addu llb pil second exam coverage

7/25/2019 ADDU LLB PIL Second Exam Coverage

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PUBLIC INTERNATIONAL LAW [2-MANRESA] S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the b ook of Isagani Cruz, 2003 Ed. ADDU LAW

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NorieSushi

PUBLIC INTERNATIONAL LAW

D O RODOLFO M ELMAN

Second Exam Coverage

RGHT OF INDEPENDENCE up to CONSULS

~

RIGHT OF INDEPENDENCE~

SOVEREIGNTYsupreme power of state to commandand enforce obedience; enables state to control its ownforeign affairs vis--vis other states.

The reason of the existence of state is inherent; therecognition of this right is not dependent upon otherstates recognition of the status of the first state. In factin UN Charter, the concept of sovereignty is expresslyembodied in Article 2(4).

Two aspects of sovereignty:1. Internalrefers to power of the state to direct its

domestic affairs2. External freedom of the state its own foreign

affairs. It is referred to as independence.

Right of independence recognized in article 2(4) ofcharter.

Article 2The Organization and its Members, in pursuit ofthe Purposes stated in Article 1, shall act inaccordance with the following Principles:xxx4. All Members shall refrain in their internationalrelations from the threat or use of force againstthe territorial integrity or political independenceof any state, or in any other manner inconsistentwith the Purposes of the United Nations.xxx

Nature of independence: not absolute freedom;freedom from control by other states but not freedomfrom restrictions.

Illustrations of restrictions upon the state:

1.

Article 2(4) even non-member states shouldobserve this2. Pacta sunt servanda state may not refuse to

observe treaties in good faith;3. Principle of mare liberum

o aka the free sea or the freedom of theseas

o State cannot arrogate unto itself theexclusive use of the open seas to thedetriment of other states

4. Acquiescence in exercise of belligerent rights under laws of neutrality, state must acquiesce inthe exercise of certain belligerent rights even ifthis might impair its own interests or those of itsnationals.

5. Maintenance of international standard of justice

e.g. recent news: Indonesia will executeforeigners including a Filipino, related to drugsthis causes an international uproar

6. Observance of fundamental human rights7. Restriction of its territorial jurisdiction

Sovereignty is a well cherished concept of IL. However,even the concept of sovereignty recognizes the fact thatbecause of advances made at present, modern ILrecognizes thatNo man is an island. No stateisolation. State cannot exist alone.

Trade with other states which is the core of internationa

relations in times of peace is essential for the statessurvival.

Maintenance of peace and security [(Article 2(3)] is thehighest value for all states to subscribe. This is far morecompelling than vital state interests. Thus, UN Chartermakes Article 2(4) the most important norm to attaingoal.

Article 2. xxx3. All Members shall settle their international disputesby peaceful means in such a manner thainternational peace and security, and justice, are no

endangered.xxx

Kosovos unilateral declaration of independence fromSerbia in February 2008, did not violate international lawsince international law contains no prohibition ondeclarations of independence. But ICJ was careful not torule on the legal status of Kosovo as a state to avoidencouraging nationalist movements and left the issue ofa territorys independence at discretion of states thatchose to recognize it (ICJ Advisory Opinion issued on July21, 2010 upon request of the General Assembly)

This issue is better left to the members of theinternational community (states), members individuallyon their own, whether they choose to recognize the statusof Kosovo as a state. This is really more of a politicadecision that has to be made by the authorized organ ofany state whether to grant such legal status of a state toKosovo.


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NorieSushiINTERVENTIONRight of independence carries with it the correlative dutyof non-intervention. State must respect sovereignty of theother states.

This is embodied in Article 2 of the UN Charter, under the

Domestic Jurisdictionclause. (sir refers to Article 2(7))

Interventionact of state in interfering with domesticor foreign affairs of another state thru use of threat offorce; may be economic or political (but there must bepressure)

Intervention is not allowed in PIL except:1. as an act of self-defense as provided under Article

51 of UN Charter2. when the Security Council decrees enforcement

or preventive action.3. Other instances according to some writers:

a.

when so requested by parties;b. such action is agreed upon in a treaty

(ex. Article 5 of NATO agreement)c. when requested from sister statesd. when requested from the United Nations

by the parties to a dispute or by a statebeset by rebellion

Article 2, Sec 7: Nothing contained in the presentCharter shall authorize the United Nations tointervene in matters which are essentially withinthe domestic jurisdiction of any state or shallrequire the Members to submit such matters to

settlement under the present Charter, but thisprinciple shall not prejudice the application ofenforcement measures under Chapter VII.

Drago Doctrine (now embodied in HagueConvention) contracting powers agree not to haverecourse to armed force for recovery of contract debtsclaimed from the government of one state by anotherstate as being due to its nationals. Drago is consistentunder the UN Charter, to refrain from use of force.

