America), the International Court of Justice (ICJ) ruled that Art. 36 VCCR includes international individual rights of the foreigner (LaGrand Case para. 77; Avena and Other Mexican Nationals Case para. 40). The Inter-American Court of Human Rights (IACtHR) even held this right to be a human right (The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion) paras 84, 141; Human Rights). Similarly, in Art. 10 UNGA Res 40/144, the UN General Assembly enshrined an international right of aliens to consular information, notification, and assistance. However, not all domestic legal orders recognize such a right. In particular, US courts continue to be reluctant to allow for legal claims of individual aliens on the basis of Art. 36 VCCR notwithstanding the self-executing character of the VCCR (Medellín v Texas 8; Sanchez-Llamas v Oregon).

2.  Differentiation between Diplomatic Protection and Consular Assistance

A State has the right to ensure that its nationals, both natural and legal persons, are treated, whilst abroad, by another State in accordance with treaties concluded between both States and with minimum standards of treatment of aliens as contained in customary international law. In case of a violation of these standards, a State can exercise diplomatic protection on behalf of its nationals and obtain reparations for injuries suffered by them, only after exhausting all local remedies in the receiving State (Local Remedies, Exhaustion of). However, under international law, the sending State does not have an international legal duty to protect its nationals (see Art. 19 ILC Draft Articles on Diplomatic Protection, listing recommended practices with regard to the exercise of diplomatic protection). Consular assistance, on the contrary, is a right of the national provided by the VCCR and customary law. A national who has difficulties in a foreign State can involve a consular post of his or her home country and ask for assistance. A consular officer will assist her or him and ensure that their rights in the foreign State are properly respected.

A State has no international legal duty to provide assistance to its nationals abroad, but domestic law may require it to do so (see § 5 (1) German Konsulargesetz [Law on Consular Matters], pursuant to which the consuls ‘shall’ provide support, giving them considerable latitude. The provision of legal aid is likewise discretionary).

3.  Differentiation between Consular and State Immunity

Like the 1961 sister convention on diplomatic relations, the VCCR does not deal with State immunit as such. Rather, it regards status, tasks, rights, and duties of consular officers and staff as well as privileges and immunities of the consular staff and mission. In a broader sense, however, consular and diplomatic immunity from prosecution also derives from State immunity. But the general law of State immunity deals with the immunity of the State as such in the exercise of its public powers, whereas the VCCR deals with the special rights and obligations of consular missions and their officers and staff. The VCCR is lex specialis to the general law of State immunity (see also the United Nations Convention on Jurisdictional Immunities of States and Their Property [2004] UNGA Res 59/38 GAOR 59th Session Supp 49 vol 1, 486). The two may be applied jointly, however. The broader protection applies. Nevertheless, for States in which general international law (principles, rules and standards) is incorporated into domestic law differently from treaty law and in which treaties are directly applicable in domestic law as the ‘law of the land’ (see Art. VI Constitution of the US; Art. 59 (2) German Grundgesetz; Treaties, Direct Applicability), the VCCR may be implemented more or less strictly compared to the general law of state immunity. Nevertheless, the basic content of the VCCR nowadays also belongs to customary law.

C.  Historical Background

10  Consular relations have a longer and more varied history than diplomatic relations. They developed out of international trade and date back to Ancient Greece when the slave trade gave rise to institutions comparable to modern consulates. After the fall of the Roman Empire, Western European merchants sent a representative as consul to Byzantium in the east, the centre of a vast international trading system, to organize their commerce, protect foreign interests, and to settle disputes between merchants.

11  In the 16th century, the monarchies in the feudal States began to claim direct control over the consular posts, since international trade suffered from the dangers of the sea and the very frequent wars of the feudal age. International treaties could not give adequate safeguard, and diplomatic missions were sporadic and of short duration. Thus, the only possibility to give effective protection to trade was to vest consuls with State authority. However, the public status of consuls was not entirely clear. In the 18th century, many States overcame their feudal system and affirmed their sovereignty and independence. Nationalist resentment towards the extraterritoriality of consuls—ie their exemption from local jurisdiction (Consular Jurisdiction)—threatened traditional consular privileges.

12  Before the VCCR was concluded in 1963, a few customary rules supplemented by bilateral or regional treaties governed the law of consular relations. The first regulations on consular service were published by Colbert in the Ordonnance de la Marine (1681). In the 19th century, almost every State regulated its consular service and the legal status of foreign consuls. More and more bilateral treaties regulating the status and functions of consuls were concluded. In 1911, a regional treaty between Bolivia, Colombia, Ecuador, Peru, and Venezuela ([adopted 18 July 1911] [1911] 214 CTS 145) constituted the first multilateral convention on the subject of consular relations.

13  The first draft conventions on consular relations were created due to private efforts. Several authors combined a mixture of international law with personal suggestions (Bluntschli, Field, and Fiore). In 1896, in its Venice session, the Institut de Droit international adopted 21 draft articles on the immunities of consuls. In 1925, the American Institute of International Law adopted a draft convention on consuls of 11 articles. At its 34th conference in 1926, the International Law Association (ILA) deliberated two articles dealing with consuls. Jayne Hill presented a report on ‘Diplomatic and Consular Immunities and Immunities to Be Granted to Persons Vested with International Functions’ to the Institut de Droit international, confirming the results of the Venice session of 1896. The most important private codification attempt was the Harvard ‘Draft Convention on the Legal Position and Functions of Consuls’ in 1932 ([1932] 26 AJIL Supp 193).

