Vienna Convention on Diplomatic Relations and Consular Relations
The Vienna Conventions on Diplomatic Relations is an international treaty on diplomatic intercourse and the privileges and immunities of a diplomatic mission. Adopted on April 18, 1961 by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria, from March 2 to April 14.
The Conference also adopted the Optional Protocol concerning the Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. Done at Vienna, on April 18, 1961. It was first implemented on April 24, 1964.
The Vienna Convention on Consular Relations (or VCCR) was completed in 1963 as a multilateral treaty to codify consular practices that developed through customary international law, numerous bilateral treaties, and a number of regional treaties.
The VCCR enumerates basic legal rights and duties of signatory States, including:
• the establishment and conduct of consular relations, by mutual consent, and
• the privileges and immunities of consular officers and offices from the laws of the “receiving State” (the country where the foreign consular office has been established).
Article 36 of the VCCR requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then check up on the person. The notice to the consulate can be as simple as a fax, giving the person's name, the place of arrest, and, if possible, something about the reason for the arrest or detention.
VIENNA CONVENTION ON DIPLOMATIC RELATIONS AND OPTIONAL PROTOCOLS
DONE AT VIENNA, ON 18 APRIL 1961
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
Have agreed as follows:
Article I
For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;
(b) the "members of the mission" are the head of the mission and the members of the staff of the mission;
(c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of
the service staff of the mission;
(d) the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;
(e) a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;
(f) the "members of the administrative and technical staff" are themembers of the staff of the mission employed in the administrative and technical service of the mission;
(g) the "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;
(h) a "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;
(i) the "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.
Article 3
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.
2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.
Article 4
1. The sending State must make certain that the agr‚ment of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of agr‚ment.
Article 5
1. The sending State may, after it has given due notification to the receiving States concerned, accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.
2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a charge d'affaires ad interim in each State where the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as representative of the sending State to any international organization.
Article 6
Two or more States may accredit the same person as head of mission to another State, unless objection is offered by the receiving State.
Article 7
Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Article 8
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Article 9
1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.
Article 10
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;
(b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;
(c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;
(d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.
2. Where possible, prior notification of arrival and final departure shall also be given.
Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a nondiscriminatory basis, refuse to accept officials of a particular category.
Article 12
The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.
Article 13
1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.
Article 14
1. Heads of mission are divided into three classes, namely:
(a) that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
(b) that of envoys, ministers and internuncios accredited to Heads of State;
(c) that of charges d'affaires accredited to Ministers for Foreign Affairs.
2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.
Article 15
The class to which the heads of their missions are to be assigned shall be agreed between States.
Article 16
1. Heads of mission shall take precedence in their respective classes in the order of the date and time of taking up their functions in accordance with Article 13.
2. Alterations in the credentials of a head of mission not involving any change of class shall not affect his precedence.
3. This article is without prejudice to any practice accepted by the receiving State regarding the precedence of the representative of the Holy See.
Article 17
The precedence of the members of the diplomatic staff of the mission shall be notified by the head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.
Article 18
The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class.
Article 19
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission.
Article 20
The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.
Article 21
1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way.
2. It shall also, where necessary, assist missions in obtaining suitable accommodation for their members.
Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23
1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.
Article 24
The archives and documents of the mission shall be inviolable at any time and wherever they may be.
Article 25
The receiving State shall accord full facilities for the performance of the functions of the mission.
Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.
Article 27
1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
Article 28
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.
Article 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.
Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duty,with respect to immovable property, subject to the provisions ofArticle 23.
Article 35
The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.
Article 37
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Article 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in transit, including messages in code or cipher, the same freedom and protection as is accorded by the receiving State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is bound to accord.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the territory of the third State is due to force majeure.
Article 41
1. 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.
2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
Article 42
A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.
Article 43
The function of a diplomatic agent comes to an end, inter alia:
(a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.
Article 44
The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.
Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:
(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.
Article 46
A sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third State and of its nationals.
Article 47
1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;
(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.
Article 48
The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at
the United Nations Headquarters in New York.
Article 49
The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 50
The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in Article 48. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 51
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 52
The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in Article 48:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 48, 49 and 50; (b) of the date on which the present Convention will enter into force, in accordance with Article 51.
Article 53
The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 48.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this eighteenth day of April one thousand nine hundred and
sixty-one.
VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLS
DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Convention,
Recalling that consular relations have been established between peoples since ancient times,
Having in mind the Purposes and Principles of the Charter of the United Nation concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Considering that the United Nations Conference on Diplomatic Intercourse and Immunities adopted the Vienna Convention on Diplomatic Relations which was opened for signature on 18 April 1961,
Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing 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,
Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,
Have agreed as follows:
Article 1
DEFINITIONS
1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) "consular post" means any consulate-general, consulate, vice-consulate or consular agency;
(b) "consular district" means the area assigned to a consular post for the exercise of consular functions;
(c) "head of consular post" means the person charged with the duty of acting in that capacity;
(d) "consular officer" means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;
(e) "consular employee" means any person employed in the administrative or technical service of a consular post;
(f) "member of the service staff" means any person employed in the domestic service of a consular post;
(g) "members of the consular post" means consular officers, consular employees and members of the service staff;
(h) "members of the consular staff" means consular officers, other than the head of a consular post, consular employees and members of the service staff;
(i) "member of the private staff" means a person who is employed exclusively in the private service of a member of the consular post;
(j) "consular premises" means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;
(k) "consular archives" includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping.
2. Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers; the provisions of Chapter III govern consular posts headed by honorary consular officers.
3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by Article 71 of the present Convention.
CHAPTER I
CONSULAR RELATIONS IN GENERAL
Section I ESTABLISHMENT AND CONDUCT OF CONSULAR RELATIONS
Article 2 ESTABLISHMENT OF CONSULAR RELATIONS
1. The establishment of consular relations between States takes place by mutual consent.
2. The consent given to the establishment of diplomatic relations between two States implies, unless otherwise stated, consent to the establishment of consular relations.
3. The severance of diplomatic relations shall not ipso facto involve the severance of consular relations.
Article 3
EXERCISE OF CONSULAR FUNCTIONS
Consular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of the present Convention.
Article 4
ESTABLISHMENT OF A CONSULAR POST
1. A consular post may be established in the territory of the receiving State only with that State's consent.
2. The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State.
3. Subsequent changes in the seat of the consular post, its classification or the consular district may be made by the sending State only with the consent of the receiving State.
4. The consent of the receiving State shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agency in a locality other than that in which it is itself established.
5. The prior express consent of the receiving State shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof.
Article 5
CONSULAR FUNCTIONS
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;
(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
(k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;
(l) extending assistance to vessels and aircraft mentioned in sub-paragraph (k) of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and,without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;
(m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international
agreements in force between the sending State and the receiving State.
Article 6
EXERCISE OF CONSULAR FUNCTIONS OUTSIDE THE CONSULAR DISTRICT
A consular officer may, in special circumstances, with the consent of the receiving State, exercise his functions outside his consular district.
