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Part

II Consular Relations in General, 4 Consular


Relations and Consular Posts
From: Consular Law and Practice (3rd Edition)
Luke T. Lee, John B Quigley
Content type: Book Content
Published in print: 03 July 2008

Product: Oxford Scholarly Authorities on


International Law [OSAIL]
ISBN: 9780198298519

Subject(s):
Consular relations Privileges Diplomatic immunity Diplomatic relations United Nations (UN)
North Atlantic Treaty Organization (NATO) International Law Commission (ILC) European Union (EU)
UN Charter Gross violations European Court of Human Rights (ECHR)

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(p. 41) 4 Consular Relations and Consular Posts


1. General
When diplomatic functions were strictly separated from those of consuls, the establishment of
consular relations was equivalent to permission to establish consular posts. The recent trend
towards permitting diplomatic missions to perform consular functions as well, now expressly
sanctioned by both the VCDR1 and the VCCR,2 has served to disconnect the two matters: it is now
possible to establish and maintain consular relations without a consular post. The position is the
same under the VCDR, where Art. 2 makes clear that the establishment of diplomatic relations and
the opening of permanent missions are quite distinct.3 In the consular relations sphere the practice
of maintaining relations without posts is, however, much more common. Communist States, for
example, concluded many bilateral consular treaties with each other but exchanged few consular
posts.4 The VCCR recognises consular functions as subject to being performed by a consular
section within an embassy.5 Some domestic statutes reflect this practice. Thus, the Kazakhstan
Consular Statute, in enumerating the types of Kazakhstan consular establishments, lists consular
sections of diplomatic missions along with consulates-general, consulates, vice-consulates, and
consular agencies.6

References

(p. 42) 2. Consular Relations between Commonwealth Countries


While in Commonwealth relations the position of a High Commissioner is analogous to that of an
Ambassador, a Deputy High Commissioner in a post outside the capital city is in effect a ConsulGeneral. However, such an official is considered a member of the High Commissioners staff
detached for local service and therefore retains diplomatic privileges and immunities. This resort to
Deputy High Commissioner instead of consul in Commonwealth relations stems from the concept
that citizens of one Commonwealth country living in another should look to the government of the
latter for assistance and protection. As Satow noted:
Consular functions, and likewise consular titles, were deemed unsuitable to the
Commonwealth relationship. Thus, in those Commonwealth countries (as previously in
Pakistan), where the interests of Britain dictated the need for a presence outside the
capital, for example in Canada, Australia, New Zealand, India or later in the Federal
Republic of Nigeria, British representatives were, with the agreement of the receiving
member country styled variously as Deputy High Commissioner or Senior Trade
Commissioner.7
With the growth in Commonwealth membership, the issue of consular relations was raised by New
Zealand in 1970. At a conference of senior Commonwealth officials in London two years later,
consensus was reached that consular appointments be considered an acceptable practice. For its
part, the British Government announced its readiness to consider proposals from other
Commonwealth governments for the establishment of consular relations. As a result,
understandings were reached with Canada, Australia, and New Zealand for the transformation of
diplomatic posts outside the capitals into consulates-general without, however, the extension of
consular functions beyond what they were empowered to perform, such as trade, welfare, and
immigrationalready assigned to such officials as Trade Commissioners, Immigration Officers, and
Assistant Commissioners. These latter officials were accorded in the United Kingdom privileges and
immunities on the consular scale under the Commonwealth Countries and Republic of Ireland
(Immunities and Privileges) Order 1971.
Some Commonwealth countries began to exchange consulates and to send consuls to the UK.8
9

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Section 13 of the Consular Relations Act 19689 made legislative provision for the appointment of
consular officers by the UK in Commonwealth

References
(p. 43) countries and by Commonwealth countries in the UK. In certain Commonwealth countries,
the UK continued to use the title of Deputy High Commissioner for diplomatic officers located
outside capital cities.10

3. Criteria for Establishing Consular Posts


VCCR Art. 4(1) provides: A consular post may be established in the territory of the receiving State
only with that States consent. Until the principle of parity emerged in the 1930s, such consent
had been freely given if a genuine need existed for a consular post.11
There were exceptions, to be sure, to automatic consent to requests to open consulates. For
example, more than 400,000 Chinese living in French Indo-China in the 1920s12 were denied
Chinese consular protection. Only in 1930 was a Sino-French Convention signed giving China, for
the first time, the right to establish three consulates in French Indo-China.13 Five more years
elapsed before the Convention became effective.14 Art. 3 of the Convention provided:
Consulsthe Chinese Government may send consuls to French Indo-China, in the towns of
Hanoi, Haiphong and Saigon, and the French Government may continue to send consuls to
the localities mentioned in the previous Article. The heads and administrators of consulates
and vice-consulates and the agents of the consular services must be nationals of the
country which appoints them. They shall not engage in trade or industry.15
The Zourek Report found it unlawful for a State systematically to deny another States requests to
establish consulates:
A State may refuse to receive consuls and give preference to the immediate establishment
of diplomatic relations. It may also require consular relations to be arranged in accordance
with certain rules governing, for example, the number of consulates and the area of the
districts they serve.
However, systematic refusal by a State to accept the establishment of consular relations
with one or more other States at peace with it is to be considered as contrary to the
fundamental principles of international law and, in particular, when Members of the United
Nations are concerned, to Article 1, paragraph 3 of the Charter of the United Nations, which
lays on such States the duty of achieving international co-operation in solving international
problems of an economic, social, cultural or humanitarian

References
(p. 44) character. The establishment of diplomatic and consular relations is undoubtedly
the first condition to be fulfilled, and diplomatic and consular missions are the main means
to that end.16
There have been instances where no genuine need existed, but the receiving State was powerless
to refuse a request to establish consulates. During the Italian-Ethiopian dispute in 1935, the
Ethiopian Delegation to the League of Nations accused Italy in the following terms:
Italy has, for military purposes, and through the establishment of consulates in districts
which have no other importance than a strategical one for the penetration and invasion of
Ethiopia, made an utterly abusive use of an institution which, as shown in the history of

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international law, was only accorded its privileges and immunities for purposes of peaceful
penetration and expansion of trade.
At places where there is not a single Italian national, a consul establishes himself in an area
known as consular territory with a guard of about ninety men, for whom he claims
jurisdictional immunity. This is an obvious abuse of consular privileges.
The abuse is all the greater in that the consuls duties, apart from the supplying of
information of a military character, take the form of assembling stocks of arms, which
constitute a threat to the peace of the country, whether from the internal or the
international point of view.17
Among the divisive problems between China and Japan in Manchuria were the presence of
Japanese consular police and the legal status of Korean settlers in China. China questioned the
legal basis for stationing Japanese consular police in Manchuria. Japan insisted that the consular
police were an essential arm of consular courts authorised under the extraterritorial system. As for
the Korean settlers, China maintained that they were Chinese citizens by birth, whereas Japan
claimed that all Koreans possessed Japanese citizenship on the basis of jus sanguinis by virtue of
Japans annexation of Korea.
At Wanpaoshan, a dispute arose in the spring of 1931 between Chinese and Korean farmers over
the Koreans right to construct an irrigation ditch across the lands of the Chinese. Armed conflicts
developed when Chinese police appeared at the scene to protect the Chinese, and Japanese
consular police arrived to protect the Koreans. Exaggerated accounts of the incident led to antiChinese riots in Korea, resulting in Chinese casualties and property damage. These in turn
precipitated a boycott of Japanese goods in China and led to the bombing of a Japanese railway in
Manchuria that Japan used as a reason to occupy Manchuria and establish the puppet State of
Manchukuo.18
If the sending and receiving State differ on the genuine need for a consular post, the decision rests
with the latter. This position is reflected in VCCR Art. 4(1). (p. 45) For example, in 1963, the United
States requested French permission to reopen its consulate in Papeete (capital of Tahiti and French
islands in the South Pacific), which had been closed since 1948. In rejecting the request, French
officials stated only that France did not regard as indispensable the granting of the request.19
The possibility of defining genuine need was considered in 1985 by the US Department of State in
light of the high number of consular posts in the United States: 502 posts headed by career
consuls, and 1,012 posts headed by honorary consuls. Demands were high on law enforcement
agencies to protect consular premises, and the US Congress was anxious to limit the number of
persons entitled to privileges and immunities, as manifested in the Diplomatic Relations Act of 1978
and the Foreign Missions Act of 1982. On 27 February 1985, the Secretary of State sent identical
notes to the Chiefs of Mission in Washington stating that a written justification should accompany a
request to establish a consular post, or to continue an existing post. A request would need to
include:
1. The degree and significance in the consular district of features of economic, commercial,
scientific, cultural, or educational interest to the sending State;
2. The need in the consular district to render assistance to sending-State nationals and to
foster cultural or ethnic ties with the local population;
3. The need in the consular district to process visa and passport requests;
4. The need in the consular district for supervision or inspection of sending-State vessels or
aircraft;
5. The size and location of the consular district, its classification (consulate-general,
consulate, vice-consulate), the location of the proposed or existing consular establishment,
the proximity to other consular posts maintained by the sending State, the proposed

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jurisdiction of the post and the possibility of consolidation.


In reviewing the appointment of honorary consuls, the Department requested a statement of the
precise anticipated duties:
The number of nationals of the sending State or their descendants living in the area;
An approximation of the number of applications for passports, visas, work and residence
permits which the honorary consul would process;
Whether and to what extent there is a need to inspect vessels or aircraft there;
A statement of the amount of trade or cargo passing through the area from the sending
State;
Whether and to what extent there is scheduled airline or vessel transportation between the
area and points in the sending State;

References
(p. 46) Whether and to what extent there are ties between cultural, scientific, or
educational institutions in both areas;
Whether and to what extent there are students from the sending State studying in the
area;
Whether and to what extent there are medical facilities frequented by nationals of the
sending State;
Whether and to what extent there is a sister city or other similar arrangement between the
area and a city or cities in the sending State;
Whether and to what extent officials from the sending State travel to the area for business,
trade, or cultural purposes;
Whether and to what extent businesses in the area transact business with, or have offices
in, the sending State;
Whether and to what extent businesses from the sending State are located in the area.
Occasionally, a receiving State may be eager to give consent to a consular post in its territory
because of actual need, but the sending State, for political or economic reasons, may decline. For
example, prior to the British recognition of the Government of the Peoples Republic of China in
January 1950, the previous Nationalist Government consistently declined overtures to establish a
consulate-general in Hong Kong, where more than 90 per cent of the population were Chinese, in
order to avoid recognising Hong Kong as a British colony. Instead, it established a Hong Kong
Office of the Commissioner for Kwantung and Kwangsi of the Ministry of Foreign Affairs, which in
substance was a consulate-general. Between 1950 and 1984, the Peoples Republic of China
established neither a consulate-general nor a Commissioners office in Hong Kong. The UK-China
Consular Agreement of 1984 provided for a Chinese consulate in Manchester, but not in Hong
Kong.20 Similarly, in Macao, Chinese territory under lease to Portugal until 1999,21 there was never
a Chinese consulate. A Commissioners office maintained by Taiwan was closed in March 1965
because of alleged illegal activities.22
States typically establish consulates based on need. Mexico maintained forty-seven consulates in
the United States as of 2007, owing to the large number of Mexican nationals present there as
temporary or long-term workers.23 Spain expanded its consulates in the first decade of the twentyfirst century in countries from which Spain receives large numbers of immigrants.24

References

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(p. 47) Reasons of economy have led States to be cautious in opening consulates, and to monitor
existing consulates to ensure continued need. In 1963 the United States closed its ConsulateGeneral in Geneva for reasons of economy, despite the presence of 6,000 Americans living in the
Geneva area, and of the European Office of the United Nations, many of whose officials frequently
applied for US visas in connection with their duties at UN Headquarters in New York. The
Department of State entrusted the visa task to a branch of the US Embassy in Geneva.25
The proliferation of States in eastern Europe in the 1990s created a need for more consulates and
led some States to consolidate or eliminate existing consulates, to make up the difference. In 1998,
the UK Foreign and Commonwealth Office undertook an analysis of its consulates around the world
to identify those whose operation might no longer be justified. At the same time, it explored
increasing consulates in what the UK viewed as emerging markets, as a way of supporting British
exports.26
Seeking greater efficiency, the United States began establishing, at the turn of the twenty-first
century, what it termed American presence posts, small offices at previously unserviced locations.
These were to be consulates, but with limited functions: a special purpose post with limited staffing
and responsibilities. It is established as a consulate under the Vienna Convention.27 The US
mission in France, for example, established presence posts in Bordeaux, Lille, Lyon, Rennes, and
Toulouse, using personnel and materiel already allocated for France.28 At the same period, the
United States began to establish what it termed virtual presence posts, websites oriented to a
region in which it had no physical presence. It began with such posts for remote regions of Russia
but expanded to include regions worldwide. As of 2007, it had such websites, for example, for the
South Island of New Zealand, and for the Gaza Strip.

