GOVERNMENT | SOCIALIST REPUBLIC OF VIETNAM |
No. 26/2022/ND-CP | Hanoi, April 14, 2022 |
DECREE
FOREIGN HONORARY CONSULS IN VIETNAM
Pursuant to Law on Governmental Organization dated June 19, 2015; Law on amendments to Law on Government Organization and Law on Local Governmental Organization dated November 22, 2019;
Pursuant to Ordinance on privilege and immunity for diplomatic missions, consular missions, and representative missions of international organizations in Vietnam dated August 23, 1993;
At request of Minister of Foreign Affairs;
The Government promulgates Decree on foreign honorary consuls in Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1. Scope and regulated entities
1. Scope
This Decree provides guidelines on Clause 2 Article 36 of the Ordinance on privilege and immunity for diplomatic missions, consular missions, and representative missions of international organizations in Vietnam dated August 23, 1993 in terms of procedures for approval of foreign honorary consuls in Vietnam and operational guidelines of foreign honorary consuls in Vietnam.
2. Regulated entities
a) Consular missions headed by foreign honorary consuls in Vietnam and foreign honorary consuls in Vietnam.
b) Competent authorities, organizations, and individuals related to the approval and operation of foreign honorary consuls in Vietnam.
Article 2. Definition
In this Decree, terms below are construed as follows:
1. “sending country” is a country that authorizes a person to act as an honorary consul to fulfill one or many consulate functions in Vietnamese territory who is approved by the Ministry of Foreign Affairs.
2. “a foreign consular mission in Vietnam headed by an honorary consul” (hereinafter referred to as “an honorary consulate”) is a consular mission which is headed by an honorary consul and authorized by a sending country to station in the territory of the Socialist Republic of Vietnam.
3. “a foreign honorary consul in Vietnam” (hereinafter referred to as “an honorary consul”) is a person who is authorized by a sending country to fulfill one or many consular functions of the sending country in certain consular districts in Vietnam and is approved in writing by the Ministry of Foreign Affairs.
4. “a consular commission” is a document sent by a sending country to the Ministry of Foreign Affairs to authorize a person to fulfill certain functions of an honorary consul to the state, juridical person, and citizens of the sending country in certain consular districts.
5. “an exequatur” is a document sent by the Ministry of Foreign Affair to approve the person authorized by the sending country to act as a foreign honorary consul in certain consular districts in Vietnam.
6. “an honorary consul identity card” is an identity document issued by the Ministry of Foreign Affairs to identify the person appointed to act as a foreign honorary consul in Vietnam.
Article 3. Rules of carrying out consular functions
1. Honorary consulates and honorary consuls are allowed to carry out consular functions only in specific consular districts in Vietnam after obtaining exequatur from the Ministry of Foreign Affairs on the basis of adherence to international and Vietnamese regulations and laws.
2. Honorary consuls shall carry out some or all of consular functions mentioned under the 1963 Vienna Convention on Consular Relations under authorization of the sending countries and approval of Ministry of Foreign Affairs.
3. Honorary consuls shall carry out consular functions for the sole purpose of promoting relationship between the sending country and Vietnam instead of personal goal or economic profit.
4. Honorary consuls may simultaneously perform consular functions designated by the sending countries and conduct personal professional or commercial activities in Vietnam while adhering to international agreements to which the sending country and Vietnam are signatories.
5. Honorary consulates and honorary consuls shall not be eligible for privilege and immunity applicable to honorary consuls when operating beyond the scope of consular functions or when carrying out personal businesses or commercial activities in Vietnamese territory; shall not use the title of honorary consul for personal professional or commercial activities or activities beyond the scope of consular functions.
Chapter II
PROCEDURES FOR APPROVAL AND TERMINATION OF HONORARY CONSULS
Article 4. Approval for establishment of honorary consulates
1. A sending country shall send a diplomatic note directly to the Ministry of Foreign Affairs to request approval for the establishment of a foreign honorary consulate in Vietnam. The diplomatic note must specify the need for establishment of the foreign honorary consulate in Vietnam and the title thereof.
