HAVANA CONVENTION ON DIPLOMATIC OFFICERS, 1928
The Governments of the Republics represented at the Sixth International Conference of American States, held in the city of Habana, Republic of Cuba, the year 1928, being aware that one of the most important matters in the field of international relations is that pertaining to the rights and duties of diplomatic officers, which should be regulated in accordance with the conditions of economic, political and international life of nations;
Realizing the desirability that such regulation be effected pursuant to the new trends on the matter;
Recognizing that diplomatic officers do not in any case represent the person of the chief of State but only their Government and that they must be accredited to a recognized Government, and acknowledging the fact that diplomatic officers represent their respective States and should not claim immunities which are not essential to the discharge of their official duties, and acknowledging also that it would seem desirable that either the officer himself or the State represented by him renounce diplomat immunity whenever touching upon a civil action entirely alien to the fulfillment of his mission;
There being no possibility, nevertheless, at the present moment, of agreeing to general stipulations which although forming a well-defined trend in international relations sometimes conflict with the established practices of various States in a contrary sense;
Therefore and until a more complete regulation of the rights and duties of diplomatic officers can be formulated;
Have decided to conclude a Convention incorporating the principles generally accepted by all nations, and have designated the following Plenipotentiaries:
Who, after having deposited their full powers, found to be in good and due form, have agreed on the following provisions:
ARTICLE 1. – General provision
States have the right of being represented before each other through diplomatic officers.
Chiefs of mission
ARTICLE 2. Diplomatic officers are classed as ordinary and extraordinary. Those who permanently represent the Government of one State before that of another are ordinary.
Those entrusted with a special mission or those who are accredited to represent the Government in international conferences and congresses or other international bodies are extraordinary.
ARTICLE 3. Except as concerns precedence and etiquette, diplomatic officers, whatever their category, have the same rights, prerogatives and immunities.
Etiquette depends upon diplomatic usages in general as well as upon the laws and regulations of the country to which the officers are accredited.
ARTICLE 4. In addition to the functions indicated in their credentials, ordinary officers possess the attributes which the laws and decrees of the respective countries may confer upon them. They should exercise their attributes without coming into conflict with the laws of the country to which are accredited.
ARTICLE 5. Every State may entrust its representation before one or more governments to a single diplomatic officer.
Several States may entrust their representation before another to a single diplomatic officer.
ARTICLE 6. Diplomatic officers, duly authorized by their governments, may, with the consent of the local government, and upon the request of a State not represented by an ordinary officer before the latter Government, undertake the temporary or accidental protection of the interests of the said State.
ARTICLE 7. States are free in the selection of their diplomatic officers, but they may not invest with such functions the nationals of a State in which the mission must function, without its consent.
ARTICLE 8. No State may accredit its diplomatic officers to other States without previous agreement with the latter.
States may decline to receive an officer from another or, having already accepted him, may request his recall, without being obliged to state the reasons for such a decision.
ARTICLE 9. Extraordinary diplomatic officers enjoy the same prerogatives and immunities as ordinary ones.
Personnel of missions
ARTICLE I0. Each mission shall have the personnel determined by its Government.
ARTICLE I I. When diplomatic officers are absent from the place where they exercise their functions or find it impossible to discharge them, they shall be substituted for temporarily by persons designated for that purpose by their Government.
Duties of diplomatic officers
ARTICLE 12. Foreign diplomatic officers may not participate in the domestic or foreign politics of the State in which they exercise their functions.
ARTICLE 13. Diplomatic officers shall, in their official communications, address themselves to the Minister of Foreign Relations or Secretary of State of the country to which they are accredited. Communications to other authorities shall also be made through the said Minister or Secretary.
Immunities and prerogatives of diplomatic officers
ARTICLE 14. Diplomatic officers shall be inviolate as to their persons, their residence, private or official, and their property. This inviolability covers:
a) All classes of diplomatic officers;
b) The entire official personnel of the diplomatic mission;
c) The members of the respective families living under the same roof;
d) The papers, archives and correspondence of the mission.
ARTICLE 15. States should extend to diplomatic officers every facility for the exercise of their functions and especially to the end that they may freely communicate with their governments.
ARTICLE 16. No judicial or administrative functionary or official of the State to which the diplomatic officer is accredited may enter the domicile of the latter, or of the mission, without his consent.
ARTICLE 17. Diplomatic officers are obliged to deliver to the competent local authority that requests it any person accused or condemned for ordinary crimes, who may have taken refuge in the mission.
ARTICLE 18. Diplomatic officers shall be exempt in the State to which they are accredited:
1. From all personal taxes, either national or local;
2. From all land taxes on the building of the mission, when it belongs to the respective government;
3. From customs duties on articles intended for the official use of the mission, or for the personal use of the diplomatic officer or of his family.
