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A Consul is an official representative of one State appointed to live in another to protect the State’s interests and citizens. Consular relations deals with the rights and duties of States in respect to the consular representatives they send and receive. It is the means by which nations protect the interests of their citizenry abroad, especially their nationals who are arrested for violating other nations’ criminal laws. Historically, such relations have been regulated through bilateral treaties and customary practices among diplomats and consuls.
An outcome of a series of efforts of the International Law Commission and the Vienna Conference on Consular Relations, the Vienna Convention on Consular Relations (hereinafter referred to as ‘the Convention’), signed on April 24, 1963 codified and progressively developed customary international law on consular immunities. At present, there are 48 signatories and 180 parties to the Convention. Its key objective was to protect the interests of a State and its nationals in the territory of another State while promoting relations amongst States.
Historical context: Why was the Convention introduced?
The history of the consular function is majorly associated with the development of international trade and the economic interest of States. In the nineteenth and twentieth centuries, the rapid changes in political, economic and social activities resulted in the increase of consulates. Therefore, in order to protect citizens and safeguard their interests, there arose a need for detailed legal framework on consular service and the legal status of consuls.
The preliminary attempts to formulate an official code of international consular legislation resulted only in adoption of regional agreements. Despite the League of Nations’ emphasis on the need for an international instrument of consular regulation, the matter was left unattended for about twenty years. The codification of consular intercourse and immunities was first considered by the United Nations International Law Commission in 1949. Subsequently, at the seventh session in 1955, review and drafting of the matter commenced and formal discussions on the same began in 1958. The United Nations Conference on Consular Relations was held in Vienna, Austria in 1963 to adopt and sign the convention on the subject.
Outline of the Convention
The Vienna Convention is composed of seventy-nine articles divided into five chapters. The articles are preceded by a Preamble containing clauses that lays down the purpose of the Convention to be “development of friendly relations among nations, irrespective of their different constitutional and social systems”. It further states that consular privileges and immunities are granted “not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States”.
A brief outline of the provisions is as follows –
- Article 1 contains definitions of the expressions used in the Convention, and is more comprehensive than Article 1 of the Convention on Diplomatic Relations.
- Chapter 1 (Articles 2 to 24) is on Consular Relations in general i.e., the establishment and conduct of consular relations and on the end of consular functions.
- Chapter 2 (Articles 25 to 57), entitled “Facilities, Privileges and Immunities relating to Consular Posts, Career Consular Officers and other Members of a Consular Post”, makes a distinction between the privileges and immunities of a consular post and those which affect consular officers and other members of the consular posts.
- Chapter 3 (Articles 58 to 68) contains provisions on the regime relating to honorary consular officers and to the consular post headed by such officers.
- Chapter 4 (Articles 69 to 73) lays down general provisions like the problem of consular agents who are not heads of consular posts; the exercise of consular functions by diplomatic missions; and the situation of nationals or permanent residents of a receiving State. It also consists of provisions on non-discrimination and the relationship between the Convention and other international agreements.
- Chapter 5 (Articles 74 to 79) consists of the Final Provisions titled Signature, Ratification, Accession, Entry into force, Notifications by the Secretary-General and Authentic texts.
Salient features & key provisions of the Convention
- Customary International Law:
The preamble to the Convention states that the rules of customary international law continue to govern the matters not expressly regulated by the provisions of the present Convention.
- Consular functions:
Since consular immunity depends on whether the act was performed in exercise of consular functions, it was essential that courts are able to ascertain the functions to which immunity would apply. A compromise between a general definition and specific enumeration, Article 5 of the Convention provides a non-exhaustive enumeration of the most important consular functions.
- Consular privileges and immunities:
Consular officers, like diplomats, are given a certain privileges and immunity to facilitate the performance of their functions. Article 43 provides consular officers and consular employees with functional immunity jurisdiction of the judicial or administrative authorities of the receiving State. However, such immunity does not apply in cases of civil action arising out of contracts beyond the scope of consular functions and cases where accident (by vehicle, vessel or aircraft) leads to third party damage.
- Communication and contact with nationals of the sending state:
Article 36 governs the communication and contact between a consul and nationals of his country. Article 36(1)(a) states that consular officers must be allowed communication with and consular access to the nationals of the sending State. Article 36(1)(b) states that arrested or detained foreign nationals must be given notice, without delay, of their right to have the competent authorities of their State notified of the arrest. Further, Article 36(1)(c) provides for obligations on competent authorities to guarantee the arrested or detained foreign national the inalienable right to counsel and legal representation.
- Status of honorary consuls:
The Vienna Convention is the foundation of the institution of honorary consuls. Under Article 1(2), consular officers have been divided into two categories – career consuls and honorary consuls. The appointment or receiving of honorary consuls is optional to States as Article 68 gives each state the freedom to decide on the same. Article 58 provides for application of various provisions for career consuls to honorary consular offices, thereby equating their rights of access to many facilities, privileges and immunities. Further, the privileges and immunities provided for in the Convention are not extended to the family members of an honorary consular officer nor employees of the honorary consulate and the exchange of consular bags between two honorary consular posts in different States is permitted only with the consent of the two receiving States.