Article 7
EXERCISE OF CONSULAR FUNCTIONS IN A THIRD STATE
The sending State may, after notifying the States concerned, entrust a consular post established in a particular State with the exercise of consular functions in another State, unless there is express objection by one of the States concerned.
Article 8
EXERCISE OF CONSULAR FUNCTIONS ON BEHALF OF A THIRD STATE
Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.
Article 9
CLASSES OF HEADS OF CONSULAR POSTS
1. Heads of consular posts are divided into four classes, namely:
(a) consuls-general;
(b) consuls;
(c) vice-consuls;
(d) consular agents.
2. Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.
Article 10
APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
1. Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.
2. Subject to the provisions of the present Convention, the formalities for the appointment and for the admission of the head of a consular post are determined by the laws, regulations and usages of the sending State and of the receiving State respectively.
Article 11
THE CONSULAR COMMISSION OR NOTIFICATION OF APPOINTMENT
1. The head of a consular post shall be provided by the sending State with a document, in the form of a commission or similar instrument, made out for each appointment, certifying his capacity and showing, as a general rule, his full name, his category and class, the consular district and the seat of the consular post.
2. The sending State shall transmit the commission or similar instrument through the diplomatic or other appropriate channel to the Government of the State in whose territory the head of a consular post is to exercise his functions.
3. If the receiving State agrees, the sending State may, instead of a commission or similar instrument, send to the receiving State a notification containing the particulars required by paragraph 1 of this Article.
Article 12
THE EXEQUATUR
1. The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur, whatever the form of this authorization.
2. A State which refuses to grant an exequatur is not obliged to give to the sending State reasons for such refusal.
3. Subject to the provisions of Articles 13 and 15, the head of a consular post shall not enter upon his duties until he has received an exequatur.
Article 13
PROVISIONAL ADMISSION OF HEADS OF CONSULAR POSTS
Pending delivery of the exequatur, the head of a consular post may be admitted on a provisional basis to the exercise of his functions. In that case, the provisions of the present Convention shall apply.
Article 14
NOTIFICATION TO THE AUTHORITIES OF THE CONSULAR DISTRICT
As soon as the head of a consular post is admitted even provisionally to the exercise of his functions, the receiving State shall immediately notify the competent authorities of the consular district. It shall also ensure that the necessary measures are taken to enable the head of a consular post to carry out the duties of his office and to have the benefit of the provisions of the present Convention.
Article 15
TEMPORARY EXERCISE OF THE FUNCTIONS OF THE HEAD OF A CONSULAR POST
1. If the head of a consular post is unable to carry out his functions or the position of head of consular post is vacant, an acting head of post may act provisionally as head of the consular post.
2. The full name of the acting head of post shall be notified either by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, by the head of the consular post, or, if he is unable to do so, by any competent authority of the sending State, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry. As a general rule, this notification shall be given in advance. The receiving State may make the admission as acting head of post of a person who is neither a diplomatic agent nor a consular officer of the sending State in the receiving State conditional on its consent.
3. The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he is in charge of the post, the provisions of the present Convention shall apply to him on the same basis as to the head of the consular post concerned. The receiving State shall not, however, be obliged to grant to an acting head of post any facility, privilege or immunity which the head of the consular post enjoys only subject to conditions not fulfilled by the acting head of post.
4. When, in the circumstances referred to in paragraph 1 of this Article, a member of the diplomatic staff of the diplomatic mission of the sending State in the receiving State is designated by the sending State as an acting head of post, he shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.
Article 16
PRECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
1. Heads of consular posts shall rank in each class according to the date of the grant of the exequatur.
2. If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, his precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.
3. The order of precedence as between two or more heads of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of Article 11 were presented to the receiving State.
4. Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of Article 15.
5. Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs.
6. Heads of consular posts shall have precedence over consular officers not having that status.
Article 17
PERFORMANCE OF DIPLOMATIC ACTS BY CONSULAR OFFICERS
1. In a State where the sending State has no diplomatic mission and is not represented by a diplomatic mission of a third State, a consular officer may, with the consent of the receiving State, and without affecting his consular status, be authorized to perform diplomatic acts. The performance of such acts by a consular officer shall not confer upon him any right to claim diplomatic privileges and immunities.
2. A consular officer may, after notification addressed to the receiving State, act as representative of the sending State to any inter-governmental organization. When so acting, he shall be entitled to enjoy any privileges and immunities accorded to such a representative by customary international law or by international agreements; however, in respect of the performance by him of any consular function, he shall not be entitled to any greater immunity from jurisdiction than that to which a consular officer is entitled under the present Convention.
Article 18
APPOINTMENT OF THE SAME PERSON BY TWO OR MORE STATES
AS A CONSULAR OFFICER
Two or more States may, with the consent of the receiving State, appoint the same person as a consular officer in that State.
Article 19
APPOINTMENT OF MEMBERS OF CONSULAR STAFF
1. Subject to the provisions of Articles 20, 22 and 23, the sending State may freely appoint the members of the consular staff.
2. The full name, category and class of all consular officers, other than the head of a consular post, shall be notified by the sending State to the receiving State in sufficient time for the receiving State, if it so wishes, to exercise its rights under paragraph 3 of Article 23.
3. The sending State may, if required by its laws and regulations, request the receiving State to grant an exequatur to a consular officer other than the head of a consular post.
4. The receiving State may, if required by its laws and regulations, grant an exequatur to a consular officer other than the head of a consular post.
Article 20
SIZE OF THE CONSULAR STAFF
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 district and to the needs of the particular post.
Article 21
PRECEDENCE AS BETWEEN CONSULAR OFFICERS OF A CONSULAR POST
The order of precedence as between the consular officers of a consular post and any change thereof shall be notified by the diplomatic mission of the sending State or, if that State has no such mission in the receiving State, by the head of the consular post, to the Ministry for Foreign Affairs of the receiving State or to the authority designated by that Ministry.
Article 22
NATIONALITY OF CONSULAR OFFICERS
1. Consular officers should, in principle, have the nationality of the sending State.
2. Consular officers may not be appointed from among persons having the nationality of the receiving State except with the express consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Article 23
PERSONS DECLARED "NON GRATA"
1. The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.
2. If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this Article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.
3. A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.
4. In the cases mentioned in paragraphs 1 and 3 of this Article, the receiving State is not obliged to give to the sending State reasons for its decision.
Article 24
NOTIFICATION TO THE RECEIVING STATE OF APPOINTMENTS,
ARRIVALS AND DEPARTURES
1. The Ministry for Foreign Affairs of the receiving State or the authority designated by that Ministry shall be notified of:
(a) the appointment of members of a consular post, their arrival after appointment to the consular post, their final departure or the termination of their functions and any other changes affecting their status that may occur in the course of their service with the
consular post;
(b) the arrival and final departure of a person belonging to the family of a member of a consular post forming part of his household and, where appropriate, the fact that a person becomes or ceases to be such a member of the family;
(c) the arrival and final departure of members of the private staff and, where appropriate, the termination of their service as such;
(d) the engagement and discharge of persons resident in the receiving State as members of a consular post or as members of the private staff entitled to privileges and immunities.