4. The Principle of Parity


A concept that continues to be invoked by some States in their consular relations is the principle of
parity, a reflection of the idea of reciprocity. The principle has its origin in Soviet practice. In the
late thirties the Soviet Union began to insist that the number of consular posts established by any
State in its territory should (p. 48) be equal to what it maintained in that State.29 The principle was
later expanded to cover also the size of the diplomatic or consular staff.
The Soviet Government cast a suspicious eye on consuls stationed in Soviet territory. In a speech
before the Supreme Soviet on 17 January 1938, Leningrad Communist Party Secretary Andrei
Zhdanov complained:
We in Leningrad have a great many consuls of various foreign Powers. Almost every
foreign Power has a consul in Leningrad; and I must say that some of these consuls clearly
go beyond their powers and duties and behave in an illegal fashion, engaging in activities
prejudicial to the people and country to which they are accredited.
It is also a fact that the U.S.S.R. has fewer consuls abroad than foreign countries have
here. And I ask, why is this so? Why does Narkomindel [Commissariat of Foreign Affairs]
tolerate a state of affairs in which the number of consuls representing foreign Powers in the
U.S.S.R. is not equal to but greater than the number of consuls representing the U.S.S.R. in
foreign countries? Is not equality of consular representation consistent with the power and
might of our great socialist country?30
Commenting on Zhdanovs speech, Prime Minister Vyacheslav Molotov said:
It is true that we have had a superfluity of foreign consulates in the U.S.S.R. representing
States which are not in any way entitled to a special position or special privileges in
comparison with other States. Certain States, some of which cannot be regarded as friendly
to the U.S.S.R., had many more consulates here than we had in their countries. What for?
It is also true that certain foreign consuls engaged in illegitimate activities here, in

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unfriendly, anti-Soviet activities not unlike espionage or sabotage. This can certainly no
longer be tolerated. To make this perfectly clear I must report that certain steps have
already been taken. A couple of Japanese consulates have been closed, in Novosibirsk
and Odessa, and a couple of Polish consulates in Kharkov and Tbilisi. Five German
consulates have been closed, in Leningrad, Kharkov, Odessa, Tbilisi, and Vladivostok. This
was effected by 15 January. A number of other consulates are also due to be closed,
representing Italy, Iran, Turkey, Afghanistan, Latvia and other countries.31
Germanys ambassador attributed parity to espionage psychosis and to a desire to keep the
Soviet Union isolated.32 More than thirty consulates of fourteen countries were closed.33 In the
case of the Afghan and Norwegian consulates, their closure violated treaty obligations.34 The
Soviet Government closed a number of Soviet consulates in Afghanistan, Iran, and Turkey to justify
reducing, by the parity principle, the number of Afghan, Iranian, and Turkish (p. 49) consulates in
the USSR.35 In two instances, the Soviet Government did not insist on parity, allowing China 10
consulates and letting Manchoukuo keep consulates in Blagoveshchensk and Chita.36
The Soviet Government did not always apply parity in reverse. It maintained three consulates in the
United States, while the United States had none in the Soviet Union. After the Second World War,
there were two Soviet consulates in the United States (New York and San Francisco), while the
United States maintained one (Vladivostok), with another one scheduled to open in Leningrad. The
three consulates were closed and the authorisation for the fourth rescinded in the aftermath of a
dispute in 1949 over the immunities of the Soviet Consulate-General in New York.37
Following the US-Soviet Consular Convention of 1964, the Soviet Union reopened its consulate in
San Francisco, in 1970, in exchange for the establishment of a US consulate in Leningrad.38 An
expanded consular exchange was planned at the end of President Nixons visit to Moscow on 3
July 1974, when the United States and the Soviet Union issued the following joint communiqu:
Taking into consideration the intensive development of ties between the US and the USSR
and the importance of further expanding consular relations on the basis of the US-USSR
Consular Convention, and desiring to promote trade, tourism and cooperation between
them in various areas, both sides agreed to open additional consulates general in two or
three cities of each country.
As a first step they agreed in principle to the simultaneous establishment of a United States
Consulate General in Kiev and a USSR Consulate General in New York. Negotiations for
implementation of this agreement will take place at an early date.39
The proposed consulates were established only in 1991. In July 1966 Soviet Foreign Minister Andrei
A. Gromyko and his Japanese counterpart, Etsusaburo Shiina, agreed that the signing of the JapanUSSR Consular Convention on July 29 would be followed by a working level conference to establish
a Soviet consulate in Osaka and a Japanese consulate in Nakhodka.40
The Peoples Republic of China also applied parity. Two Chinese consulates operated in India
(Calcutta and Bombay), while two Indian consulates operated in China (Lhasa and Shanghai). All
were closed in 1962 when relations deteriorated as a result of border disputes.41
In notes exchanged in Ottawa on 25 August 1980 between the Minister of Industry, Trade and
Commerce of Canada and Vice-Premier Bo Yibo of the State

References
(p. 50) Council of the Peoples Republic of China, the following Understanding was recorded:
China might establish Consulates-General in Toronto and Vancouver, with consular districts
covering the Provinces of Ontario and British Columbia, respectively. Canada might establish
Consulates-General in Shanghai and Guangzhou, with consular districts covering the Municipality
of Shanghai and the Provinces of Jiangsu and Zhejiang, for Shanghai, and the Provinces of

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Guangdong and Guangxi Zhuang Autonomous Region, for Guangzhou. Embassy officials of both
countries responsible for consular affairs would be authorised to perform consular functions
throughout the territory of the receiving State, including any territory falling within the consular
district of a Consulate-General of the sending State.42 This provision was typical of other Chinese
consular conventions, whereby the seat of consulates in China and precise delimitation of consular
districts was specified, even where the practice of the other party was to leave such matters to
subsequent determination.43 Where one of the States had no immediate plan to establish a
consulate in the territory of another, parity might mean permitting the former to establish in the
future a consulate in the territory of the latter at a place to be agreed upon.44
Iran invoked parity against the UK in 1952, when, at a time of deteriorating relations, it closed all
British consulates in its territory on the ground that Iran had no consulate in Britain. The UK
objected, citing Article IX of the Anglo-Iranian Treaty of 4 March 1857, which provided that, in the
establishment and recognition of consuls, each State should enjoy most-favoured-nation treatment.
Thus, according to the UK, Iran was free to establish as many consulates as it wished in places
where other consulates already existed, and the UK should be permitted to retain its consulates in
Tabriz, Meshed, Kermanshah, Isfahan, and Khorramshahr, though not in Ahwaz, Resht, and
Bushire. Irans demand that all British consulates be closed was regarded by the UK as a breach of
treaty and a violation of international practice and of all canons of conduct between State and
State.45
The States emerging from the Soviet Union invoked parity as they established consulates in each
others territory. The Russian Federations request to open a consulate in the Lithuanian city of
Kaunas was considered by Lithuania in light of the parity principle.46 When Lithuania sought to
establish a consulate in the

References
(p. 51) Russian Federation city of Kaliningrad, the Russian Federation asked to open a new
consulate in Lithuania to maintain parity.47 The Russian Federations request to open a consulate in
the Estonian city of Tartu was refused for a time on the basis of the parity principle.48
Parity came to be invoked as well on the question of the size of combined diplomatic-consular staff.
In a note to the United States on 2 January 1961, Cuba called for a mutual reduction of diplomatic
and consular personnel in each others capital to eleven persons, to be effected within forty-eight
hours.49 At the time the United States maintained a staff of 300 in the United States Embassy and
consulate in Havana, plus a consulate in Santiago de Cuba with a staff of five. Citing the Cuban
demand as calculated in effect to terminate diplomatic and consular relations, the United States
replied by terminating diplomatic and consular relations.50 Thereafter, relations were maintained
through interests sections.51
At times, a receiving State has demanded a reduction in consular representation in response to a
previous demand made on it by the sending State. In 1993, for example, Pakistan asked India to
reduce its consular staff in Karachi, whereupon India asked Pakistan to reduce its staff in New
Delhi.52
A more extended tit for tat reduction played itself out in 1986 between the USSR and the United
States, at a time of deteriorating relations. Less than one week after the collapse of arms talks
between President Ronald Reagan and Soviet leader Mikhail Gorbachev in Reykjavik, the United
States ordered the withdrawal of 25 members of the Soviet UN mission, asserting that they were
intelligence operatives.53 In retaliation the USSR expelled four US diplomats in Moscow and one
consular officer in Leningrad for activities incompatible with their official statusa euphemism for
espionage.54
(p. 52) The United States escalated by ordering 55 Soviet personnelthe largest number ever
expelled from the United Statesto leave the country. Five of these, including one from the Soviet
Consulate-General in San Francisco, were declared persona non grata in direct response to the
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expulsion of five Americans by the USSR. The US expulsion reduced the number of Soviet
personnel at the Soviet Embassy in Washington and Consulate-General in San Francisco to the
number of US officers in Moscow and Leningrada reduction from the previously authorised 320
for the USSR to 251exclusive of 300 Soviet personnel working at the UN Secretariat and 218 at
the Soviet UN mission in New York. Soviet staff size was thereby reduced to 225 at the Soviet
Embassy in Washington, and 26 at the Consulate-General in San Francisco.55
Responding, the USSR expelled five more US officers, one of them a Vice-Consul in Leningrad, and
barred 260 Soviet employees from working for the US Embassy in Moscow. It also placed a limit on
the number of foreign house guests invited by US diplomats and of Americans travelling to Moscow
on temporary assignment each year, and prohibited the hiring of third-State nationals. The reason
for limiting the number of house guests, according to Gennadi I. Gerasimov, the Foreign Ministry
spokesman, was that they often took up work at the Embassy. Mr Gerasimov stated that there were
200 house guests annually and about 500 who came each year for temporary duty. Thus,
according to Mr Gerasimov, any calculation of the number of personnel ought to take into account
the number of guests and temporary-duty officers.56
The withdrawal of Soviet employees from the US Embassy, estimated by US officials as under 200
drivers, translators, cleaners, cooks, maintenance workers, mechanics, secretaries, and clerks,
was expected to have a paralysing effect on the Embassy. Their places would be filled by 80 or
more US support workers. In view of the 251 ceiling placed on US personnel in the Soviet Union, the
number of professional staff was to be reduced by 3040 per cent to fewer than 170.57 By contrast,
the USSR employed only 10 US citizens at its Washington Embassy and would not be adversely
affected.
Canada and the USSR engaged in similar mutual expulsions in 1988. Accusing Soviet officials in
Montreal of industrial espionage, Canada expelled two from the Soviet Embassy in Ottawa and six,
including a consul, from Montreal. Canada also barred the return of nine other officials who had
completed their tours of duty and left Canada. The USSR retaliated by expelling two diplomats from
the Canadian Embassy in Moscow and barring the return of three Canadian officials. Canada
responded by adding two more Soviet officials to its persona non grata list, which prompted the
USSR to declare eight more Canadians persona non grata and to withdraw 25 Soviet staff members
from the Canadian Embassy (p. 53) in Moscow. All told, 32 Soviet and Canadian officials were
expelled or barred from returning.58
At that same period, the UK and Iran engaged in mutual expulsions. In May 1987, Britain ordered
the closing of Irans five-person consulate in Manchester in retaliation for the abduction and
beating of a British diplomat in Tehran. Iran responded by expelling five British diplomats. On 10
June 1987, Britain ordered Iran to reduce its diplomatic presence in London by two.
A Foreign Office statement set a new ceiling of 16 on the Iranian Embassy in London, where there
were 18 then on the staff. The statement also conveyed Britains expectation of full cooperation
from the Iranian authorities in restoring the British Embassys size from the then 14 to an equivalent
level of 16 in Tehran.59
Full diplomatic relations between the UK and Iran were resumed in November 1988. Shortly
thereafter, however, the European Community pulled out its top envoys from Iran to protest an
order of death issued by Ayatollah Ruhollah Khomeini against British author Salman Rushdie, for his
novel The Satanic Verses. At that point, Iran severed diplomatic relations with the UK.60

5. Size of the Staff


VCCR Art. 20 provides:
In the absence of an express agreement as to the size of the consular staff, the receiving
State may require that the size of the staff be kept within limits considered by it to be
reasonable and normal, having regard to circumstances and conditions in the consular

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district and to the needs of the particular consular post.