14  At its first session in 1949 under UN Secretary-General Lie, the ILC listed the subject of consular intercourse and immunities as one of the topics where codification was considered desirable and feasible. The ILC began its actual work in 1955 at its seventh session. The Special Rapporteur Zourek delivered his first report out of three in 1957. At the 12th session of the ILC in 1960, the commission adopted a set of draft articles and submitted it to governments for comments. The final ‘Draft Articles on Consular Relations with Commentaries’ were adopted in 1961. In December 1961, the preamble of UNGA Res 1685 (XVI) stated that the ILC draft constituted ‘a good basis for the preparation of a convention on that subject’. Member States were asked to submit comments on the draft articles. In 1962, the UN General Assembly decided to convene an international conference on the subject of consular relations in 1963 in Vienna, two years after the Conference on Diplomatic Relations. In March 1963, 95 delegates participated in the UN Conference on Consular Relations. It was the first time that newly independent States played a major role in a conference on the codification of international law (see also New States and International Law). Consisting of 79 articles, an Optional Protocol concerning Acquisition of Nationality, and an Optional Protocol concerning the Compulsory Settlement of Disputes, the texts were finally adopted on 22 April 1963. While the Final Act was signed on 24 April 1963, the VCCR and Optional Protocols remained open for signature until 31 October 1963, and subsequently until 31 March 1964.

15  Nevertheless, the VCCR was widely ratified and entered into force on 8 June 1967, in accordance with its Art. 77. As of April 2011, it had gained broad acceptance, being ratified or acceded to by 173 parties—only slightly less than the VCDR (187 parties). The protocols are by far less popular; the first concerning acquisition of nationality being ratified by a mere 39 States, the second concerning the settlement of disputes, including the recognition of the jurisdiction of the ICJ over its interpretation and application, by 48 States, excluding the US, who withdrew from the protocol on 7 March 2005 due to its discontent with the LaGrand and Avena judgments.

D.  Contents

16  The structure of the VCCR is not always a model of clarity. After some definitions (Art. 1), the convention first deals with consular relations in general (Arts 2–27) beginning with the establishment and conduct of consular relations (Arts 2–24) from the establishment of consular relations and consular functions as well as the appointment and admission of heads of consular posts (Arts 10–16), consular officers generally (Arts 17–18, 21–22, 24), and the members of the consular staff (Arts 19–20), to the termination of the membership of a consular post and the end of consular relations generally (Arts 23, 25–27). It then proceeds to the facilities, privileges, and immunities relating to the post (Arts 28–39), the consular officers, as well as the other staff (Arts 40–57). Thereafter, the VCCR regulates the rights and duties of honorary consuls, ie private persons that fulfil some of the consular function (Arts 58–68). After that, it adds some ‘general provisions’ on diverse matters such as agencies not headed by the formal heads of a consular post (Art. 69), the exercise of consular functions by diplomatic missions (Art. 70), special rules for nationals or permanent residents of the receiving State serving as consular officers for the sending State (Art. 71), non-discrimination of States (Art. 72; States, Equal Treatment and Non-Discrimination), and relationship to other agreements (Art. 73). The VCCR ends with the usual final provisions (Arts 74–79).

17  The following treatment is necessarily selective. It begins with general remarks on consuls and consular functions, it looks at the consular personnel and consular immunities, and then deals extensively with the controversial topic of the rights of foreign nationals as contained in Art. 36 VCCR. Finally, the entry will deal with honorary consuls.

1.  Consular Officers (Art. 1 VCCR)

18  In Art. 1 (1) VCCR, States agreed for the first time on the categorization of consular personnel and their privileges. Before the conclusion of the VCCR, several terms were used to describe consular titles. The first report by ILC Special Rapporteur Zourek used the term ‘consular representative’; in 1960, the ILC Draft spoke of ‘consul’; and the 1961 draft turned to ‘consular official’. In the 1963 convention, States finally agreed on the term ‘consular officer’. A consensus on its definition was more difficult to come by. According to the definition in Art. 1 VCCR, a ‘consular officer’ is ‘any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions’. Consular officers are granted a somewhat lesser type of immunity compared to diplomatic agents (Immunity, Diplomatic), since their political functions are fewer. In addition, consular officers are limited to a consular district (Art. 6 VCCR) that can, however, extend to the whole territory of the receiving State.

19  Honorary consuls have an even weaker status (Arts 5868 VCCR). As they are nationals of the receiving State, the latter will be less willing to grant them exemptions from the enforcement of local laws. Their function as honorary consul is, by definition, not permanent; they do not have the status of an official of the sending State and are, therefore, less worthy of protection.

2.  Regulations in Detail

(a)  Enumerations of Consular Functions (Art. 5 VCCR)

20  Consular officers represent their sending State in many administrative ways. Their consular functions are enumerated in Art. 5 VCCR. It is, therefore, the most significant provision of the VCCR. In short, the consular officers protect the interest of their home State and its nationals; they foster the development of economic and cultural relations; they administer the property of nationals of the sending State; they issue visas and passports; they promote the commercial interests of their sending State; they assist nationals in distress in finding lawyers to represent them in court, visit prisoners, and establish contact with local authorities; they register births, deaths, and marriages; and they supervise vessels and aircraft attributed to the sending State. This enumeration is not complete, since Art. 5 (m) VCCR contains a saving clause. Below, the consular functions will be discussed in detail focusing on problems that may arise in practice.

21  The wording of Art. 5 (a) VCCR (‘representation of interests of the sending State’) is imprecise, since it is not the interests of the sending State, but the interests of its nationals that constitute the focal point of the work of consular offices. In case consular functions are to be exercised by a third State, the assisting State shall inform the receiving State (Art. 8 VCCR). Thus, subject to the acceptance or acquiescence by the receiving State under Art. 8 VCCR, European Union Member States may exercise consular functions with respect to nationals from other European Union Member States under Art. 23 Treaty on the Functioning of the European Union ([signed 13 December 2007, entered into force 1 December 2009] [2008] OJ C115/47).