ARTICLE 19. Diplomatic officers are exempt from all civil or criminal jurisdiction of the State to which they are accredited; they may not, except in the case when duly authorized by their government, waive immunity, be prosecuted or tried unless it be by the courts of their own country.
ARTICLE 20. The immunity from jurisdiction survives the tenure of office of diplomatic officers in so far as regards actions pertaining thereto; it may not, however, be invoked in respect to other actions except while discharging their diplomatic functions.
ARTICLE 21. Persons enjoying immunity from jurisdiction may refuse to appear as witnesses before the territorial courts.
ARTICLE 22. Diplomatic officers enter upon the enjoyment of their immunity from the moment they pass the frontier of the State where they are going to serve and make known their position.
The immunities shall continue during the period that the mission may be suspended, and, even after it shall be terminated, for the time necessary for the officer to be able to withdraw with the mission.
ARTICLE 23. Persons belonging to the mission shall also enjoy the same immunities and prerogatives in the States which they cross to arrive at their post or to return to their own country, or in a State where they may casually be during the exercise of their functions and to whose Government they have made known their position.
ARTICLE 24. In case of death of the diplomatic officer, his family shall continue to enjoy the immunities for a reasonable term, until they may leave the State.
Termination of the Diplomatic Mission
ARTICLE 25. The mission of the diplomatic officer ends:
- By the official notification of the officer’s Government to the other Government that the officer has terminated his functions;
- By the expiration of the period fixed for the completion of the mission;
- By the solution of the matter, if the mission had been created for a particular question;
- By the delivery of passports to the officer by the Government to which he is accredited;
- By the request for his passports made by the diplomatic officer to the Government to which he is accredited.
In the above mentioned cases, a reasonable period shall be given the diplomatic officer, the official personnel of the mission, and their respective families, to quit the territory of the State; and it shall be the duty of the government to which the officer was accredited to see that during this time none of them is molested nor injured in his person or property.
Neither the death or resignation of the head of the State nor the change of government or political rgime of either of the two countries shall terminate the mission of the diplomatic officers.
ARTICLE 26. The present Convention does not affect obligations previously undertaken by the contracting parties through international agreements.
ARTICLE 27. After being signed, the present Convention shall be submitted to the ratification of the signatory States. The Government of Cuba is charged with transmitting authentic certified copies to the Governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, the Union to notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications. This Convention shall remain open to the adherence of the non-signatory States.
In witness whereof, the aforenamed Plenipotentiaries sign the present Convention in Spanish, English, French and Portuguese, in the city of Habana, the 20th day of February, 1928.
The Governments of the Republics represented at the Sixth International Conference of American States, held in the city of Habana, Republic of Cuba, in the year nineteen hundred and twenty-eight, desirous of defining the duties, rights, prerogatives and immunities of Consular Agents, in accordance with the usages and agreements on the matter;
Have decided to conclude a Convention to that end and have appointed the following Plenipotentiaries:[Here follow the names of the plenipotentiaries.]
Who, after having deposited their full powers, found to be in good and due form, have agreed to the following provisions:
Appointments and functions
ARTICLE I. States may appoint in the territory of others, with the express or tacit consent of the latter, consuls who shall there represent and defend their commercial and industrial interests and render to their nationals such assistance and protection as they may need.
ARTICLE 2. The form and requirements for appointment, the classes and the rank of the consuls, shall be regulated by the domestic laws of the respective State.
ARTICLE 3. Unless consented to by the State where he is to serve, one of its nationals may not act as consul. The granting of an exequatur implies such consent.
ARTICLE 4. The consul having been appointed, the State shall forward through diplomatic channels to the other State the respective commission which shall contain the name, category and authority of the appointee.
As to a vice consul or commercial agent appointed by the respective consul, where there is authorization by law, the commission shall be issued and communicated to the latter.
ARTICLE 5. States may refuse to accept consuls appointed in their territory or subject the exercise of consular functions to certain special obligations.
ARTICLE 6. The consul can be recognized as such only after having presented his commission and obtained the exequatur of the State in whose territory he is to serve. Provisional recognition can be granted upon the request of the legation of the consul pending the delivery in due form of the exequatur.
Officials appointed under the terms of Article 4 are likewise subject to this formality and in such case it rests with the respective consul to request the exequatur.
ARTICLE 7. The exequatur having been obtained, it shall be presented to the authorities of the consular district, who shall protect the consul in the exercise of his functions and guarantee to him the immunities to which he is entitled.
ARTICLE 8. The territorial Government may at any time withdraw the consul’s exequatur, but, except in urgent cases, it shall not have recourse to this measure without previously attempting to obtain from the consul’s Government his recall.