VCCR Art. 20 is based on VCDR Art. 11(1), which was considered to have formulated a new rule.61
While anchored on the receiving States sovereign right to admit or refuse admission of consuls
into its territory, VCCR Art. 20 is basedand has been appliedalso on the premise that, if staff
size exceeds what is necessary for consular functions, the consulate may be engaging in nonconsular activities detrimental to the receiving State. A case in point was the stationing of an Italian
consul with a 90-man guard in a location in Ethiopia where no Italian nationals lived.62 In the light of
this, the subsequent Italian invasion of Ethiopian could hardly have come as a surprise.

References
(p. 54) VCCR Art. 20 specifies the factors for a reasonable and normal size of consular staff:
circumstances and conditions in the consular district and the needs of the particular consular post.
Since these were discussed under Criteria for Establishing Consular Posts (supra sec. 3), it
suffices to note that VCCR Art. 20 may conflict with the principle of parity, which does not take into
account genuine need.
In 1985 the UK spelt out criteria for the reasonable and normal size of a diplomatic mission, in
response to instances of improper activity at diplomatic missions in London. In its Review of the
Vienna Convention on Diplomatic Relations, the UK Government identified: (a) active involvement in
espionage or terrorism (where the mission has no need of diplomats whose activities are not
properly diplomatic); (b) the pattern of behaviour of certain missions; and (c) a numerical
comparison between the size of a mission in London and that of a UK mission in the country
concerned (recognising that missions in London are often for good reason larger than the
corresponding mission overseas).63 Although the report focused on diplomatic missions, these
same criteria would apply to the size of a consular post.
One way of handling the question of size is to set specific limits by treaty, applying the parity
principle. The Agreement between the United Kingdom and the Peoples Republic of China on the
establishment of a British Consulate-General at Shanghai and a Chinese Consulate-General at
Manchester,64 specified staff size in each post, in Art. 4(1):
Unless otherwise agreed by the Contracting Governments, the number of members of the
consular post shall not exceed the limit of 30 persons, of which that of consular officers
shall not exceed the limit of 10 persons, and that of consular employees and members of
the service staff shall not exceed the limit of 20 persons.

6. Where Sending State is also Receiving State


In at least one instance, a State in administration of dependent foreign territory over which it
retained sovereignty dispatched a consul there. Vice-Consul Henry B. Day was sent by the United
States to the Philippines when a Commonwealth status was arranged for the Philippines in 1933,
with agreement by the United States to extend independence to the Philippines in 1946. Days
authority as consul derived not from the Philippines Government, but from US legislation, the
Philippine Act of 1933, which provided that any Foreign Service Officer may be assigned to duty in
the Philippine Islands, under a commission as a consular officer during which assignment such
officer shall be considered as stationed

References
(p. 55) in a foreign country.65 Although Days duties were confined to immigration laws, his
commission invested him with all the privileges and authorities of right appertaining to that
[consular] office. Days territorial jurisdiction, though not officially defined, was understood to
66

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cover the entire Philippine archipelago.66 Days consular status outside the United States,
however, would have been in doubt. Had VCCR Art. 54 (personal inviolability of a consul in transit
through a third State) been in force, it is not clear whether it would have applied to Day during
travel to and from the Philippines.

7. Consuls for more than One Country


Joint Appointment
A consul may, exceptionally, accept appointment as consul of another State.67 Pre-Vienna practice
found instances of joint appointment. The Netherlands Manual (II-Ch. 9(1)) permitted a consul to
accept such an appointment, subject to the approval of the Queen. At one time a US citizen served
as consul in Chicago for both Costa Rica and Nicaragua.68
VCCR Art. 18 regularised joint appointment, providing: Two or more States may, with the consent of
the receiving State, appoint the same person as a consular officer in that State. Some statutes and
consular regulations indicate that consuls of that State may serve simultaneously as consul for
another State. Thus, the Kazakhstan statute: Performance by a consul of consular functions for
another State may occur only by special order of the Ministry of Foreign Affairs of the Kazakhstan
Republic and with the agreement of the receiving State.69

Protection of Third State Nationals


Even in the absence of a joint appointment, a consul may sometimes act for nationals of a third
State. This may occur in an emergency, like war or severance of relations between the third State
and the receiving State, or when normal relations between these two States have not justified the
exchange of consular representatives.70 Between June 1948 and October 1950, when Germany
had no

References
(p. 56) functioning government, the US Department of State performed consular functions for
German nationals in the United States.71 Such extension of consular functions is sometimes
assured in treaties.72 In their absence, consuls may not carry out such functions without the
consent of the receiving State.73
After the Second World War, consular protection of foreign interests acquired new significance with
the birth of many independent States. In view of the cost of an effective, worldwide diplomatic and
consular service, new States often looked to consuls of friendly States for services to their
nationals. For example, in the 1950s consular services for Libya were provided by Jordan in Spain,
by Lebanon in France and Ghana, by Iraq in Iran and Pakistan, and by the United Kingdom in other
countries.74
Australia arranged to provide consular services within Australia, including the issuing of visas, on
behalf of Antigua and Barbuda, Belize, Commonwealth of Dominica, Gambia, Ghana, Kiribati,
Malawi, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Sierra Leone, Solomon
Islands, and Zimbabwe.75
In a number of States lacking a Canadian representative, UK consuls have extended emergency
consular services to distressed Canadians, including:
(a) the issuance to a Canadian, identified as a citizen of a Commonwealth country, of a
British passport of limited duration, or a UK emergency passport for travel to a specific
destination.
(b) advice and assistance to Canadians arrested and detained, often at the request of the

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responsible Canadian mission; and


(c) financial relief and repatriation assistance to distressed Canadians, on the request of the
responsible Canadian mission. 76
The United States, in assisting nationals of other States, distinguishes between the exercise of
informal good offices and the assumption of a more formal representation of interests.77
Arrangements for US representation of foreign interests are customarily made through diplomatic
channels. Where US consular posts are approached directly for such arrangements, they are
instructed to suggest that a formal request be addressed to the US Government through the
diplomatic (p. 57) channel and, at the same time, to report the matter fully to the Department of
State, including information on the following:
(1) The form of protection requested, ie good offices, formal representation, or some
specialised type of protection such as invoice services;
(2) The specific area in which the foreign power seeks protection and the approximate
volume and nature of protection work that the foreign power wants the United States to
perform;
(3) The origin of the request (whether made at the direction of the power desiring protection
or on the initiative of the diplomatic or consular representative making the request).
(4) Posts opinion regarding the advantages or disadvantages of complying with the
protection request, emphasising in particular any political considerations which might make
the protection in question inadvisable to the Department.
(5) Whether post believes the local power will agree to, or acquiesce in, the request.
(c) Upon receipt of the report, the Department, if convinced of the urgency of the situation,
may authorise the provisional exercise of protection pending the receipt of a formal request
from the protected power. 78
Actual protection of foreign interests is not to be assumed by US consuls without prior authorisation
from the Department except in extreme emergencies,79 as well as notification to the receiving
State, which may withhold its consent to the exercise of such protection.80 The tacit acquiescence
of the receiving State may be presumed in the absence of specific objection.81 The area and
scope of protection are determined by agreement between the United States and the protected
power.
Lest there should be any illusion that consuls would act as officials of the protected power, the US
Manual directs consuls to communicate only with the Department of State, which alone forwards
their reports to the protected State and ascertains the services desired.82 Consuls are prohibited
from performing for a protected power any duty that involves the acceptance of its office, the
display of its coat of arms or flag, the employment of its seal, or the rendering of any service
detrimental to US interests.83 Nor are they authorised to apply or interpret directly the laws and
regulations of the protected power governing the performance of services on behalf of such
power.84
Passports are not to be issued to nationals of the protected power, but the post may receive
passport applications if this function is provided for in the agreement with the protected power.85

References
(p. 58) As for the representation of US interests by third States, the US Manual provides the
following procedure:
When the United States decides to withdraw its representation from a country, the
Department may request a friendly third country to take over the protection of US interests.

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The Department normally sends a request through the US mission in the third country,
either shortly before or immediately after a break in relations. The Department, upon
receiving the assent of the protecting power, sends appropriate instructions to the officers
concerned, through the Departments channels, if possible, or through the facilities of the
protecting power.86
Once a third State has consented to serve as a protecting power, the US principal officer is
to turn over the facility, after first inventorying items being entrusted, and after destroying
sensitive items. The principal officer is to arrange for the termination of employment of
locally hired staff, and may turn over surplus cash funds to the protecting power to handle
US interests.87
The United States typically does not ask a protecting power to issue visas but would inform
it of which services to perform. These might include protecting US nationals, reporting the
deaths of US nationals and assisting in regard to their estates, accepting applications for
US passports, notarising documents to be used in the United States, or distributing US
government funds to beneficiaries.88

Protection by an Interests Section


When diplomatic relations are suspended, a sending State may arrange for its nationals to be
protected by an interests section established for that purpose in the consulate of a third State.89
Iran, for example, arranged with Algeria for the establishment of an Iranian Interests Section in the
Algerian Embassy in Washington DC to look after Iranian nationals in the United States. Cuba
similarly arranged with Czechoslovakia for a Cuban Interests Section in the Czechoslovak
Embassy in Washington DC. Switzerland later replaced Czechoslovakia in performing this role for
Cuba.90
Following its break of diplomatic relations with Iran in 1989 over the Salman Rushdie affair, the
United Kingdom arranged for Sweden to look after UK nationals in Iran, under an agreement that
spelled out Swedens role. The agreement between the UK and Sweden concerning the Assumption
of Responsibility for the Protection of the Diplomatic and Consular Interests of the United Kingdom
Government in the Islamic Republic of Iran by the Government of

References
(p. 59) the Kingdom of Sweden of 27 July 1989 (UK Treaty Series No. 45 (1989)) served until Britain
re-established diplomatic relations with Iran eighteen months later, in 1990. By this arrangement
Sweden agreed to perform consular services, while the UK agreed to reimburse it for expenses it
might incur. Sweden was to take over UK bank deposits in Iran.91
In Tehran and Havana, the US Interests Sections of the Swiss Embassies assumed responsibility for
US interests in Iran92 and Cuba,93 respectively. These interests sections were staffed by officials of
the protected powers, by personnel of the protecting power, and by locally hired persons.94
International practice is scant on the legal responsibility of a protecting State for consular acts
performed on behalf of a protected State. In 1918, after a British force moved to Baghdad to
prevent German and Turkish forces from entering Mesopotamia, it arrested Julien Chevreau, a
naturalised Frenchman, on suspicion of spying. He was later hospitalised and then repatriated to
France in 1919. Chevreau sent books and notebooks to the British Vice-Consul in the latters
capacity as a representative of the French Consulate. When the Vice-Consul lost the books and
notebooks, France brought a claim against Britain that went to arbitration. The Arbitrator held, The
British Government could not be held responsible for a negligence of which its consul, acting as the
representative of the consulate of another nation, might have been guilty.95

