Decree 26/2022/ND-CP on foreign honorary consuls in Vietnam

DECREE

On foreign honorary consuls in Vietnam^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government; and the November 22, 2019 Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration;

Pursuant to the August 23, 1993 Ordinance on Privileges and Immunities for Diplomatic Missions, Consulates and Representative Offices of International Organizations in Vietnam;

At the proposal of the Minister of Foreign Affairs;

The Government promulgates the Decree on foreign honorary consuls in Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation, subjects of application

1. Scope of regulation

This Decree guides the provisions of Clause 2, Article 36 of the 1993 Ordinance on Privileges and Immunities for Diplomatic Missions, Consulates and Representative Offices of International Organizations in Vietnam regarding procedures for approval of foreign honorary consuls in Vietnam and operation regulations of foreign honorary consuls in Vietnam.

2. Subjects of application

a/ Consulates headed by foreign honorary consuls in Vietnam, and foreign honorary consuls in Vietnam.

b/ Competent state agencies, and organizations and individuals involved in the approval and operation of foreign honorary consuls in Vietnam.

Article 2. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Sending country means a country that authorizes a person to act as an honorary consul to perform one or several consular function(s) in Vietnam’s territory, who is approved by the Ministry of Foreign Affairs.

2. Foreign consulate in Vietnam headed by an honorary consul means a consulate headed by an honorary consul authorized by the sending country to be based in the territory of the Socialist Republic of Vietnam, below referred to as honorary consulate.

3. Foreign honorary consul in Vietnam means a person authorized by the sending country to perform one or several consular function(s) of that country in a certain consular area in Vietnam and approved in writing by the Ministry of Foreign Affairs, below referred to as honorary consul.

4. Honorary consul credentials means a document sent by the sending country to the Ministry of Foreign Affairs authorizing a person to perform the functions of an honorary consul for the State, legal persons and citizens of that sending country in a certain consular area.

5. Honorary consul acceptance letter means a document issued by the Ministry of Foreign Affairs approving a person who is authorized by the sending country to act as an honorary consul for such country in a certain consular area in Vietnam.

6. Honorary consul identity card means an identity document issued by the Ministry of Foreign Affairs acknowledging the identity of a person appointed as a foreign honorary consul in Vietnam.

Article 3. Principles of performance of consular functions

1. Honorary consulates and honorary consuls may only perform consular functions in certain consular areas in Vietnam after they have been issued an honorary consul acceptance letter by the Vietnamese Ministry of Foreign Affairs in accordance with international law and Vietnam’s law.

2. Honorary consuls may perform some or all of the consular functions provided for in the 1963 Vienna Convention on Consular Relations, as authorized by the sending country and approved by the Ministry of Foreign Affairs.

3. Honorary consuls shall perform consular functions to promote relations between the sending country and Vietnam, but not for profit or economic benefit.

4. Honorary consuls may concurrently perform consular functions authorized by the sending country and carry out profitable professional or commercial activities of their own in Vietnam in accordance with the provisions of treaties to which the sending country and Vietnam are contracting parties and with Vietnam’s law.

5. Honorary consulates and honorary consuls are not entitled to the privileges and immunities accorded to honorary consuls outside the scope of consular functions or when performing their personal business or commercial activities in the territory of Vietnam and may not use the honorary consul title for their personal professional and commercial activities or outside the scope of consular functions.

Chapter II

PROCEDURES FOR APPROVAL AND TERMINATION OF OPERATION OF HONORARY CONSULS

Article 4. Approval of the establishment of an honorary consulate

1. The sending country shall send a note directly to the Ministry of Foreign Affairs requesting approval for the establishment of a foreign honorary consulate in Vietnam. The note must clearly state the need for the establishment of an honorary consulate in Vietnam, the proposed consular area and the name of the honorary consulate.

2. Within 10 days after receiving the note, the Ministry of Foreign Affairs shall send a written request to seek opinions of the Ministry of Public Security, Ministry of National Defense and related agencies on the policy of allowing the establishment of a foreign honorary consulate in Vietnam. The consulted agencies shall send their opinions to the Ministry of Foreign Affairs within 15 days after receiving the latter’s request.