The Convention w.r.t. Kulbhushan Jadhav Case
Mr. Kulbhushan Sudhir Jadhav, an Indian national, was sentenced to death in April, 2017 by a Pakistani military court on grounds of involvement in espionage and terrorism. However, India clarified that Jadhav, a retired naval officer, was kidnapped from Iran and then brought to Pakistan and tried on false charges of conducting espionage and terrorist activities. India contended that Jadhav was denied access to the Indian consular post and Indian authorities were denied any communication or contact with Jadhav at the time of his arrest and trial. With the likelihood that Jadhav may be executed soon, in May 2017, the Government of India moved to the International Court of Justice (ICJ) and instituted proceedings against the Islamic Republic of Pakistan alleging violations of the Vienna Convention on Consular Relations.
India argued that Article 36 of the Convention was violated, and that the jurisdiction of the ICJ arises from Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (‘Optional Protocol’). Pakistan, on the other hand, argued that compulsory jurisdiction of ICJ under Article 36(2) does not extend to cases relating to national security. Further, it also contended that the 2008 bilateral agreement between India and Pakistan on consular relations excludes cases on political or security grounds.
The final judgement by the ICJ was delivered on July 17, 2019 and held that –
- Persons suspected of espionage are covered under protections granted in Article 36 of the Convention;
- 2008 Agreement constitutes a subsequent agreement within meaning of Article 73, paragraph 2, of Vienna Convention and does not displace obligations under Article 36;
- Pakistan violated its obligations under Article 36(1)(b) of the Convention as it failed to inform Jadhav of his rights and did not notify Indian authorities about his detention without delay;
- Pakistan violated its obligations under Article 36(1)(a) and (c) as it did not permit India to communicate and have access to Jadhav.
Further, providing appropriate remedies for the above violations, the ICJ stated that Pakistan is obligated to inform Jadhav of his rights, grant India with consular access to Jadhav without any delay, and effectively review and reconsider Jadhav’s conviction and sentence while continuing stay on the execution. Recently, Harish Salve, India’s counsel on the case, stated that India may have to approach the ICJ again for further directions as Pakistan has failed to comply with the verdict of the court and has not provided consular access.
Though the Convention addresses various aspects of consular relations, the most litigated issues are those of consular immunity and right to consular notification and access. Since Article 36 of the Convention does not expressly provide for any specific remedies for its violation, most claims under the Article fail. Moreover, it can be observed from cases like Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) that courts are reluctant to read a remedy into the Conventions provisions in absence of a constitutional violation.
At the same time, in Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 and LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466, the ICJ held that in each Article 36 violation, “review and reconsideration” of both the conviction and sentence must be provided. But the ICJ failed to answer the questions relating to burden of proof, factors to consider during review and reconsideration, etc., leaving it to the courts to interpret.
In codifying the “consular functions” principle, the Vienna Convention highlighted the basic difference between consular and diplomatic immunities i.e., consular personnel enjoy immunity from legal process only in respect of official acts, whereas diplomatic agents have full personal inviolability and immunity from legal process. The structure of the Convention when compared with the Vienna Convention on Diplomatic Relations, 1961 indicates the limited scope of consular immunity. However, the immunity granted under the Convention has been interpreted differently by different courts owing to lack of guidance in the Convention on the scope of the immunity granted.
On the one hand, while reading Articles 5 and 43 broadly, courts in cases like Heaney v. Spain, 445 F.2d 501 (2d Cir. 1971) have interpreted consular immunity broadly. Whereas on the other hand, focusing on the principle of non-interference of Article 55, courts in cases like Gerritsen v. de la Madrid Hurtado have adopted a narrow and restrictive interpretation. Such excessively broad or narrow interpretations do not reflect the functional basis of consular immunity envisaged in the Convention and hence, fail to protect interests of the States.
On analysis of the overall structure of the Convention and study of its key provisions, the scope of consular immunity can be ascertained by courts by applying principles of functional necessity and balancing of interests. Scope of consular immunity, therefore, is to be interpreted in light of the functional necessity theory adopted in the preamble, while ensuring striking a balance between interests of sending and receiving States as embodied in Articles 5 and 55.
The Vienna Convention on Consular Relations codified years of consular practices based on customary law and bilateral consular conventions to clarify consular relations law and promote friendly relations between States. It also laid down the law in regards to honorary consuls. While the Convention has successfully raised awareness on the right to consular notification and need for consular assistance, its implementation remains disappointing in terms of remedies for the violations of the Convention.
The ICJ, however, has stepped in to address these inconsistences by interpreting the provisions to clarify their scope in terms of enforcement and remedies available. Though, there are uncertainties in interpretation of scope of consular immunity, the same can be resolved through a functional approach to balance competing interest of both States.
Author: Priyanshi Rastogi from Symbiosis Law School, NOIDA.
Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.