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CONSULAR CONVENTION BETWEEN THE REPUBLIC OF KOREA AND THE RUSSIAN FEDERATION

 CONSULAR CONVENTION BETWEEN THE REPUBLIC OF KOREA AND THE RUSSIAN FEDERATION

Signed at Seoul March 18, 1992

Entered into force July 29, 1992

The Republic of Korea and the Russian Federation,

Desiring to contribute to the development of friendly relations between the two countries as well as to the facilitation of the protection of the rights and interests of their nationals;

Wishing to make further provision for the conduct of consular relations to supplement the Vienna Convention on Consular Relations, done at Vienna on 24 April 1963;

Have agreed as follows:

Article 1

Definitions

For the purposes of this Convention:

(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, diskettes and registers of the consular post, together with the ciphers and codes, and card-indexes and any article of furniture intended for their protection or safekeeping;

(l) “vessel of the sending state” means any vessel with the exception of military vessels entitled to fly the flag of the sending State and registered in that State;

(m) “aircraft of the sending State” means any aircraft with the exception of military aircraft registered in the sending State and entitled to use the national emblem of that State.

Article 2

Establishment of Consular Posts

1. The establishment of a consular post by the sending State in the territory of the receiving State shall be subject to the consent of the receiving State.

2. The seat of the consular post, its classification, the consular district and the number of members of the consular staff 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, the consular district or the number of members or the consular staff 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 3

Appointment of the head of a consular post

1. Prior to the appointment of the head of a consular post by the sending State, the consent of the receiving State concerning the proposed person shall be obtained through the diplomatic or other appropriate channel.

2. If the receiving State refuses its consent to the appointment of a person as the head of a consular post it is not obliged to give the sending State reasons for such refusal.

3. The sending State shall transmit to the Minister of Foreign Affairs of the receiving State through the diplomatic channel the consular commission or similar instrument for the appointment of the head of the consular post. This document shall designate the name of the head of the consular post, his or her class, the consular district and the seat of the consular post.

4. Upon receipt of the consular commission or similar instrument for the appointment of the head of the consular post, the receiving State shall issue to him or to her an authorisation termed an exequatur, in any form whatsoever. The receiving State which refuses to grant an exequatur shall not be obliged to give the sending State reasons for such refusal.

5. Except as provided in paragraph 6 of this Article and Article 4, the head of a consular post may enter upon the performance of his or her functions only after the issue of such an exequatur.

6. The receiving State may admit the head of a consular post to exercise his or her functions on a provisional basis until such time as an exequatur has been issued. In that case the provisions of this Convention shall apply.

7. As soon as the head of a consular post is admitted even provisionally to the exercise of his or her 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 or her office and to have the benefit of the provisions of this Convention.

Article 4

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 or her functions or the position of head of the 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 or she is unable to do so, by any competent authority of the sending State, to the Ministry of 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.

3. The competent authorities of the receiving State shall afford assistance and protection to the acting head of post. While he or she is in charge of the post, the provisions of this Convention shall apply to him or to her on the same basis as to the head of the consular post concerned.

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 or she shall, if the receiving State does not object thereto, continue to enjoy diplomatic privileges and immunities.

Article 5

Appointment of members of the consular staff

1. Subject to the provisions of Articles 3, 6 and 7 the sending State may freely appoint the members of the consular staff.

2. The full name, category and class of each consular officer, 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 7.

3. The receiving State shall issue to all members of consular post and their family an identity card recognising their status as members of consular post and their family.

Article 6

Nationality of consular officers

A consular officer should have the nationality of the sending State.

Article 7

Persons declared non grata

1. The receiving State may at any time notify the sending State through diplomatic channels 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 or her 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 or other authorisation from the person concerned or cease to consider him or her 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 or her duties with the consular post. In any such case, the sending State shall withdraw his or her 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 decisions.

Article 8

Notification to the receiving State of appointments, arrivals and departures

1. The Ministry of 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 or her 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 notifications of arrival and final departure shall also be given.

Article 9

Acquisition of consular premises and residences

1. The sending State shall be entitled, on its own or through any natural or juridical person authorised by it, in accordance with the laws and regulations of the receiving State and with the permission of that State,to acquire by ownership, lease, rent or any other form of tenure:

(a) consular premises, a residence for the head of the consular post, and a residence for each consular officer and each consular employee who is not a national of or a permanent resident of the receiving State;

(b) land to construct thereon any such premises and residences.

2. Under the conditions referred to in paragraph 1 of this Article, the sending State may, also, improve such premises, residences, or land.