22  It is not only individual persons, but also legal entities that enjoy consular protection as provided by Art. 5 (a) VCCR. However, it is exclusively domestic law that regulates the nationality of juridical persons such as corporations. While the ICJ rejected the control theory in the Barcelona Traction Case ([Belgium v Spain] [Second Phase] [1970] ICJ Rep 3 para. 70), Anglo-American States apply the theory of (the place of first) incorporation to determine the nationality of corporations, whereas continental European States frequently enjoin nationality to the seat of a legal person (siège social) (Corporations in International Law).

23  As stated in Art. 3 (1) (b) VCDR, which served as a model for the VCCR, States have to act within the limits set by international law, which draws a line between the legitimate pursuit of interests and undue violation of sovereignty at the intervention in the internal affairs of the receiving State (Intervention, Prohibition of), both under general international law and—in form of a duty of non-interference in internal affairs—under Art. 55 (1) sentence 2 VCCR. Therefore, defamation statements concerning third States or acquisitions without any relation to the official functions or the participation in commerce with the intent to gain profit are not permitted under the VCCR. As with diplomatic law, persons enjoying consular privileges are not absolved from observing the law of the receiving States, as emphasized both by Art. 5 (f), (g), (h), (l) VCCR and by Art. 55 (1) VCCR.

24  The issuance of passports and other travel documents is, as an exercise of public functions of the sending State, ruled by the laws of the sending State (Art. 5 (d) VCCR). In cases of dual citizenship, in accordance with Art. 3 Convention concerning Certain Questions Relating to the Conflict of Nationality Law ([signed 12 April 1930, entered into force 1 July 1937] 179 LNTS 89) reflecting customary international law on the matter, each State may exercise its public functions towards third States, but not vis-à-vis the other State of nationality. It is less certain whether consular functions can be exercised by a State on behalf of a dual citizen of itself and the receiving State. Art. 4 Convention concerning Certain Questions Relating to the Conflict of Nationality Law reflects the classical view according to which a dual national cannot be protected by his or her State of nationality versus another State of nationality. Art. 7 ILC Draft Articles on Diplomatic Protection ([2006] GAOR 61st Session Supp 10, 16), however, creates an exception in favour of the ‘predominant’ nationality. In spite of a few arbitral awards by the Iran-United States Claims Tribunal (Esphahanian v Bank Tejarat 166; Golpira v Government of the Islamic Republic of Iran 174) cited by the ILC in support of its view, it is doubtful whether this solution conforms to State practice and customary law.

25  Consular protection, one of the central functions of consular officers, is described in Art. 5 (e) VCCR as ‘helping and assisting nationals … of the sending State’. Such assistance may consist in the tracking down of relatives of nationals of the sending State in the consular district or the granting of social benefits or repatriation as well as legal representation after arrest and detention (see Art. 36 VCCR).

26  Functions of an administrative nature such as those of a notary are described in Art. 5 (f) VCCR. If the receiving State agrees, consular officers may also perform the ceremony of marriage, even of non-nationals of the sending State, as long as the domestic law of the receiving State does not prohibit it (Marriages Performed by Diplomatic and Consular Agents). The wording of Art. 5 (f) VCCR (‘compatible with the laws and regulations of the receiving State’) suggests that a notarization of any content which might be in contravention to the domestic laws of the receiving State is inadmissible. It is furthermore controversial whether Art. 5 (i) VCCR confers a right to the consular officer to participate in non-public proceedings. Since a consular officer does not exercise the function of a legal counsel, the domestic law of the receiving State is dispositive of the matter. In any case, the consulate may arrange for legal representation (Art. 36 (1) (d) VCCR).

27  Judgments or resolutions, decisions or orders of international organizations do not fall under the scope of Art. 5 (j) VCCR. Only documents relating to the bilateral relations between sending and receiving States are addressed by this provision. Furthermore, Art. 5 (j) VCCR allows the execution of letters rogatory, eg requests for legal assistance among courts from different jurisdictions, but does not provide a legal definition of the term. It is also controversial whether a consular officer may interrogate as a voluntary witness a national living abroad. The consular officer would thereby exercise sovereign acts of the sending State on the territory of the receiving State. The admissibility of interrogations thus depends on the domestic laws of the receiving State.

28  Art. 5 (m) VCCR contains a saving clause extending the scope of the provision to any other functions not conflicting with the laws and regulations of the receiving State to which the latter does not object.

(b)  Appointment and Admission (Arts 8–15 VCCR)

29  Regarding the status and privileges of consular officers, the VCCR contains provisions similar to the VCDR, however with some modifications due to the somewhat lesser status of consular officers. After enumerating different classes of consular officers (Art. 9 VCCR), the convention first deals with the head of the consular post. A central feature to the appointment of service of the consular officers is the requirement of consent of both the sending and the receiving State for the duration of his or her stay in office—from the appointment by exequatur or otherwise to the termination of the functions by notification from the sending State, or by declaration to persona non grata and withdrawal of the so-called exequatur from the receiving State (Art. 25 VCCR).

30  The exequatur, an authorization issued by the receiving State to the consul of the sending State, is of constitutive character. In case of refusal by the receiving State, the head of a consular post is not allowed to exercise consular functions. The granting of exequatur also extends to the staff of the mission under his or her responsibility. Since there are no conditions attached to the granting of exequatur, the withdrawal as actus contrarius also lies in the discretion of the receiving State (Art. 12 (2) VCCR). In practice, the sending State will rarely wait for the formal withdrawal but will recall the consular officer in question itself. Only if it does not do so, the receiving State can terminate the consular function by a withdrawal of exequatur. In case an exequatur is filed for but not yet granted, and with the consent of the receiving State, the sending State may appoint a provisional (Art. 13 VCCR) or interim head of the consular office (Art. 15 VCCR).

