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The United States-Soviet Consular Convention
Published online by Cambridge University Press: 28 March 2017
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- Copyright © American Society of International Law 1965
References
1 4. U. S. Treaties 1637; T.I.A.8., No. 5469; hereinafter referred to as the Korean Convention.
2 15 U. S. Treaties 768; T.I.A.S., No. 5602; hereinafter referred to as the Japanese Convention.
3 88th Cong., 2nd Sess., Senate Exec. D; 50 Dept. of State Bulletin 979-985 (1964); 3 Int. Legal Materials 778-791 (1964); hereinafter referred to as the IT. S.-U.S.S.E. Convention.
4 U.N. Doc. A/Conf. 25/12, April 23, 1963, 57 A.J.I.L. 995-1025 (1963); hereinafter referred to as the Vienna Convention.
5 June 1, 1964. Approved by the Senate Foreign Relations Committee Aug. 3, 1965, but not considered by the full Senate.
6 Report of the Acting Secretary of State to the President, loc. cit.note 3 above.
7 Foreign Relations of the United States, 1933, Vol. II, pp. 778-840, contains the numerous letters and other correspondence which collectively constitute what is usually called the Litvinoff Agreement relating to recognition of Russia by the United States. The more significant documents are reproduced at 28 A.J.I.L. Supp. 1-21 (1934).
8 Arts. 1 and 2.
9 Art. 1.
10 Art. 1, 26 A.J.I.L. Spec. Supp. 193 (1932). The text is accompanied by an excellent commentary starting at p. 201.
11 Art. 2, par. 1.
12 Art. 1.
13 Art. 3.
14 Art. 2.
15 Art. 72.
16 Art. 2, par. 5.
17 See Lee, Consular Law and Practice 30 (Praeger, 1961).
18 lbid.316.
19 Art. 2, par. 7.
20 The Japanese Convention, Art. 5, contains a typical provision reading: “ (3) The receiving state may revoke the exequatur or other authorization of a consular officer whose conduct has given serious cause for complaint. The reason for such revocation shall, upon request, be furnished to the sending state through diplomatic channels.“
21 Art. 23. See also Art. 12, which provides that the initial issuance of an exequatur may be refused without explanation and that a consular officer may not enter upon his duties until he has received an exequatur. See Art. 7 of the Harvard Draft to the same effect.
22 Art. 3.
23 Art. 26.
24 Arts. 58 and 68; but see Art. 22 which states: ‘ ‘ Consular officers should, in principle, have the nationality of the sending state.” The Vienna Convention, Ch. Ill, sharply restricts the privileges of honorary officers.
25 Art. 15 provides that certain privileges and immunities shall not be accorded a consular officer or employee “ i f such officer or employee is a national of the receiving state.''
26 Art. 25.
27 Lee, Consular Law and Practice 304.
28 Ibid.305. However, the United States recognizes honorary consular officers. Restatement of the Law: The Foreign Relations Law of the United States, Proposed Official Draft (hereafter referred to as Restatement), Art. 84, Comment d.
29 Art. 5.
30 Art. 30.
31 Art. 21.
32 Art. 2.
33 Art. 7.
34 Japanese Convention, Art. 7.
35 Art. 15, par. 4.
36 Art. 9.
37 Japanese Convention, Art. 6; Korean Convention, Art. 1.
38 Art. 5, par. (c).
39 Art. 11, par. (k).
40 Art. 8 and Art. 4, par. (f).
41 Art. 17, par. (5).
42 ‘ ‘ The widespread opinion that the dissemination of economic information from the Union of Soviet Socialist Republics is allowed only insofar as this information has been published in newspapers or magazines is erroneous.” Prom a memorandum, Litvinoff to President Roosevelt, Nov. 16, 1933. 28 A.J.I.L. Supp. 9 (1934).