Sharing of Consular Services


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Within the British Commonwealth the sharing of consular officers or the exercise of consular
functions on behalf of another Commonwealth State is common. The United Kingdom carries out
consular functions for other Commonwealth States, particularly for smaller States whose own
consular representation abroad is limited.96 The UK undertook to perform consular services for Sri
Lanka nationals in States in which Sri Lanka had no representative.97

References
(p. 60) At a meeting of the Heads of Government of the Commonwealth Countries in Nassau in
1985, the following recommendations were approved to improve efficiency:
1. The Secretary-General should designate a Consular Relations focal point in the
Commonwealth Secretariat; and
2. The Secretariat should produce a manual on Commonwealth consular relations in looseleaf form.
In 1986 the Secretary-General asked the Secretariats International Affairs Division to prepare a
manual. The resultant Manual shows the following instances of consular co-operation between
Commonwealth countries. In 1975 Australia agreed to perform consular service for Papua New
Guinea nationals overseas in States in which Papua New Guinea had no diplomatic or consular
representation.98 In 1984 Australia agreed to issue visas for persons wishing to travel to New
Zealand from Argentina.99 Dominica made reciprocal consular arrangements with Belize.100
Another example is a Canada-Australia Agreement concerning the Sharing of Consular Services,
under which each State agreed to provide consular services for nationals of the other at
designated locations at which one had a consular post, but the other did not.101 The Agreement
provided:
1. Each Implementing Department [the Department of External Affairs in the case of
Canada and the Department of Foreign Affairs in the case of Australia] shall provide
such consular services to nationals of the other country in such certain locations
and under such conditions as are mutually arranged from time to time in a
Memorandum of Understanding concluded between the Implementing Departments.
2. For the purpose of the Crown Liability Act, Australian personnel acting for Canada
under the Memorandum of Understanding shall be considered as acting as agents for
the Government of Canada.
3. In the event that a claim is made against either Government or its personnel
arising out of the performance of this Agreement:
(a) the Government which obtains notice of this claim shall promptly inform the
other Government; and
(b) the two Governments shall consult at the request of either with a view to
the defence or settlement of the claim; and
(c) each Government shall render all reasonable assistance to the other
Government in the defence or settlement of the claim.
4. The Government on whose behalf the other Government or its personnel are
acting shall indemnify the other Government and its personnel against all financial
loss, damages and costs in consequence of the defence, settlement or payment of
any claim against the other Government or its personnel arising out of the
performance of this Agreement and shall generally hold such other Government and
its personnel

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References
(p. 61) harmless. The obligation under this paragraph shall not apply to punitive or
exemplary damages against the other Government or its personnel. 102
In a further memorandum, Canada and Australia specified the consular services to be carried out
by consuls of the one State for nationals of the other:
a) intervention in the case of arrest or detention;
b) intervention to assist victims of crime and/or accidents;
c) assistance on international child abduction/custody cases;
d) relief, financial assistance and repatriation (services provided on a recoverable
basis), including intervention in the case of deportation;
e) assistance in the case of illness and hospitalisation, including arrangements for
the payment of medical and hospital accounts (services provided on a recoverable
basis);
f) issue of emergency travel documents in accordance with paragraphs 8 and 10;
g) assistance with arrangements regarding the deaths of citizens including local
burial or shipments of the remains;
h) assistance relating to lost or stolen property enquiries;
i) assistance relating to local enquiries regarding the whereabouts of nationals of the
other country;
j) assistance relating to the emergency evacuation of nationals;
k) local registration of nationals of the other country;
l) retention of private mail on behalf of travelling citizens, if the responsible mission
already does this for its own citizens;
m) passing on requests for information and services not covered in subparagraphs
(a) to (l) to the supervising mission; and
n) reporting monthly to respective Departments statistics showing time spent on
items (a) to (k) and including general inquiries received by telephone or over the
counter. 103
Each Department was to assume the costs of its own administrationcommunications, salaries,
travel, and overtime costs of both headquarters and local personnelbut would reimburse the
other for funds provided to or expenses incurred on behalf of consular clients.104 A schedule
attached to the memorandum showed the consular areas and their responsible and supervising
missions (see Table 1).105
These examples of sharing of consular representation show a replacement of the former reliance
on the United Kingdom by shared responsibility among

(p. 62) Table 1. Schedule of Consular Areas and their Responsible


and Supervising Missions
Part 1 Canada
Canadian Responsible Missions

Consular Areas

Australian Supervising Missions

Abidjan

Ivory Coast

Accra

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Part 1 Canada
Canadian Responsible Missions

Consular Areas

Australian Supervising Missions

Addis Ababa

Ethiopia

Nairobi

Algiers

Algeria

Paris

Bamako

Mali

Accra

Caracas

Venezuela

Brasilia

Dakar

Senegal

Accra

Guinea
Gambia
Damascus

Syria

Cairo

Dar-es-Salaam

Tanzania

Nairobi

Guatemala

Guatemala

Mexico City

Havana

Cuba

Mexico City

Kabul

Afghanistan

Islamabad

Kinshasa

D.R. Congo

Harare

Niamey

Niger

Accra

Ouagadougou

Burkina Faso

Accra

Quito

Ecuador

Santiago de Chile

Rabat

Morocco

Paris

San Jose

Costa Rica

Mexico City

San Salvador

El Salvador

Mexico City

Tunis

Tunisia

Cairo

Yaounde

Cameroon

Accra

Part 2 Australia
Australian Responsible
Missions

Consular Areas

Canadian Supervising
Missions

Apia

Samoa

Wellington

Denpasar

Bali

Jakarta

Nusa Tengarra Barat


Dili

East Timor

Jakarta

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Part 2 Australia
Australian Responsible
Missions

Consular Areas

Canadian Supervising
Missions

Honiara

Solomon Islands

Canberra

Honolulu

Hawaii

San Francisco

Noumea

New Caledonia

Canberra

French Polynesia

Wellington

Nukualofa

Tonga

Wellington

Phnom Penh

Cambodia

Phnom Penh

Pohnpei

Micronesia

Canberra

Marshall Islands
Palau
Guam
Commonwealth of Northern Marianas
Islands
Papua New Guinea

Canberra

Port Vila

Vanuatu

Canberra

Rangoon

Myanmar

Bangkok

Suva

Nauru

Canberra

Tarawa

Kiribati

Wellington

Vientiane

Laos

Bangkok

References
(p. 63) Port Moresby

Commonwealth States, which have taken this approach in the light of increased tourism and
international commerce.
An example outside the Commonwealth for the sharing of consular services is a communal
consular office established in Oaxaca, Mexico, by Canada, France, the Federal Republic of
Germany, Italy, Spain, and the United States. This office has been described as follows:
The office is staffed by one multilingual permanent secretary, and the consular
representative of France and the USA spend a few hours each day in the office. The office
is available for use by the other consular representatives at any time, and the secretary
acts as an information and contact centre for the countries involved, calling in the
appropriate consular representative as the cases require. The experiment has so far
provided an effective and low-cost means of extending, through a single office, consular
assistance to the citizens of the six countries in an ever busier Mexican tourist town.106

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Such bilateral or multilateral sharing of consular services has much to commend it by way of
efficiency. Estonia by statute provides for the possibility of arranging shared services:
In a foreign State where Estonia does not have a representation, the representation of a
third State may provide consular assistance to Estonian nationals on the basis of an
international agreement and with the consent of the receiving State. A representation of
Estonia may provide consular assistance to nationals of a third State on the basis of an
international agreement and with the consent of the receiving State.107
Brazil and Portugal agreed by treaty to provide consular protection for each others nationals in
locations in which one has a consular post, but the other does not. Specific locations were
identified by the two governments.108 Lithuania and

References
(p. 64) Spain arranged that Spain would provide consular representation for Lithuania in Brazil,
while Lithuania would provide consular representation for Spain in Georgia. Norway and Sweden
share consular services in some countries. The European Union coordinates consular efforts to
assist EU nationals in emergency situations.109 In July 2006 the EU evacuated EU (and non-EU)
nationals from Lebanon during hostilities there. EU consuls assisted nationals of other EU States
during the southeast Asian tsunami of 2004.110
Beyond emergency situations, the EU practices the sharing of consular services for routine
consular assistance. The Consolidated Version of the Treaty Establishing the European Community
moved in the direction of a common European citizenship, with provision of consular services:
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State.111 Since in
only a few countries did all EU member States have consulates, this procedure opened up consular
protection to many EU citizens in countries in which it was previously not available to them.112 The
European Commission aggressively implemented joint provision of consular services by urging EU
member States to coordinate consular protection efforts, and to make the availability of joint
consular protection known to EU citizens.113
Some EU member States provide in their consular legislation that their consuls will assist other EU
member State nationals, in accordance with this EU policy. Thus, Estonia provides:
A mission of the Republic of Estonia shall protect the interests of a European Union national
with the consent of the receiving State if the Member State of the European Union of which
the person is a citizen does not have a mission in the receiving State.114

8. Absence of Diplomatic Relations


Just as consular relations may subsist without consular posts, so diplomatic relations may exist
without diplomatic missions. The separability of diplomatic relations from diplomatic posts, justifiable
under VCDR Art. 2, is founded on State practice. For political or economic reasons, States often
choose not to

References
(p. 65) establish high-cost permanent diplomatic missions, but rather, when occasion demands, to
conduct diplomatic relations through diplomats based in third States,115 consular posts,116 the
United Nations,117 or special missions.118
The question arises, however, as to what becomes of consular relations between States that sever
119

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diplomatic relations. In earlier times, with only a few exceptions,119 severance of diplomatic
relations between States was accompanied by severance of consular relations, since the latter
relations were regarded as subsumed under the former.120 The reverse, however, was not always
true. In times of strain, short of war, it was often consulates, instead of embassies, which were
closed. For example, in 1941, just before the United States entered the Second World War, all its
consulates in Italy and Germany, and all the latters consulates in the United States, were
closed.121 Their embassies, however, remained open until war was declared. As a result of the
Kasenkina Case in 1948, the United States and USSR closed their consulates in each others
territory.122 The Sino-Indian border dispute in the early 1960s led to the closing by India of its
consulates in Lhasa and Shanghai and the closing by China of its consulates in Calcutta and
Bombay.123 In the aftermath of the deterioration in Sino-Soviet relations, Soviet consulates in
Harbin, Shanghai, Tihwa, and Ining were reported closed in 1962; there were no Chinese
consulates in the Soviet Union.124

References
(p. 66) VCCR Art. 2(3) develops the modern State practice by providing: The severance of
diplomatic relations shall not ipso facto involve the severance of consular relations. Consular
relations may continue through existing consulates, or through interests sections attached to the
embassies of third States. Commenting on its own draft Articles (Art. 2, Commentary (6)), the ILC
stated that this provision lays down a generally accepted rule of international law. However, it
may be more accurate, in light of previous practice, to characterise this provision as a progressive
development of international law, rather than its codification.
Since the conclusion of the VCCR, States have often maintained consular relations after severing
diplomatic relations. For example, in breaking diplomatic relations with the Federal Republic of
Germany following its recognition of Israel in May 1965, the United Arab Republic permitted Bonn to
retain its consular relations with Cairo, thereby enabling a considerable portion of its embassy staff
to remain.125 Again, in complying with the Organisation for African Unity call for a severance of
relations with the United Kingdom over its failure to remove the Rhodesian regime of Prime Minister
Ian D. Smith by 15 December 1965, the United Arab Republic broke off diplomatic relations with the
United Kingdom, but permitted a former British counsellor, John Wilton, to stay on as ConsulGeneral.126 When South Vietnams Military Government under Premier Nguyen Cao Ky broke
diplomatic relations with France, which had previously ruled Indo-China for a century, consular
relations between Saigon and Paris continued.127
In Panama, the action of American students in hoisting only the American flag at the Balboa High
School in the Canal Zone on 9 January 1964, in defiance of a 1963 agreement to fly Panamanian
flags alongside those of the United States, touched off mob violence that left 24 persons dead and
several hundred wounded. On 17 January, Panama severed diplomatic relations with the United
States and ordered the latters diplomats to leave the country. US consular officers, however, were
permitted to remain.128
Consular relations may exist in fact, though nominally terminated. Thus, the Federal Republic of
Germany has sent and received special missions responsible for consular matters in the absence
of formal diplomatic and consular ties.129