3. The receiving State shall, where necessary, render appropriate assistance and support to the sending State in carrying out the rights specified in paragraphs 1 and 2 of this Article.

4. Nothing in this Article shall be construed as exempting the sending State from compliance with the laws and regulations of the receiving State relating to siting and design of buildings, and the laws and regulations relating to town planning and zoning.

Article 10

Honorary consular officers

Should both Contracting Parties consent to the appointment of an honorary consular officer, they shall consult each other on the establishment of arrangements, based upon the provisions of this Convention and the rules of customary international law, to define the regime to apply to honorary consular officers.

Article 11

Protection of, and facilities for, consular posts and members of consular posts

1. The receiving State shall provide full facilities for the performance of the functions of the consular post.

2. The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack upon the person, freedom or dignity of consular officers or other members of the consular post who are neither nationals nor permanent residents of the receiving State, and of members of the family forming part of the household of any of the foregoing.

Article 12

The 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 in official business.

3. In exercising the rights provided by this Article, the sending State shall observe the laws, regulations and usages of the receiving State.

Article 13

Inviolability of the consular premises

1. Consular premises shall be inviolable in accordance with the provisions of 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 the head of the diplomatic mission of the sending State or of a person designated by one of these. Unless expressly denied by the persons mentioned in this paragraph in case of fire or other disaster requiring prompt protective action the authorities of the receiving State may enter consular premises. However, in no case are the authorities permitted to violate the principles of inviolability of the archives of consular premises, and especially to examine or seize them.

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.

Article 14

Inviolability of the consular archives

The consular archives shall be inviolable at all times and wherever they may be.

Article 15

Exemption from taxation of consular premises

1. Consular premises and the residence of the 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 laws and regulations 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 16

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 17

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 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.

4. The consular bag shall be neither opened nor detained. Never the less, 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 3 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.

5. The consular courier shall be provided with an official document indicating his or her status and the number of packages constituting the consular bag. Except with the consent of the receiving State he or she shall be neither a national of the receiving State, nor, unless he or she is a national of the sending State, a permanent resident of the receiving State. In the performance of his or her functions he or she shall be protected by the receiving State, 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 or her charge.

7. A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorised port of entry. He or she shall be provided with an official document indicating the number of packages constituting the bag, but he or she 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 aircraft as well as to transmit such bag to him or her.

Article 18

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.

4. 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 or her, the receiving State shall promptly notify the head of the consular post. Should the latter be himself or herself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

Article 19

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 or she 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 vehicle, vessel or aircraft.

Article 20

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 or her.

2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his or her functions. It may, when possible, take such evidence at his or her residence or at the consular post or accept a statement from the consular officer 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 witenesses with regard to the laws and regulations of the sending State.

Article 21

Waiver of privileges and immunities

1. The sending State may waive, with regard to a member of the consular post or of their family, any of the privileges and immunities provided for in Articles 18, 19 and 20.

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 or she might enjoy immunity from the jurisdiction under Article 19 shall preclude him or her 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; in respect of such measures, a separate waiver shall be necessary.

Article 22

Exemption from registration of aliens and residence permits

1. Consular officers and consular employees and members 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 to any member of the family of any such employee.

Article 23

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 24

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 house-holds, 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 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 25

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 15;

(c) estate, succession or inheritance duties, and duties on transfers, levied by the receiving State, subject to the provisions of sub-paragraph (b) of Article 27;

(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) charge levied for specific services rendered;

(f) registration, court or record fees, mortgage dues and stamp duties, subject to the provisions of Article 15.

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 26

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 or her family forming part of his or her household, including articles intended for his or her establishment. The articles intended for consumption shall not exceed the quantities necessary for direct utilisation 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 the member of his or her family concerned.

Article 27

Estate of a member of the consular post or of a member of his or her family

In the event of the death of a member of the consular post or of a member of his or her family forming part of his or her 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 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 28

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 29

Beginning and end of consular privileges and immunities

1. Every member of the consular post shall enjoy the privileges and immunities provided in this Convention from the moment he or she enters the territory of the receiving State on proceeding to take up his or her post or, if already in its territory, from the moment when he or she enters on his or her duties with the consular post.

2. Members of the family of a member of the consular post forming part of his or her household and members of his or her private staff shall receive the privileges and immunities provided in this convention from the date from which he or she 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 member of the consular post have come to an end, his or her privileges and immunities and those of a member of his or her family forming part of his or her household or a member of his or her 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 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 or her 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 or her family forming part of his or her 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 30

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 this Convention, be considered to form part of the consular premises.