2. When possible, prior notification of arrival and final departure shall also be given.
Section II END OF CONSULAR FUNCTIONS
Article 25
TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
The functions of a member of a consular post shall come to an end interalia:
(a) on notification by the sending State to the receiving State that his functions have come to an end;
(b) on withdrawal of the exequatur;
(c) on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff.
Article 26
DEPARTURE FROM THE TERRITORY OF THE RECEIVING STATE
The receiving State shall, even in case of armed conflict, grant to members of the consular post and members of the private staff, other than nationals of the receiving State, and to members of their families forming part of their households irrespective of nationality, the necessary time and facilities to enable them to prepare their departure and to leave at the earliest possible moment after the termination of the functions of the members concerned. In particular, it shall, in case of need, place at their disposal the necessary means of transport for themselves and their property other than property acquired in the receiving State the export of which is prohibited at the time of departure.
Article 27
PROTECTION OF CONSULAR PREMISES AND ARCHIVES AND OF THE INTERESTS OF THE SENDING STATE IN EXCEPTIONAL CIRCUMSTANCES
1. In the event of the severance of consular relations between two States:
(a) the receiving State shall, even in case of armed conflict, respect and protect the consular premises, together with the property of the consular post and the consular archives;
(b) the sending State may entrust the custody of the consular premises, together with the property contained therein and the consular archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.
2. In the event of the temporary or permanent closure of a consular post, the provisions of sub-paragraph (a) of paragraph 1 of this Article shall apply. In addition,
(a) if the sending State, although not represented in the receiving State by a diplomatic mission, has another consular post in the territory of that State, that consular post may be entrusted with the custody of the premises of the consular post which has been closed, together with the property contained therein and the consular archives, and, with the consent of the receiving State, with the exercise of consular functions in the district of that consular post; or
(b) if the sending State has no diplomatic mission and no other consular post in the receiving State, the provisions of sub-paragraphs (b) and (c) of paragraph 1 of this Article shall apply.
CHAPTER II
FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CONSULAR POSTS, CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST
Section I FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO A
CONSULAR POST
Article 28
FACILITIES FOR THE WORK OF THE CONSULAR POST
The receiving State shall accord full facilities for the performance of the functions of the consular post.
Article 29
USE OF NATIONAL FLAG AND COAT-OF-ARMS
1. The sending State shall have the right to the use of its national flag and coat-of-arms in the receiving State in accordance with the provisions of this Article.
2. The national flag of the sending State may be flown and its coat-of-arms displayed on the building occupied by the consular post and at the entrance door thereof, on the residence of the head of the consular post and on his means of transport when used on official business.
3. In the exercise of the right accorded by this Article regard shall be had to the laws, regulations and usages of the receiving State.
Article 30
ACCOMMODATION
1. The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws and regulations, by the sending State of premises necessary for its consular post or assist the latter in obtaining accommodation in some other way.
2. It shall also, where necessary, assist the consular post in obtaining suitable accommodation for its members.
Article 31
INVIOLABILITY OF THE CONSULAR PREMISES
1. Consular premises shall be inviolable to the extent provided in this Article.
2. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.
3. Subject to the provisions of paragraph 2 of this Article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.
4. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.
Article 32
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf.
Article 33
INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and wherever they may be.
Article 34
FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post.
Article 35
FREEDOM OF COMMUNICATION
1. The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving State.
2. The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this Article, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.
4. The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use.
5. The consular courier shall be provided with an official document indicat ing his status and the number of packages constituting the consular bag. Except with the consent of the receiving State he shall be neither a national of the receiving State, nor, unless he is a national of the sending State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
6. The sending State, its diplomatic missions and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.
Article 36
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. Theyshall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
Article 37
INFORMATION IN CASES OF DEATHS, GUARDIANSHIP OR TRUSTEESHIP,
WRECKS AND AIR ACCIDENTS
If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:
(a) in the case of the death of a national of the sending State, to inform without delay the consular post in whose district the death occurred;
(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;
(c) if a vessel, having the nationality of the sending State, is wrecked or runs aground in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State, to inform without delay the consular post nearest to the scene of the occurrence.
Article 38
COMMUNICATION WITH THE AUTHORITIES OF THE RECEIVING STATE
In the exercise of their functions, consular officers may address:
(a) the competent local authorities of their consular district;
(b) the competent central authorities of the receiving State if and to the extent that this is allowed by the laws, regulations and usages of the receiving State or by the relevant international agreements.
Article 39
CONSULAR FEES AND CHARGES
1. The consular post may levy in the territory of the receiving State the fees and charges provided by the laws and regulations of the sending State for consular acts.
2. The sums collected in the form of the fees and charges referred to in paragraph 1 of this Article, and the receipts for such fees and charges, shall be exempt from all dues and taxes in the receiving State.
Section II
FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST
Article 40
PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.
Article 41
PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.
Article 42
NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.
Article 43
IMMUNITY FROM JURISDICTION
1. 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.
2. The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
Article 44
LIABILITY TO GIVE EVIDENCE
1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. 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 avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
3. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.
Article 45
WAIVER OF PRIVILEGES AND IMMUNITIES
1. The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in Articles 41, 43 and 44.
2. The waiver shall in all cases be express, except as provided in paragraph 3 of this Article, and shall be communicated to the receiving State in writing.
3. The initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
4. The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision n; in respect of such measures, a separate waiver shall be necessary.
Article 46
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
1. Consular officers and consular employees and members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.
2. The provisions of paragraph 1 of this Article shall not, however, apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee.
Article 47
EXEMPTION FROM WORK PERMITS
1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.
Article 48
SOCIAL SECURITY EXEMPTION
1. Subject to the provisions of paragraph 3 of this Article, members of the consular post with respect to services rendered by them for the sending State, and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall apply also to members of the private staff who are in the sole employ of members of the consular post, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which are in force in the sending State or a third State.
3. Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State, provided that such participation is permitted by that State.
Article 49
EXEMPTION FROM TAXATION
1. Consular officers and consular employees and members of their families forming part of their households shall be exempt from all dues and taxes,personal or real, national, regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues or taxes on private immovable property situated in the territory of the receiving State, subject to the provisions of Article 32;
(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State, subject to the provisions of paragraph (b) of Article 51;
(d) dues and taxes on private income, including capital gains, having its source in the receiving State and capital taxes relating to investments made in commercial or financial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of Article 32.
2. Members of the service staff shall be exempt from dues and taxes on the wages which they receive for their services.
3. Members of the consular post who employ persons whose wages or salaries are not exempt from income tax in the receiving State shall observe the obligations which the laws and regulations of that State impose upon employers concerning the levying of income tax.
