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These functions may, with the consent of all governments concerned, be exercised by a consular officer on behalf of a third state.
It will be noted that in a substantial number of cases the right to act is not absolute, but dependent on the law of the receiving state. Also, despite the quasi-legal nature of many of his functions, a consul is not a substitute for a lawyer or other specialist.
More detailed provisions are included in many bilateral conventions, and a comprehensive outline of consular functions may be found in the Council of Europe, European Convention on Consular Functions.
A consular officer whose government has no diplomatic representative in the state in which he is serving and is not represented diplomatically by a third state may, with the authority of his host state, and without affecting his consular status, be authorised to perform certain diplomatic acts, including the representation of his state at intergovernmental organisations.
CONSULAR OFFICERS, CONSULAR
EMPLOYEES AND MEMBERS OF THE
SERVICE STAFF
Consular officers are persons designated as such and responsible for the exercise of consular functions. They hold the rank of Consul-General, Consul or Vice-Consul and are divided into two categories:
Career officers may not normally carry on for personal profit any professional or commercial activity in the host state, and should in principle have the nationality of the country they serve; the appointment of a national of the host state may only be made with that government's permission which may be withdrawn at any time. An honorary consular officer, on the other hand, though often a national of the country whose interest he serves, need not necessarily be so.
Consular employees are members of the consular staff who are not responsible for the exercise of consular functions, but who are employed in an administrative or technical capacity.
Members of the service staff are those employed as chauffeurs, cleaners, domestics, etc. Persons falling within these categories are usually local residents.
Consular agents and pro-consuls are appointed by certain states but there is no standard definition of the terms. Generally they refer to consular employees with limited responsibilities ranking below vice-consul, but their precise status and functions vary considerably in different states.
THE APPOINTMENT OF CONSULAR OFFICERS
It is traditional practice for the head of a consular post to be provided by his government with a written authority in respect of each appointment showing his full name, consular rank, consular district and post. This document (a Commission) is sent through diplomatic channels to the host government who, if they have no objection, issue a corresponding document (an Exequatur) authorising the appointment. In the rare event of its declining to issue an Exequatur, a government need give no reasons for its action. A similar procedure is normally adopted in respect of officers appointed to the consular staff; but, alternatively, a simple notification of relevant details in advance may be acceptable, and the granting of formal Exequaturs, though customary, is not obligatory.
The UK practice follows the Vienna Convention on Consular Relations. Article 12(l), whereby ‘the Head of a Consular post is admitted to the exercise of his functions by an authorisation from the receiving State termed an exequatur whatever the form of this authorisation’. All officers performing consular functions are recognised by simple letter from the Protocol Department, and a Head of State exequatur is issued only to the career head of a consular post.
On arrival at his post, the head of a consular post informs the Dean of the Consular Corps accordingly, and makes calls on the local authorities and on the other heads of consular posts.
As soon as a head of a consular post is admitted to his functions, and even though the formalities of his appointment may not have been completed, the host government notifies the official authorities in the consular district concerned and ensures that all necessary facilities are provided for him to carry out his functions. Customs and immigration authorities are also advised of the arrival and departure of a consular officer and members of his family so that appropriate arrangements can be made.
In the absence of the head of a consular post (whether through illness, or the post falling temporarily vacant) the position may be held provisionally by a diplomat or consular officer or, if the host state has no objection, by some other person. In any event the name of the acting head of post must be furnished to the host government, advance notification usually being required.
A consular officer may at any time and without explanation be declared persona non grata. In this event he is recalled by his government; failing which his letter of appointment or Exequatur is cancelled and he ceases to be considered a consular officer.
SEVERANCE OF CONSULAR RELATIONS
In the event of consular relations being broken off, the consular premises, property and archives must be respected and protected by the host state; and the business of the consulate, together with the property and archives, may be entrusted by the appointing state to a third state acceptable to the host state.
PRIVILEGES, FACILITIES AND IMMUNITIES
The Vienna Convention on Consular Relations was drawn up in 1963 with the aim of providing the basis for a uniform practice in respect of consular privileges and immunities; but many states with wide consular interests have preferred to conclude bilateral agreements to suit their particular requirements, and these usually accord a more liberal scale of privileges, though not usually of immunities. Some states such as the United Kingdom are parties both to the Vienna Convention and to prior and subsequent bilateral conventions. In case of any conflict they apply the more generous treatment in matters of privileges and immunities, on being assured of reciprocity. Nevertheless the advantages of a standard practice are self-evident, and the following are the main provisions of the Vienna Convention.