(c)  Persona Non Grata (Art. 23 VCCR)

31  Art. 23 VCCR codifies customary international law by allowing the receiving State to declare a consular officer persona non grata at any time without giving reasons (compare Art. 9 VCDR). The denial of admission of consular officers and staff lies within the discretion of the receiving State. The receiving State can also withdraw the exequatur (Art. 12 VCCR) from the person concerned or cease to consider him as a member of the consular staff. A persona non grata or staff not receiving the exequatur have to leave the territory of the receiving State within a reasonable time. A short period of 12–48 hours is quite common, but the period can also extend to 15 days or more. Thus, the service of consular officials and personnel ultimately depends on the consent of both the sending and the receiving State.

(d)  Inviolability of Consular Premises (Arts 31–33 VCCR)

32  Art. 31 VCCR regulates the inviolability of the consular premises. The inviolability addresses the organs of the receiving State and prohibits them from entering consular offices without the consent of the sending State. Only in cases of emergency such as fire etc, the approval of the sending State is presumed. Art. 31 (3) VCCR contains a special duty of the receiving State to prevent anybody from entering or destroying that part of the consular premises that is exclusively used for the purpose of the work of the consular post. Thus, in contrast to Art. 22 VCDR, the non-official part of the building is also not protected. The ICJ ruled on the existence and content of the State’s duty to protect a consular post to the best of its capacities in the United States Diplomatic and Consular Staff in Tehran Case (United States of America v Iran) ([Judgment] [1980] ICJ Rep 3 para. 67). Different from the residence of the head of a diplomatic mission, the residence of the head of a consular office does not fall under the scope of Art. 31 VCCR.

33  The official purposes a consul performs are not clearly defined in the convention, in spite of the breadth of Art. 5 VCCR. The VCCR also fails to regulate at what point in time the protection under its Art. 31 begins. The recent practice of States does not show uniformity either. Balancing the competing interests of sending and receiving States results in the following principles. First, to fall under the scope of application of Art. 31 VCCR, the sending State has to acquire property in accordance with the law of the receiving State. Secondly, the sending State should inform the receiving State about its intention to build a consular office at its new premises. Without such information, a duty of the receiving State to respect the inviolability of consular premises does not arise. After objecting to the establishment of a consular office or the construction of a consular post, the receiving State has no duty to respect its inviolability. And thirdly, only in case of affirmation by the receiving State, it has a duty to protect the premises as long as the building is used de facto for official consular functions. Once the use for consular purposes has ended or the permission of the receiving State is withdrawn, the protection of Art. 31 VCCR comes to an end.

34  With regard to protesters, it is controversial whether the protection of a consular office includes the area in front of the consulate building. The answer can only be found by applying the principle of proportionality. As long as free access to the consular post is guaranteed, the receiving State has no duty to intervene against peaceful protests.

35  The sending State is supposed to inform the UN Secretary-General in case the receiving State does not live up to the obligation to protect the consular office and its personnel under Art. 31 (3) VCCR. As ultima ratio, Art. 31 (4) VCCR allows the receiving State to expropriate the sending State for national defence and public utility purposes in a manner that is as little disruptive as possible, but demands prompt, adequate, and effective compensation.

36  Art. 33 VCCR explicitly provides protection for consular archives and documents. This would also suggest that statements of bank accounts are included, as held by the German Federal Constitutional Court in a case that dealt with the consular post of the Philippines and its bank accounts. Since the bank account was used to pay for the maintenance of the consular post, the court applied the principle ne impediatur legatio and held that the account was under the protection of Art. 33 VCCR (Botschaftskonten Bundesverfassungsgericht [German Federal Constitutional Court 2nd Senate] [13 December 1977] [1977] 46 BVerfGE 342).

37  It is further contentious whether consular documents can be invoked as evidence when it is unknown how they have left the consular office. A Canadian Court ruled on this question in Rose v the King, stating that security issues of the receiving State have priority. In 1990, the German Federal Supreme Court dealt with a police investigation that made secret recordings of telephone calls from within the premises of a consular office. The court came to the conclusion that the recording of phone calls, which was based on the suspicion that illegal acts had been committed, was in violation of Arts 31 and 43 (1) VCCR, since Art. 31 (2) VCCR prohibits the search and confiscation of the consular premises including the secret recording of phone calls. As a consequence, the evidence was inadmissible (3 StB 5/90 Bundesgerichtshof [German Supreme Court] [4 April 1990] [1990] 36 Entscheidungen des Bundesgerichtshofs in Strafsachen 396). This also interrelates with the special duty to protect the consular premises of the receiving State (Art. 31 (3) VCCR). The receiving State also has the duty to protect the consular officers of the sending State (Art. 40 VCCR).

38  According to the wording of Art. 33 VCCR, consular documents and archives are also protected in third states. However, the protection of this provision is supposed to be limited to the relationship between the sending and the receiving States. Art. 54 (3) VCCR limits obligations of third States to the admission of transit of consular personnel between the sending and the receiving State.

(e)  Freedom of Communication (Art. 35 VCCR)

39  A consular office relies on communication with the government of the receiving State, the diplomatic missions of the sending State, and other consular offices of the sending State within the receiving State. The freedom of communication with the government of the sending State as well as other diplomatic missions and consular posts needs to be guaranteed by the receiving State including official correspondence, bags, and couriers (Information and Communication, Freedom of, International Protection).