Article 50
EXEMPTION FROM CUSTOMS DUTIES AND INSPECTION
1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the consular post;
(b) articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended forhis establishment. The articles intended for consumption shall not exceed the quantities necessary for direct utilization by the persons concerned.
2. Consular employees shall enjoy the privileges and exemptions specified in paragraph 1 of this Article in respect of articles imported at the time of first installation.
3. Personal baggage accompanying consular officers and members of their families forming part of their households shall be exempt from inspection. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in sub-paragraph (b) of paragraph 1 of this Article, or articles the import or export of which is prohibited by the laws and regulations of the receiving State or which are subject to its quarantine laws and regulations. Such inspection shall be carried out in the presence of the consular officer or member of his family concerned.
Article 51
ESTATE OF A MEMBER OF THE CONSULAR POST
OR OF A MEMBER OF HIS FAMILY
In the event of the death of a member of the consular post or of a member of his family forming part of his household, the receiving State:
(a) shall permit the export of the movable property of the deceased, with the exception of any such property acquired in the receiving State the export of which was prohibited at the time of his death;
(b) shall not levy national, regional or municipal estate, succession or inheritance duties, and duties on transfers, on movable property the presence of which in the receiving State was due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post.
Article 52
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt members of the consular post and members of their families forming part of their households from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.
Article 53
BEGINNING AND END OF CONSULAR PRIVILEGES AND IMMUNITIES
1. Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.
2. Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this Article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.
3. When the functions of a member of the consular post have come to an end, his privileges and immunities and those of a member of his family forming part of his household or a member of his private staff shall normally cease at the moment when the person concerned leaves 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 case of armed conflict. In the case of the persons referred to in paragraph 2 of this Article, their privileges and immunities shall come to an end when they cease to belong to the household or to be in the service of a member of the consular post provided, however, that if such persons intend leaving the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.
4. However, with respect to acts performed by a consular officer or a consular employee in the exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of time.
5. In the event of the death of a member of the consular post, the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the expiry of a reasonable period enabling them to do so, whichever is the sooner.
Article 54
OBLIGATIONS OF THIRD STATES
1. If a consular officer passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, while proceeding to take up or return to his post or when returning to the sending State, the third State shall accord to him all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family forming part of his household enjoying such privileges and immunities who are accompanying the consular officer or traveling separately to join him or to return to the sending State.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the transit through their territory of other members of the consular post or of members of their families forming part of their households.
3. Third States shall accord to official correspondence and to other official communications in transit, including messages in code or cipher, the same freedom and protection as the receiving State is bound to accord under the present Convention. They shall accord to consular couriers who have been granted a visa, if a visa was necessary, and to consular bags in transit, the same inviolability and protection as the receiving State is bound to accord under the present Convention.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to official communications and to consular bags, whose presence in the territory of the third State is due to force majeure.
Article 55
RESPECT FOR THE LAWS AND REGULATIONS OF THE RECEIVING STATE
1. 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.
2. The consular premises shall not be used in any manner incompatible with the exercise of consular functions.
3. The provisions of paragraph 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part of the building in which the consular premises are situated, provided that the premises assigned to them are separate from those used by the consular post. In that event, the said offices shall not, for the purposes of the present Convention, be considered to form part of the consular premises.
Article 56
INSURANCE AGAINST THIRD PARTY RISKS
Members of the consular post shall comply with any requirement imposed by the laws and regulations of the receiving State in respect of insurance against third party risks arising from the use of any vehicle, vessel or aircraft.
Article 57
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.
CHAPTER III
REGIME RELATING TO HONORARY CONSULAR OFFICERS
AND CONSULAR POSTS HEADED BY SUCH OFFICERS
Article 58
GENERAL PROVISIONS RELATING TO FACILITIES,
PRIVILEGES AND IMMUNITIES
1. Articles 28, 29, 30, 34, 35, 36, 37, 38 and 39, paragraph 3 of Article 54 and paragraphs 2 and 3 of Article 55 shall apply to consular posts headed by an honorary consular officer. In addition, the facilities, privileges and immunities of such consular posts shall be governed by Articles 59, 60, 61 and 62.
2. Articles 42 and 43, paragraph 3 of Article 44, Articles 45 and 53 and paragraph 1 of Article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by Articles 63, 64, 65, 66 and 67.
3. Privileges and immunities provided in the present Convention shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.
4. The exchange of consular bags between two consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the two receiving States concerned.
Article 59
PROTECTION OF THE CONSULAR PREMISES
The receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.
Article 60
EXEMPTION FROM TAXATION OF CONSULAR PREMISES
1. Consular premises of a consular post headed by an honorary consular officer of which the sending State is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in paragraph 1 of this Article shall not apply to such dues and taxes if, under the laws and regulations of the receiving State, they are payable by the person who contracted with the sending State.
Article 61
INVIOLABILITY OF CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable at all times and wherever they may be, provided that they are kept separate from other papers and documents and, in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade.
Article 62
EXEMPTION FROM CUSTOMS DUTIES
The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of, and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services on the following articles, provided that they are for the official use of a consular post headed by an honorary consular officer: coats-of-arms, flags, signboards, seals and stamps, books, official printed matter, office furniture, office equipment and similar articles supplied by or at the instance of the sending State to the consular post.
Article 63
CRIMINAL PROCEEDINGS
If criminal proceedings are instituted against an honorary consular officer , he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except when he is under arrest or detention, in a manner which will hamper the exercise of consular functions as little as possible. When it has become necessary to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum of delay.
Article 64
PROTECTION OF HONORARY CONSULAR OFFICERS
The receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position.
Article 65
EXEMPTION FROM REGISTRATION OF ALIENS AND RESIDENCE PERMITS
Honorary consular officers, with the exception of those who carry on for personal profit any professional or commercial activity in the receiving State, shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.
Article 66
EXEMPTION FROM TAXATION
An honorary consular officer shall be exempt from all dues and taxes on the remuneration and emoluments which he receives from the sending State in respect of the exercise of consular functions.
Article 67
EXEMPTION FROM PERSONAL SERVICES AND CONTRIBUTIONS
The receiving State shall exempt honorary consular officers from all personal services and from all public services of any kind whatsoever and from military obligations such as those connected with requisitioning, military contributions and billeting.
Article 68
OPTIONAL CHARACTER OF THE INSTITUTION
OF HONORARY CONSULAR OFFICERS
Each State is free to decide whether it will appoint or receive honorary consular officers.
CHAPTER IV
GENERAL PROVISIONS
Article 69
CONSULAR AGENTS WHO ARE NOT HEADS OF CONSULAR POSTS
1. Each State is free to decide whether it will establish or admit consular agencies conducted by consular agents not designated as heads of consular post by the sending State.
2. The conditions under which the consular agencies referred to in paragraph 1 of this Article may carry on their activities and the privileges and immunities which may be enjoyed by the consular agents in charge of them shall be determined by agreement between the sending State and the receiving State.