Article 31

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 32

Special provisions concerning private gainful occupation

1. 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 Convention 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 or her 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.

Article 33

Nationals or permanent residents of the receiving State

Members of the consular post other than consular officers who are nationals of or permanently resident in the receiving State and members of their families, as well as members of the families of members of the consular post shall 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 34

Exercise of consular functions

Consular functions are exercised by consular posts. They are also exercised by diplomatic missions in accordance with the provisions of this Convention.

Article 35

Performance of consular functions by a diplomatic mission

1. The provisions of this Convention apply also, so far as the context permits, to the exercise of consular functions by a diplomatic mission.

2. The names of the members of a diplomatic mission charged with the exercise of consular functions of the mission shall be notified to the Ministry of 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 both the local and central authorities of the receiving State to the extent that this is allowed by the laws, regulations and usages of the receiving State.

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 36

Exercise of consular functions within and outside the consular district, in a third State, or on behalf of a third State

1. A consular officer is entitled to exercise within his or her consular district the consular functions mentioned in this Convention.

2. A consular officer may, with the consent of the receiving State, exercise consular functions outside his or her consular district.

3. The sending State may, after notifying the States concerned, entrust a consular post established in the receiving State with the exercise of consular functions in a third State, unless the receiving State expressly objects.

4. 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 37

Consular functions in general

Subject to other related Articles in this Convention, 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 this 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, revoking, amending, withdrawing or withholding passports and other travel documents to nationals of the sending State, and, for persons wishing to travel to the sending State, issuing, extending or revoking visas or appropriate documents;

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(f) enlisting the assistance of the competent authorities of the receiving State to locate nationals of the sending State where there is concern for their welfare or for other humanitarian considerations;

(g) safeguarding the right of nationals of the sending State to depart promptly from the receiving State subject to:

(i) completion, where special circumstances apply, of administrative or judicial proceedings involving the person seeking to depart; and

(ii) completion by the person seeking to depart of normal departure formalities, but the need for completion of these matters shall be applied without discrimination and shall not be used to frustrate prompt departure;

(h) 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;

(i) 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;

(j) 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;

(k) 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 defense of their rights and interests;

(l) transmitting judicial and extra-judicial 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;

(m) 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;

(n) extending assistance to vessels and aircraft mentioned in sub-paragraph (m) 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 authorised by the laws and regulations of the sending State;

(o) 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 international agreements in force between the sending State and the receiving State.

Article 38

Consular access

1. 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.

2. Consular officers may request assistance from the competent authorities of the receiving State in search of missing nationals of the sending State.

Article 39

Functions in respect of detention and trial

1. If a national of the sending State is detained within the consular district, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State.

2. Any communication addressed to the consular post by the detained national of the sending State shall be forwarded by the authorities of the receiving State without delay to the consular post.

3. A consular officer shall be entitled to visit a detained national of the sending State, to converse and to correspond with him or her, to deliver to and receive from him or her mail and parcels and to arrange for his or her legal representation. The first of these visits shall be permitted as soon as possible. Subsequent visits shall be permitted periodically, but at intervals of not more than two months.

4. Consular officers shall refrain from taking action on behalf of a detained national of the sending State if the national concerned expressly opposes such action in the presence of the consular officer.

5. The receiving State shall inform nationals of the sending State detained or subject to trial or other proceedings of the provisions of this Article.

6. In this Article a reference to a person who has been detained shall include a reference to a person who has been detained, arrested or subjected to any other form of limitation of his or her personal freedom, including such a person who is in custody pending trial or who is serving a prison sentence in the receiving State.

7. The rights contained in this Article shall be exercised in accordance with the laws and regulations of the receiving State so long as these laws and regulations enable full effect to be given to the purposes for which these rights are accorded.

Article 40

Functions in respect of inheritance

1. The competent authorities of the receiving State shall as soon as possible notify a consular officer of the death within his or her consular district of a person known by those authorities to be a national of the sending State and shall inform the consular officer of the existence of an estate, of a will and whether a person present or represented in the receiving State has been appointed to administer that estate.

2. The competent authorities of the receiving State shall as soon as possible inform a consular officer of an estate left in the receiving State when the successor or a beneficiary is the sending State or a person known by those competent authorities to be a national of the sending State.

3. If a consular officer is the first to learn of the death in the receiving State of a national of the sending State or of the existence of an estate located in the receiving State left by a deceased national of the sending State, he or she shall inform the competent authorities of the receiving State.