3. Within 30 days after receiving written opinions from the Ministry of Public Security, Ministry of National Defense and related agencies, the Ministry of Foreign Affairs shall decide to permit the establishment of an honorary consulate on the basis of the provisions of law, the extent of consular relations in the area; the nature of relations and assurance of security and national defense and social order and safety in accordance with international law and practices.

In case the related agencies hold divergent opinions on this issue or the establishment of an honorary consulate needs further consideration from the perspective of security and national defense, the Ministry of Foreign Affairs shall report the case to the Prime Minister for consideration and decision.

4. The Ministry of Foreign Affairs shall notify the sending country of the former’s decision on approval or disapproval of the establishment of the latter’s honorary consulate in Vietnam.

Article 5. Order and procedures for approval of honorary consuls

1. After obtaining the Ministry of Foreign Affairs’ approval on the establishment of an honorary consulate in Vietnam, the sending country shall send a note to the Ministry of Foreign Affairs requesting approval of the honorary consul nominee, enclosed with 1 set of dossier of such person as specified in Article 7, the intended location of the honorary consulate and the consular functions authorized by the sending country.

In case of necessity, the Ministry of Foreign Affairs may request the sending country to add other relevant information.

2. Within 10 working days after receiving the note and a complete and valid dossier, the Ministry of Foreign Affairs shall send a written request to seek opinions of the Ministry of Public Security, Ministry of National Defense and related agencies about the honorary consul approval in order to meet the requirements of foreign affairs, security and national defense, social order and safety, economy, culture and education. These agencies shall send their opinions to the Ministry of Foreign Affairs within 15 days after receiving the latter’s written request.

Within 30 days after receiving written opinions from the Ministry of Public Security, Ministry of National Defense and related agencies, the Ministry of Foreign Affairs shall decide whether to approve or disapprove the honorary consul nominee.

3. After approving the honorary consul nominee, the Ministry of Foreign Affairs shall notify it in writing to the sending country and request the sending country to submit a copy of the honorary consul credentials for the Ministry of Foreign Affairs to issue an honorary consular acceptance letter. The two sides shall discuss and agree on the time to receive the honorary consul credentials and award the honorary consul acceptance letter.

4. After receiving the honorary consul credentials and within 5 days after awarding the honorary consul acceptance letter, the Ministry of Foreign Affairs shall notify the competent Vietnamese agencies of information about the newly approved honorary consul of the sending country in Vietnam, including his/her personal information,  consular area, consular functions and term of office.

5. The sending country may send a note to the Ministry of Foreign Affairs to exchange opinions on the establishment of a foreign honorary consulate in Vietnam concurrently with a request for approval of the honorary consul nominee enclosed with his/her resume dossier. In this case, the enclosed dossier must comply with Clause 1, Article 4 and Clause 1, Article 5 of this Decree.

6. In case the sending country has been approved to establish an honorary consulate in Vietnam and appoints a new person to act as honorary consul, it is not required to exchange opinions with the Ministry of Foreign Affairs under Article 4 of this Decree.

Article 6. Criteria for honorary consul nominees

To be approved to act as an honorary consul, a nominee must meet the following conditions:

1. Bearing the nationality of the sending country or of Vietnam. In case he/she bears the nationality of a third country or dual or multiple nationalities, the consent of the Ministry of Foreign Affairs shall be obtained according to the procedures specified in Clause 2, Article 5. This consent on nationality may be withdrawn at any time without having to give a reason. In this case, the Ministry of Foreign Affairs shall send a note to the sending country.

2. Permanently residing in Vietnam or having resided or worked for at least 1 year in the consular area.

3. Not being a civil servant, public employee or employee who receives salary from the state budget of any country.

4. Having the working office or place of residence arranged in the consular area of ​​the consulate of which he/she is expected to act as the head.

5. Having a clear criminal record.

6. Having financial ability and prestige in society.

Article 7. Dossier of application for honorary consul approval

1. A note sent by the sending country to the Ministry of Foreign Affairs specifying the nomination of a person as an honorary consul, the intended location of the honorary consulate and the consular area, consular functions and the term of office of the honorary consul.