Article 70
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 71
NATIONALS OR PERMANENT RESIDENTS OF THE RECEIVING STATE
1. Except in so far as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privilege provided in paragraph 3 of Article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in Article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.
2. Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families, as well as members of the families of consular officers referred to in paragraph 1 of this Article, shall enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State. The receiving State shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.
Article 72
NON-DISCRIMINATION
1. In the application of the provisions of the present Convention the receiving State shall not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its consular posts in the sending State;
(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.
Article 73
RELATIONSHIP BETWEEN THE PRESENT CONVENTION
AND OTHER INTERNATIONAL AGREEMENTS
1. The provisions of the present Convention shall not affect other international agreements in force as between States parties to them.
2. Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.
CHAPTER V
FINAL PROVISIONS
Article 74
SIGNATURE
The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows until 31 October 1963 at the Federal Ministry for Foreign Affairs of the Republic of Austria and subsequently, until 31 March 1964, at the United Nations Headquarters in New York.
Article 75
RATIFICATION
The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
Article 76
ACCESSION
The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in Article 74. The instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article 77
ENTRY INTO FORCE
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
Article 78
NOTIFICATIONS BY THE SECRETARY-GENERAL
The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in Article 74:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 74, 75 and 76;
(b) of the date on which the present Convention will enter into force, in accordance with Article 77.
Article 79
AUTHENTIC TEXTS
The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in Article 74.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-three.
Tuesday, September 16, 2008
Thursday, September 11, 2008
Bigamy
A question arises whether or not a Filipino citizen who marries another Filipino citizen in the Philippines and subsequently marries an American citizen in the United States is guilty of bigamy. There are, however, two areas for discussion in this case : a) whether or not bigamy was committed and b) whether or not he can be pursued, tried and persecuted for such,
The Revised Penal Code provides for the following :
“Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. “
Furthermore, such person’s civil status as a married person does not change when he goes to another country, even when he files for divorce in the United States in regards to his marriage in the Philippines. Its legal basis is the following article in the Civil Code, to wit :
“Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”
Bigamy is a crime that is committed when another person contracts another marriage aside from the first before it is legally severed. The law does not give any distinction where the second marriage was contracted. Therefore, there is no circumstance that can take reverse this except through an appropriate legal action. The legal process of terminating the marriage, in fact, has to be done in the Philippines, not anywhere else – except maybe if the person renounces his Filipino citizenship and becomes a citizen of the country where he currently lives. If divorce is allowed in such country, then he can legally end his marriage in the Philippines by filing for such, then he can contract a second marriage. It can therefore be concluded that the person who contract a second marriage in the US has committed the crime of bigamy.
The question on whether or not the Philippines has jurisdiction over such Filipino citizen, the Philippines has prescriptive jurisdiction over the person but not enforcement jurisdiction as he is not in the country. By the exercise of the prescriptive jurisdiction, the spouse may file a complaint in court. The court may proceed to investigate and find probably cause. It claims jurisdiction over the person by appropriate notice or summon. Then, it can try the person and convict him. The State may not, however, enforce the judgment not until the person goes home to the Philippines because it has no jurisdiction over the person when he is in another country.
The Revised Penal Code provides for the following :
“Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. “
Furthermore, such person’s civil status as a married person does not change when he goes to another country, even when he files for divorce in the United States in regards to his marriage in the Philippines. Its legal basis is the following article in the Civil Code, to wit :
“Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”
Bigamy is a crime that is committed when another person contracts another marriage aside from the first before it is legally severed. The law does not give any distinction where the second marriage was contracted. Therefore, there is no circumstance that can take reverse this except through an appropriate legal action. The legal process of terminating the marriage, in fact, has to be done in the Philippines, not anywhere else – except maybe if the person renounces his Filipino citizenship and becomes a citizen of the country where he currently lives. If divorce is allowed in such country, then he can legally end his marriage in the Philippines by filing for such, then he can contract a second marriage. It can therefore be concluded that the person who contract a second marriage in the US has committed the crime of bigamy.
The question on whether or not the Philippines has jurisdiction over such Filipino citizen, the Philippines has prescriptive jurisdiction over the person but not enforcement jurisdiction as he is not in the country. By the exercise of the prescriptive jurisdiction, the spouse may file a complaint in court. The court may proceed to investigate and find probably cause. It claims jurisdiction over the person by appropriate notice or summon. Then, it can try the person and convict him. The State may not, however, enforce the judgment not until the person goes home to the Philippines because it has no jurisdiction over the person when he is in another country.
Wednesday, August 27, 2008
GRP – BANGSAMORO AGREEMENT
I. SALIENT POINTS IN THE AGREEMENT
The proposed agreement was supposed to be entered into between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF). It was an agreement that would define the ancestral domain of the “Bangsamoros”, the people the MILF is representing.
A. ANCESTRAL DOMAIN
The agreement was premised on the historical claim of all Moros and indigenous peoples of Mindanao or also called “Bangsamoros”. They are those that are the natives or original inhabitants of Mindanao and its adjacent lands Sulu and Palawan. This territorial claim can e traced on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The reason for the grant of ancestral domain is to secure the group’s identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people.
B. TERRITORY DEFINED
The agreement defined the Bangsamoro territory as those that does not only refer to land mass but to maritime, terrestrial, fluvial and alluvial domains and the aerial domains. It also defines those provinces or political subdivisions that form part of such territory as well as its internal and territorial waters.
C. BANGSAMORO JURIDICAL ENTITY (BJE) and its powers
The Bangsamoro Juridical Entity (JBE) was given the authority over the ancestral domain and ancestral lands, including both alienable and non-alienable land encompassed within their homeland. The BJE has authority over the use, development, conservation and disposition of their land and its natural resources geared towards self-sufficiency and the stimulation of its local economy to improve living conditions so as to alleviate poverty.
The BJE is tasked to grant licenses, concessions, contracts and agreements in the use of natural resources. It is allowed to enact agrarian laws and programs.
The BJE is free to enter into economic cooperation and trade relations with foreign countries as long as these do not constitute acts of aggression against the GRP. In fact, the Central Government shall take necessary steps to ensure the BJE’s participation in international meetings and events.
D. ROLE OF THE CENTRAL GOVERNMENT
The Central Government, on the other hand, shares in the wealth of the BJE in the ratio of 75% - 25% in favor of the BJE. The relationship between the Central Government and BJE is associative in nature, characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions. The Central Government shall exclusively have the power of external defense.
II. ANALYSIS AND CONCLUSION
The proposed agreement, to my mind, is the epitome of the government’s weakness to handle the MILF issue. It has almost given up on all of its jurisdiction over the Bangsamoro “territory” and handing over to the BJE all of its rights and obligations except that of external defense.