2. Within 10 days from the date on which the Ministry of Foreign Affairs receives the diplomatic note, the Ministry of Foreign Affairs shall consult Ministry of Public Security, Ministry of National Defense, and relevant authorities regarding policies on permitting establishment of foreign honorary consulates in Vietnam. Consulted authorities shall send their remarks to the Ministry of Foreign Affairs within 15 days from the date on which they receive written request of the Ministry of Foreign Affairs.
3. Within 30 days after receiving remarks of Ministry of Public Security, Ministry of National Defense, and relevant authorities, the Ministry of Foreign Affairs shall decide to establish an honorary consulate on the basis of regulations and law, consular relations, nature of the relations, assurance of national defense and security, social order, and adherence to the law and international practice.
In case the consulted authorities have varying remarks in the matter or the establishment of the honorary consulate requires consideration in terms of national defense and security, the Ministry of Foreign Affairs shall report to the Prime Minister.
4. The Ministry of Foreign Affairs shall inform the sending country about whether the establishment of the foreign honorary consulate in Vietnam is approved or not.
Article 5. Procedures for approving honorary consuls
1. After obtaining approval of the Ministry of Foreign Affairs for the establishment of a foreign honorary consulate in Vietnam, the sending country shall send a diplomatic note together with documents under Article 7, expected location of head office of the honorary consulate, and consular functions appointed by the sending country to the Ministry of Foreign Affairs to request for approval of honorary consul candidate.
If necessary, the Ministry of Foreign Affairs may request the sending country to provide additional relevant information.
2. Within 10 working days after receiving the diplomatic note and adequate documents, the Ministry of Foreign Affairs shall consul Ministry of Public Security, Ministry of National Defense, and relevant authorities regarding the approval of honorary consul in order to ensure diplomatic, national defense and security, social order and safety, economic, culture, and education requirements. Consulted authorities shall send their remarks to the Ministry of Foreign Affairs within 15 days from the date on which they receive written request of the Ministry of Foreign Affairs.
Within 30 days after receiving written remarks of the aforementioned authorities, the Ministry of Foreign Affairs shall decide whether or not the candidate is approved to hold honorary consul title.
3. After approving the candidate for honorary consul, the Ministry of Foreign Affairs shall inform the sending country in writing and request the sending country to submit a copy of the consular commission in order to allow the Ministry of Foreign Affairs to issue an exequatur. The parties shall discuss and agree on the sending and receiving dates of the consular commission and the exequatur.
4. After receiving the consular commission and within 5 days after sending the exequatur, the Ministry of Foreign Affairs shall inform Vietnamese authorities about the honorary consul of the sending country who has been recently approved in Vietnam in terms of personal information of the honorary consul, consular district, consular functions, and term of recognition.
5. The sending country may send a diplomatic note to the Ministry of Foreign Affairs to discuss the establishment of foreign honorary consulate in Vietnam and the approval of candidate for honorary consul (after attaching personal background of the honorary consul). In this case, attachments must conform to Clause 1 Article 4 and Clause 1 Article 5 hereof.
6. If a sending country has been approved to establish an honorary consulate in Vietnam and authorizes a new honorary consul, they are not required to discuss the authorization of a new honorary consul with the Ministry of Foreign Affairs as specified under Article 4 hereof.
Article 6. Eligibility of honorary consul candidate
In order to be approved as an honorary consul, a person must:
1. Have nationality of the sending country or Vietnam. The case of a person who has nationality of a third country or more than one nationality requires consent of the Ministry of Foreign Affairs in accordance with procedures under Clause 2 Article 5. Said consent can be withdrawn at any time without reason. In this case, the Ministry of Foreign Affairs shall inform the sending country via a diplomatic note.