40  Furthermore, since not all correspondence to the consular post is related to its consular functions, it is not certain whether only correspondence from the consular post is protected or whether correspondence addressed to the consular post also falls within the scope of Art. 35 VCCR. To guarantee the best possible protection—and since Art. 35 (2) VCCR does not contain such a distinction—correspondence in general addressed to the consular post seems to fall under the scope of Art. 35 VCCR. It also strictly prohibits the receiving State to open, search, or detain consular bags without the consent of the sending State. If such consent is refused, the bag is merely returned to its consignor. Not even the scanning of consular bags is allowed. This also regards third States. Thus, the VCCR is more detailed with regard to diplomatic bags than Art. 27 VCDR (Diplomatic Courier and Bag).

41  In 1989, the ILC adopted Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag Not Accompanied by Diplomatic Courier, with commentaries and two draft optional protocols, containing no less than 32 Articles (excluding the protocols) that also extend to consular couriers (Art. 3 (1) (b) Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag). Their Art. 28 (2) followed the model of Art. 35 (3) VCCR, but failed to achieve universal consensus, in particular regarding the exemption of diplomatic bags from electronic screening provided by Art. 28 (1) Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag (see A Watts The International Law Commission 1949–98 vol 3 [OUP Oxford 2000] 1919–20 with further references).

42  It is contested whether the consular office has the right to contact nationals of the receiving State. According to Art. 12 (2) International Covenant on Civil and Political Rights (1966), the nationals of the receiving State have the right to leave their country. For that purpose, they need to apply for the necessary documents, which they receive in a consular post. On the other hand, it is up to the receiving State—due to its personal sovereignty—to decide whether or not its nationals are allowed to enter a consular post. In the travaux préparatoires to the analogous provision of Art. 27 VCDR, the ILC denied a right to contact nationals of the receiving State. While the right to enter a consular post is, for non-nationals of the receiving State, a matter of human rights, the receiving State does not, in any case, have the right to enter the post in order to remove people against the will of the receiving State.

3.  An Individual Right of Foreigners to Consular Information? (Art. 36 VCCR)

43  Art. 36 VCCR has developed into the most controversial provision of the convention. The ICJ dealt with the provision in several proceedings in Vienna Convention on Consular Relations (Paraguay v United States of America), in the LaGrand Case, and in the Avena and Other Mexican Nationals Case between Paraguay, Germany, and Mexico respectively on the one hand, and the United States on the other. However, the Court was rebuffed by the US Supreme Court in Sanchez-Llamas v Oregon, and the implementation of the judgment was denied in Medellín v Texas. Among other domestic courts, the German Federal Constitutional Court needed to stress the authority of the ICJ twice to get the German Federal Supreme Court to fully implement the VCCR (Belehrungspflicht gegenüber ausländischen Beschuldigten Bundesverfassungsgericht [German Federal Constitutional Court 2nd Senate] [19 Sep 2006] [2007] 48 NJW 499—for an English summary and critique see Gärditz, and Paulus 44–46—and 2 BvR 2485/07 Bundesverfassungsgericht [German Federal Constitutional Court 2nd Senate] [8 July 2010] [2011] 52 NJW 207). In a recent decision, however, the German Federal Supreme Court has declared the respect of the right to consular information under Art. 36 VCCR a necessary component of a fair trial even in the absence of an explicit treaty commitment to this effect (V ZB 223/09 Bundesgerichtshof [German Supreme Court] [6 May 2010] [2010] Praxis der Freiwilligen Gerichtsbarkeit 212 paras 17–18; in favour of customary law status, see Nguyen Tuong Van v Public Prosecutor para. 24; Fair Trial, Right to, International Protection).

44  Art. 36 VCCR is the only provision of the convention dealing with the nationals of the sending State who do not have any consular function but are the main beneficiaries of consular activity. The current wording constitutes a compromise achieved only at the Vienna conference. In the context of the Cold War (1947–91), the main problem involved the question of whether the notification of detention of a national should be automatic or discretionary. In order to protect the national from unwelcome knowledge of the detention by the sending State, the Vienna conference decided that the individual should have a right to be informed of his or her right to contact the consular staff (Art. 36 (1) (b) VCCR). Only if he or she wishes to get into contact with the consulate, the latter will be informed and will enjoy the freedom of communication between the consulate and its nationals (Art. 36 (1) (a) VCCR), as well as the right of the consular officers to visit, converse, and correspond with their nationals and to arrange for legal representation (Art. 36 (1) (c) VCCR). The ICJ speaks of an ‘interrelated régime designed to facilitate the implementation of the system of consular protection’ (LaGrand Case para. 74). Accordingly, failure to inform engenders a failure to provide for communication and representation by the sending State.

45  It has also remained controversial whether Art. 36 (1) VCCR embodies an individual or even a human right or whether the rights of the individuals simply reflect rights of the sending State vis-à-vis the receiving State. Even during the drafting of Art. 36 VCCR, the rule was occasionally referred to as a human right or at least as a rule serving the protection of human rights (see eg UN Conference on Consular Relations [4 March–22 April 1963] UN Doc A/CONF.25/16 para. 13). Similarly, UNGA Res 40/144 recognizes consular rights as such (at 253). In The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion), the IACtHR also comes to the conclusion that Art. 36 VCCR constitutes a human right of foreigners (at paras 84 and 141). The ICJ derived the nature of Art. 36 VCCR as an individual right from the language of Art. 36 VCCR but—while leaving open the question of whether such a right would have the nature of a human right—rejected the contention that text, object, and purpose or drafting history would require such a result (Avena and Other Mexican Nationals para. 124; see also Interpretation in International Law). The US Supreme Court has left the question open whether, in line with the undisputed direct effect of the VCCR in US domestic law by virtue of Art. VI of the US Constitution, Art. 36 VCCR provides individual rights (Sanchez-Llamas v Oregon 343). However, some US courts have followed the ICJ (see eg Jogi v Voges United States Court of Appeals Seventh Circuit [12 March 2007] 480 F 3d 822; but see Gandara v Bennett United States Court of Appeals Eleventh Circuit [22 May 2008] [2008] 47 ILM 803 and Cornejo v County of San Diego United States Court of Appeals Ninth Circuit [2007] 46 ILM 1160 for the contrary view, essentially relying on the preamble of the VCCR). So have courts from other States (Hoppe 944). While the question of its human rights nature is largely academic—except regarding the jurisdiction of the IACtHR to issue advisory opinions—its nature as an individual right is of central importance particularly in countries in which self-executing treaties are directly applicable and enforceable before domestic courts.