2. A resume attached with a photo.

3. A copy of the passport.

4. A criminal record certificate issued by a competent Vietnamese agency within 12 months up to the date of dossier submission.

Article 8. Termination of operation of honorary consuls

1. An honorary consul shall terminate his/her operation in the following cases:

a/ His/her term of office has expired and the sending country issues no notice of the extension of his/her honorary consul status.

b/ He/she dies, is missing, detained, or sentenced to prison, or has his/her civil act capacity restricted or lost his/her civil act capacity.

c/ He/she wishes to resign from working as an honorary consul and has obtained the consent of the sending country.

d/ His/her honorary consul acceptance letter is revoked by the Ministry of Foreign Affairs. Such revocation may be made by the Ministry of Foreign Affairs at any time without having to specify a reason.

dd/ The sending country sends a note to the honorary consulate notifying its termination of operation.

2. Except the cases mentioned at Points a and d, Clause 1 of this Article, the sending country shall officially notify the Ministry of Foreign Affairs of the termination of the operation of the honorary consulate and honorary consul. On that basis, the Minister of Foreign Affairs shall issue a decision to terminate the operation of the honorary consulate and/or honorary consul.

3. In case of termination of operation as prescribed in this Article, the privileges and immunities and the right to enjoy the privileges and immunities for the honorary consulate and honorary consul as prescribed in this Decree and relevant laws shall also be terminated.

4. Immediately after issuing a decision to terminate the operation of the honorary consulate and/or honorary consul, the Ministry of Foreign Affairs shall notify it to the competent agencies in Vietnam according to the procedures specified in Clause 4, Article 5.

The honorary consul concerned shall remove the office signboard, national flag and national emblem of the sending country at the working office of the honorary consulate and on his/her means of transport, and return his/her honorary consul identity card under Clause 6, Article 13 of this Decree.

Chapter III

REGULATION ON OPERATION OF HONORARY CONSULS

Article 9. Consular areas of honorary consuls

1. The consular area of ​​a foreign honorary consul in Vietnam shall be proposed by the sending country and approved by the Ministry of Foreign Affairs after consulting related competent agencies of Vietnam.

The consular area shall be determined by an administrative unit(s) being a province(s) and/or a centrally run city(ies) of Vietnam in which the honorary consul is allowed to perform his/her consular functions.

After consulting the Ministry of Public Security, Ministry of National Defense and competent agencies, the Ministry of Foreign Affairs shall decide to approve the consular area on the basis of the provisions of international law, the extent of consular relations in the area, the principle of reciprocity, the nature of relations, and satisfaction of the requirements of foreign affairs, security and national defense, social order and safety, economy, culture and education, and notify such to the sending country. The consultation on the consular area shall be carried out concurrently with the exchange of opinions on the establishment of the honorary consulate prescribed in Article 4 of this Decree.

For consular areas which are likely to affect security and national defense, or for consular areas on which the consulted agencies hold divergent opinions, the Ministry of Foreign Affairs shall report them to the Prime Minister for consideration and decision.

2. The consular area of ​​an honorary consulate must not overlap the consular area designated for a professional consulate in case the sending country has such a professional consulate in Vietnam.

3. In case of necessity, an honorary consul may perform his/her consular functions outside the consular area after obtaining in advance the written consent and approval of the Ministry of Foreign Affairs.

4. In case the sending country sends a note of proposal, the Ministry of Foreign Affairs may consider and decide to permit the performance of consular functions outside the consular area; and decide to change the consular area of ​​the honorary consulate. The decision to permit the performance of consular functions outside the consular area or the decision to change the consular area shall be made on the basis of the factors of foreign relations, economy, the principle of equivalency, and the sending country’s need to perform consular functions in that area and according to the procedures specified in Clauses 1 and 2 of this Article, and Article 4, of this Decree.

