Despite (or perhaps because of) its long gestation period, the Vienna Convention on Consular Immunity (the "Vienna Convention" or "Convention") is in many ways a confusing document. Some of the most vexing and perplexing problems of interpretation and application that the Convention gives rise to concern the Convention's basic category of "consular function."
"Consular function" is the Vienna Convention's terminological pivot. The term has two distinct but related functions within the Convention, and it is important to distinguish between them. One function is to help describe the types of activities the Vienna Convention authorizes (i.e., permits) a consular officer to engage in. Briefly stated, the Convention authorizes a consular officer to engage in any activity that constitutes a "consular function" as that term is defined in Article5 of the Convention. The second and derivative function of the phrase within the Convention is to help identify those activities that the consular officer can engage in with impunity even though the Convention does not authorize him to do so; in other words the activities with respect to which the consular officer enjoys consular immunity. Briefly, the Convention provides that a consular officer is immune from civil claims and criminal prosecution arising out of his acts performed in the exercise of consular functions. This issue will focus on the consular activities that the Vienna Convention authorizes; a subsequent issue will discuss immunity issues arising under the Convention.
There has been a tendency among courts and commentators both in the United States and elsewhere to conflate the two different uses of "consular function" and conclude that what a consular officer may do with impunity wholly coincides with what the Convention authorizes (i.e., permits) him to do; or, in other words, that authorized and immunized acts under the Convention coincide. This cannot be correct. For the Convention to make sense, it must be understood to contemplate acts and activities for which the consular officer may invoke consular immunity even though he lacks the authority to engage in them. That this must be so follows from some fairly elementary reflections, to be discussed below.
First, the conflation of authorized acts and immunized acts would empty the consular immunity doctrine of almost all, if not all, content. Upon ratification by the U.S. Senate, the Vienna Convention became the law of the United States. As such, it preempted the field of consular law and displaced conflicting U.S. law, both state and federal law. Consequently, what the Convention authorizes or permits foreign consular officers to do is in fact permitted, and thus lawful, under U.S. law. If the consular acts the Convention authorizes (i.e. characterizes as permissible consular functions) were coextensive with the consular acts on which the Convention confers immunity, it would follow that foreign consular officers in the United States only have immunity for their lawful acts, a result that would, in effect, deprive the doctrine of consular immunity of independent significance.
Secondly, the conflation of consular immunity and consular authority would render Article 55, Paragraph 1 of the Vienna Convention meaningless. Article 55, Paragraph 1 provides that "[w]ithout prejudice to their privileges and immunities, it is the duty of [consular officers] to respect the laws and regulations of the [United States]." This can only mean that the Convention contemplates consular immunity for at least some acts that violate the law of the United States. That is, in fact how most (but not all) U.S. courts have interpreted the Convention.
A simple example (based on an actual case) illustrates the point. Under Article 5(n) of the Convention, any function entrusted to a consular officer constitutes a consular function so long as it is "not prohibited by the laws and regulations of the [United States]." The negotiation and execution of leases for consular premises is typically a function entrusted to a consular officer. A consular officer who negotiates and signs an office lease on behalf of the consulate is therefore acting in the exercise of a consular function. If the consular officer employs unlawful means in entering into the lease, e.g., fraud and deceit, he is nevertheless doing so in the exercise of a consular function, and is immune from civil and criminal claims based on his fraud and deceit even though the Convention does not give him permission to engage in fraudulent and deceitful acts. This understanding of the Convention is well supported by U.S. decisional law, and demonstrates that there are immunized acts which are not authorized. Q.E.D.
The reason for the persistent tendency to equate consular authority with consular immunity may be the equally persistent tendency to view the Vienna Convention as being primarily, or even exclusively, concerned with establishing the existence and scope of consular immunity. That is far from the case, however. A review and analysis of the Vienna Convention's legislative history and of its specific provisions shows that the principal purpose of the Convention is to express agreement on the permissible activities of consular officers of one state in the territory of another state. Consular immunity is an adjunct, albeit an important one, to that primary purpose. The fact that conflicts and disputes over the provisions of the Vienna Convention frequently involve consular immunity should not be allowed to distract from this elementary insight.
The various types of consular functions authorized by the Convention are listed in its Article 5. Article 5 raises a host of difficult issues of interpretation and application. Here we can only hope to discuss a few of them. Some of the most intractable interpretation problems stem from the fact that with respect to some of its categories of consular functions, Article 5 requires that, in order to constitute a consular function, the consular activity in question must comply with the law of the receiving state or of some other specified legal system (e.g., international law or the law of the sending state), while other definitions do not have any such requirement.
Of the categories of consular functions defined in Article 5, the following require compliance with the laws of one legal system external to the Vienna Convention or another: Article 5(a) requires that consular activities defined therein fall within the limits permitted by international law. Article 5(c) requires that the consular activities defined therein be conducted by lawful means. The activities dealt with by Article 5(f) must be such that there is nothing contrary thereto in the laws and regulations of the [United States]. The activities governed by Article 5(g) must be conducted in accordance with the laws and regulations of the [United States]. Article 5(h) requires that the consular activities it addresses fall within the limits imposed by the laws and regulations of the [United States]. Article 5(i) provides that the relevant activities will be subject to the practices and procedures obtaining in the [United States] and must be in accordance with the laws and regulations of the [United States]. Article 5(j) requires that the relevant conduct be in accordance with international agreements in force, or, in the absence of such agreements, be done in [a] manner compatible with the laws and regulations of the [United States]. Finally, Articles 5(k) and 5(n) confer the status of "consular function" on activities which are provided for in the laws and regulations of the sending state (Article 5(k)) or which are not prohibited by the laws and regulations of the sending state. (Article 5(n)). Only the consular functions defined in Article 5(b), 5(d) and 5(e) have no such or similar requirement.