4. A consular officer shall be entitled, in relation to estate matters specified in paragraphs 1, 2 and 3 of this Article and, to the extent permitted under the laws and regulations of the receiving State:

(a) to request the receiving State to take measures or to take steps personally for the safeguardings, preservation and administration of the estate;

(b) to be present during, or otherwise to participate in, the taking of the measures referred to in sub-paragraph (a) of this paragraph; and

(c) to arrange for the representation of a national of the sending State, having a legitimate interest in the estate, who is neither present nor represented in the receiving State.

5. Where a representative is arranged under paragraph 4 (c) of this Article, this representation remains operative until the persons so represented appoint their own representatives or assume defence of their right or interest.

6. If a national of the sending State dies during his temporary stay in the receiving State, not being domiciled in that state, the consular officer may subject to the law of the sending State take possession of and dispose of the documents, money and other personal property of the deceased provided there is no person in the receiving State who is entitled to claim such documents, money or personal property. Provisional custody shall be relinquished in accordance with the laws and regulations of the receiving State to a duly appointed administrator or other authorised person.

7. The sending and receiving State shall facilitate the transfer of inheritances:

(a) by approving the export and import of articles forming part of the estate where the export and import of such articles is not expressly prohibited by the laws and regulations of States whose approval of the import or export is required; and

(b) by allowing the realization of any part of the estate which is not exported under the provisions of sub-paragraph (a) of this paragraph; and

(c) by allowing the net proceeds of such realization after the deduction of fees, taxes and duties to be transferred to the beneficiary, in his or her State of residence, in the currency of the sending State or in any freely convertible currency.

8. A consular officer may on behalf of a national of the sending State, if such national is not present in the receiving state, receive from a court, authorities or an individual, money or other property to which the national concerned is entitled as a consequence of the death of any person, including the estate, payments made in pursuance of accident compensation laws and the proceeds of life insurance policies.

Article 41

Functions regarding nationality matters

A consular officer shall be entitled:

(a) to register nationals of the sending State;

(b) to accept applications and receive, issue, or deliver documents on matters of nationality, subject to the laws and regulations of the sending State.

Article 42

Functions regarding civil status matters

1. A consular officer shall be entitled:

(a) to maintain registers of births and deaths of nationals of the sending State and to receive or obtain relevant communications and documents;

(b) to accept any application or declaration relating to the civil status of nationals of the sending State.

2. The provisions of paragraph 1 of this Article do not exempt the persons concerned from any obligations under the laws and regulations of the receiving State.

Article 43

Guardianship functions

1. If the relevant information is available to the competent authorities of the receiving State, they shall have the duty 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.

2. The consular officer shall be entitled to propose to the competent authorities of the receiving State the names of appropriate persons to act as guardians or trustees.

Article 44

Rendering assistance to vessels

1. A consular officer shall be entitled to provide appropriate assistance and support to a vessel of the sending State which is in a port or other anchorage of the receiving State or is in the internal waters or territorial sea of the receiving State.

2. A consular officer shall be entitled to meet and communicate with the master and members of the crew on the vessel and elsewhere in accordance with the laws and regulations of the receiving State.

3. A consular officer may address the competent authorities of the receiving State and request their support in carrying out his or her functions with regard to all matters relating to a vessel of the sending State and with regard to the master, members of the crew and the cargo.

Article 45

Rendering assistance to master and crew

1. To the extent that the following actions are not contrary to the laws and regulations of the receiving State, a consular officer shall be entitled:

(a) to investigate any incident which occurs aboard a vessel of the sending State, to question the master and any member of the crew with reference to these incidents, to inspect the vessel’s papers, to receive information in connection with the voyage and destination of the vessel and also to render assistance in connection with the entry and departure of a vessel and its stay in the port;

(b) to settle disputes between the master and a crew member, including disputes concerning wages and employment contracts;

(c) to undertake formalities connected with the signing on and discharging of the master or of a crew member;

(d) to arrange medical treatment for the master, a member of the crew or a passenger of the vessel and to arrange for their repatriation to the sending State;

(e) to receive, draw up, certify or prolong any declaration or other document provided for by the laws and regulations of the sending State in regard to a vessel of the sending State or its cargo;

(f) to undertake other steps to apply the laws and regulations of the sending State concerning merchant shipping.

2. The consular officer shall be entitled, in accordance with the laws and regulations of the receiving State to appear together with the master or a crew member before the courts or other authorities of the receiving State in order to render them assistance.