CAREER CONSULAR OFFICERS AND POSTS
HEADED BY THEM
RELATING TO THE CONSULAR POST
The facilities granted by the host state to a consular post are those necessary to ensure the effective fulfilment of its functions: the premises used exclusively for consular purposes are (with specific exceptions such as an emergency requiring prompt action on the premises) inviolable and may not be entered except with the permission of the head of the consular post or the head of the diplomatic mission of the country concerned; the host state is obliged, where necessary, to help in finding suitable premises for the consular post (and accommodation for staff) and to ensure that all appropriate steps are taken to protect the premises from damage or insult; the consular archives and official correspondence are inviolable; there is freedom of movement for members of the post (save in generally restricted zones) and freedom and inviolability of communication by bag and other recognised means, although wireless transmitters may be used only with the permission of the host government; furthermore the host government may ask for a bag to be opened if it has serious reason to believe that its contents are unauthorised (if, however, the sending state refuses to do this the bag shall be returned to its place of origin); and the head of post has the right to fly his national flag and display his national coat of arms on his premises and residence, and fly his flag on his car, boat or aircraft when on official business.
The consular premises, including the residence of the head of the post but not those of other members of the staff, are not directly liable to taxation (though this exemption does not apply to the vendor or lessor of the premises if he is liable under the law), but charges for services, e.g. refuse collection, must be met.
In addition, consular fees and charges may be levied for services rendered, e.g. the granting of visas, certification of documents; these are exempt from all dues and taxes in the host state.
RELATING TO CONSULAR DUTIES
Right of access to nationals who are detained
In view of a consular officer's particular responsibility within his consular district towards nationals of his own state (and those of any other state or states whose interests he represents) he must be free to visit and communicate with them; and such individuals, conversely, have the right to communicate with and have free access to their consular officer. Moreover, if the authorities detain a foreign national they must inform him that he is free to communicate with his consular officer, who must be given the appropriate facilities to visit the national if the latter so wishes. If a consular officer makes enquiries as to whether an individual for whom he is responsible has been detained, he must be given an immediate reply and be permitted, where he considers it necessary and with the concurrence of the person concerned, to arrange for appropriate legal representation.
Right of access to information in cases of death, guardianship or trusteeship, wrecks and air accidents
The appropriate authorities have the duty to notify a consular officer without delay of any incident of which they are aware occurring within his district and affecting individuals for whom he is responsible, such as a death, a case where the appointment of guardians or trustees is needed, or a wreck or accident occurring to a ship or aircraft registered in his state.
Right of access to appropriate authorities
In the exercise of his official functions a consular officer is entitled to communicate with the competent local authorities in his consular area; and in exceptional cases with the central authorities if custom and circumstances permit.
PERSONAL PRIVILEGES AND IMMUNITIES
General
The privileges to which a career consular officer is entitled under the 1963 Vienna Convention on Consular Relations are similar to those of members of the diplomatic staff of a mission. The extent of his immunity from jurisdiction and personal inviolability, however, is considerably less except where specific agreements provide otherwise. Privileges and immunities apply from the moment he enters the host state to take up his appointment or, if already in the country, from the moment he takes up his duties. They terminate when he leaves the country or (if he does not leave immediately) a reasonable time after he relinquishes his appointment.
Personal protection
The host state is obliged to treat a consular officer with due respect and must take all appropriate steps to prevent any attack on his person, freedom or dignity.
Personal inviolability and immunity front jurisdiction
A consular officer or consular employee is not liable to the jurisdiction (judicial or administrative) of the host state in respect of acts performed in the exercise of his consular functions. It is expressly made clear that his immunity does not apply to civil actions by third parties, (i) for damage arising within the state from an accident caused by a vehicle, vessel or aircraft or (ii) arising out of any contract that he concluded if he did not contract expressly or impliedly as an agent of the state which he was serving at the time. His government may, if it sees fit, waive his immunity.
He must, however, appear before the competent authorities if criminal proceedings are brought against him, and he is liable to imprisonment if convicted by the competent judicial authorities. In the event of his being accused of a grave crime (but only in such an event) he may be detained pending trial.
It is, nevertheless, some consolation for him to know that proceedings will be carried out with the minimum delay, with due respect to him by reason of his official position, and, if the charge is not serious, with the minimum interference to his consular functions; and that the head of his consular post must be informed of his predicament unless he himself holds that position, in which case his government will be informed immediately through diplomatic channels.
Proceedings initiated by a consular officer or consular employee
If a consular officer or consular employee initiates proceedings, he loses any immunity from jurisdiction in respect of any counterclaim directly connected with the main claim to which he would otherwise have been entitled.
Liability to give evidence
No member of a consular post is obliged (unless his government waives the immunity) to give evidence on official matters or to produce official correspondence and documents concerning matters connected with the exercise of his functions; nor is he bound to give evidence as an expert witness with regard to the law of his state. In other matters he may be called on to attend as a witness at judicial or administrative proceedings and would normally do so. If a consular officer (as opposed to a consular employee or member of the service staff) should decline to do so, however, no penalty or coercive measure may be applied to him.