2. Reside in Vietnam or has been residing, working for at least 1 year in a consular district.
3. Is not a public official, official, public employee, or employee paid by the state budget of any country.
4. Situate head office or residence within consular district of the consulate which the individual is expected to head.
5. Have clear judicial record.
6. Have financial capacity and social credibility.
Article 7. Request for approval of honorary consul
1. A diplomatic note sent by the sending country to the Ministry of Foreign Affairs which dictates the appointment of a person as the honorary consul, expected head office location of honorary consulate and consular district, consular functions, and term of recognition of honorary consul.
2. Personal information sheet containing photo.
3. Copy of passport.
4. Judicial record issued by Vietnamese authorities in the last 12 months from the date of submitting the request.
Article 8. Termination of honorary consuls
1. An honorary consul shall be terminated when:
a) The term of recognition expires and the sending country does not notify the extension of honorary consul title of the individual.
b) The honorary consul is deceased, missing, detained, imprisoned, or incapacitated.
c) The honorary consul wishes to cease being an honorary consul and is approved by the sending country.
d) Have his/her exequatur revoked by the Ministry of Foreign Affairs. The revocation of an exequatur can be performed by the Ministry of Foreign Affairs at any time without reason.
dd) The sending country notifies the termination of the honorary consulate via a diplomatic note.
2. Other than the cases under Point a and Point d Clause 1 of this Article, the sending country shall officially notify the termination of honorary consulates and honorary consuls to the Ministry of Foreign Affairs. Then, the Ministry of Foreign Affairs shall issue decision on termination of honorary consulates and/or honorary consuls.
3. Cases of termination under this Article shall translate to termination of privilege and immunity applicable to honorary consulates and honorary consuls according to this Decree and relevant law provisions.
4. As soon as a decision on termination of an honorary consulate and/or an honorary consul is issued, the Ministry of Foreign Affairs shall inform Vietnamese authorities about the termination as specified under Clause 4 Article 5.
Honorary consul shall then remove sign of the head office, national flag and national emblem of the sending country at the head office of the honorary consulate and vehicle, and return the honorary consul identity card in accordance with Clause 6 Article 13 hereof.
Chapter III
OPERATIONAL GUIDELINES OF HONORARY CONSULS
Article 9. Consular district of honorary consul
1. A consular district of a foreign honorary consul in Vietnam shall be proposed by the sending country and require approval of the Ministry of Foreign Affairs which is granted after consulting Vietnamese authorities.
A consular district is identified as an area defined by the boundary of a province or central-affiliated city of Vietnam in which an honorary consul is allowed to exercise his/her consular functions.
After consulting Ministry of Public Security, Ministry of National Defense, and competent authorities, the Ministry of Foreign Affairs shall approve consular districts on the basis of international laws, consular relations, principle of reciprocity, and nature of the relations while ensuring diplomatic, national defense and security, social order and safety, economic, culture, and education requirements and inform the sending country. The consultation about consular districts shall be held simultaneously as the consultation about establishment of honorary consulate under Article 4 hereof.
Consular districts that potentially affect national defense or receive varying remarks from the authorities, the Ministry of Foreign Affairs shall report to the Prime Minister.
2. Consular district of an honorary consulate must not overlap the consular district of a professional consular mission of the same sending country.
3. If necessary, an honorary consul may exercise their consular functions beyond his/her consular district under the advance written consent and approval of the Ministry of Foreign Affairs.
4. The Ministry of Foreign Affairs shall consider the performance of consular functions outside of a consular district and/or the change of consular district of an honorary consulate upon being requested by the sending country in form of a diplomatic note. The decision to permit the performance of consular functions outside of consular district and the decision to change consular district must rely on diplomatic relations, economy, equality, and the need for performance of consular functions of the sending countries in the area, and conform to procedures under Clause 1 and Clause 2 of this Article and Article 4 hereof.
