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Draft Articles on Consular Relations with Commentaries, 1961

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Draft Articles on Consular Relations with Commentaries, 1961 Draft Articles on Consular Relations, with commentaries 1961 Text adopted by the International Law Commission at its thirteenth session, in 1961, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (at para. 37). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1961, vol. II. Copyright © United Nations 2005 92 Yearbook of the International Law Commission, Vol. II for the purposes of facilities, privileges and immunities, " Considering that a United Nations Conference adopted on career consular officials who carry on a private gainful 18 April 1961 the Vienna Convention on Diplomatic Relations, occupation (article 56) are placed on a footing of equality " Believing that an international convention on consular rela- with honorary consular officials. tions would also contribute to the development of friendly rela- tions among nations, irrespective of their differing constitutional (d) Chapter IV contains the general provisions. and social systems, 35. The chapters, sections and articles are headed by " Affirming that the rules of customary international law should titles indicating the subjects to which their provisions continue to govern questions not expressly regulated by the pro- refer. The Commission regards the chapter and section visions of the present convention, titles as helpful for an understanding of the structure " Have agreed as follows: " of this draft. It believes that the titles of articles are of value in finding one's way about the draft and in 37. The text of draft articles 1 to 71 and the com- tracing quickly any provision to which one may wish mentaries, as adopted by the Commission on the proposal to refer. The Commission hopes, therefore, that these of the Special Rapporteur, are reproduced below. titles will be retained in any convention which may be concluded in the future, even if only in the form of IV. Draft articles on consular relations, marginal headings, such as have been inserted in some and commentaries earlier conventions. 36. The Commission having decided that the draft Article I. — Definitions articles on consular relations should form the basis I. For the purpose of the present draft, the following expressions for the conclusion of a multilateral convention, the shall have the meanings hereunder assigned to them : Special Rapporteur also submitted a draft preamble,15 (a) " Consulate" means any consular post, whether it be a for which purpose he was guided by the preamble of consulate-general, a consulate, a vice-consulate or a consular the Vienna Convention of 18 April 1961 on Diplomatic agency; Relations. When this draft preamble, as amended by (b) " Consular district" means the area assigned to a consulate the Drafting Committee, was submitted to the Com- for the exercise of its functions; mission, some members took the view that the drafting of the preamble should be left to the conference of (c) " Head of consular post" means any person in charge of a consulate; plenipotentiaries which might be convened to conclude such a convention. Not having the time to discuss the (d) " Consular official " means any person, including the head of post, entrusted with the exercise of consular functions in a point, the Commission decided that the text proposed consulate; for the preamble would be inserted in the commentary introducing this draft. The preamble prepared by the (e) " Consular employee " means any person who is entrusted with administrative or technical tasks in a consulate, or belongs Drafting Committee reads as follows: to its service staff; " The States parties to the present convention, (f) " Members of the consulate " means all the consular officials " Recalling that consular relations have been established among and consular employees in a consulate; peoples of all nations since ancient times, (g) " Members of the consular staff " means the consular officials "Having in mind the purposes and principles of the Charter other than the head of post, and the consular employees; of the United Nations concerning the sovereign equality of States, (/>) " Member of the service staff" means any consular employee the maintenance of international peace and security, and the pro- in the domestic service of the consulate; motion of friendly relations among nations, (i) " Member of the private staff" means a person employed exclusively in the private service of a member of the consulate; 15 The text of this draft preamble reads as follows: (j) " Consular premises " means the buildings or parts of build- " The States parties to this convention, ings and the land ancillary thereto, irrespective of ownership, " Recalling that, since the most ancient times, economic rela- used for the purposes of the consulate; tions between peoples have given rise to the institution of con- sular missions, (k) " Consular archives" means all the papers, documents, " Conscious of the purposes and principles of the Charter of correspondence, books and registers of the consulate, together the United Nations concerning the sovereign equality of States, with the ciphers and codes, the card-indexes and any article of the maintenance of international peace and security and the furniture intended for their protection or safekeeping. development of friendly relations among nations, " Considering it desirable to establish the essential rules govern- 2. Consular officials may be career officials or honorary. The ing relations between States in the matter of consular relations, provisions of chapter II of this draft apply to career officials and " Considering that in the Vienna Convention on Diplomatic to consular employees; the provisions of chapter III apply to honorary Relations dated 18 April 1961 it is stipulated (article 3) that no- consular officials and to career officials who are assimilated to thing in that convention shall be construed as preventing the per- them under article 56. formance of consular functions by a diplomatic mission, 3. The particular status of members of the consulate who are " Convinced that an international convention on consular rela- nationals of the receiving State is governed by article 69 of this tions, privileges and immunities would contribute to the develop- draft. ment of friendly relations among countries, irrespective of the diversity of their constitutional and social systems, Commentary " Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the pro- (1) This article has been inserted in order to visions of this convention, facilitate the interpretation and application of the " Have agreed as follows: " convention. Report of the Commission to the General Assembly 93 (2) Paragraph 1 of this article contains definitions of in any occupation and who are living in the home of certain expressions which need to be defined and are a member of the consulate. The Drafting Committee used more than once in the text of the articles. As proposed the following definition: " Member of the regards the expressions which are used in one article family of a member of the consulate means the spouse only, the Commission preferred to define them in the and the unmarried children not of full age, who live relevant articles. For example, the term " exequatur" in his home." The Commission was divided with respect is defined in article 11 and the expression " official to the insertion of a definition of " family " in the draft correspondence " in article 35, paragraph 2, of this draft. and also as to the scope of the definition submitted by the Drafting Committee, which several members found (3) The Commission considered it unnecessary to too restrictive. Eventually, inasmuch as the United define expressions the meaning of which is quite clear, Nations Conference on Diplomatic Intercourse and such as " sending State " and " receiving State ". Immunities had been unable to reach agreement on this (4) The expression " members of the consulate" point, the Commission decided by a majority not to means all the persons who belong to a particular con- include a definition of member of the family of a member sulate, that is to say, the head of post, the other of the consulate in the draft. consular officials and the consular employees. By contrast, the expression " members of the consular staff " (8) Since article 1 constitutes a sort of introduction means all persons working in a consulate under the to the whole draft, paragraph 2 was included in order responsibility of the head of post, that is to say, consular to indicate that there are two categories of consular officials other than the head of post, and the consular officials, namely, career consular officials and honorary employees. consular officials, the two categories of consular officials having a different legal status so far as consular privileges (5) The expression " private staff" means not only and immunities are concerned. the persons employed in the domestic service of a member (9) The purpose of paragraph 3 of this article is to of the consulate, but also persons employed in any indicate that members of the consulate who are nationals other private service, such as private secretaries, gov- of the receiving State are in a special position since ernesses, tutors, and the like. they enjoy only very limited privileges and immunities (6) The expression " consular archives" means all as defined in article 69 of the draft. Several govern- the papers of the.consulate, the correspondence, docu- ments suggested in their comments that in certain ments, books, the registers of the consulate, the codes articles of the present draft express reference should and ciphers, card-indexes and the articles of furniture be made to article 69 in order to show more clearly intended for the protection and safekeeping of all papers that the provisions in question do not apply to members and objects coming under the definition of consular of the consulate who are nationals of the receiving State.
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