46  The most controversial provision, however, is Art. 36 (2) VCCR which deals with the relationship between the rights provided by Art. 36 (1) VCCR and the domestic law of the receiving State. Accordingly, the rights conferred ‘shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that [they] must enable full effect to be given to the purposes for which the rights accorded under this article are intended’. Thus, Art. 36 (2) VCCR lets the receiving State define the parameters of these rights, subject to a condition of effectiveness. According to the ICJ, the application of the US rule of procedural default by domestic courts that did not allow the foreigner to invoke the failure to inform after the conviction before state or federal courts in habeas corpus proceedings violated this proviso, because it did not permit the sending State to provide for effective legal representation (LaGrand Case para. 91). Rather, by way of restitution, international law required ‘review and reconsideration’ of a severe sentence that was brought about in violation of the right to consular information (LaGrand Case paras 128 and 7) in a judicial and not in a mere clemency proceeding—at least as practiced in the US (Avena and Other Mexican Nationals paras 140–43).

47  On the contrary, the US, including the US Supreme Court, was of the view that this decision amounted to interference with its domestic law and to a misunderstanding of the adversarial proceedings before common law courts (Sanchez-Llamas v Oregon 356, 357). The US Supreme Court thus failed to follow the ICJ, refusing to apply the procedural default rule in conformity with the requirements of the VCCR as interpreted by the competent international court. Other domestic courts, such as the German Federal Constitutional Court, disagree.

48  The requirement of information ‘without delay’ and by whom is, according to Art. 36 (2) VCCR, a question of domestic law, as long as information is provided as early as possible after knowledge of or grounds to believe that the detained person is a foreign national (Avena and Other Mexican Nationals paras 63 and 88). There now seems to exist a broad consensus to the effect that Art. 36 VCCR does not demand suppression of evidence (see Avena and Other Mexican Nationals para. 23; Sanchez-Llamas v Oregon 344).

49  Leaving aside the question of the authoritative nature of the ICJ judgment for the parties involved (Art. 59 ICJ Statute), it is vital for the effective implementation of the VCCR that domestic law recognizes the right of consular information and ensures it is respected. Otherwise, the rights contained in Art. 36 VCCR remain perfunctory and illusory. This purposive reading of the article confirms the trend towards the recognition of individual rights in international law.

4.  Honorary Consuls (Arts 58–68 VCCR)

50  While the VCCR governs the legal status of honorary consuls, the domestic law of the sending State regulates their duties and rights and their relationship with the receiving State.

51  Honorary consuls differ from career consuls in many ways: they are typically nationals of the receiving State or a third State who are already living on the territory of the receiving State; they usually engage in private business; they are not public officials of the sending State; and their privileges and immunities are only limited. The end of the exequatur, its withdrawal, or the death of the honorary consul, leads to the termination of an honorary consular post.

52  Honorary consuls are nationals or permanent residents of the receiving State and enjoy the protection of the honorary consular premises against ‘any intrusion or damage’ according to Art. 59 VCCR. Consular documents are solely protected when they are separated from private and business correspondence (Art. 61 VCCR). Only objects for the official use of the consulate are granted exemption from custom duties (Art. 62 VCCR). Contrary to career consuls, the principle of inviolability (Art. 41 VCCR) does not apply to the private accommodation of honorary consular officers. They benefit from immunity solely for the exercise of official functions, not private business activity—for a practical example as to their separation see Serni v Braun (Pretore di Livorno [District Court] [Livorno Italy 4 May 1976] [1977] 3 ItYBIL 279–82). Unless granted by the receiving State, members of their family and consular employees do not enjoy immunity (Art. 72 (2) VCCR). All other privileges and immunities are the same as for career consuls. The privileges and immunities of honorary consuls being nationals or permanent residents of the receiving State are regulated in Art. 71 (1) VCCR; these honorary consuls benefit from immunity before court and from personal inviolability for acts performed in their official capacity. Additionally, they are also granted exemption from jurisdiction (Art. 43 (3) VCCR). In case of arrest or detention, Art. 42 VCCR demands for notification similar to Art. 57 VCDR. Despite the differences described, most of the rules governing career consuls (Arts 127 VCCR) apply to honorary consuls as well.

53  Honorary consuls work on a voluntary basis and receive no remuneration. This gives the sending State the opportunity to provide consular services to its nationals without the costs of a regular consular post. It is in the discretion of the sending State whether it wants to appoint an honorary consul (Art. 68 VCCR). To avoid any conflict with private business, some domestic laws, for instance the Brazilian consular law, demand that an honorary consul must maintain a separation between consular functions and private professional activity.

54  The appointment of honorary consuls is often influenced by political decisions. Many States appoint them to confer an honour to expatriates or foreigners with business or other ties towards the sending State. Thus, the receiving State will deny exequatur more easily than with regard to career consuls. The US Diplomatic Relations Act of 1978 (Pub L No 95–393, 92 Statutes at Large 808 [1978]) and the 1982 US Foreign Missions Act (Pub L No 97–24, 96 Statutes at Large 282 [1982]) for instance, both sought to limit the use of honorary consuls on US territory.

