DIPLOMATIC SERVICE,CONSULAR ROLES AND THE RULES OF PROTOCOL
Do nation states, in their dealings with each other, place more importance on political and diplomatic or trade and commercial relations? It would appear from the following that, in theory at least, much more importance is attached to diplomatic relations. That ,as pithily put by Winston Churchill, “jaw jaw is better than war war”. Whether commercial considerations are the main drivers of political relations is another question.
The Vienna convention on Diplomatic Relations 1961 codified for the first time the existing rules of international law governing diplomatic intercourse among nations undertaken by Ambassadors, and the immunities granted to diplomatic agents. The Vienna Convention on Consular Relations 1963 did the same in relation to consuls. Most countries, including Australia and Lebanon, have ratified these two conventions, incorporating them into their own laws.
Diplomats, i.e. Ambassadors, represent their country in the full sense. Consul and Consuls General on the other hand are confined to looking after their nationals in regional centres and processing the necessary documentation associated with travel, trade and commerce. Article 3 of the 1961 convention states that:
1. The functions of a diplomatic mission consist, inter alia, in:
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
(e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
Article 5 of the 1963 Convention on Consular relations states inter alia as follows:
Consular functions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
Dr Assem Gaber, in his seminal text, “The Role of Consuls and Diplomats in Law and Practice”, states that the principle role of consuls is the business set out in Article 5,whereas diplomats have this role and in addition the role of representing a sovereign state in its international relations. A diplomat, he says, expresses the will of the sending state and speaks in its name .He represents the President and the government in relations with the head of the host country and its government in every respect, particularly the political. A consul general ,states Dr Gaber, is not in any way shape or form a diplomatic representative of his country. Consulates, he says, are a department of a government , not its representative.
Dr Gaber lists five factors which distinguish the legal status of diplomats and consuls general:
1.A diplomat is chosen by his Head of State in consultation with the Head of State of the receiving state. A consul general is appointed by his Department of Foreign Affairs without consultation.
2.Diplomats present their credentials to the receiving Head of State.Consuls general provide a letter of appointment .
3.The powers of a diplomat extend to every aspect of relations between sovereign states, including political relations, and cover the WHOLE of the geographical area of the receiving state. Consul generals’s powers are restricted to the region of the state in which he is appointed and do not extend to political relations between the 2 states.
The powers and roles of diplomats are determined by international laws, conventions and agreements and are internationally uniform, whereas the roles and powers of consul generals are determined by local laws and may vary from state to state.
4.The immunity granted to diplomats is wider than that granted to consular
5.A consul general is not permitted to make representations to federal government authorities as a representative of his department of Foreign Affairs – he is restricted to making representations only to the local authorities of his region.A diplomat however can make representations to any federal or other government authority.
Consular status is therefore quite different from diplomatic status in that Consuls and Consuls General are only authorised to work in specific geographic areas and their functions are non representative. Consequently their privileges and immunities are fewer from those of diplomats. Only where there is no Embassy in a particular country, the Consul General might be permitted to make representations as if he were a diplomat. It will be obvious that , in the interests of the smooth conduct of the above duties , a Consulate must during opening hours always be available to the general public to take enquiries by telephone and otherwise, engage them in the promotion of the sending state, and serve their consular needs.
It should be noted that while consulates cannot perform a diplomatic role , diplomatic missions are given power by article 70 of the 1963 convention to exercise consular functions:
EXERCISE OF CONSULAR FUNCTIONS BY DIPLOMATIC MISSIONS
1. The provisions of the present Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission.
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.
3. In the exercise of consular functions a diplomatic mission may address:
(a) the local authorities of the consular district;
(b) the central authorities of the receiving State if this is allowed by the laws, regulations and usages of the receiving State or by relevant international agreements.
4. The privileges and immunities of the members of a diplomatic mission referred to in paragraph 2 of this Article shall continue to be governed by the rules of international law concerning diplomatic relations.
Article 57 of the 1963 Convention on Consular Relations states as follows:
SPECIAL PROVISIONS CONCERNING PRIVATE GAINFUL OCCUPATION
1. Career consular officers shall not carry on for personal profit any professional or commercial activity in the receiving State.
2. Privileges and immunities provided in this Chapter shall not be accorded:
(a) to consular employees or to members of the service staff who carry on any private gainful occupation in the receiving State;
(b) to members of the family of a person referred to in sub-paragraph (a) of this paragraph or to members of his private staff;
(c) to members of the family of a member of a consular post who themselves carry on any private gainful occupation in the receiving State.
As to protocol, it should be noted that according to the Vienna Conventions, only the Ambassador is referred to as “His Excellency”. The proper form of address for a Consul General is “Mr Consul General”. The tables of precedence for New South Wales and the Commonwealth puts Ambassadors immediately after the Governor General, Prime Minister and Chief Justice (and premiers if it is a State function). Consuls General are number 29 in the table, only ahead of recipients of decorations and honours.
It is thus easy to see that the diplomatic role of Ambassadors is much more venerated than the commercial role of consuls general. It would behoove governments to bear in mind that the political interests of their country must precede their commercial interests – that benefits to their commercial and other interests flow from sound political relations.
About The Author
Rick Mitry has appeared in many high profile cases for both litigants of Arabic origin, as well as some iconic Australian figures. His record of winning seemingly unwinnable case (sometimes pro bono on behalf of impecunious clients) is widely regarded and highly esteemed. A quick search of Google would indicate some of the cases referred to.
Mr Mitry was born in Raskifa, North Lebanon, and migrated to Australia with his parents at the age of three. He is a fiercely proud Australian but has not forgotten his mother country, and is highly conscious of its needs. As he has said “If you forget your ancestry you forget yourself”. His tireless and hard work for the Australian-Lebanese community is unparalleled. He founded the Australian- Lebanese Lions Club (a Chapter of the International Association of Lions Clubs) in 1983 and the Australian-Lebanese Chamber of Commerce in 1985, and the Australian Lebanese International Council in 199. He has served on a number of Unicef and other committees in the aim of raising awareness of and assistance for Lebanon.
Mr Mitry is the author of several legal publications including “The Business Law of the Middle East” and “The Law of Diplomacy and the Rules of Protocol”, and has tutored at the University of Sydney as well as the University of Technology (Sydney) He has led a number of high profile Australian Political and Business delegations to the Middle East.
He is married to Sandra who is of Lebanese origin and is the proud father of six children, the eldest of which, Richard Louis, recently graduatd with first class honours from Sdney University and is now a lawyer in his office.