43 Art. 10, which reads: “ 1 . In the case of the death of a national of the sending state in the territory of the receiving state, without leaving in the territory of his decease any known heir or testamentary executor, the appropriate local authorities of the receiving state shall as promptly as possible inform a consular officer of the sending state. “ 2 . A consular officer of the sending state may, within the discretion of the appropriate judicial authorities and if permissible under then existing applicable local law in the receiving state:(a) take provisional custody of the personal property left by a deceased national of the sending state, provided that the decedent shall have left in the receiving state no heir or testamentary executor appointed by the decedent to take care of his personal estate; provided that such provisional custody shall be relinquished to a duly appointed administrator; (b) administer the estate of a deceased national of the sending state who is not a resident of the receiving state at the time of his death, who leaves no testamentary executor, and who leaves in the receiving state no heir, provided that if authorized to administer the estate, the consular officer shall relinquish such administration upon the appointment of another administrator; (c) represent the interests of a national of the sending state in an estate in the receiving state, provided that such national is not a resident of the receiving state, unless or until such national is otherwise represented: provided, however, that nothing herein shall authorize a consular officer to act as an attorney at law. “ 3 . Unless prohibited by law, a consular officer may, within the discretion of the court, agency, or person making distribution, receive for transmission to a national of the sending state who is not a resident of the receiving state any money or property to which such national is entitled as a consequence of the death of another person, including shares in an estate, payments made pursuant to workmen's compensation laws, pension and social benefits systems in general, and proceeds of insurance policies. ‘ ‘ The court, agency, or person making distribution may require that a consular officer comply with conditions laid down with regard to: (a) presenting a power of attorney or other authorization from such nonresident national, (b) furnishing reasonable evidence of the receipt of such money or property by such national, and (c) returning the money or property in the event he is unable to furnish such evidence. ‘ ‘ 4. Whenever a consular officer shall perform the functions referred to in paragraphs 2 and 3 of this Article, he shall be subject, with respect to the exercise of such functions, to the laws of the receiving state and to the civil jurisdiction of the judicial and administrative authorities of the receiving state in the same manner and to the same extent as a national of the receiving state.” The IT. S.-tT.K. and TJ. S.-Irish Consular Conventions as initially negotiated gave some additional powers to the consular officers. However, the conventions were withdrawn from the Senate and the language finally approved by the Senate is very similar to that quoted above. See Lee, Consular Law and Practice 147, for a discussion of the arguments raised.
44 Art. 5, pars, (g), (h) and (i).
45 Art. 11, pars, (e) and (f).
46 Art. 6.
47 Art. 18.
48 Art. 11.
49 Art. 38.
50 Art. 12.
51 Art. 4, par. (e).
52 Art. 15.
53 Art. 11.
54 Art. 12, par. 1.
55 Art. 12, par. 2.
56 Art. 12, par. 3.
57 Protocol, pars. 2 and 3.
58 Lee, Consular Law and Practice 120 et seq.
59 4 Hackworth, Digest 836-837.
60 Art. 12 and Protocol.
61 Letter from Acting Secretary of State to the President, 88th Cong., 2d Sess., Sen. Exec. D.
62 See 4 Hackworth, Digest 836 et seq.
63 U. S. Foreign Relations, The Soviet Union, 1933-1939, p. 497.
64 28 A.J.I.L. Supp. 8 (1934).
65 See Soviet Political Agreements and Results, 84th Cong., 2d Sess., Sen. Doc. No. 125, for a typical listing from 1917 to 1956. Other more recent but less complete lists are available.
66 Arts. 13, 14 and 15.
67 Art. 37, par. (c); Art. 5, pars, (k) and (1).
68 Art. 7.
69 Art. 11, pars, (g), (h), (i), and (j).
70 Arts. 19 through 24.
71 Art. 13, par. 2.
72 Arts. 16 through 29.
73 Art. 16.
74 Art. 17.
75 Restatement, Art. 85, comment e, states in part: ‘ ‘ International law provides that consular archives are inviolable wherever located, even though they are located upon the person of a member of the consulate.“
76 Restatement, Art. 85, comment e.
77 Art. 17.
78 Art. 31, par. 2.
79 Art. 8, par. 4.
80 Ibid.
81 Art. 3.
82 Restatement, Art. 85, comment e.
83 19 Dept. of State Bulletin 253, 408 (1948). See also Lawrence Preuss, “Consular Immunities: The Kasenkina Case,” 43 A.J.I.L. 46 (1949).