55  Since being an honorary consul is linked to many benefits, the misuse of the official title is a common phenomenon. In a case of a contract over the appointment as honorary consul for Sierra Leone in Hungary, the German Supreme Court ruled that this kind of contract was contra bonos mores and thus void (Titelhandel Honorarkonsul [5 October 1993] [1994] 47 NJW 1988 paras 15–17). Not infrequently, courts reject claims of immunity by honorary consuls based on the private nature of the activity in question (see 2 Ss 42/04 OLG Karlsruhe [Higher Regional Court] [Karlsruhe Germany 16 July 2004] [2004] 57 NJW 3273).

5.  Further Provisions and Principles

(a)  Consent

56  Consular relations are based on the mutual consent of the sending and receiving States (Art. 2 (1) VCCR). Due to the principle of Territorial Integrity and Political Independence, the consent of the receiving State is necessary when the sending State intends to establish a consular post, even if the former had agreed upon the establishment before (Art. 4 (1) VCCR). If both States differ on the need for a consular post, the receiving State prevails according to Art. 4 (1) VCCR. The VCCR does not regulate how many consular posts a State may establish. Therefore, the number of consular offices is determined according to the principles of reciprocity and parity (States, Sovereign Equality). The number of consular posts established by the sending State on the territory of the receiving State should be equal to the number the latter maintains in the former. This principle has been extended to also apply to the size of the diplomatic or consular staff. However, this may conflict with Art. 20 VCCR which refers to the needs of the post.

(b)  Consular Agencies (Art. 69 VCCR)

57  Consular agencies that are not conducted by the head of a consular post can be admitted in addition to proper consular offices. The provisions of the VCCR apply to them. However, their establishment requires a special agreement between the sending and the receiving State (Art. 69 (2) VCCR).

(c)  Consuls

58  The word consul is derived from the Latin verb consulere that means to take care of, to give advice, or to consult, and describes in general the tasks of consuls, as enumerated in particular in Art. 5 VCCR. In most of cases, the consul is the head of a consular post, but consular agents are also capable of performing this duty (Art. 9 (1) (d) VCCR). The consul is appointed by the sending State. The receiving State then has to admit to his/her exercise of consular functions (Art. 10 VCCR). This procedure is determined by the laws of the sending and the receiving States. Once the receiving State has admitted a head of a consular post, the consular personnel is automatically accepted under the provisions of Arts 20, 22, and 23 VCCR.

(d)  End of Consular Functions and Severance of Consular Relations (Arts 26–27 VCCR)

59  In Art. 26 VCCR, the ILC codified the customary rule that the receiving State is obliged to grant protection to the consular office and its personnel until they have left the country. Art. 26 VCCR also applies to a situation of armed conflict between the receiving State and a third State.

60  The end of diplomatic relations does not ipso iure imply the end of consular relations. The scope of Art. 27 VCCR, which constitutes customary international law, is narrower than the scope of the parallel rule in Art. 45 (b) VCDR and protects only the premises, property, and archives of the consular post in case of the severance of consular relations.

(e)  Final Provisions

61  According to Art. 73 VCCR, the convention does not interfere with other agreements in force at the date of conclusion of the VCCR. Provisions that confirm, supplement, complete, or extend the VCCR can be included in the bilateral relations via agreements and also customary law that continues to exist, see the VCCR preamble. The 1967 Convention on Consular Function adopted by the Council of Europe (COE) according to Art. 73 (2) VCCR is probably the most far-reaching post-VCCR convention. After accession by Georgia, it will enter into force in June 2011 for five States only.

(f)  Freedom of Movement and Travel (Art. 34 VCCR)

62  Art. 34 VCCR grants freedom of movement and travel to all members of the consular post except in certain zones designated for reasons of national security. Such zones should be limited to special areas, since a broad understanding might result in almost complete restrictions of the freedom of movement and travel by the receiving State. States may conclude additional bilateral agreements to regulate the freedom of movement and travel for their consular offices on their territory (Art. 73 (2) VCCR).

(g)  Immunities and Privileges (Arts 43–53 VCCR)

63  The principle of immunity of State officials, contained in Art. 43 VCCR, constitutes customary international law. Immunities and privileges can only be waived by declaration of the sending State (Art. 45 VCCR; Waiver). Subject to domestic regulations and the principle of reciprocity, consular officers are exempt from taxes except indirect taxes and other levies. The exemption from custom duties and inspections does not apply to baggage in ships and planes, since it is not directly accompanied by a consular officer as required explicitly by Art. 50 VCCR. According to its object and purpose, the exemption also binds third States that give free passage in cases of transit. The customary principle of exemption of personal services and contributions has been codified in Art. 52 VCCR.

64  Art. 53 (4) VCCR contains the principle of immunity rationae materiae for official acts without limitation of time. It is disputed whether immunity rationae materiae, once the official consular function is finished, also applies to third States (erga omnes). In 1997, the German Federal Constitutional Court denied such obligations erga omnes with regard to Art. 39 VCDR (DDR-Botschafter [2nd Senate] [10 June 1997] [1997] 96 BVerfGE 68) which is comparable to Art. 53 VCCR. The court argued that the principle of immunity is only valid in the receiving State since the third State did not consent to the employment of the consular officer.

(h)  Inviolability of Consular Officers (Art. 41 VCCR)

65  Since the Buvot v Barbuit case in 1737 (Court of Chancery [Great Britain 1737] reprinted in A Forrester and Others [eds], Cases in Equity During the Time of the Late Lord Chancellor Talbot [3rd edn Dublin 1793] 281), the personal inviolability of consular officers was disputed among States. Before the conclusion of the VCCR, States included the inviolability of consular officers in bilateral treaties. Today, Art. 41 VCCR restricts the arrest of a consular officer to charges of grave crimes. In each case, the admissibility, necessity, and also political consequences have to be taken into consideration when evaluating the arrest of a consular officer. The meaning of the prohibition of ‘any other form of restriction on their personal freedom’ in Art. 41 (2) VCCR is unclear. A broad interpretation would include any restriction to personal freedom—this would result in a prohibition even to check consular officers’ IDs. However, read in context, Art. 41 (2) VCCR only relates to arrest and imprisonment, but not to temporary and minor restrictions of personal freedom.

