Should Regulation Be Introduced to Limit a Citizen's Ability to Serve as an Honorary Consul of a Foreign State?

https://doi.org/10.63189/KIVY9893

The primary legal act regulating diplomatic and consular activities in Poland is the Consular Law of June 25, 2015 (hereinafter referred to as "Consular Law"[1]). According to the provisions of this law, one category of individuals who, while not professionally connected to the diplomatic and consular service, are entrusted with significant competencies traditionally belonging to career consuls are honorary consuls. The institution of the honorary consul is, of course, not a uniquely Polish specialty. It originates from ancient Greece, with the forerunners of today’s honorary consuls being the "proxenoi", citizens of one city-state who were granted an honorary title by another city-state, which came with the obligation to care for the citizens of the city-state that had bestowed the title and to represent its interests in the city-state where they resided.[2] Today, this institution has found its place in the legal systems and practical functioning of most countries in the world, complementing and expanding, in the interest of both the sending state and its citizens, as well as the receiving state, the activities performed by the professional consular apparatus.

According to Article 120 of the Consular Law: “An honorary consul of the Republic of Poland, hereinafter referred to as the 'honorary consul,' may be a Polish citizen or a foreigner permanently residing in the receiving state, who possesses high authority and provides assurances of performing actions in accordance with the interests of the Republic of Poland.”This provision applies to honorary consuls representing the interests of the Republic of Poland abroad, defining the formal requirements that a candidate for an honorary consul must meet. Clearly, it does not apply to honorary consuls appointed by foreign states to perform duties within the territory of the Republic of Poland, as the formal requirements they must meet are defined by the internal laws of the sending state. This raises the question of whether there are regulations in Poland, and if not, whether such regulations should be introduced as part of de lege ferenda proposals, which would generally limit the range of individuals who can serve as honorary consuls within the territory of the Republic of Poland, regardless of their citizenship.

In Poland, as in most countries of the world, the Vienna Convention on Consular Relations of April 24, 1963[3] (hereinafter referred to as the "Convention") applies. Within its framework, Article 13 states: "1. The head of a consular post shall be admitted to the exercise of his functions by an authorization from the receiving state, termed an ‘exequatur,’ whatever the form of this authorization. 2. The state which refuses to grant an exequatur is not obliged to give reasons for such refusal to the sending state. 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."

Therefore, in light of international legal obligations, it is beyond doubt that Poland, like any other state party to the Convention, has the right to refuse an exequatur any person appointed to serve as an honorary consul within its territory, without providing any reasons. Thus, from an international legal perspective, it is entirely permissible to introduce provisions in domestic legislation that limit the possibility of granting exequatur by the Minister of Foreign Affairs in any form or scope. Such a legislative measure would, among other things, allow for the exclusion of certain groups of people from the pool of potential honorary consuls on its territory in a general manner, relieving the need for a detailed examination of the circumstances in each specific case when deciding to grant an exequatur.

Some countries have taken advantage of this opportunity. The reason is to avoid situations where there could be a conflict of loyalty, especially when the honorary consul is a citizen of the receiving state. A classic example cited in the literature is the case of Ahlers, a German honorary consul in British Sunderland and a naturalized British citizen, who, after the outbreak of the German-British war in 1914, became involved in assisting German citizens in his consular district, enabling them to return to Germany and participate in armed conflicts against the United Kingdom. A British first-instance court convicted him of treason and sentenced him to death, but his life was spared thanks to a second-instance court, which overturned the ruling, taking into account, among other things, his status as an honorary consul, which obligated him to assist German citizens.[4]

Although wartime situations are generally exceptional (although in recent years they have become increasingly common, even in Europe), there are several other, less drastic scenarios where questions of loyalty arise. In cases of conflicting interests between the sending and receiving states, dilemmas may emerge, particularly when the honorary consul is a citizen of the receiving state, making them dependent on or even involved in governing that state. Some countries, such as the USA, Italy, and Spain, have introduced such provisions. An honorary consul accredited in the USA cannot be a senator, congressman, federal, state, or county official, and generally cannot hold municipal office. In Italy, an honorary consul cannot be an elected state official or an employee of the government or local administration. In Spain, these restrictions are the most extensive, covering state and local officials, military personnel, members of the Spanish Parliament and the parliaments of autonomous communities, government delegates, civil governors, council members, deputies of various levels, members of port management boards, and individuals who have lost their Spanish citizenship for any reason.[5]

The common feature of these regulations is to ensure the required loyalty of honorary consuls to both the sending and receiving states. In my opinion, the literature on the subject rightly suggests that, in the event of a conflict of loyalty, priority should be given to the bond arising from citizenship if the honorary consul is a citizen of the receiving state.[6] However, the best approach seems to be introducing solutions that minimize potential conflicts of loyalty by excluding public officials of the receiving state from the pool of honorary consuls. This group, as it is directly dependent on the state, has a particular duty of loyalty toward it. Paraphrasing the foreign solutions mentioned earlier, they all consider the especially close bond connecting specific categories of people with the state, whether through participation in the exercise of state power (parliamentarians, council members, members of the central government and local government bodies, senior state and local government officials, judges, and prosecutors) or through the specific status of uniformed service officers such as the military, police, border guard, special services, etc.

In de lege ferenda proposals, it seems appropriate to exclude from the pool of potential honorary consuls on the territory of the Republic of Poland those individuals who, according to Article 115 § 13 of the Penal Code[7] of June 6, 1997, meet the definition of a public official. According to this provision, a public official is:

1. The President of the Republic of Poland;

2. A deputy, senator, or councilor;

       2a) A member of the European Parliament;

3. A judge, lay judge, prosecutor, officer of a financial investigative body or superior body, notary, bailiff, court-appointed guardian, bankruptcy trustee, court-appointed supervisor or administrator, and a person adjudicating in disciplinary bodies operating under statutory law;

4. An employee of the government administration, another state body, or local government, unless they perform only service functions, as well as any other person authorized to issue administrative decisions;

5. An employee of a state or local government inspection body, unless they perform only service functions;

6. A person holding a managerial position in another state institution;

7. An officer of a body responsible for public safety or an officer of the Prison Service;

8. A person in active military service, except for those serving in the Territorial Defense Forces on a standby basis;

9. An employee of an international criminal tribunal, unless they perform only service functions;

10. A Water Inspector.

In this way, doubts would be avoided when defining the group of individuals with particularly strong ties to the state, and in cases of uncertainty, one could rely on the rich jurisprudence and doctrine of Polish criminal law that defines who a public official is. It would also be worth considering extending these solutions to a supranational level, for example, in the form of a regional convention applicable to Central European countries, which could set a standard for potential use by other states.

References

[1] Official Journal of 2023, item 1329.

[2] See more: P. Czubik, M. Kowalski: Honorary Consul. A Study in International Law. Kantor Wydawniczy Zakamycze, Kraków 1999, p. 17 et seq., and A. Kleczkowska. The Evolution of the Functions of Honorary Consuls: Remarks from the Perspective of the Consular Law Act in: Polish Consular Law in the Period of

Change, edited by W. Burek and P. Czubik, Ministry of Foreign Affairs of the Republic of Poland, Warsaw 2015, p. 165 et seq.

[3] Official Journal of 1982, No. 13, item 98.

[4] Czubik, M. Kowalski: Honorary Consul, op.cit., p. 80.

[5] Czubik, M. Kowalski: Honorary Consul, op.cit., p. 82 et seq.

[6]  Czubik, M. Kowalski: Honorary Consul, op.cit., p. 81.

[7]  Official Journal of 2024, item 17.