Article 10. Rights of honorary consuls
An honorary consul, while in the performance of his/her duty, has the right to:
1. Directly contact and work with Vietnamese local authorities within his/her consular district.
2. Work with Vietnamese central authorities via diplomatic mission of the sending country located in Vietnam (if any). If the sending country does not have diplomatic mission located in Vietnam, the honorary consul can work with Vietnamese central authorities via the Ministry of Foreign Affairs of the sending country.
3. Utilize means of communication such as mail, phone, telegraph, telex, or fax via Vietnamese post and telecommunication system.
4. Employ employees to serve consular affairs on the basis of relevant Vietnamese law provisions.
5. Raise flag and national emblem of the sending country at head office of honorary consulates and on vehicles of the honorary consul when these vehicles are utilized for official affairs and consular functions within his/her consular district.
6. Benefit from favorable conditions created by Vietnamese authorities in order to perform his/her function in a manner that conforms to Vietnamese regulations and law, international agreement to which Vietnam is a signatory or agreement with the sending country on a principle of reciprocity.
7. Receive visa to enter and reside in Vietnam if the honorary consul is a foreigner in a manner that conforms to regulations on entry, exit, and residence of foreigners in Vietnam.
8. Have his/her honorary consul identity card issued, re-issued, and extended.
9. Exercise other rights in accordance with Vietnamese laws.
Article 11. Obligations of honorary consuls
An honorary consul, while in the performance of his/her duty, has the obligation to:
1. Respect Vietnamese laws and customs.
2. Arrange head office of honorary consulates, facilities, and other instruments serving the performance of his/her consular functions and incur relevant costs.
3. Inform local foreign affair authorities 7 days prior to organizing reception activities.
4. Clearly distinguish head office of honorary consulates from his/her personal business locations.
5. Use head office of honorary consulates only for purposes conforming to the performance of his/her consular functions.
6. Secure information and data serving the performance of his/her consular functions and separate these information and data from his/her personal documents.
7. Submit annual reports on task results to the Ministry of Foreign Affairs for cooperation. Deadline: before January 15 of the following year.
Article 12. Term of recognition of honorary consuls
1. Term of recognition of an honorary consul shall depend on appointment of the sending country and consent of the Ministry of Foreign Affairs.
2. At the end of a term, depending on propositions of the sending country, an honorary consul can be re-appointed and approved by Vietnamese party. Procedures for approving a re-appointed honorary consul shall conform to Article 5, Article 6, and Article 7 hereof.
Article 13. Honorary consul identity card
1. Validity of an honorary consul identity card
The first honorary consul identity card shall last up to 3 years or until 30 days before visa expires.
An extended honorary consul identity card shall remain effective for up to 1 year for each extension.
2. Entitlement of relevant authorities in issuance, extension, and re-issuance of honorary consul identity card
a) Directorate of State Protocol and the Ministry of Foreign Affairs shall receive and resolve application for issuance, extension, and re-issuance for honorary consul identity cards of honorary consuls located in Hue and provinces and cities to the north of Hue.
b) Department of Foreign Affairs of Ho Chi Minh City affiliated to the Ministry of Foreign Affairs (hereinafter referred to as “Department of Foreign Affairs”) shall receive and resolve application for issuance, extension, and re-issuance for honorary consul identity cards of honorary consuls located in Da Nang City and provinces, cities to the south of Da Nang City, Quang Nam Province.
3. Procedures for issuance of honorary consul identity card
a) Upon receiving an exequatur issued by the Ministry of Foreign Affairs, an honorary consul shall contact the Directorate of State Protocol, the Ministry of Foreign Affairs, or the Department of Foreign Affair to adopt procedures for issuance of honorary consul identity card.