Article 10. Rights of honorary consuls

While performing consular functions, an honorary consul has the following rights:

1. To directly contact and work with local agencies of Vietnam in his/her consular area.

2. Through the sending country’s diplomatic mission in Vietnam (if any) to contact and work with the central agencies of Vietnam. In case there is no such diplomatic mission in Vietnam, to contact through the Ministry of Foreign Affairs of the sending country.

3. To use means of communication such as mail, telephone, telegram, telex and fax through Vietnam’s post and telecommunications system.

4. To recruit employees to perform consular affairs in accordance with relevant laws of Vietnam.

5. To display the national flag and national emblem of the sending country at the working office of the honorary consulate and on his/her means of transport, when these means are used for the official consular tasks in his/her consular area.

6. To be assisted by competent Vietnamese agencies to perform his/her functions in accordance with Vietnam’s law and treaties to which Vietnam is a contracting party, or as agreed with the sending country on the principle of reciprocity.

7. To be granted a visa to enter and reside in Vietnam in accordance with the law on entry, exit and residence of foreigners in Vietnam, for an honorary consul who is a foreigner.

8. To be issued and re-issued an honorary consul identity card and have it extended.

9. Other rights in accordance with Vietnam’s law.

Article 11. Obligations of honorary consuls

While performing consular functions, an honorary consul has the following obligations:

1. To respect the laws and customs of Vietnam.

2. To arrange the working office of the honorary consulate, physical foundations and other equipment to serve the performance of his/her honorary consul functions and bear all related expenses.

3. To notify the local foreign affairs agency at least 7 days before organizing reception activities.

4. To clearly separate the working office of the honorary consulate from the office serving his/her personal commercial business.

5. To refrain from using the working office of the honorary consulate for purposes inconsistent with the performance of his/her consular functions.

6. To keep confidential information and documents serving the performance of his/her consular functions and separate and avoid mixing these information and documents with documents serving his/her personal affairs.

7. Before January 15 of the year following the reporting year, to send information on the results of the tasks performed during the year to the Ministry of Foreign Affairs to serve work coordination.

Article 12. Term of office of honorary consuls

1. The term of office of an honorary consul shall be based on the mandate of the sending country and agreed by the Ministry of Foreign Affairs.

2. At the end of his/her term, at the request of the sending country, an honorary consul may be re-appointed by the sending country with the consent of the Vietnamese side. The order and procedures for approving a re-appointed honorary consul must comply with Articles 5, 6 and 7 of this Decree.

Article 13. Honorary consul identity cards

1. Validity period of honorary consul identity cards

The initial identity card of an honorary consul has a validity period of at most 3 years and expires 30 days before his/her passport expires.

An extended identity card of an honorary consul has a validity period of at most 1 year.

2. Competence of related agencies to issue, extend and re-issue honorary consul identity cards

a/ The Directorate of State Protocol of the Ministry of Foreign Affairs shall receive and process applications for issuance, extension and re-issuance of honorary consular identity cards for honorary consuls based in Hanoi and the provinces and cities from Hue city northward.

b/ The Ho Chi Minh City Department of External Relations under the Ministry of Foreign Affairs (below referred to as the Ho Chi Minh City Department of External Relations) shall receive and process applications for issuance, extension and re-issuance of honorary consul identity cards for honorary consuls based in Ho Chi Minh City, Da Nang city and the provinces and cities from Da Nang city and Quang Nam province southward.

3. Order and procedures for issuance of honorary consul identity cards

a/ After receiving the consul acceptance letter issued by the Ministry of Foreign Affairs, the honorary consul concerned shall directly contact the Directorate of State Protocol of the Ministry of Foreign Affairs or the Ho Chi Minh City Department of External Relations to carry out procedures for issuance of an honorary consul identity card.