84 Art. 18.
85 Art. 35, par. 3.
86 Art. 13.
87 Art. 9.
88 Art. 10.
89 Art. 18. The key words are “making use of all ordinary means of communication.“
90 Harvard Research Draft, Art. 13 and Comment at p. 307. Lee, Consular Law and Practice 271. The Vienna Diplomatic Convention provides that permission of the receiving state must be obtained before an embassy may operate a wireless transmitter. Art. 27.
91 Harvard Research Draft, Art. 20 and Comment at p. 335; Restatement, See. 85 and Comment; 1 Oppenheim, International Law 840; 2 Hyde, International Law 1322; 4 Hackworth, Digest 699.
92 Art. 41.
93 Art. 20.
94 Art. 2, par. 7.
95 Art. 19, par. 3.
96 Art. 19, par. 1.
97 Art. 43, par. 2.
98 Art. 21. The receiving state determines if the act involved was an official act.
99 Art. 11, pars. 2 and 3.
100 Art. 10, par. 2. The convention does not stipulate who determines the character of the act complained of.
101 See U.S.U.S.S.B. Convention, Art. 10, par. 4, which is clearly intended to be an exception to the general immunity granted by Art. 19 in matters relating to official activities. Similar language is found in the Korean Convention, Art. 6, par. 4, and in the Japanese Convention, Art. 18, par. 4. The Vienna Convention, Art. 5, indicates that estate matters are to be handled “ in accordance with the laws and regulations of the receiving state,” which would probably be interpreted as an exception to the immunity granted by Art. 43 “ in respect of acts performed in the exercise of consular functions.” The Harvard Convention, Art. 11, par. (e), is quite similar in its effect. Comment under this article discusses the distinction between consular administration of an estate and consular action in accordance with the laws of the receiving state, but does not specifically treat the question of amenability of the consular officer to the jurisdiction of the local court in estate matters. However, Art. 22 of the Harvard Convention appears to grant general exemption from the jurisdiction of the receiving state for “an act done by him while he was a consul in the performance of consular functions which he was entitled to exercise.“
102 Art. 20, par. 1.
103 Art. 11, par. (5).
104 Art. 44.
105 Art. 22.
106 Art. 21.
107 Art. 32.
108 Art. 19. As is usually the case, the Harvard Draft accomplishes the purposes in many fewer words than is the case with most of the other conventions.
109 Art. 12.
110 Ibid.
111 Lee, Consular Law and Practice 226.
112 Art. 23.
113 Art. 24.
114 Art. 49.
115 Lee, Consular Law and Practice 226. The exemption is sharply limited in respect of consular officers who are nationals of the receiving state,
116 Art. 24.
117 Art. 25.
118 Art. 26.
119 Art.25.
120 Art. 26.
121 Art. 26, par. 2.
122 Art. 3.
123 Art. 50.
124 Art. 50, par. 2.
125 Art. 50, par. 3.
126 Sec. 84. See also the Harvard Draft, Arts. 22, 23, 24, 25 and 27, and Comment, p. 357, which base the distinctions partly on function, partly on nationality, and partly on whether or not the persons concerned are career employees of the sending state.
127 Art. 27.
128 Art. 34.
129 Art. 28. See also the Harvard Draft, Art. 32, which states that “ A sending state shall not permit its consul: … To take advantage of the special position provided for the consular office by this convention for any purpose not connected with the exercise of his consular functions.” The Vienna Convention on Diplomatic Relations, Art. 41, par. 1, provides: “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.“
130 Art. 29.
131 Art. 29, par. 2.
132 Art. 70.
133 Art. 6, par. (3).
134 Arts. 1 and 14.
135 Lee, Consular Law and Practice 20-22; Restatement, Art. 84, Comment c.
136 Art. 34.
137 Letter, Litvinoff to President Eoosevelt, Nov. 16, 1933.
138 Art. 2: “A state shall permit any state with which it maintains diplomatic relations to have consuls at any port, city or place within its territory where any other state is permitted to have consuls.” See Comment, p. 229 et seq.
139 Art. 72. The Vienna Convention is long and detailed and is intended to be comprehensive after the fashion of a civil law code, but as with civil law codes, there arise in the complexities of human and international relationships unanticipated situations requiring interpretations about which reasonable men might well arrive at different results.
140 For list of such treaty provisions, see 59 A.J.I.L. 724 (1965).
141 Lee, Consular Law and Practice 24 and 122.