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Part 3 Organs of the states for their international relations, Ch.11 Consuls, Termination of Consular Office

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 October 2020

Subject(s):
Consulates — Consular relations — Heads of state and other senior officials

Termination of Consular Office

Harv Research (1932), pp 247–51 Lee, Consular Law and Practice (2nd ed, 1991), pp 93–112, and Vienna Convention on Consular Relations (1966), pp 74–5 Parry, BDIL, 8, pp 62–86 Sen, A Diplomat’s Handbook of International Law and Practice (3rd ed, 1988), pp 310–14.

§ 553  Causes of termination

Death of the consul, withdrawal of the exequatur, or other expression of the receiving state’s unwillingness to continue to consent to a person exercising consular functions,1 recall or dismissal, and, lastly, war between the sending and the receiving state, are universally recognised causes of the termination of consular functions.2

It is not certain in practice whether the office of a consul terminates when his district, through cession, annexation following conquest, or revolt, becomes the territory of another state. The question ought to be answered in the affirmative, because the exequatur given to him originates from a government to which the territory no longer belongs: the government to which the territory is recognised as belonging de jure or de facto becomes the government which gives exequaturs in respect of the territory.3

(p. 1152) If the sending state is unwilling to recognise the acquisition of the territory by the putative receiving state, or even to recognise it or its government at all,4 difficulties are likely to arise if it wishes to persist with the appointment of consuls in the territory. Thus the sending state might be faced with a demand that, failing recognition, the consular post must be closed and the persons and property concerned might even be regarded as no longer having consular status.5 Similarly, the extinction of the sending state also puts an end to a consul’s position, although anomalous situations involving their continued exercise of consular functions sometimes occur,6 particularly where the receiving state does not recognise the extinction of the sending state.7

§ 554  Change in headship of states

It is universally recognised that, in contradistinction to a diplomatic mission, the consular office does not come to an end through a change in the headship of the appointing or the admitting state. Neither a new commission nor a new exequatur is therefore necessary whether another king comes to the throne or a monarchy turns into a republic, or in any like case.1

(p. 1153) § 555  Consequences of termination

On the termination of consular functions, the consular personnel concerned are to be allowed to depart from the receiving state’s territory as soon as possible, even in the event of armed conflict between the sending and receiving states.1

If the termination of functions occurs because consular relations have been severed, the consular premises, property and archives must continue to be protected by the receiving state.2 In such an event a third state will frequently be asked by the sending state to take custody of its consular premises, property and archives, and to protect the interests of the sending state and its nationals: the third state selected must be acceptable to the receiving state.3

Footnotes:

See § 543, n 7.

See also Vienna Convention, Art 25.

In 1836, Belgium, which was then not yet recognised by Russia, declared that she would no longer treat the Russian consul, Aegi, at Antwerp as consul, because he was appointed before the revolt and his exequatur was granted by the Government of the Netherlands. Although Belgium gave way in the end to the urgent remonstrances of Russia, its original attitude was legally correct. In 1939, following Germany’s declaration of a ‘protectorate’ over part of Czechoslovakia, Germany required all principal consuls in Prague to discontinue their functions unless they got new exequaturs from the German Government: see Hackworth, iv, pp 689–90. See also § 55, n 3ff.

When a consular district has been conquered but not annexed, that is to say when it is under military occupation, different considerations apply. In November 1914, during the First World War, after having occupied the greater part of Belgium, the German Government declared that the exequaturs granted before the war by the Belgian Government to consuls of neutral states in occupied consular districts had expired through the German occupation, and that the offices of the consuls concerned had terminated. The Belgian Government protested, but the USA rightly held that the occupying government need not recognise an exequatur given by the legitimate government, but might suspend it. Whether or not the occupying state may properly issue exequaturs in respect of territories under its military occupation raises more complex considerations, since it is an accepted principle that military occupation of enemy territory does not confer upon the occupant sovereignty over the territory, while the formal issue and receipt of an exequatur have implications in the context of recognition (see § 50, n 9). Much may turn on the capacity in which the occupant state claims to be acting in issuing an exequatur, whether merely as an occupant possessing administrative control of the territory, or as an authority possessing sovereignty over it. As to the reaction of the USA when faced with a demand that new exequaturs be obtained from Germany in respect of parts of Belgium under German occupation in the First World War, see AJ, 10 (1916), Special Suppl, pp 448–9; and compare the situation resulting from the German occupation of Danzig and Poland in 1939, Hackworth, iv, pp 690–91. See also Stowell, AJ, 34 (1940), pp 310–12; Lee, Consular Law and Practice (1961), pp 294–6. In 1990 Iraq purported to annex Kuwait, and to terminate the appointment of foreign consuls there who had been appointed to Kuwait (in parallel with similar action taken by Iraq with respect to diplomatic missions in Kuwait: see § 517, n 1). The annexation of Kuwait was declared null and void by the Security Council (see § 55, at n 45a); other states did not recognise the lawfulness of the purported termination of consular appointments. Where a state is occupied in time of war by an enemy state, consuls of the first-mentioned state in other countries continue to hold their office and exercise their functions: see Re Zalewski’s Estate, AD, 1941–42, No 118; Re Flaum’s Estate, AD, 1943–45, No 145; Re Skewry’s Estate, and Re Murika, ibid, No 144; Re Schurz’s Estate, AD, 1941–42, No 117; Anglo-Czechoslovak and Prague Credit Bank v Janssen, AD, 1943–45, No 11.