References
(p. 67) After the rupture of diplomatic relations between the FRG and Yugoslavia, the consular
sections of the two embassies continued to function: one at Belgrade through the French Embassy,
and the other at Bonn, through the Swedish Embassy.130 Following the Suez crisis, when formal ties
between the United Arab Republic and Australia were still severed, Australian officials charged with
consular duties were permitted to work out of the Canadian Embassy in Cairo.131

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Undeniably, there are advantages to retaining consular relations in the absence of diplomatic ties.
In addition to continued performance of consular services, retention maintains communication and
facilitates a later resumption of diplomatic ties.
The establishment of consular posts may occasionally be timed to reflect the lowering of the level
of relations between two States. A case in point was the 1965 Portuguese-Indonesian agreement to
lower the level of their representation from legations to consulates.132 On the other hand, in
breaking diplomatic relations with the United States, Cambodia suggested that consular relations be
established, but this request was refused.133
Consular relations may be established in the absence of diplomatic relations. Thus, for two decades
after the 1967 Middle East War, no diplomatic or consular relations were maintained between the
Soviet Union and Israel. A Soviet consular delegation was received in Israel in 1987, and an Israeli
delegation, charged mainly with directing emigration from the Soviet Union to Israel, left for
Moscow in 1988 to work from the Israeli Interests Section of the Netherlands Embassy.134 The
possibility of consular relations in the absence of diplomatic relations may be anticipated by
domestic statute. Estonia provides by law:
In the territory of a foreign State with which Estonia does not have diplomatic relations, a
consular officer shall provide consular services and consular assistance on the order of
the Minister of Foreign Affairs and with the consent of the foreign State. Such activities do
not entail an obligation to establish diplomatic or consular relations.135

9. Non-Recognition
The question also arises whether establishing or maintaining a consulate with a State implies
recognition of that State. Writers have differed on the point. Moore stated that recognition is implied
from the issuance of exequaturs to consuls of

References
(p. 68) a new State.136 Lauterpacht considered the issuance of consular exequaturs as probably
implying recognition, in contradistinction to the initiation of diplomatic relations, which clearly
constitutes recognition.137 The Harvard Research Draft (Art. 6) stated:
(a) A sending State shall not be presumed to have recognised the authority in actual control
of a territory as entitled to such control because it has appointed a person or has permitted a
person previously appointed to exercise consular functions within such territory, nor
because such person has applied to that authority for permission to exercise consular
functions.
(b) A State shall not be presumed to have recognised a government because it has raised
no objection to the exercise of consular functions within its territory by a person appointed
for that purpose by such government.
On the other hand, the granting of an exequatur, according to the Draft (p. 240), implied
recognition of the sending government.
The Zourek Report (Art. 12) went a step further by maintaining that even a request for the issue of
an exequatur to a Government or State not recognised by the State which appointed the consular
representative shall imply recognition of the State or Government concerned. It is to be observed,
however, that while the granting of an exequatur by the receiving State is always an act made in
response to a request by the sending State, in which case recognition is mutual, the mere request
for an exequatur by the sending State may or may not be complied with by the receiving State. If
the receiving State turns down the request, the sending State, by having requested an exequatur,
recognises the receiving State, but the latter continues its non-recognition of the former. The

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resultant unilateral and unreciprocated recognition, which Zoureks proposal would entail, would be
open to challenge by those defining recognition as by nature reciprocal, although it could also
pose a challenge to the mutual recognition theory.
Oppenheim stressed the element of intent on the issue of consular relations and recognition. He
stated:
Thus, in the absence of an unequivocal intention to the contrary, no recognition is implied
in the retention, replacing, and (probably) sending and reception of consuls (especially
if the latter is not accompanied by a request for or issue of an exequatur).138
The element of intent was also underscored by Hackworth. He cited the example of US consuls
acceptance of exequaturs from the unrecognised Chilean Government on condition that the
acceptance did not constitute recognition.139

References
(p. 69) On the whole, the intent theory has prevailed. Thus, the USSR reportedly consented to the
establishment of Manchoukuoan consulates in Blagoveshchensk, Khabarovsk, Vladivostok, and
Chita, without recognising Manchoukuo.140 The consulate at Blagoveshchensk was established in
September 1932,141 while the Japan-Manchoukuo Yearbook of 1934 records the establishment of
the consulate at Chita.142 Poland, too, through its Ambassador at Tokyo, Thaddee de Romer,
signed an agreement with the Manchoukuo Ambassador, Yuan Chen-tuo, for the exchange of
consuls on 19 October 1939, without extending de jure recognition to Manchoukuo.143
The German Democratic Republic established a consulate-general in Cairo in September 1959. The
United Arab Republic denied that the acceptance of the credentials of Consul-General Martin
Mierbach constituted diplomatic recognition of the GDR.144 The UAR established a consulategeneral in East Berlin following the establishment of diplomatic relations between the Federal
Republic of Germany and Israel in 1965, again without recognising the GDR.145
In 1962 the GDR called for the conclusion of consular agreements with each of the NATO nations to
facilitate the issuance of visas for East-West travel. Assurance was given that these agreements
would not imply a change in existing relationsa euphemism for continued diplomatic nonrecognition. The USSR was understood to have endorsed the proposals in its notes of transmittal
attached.146 The NATO nations, however, did not respond to the GDR proposal. The conclusion of
an international agreement on consular matters would have implied recognition of the GDRs treatymaking capacity and thus of its existence as a sovereign entity in international law.
The ILC rejected Art. 12 of the Zourek Report, which had suggested that a request for an exequatur
implied recognition, but failed to adopt Georges Scelles proposal to add the following provision to
its Draft: but consular relations may subsist in the case of severance of diplomatic relations and
may be established in the case of the non-recognition or de facto recognition of the receiving State
without implying de jure recognition.147
Two other amendments proposed by Scelle were also rejected. The first was to replace draft Art. 12
with the following text: In case of disturbance, civil war or overthrow of the Government in a
country of residence, a consular officer who

References
(p. 70) has previously received the exequatur shall continue in his post and functions pending the
decision of the sending State concerning recognition, whether de facto or de jure.148 The second
amendment aimed to replace draft Art. 19 with the following:

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Stability of Consular Relations


1. The stability of consular relations is the rule, even in the case of internal
disturbance or civil war in the receiving country.
2. The breaking-off of diplomatic relations shall not entail the breaking-off of
consular relations, nor shall recognition or non-recognition of the new State or
government.
These situations may merely necessitate in certain cases the adjustment of pre-existing consular
districts between sending governments and receiving governments.149
The ILC and the VCCR failure to adopt provisions along those lines resulted in a serious lacuna.150
The Vienna Conference may have been reluctant to settle questions relating more to the law of
recognition than to that of consular relations.151 The rule applied generally in modern practice is
that consuls continue to be despatched and to function on the basis that their contacts are
ordinarily with local authorities and not with a central government whose status is denied. The
United Kingdom for many years after recognising (1950) the Government of the Peoples Republic
of China in Beijing continued to instruct, and to replace, its consular officers in Taiwan. No
exequatur was sought, since such a request would have implied that the authorities in Taiwan
constituted a government.
Although the raising of the rank of a consular post, say, from a consulate to a consulate-general, is
not technically an establishment of consular relations, it does involve requesting and obtaining an
exequatur for the head of the consular post or the consent of or notification to the receiving State.
In the United States, for a change of the rank of a consular post from a consulate to a consulategeneral, the request must be submitted in a diplomatic note.152 These official communications need
not, however, constitute an establishment or restoration of diplomatic relations, as in the cases of
the US raising the status of its consulate in Santo Domingo to that of a consulate-general in
September 1961,153 and the arrival of Louis A. Oviedo in New York a month earlier as the new head
of the Dominican Consulate-General.154
The United Kingdom raised its consulate in Hanoi to a consulate-general in 1954 without
recognising the Democratic Republic of Vietnam.155 No new exequatur was sought then or on
subsequent occasions when a replacement

References
(p. 71) consul-general was appointed. (In 1974 non-recognition ended and ambassadors were
exchanged.)
After the Second World War, when several States were divided between a Communist
administration, and another allied with the West, the question arose whether consuls of one half
might act on behalf of nationals residing in the other, if the latter administration were not recognised
by the receiving State. In response to a private inquiry regarding the capacity of consuls of the
Federal Republic of Germany in the United States to act on behalf of German nationals residing in
the German Democratic Republic, the Department of State said:
The United States does not recognise the regime in Eastern Germany as either a State or a
government. The United States considers that the area is under the effective control of the
Soviet Union and that the East German regime is but a local instrument of the Soviet
Government.
The question which you raise concerning the capacity of consular officers of the Federal
Republic has arisen on a number of occasions in the past and the position of the
Department of State has been that consuls of the Federal Republic are not authorised to
act on behalf of German nationals residing in Eastern Germany.156

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Similarly, the request of a Nationalist Chinese consul for distributive shares of persons resident in
the mainland of China to be delivered to him on the basis of a most-favoured-nation clause of the
1946 China-US treaty157 was denied on the following grounds:
No evidence has been presented to the Court concerning the possibility of transmitting the
funds to China, and by Executive Order unlicensed payments to nationals of China and
North Korea have been prohibited. Executive Order No. 9193, 50 U.S. C.A. Appendix, Sec.
6 note
The Court will take judicial notice of the fact that the mainland of China is controlled by the
Communist Government, which has not been recognised by the United States Government,
and that the sovereignty of the Republic of China extends only to the island of Formosa.
Hence, it will be impossible for the consul to transmit these funds to the proper distributees.
In these circumstances, the shares of the non-resident aliens will be paid into the City
Treasury.158
Where a State has been incorporated into the sending State, but the incorporation is not
recognised by the receiving State de jure or de facto, the question arises whether a consul may
act on behalf of a national of the incorporated State.

References
(p. 72) The United States did not allow such representation by the USSR in regard to nationals of
the Baltic States incorporated into the USSR.159
A sending State may make contact with an entity whose status it views as uncertain, when
necessary to carry out a protective function. In 2007, the UK Consul-General in Jerusalem met with
the Palestinian prime minister in an effort to secure the release of a British Broadcasting Corporation
reporter kidnapped in the Gaza Strip. No formal consular arrangement existed with the Palestinian
Authority, which administered certain territory by arrangement with Israel, its belligerent occupant.
The UK did not recognise that authority as a State and had previously declined relations in
particular with the prime minister, who represented the Hamas organisation, which the UK viewed
as terrorist. The UK decision to consult with the prime minister was explained by a UK government
source as being undertaken on humanitarian grounds.160
A sending State may recognise the State that controls territory in which it establishes or maintains a
consulate but may not recognise that States sovereignty over such territory. Jerusalem provides
an example. The UK, which had administered Palestine between the world wars as a mandatory
power, withdrew in 1948, whereupon it opened a Consulate-General in Jerusalem. At that period the
western sector of Jerusalem came under the control of Israel, while the eastern sector came under
the control of Jordan. The UK recognised both States but did not view either as sovereign in
Jerusalem. It did not submit credentials for its Consuls-General either to Jordan or to Israel. Jordan
and Israel tolerated this arrangement, even as one Consul-General would be replaced by another.
The UK continued the same practice after 1967, when Israel gained control of the eastern sector.
States that had maintained consulates in Jerusalem during the period of British control kept them
functioning after Britains withdrawal. Like Britain, they viewed Jerusalem as being under the
sovereignty of no State. This arrangement was tolerated by Jordan and by Israel.