Application for issuance of honorary consul identity card consists of:
- Written application bearing photos according to form under Appendix attached hereto;
- 1 original copy of the diplomatic note of the Embassy or the Ministry of Foreign Affairs of the sending country (if the sending country has not established an Embassy in Vietnam) sent to the Directorate of State Protocol or the Department of Foreign Affair requesting the issuance of honorary consul identity card;
- 1 copy of the exequatur issued by the Ministry of Foreign Affairs of Vietnam;
- Copy and original copy of passport, ID Card, Citizen identity card (if the honorary consul holds Vietnamese nationality);
- 2 3cmx4cm portraits;
- Original copy of the identity card which needs to be re-issued or extended in case of damaged original copy or extension of honorary consul identity card.
b) Deadline for resolving the issuance of honorary consul identity card: 10 working days from the date on which adequate documents have been received.
4. Extension of honorary consul identity card
a) An honorary consul identity card shall be extended 60 days before the expiry date and remain effective for up to 1 year from the previous expiry date or until 30 days before visa expiry.
b) Procedures for extension shall conform to Point a Clause 3 of this Point.
c) Deadline for resolving the extension of honorary consul identity card: 10 working days from the date on which adequate documents have been received.
5. Re-issuance of honorary consul identity card
a) An honorary consul identity card shall be re-issued when the previous copy is missing or damaged beyond usable.
b) Procedures for re-issuance of an honorary consul identity card shall conform to Point a Clause 3 of this Article.
Application for re-issuance is specified under Point a Clause 3 of this Article. If an honorary consul applies for re-issuance of his/her honorary consul identity card after losing the previous identity card, he/she must produce a report on the missing of honorary consul identity card.
c) Deadline for resolving the issuance of honorary consul identity card: 10 days if the previous identity card is damaged and 30 days if the previous identity card is missing from the date on which adequate application is received.
6. In the case of a termination as specified under Article 8 hereof, an honorary consul is responsible for returning his/her honorary consul identity card to the Directorate of State Protocol/Department of Foreign Affairs unless his/her honorary consul identity card has expired.
Article 14. Organizational structure and head office of honorary consuls
1. Honorary consuls may hire employees to serve the performance of their consular functions; shall assume responsibilities and incur costs relating to employment in accordance with Vietnamese regulations and law.
These employees are not eligible for performing consular functions under the guise of honorary consuls and privilege, immunity of honorary consuls.
2. Honorary consuls must have head office in order to carry out their consular functions. Head office of an honorary consul shall be the head office of an honorary consulate.
An honorary consulate shall have only one head office. During the performance of his/her consular functions, an honorary consul must clearly define head office for consular functions of honorary consuls and personal business locations.
Article 15. Change of head office of honorary consuls
1. If head office of an honorary consul is expected to change, the sending country must inform the Ministry of Foreign Affairs about the change in form of a diplomatic note via the honorary consul.
2. On the basis of exchange with competent authorities, the Ministry of Foreign Affairs shall consider and inform the sending country about the change of head office.
Article 16. Privilege and immunity for honorary consuls
1. An honorary consul shall benefit from privilege and immunity in accordance with the Ordinance on privilege and immunity for diplomatic representative missions, consular missions, and representative missions of international organizations in Vietnam in 1993 and international agreements to which Vietnam and the sending country are signatories.
2. An honorary consul must not utilize diplomatic couriers, consular couriers, diplomatic bag, consular bag, or telegraph code to contact diplomatic representative missions or consular missions of the sending country or Government of the sending country unless otherwise permitted by the Government of the Socialist Republic of Vietnam.
3. An honorary consul has the right to inform his/her sending country upon being arrested, suspended, detained, or prosecuted; the right to withheld evidence relating to his/her consular functions and immunity for his/her official actions taken in the performance of consular functions.
4. Family members of an honorary consul are not eligible for privilege or immunity.
Article 17. Suspension of consular functions
1. If an honorary consul exits and remains absent from Vietnam for more than 30 consecutive days, he/she must inform the Ministry of Foreign Affairs about his/her absence and inability to perform consular functions. The honorary consul may authorize a person to receive necessary information sent from the Ministry of Foreign Affairs and Vietnamese competent authorities if necessary. The authorization shall not last longer than 90 days. The Ministry of Foreign Affairs has the right to reject the aforementioned authorization without reason.