A dossier for issuance of an honorary consul identity card must comprise:

- An application form for an honorary consul identity card attached with a photo, made according to the form provided in the Appendix to this Decree;

- 1 original note from the Embassy or Ministry of Foreign Affairs of the sending country (in case the sending country has no embassy in Vietnam) to the Directorate of State Protocol or the Ho Chi Minh City Department of External Relations requesting the issuance of an honorary consul identity card;

- 1 copy of the honorary consul acceptance letter issued by the Ministry of Foreign Affairs of Vietnam;

- A copy of the passport and the original for collation; or the citizen identity card or people’s identity card (if the honorary consul is a Vietnamese citizen);

- 2 portrait photos sized 3cm x 4cm;

- The original of the identity card to be re-issued or extended, in case of re-issuance due to damage or in case of extension.

b/ The time limit for processing an application for an honorary consul identity card is 10 working days from the date of receipt of a complete dossier as prescribed.

4. Extension of honorary consul identity cards

a/ An honorary consul identity card shall be extended 60 days before its expiration and has a validity period of at most 1 year counting from the date of expiration or 30 days before the honorary consul’s passport expires.

b/ The order and procedures for extension of an honorary consul identity card must comply with Point a, Clause 3 of this Article.

c/ The time limit for processing a request for extension of an honorary consul identity card is 10 working days from the date of receipt of a complete dossier as prescribed.

5. Re-issuance of honorary consul identity cards

a/ An honorary consul identity card may be re-issued when it is lost or unusably damaged.

b/ The order and procedures for re-issuance of an honorary consul identity card must comply with Point a, Clause 3 of this Article.

A dossier of request for re-issuance of an honorary consul identity card must comply with Point a, Clause 3 of this Article. Particularly for the case of re-issuance of an honorary consul identity card due to its loss, the requester shall submit a written report on the loss of the honorary consul identity card.

c/ The time limit for re-issuance of an honorary consul identity card is 10 days, for a damaged one, or 30 days, for a lost one, counting from the date of receipt of a complete dossier as prescribed.

6. In case of termination of operation under Article 8 of this Decree, the honorary consul concerned shall return his/her honorary consul identity card to the Directorate of State Protocol/Ho Chi Minh City Department of External Relations, unless it has expired.

Article 14. Operational apparatus and working office of honorary consuls

1. Honorary consuls may hire employees to perform their consular functions and shall take responsibility for and pay expenses related to hiring employees in accordance with Vietnam’s law.

These employees may not perform consular functions in the name of honorary consuls and are not entitled to the privileges and immunities of honorary consuls.

2. Honorary consuls must arrange a working office to perform their consular functions. The working office of an honorary consul is the working office of the honorary consulate.

Each honorary consulate has only one working office. While performing consular functions, the honorary consul shall clearly separate the working office for performing consular functions of the honorary consul and the office for doing his/her personal business and commercial activities.

Article 15. Change of working offices of honorary consuls

1. In case of intended change of the working office of an honorary consul, the sending country shall, through the honorary consul, send a note of such change to the Ministry of Foreign Affairs.

2. On the basis of exchanging opinions with competent agencies, the Ministry of Foreign Affairs shall consider and send a written notice of the change of the honorary consul’s working office to the sending country.

Article 16. Privileges and immunities for honorary consuls

1. Honorary consuls are entitled to the privileges and immunities as prescribed in the 1993 Ordinance on Privileges and Immunities for Diplomatic Missions, Consulates and Representative Offices of International Organizations in Vietnam and treaties to which Vietnam and the sending country are contracting parties.

2. Honorary consuls may not use diplomatic couriers, consular couriers, diplomatic bags, consular bags, and cryptographic codes to contact the diplomatic missions and consulates or the Governments of their respective sending countries, except in special cases after obtaining the permission of the Government of the Socialist Republic of Vietnam.

3. An honorary consul has the right to notify the sending country of the fact that he/she is arrested, held in custody, detained or prosecuted; the right not to give evidence in connection with his/her consular functions and the immunity from trial with regard to official actions in the performance of his/her consular functions.

4. Family members of honorary consuls are not entitled to any privileges and immunities.

Article 17. Suspension of consular functions

1. In case of leaving and being absent from Vietnam for more than 30 consecutive days, an honorary consul shall notify the Ministry of Foreign Affairs of his/her absence and impossibility to perform his/her functions. He/she may authorize another person to receive necessary information from the Ministry of Foreign Affairs and competent agencies of Vietnam in case of necessity. Such authorization duration must not exceed 90 days. The Ministry of Foreign Affairs reserves the right to notify the refusal of such authorization without having to give a reason.