Among the difficulties created by the Convention's reference to legal norms external to the Vienna Convention in the definition of some, but not all consular functions, perhaps the most troublesome is the following: are Article 5's various compliance requirements really intended to be part of the definition of the consular functions in question, or are they merely exhortations to foreign consular officers to respect the laws of the United States (or some other legal system) when they exercise their consular functions in the United States? The answer has some significant legal consequences.
The position that compliance with the relevant laws and regulations referenced in the various sub-paragraphs of Article 5 is indeed part of the definition of the consular functions in question has as a consequence that the actions of a consular officer who purports to exercise one of the consular functions defined in Article 5 but who fails to comply with one or more of the laws and regulations referenced, do not constitute the exercise of a consular function at all. That means, in turn, that the consular officer will not have consular immunity under Article 43 from claims based on his actions in connection with his attempted exercise of the consular function, because those actions were not "performed in the exercise of a consular function." For example, under this interpretation, a consular officer who in the course of gathering commercial, economic or scientific information about the United States in accordance with Article 5(c) records on tape a conversation with a U.S. citizen without the latter's knowledge or consent (potentially a felony in California and other states of the United States) would not enjoy immunity either from a civil claim by his unsuspecting interlocutor or from criminal prosecution by the state based on the unlawful recording, because Article 5(c) requires that the gathering of such information must be "by lawful means" in order to qualify as a consular function.
If, on the other hand, one takes the position that the references in Article 5 to compliance with laws and regulations extraneous to the Vienna Convention should be understood merely as exhortations to good behavior, activities that fail to comply with the relevant laws and regulations but otherwise meet the definition of consular function would constitute a consular function, and the consular officer would enjoy immunity for all of his actions "performed in the exercise of [the] consular function." In our example, the consular officer would be immune from civil claims and criminal prosecution based on his illegal tape recording of the unsuspecting interlocutor.
In theory, U.S. courts would be inclined to take the first position. When it interprets a legislative text, a U.S. court tends to assume both that the text is internally consistent, and that every material variation of expression within the text corresponds to a legally significant distinction. Considering the requirements of compliance with laws and regulations as mere exhortations would run counter to this principle of legislative interpretation, both because the requirements would add little or nothing to the general exhortation to lawful behavior found in Article 55 of the Convention, and because the interpretation would effectively eviscerate the distinction between those consular functions defined in Article 5 that include a requirement of compliance with laws and regulations and those that do not (i.e., Articles 5(b), 5(d) and 5(e)).
In practice, the Courts seem to vacillate between the two interpretations. On the one hand, it is an indication that U.S. courts would indeed favor the first alternative that they have done so in the converse situation. Several courts applying the definitions of consular functions in Article 5 that do not expressly require compliance with certain laws and regulations (i.e., Article 5(b), (d) and (e)), have concluded from the absence of such requirements in the definitions under scrutiny coupled with their presence in the definitions of other consular functions, that even unlawful consular conduct otherwise falling within the definition of one of the consular functions under scrutiny qualifies as a consular function. On the other hand, there are court decisions taking the opposite approach, such as the one discussed above granting a consular officer immunity against claims that he acted fraudulently while negotiating contracts on behalf of the consular post.
Of course, it is not a given that the outcome would be the same for all of the consular functions defined in Article 5 requiring compliance with certain laws and regulations, but it is difficult to see how a court could make a principled distinction between them.
Another major issue (actually two issues) raised by the Article 5 definitions of consular functions requiring compliance with laws and regulations, is what those requirements mean, and to what extent variations in the language in which they are expressed reflect significant legal distinctions between the requirements. This is also a complex issue, because the language variations are many and sometimes subtle.
Thus, a number of the definitions - Articles 5(f), (g), (h), (i), (j), and (n) - make reference to "the laws and regulations of the [United States]", but otherwise differ in apparently minor, but possibly significant, ways. For example, Article 5(f) authorizes certain consular conduct only insofar as "there is nothing contrary thereto in the laws and regulations of the [United States]". Article 5(g) authorizes certain consular activities so long as they are conducted "in accordance with the laws and regulations of the [United States]" as does Article 5(i). Article 5(h), on the other hand, requires that the consular conduct be "within the limits imposed by the laws and regulations of the [United States]". Article 5(j) requires that the consular activities be conducted in a "manner compatible with the laws and regulations of the [United States]", while Article 5(k) authorizes certain activities "provided for in the laws and regulations of the [United States]". Finally, Article 5(n) authorizes certain consular functions in so far as they "are not prohibited by the laws and regulations of the [United States]."
Some of these linguistic variations can perhaps be explained by stylistic requirements imposed by the context in which they occur. Others cannot easily be so explained. For example, it is difficult to see why Articles 5(f), (g) and (h) use three different expressions to state their compliance requirement, when no linguistic constraint appears to demand a variation of expression. Nevertheless, a U.S. court called upon to interpret these expressions would take as its point of departure that differences in expression are intended to reflect a difference in legal significance. What the legally significant difference could possibly be is difficult to see, however.