10. Consular Status in Third States


While proceeding to or returning from a post, a consul may pass through third States. A consuls
status in these States is of significance since it determines entitlement to privileges and immunities.
Before the adoption of the VCCR, no treaty had dealt with consular privileges and immunities in third
States. Under VCCR Art. 54, consuls and their families forming part of their households, as well as

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consular couriers, are entitled, while in transit through a third State, to all immunities provided for
by the

References
(p. 73) other articles of the present Convention as may be required to ensure transit to and from a
consular post. With respect to consular employees and their families forming part of their
households, the VCCR merely obliges third States not to hinder their passage. In addition, the
VCCR requires third States to accord to consular bags, correspondence, and other official
communications in transit, whether in code or cipher, the same freedom and protection as are
accorded by the receiving State. These provisions reflected progressive development of the law.
Their adoption indicated: (a) conformity with the functional approach of consular immunities, (b)
consistency with the VCDR,161 and (c) promotion of a uniform and mutually beneficial practice in
consular matters.
The meaning of the words in transit may cause difficulty. The issue has arisen in cases involving
diplomats, where, similarly, in transit protection is accorded. In United States v. Rosal,162 the
Guatemalan Ambassador to Belgium and the Netherlands claimed immunity from a narcotics
prosecution as a diplomat in transit. His motion to dismiss was denied on the ground that he had
flown from his European post to New York on personal, non-diplomatic business, at the conclusion
of which he intended to fly to Paris, France, and not to Guatemala, as evidenced by his airline
reservations. Hence, The defendant was not a diplomat-in-transit within the rule of international law
granting immunity to a diplomat en route between his official post and his homeland. The court
alluded to, but did not base its decision upon, the affidavit of the Guatemalan Consulate-General in
New York, which stated that, after the defendants arrest, the President of Guatemala discredited
Rosal as a diplomat of Guatemala. Transit status thus requires a rational connection between the
territories of the third State, on the one hand, and the points of origin and destination, on the other.
A second case involved Kunlay Wangdi, a Counsellor of the Royal Bhutan Foreign Service,
arrested at Kennedy International Airport after arriving from New Delhi by way of Bombay and
Frankfurt. Mr Wangdi was accused of carrying 56 pounds of heroin in 23 bags distributed in two
suitcases. According to the US Attorney for the Eastern District of New York, Raymond J. Dearie,
although Mr Wangdi held a diplomatic passport, he had a business-vacation visa and was not on a
diplomatic mission. For that reason and because Mr Wangdi was not accredited as a diplomat to the
United States (there being in any event no Bhutanese Embassy in Washington) or to the United
Nations, he was not entitled to diplomatic immunity as a diplomat in transit.163
Finally, the case of Rigoberto Regalado Lara may be recounted.164 The Honduran Ambassador to
Panama, a half-brother of the Commander in Chief

References
(p. 74) of the armed forces in Honduras, was arrested at Miami airport on 15 May 1988, for
attempting to smuggle in his suitcase 25.8 pounds of cocaine, worth about $500,000. The charge
carried a 10-year mandatory minimum sentence.
After his arrest, the Honduran Government revoked Mr Regalados appointment as Ambassador to
Panama. Although, according to Ana T. Barnett, Executive Assistant US Attorney in Miami, Regalado
would not have been entitled to immunity in the United States because he was Ambassador to a
third country, he would have been so entitled under the VCDR had he been in transit in Miami and if
his government had not revoked his appointment or waived his immunity.

11. Respect for Local Laws and Non-Interference


The entitlement of consular personnel and their families to certain privileges and immunities has

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Oxford University Press - Master Gratis Access; date: 12 February 2016

sometimes been taken to mean a licence to violate local law. The large numbers of unpaid traffic
and parking tickets issued to automobiles carrying consular or diplomatic licence plates in every
major city are cases in point.
Actually, immunity from legal liability and exemption from local jurisdiction are different
concepts.165 The principle that liability exists regardless of enforceability provides the basis for
waiver of exemption by the sending State. In view of the general illegality of ex post facto laws, the
waiver of exemption presumes continued legal liability from the moment the act giving rise to such
liability occurred, rather than from the moment the waiver is given. The VCCR preamble reminds
that the purpose of such privileges and immunities is not to benefit individuals but to ensure the
efficient performance of functions by consular posts on behalf of their respective States.166 VCCR
Art. 43(1) further states: Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts
performed in the exercise of consular functions.
Such acts performed in the exercise of consular functions are narrower in scope than those
performed in the exercise of official functions, as provided in VCDR Art. 31(1)(c). Furthermore, the
content of consular functions, having been defined in VCCR Art. 5, is in accord with the local laws
of those States. It follows that all acts of consular officers, whether or not falling under the purview

References
(p. 75) of consular functions, must conform with local laws. VCCR Art. 55(1) reflects this principle:
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving State. They also have
a duty not to interfere in the internal affairs of that State.
The term respect connotes a moral, rather than a legal, duty (as in the case of obey167 ). The
same term is used in the same connection in the VCDR.168 The implication of its use in the VCDR is
set forth by Denza:
The modern theory, however, is that certainly in regard to his private acts and now even in
regard to his official acts a diplomat is subject as a matter of legal substance to the laws of
the receiving State except where these laws make a specific exception in his favour. Such
exceptions may be made in order to give effect to an international rule (as in matters of tax
and social security) or they may be as a matter of domestic policy, perhaps for reasons of
comity or of reciprocity. To regard a diplomat as not merely protected by immunity from
enforcement of the laws of the receiving State but also exempt from liability under them
would produce absurd results. It would mean that a diplomat could pay a debt and sue for
recovery of the money on the basis that it had been paid in the absence of any obligation.
It would lead to an absurd position where immunity was waived or came to an end on
termination of functions or operation of law in that the defendant could again plead his
status in order to dispute liability.169
What is true in the diplomatic context is true a fortiori in the consular, in view of the more limited
scope of consular immunity under the functional approach to immunity.
The non-interference clause flows logically from the duty to respect local laws and reinforces the
non-intervention principle of UN Charter Art. 2(7): Nothing contained in the present Charter shall
authorise the United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any State.170
A receiving State and a sending State may differ on whether particular conduct constitutes
interference in internal affairs. After Hong Kong reverted to Chinas control, elections were held for
a Legislative Council. The British Consulate-General in Hong Kong invited candidates to debate
issues in the election. China

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References
(p. 76) invoked VCCR Art. 55(1), as codified in Art. 24 of Chinas Consular Privileges and Immunities
Act of 1990, protesting to the UK that the invitation was an interference in Chinas internal affairs:
The election for the first LegCo is entirely an internal matter.171
Diplomats and consuls are prohibited from interfering in the internal affairs of the receiving State.
While diplomats would be shielded from criminal or administrative liability for such interference by
virtue of diplomatic immunity,172 consuls would not, under VCCR Arts. 43(1) and 55(1).
Where a diplomatic or consular act is regarded as interference in the internal affairs of the
receiving State, what kind of sanction may be applied? The Netherlands stated a position on this
matter as regards the diplomatic situation, but the position applies equally to the consular, since the
provisions in the two Conventions are identical. Referring to VCDR Art. 41(1), The Netherlands
stated:
The following may be said with regard to the question of what sanction is attached to the
provision that diplomats have a duty not to interfere in the internal affairs of the receiving
State. A diplomatic agent or other person enjoying privileges and immunities under the
Convention who interferes in the internal affairs of the receiving State may, if the
Government of the latter State takes the question seriously enough, be notified of the
unacceptability of his conduct by the Ministry of Foreign Affairs. If necessary, the Ministry
may also approach the diplomatic agents superior, or even the Government of the sending
State, in order to draw attention to the provisions of Article 41 paragraph 1. Ultimately,
application of Article 9 [Persons declared non grata] might be considered.
There are no international guidelines for the application of Article 41 paragraph 1, and we
doubt whether it would be at all possible to develop such guidelines, given the fact that
views on what should, or should not, be regarded as inadmissible interference in the
internal affairs of a receiving State vary from place to place and time to time.
Nor do such guidelines formally exist in the Netherlands. It should be pointed out that there
are any number of ways in which a person could set about interfering in internal affairs. It is
one of the functions of a diplomatic agent to form a judgment on the views and attitudes of
the Government of the country where he is stationed, but not to express this judgment in
public. Should he nonetheless do so, it may still depend on various circumstances whether
it constitutes a case of unacceptable interference in internal affairs. On the rare occasions
when the Minister for Foreign Affairs considers that the limits of what is acceptable to the
Netherlands have been exceeded, he does not fail to bring this to the notice of the foreign
mission in question None of this alters the fact that freedom of expression as laid down
in the Constitution (and in international law) is also a right of diplomats. The substance of a
particular utterance may, however, be judged retrospectively by reference to the rules in
force, including the provision laid down in Article 41 paragraph 1 of the Convention.173

References
(p. 77) Consuls who make comments about the receiving State that are taken negatively risk being
regarded as interfering in internal affairs. In 1994, Boris Shardakov, Russias Vice-Consul in Krakow,
Poland, was confronted with demonstrators outside the consulate building who engaged him in a
discussion of the history of Russian-Polish relations. In this context Shardakov commented that
following the Polish-Russian war of 1920, Poles had murdered 60,000 Soviet war prisoners.
Shardakov also made comments critical of General Josef Pilsudski, who led the Polish forces at that
time. These comments led various groups in Poland, and various Polish media outlets, to demand
that Poland declare Shardakov persona non grata. Although Poland did not do so, the Polish
Foreign Ministry said that Shardakov had compromised his ability to function effectively as a consul

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in Poland. Shardakov shortly announced that he would leave Poland, stating that he did not wish to
complicate Russian-Polish relations.174
Diplomats and consuls have on occasion assisted receiving State nationals whose human rights
may have been violated by the receiving State. Receiving States have at times objected to such
activity as interference in their internal affairs. On this issue, see Chapter 12.
Additionally, acts by consuls may, in principle, engage the responsibility of the sending State under
human rights treaties to which it is a party, or under the customary law of human rights. The
European Court of Human Rights noted that human rights obligations typically relate to acts within a
States own territory, but that one instance of extraterritorial exercise of jurisdiction by a State is
the activities of its diplomatic or consular agents.175 Hence, an act by a consul that violates human
rights might fall within human rights treaties that premise liability on acts committed within a States
jurisdiction.

References

Footnotes:
1

Art. 3(2).

2 Arts. 3 and 70.


3 Denza, Diplomatic Law, p. 26.
4

Appendix 1. For analysis of consular Conventions concluded by Poland, see Stanislaw Nahlik. La
Tendance actuelle assimiler le statut juridique des consuls celui des diplomates, Yearbook of
the AAA, 1979/80, p. 69.
5

VCCR Art. 70(2): The names of members of a diplomatic mission assigned to the consular
section or otherwise charged with the exercise of the consular functions of the mission shall be
notified to the Ministry for Foreign Affairs of the receiving State or to the authority designated by
that Ministry. However, even in the absence of notification, members of a diplomatic mission may
not be prevented from performing consular functions, according to VCDR Art. 3(2). See also ch. 37:
Diplomats as Consuls.
6 Kazakhstan, Consular Statute, Art. 2.
7 Satow, Guide to Diplomatic Practice, p. 389. On the history of the development of consular

relations within the Commonwealth, see Lorna Lloyd, Diplomacy with a Difference: The
Commonwealth Office of High Commissioner, 18802006 (2007), pp. 209219.
8 See e.g. Code diplomatique et consulaire: annuaire pour le corps diplomatique et consulaire

du monde entier (2 vols., 15th ed. 1967/68, Switzerland). Personal interview by Luke T. Lee with
Geoffrey Dabb, Counselor (legal), Australian Embassy, Washington, 5 Feb. 1987.
9 c. 18.
10 Satow, Guide to Diplomatic Practice, c. 41.32.
11

See infra sec. 4.