A person authorized by an honorary consul may not perform consular functions and is not entitled to the latter’s privileges and immunities.

2. In case an honorary consul is unable to perform his/her functions within a certain period of time, the sending country may send a note to and request the Ministry of Foreign Affairs to approve the person proposed as temporary substitute for the honorary consul. At the same time, the sending country shall state the reason, the substitution period and the substitute’s curriculum vitae.

Within 10 days from the date of notification by the sending country, the Ministry of Foreign Affairs shall consider and approve in writing the person proposed as temporary substitute for the honorary consul. The Ministry of Foreign Affairs may withdraw its approval at any time without having to specify a reason.

The person as temporary substitute for the honorary consul may not perform consular functions and is not entitled to the latter’s privileges and immunities.

3. Under any circumstances if the Ministry of Foreign Affairs has taken measures but cannot contact an honorary consul to request the performance of consular functions, the Ministry of Foreign Affairs shall notify such to the sending country and request the sending country to appoint a substitute honorary consul. The approval of the new honorary consul must comply with the provisions of this Decree.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 18. Commendation and reward

Honorary consuls who have made great contributions to the development of friendly and cooperative relations between Vietnam and the sending countries are entitled to consideration and commendation and reward by the Vietnamese State in accordance with Vietnam’s law.

Article 19. Responsibilities of the Ministry of Foreign Affairs

1. To assume the prime responsibility for, and coordinate with competent agencies in, the management and coordination in work with foreign consulates and foreign honorary consuls in Vietnam, specifically as follows:

a/ The Consular Department shall directly manage and coordinate in work with foreign honorary consulates and honorary consuls in Hanoi and the provinces and cities from Hue city northward.

b/ The Ho Chi Minh City Department of External Relations shall directly manage and coordinate in work with foreign honorary consulates and honorary consuls in Ho Chi Minh City, Da Nang city and the provinces and cities from Da Nang city and Quang Nam province southward.

2. To notify competent agencies in Vietnam of information about honorary consulates and honorary consuls of the sending countries under Article 5 of this Decree and when honorary consuls terminate their operation under Article 8 of this Decree.

3. To notify honorary consulates or honorary consuls of information about citizens  of the sending countries in their respective consular areas who are arrested, detained pending trial or held in custody in any manner, and at the same time notify these citizens of the rights to which they are entitled.

4. To notify honorary consulates or honorary consuls of the death of citizens of the sending countries in their respective consular areas; or cases in which a guardian is needed.

5. To notify an honorary consulate or honorary consul of the fact that a ship bearing the nationality of its/his/her sending country is wrecked or aground in the territorial sea or internal waters of Vietnam or that an aircraft or other means of transport registered in the sending country is in distress in Vietnam’s territory.

6. To decide to approve the establishment of foreign honorary consulates in Vietnam.

7. To decide to approve honorary consuls and issue honorary consul acceptance letters.

8. To decide to revoke honorary consul acceptance letters.

9. To coordinate with the Ministry of Public Security and Ministry of National Defense in accordance with this Decree and current laws.

10. To issue, extend and re-issue honorary consul identity cards for honorary consuls.

11. To coordinate with local foreign affairs agencies in managing foreign honorary consuls and creating favorable conditions for them to perform their consular functions.

Article 20. Transitional provisions

1. Honorary consuls who have been approved before the effective date of this Decree may continue to operate until the end of their term of office.

2. Honorary consul identity cards remaining valid which are issued before the effective date of this Decree may continue to be used until their date of expiration.

3. For dossiers of application for honorary consul identity cards submitted before the effective date of this Decree but not yet processed, the provisions of this Decree shall apply.

Article 21. Effect

1. This Decree takes effect on June 1, 2022.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and related agencies, organizations and individuals shall implement this Decree.

3. The Ministry of Foreign Affairs shall, within the ambit of its functions and tasks, organize the implementation of this Decree.-

On behalf of the Government
For the Prime Minister
Deputy Prime Minister
PHAM BINH MINH