Let us review the elements of a state according the Montevideo conference :
1. a permanent population
2. a defined territory
3. a government
4. capacity to conduct external relations with other states
This agreement, without hesitation, just granted the BJE, its sovereignty and statehood. It is an international principle that recognition is a right of every state and that for BJE to become a state and to enter into external relations, it has somehow to be recognized expressly or impliedly by others. However, the recognition of the GRP itself hastens the process. The provision in the agreement wherein the BJE is given international rights and authorities by assuring it that it will ensure its participation in international meetings and events is an act of recognition by GRP of the legal personality of BJE in the international community. This is a matter of great concern. What will stop subsequent calls for statehood by other political subdivisions as well?
Besides, is the agreement even constitutional? Does it not result to a contradiction to the constitutional provisions on definition of territory and the creation of political divisions? Don’t these acts warrant constitutional amendments that require a more formal process than entering into an agreement?
The agreement has clearly defined the territorial, maritime and fluvial domains of the BJE and effectively separated this from the currently defined territory of the Philippines. This means the Phils, as a result, will become a smaller state. The Constitution also defines the political subdivisions of the Philippines. The creation of a BJE makes changes on those political subdivisions and thus, again, constitute changes in the constitution. This highest law of the land provides that charter changes require a plebiscite by the people after a constitutional convention or the legislative department as a constituent assembly shall have reviewed such and made proposals therein.
It is just appropriate that a petition to prevent this agreement to be entered into was made and a subsequent grant to the petition was given by the Supreme Court. The provisions in this agreement should be a cause of alarm for the concerned citizens of the country. One cannot chip off a portion of its territory just because it wants to end insurgency in a locality. The solution to the problem of insurgents is not to give in to what they want. It is to look through history and review and understand the original rights and the subsequent rights that rose from thereon. The current situation speaks for itself. The failure on the agreement triggered violence and showed the real intent of the MILF. These group is not out to preserve the very land they profess to love for if it did, it would never abuse the resources by wrecking havoc to the place. Nor shall it even attempt to hurt its inhabitants, the Bangsamoros they claim to be part of the land and they vow to protect. The destruction of property and means of livelihood as well as the death of innocent inhabitants could have been prevented if government never gave hope to the MILFs on having a territory and government for themselves.
The proposed agreement was supposed to be entered into between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF). It was an agreement that would define the ancestral domain of the “Bangsamoros”, the people the MILF is representing.
A. ANCESTRAL DOMAIN
The agreement was premised on the historical claim of all Moros and indigenous peoples of Mindanao or also called “Bangsamoros”. They are those that are the natives or original inhabitants of Mindanao and its adjacent lands Sulu and Palawan. This territorial claim can e traced on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The reason for the grant of ancestral domain is to secure the group’s identity and posterity, to protect their property rights and resources as well as to establish a system of governance suitable and acceptable to them as a distinct dominant people.
B. TERRITORY DEFINED
The agreement defined the Bangsamoro territory as those that does not only refer to land mass but to maritime, terrestrial, fluvial and alluvial domains and the aerial domains. It also defines those provinces or political subdivisions that form part of such territory as well as its internal and territorial waters.
C. BANGSAMORO JURIDICAL ENTITY (BJE) and its powers
The Bangsamoro Juridical Entity (JBE) was given the authority over the ancestral domain and ancestral lands, including both alienable and non-alienable land encompassed within their homeland. The BJE has authority over the use, development, conservation and disposition of their land and its natural resources geared towards self-sufficiency and the stimulation of its local economy to improve living conditions so as to alleviate poverty.
The BJE is tasked to grant licenses, concessions, contracts and agreements in the use of natural resources. It is allowed to enact agrarian laws and programs.
The BJE is free to enter into economic cooperation and trade relations with foreign countries as long as these do not constitute acts of aggression against the GRP. In fact, the Central Government shall take necessary steps to ensure the BJE’s participation in international meetings and events.
D. ROLE OF THE CENTRAL GOVERNMENT
The Central Government, on the other hand, shares in the wealth of the BJE in the ratio of 75% - 25% in favor of the BJE. The relationship between the Central Government and BJE is associative in nature, characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions. The Central Government shall exclusively have the power of external defense.
II. ANALYSIS AND CONCLUSION
The proposed agreement, to my mind, is the epitome of the government’s weakness to handle the MILF issue. It has almost given up on all of its jurisdiction over the Bangsamoro “territory” and handing over to the BJE all of its rights and obligations except that of external defense.
Let us review the elements of a state according the Montevideo conference :
1. a permanent population
2. a defined territory
3. a government
4. capacity to conduct external relations with other states
This agreement, without hesitation, just granted the BJE, its sovereignty and statehood. It is an international principle that recognition is a right of every state and that for BJE to become a state and to enter into external relations, it has somehow to be recognized expressly or impliedly by others. However, the recognition of the GRP itself hastens the process. The provision in the agreement wherein the BJE is given international rights and authorities by assuring it that it will ensure its participation in international meetings and events is an act of recognition by GRP of the legal personality of BJE in the international community. This is a matter of great concern. What will stop subsequent calls for statehood by other political subdivisions as well?
Besides, is the agreement even constitutional? Does it not result to a contradiction to the constitutional provisions on definition of territory and the creation of political divisions? Don’t these acts warrant constitutional amendments that require a more formal process than entering into an agreement?
The agreement has clearly defined the territorial, maritime and fluvial domains of the BJE and effectively separated this from the currently defined territory of the Philippines. This means the Phils, as a result, will become a smaller state. The Constitution also defines the political subdivisions of the Philippines. The creation of a BJE makes changes on those political subdivisions and thus, again, constitute changes in the constitution. This highest law of the land provides that charter changes require a plebiscite by the people after a constitutional convention or the legislative department as a constituent assembly shall have reviewed such and made proposals therein.
It is just appropriate that a petition to prevent this agreement to be entered into was made and a subsequent grant to the petition was given by the Supreme Court. The provisions in this agreement should be a cause of alarm for the concerned citizens of the country. One cannot chip off a portion of its territory just because it wants to end insurgency in a locality. The solution to the problem of insurgents is not to give in to what they want. It is to look through history and review and understand the original rights and the subsequent rights that rose from thereon. The current situation speaks for itself. The failure on the agreement triggered violence and showed the real intent of the MILF. These group is not out to preserve the very land they profess to love for if it did, it would never abuse the resources by wrecking havoc to the place. Nor shall it even attempt to hurt its inhabitants, the Bangsamoros they claim to be part of the land and they vow to protect. The destruction of property and means of livelihood as well as the death of innocent inhabitants could have been prevented if government never gave hope to the MILFs on having a territory and government for themselves.
GEORGIA – RUSSIA CONFLICT
I. BACKGROUND
On August 7, 2008, the tension between Georgia, Russia, South Ossetia grew to its highest peak when Georgia allegedly attacked a break-away region in South Ossetia. Russia allegedly fought back because it retaliated as Russian peacemakers within the region were killed. The attack was massive – involving land, air and sea. The war lasted for about five days.
As a result, effect of the Georgia-Russia war resulted in an estimated 30,000 refugees from South Ossetia fleeing into Russia. The territory has around 70,000 overall population. Meanwhile out 68,000 ethnic Georgians had fled their homes due to the conflict.