Article 46

Protection of interests in case of investigations on board a vessel

1. If the courts or other competent authorities of the receiving State intend to take coercive measures or to conduct an investigation on board a vessel of the sending State which is in the internal waters or territorial sea of the receiving State, the consular officer shall be notified in advance by the competent authorities of the receiving State so that he or she can be present when such actions are being taken. If the consular officer is not present when such actions are taken, the competent authorities of the receiving State shall, on request, inform him or her thereof in writing. If the urgency of the measures to be taken does not allow prior notification to the consular officer, the competent authorities of the receiving State shall inform the consular officer in writing of the occurrence and the action taken, even though the consular officer has not so requested.

2. The provisions of paragraph 1 of this Article shall also apply if the competent authorities of the receiving State summon the master or member of the crew of a vessel of the sending State to answer questions on shore on matters affecting the vessel.

3. Except at the request or with the permission of the consular officer or of the master of the vessel of the sending State, the judicial or other competent authorities of the receiving State shall not interfere on board a vessel of the sending State in the internal affairs of the vessel on questions of relations between the members of the crew, labour relations, discipline on board and other activities of an internal character relating to the vessel provided that the laws and regulations relating to the peace and safety of the receiving State are not violated.

4. The provisions of this Article shall not be applied, however, to ordinary customs, immigration, passport and sanitary controls or to other measures undertaken by the competent authorities of the receiving State at the request of, or with the consent of, the master of the vessel. This Article shall not affect the rights and obligations of the Parties under multilateral treaties in force between them.

Article 47

Assistance in the case of damage to vessels

1. If a vessel of the sending State is wrecked, grounded or suffers any other damage in internal or territorial waters of the receiving State, the competent authorities of the receiving State shall inform a consular officer as soon as possible and inform him or her of the measures taken for saving the passengers and crew and salvaging the vessel and its cargo.

2. The consular officer may either assist a vessel of the sending State, the members of the crew thereof and such of the passengers thereof who are nationals of the sending State or he or she may request the receiving State to provide such assistance.

3. If the owner of a vessel of the sending State, the master or other authorised person is not in a position to undertake the necessary measures for safeguarding, salvaging or disposing of the vessel or its cargo, the consular officer of the sending State, on behalf of the owner, shall either undertake those measures which the owner of the vessel or the cargo would undertake in such a case or request the receiving State to undertake those measures.

4. The provisions of paragraphs 1, 2, and 3 of this Article shall also apply to objects belonging to a national of the sending State and which were on board a vessel, whether of the sending State or of a third state, which were found on the shore or in the waters of the receiving State, or which have been brought to a port of the receiving State.

5. The competent authorities of the receiving State shall extend all necessary assistance to a consular officer in taking the measures relating to the salvage of a vessel of the sending State.

6. A vessel of the sending State which has suffered damage as well as its cargo and provisions, shall be exempt from customs duties, charges and fees in the receiving State, unless the vessel and its cargo are held in bond in that State.

Article 48

Functions with regard to aircraft

Articles 44 to 47 of this Convention shall also apply to civil aircraft to the extent that they are not contrary to any international agreements on civil aviation to which both States are parties.

Article 49

Communication with the authorities of the receiving State

In the exercise of their functions, consular officers may address:

(a) the local competent authorities of their consular district;

(b) the central competent authorities of the receiving State to the extent this is allowed by the laws, regulations and usages of the receiving State or by the relevant international agreements.

Article 50

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.

3. The receiving State shall allow the consular post to deposit the sums so collected to its official banking account.

Article 51

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 inter alia:

(a) on notification by the sending State to the receiving State that his or her functions have come to an end;

(b) on withdrawal of the exequatur or other authorisation granted y the receiving State under Article 3;

(c) on notification by the receiving State to the sending State that the receiving tate has ceased to consider him or her as a member of the consular staff.

Article 52

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 53

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 the two States:

(a) the receiving State shall, even in the 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.

Article 54

Entry into force and duration

1. This Convention shall be ratified in accordance with the constitutional requirements of the Contracting Parties and shall enter into force thirty days after the date of the exchange of the instruments of ratification.

2. This Convention shall remain in force until the expiration of six months from the date on which one of the Contracting Parties gives to the other Contracting Party written notification through the diplomatic channel of its intention to terminate this Convention.

DONE in duplicate at Seoul on this 18th day of March, 1992 in the Korean, Russian and English languages, all texts being equally authentic. In case ofdivergence of interpretation, the English text shall prevail.

 

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