12 Sir Hesketh Bell, Foreign Colonial Administration in the Far East (1928), p. 216.
13 Convention concerning the Relations between China and France with regard to French Indo-

China and the Adjacent Chinese Provinces, and Annexes to this Convention (16 May 1930), Art. 3.
Text in Roger Levy, Guy Lacam, and Andrew Roth, French Interests and Policies in the Far East
(1941), pp. 725.
14 Ibid. p. 88.
15 Emphasis added.
16

UN Doc. A/CN.4/108, 15 Apr. 1957, p. 59.

17

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17 League of Nations, Official Journal, Vol. 16 (1935), No. 11, p. 1601.


18 Report of the Commission of Inquiry, pp. 5563 (League of Nations Pub. VII. Political 1932. VII.

12).
19 New York Times, 6 Apr. 1965, p. 3, col. 3. Certain sources, however, connected this French

refusal to the impending tests of Frances first hydrogen bomb near the area, stating that the
French Government was sensitive to American doubts about the effectiveness of Frances nuclear
force. Ibid.
20

See Art. I. See also C. A. Whomersley, The United Kingdom-China Consular Agreement, 34
ICLQ 621 (1985).
21

Despite four centuries of Portuguese presence, Macao was never ceded to Portugal by China.
See L. Lee, China and International Agreements (1969), p. 37 n. 24.
22 New York Times, 13 Mar. 1965, p. 2, col. 6.
23 Randal C. Archibold, Mexico adds to consulates amid debate, New York Times, 23 May 2007,

p. A1, col. 2.
24 Spanish Diplomatic and Parliamentary Practice in Public International Law, 11 Spanish

Yearbook of International Law 106107 (2005); Victoria Burnett, To Curb Illegal Migrants, Spain
Offers a Legal Route, New York Times, 11 Aug. 2007, p. Ad, col. 1 (on expansion of representation
in a number of west African States as Spain encouraged labour migration from those States).
25 The Canadian Mission to the United Nations in Geneva, on the other hand, included two officials

duly equipped with the exequaturs from the Swiss Government. Personal interview by Luke T. Lee
with J. Alan Beesley, First Secretary of the Permanent Canadian Mission to the European Office of
the United Nations, Geneva, on 5 Aug. 1964.
26

Dominic Kennedy & James Eisen, Britain may close 30 missions to save money, The Times, 23
Oct. 1998, Home news.
27

2 FAM 111.2.

28 Thomas J. White, Eyes and Ears, State Magazine, Dec. 2006, p. 12.
29 See generally Leon Marcantonatos, Les Relations Consulaires aux Termes de la Convention

de Vienne du 24 avril 1963 (1974), pp. 3032.


30 Jane Degras (ed.), Soviet Documents on Foreign Policy (1953), III (193341), pp. 26970.
31 Ibid., p. 271.
32 The German Ambassador in the Soviet Union (Schulenburg) to the German Foreign Ministry, 17

Jan. 1938; text in US Dept. of State, Documents on German Foreign Policy, 191845, Ser. D, I, p.
905.
33 Degras, supra n. 30 at p. 30 n. 58a.
34 Documents on German Foreign Policy, at pp. 9057.
35 Ibid. at p. 905.
36 Ibid. at p. 908.
37 See Lawrence Preuss, Consular Immunities: The Kasenkina Case, 43 AJIL 45 (1949); 19 Dept.

of State Bulletin 408 (1948).


38

New York Times, 13 Oct. 1970, p. 7, col. 1.

39 Dept. of State Press Release, No. 282, 3 July 1974, p. 10; 71 Dept. of State Bulletin 1901

(1974).
40 New York Times, 26 July 1966, p. 11, col. 1.
41 Ibid. 7 Dec. 1962, p. 1, col. 5.
42 Mimeographed texts in Chinese, English, and French on filecourtesy of Louis de Salaberry,

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Director, Consular Policy Division, Department of External Affairs, Canada, 15 July 1987.
43 See agreements with US, France, Italy, the Federal Republic of Germany, and the UK (Art. 1).

See Whomersley, supra n. 20.


44 See e.g. the exchange of notes constituting an agreement between Sweden and the Peoples

Republic of China on the establishment of consular relations, signed in Peking, 24 June 1955. Text in
228 UNTS 1546.
45 New York Times, 13 Jan. 1952, p. 1, col. 6. See also The Times, 14 Jan. 1952, p. 4d; 17 Jan.

1952, p. 5c; 18 Jan. 1952, p. 3a.


46 Lithuanian parliamentary committee delays decision on establishment of Russian consulate in

Kaunas, Baltic News Service, 24 Nov. 1995.


47 Lithuanian PM visiting Kaliningrad, Baltic News Service, 18 July 2002.
48 Russia to open new Russian consular office in Estonia, Baltic News Service, 6 June 1996.
49 Note from Carlos Olivares to the Charg dAffaires of the US Embassy, dated 2 Jan. 1961,

reproduced in 44 Dept. of State Bulletin 104 (1961). To justify the Cuban demand, Premier Fidel
Castro reportedly accused the US Embassy and consulate staff of fomenting anti-revolutionary
activity and asserted that 80% of them were FBI and Pentagon spies. See New York Times, 3 Jan.
1961, p. 1, col. 4.
50 See President Eisenhowers statement in White House Press Release dated 3 Jan. 1961,

reproduced in 44 Dept. of State Bulletin 103 (1961). See also Christian A. Herter to Dr Armando
Florez Ibarra, Charg dAffaires ad interim at the Cuban Embassy in Washington, DC dated 3 Jan.
1961, reproduced in 44 Dept. of State Bulletin 1034 (1961).
51 Cuban interests in the US were represented by the Cuban Interests Section of the Embassy of

Czechoslovakia, whereas American interests in Cuba were represented by the US Interests Section
of the Swiss Embassy. See Dept. of State, Diplomatic List, Feb. 1990, p. 17. Key Officers of Foreign
Service Posts, Jan. 1990, p. 12. In 1991, Czechoslovakia declined to continue this arrangement,
and Switzerland agreed that the Cuban Interests Section in Washington DC be placed under its
Embassy there.
52 Pakistan to reduce staff at New Delhi embassy, United Press International, 10 Jan. 1993.
53 New York Times, 18 Sept. 1986, I, 1:3.
54 Washington Post, 20 Oct. 1986, p. A1.
55 Ibid. 22 Oct. 1986, p. A1.
56 New York Times, 23 Oct. 1986, p. A12.
57 Ibid. 4 Dec. 1988, p. A1; Washington Post, 24 Oct. 1986, p. A1.
58 New York Times, 23 June 1988, p. A1; 26 June 1988, p. A25; Washington Times, 22 June 1988,

p. A7; Washington Post, 22 June 1988, p. A16; 26 June 1988, p. A25; 28 June 1988, p. A10.
59 Washington Post, 11 June 1987, p. A27.
60

Ibid. 8 Mar. 1989, p. A30.

61 Denza, Diplomatic Law, p. 77.


62 See text supra accompanying n. 17. See also Satow, Guide to Diplomatic Practice, p. 215.
63 Diplomatic Immunities and Privileges (1985), Cmd. 9497, para. 31.
64 Signed at Beijing, 17 April 1984.
65 Sec. 8(a), para. 3.
66 Philip C. Jessup. Philippine Independence, 29 AJIL 8387 (1935).
67 This is to be distinguished from the consular representation of third States interests and the

sharing of consular services, which are discussed infra this section.


68

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68

See Singer v. United States (1936), 83 F.2d 358 (7th Cir.); Annual Digest, 191942, Supp. Vol.,
Case 112. See also Marcantonatos, supra n 29 (noting that this practice occurs most frequently
with honorary, rather than career, consuls).
69

Kazakhstan. Consular Statute, Art. 19.

70 I Oppenheim, International Law, p. 839. For a lucid treatment of the subject of consular

protection of foreign interests, see William McHenry Franklin, Protection of Foreign Interests
(1947).
71 Act of 28 June 1948 (PL 80798, 62 Stat. 1065); 15 Fed. Reg. 7273; Walter J. Marx, Consular

Services for German Nationals, 20 Dept. of State Bulletin, No. 514 (8 May 1949), pp. 5758; 7
Whiteman, Digest, pp. 5214.
72

See e.g. Accord entre la Bolivie, la Colombie. IEquateur, le Prou et le Venezuela relatif aux
attributions des consuls respectifs dans chacune des Rpubliques contractantes, signed at
Caracas, 18 July 1911, Art. 6, Br. & For. State Papers, 1914, Part I, CVII, p. 601; UNLS, pp. 41719.
73

See Zourek Report, Art. 16; ILC Draft, Art. 7.

74 Letter to Luke T. Lee from Mr Mahmud Galbun, Consul, Embassy of the United Kingdom of Libya,

Washington, DC, 23 Sept. 1957, Ref.: 978/12/2.


75 Ian Tricks, The Consular Function, AFAR, May 1986, pp. 393, 397.
76 Canada, Manual, I-3.14 and 5.1.3(4).
77 7 FAM 1013(a).
78 7 FAM 1031.2(b) & (c).
79 7 FAM 1032.
8 0 7 FAM 1033.
8 1 7 FAM 1033(b).
8 2 7 FAM 1036.1(c).
8 3 7 FAM 1036.2
8 4 7 FAM 1041.
85

7 FAM 1042(c).

8 6 7 FAM 1071.1.
8 7 7 FAM 1071.4.
88

7 FAM 1071.5. Similar services were requested of the Swiss Embassy in Tehran for US citizens.
See Nash, Digest, 1980, p. 335.
8 9 Dept. of State, Diplomatic List, May 1988, pp. 1, 1819, 82.
90 Marcantonatos, supra n. 29, p. 99 (noting the frequency with which Switzerland has performed

this role for other States).


91 UK Treaty Series No. 45 (1989).
92

For the negotiations among the US, Switzerland, and Algeria leading to the establishment of the
US Interests Section in the Swiss Embassy in Tehran and that of the Iranian Interests Section in the
Algerian Embassy in Washington, as well as the delineation of their functions and staffing, see
Nash, Digest, 1980, pp. 33540.
93 See New York Times, 5 Jan. 1961, p. 6.
94

As in the case of the Iranian Interests Section of the Algerian Embassy in Washington. See Dept.
of State, Digest, 1980, p. 337.
95

Chevreau Case, UN, Reports of International Arbitral Awards, Vol. II, pp. 111343 (F. V. N.
Beichmann, Norway, Arbitrator).
96

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96 See Ghana, Visa Instructions (Ref.: SCR. 1041), 3(b), indicating that in the absence of a

Ghanian consulate, UK consuls are empowered to accept applications for visas to Ghana. See also
Canada, Manual 2007, 2.14.1, indicating that UK consular officers provide limited services to
Canadian nationals in some locations at which there is no Canadian consulate.
97 Commonwealth Secretariat, Manual on Consular Relations in the Commonwealth (loose-leaf),

Part II: Consular Agreements/Arrangements between Commonwealth Countries.


98

Ibid.

99 Ibid.
100 Ibid.
101

Canada, Manual 2007, 9.1.1.

102 Exchange of Notes: Text of the Notes from the Canadian and Australian Ministers for External

Affairs, signed at Vancouver, 7 Aug. 1986, by Secretary of State for External Affairs Joe Clark of
Canada (JLE-0792) and Minister for Foreign Affairs Bill Hayden of Australia (Note No. 75/86). For
text, see Canada, Manual 2007, 9.1.1, Annex A-9.
103

Memorandum of Understanding between Foreign Affairs Canada and the Department of Foreign
Affairs and Trade of Australia concerning the Sharing of Consular Services, signed at London, 15
Nov. 2001 (replacing Memorandum of Understanding of 22 Jan. 1987). For text, see Canada,
Manual 2007, 9.1.1, Annex B-9.
104 Ibid., para. 2.
105

Updated to 3 May 2007.

106 Letter to Luke T. Lee from Louis de Salaberry, Director, Consular Policy Division, Department of

External Affairs, Canada, dated 15 July 1987.