ARTICLE 9. In case of the death, disability or absence of consular agents, any of the assistant employees whose official position has been previously made known to the Ministry of Foreign Affairs or the Department of State, may temporarily assume the consular functions; while thus engaged he shall enjoy all the rights and prerogatives corresponding to the permanent official.
ARTICLE 10. Consuls shall exercise the functions that the law of their State confers upon them, without prejudice to the legislation of the country where they are serving.
ARTICLE I I. In the exercise of their functions, consuls shall deal directly with the authorities of their district. Should their representations not be heeded, they may then pursue them before the Government of the State through the intermediary of their diplomatic representative, but should not communicate directly with the Government except in the absence or non-existence of a diplomatic representative.
ARTICLE 12. In case of the absence of a diplomatic representative of the consul’s State, the consul may undertake such diplomatic actions as the Government of the State in which he functions may permit in such cases.
ARTICLE 13. A person duly accredited for the purpose may combine diplomatic representation and the consular function provided the State before which he is accredited consents to it.
Prerogatives of Consuls
ARTICLE 14. In the absence of a special agreement between two nations, the consular agents who are nationals of the State appointing them, shall neither be arrested nor prosecuted except in the cases when they are accused of committing an act classed as a crime by local legislation.
ARTICLE I5. In criminal cases, the prosecution or the defense may request attendance of consular agents at the trial, as witnesses. This request must be made with all possible consideration to consular dignity and to the duties of the consular office and shall be complied with by the consular official.
Consular agents shall be subject to the jurisdiction of the courts in civil cases, although with the limitation that when the consul is a national of his State and is not engaged in any private business with purposes of gain, his testimony shall be taken either verbally or in writing, at his residence or office, with all the consideration to which he is entitled.
The consul may, nevertheless, of his own free will appear as a witness when such appearance does not seriously hinder the discharge of his official duties.
ARTICLE 16. Consuls are not subject to local jurisdiction for acts done in their official character and within the scope of their authority. In case a private individual deems himself injured by the consul’s action, he must submit his complaint to the Government, which, if it considers the claim to be relevant, shall make it valid through diplomatic channels.
ARTICLE 17. In respect to unofficial acts, consuls are subject, in civil as well as in criminal matters, to the jurisdiction of the State where they exercise their functions.
ARTICLE 18. The official residence of the consuls and places used for the consulate’s offices and archives are inviolable and in no case may the local authorities enter them without the permission of the consular agents; neither shall they examine nor seize, under any pretext whatsoever, documents or other objects found in a consular office. No consular officer shall be required to present his official files before the courts or to make declaration with respect to their contents.
When consular agents are engaged in business within the territory of the State where they are exercising their duties, the files and documents of the consulate shall be kept in a place entirely separate from the one where private or business papers are kept.
ARTICLE 19. Consuls are obliged to deliver, upon the simple request of the local authorities, persons accused or condemned for crimes who may have sought refuge in the consulate.
ARTICLE 20. Consular agents, as well as the employees of the consulate who are nationals of the State appointing them, not engaged in business with purposes of gain, in the State where they perform their functions, shall be exempt from all national, state, provincial or municipal taxes levied upon their person or property, except such taxes as may apply to the possession or ownership of real estate located in the State where discharging their duties or to the proceeds of the same. Consular agents and employees who are nationals of the State they represent, are exempt from taxes on the salaries, honorariums or wages which they receive in return for their consular services.
ARTICLE 21. The employee who substitutes for the consular agent in his absence, or for another cause, shall enjoy during his temporary term of office the same immunities and prerogatives as the latter.
ARTICLE 22. Consuls engaged in business or exercising other functions apart from those pertaining to their consular duties are subject to local jurisdiction in all their activities not pertaining to the consular service.
Suspension and termination of consular functions
ARTICLE 23. Consular agents suspend their functions because of illness or eave of absence, and terminate their office:
a) by death;
b) by retirement, resignation or dismissal; and
c) by the cancellation of the exequatur.
ARTICLE 24. The present Convention does not affect obligations previously undertaken by the contracting parties through international agreements.
ARTICLE 25. After being signed, the present Convention shall be submitted to the ratification of the signatory States. The Government of Cuba is charged with transmitting authentic certified copies to the Governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, the Union to notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications. This convention shall remain open to the adherence of non-signatory States.
In witness whereof, the aforenamed Plenipotentiaries sign the present Convention in Spanish, English, French and Portuguese, in the city of Habana, the 20th day of February, 1928.
RESERVATION OF THE DELEGATION OF VENEZUELA
On behalf of the Government that I represent, I make a reservation with respect to the coincidence of diplomatic and consular functions in the same person, because it is totally opposed to our tradition, maintained since it was established until the present time, in a way that admits of no change.