Residence permits, work permits, and registration as aliens
Career consular officers, consular employees (provided that they are permanent employees of the state they serve and are not engaged in any gainful occupation in the state in which they are serving) and members of their families forming part of their household are exempt from local regulations concerning residence permits, the registration of aliens and the employment of aliens.
Social security
Career consular officers and other members of the consular post (i.e. consular employees and members of the service staff) together with members of their families forming part of their household are exempt from social security requirements in force in the host state in respect of their official duties. They may, however, be permitted to participate voluntarily; and if they have any individuals in their private employ, they are responsible for complying with the social security requirements in respect of such persons.
Taxation
Career consular officers and consular employees and members of their amines forming part of their household, provided that they do not carry on any private gainful occupation in the host state, are exempt from all national and local taxes, except:
Members of the service staff are exempt from dues and taxes on the wages that they receive for their services.
Customs duties and inspection
Exemption from all customs duties, taxes and related charges (other than those for storage, cartage, etc.) and unrestricted right of entry (except for articles generally restricted by law) are granted in respect of:
Insurance against third-party risks
All members of a consular post must comply with national and local legislation concerning third party insurance in respect of any vehicle, vessel or aircraft.
HONORARY CONSULAR OFFICERS AND POSTS HEADED BY THEM
A certain number of the facilities and immunities granted to career posts (with the same provisos as to their use exclusively for consular functions) are granted to consular posts headed by honorary consuls:
(a) full facilities for the performance of the functions of a consular post;
(b) the right to display the national flag and emblem at the consular post and consular residence and on a vehicle when on official business;
(c) assistance in the acquisition of premises and accommodation;
(d) freedom of movement and travel of all members of the consular post (save in generally restricted areas);
(e) freedom and inviolability of communication (including the right of communication through third states); but the exchange of consular bags between two consular posts headed by honorary consular officers in different states is not permitted without the consent of the two host states concerned;
(f) the right to levy consular fees and charges, and their exemption from taxation in the host state;
(g) more limited protection by the host state of the consular premises against intrusion, damage, disturbance and impairment of its dignity;
(h) exemption from all forms of taxation of the consular premises of which the sending state is owner or lessee except for those representing the payment for specific services rendered: but this exemption does not extend to the individual who leases or sells the premises to the sending state if he is liable to pay under the law;
(i) inviolability of consular archives and documents 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;
(j) exemption from customs and other similar duties on 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 provided that they are for official use.
RELATING TO CONSULAR DUTIES
(a) the right of access to nationals for whom the post is responsible;
(b) the right of access to information in cases of deaths, the need for guardianships or trusteeships, wrecks and air accidents;
(c) the right of access to the appropriate authorities in the host state.
An honorary consular officer enjoys a certain number of the facilities, privileges and immunities enjoyed by a career consular officer in connection with the performance of his functions, though, as with career officers, they may be waived by the government he serves; and if he himself initiates legal proceedings he loses the immunity (see below) in respect of a counterclaim directly connected with a principal claim.
They start the moment the officer enters the territory of the state to take up his post, or if he is already in the territory, the moment that he takes up his duties, and come to an end when he leaves the territory or (if he does not do so immediately) a reasonable period thereafter.
These facilities, privileges and immunities are as follows:
(a) The obligation of the host state to notify his consular or diplomatic representative in the event of his being arrested, detained or prosecuted.
(b) Immunity from jurisdiction in respect of acts performed in the exercise of his consular functions except for civil actions (i) in respect of third-party claims arising from an accident caused by a vehicle, vessel or aircraft, or (ii) arising out of a contract not expressly or implicitly carried out as an agent of the state which he, as an honorary consular officer, serves. The immunity is of indefinite duration, i.e. it does not necessarily cease on the termination of the officer's period of duty.
(c) Freedom from the obligation to give evidence or to produce official correspondence or documents on matters connected with the exercise of his consular functions; and the right to decline to give evidence as an expert witness with regard to the law of the state he serves.
The following additional provisions also apply to an honorary consular officer:
(d) If criminal proceedings are instituted against him he must appear before the competent authorities. He is, however, treated with the respect due to his official position; proceedings are instituted with the minimum of delay; and unless under detention, his ability to carry on his consular functions is hampered as little as possible.
(e) He is exempt from all obligations in the host state in regard to the registration of aliens and residence permits provided that he does not engage there in any professional or commercial activity for personal profit.
(f) He is exempt from all dues and taxes on the remuneration and emoluments that he receives from the government of the state he serves in respect of the exercise of his consular functions.
(g) He is exempt from all personal and public services and military contributions in the state in which he is serving.
(h) He is entitled to receive from the host state such protection as is needed on account of his official position; and in return must undertake to respect the laws of that state and not to interfere in its internal affairs.