107 Estonia, Consular Act, Art. 47.
108 Agreement on Consular cooperation between the Federative Republic of Brazil and the

Portuguese Republic concerning consular Protection of and Assistance to Their Nationals in Third
Countries, Done at Liston, 20 July 1995, 1990 UNTS 45.
109 Report of EU Presidency to European Council: Reinforcing the European Unions emergency

and crisis response capacities, Brussels, Doc. 10551/06, 15 June 2006.


110 European Commission, Green Paper: Diplomatic and consular protection of Union citizens in

third countries, 28 November 2006, paras 3.2, 3.3, EU Doc. COM/2006/0712.


111

Art. 20. OJ C325, 24 December 2002, as implemented by Decision of EU Council, 19 Dec. 1995,
Decision 95/553/EC, OJ L314, 28 Dec. 1995.
112

As of 2006, in only three countries (China, Russian Federation, USA) did each EU member
State have its own consuls. Green Paper, supra n. 110, para. 1.5.
113 See generally ibid.
114 Estonia, Consular Act, Art. 58(1).
115 See e.g. Satow, Guide to Diplomatic Practice, p. 166, stating, The establishment of diplomatic

relations where they have not existed may be brought about by the intervention of a friendly
power, either in a third State, or at the United Nations, or by direct communication between the two
governments concerned. See also Denza, p. 26.
116 VCCR Art. 17.
117 See Satow, Guide to Diplomatic Practice at n. 114.
118 See M. Hardy, Modern Diplomatic Law (1968), pp. 24, 8994. See also the Convention on

Special Missions adopted in General Assembly resolution 2530 (XXIV) on 8 Dec. 1969, and Satow,
Guide to Diplomatic Practice, pp. 156160.
119

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119 During the Crimean War, the belligerents continued consular relations. Stuart, Practice, p. 444;

Satow, Guide to Diplomatic Practice, p. 213. During the Second World War, the Siamese Consulate
in Boston was permitted by the Department of State to remain open even after Siam declared war
on the US. Information from interview by Luke T. Lee with Thailands honorary consul in Boston, 25
May 1951.
120 At the 1964 ILC session, discussion centred on Art. 1(2) of Professor Bartos Report on Special

Missions (UN Doc. a/cn.4/166, 1 Apr. 1964), which provides: The existence of regular diplomatic or
consular relations between the States concerned is not a pre-requisite for the sending and
reception of special missions. Sir Humphrey Waldock inquired as to any special significance
attached to the words or consular. Professor Barto replied that he had long considered diplomatic
relations and consular relations as constituting an indivisible whole. But recently, several cases led
him to draw a theoretical as well as practical distinction between the two. UN Doc. a/cn.4/SR.757, 3
July 1964, p. 17.
121 Hackworth, Digest, pp. 6802.
122 See supra n. 37.
123 See New York Times, 7 Dec. 1962, p. 1, col. 5; 10 Dec. 1962, p. 2, col. 3; 15 Dec. 1962, p. 2,

col. 1; and 3 Jan. 1963, p. 2, col. 2.


124 See ibid. 21 Sept. 1962, p. 1, col. 2; 26 Sept. 1962, p. 7, col. 5; 4 Oct. 1962, p. 22, col. 3; 30

Nov. 1962, p. 31, col. 1. Inversely, an improved relationship between States may be reflected in the
expansion of consular relations. Thus, simultaneously with the deteriorating relationship with China,
the Soviet Union befriended Chinas adversaries by permitting India to open a consulate in Odessa
(New York Times, 14 Nov. 1962, p. 9, col. 1) and negotiated with the US for an exchange of
consulates (New York Times, 26 Sept. 1963, p. 1, col. 7). There had been no foreign consulates
outside Moscow in the USSR after the Kasenkina Case in 1948, except for several maintained by
Eastern European countries in Kiev. Ibid.
125

See New York Times, 14 May 1965, p. 3, col. 6.

126 See Washington Post, 19 Dec. 1965, p. A23, col. 8. When Tanzania broke diplomatic relations

with the UK over the Rhodesian issue, several British diplomats were permitted to remain in Dar es
Salaam to work in the Canadian Embassy and a skeleton staff of Tanzania remained in London.
New York Times, 16 Dec. 1965, p. 15, col. 1. Consular relations were maintained with several other
African countries when diplomatic relations were broken and in some cases a British Interests
Section of the Embassy of the protecting power continued to perform the functions of the former
consular section of the British Embassy.
127 New York Times, 25 June 1965, p. 1, col. 6.
128 Ibid., 13 Jan. 1964, p. 1, col. 6; 22 Jan. 1964, p. 1, col. 2; 17 Feb. 1964, p. 1, col. 5. On 3 Apr.

1964, the US and Panama resumed diplomatic relations. Ibid., 4 Apr. 1964, p. 2, cols. 1 and 3.
129 Statement of Professor Milan Barto at the ILC, UN Doc. a/cn.4/SR.757, 3 July 1964, p. 17.
130

Ibid. Diplomatic relations between the Federal Republic of Germany and Yugoslavia were
severed when Yugoslavia recognised the German Democratic Republic and in pursuance of the
Hallstein Doctrine, under which Bonn would sever diplomatic relations with any State (except the
Soviet Union) recognising the GDR.
131 Interview by Luke T. Lee with J. Alan Beesley, First Secretary of the Permanent Canadian

Mission to the European Office of the United Nations, Geneva, on 5 Aug. 1964.
132 New York Times, 31 Jan. 1965, p. 52, col. 2.
133 Ibid. 10 May 1965, p. 16, col. 6.
134 Ibid. 27 July 1988, p. A6.
135 Estonia, Consular Act, Art. 9(5).
136

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136 I. Moore, Digest, 73. But see also 5 Moore, 13.


137 H. Lauterpacht, Recognition in International Law (1947), p. 406.
138 I. Oppenheim, International Law, 1467.
139 I. Hackworth, Digest, 1668, 331.
140 Kiyoshi Karl Kawakami, Manchoukuo, Child of Conflict (1933), p. 192.
141 Statement by the Foreign Minister of Manchoukuo, Hsieh Chieh-shih, on the occasion of the

establishment of the consulate at Blagoveshchensk. Ibid.


142 See pp. 51516. See also Dept. of State, Documents on German Foreign Policy, 191945

(1949), Ser. D, I, p. 908.


143 Japan Manchoukuo Yearbook, 1934, pp. 6634.
144 New York Times, 15 Sept. 1959, p. 18, col. 7.
145 Ibid. 14 May 1965, p. 3, col. 6.
146 Ibid. 27 Mar. 1962, p. 3, col. 1.
147 UN Doc. a/cn.4/L.82, 14 May 1959.
148 Conference Room Paper No. 20(XI), 8 June 1959, UN Doc. a/cn.4/108.
149 Conference Room Paper No. 29(XI), 18 June 1959.
150 This lacuna was pointed out in the first edition of this volume (pp. 3334).
151 D. W. Bowett (reviewing first edition of this volume), 11 Intl & Comp. L. Q. 294295 (1962)

(suggesting that the conferees may have avoided the issue because it could operate like a spark
in a powder magazine).
152 Information supplied by Mr Richard J. Gookin, Associate Chief of Protocol for Diplomatic and

Consular Liaison, Department of State, 29 July 1988.


153 New York Times, 6 Sept. 1961, p. 3, col. 5.
154 Ibid. 2 Aug. 1961, p. 12, col. 2.
155

Ibid. 29 Oct. 1954, p. 5, col. 3.

156 57 AJIL 410 (1963).


157 Treaty of Friendship, Commerce and Navigation. Signed at Nanking, 4 Nov. 1946, 25 UNTS 69.

The provision that was invoked, on the basis that nationals be afforded rights afforded to nationals
of third States, read: A consular officer of either High Contracting Party may in behalf of his nonresident countrymen receipt for their distributive shares derived from estates in process of probate
provided he remit any funds so received through the appropriate agencies of his Government to
the proper distributees, and provided further that he furnish to the authority or agency making
distribution through him reasonable evidence of such remission.
158 Re Yee Yoke Dans Estate, 107 NYS 2d 221, 200 Misc. 499 (1951), reprinted in 19 ILR 398

(1952).
159 See letters dated 28 Mar. 1962, and 26 Nov. 1962, by the Dept. of State in response to private

enquiries regarding the powers of Soviet consuls in the administration of estates of nationals of
Estonia and Lithuania; excerpted in 57 AJIL 41011 (1963).
160 Isabel Kershner, British Envoy Seeks to Free Reporter Seized in Gaza, New York Times, 6

April 2007, p. A8, col. 1.


161 VCDR Art. 40.
162

191 F. Supp. 663 (US Dist. Ct., SD New York 1960), reported in 55 AJIL 986 (1961).

163 New York Times, 13 Apr. 1984, p. A36, col. 1.


164 Washington Post, 17 May 1988, p. A17, col. 1; New York Times, 18 May 1988, p. A8, col. 3.

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See also Denza, Diplomatic Law, pp. 366370 Jonathan Brown, Diplomatic Immunity: State
Practice under the Vienna Convention on Diplomatic Relations, 37 ICLQ 53 (1988), cites two cases
on Diplomats in Transit (pp. 5963), in which a more extended view of transit was taken by courts
in the UK and Australia. Brown argues that these cases were wrongly decided and that the purpose
of the transit should be taken into account.
165

Dickinson v. Del Solar, (1930) 1 K. B. 376, also Annual Digest 192930 No. 190; Denza,
Diplomatic Law, p. 374.
Commenting on diplomatic immunity and duty to respect local laws, Vattel wrote: This
independence of the foreign minister must not be converted into unrestrained license; it does not
release him from the duty of conforming in his external conduct to the customs and laws of the
country in all that does not relate to his character as ambassador; he is independent, but he has
not the right to do whatever he pleases. E. de Vattel, Le Droit des gens, Bk. IV, ch. 7, 93.
166 Penultimate para.
167 Sir Cecil Hurst, in Les Immunits diplomatiques, Recueil des cours. 1926, 11. p. 142, states:

L obligation qui leur incombe de respecter ces lois ne provient daucune obligation de leur obir.
168

VCDR Art. 41(1) is identical to VCCR Art. 55(1).

169 Denza, Diplomatic Pratice, p. 374.


170 Although at the Mexico City Conference of the UN Special Committee on Principles of

International Law concerning Friendly Relations and Co-operation among States, 27 Aug.2 Oct.
1964, the US insisted that Art. 2(7) of the Charter was explicitly concerned only with
nonintervention by the UN, and not by States, it subsequently joined the consensus in adopting the
Principle concerning the Duty not to Intervene in Matters within the Domestic Jurisdiction of Any
State, in accordance with the Charter, in the 1970 Declaration of Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of
the UN. See the Official Records of the General Assembly, 25th Sess., Supp. No. 2, pp. 1214. For
the Mexico City Conference, see Lee, The Mexico City Conference of the United Nations Special
Committee on Principles of International Law concerning Friendly Relations and Co-operation among
States, 14 Intl & Comp. L. Q. 1296 (1965).
171 Chinese Hong Kong official rebukes British consulate role in polls, Xinhua News Agency, BBC

Worldwide Monitoring, 7 May 1998.


172 VCDR Art. 31.
173 Memorandum of reply concerning the Bill for the approval of the Vienna Convention on

Diplomatic Relations of 18 Apr. 1961, and its Protocols in Trb. 1962 Nos. 101 and 159; 15
Netherlands Yb. Intl L. 308 (1984).
174

Shardakov Wants to Leave, Polish News Bulletin, 25 November 1994. See also Who Demands
Expulsion of Russian Consul?, Russian Press Digest, 25 November 1994; Russian Consul in Cracow
Not to be Expelled, BBC Summary of World Broadcasts, quoting Polish Press Agency, 24 November
1994.
175 European Court of Human Rights, Bankovic v. Belgium and Others, Application No. 52207/99,

para. 73, 41 ILM 517 (2001).

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