A person authorized by an honorary consul is not allowed to perform consular functions or benefit from honorary consul privilege or immunity.
2. If an honorary consul is temporarily unable to perform consular functions, the sending country can inform and request the Ministry of Foreign Affairs via a diplomatic note to approve a temporary substitute for honorary consul. The sending country must then state the reason, duration of substitution, and personal background of the person temporarily replacing the honorary consul.
The Ministry of Foreign Affairs shall consider and approve the temporary substitute for honorary consul in writing within 10 days from the date on which the sending country sends the diplomatic note. The approval can be withdrawn at any moment without reason.
The temporary substitute for honorary consul is not allowed to carry out consular functions and is not eligible for privilege or immunity of honorary consul.
3. If, under any circumstances, the Ministry of Foreign Affairs is unable to contact the honorary consul by all means possible in order to request the performance of consular functions, the Ministry of Foreign Affairs shall request the sending country to appoint a substitute honorary consul. The approval of the newly appointed honorary consul shall conform to this Decree.
Chapter IV
ORGANIZATION FOR IMPLEMENTATION
Article 18. Commendations
Honorary consuls who have made numerous contributions to the development of bilateral relationship between Vietnam and the sending country shall be eligible for consideration in accordance with Vietnamese regulations and law.
Article 19. Responsibilities of the Ministry of Foreign Affairs
1. Take charge and cooperate with competent authorities in managing and cooperating with consulates and honorary consuls in Vietnam. To be specific:
a) Consular Department shall directly manage and cooperate with honorary consulates and honorary consuls in Hue City and provinces, cities to the north of Hue city.
b) Department of Foreign Affairs of Ho Chi Minh City shall directly manage and cooperate with honorary consulates and honorary consuls in Da Nang City and provinces, cities to the south of Da Nang City, Quang Nam Province.
2. Inform Vietnamese competent authorities about honorary consulates and honorary consuls of sending country in accordance with Article 5 hereof and in case of a termination in accordance with Article 8 hereof.
3. Inform honorary consulates or honorary consuls when citizens of the sending country are arrested, detained and awaiting trial, or suspended in any shape of form while inform the litigants about their rights.
4. Inform honorary consulates or honorary consuls when citizens of the sending country decease within their consular district or when guardians are required.
5. Inform honorary consulates or honorary consuls when watercrafts carrying nationality of the sending country are wrecked or stranded within territorial waters or internal waters of Vietnam or when aircrafts or other transport registered in the sending country are in emergency situations.
6. Decide whether to approve the establishment of honorary consulates in Vietnam.
7. Decide whether to approve honorary consuls and issue exequatur.
8. Decide to revoke exequatur.
9. Cooperate with the Ministry of Public Security and the Ministry of National Defense in a manner that conforms to this Decree and applicable law provisions.
10. Issue, extend, and re-issue honorary consul identity card.
11. Cooperate with local foreign affair authorities in managing and enabling honorary consuls to perform their consular functions in the most convenient way.
Article 20. Transition clauses
1. Honorary consuls approved before the effective date hereof shall continue until the end of their term of recognition.
2. Honorary consul identity cards that have not expired and have been issued before the effective date hereof shall be available for use until they expire.
3. Applications for issuance of honorary consuls which have been submitted before the effective date hereof and have not been resolved shall be processed in accordance with this Decree.
Article 21. Entry into force
1. This Decree comes into force from June 1, 2022.
2. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of People’s Committees of provinces and central-affiliated cities, relevant agencies, organizations and individuals are responsible for the implementation of this Decree.
3. The Ministry of Foreign Affairs, within their functions and tasks, are responsible for organizing implementation of this Decree./.
| ON BEHALF OF GOVERNMENT |