See generally as to recognition, §§ 38–56, especially at § 50, n 9.

As to the imprisonment of four members of the American consulate general in Mukden, and the requisition of American consular premises in Peking, in 1949 by the Chinese Communist regime (unrecognised by the USA), see Lee, Consular Law and Practice (2nd ed, 1991), pp 105–7, and Briggs, AJ, 44 (1950), pp 243–58. As to the closure of the US consulate in Hanoi following on the failure of the USA to grant recognition to the authorities there, see Lee,op cit, pp 109–10. However, the receiving State might, for reasons of policy, be willing — at least for a time — to continue to regard the foreign officials as having consular status. Thus although the UK did not recognise the ‘Democratic Republic of Vietnam’ as a state, or the authorities there as the Government of Vietnam, the UK had a consulate-general in Hanoi (see § 50, n 9). See Hackworth, iv, p 688, for the continued consular status of foreign consuls in Manchuria after its invasion by Japan in 1931. As to the exercise of consular functions in Jerusalem by consuls who did not recognise Israel’s sovereignty over the city, or who did not recognise Israel as a state at all, and who therefore were unwilling to seek an exequatur from Israel, see Heirs of Shebabo v Heilen, ILR, 20 (1953), p 391, and Kendal v Consul General of Spain in Jerusalem, ILR, 24 (1957), p 532, and the Note at p 535.

See examples given in Harv Research (1932), p 249.

See, eg Buxhoeveden v Estonian State Bank, AD, 12 (1943–45), No 82, and AJ, 43 (1949), pp 381–2. For other cases arising out of the refusal of some states to recognise the extinction of the Baltic states, see § 55, nn 41–4. For a case involving the status of a consul when there has been a change of government in the sending state, the new government not being recognised by the receiving state, see The Dominican Republic v Peguero (1963), ILR, 34, p 173.

As to the anomalous position of Russian consuls appointed by the Tsarist Government to Egypt and Yugoslavia, who after the Revolution received official recognition not as consuls but as ‘the heads of the Russian community,’ see Goadby in JCL, 6 (1924), pp 264, 265.

See Vienna Convention, Art 26. See also the Protocol of Signature, or related exchanges of notes, with most consular conventions concluded by the UK (eg with France in 1951, Mexico in 1954, and Japan in 1964). As to the continued entitlement to privileges and immunities for a reasonable period until departure, see § 551. A consul whose exequatur has been withdrawn can no longer represent the sending state in legal proceedings brought in its name: The Dominican Republic v Peguero (1963), ILR, 34, p 173.

See Vienna Convention, Art 27.1(a). The same applies in the event of the temporary or permanent closure of a consular post: ibid, Art 27.2. The protection of consular archives is provided for in the Protocols of Signature to all the UK’s consular conventions, except that with the USA: that country would appear to want to leave open the possibility of claiming that the host country may examine consular archives known to contain information detrimental to its security (see Lee, Consular Law and Practice (2nd ed, 1991), p 426). In Brownell v City and County of San Francisco, ILR, 21 (1954), p 432, the German consulate-general in San Francisco was held entitled to immunity from taxation for the period during which US-German consular relations were severed during the Second World War.

See Vienna Convention, Art 27.1(b) and (c). See also Lee, Consular Law and Practice (2nd ed, 1991), pp 60–71, and Franklin, Protection of Foreign Interests (1947).