On 12 August 2008 Georgia instituted proceedings in the International Court of Justice against Russia for violations of the Convention on the Elimination of All Forms of Racial Discrimination. The case (Georgia v. Russian Federation) was accepted by the court on 15 August. The first public hearings are planned on 8 September 2008.
A preliminary ceasefire was signed by Georgia and Russia on 15 August 2008. The Russian military has announced a ten-day withdrawal from advance positions, while Georgian authorities have expressed discontent with the rate and extent of the pull-back, and with the continuing Russian presence in the port of Poti. The six-point peace plan was established with the mediation of French President, Nicolas Sarkozy to get the two dignitaries Russian President Medvedev and Georgian President Saakashvili. The two parties agreed on the following points : no recourse to the use of force, definitive cessation of hostilities, free access to humanitarian aid, Russian military forces must withdraw to the lines prior to the start of hostilities while awaiting an international mechanism, Russian peacekeeping force will implement additional security measures and finally, the opening of international discussions on the modalities of lasting security in Abkhazia and South Ossetia.
On August 26, the Russian President formally recognised the independence of South Ossetia and Abkhazia. Georgia denounced this move as an annexation of its territory.
II. ANALYSIS OF THE CONFLICT
The Georgia-Russia war came to be because of years of tension (1992 to mid-2004) between the two countries as to sovereignty over South Ossetia. South Ossetia, which has a Georgian ethnic minority of around one fifth (14,000) of the total population (70,000), broke away from Georgia in the 1991–1992 war. Russia, on the other hand, was accused of issuing passports to the residents of this territory, first in order to lay claim on its people, with the intention of laying claim to its land. The attack of Georgia in Tskhinvali, the capital city of South Ossetia was according to Russia a violation of the 1992 ceasefire agreement and Russia had to retaliate on what it claims as “acts of genocide”. Georgia upholds that South Ossetia is part of their republic and that the issues within is an internal conflict that no other state shall interfere in.
But what do the Ossetians really want? For 100 years now, South Ossetia wants independence and want to be recognized as a sovereignty within USSR. In fact, to manifest this further, Ossetians boycotted Georgian parliamentary elections and held their own contest in 1990. The Georgian government then, declared this election illegitimate and abolished South Ossetia's autonomous status altogether. Violent conflict broke out towards the end of 1991. Many South Ossetian villages were attacked and burned down as well along with Georgian houses and schools. As a result of the violence, approximately 1,000 people died and about 100,000 ethnic Ossetians fled the territory and moved mostly to North Ossetia, a republic within the Russian Federation.
III. REACTIONS BY THE INTERNATIONAL COMMUNITY
Various and conflicting reactions were drawn from other states on the existing conflict. Some say that the Russians’ justification on the attack of Georgia was unacceptable It may be remembered that Russia’s attack was based on its need to “Russian” citizens and the peacekeepers in the area of conflict. Other states fear that Russia will not hesitate to attack other states as well to protect their citizens. The action of Russia was considered as aggression as South Ossetia is not a considered a state but part of Georgian jurisdiction. These states call for the recognition and due respect of the territorial integrity of Georgia. In fact, the Russian attack was seen as a crime against international law.
Other states condemn Georgia’s attack on South Ossetia as it undermined the peace in that region. Georgia is perceived to be an allay of the United States and thus was accused that the actions it brought upon South Ossetia were done upon advise of the US. Other states also criticized Georgian leadership for taking non peaceful measures against the separatist region. Concern was expressed on the damage and havoc caused by the war most especially to the innocent civilians of the place.
IV. CONCLUSION
The Georgia-Russia conflict, to my mind, goes deeper than territorial issues. First, the conflict is an offshoot of cultural issues. The composition and ancestral lineage of the population of South Ossetia clearly shows a different kind of people from the dominant race within Georgia. Thus, the cry for sovereignty, for identity for its own people. This is no different from the Muslim issue here in the Philippines. The territory wants to be recognized as a state so it can manifest its culture when dealing with internal as well as external affairs. The achievement of years of almost peaceful existence under a ceasefire agreement was broken because of another irritant, US alliance. It seems that although the USSR is now a broken strongman, the internal conflict with US has never really stopped. Russia will continue to run counter against the principles that US runs by. It will, if given the chance, continue to retaliate any seeming influence such country will have most especially with its neighboring countries. This is a sad reality but the great powers will continue to indirectly influence the affairs of the smaller states as they continue to depend on them for economic benefits, surety for scarce resources and even protection. Is there truly equality and independence of states?
On August 7, 2008, the tension between Georgia, Russia, South Ossetia grew to its highest peak when Georgia allegedly attacked a break-away region in South Ossetia. Russia allegedly fought back because it retaliated as Russian peacemakers within the region were killed. The attack was massive – involving land, air and sea. The war lasted for about five days.
As a result, effect of the Georgia-Russia war resulted in an estimated 30,000 refugees from South Ossetia fleeing into Russia. The territory has around 70,000 overall population. Meanwhile out 68,000 ethnic Georgians had fled their homes due to the conflict.
On 12 August 2008 Georgia instituted proceedings in the International Court of Justice against Russia for violations of the Convention on the Elimination of All Forms of Racial Discrimination. The case (Georgia v. Russian Federation) was accepted by the court on 15 August. The first public hearings are planned on 8 September 2008.
A preliminary ceasefire was signed by Georgia and Russia on 15 August 2008. The Russian military has announced a ten-day withdrawal from advance positions, while Georgian authorities have expressed discontent with the rate and extent of the pull-back, and with the continuing Russian presence in the port of Poti. The six-point peace plan was established with the mediation of French President, Nicolas Sarkozy to get the two dignitaries Russian President Medvedev and Georgian President Saakashvili. The two parties agreed on the following points : no recourse to the use of force, definitive cessation of hostilities, free access to humanitarian aid, Russian military forces must withdraw to the lines prior to the start of hostilities while awaiting an international mechanism, Russian peacekeeping force will implement additional security measures and finally, the opening of international discussions on the modalities of lasting security in Abkhazia and South Ossetia.
On August 26, the Russian President formally recognised the independence of South Ossetia and Abkhazia. Georgia denounced this move as an annexation of its territory.
II. ANALYSIS OF THE CONFLICT
The Georgia-Russia war came to be because of years of tension (1992 to mid-2004) between the two countries as to sovereignty over South Ossetia. South Ossetia, which has a Georgian ethnic minority of around one fifth (14,000) of the total population (70,000), broke away from Georgia in the 1991–1992 war. Russia, on the other hand, was accused of issuing passports to the residents of this territory, first in order to lay claim on its people, with the intention of laying claim to its land. The attack of Georgia in Tskhinvali, the capital city of South Ossetia was according to Russia a violation of the 1992 ceasefire agreement and Russia had to retaliate on what it claims as “acts of genocide”. Georgia upholds that South Ossetia is part of their republic and that the issues within is an internal conflict that no other state shall interfere in.
