Page 104 - Law of Peace, Volume ,

from suit in a state court should be extended to members of the consul's amenable to the jurisdiction of the judicial or administrative authorities
family. The analogy is not persuasive. The diplomatic immunity of am- of the receiving State in respect of acts performed in the exercise of con-
bassadors and other envoys and the members of their suites rests on a sular functions.
principle of international law which has been recognized and applied by (2) The provisions of paragraph 1 of this Article shall not, however,
our courts. Under international law a consul does not enjoy any such im- apply in respect of a civil action either:
munity, at least as to suits not based on his official acts within the scope (a) arising out of a contract concluded by a consular officer or a
of his duties as consul. Coppell v. Hall, 7 Wall (74 U.S.) 542, 553, 19 consular employee in which he did not contract expressly or
L.Ed. 244; The Anne, 3 Wheat. (16 US.) 435, 445, 446, 4 L.Ed.428; impliedly as an agent of the sending State;
Arcaya v. Paez, D.C., 145 F. Supp. 464, flied 2 Ci.,244 F.2d 958. or
Such immunity as a consul enjoys from suit in a state court is not one (b) by a thud party for damage arising from an accident in the
based on international law but is conferred solely by statute, and in fact receiving State caused by a vehicle, vessel or aircraft.
Congress has not always expressly provided for exclusive federal juris- Art. 44. (1) Members of a consular post may be called upon to attend
diction over actions against consuls. Bors v. Preston, 111U.S. 252, 261, as witnesses in the course of judicial or administrative proceedings. A
4 S.Ct. 407, 41 1, 28 L.Ed.419. Hence there is no basis for concluding consular employee or a member of the service staff shall not, except in
that the scope of any immunity conferred by 5 1351should be co-exten- the cases mentioned in paragraph 3 of this Article, decline to give evi-
sive with the scope of diplomatic immunity under international law. dence. If a consular officer should decline to do so, no coercive measure
* * *
or penalty may be applied to him.
(2) The authority requiring the evidence of a consular officer shall
Note that under international law, a consul does not enjoy avoid interference with the performance of his functions. . . .
immunity as to suits not based on his official acts within (3) Members of a consular post are under no obligation to give evi-
the scope of his duties. dence concerning matters connected with the exercise of their functions
5-17. The 1963 Vienna Convention on Consular Rela- or to produce official correspondence and documents relating thereto.
tions. 38 a. Personal functions and immunities. Article 5 They are also entitled to decline to give evidence as expert witnesses
with regard to the law of the sending State.
of the agreement contains a list of consular functions.
Art. 45. (1) The sending State may waive, with regard to a member of
These cover a wide spectrum and include, among others, the consular post, any of the privileges and immunities provided for in
protecting in the receiving state the interests of the send- Articles 41,43 and 44.
ing state and its nationals; furthering the development of (2) The waiver shall in all cases be express, except as provided in
commercial, economic, cultural and scientifc relations; paragraph 3 of this Article, and shall be communicated to the receiving
ascertaining conditions and developments in the commer- State in writing.
(3) The initiation of proceedings by a consular officer or a consular
cial, economic, cultural and scientific life of the receiving employee in a matter where he might enjoy immunity from jurisdiction
state; issuing passports, visas, and travel documents; under Article 43 shall preclude him from invoking immunity from juris-
helping and assisting nationals of the sending state; serv- diction in respect of any counter-claim directly connected with the prin-
ing as a notary or civil registrar; assisting nationals in con- cipal claim.
(4) The waiver of immunity from jurisdiction for the purposes of civil
nection with decedents' estates, guardianships for persons or administrative promedings shall not be deemed to imply the waiver of
lacking legal capacity and representation and preservation immunity from the measures of execution resulting from the judicial
of rights before local tribunals; transitting documents or decision; in respect of such measures, a separate waiver shall be neces-
executing letters rogatory or commissions to take evi- sary.
dence for courts of the sending state; exercising rights of Art. 53. (1) Every member of the consular post shall enjoy the privi-
supervision and inspection of vessels and aircraft of the leges and immunities provided in the present Convefition from the mo-
ment he enters the territory of the receiving State on proceeding to take
sending state; and extending assistance to such vessels and up his post or, if already in its territory, from the moment when he en-
aircraft and their crews, including conducting investiga- ters on his duties with the consular post.
tions and settlii disputes. The provisions of the conven- (2) Members of the family of a member of the consular post forming
tion most relevant to a discussion of jurisdictional irn- part of his household and members of his private staff shall receive the
munities follow. privileges and immunities provided in the present Convention from the
date from which he enjoys privileges and immunities in accordance with
Art. 41. (1) Consular officers shall not be liable to arrest or detention paragraph 1of this Article or from the date of their entry into the territo-
pending trial, except in the case of a grave crime and pursuant to a deci- ry of the receiving State or from the date of their becoming a member of
sion by the competent judicial authority. such family or private staff, whichever is the latest.
in
(2) Except in the case sw~ed paragraph 1 of this Article,, consul-
ar officers shall not be committed to prison or liable to any other form of (3) When the functions of a member of the consular post have come
restriction on their personal freedom save in execution of ajudicial deci- to an end, his privileges and immunities and those of a member of his
sion of fmal effect. family forming part of his household or a member of his private staff
(3) If criminal proceedings are instituted against a consular officer, he shall normally cease at the moment when the person concerned leaves
must appear before the competent authorities. Nevertheless, the the receiving State or on the expiry of a reasonable period in which to do
so, whichever is the sooner, but shall subsist until that time, even in
proceedings shall be conducted with the respect due to him by reason of
his official position and, except in the case smed in paragraph 1 of case of armed conflict. In the case of the persons referred to in paragraph
this Article, in a manner which will hamper the exercise of consular 2 of this Article, their privileges and immunities shall come to an end
functions as little as possible. When, in the circumstances mentioned in when they cease to belong to the household or to be in the service of a
paragraph 1.of this Article, it has become necessary to detain a consular member of the consular post provided, however, that if such persons in-
officer, the proceedings against him shall be instituted with the tend leaving the receiving State within a reasonable period thereafter,
minimum of delay. their privileges and immunities shall subsist until the time of their
Art. 43. (1) Consular officers and consular employees shall not be departure.
(4) However, with respect to actsperformed by a consular officer or a
38. 21 U.S.T. 325; U.N.T.S. 261. consular employee in the exercise of his functions, immunity from juris-

5-18