(i)  Laws and Regulations of the Receiving State (Art. 55 VCCR)

66  Art. 55 VCCR combines the privileges and immunities of consular officers with the obligation to respect the laws and regulations of the receiving State and interacts, therefore, with most of the provisions of the treaty. The wording of Art. 55 VCCR suggests that interference in the external affairs of the receiving State is permissible, since it explicitly prohibits the sending State to interfere in the internal affairs of the receiving State. However, according to customary international law and para. 6 of the VCCR preamble, the sending State is also prohibited from interfering with the external affairs of the receiving State.

(j)  Non-Discrimination (Art. 72 VCCR)

67  Art. 72 VCCR prohibits any form of discrimination between consular officers of different sending States by the receiving State, based on the principles of state sovereignty and equality. However, the VCCR only contains a minimum standard; States are free to conclude agreements improving the VCCR conditions (Art. 72 (2) (b) VCCR). Art. 72 VCCR also relates to the principle of reciprocity. However, retorsions against restrictive measures of the sending State, or a more favourable treatment due to custom or agreement with a third State, do not, according to Art. 72 (2) VCCR, constitute acts of discrimination in this sense.

(k)  Organs of the Sending State (Arts 8 and 18 VCCR)

68  In principle, an appointed consular officer is an organ of the sending State and may exercise consular functions for a third State according to Art. 8 VCCR. He or she does not have to follow the instructions of the other government. An exception is made in Art. 18 VCCR, allowing States to appoint one common consular officer. He or she then acts as an organ of two or more governments which are authorized to give instructions.

(l)  Rank of Consular Officers

69  In Art. 9 (1) VCCR, consuls are generally classified by rank into four different categories: consuls-general, consul, vice-consul, and consular agents. However, in other treaties and national regulations, there exist variations of these terms. According to Art. 9 (2) VCCR, the sending State is free to use whatever designation it wishes to, but the receiving State is not obliged to grant recognition as ‘consular officer’ and accord related privileges to all categories of personnel assigned to a consular post.

(m)  Separation of Consular and Diplomatic Actions (Art. 17 VCCR)

70  According to Art. 3 VCCR, not only consular posts but also diplomatic missions can exercise consular functions. The VCDR left this open. Diplomatic missions keep their privileges according to Art. 70 (4) VCCR when exercising consular functions. Consular posts, on the contrary, cannot, in principle, exercise diplomatic functions. An exception to this principle of separation of consular and diplomatic actions is made in cases where the sending State does not possess a diplomatic mission, as long as the receiving State consents and there is no protection by a third State pursuant to Art. 45 (c) VCDR. Only in this case, the performance of diplomatic acts by consular officers is possible. While a member of a diplomatic mission can work temporarily for a diplomatic mission and for a consular post at the same time, a consular officer cannot do so.

71  Consular officers may act as representatives of the sending State to any intergovernmental organization (Art. 17 (2) VCCR), and they are accorded the privileges of the treaty or convention establishing the said organization and its rights in the host State. As a rule of customary law, the representatives also enjoy immunity for their official duties.

(n)  Staff (Arts 20–22 VCCR)

72  While Art. 22 (1) VCCR provides that consular staff should have the nationality of the sending State, in practice, nationals of the receiving State are also employed by the consulate. According to Art. 71 (1) VCCR, however, consular officers who are nationals of the receiving State only enjoy immunity for the acts performed in their official function (similar to State immunity), while privileges of household members and other staff are subject to the explicit consent of the receiving State. According to Art. II Optional Protocol to the Vienna Convention on Consular Relations concerning Acquisition of Nationality, ‘Members of the consular post not being nationals of the sending State … shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’. In exceptional circumstances, an honorary consul may also have a different nationality than that of the sending State.

(o)  Taxes and Fees (Arts 32 and 39 VCCR)

73  In accordance with international law, Art. 39 VCCR regulates the imposition of fees for consular actions. The imposition of consular fees and charges also includes the free transfer of revenues to the sending State. Pursuant to Art. 32 VCCR, consular offices are exempt from paying taxes and charges to the receiving State.

(p)  Third States (Art. 54 VCCR)

74  Art. 54 VCCR provides for obligations of third States. They have to ensure a free passage to consular officers, to guarantee immunity before their courts (Art. 43 VCCR), to protect them from attacks of all kinds (Art. 40 VCCR), and they do not have the right to search consular documents or archives (Arts 33 and 35 (2) VCCR).

(q)  The Vienna Formula

75  Art. 76 VCCR includes a so called ‘Vienna formula’—as does Art. 74 VCDR—permitting States to accede to the convention as long as they are UN Member States, Member States of a specialized UN agency (United Nations, Specialized Agencies), States Parties to the ICJ Statute, or have been invited by the UN General Assembly to become a State Party to the VCCR.

E.  Evaluation

76  In a globalized world in which inter-State relations are only a small subset of personal relations across borders, consular relations remain of great importance to both the sending and the receiving States. By regulating consular relations, and in particular by including a provision on the relationship between the receiving state and foreigners, the VCCR has protected the consular function and has contributed to the improvement of the legal and procedural position of foreigners, while maintaining their link to their home State. While domestic courts were not always ready to implement the extensive interpretation of the VCCR by the ICJ, recent litigation has strengthened the exercise of consular functions on behalf of nationals of the sending States and thereby further enhanced the position of foreigners in the exercise of their international rights in the receiving State.

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