But what do the Ossetians really want? For 100 years now, South Ossetia wants independence and want to be recognized as a sovereignty within USSR. In fact, to manifest this further, Ossetians boycotted Georgian parliamentary elections and held their own contest in 1990. The Georgian government then, declared this election illegitimate and abolished South Ossetia's autonomous status altogether. Violent conflict broke out towards the end of 1991. Many South Ossetian villages were attacked and burned down as well along with Georgian houses and schools. As a result of the violence, approximately 1,000 people died and about 100,000 ethnic Ossetians fled the territory and moved mostly to North Ossetia, a republic within the Russian Federation.
III. REACTIONS BY THE INTERNATIONAL COMMUNITY
Various and conflicting reactions were drawn from other states on the existing conflict. Some say that the Russians’ justification on the attack of Georgia was unacceptable It may be remembered that Russia’s attack was based on its need to “Russian” citizens and the peacekeepers in the area of conflict. Other states fear that Russia will not hesitate to attack other states as well to protect their citizens. The action of Russia was considered as aggression as South Ossetia is not a considered a state but part of Georgian jurisdiction. These states call for the recognition and due respect of the territorial integrity of Georgia. In fact, the Russian attack was seen as a crime against international law.
Other states condemn Georgia’s attack on South Ossetia as it undermined the peace in that region. Georgia is perceived to be an allay of the United States and thus was accused that the actions it brought upon South Ossetia were done upon advise of the US. Other states also criticized Georgian leadership for taking non peaceful measures against the separatist region. Concern was expressed on the damage and havoc caused by the war most especially to the innocent civilians of the place.
IV. CONCLUSION
The Georgia-Russia conflict, to my mind, goes deeper than territorial issues. First, the conflict is an offshoot of cultural issues. The composition and ancestral lineage of the population of South Ossetia clearly shows a different kind of people from the dominant race within Georgia. Thus, the cry for sovereignty, for identity for its own people. This is no different from the Muslim issue here in the Philippines. The territory wants to be recognized as a state so it can manifest its culture when dealing with internal as well as external affairs. The achievement of years of almost peaceful existence under a ceasefire agreement was broken because of another irritant, US alliance. It seems that although the USSR is now a broken strongman, the internal conflict with US has never really stopped. Russia will continue to run counter against the principles that US runs by. It will, if given the chance, continue to retaliate any seeming influence such country will have most especially with its neighboring countries. This is a sad reality but the great powers will continue to indirectly influence the affairs of the smaller states as they continue to depend on them for economic benefits, surety for scarce resources and even protection. Is there truly equality and independence of states?
Friday, August 15, 2008
Pimentel vs Executive Secretary GR 158088 July 6, 2005
Facts
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Issue
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the Senate for concurrence.
Ruling
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative.
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.
Issue
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the Senate for concurrence.
Ruling
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative.
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.
Tuesday, August 5, 2008
INTERNATIONAL CRIMINAL COURT
HIGHLIGHTS
1. The International Criminal Court is a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
2. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.
The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
3. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
a. Genocide - " means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group.
b. Crimes against humanity - means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
• Murder;
• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• Torture;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
c. War crimes - includes
• Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
• Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law
• In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
d. The crime of aggression
4. The Court may exercise its jurisdiction with respect to a crime :
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation
5. The Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
6. The Court shall apply first this Statute, Elements of Crimes and its Rules of Procedure and Evidence. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. The Court may apply principles and rules of law as interpreted in its previous decisions. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
7. The ICC follows the following principles of criminal law :
a. Nullum crimen sine lege
b. Nulla poena sine lege
c. Non-retroactivity ratione personae
d. Individual criminal responsibility – natural persons only
e. Exclusion of jurisdiction over persons under eighteen
f. Irrelevance of official capacity
g. Responsibility of commanders and other superiors
h. Non-applicability of statute of limitations
i. Mental element – intent and knowledge
j. Grounds for excluding criminal responsibility – i.e. mental illness; self defense;
k. Mistake of fact or mistake of law
l. Superior orders and prescription of law
8. The Court shall be composed of the following organs:
(a) The Presidency
The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for:
• The proper administration of the Court, with the exception of the Office of the Prosecutor;
• The other functions conferred upon it in accordance with this Statute.
(b) An Appeals Division, a Trial Division and a Pre-Trial Division;
As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience
(c) The Office of the Prosecutor;
The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source.
(d) The Registry.
. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42.
9. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:
• The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
• The case is or would be admissible under article 17; and
• Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.
10. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
11. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
12. Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.
Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter.
13. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
14. Unless otherwise decided, the place of the trial shall be the seat of the Court. The accused shall be present during the trial. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall:
(a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings;
(b) Determine the language or languages to be used at trial; and
(c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.
15. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
16. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
17. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. The deliberations of the Trial Chamber shall remain secret.
18. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.
19. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
20. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
Link : http://untreaty.un.org/cod/icc/statute/romefra.htm
1. The International Criminal Court is a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
2. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.
The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
3. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
a. Genocide - " means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group.
b. Crimes against humanity - means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
• Murder;
• Extermination;
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• Torture;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
c. War crimes - includes
• Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
• Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law
• In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
d. The crime of aggression
4. The Court may exercise its jurisdiction with respect to a crime :
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation
5. The Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
6. The Court shall apply first this Statute, Elements of Crimes and its Rules of Procedure and Evidence. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. The Court may apply principles and rules of law as interpreted in its previous decisions. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
7. The ICC follows the following principles of criminal law :
a. Nullum crimen sine lege
b. Nulla poena sine lege
c. Non-retroactivity ratione personae
d. Individual criminal responsibility – natural persons only
e. Exclusion of jurisdiction over persons under eighteen
f. Irrelevance of official capacity
g. Responsibility of commanders and other superiors
h. Non-applicability of statute of limitations
i. Mental element – intent and knowledge
j. Grounds for excluding criminal responsibility – i.e. mental illness; self defense;
k. Mistake of fact or mistake of law
l. Superior orders and prescription of law
8. The Court shall be composed of the following organs:
(a) The Presidency
The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for:
• The proper administration of the Court, with the exception of the Office of the Prosecutor;
• The other functions conferred upon it in accordance with this Statute.
(b) An Appeals Division, a Trial Division and a Pre-Trial Division;
As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience
(c) The Office of the Prosecutor;
The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source.
(d) The Registry.
. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42.
9. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:
• The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
• The case is or would be admissible under article 17; and
• Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.
10. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
11. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
12. Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.
Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter.
13. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
14. Unless otherwise decided, the place of the trial shall be the seat of the Court. The accused shall be present during the trial. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall:
(a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings;
(b) Determine the language or languages to be used at trial; and
(c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.
15. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
16. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
17. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. The deliberations of the Trial Chamber shall remain secret.
18. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.
19. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
20. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
Link : http://untreaty.un.org/cod/icc/statute/romefra.htm
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