Porter resolutionintervention is permitted if:

1.

debtor state refused an offer to arbitrate creditorsclaim; or2. having agreed to arbitrate, prevented agreement on

thecompromis; or3. having agreed thereto, refused to abide by the award

of the arbitrator

* Porter resolution contravenes IL, because IL abhors theuse of force

Note: There is a need for re-examination of law onintervention, especially where intervention is based onhumanitarian grounds. Ex. Somalia, Kosovo

Can the US use force to protect civilian populations fromgenocide in Somalia, as an exception to the prohibition

against use of force?

In 1990, the NATO authorized military intervention toprotect Albanian civilians in Kosovo without UN SecurityCouncil authorization. Would this be legal in internationalaw? It is contentious and unresolved.

~

RIGHT OF EQUALITY~

Recognized in Article 2(1) of Charter:

Article 2(1) The Organization is based on theprinciple of the sovereign equality of all itsMembers.

Essence of Equality: not equality in number of rights orparity in physical power, political influence or economicstatus or prestige, but all rights of a state, regardless ofnumber, must be observed and respected by internationacommunity; right to enjoyment of all its attributes as amember of family of nations.

Ex. Right to acquire territory, or make use of open sea, o

seize contraband

Rule of par in parem non habet imperium[equals do nothave authority over one another]: even the strongeststate cannot assume jurisdiction over another state, nomatter how weak, or question the validity of its acts solong as they are made to take effect within its territory.

Ex. China. Even PH can assert its right under UNCLOS vsChina

Legal Equality vs. Factual inequality: absolute

equality among states is impossible. Inequality can evenbe seen in UN.

Ex. Security Council membership (permanent membersmembership with a term) and voting (non-proceduraquestions need concurrence of the Big 5)

So many member states in UN, but each state is entitledonly of 1 vote. China (1.8B pop.) = 1 vote vs. Gabon(1.1M pop.) = 1 vote


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NorieSushiThe surviving Filipina comfort women cannot sue Japanfor damages in our courts. A foreign State may not besued before Philippine courts as a consequence of theprinciples of independence and equality of states(Republic of Indonesia vs. Vinzon, 405 SCRA 126) (2003).

Exception: if the foreign state allows the individual tosue in his courts

~

TERRITORY~

Right to acquire properties is inferred from war powers ofCongress & treaty making power of President,conformably with Section 2, Article II. But such rightshould always be consistent with the Principles ofInternational Law.

Assertion of the right to acquire territory. War may bewaged not for the purpose of acquisition of territory perse, but always consistent with principles of internationallaw.

Territoryis the fixed portion of the surface of the earthinhabited by the people of the state.

Modes of acquiring territory:1. discovery and occupation original mode of

acquisition by which a territory not belonging to anystate or terra nulliusis placed under the sovereignty

of the discovering state. The territory need not beuninhabited provided it can be established that thenatives are not sufficiently civilized and can beconsidered as possessing not rights of sovereigntybut only rights of habitation.

2. Prescriptionrequired long, continued and adversepossession to vest acquisitive title in the claimant. Norule yet in IL fixing the period of possesssion

3. Cessionterritory is transferred from one state toanother by agreement between them (sale, barter orexchange, donation and testemantary disposition);transfer of title is effected upon the meeting of the

minds, actual delivery not necessary4. Subjugationhaving been previously conquered oroccupied in the course of war by the enemy, it isformally annexed to it at the end of the war. Conquestinchoate right on the occupying state; formal act ofannexation completes the acquisition

5. Accretionbased on the principle of accessio cedatprincipali; may be both natural or artificial

Discovery And Occupation

Terra nulliusland belonging to no one; this is onlyproperty subject of acquisition of a stateRes communes- things owned by no one and subjectto use by all; it is not susceptible to discovery and

occupation (e.g. open seas, outer space).

Requisites of a valid discovery and occupation:

1. Possession may be effected through a formaproclamation and the symbolic act of raising thenational flag in the territory. Mere possession only gives inchoate title of

discovery; this means that the discovering statehas the right of exclusion of any other state toappropriate or commence administration within areasonable time.

Inchoate title of discovery performs the function

of barring other states from entering the territoryuntil the lapse of a reasonable period withinwhich the discovering state may establish asettlement thereon and commence to administerit.

2. Administration

Las Palmas case: Principle of ContinuousAdministration.* Netherlands had exercised sovereignty since 1677While Spain discovered island earlier, it never occupied it* Inchoate title could not prevail over continuous &

peaceful administration by another state* another basis for awarding to Netherlands is long,continuous, adverse possession without anyquestion of restriction

ICJ Ruling in February 2003 on ownership of Sipadan andLigitan Islands off Sabah in favor of Malaysia. Malaysiahad administrative control over the islands long beforeIndonesia did under the principle of continuousadministration.

EXCEPTION to the prevailing rule of Las Palmas Case

(need for administration of discovered property):

Clipperton Island Case possession sansadministration of UNINHABITED island. Franceacquired title.

Basis of Philippine claim to Spratlys or the Kalayaan islandis effective OCCUPATION of a territory not subjectto sovereignty of another state. Following Japansrenunciation of right to Spratlys under 1951 San


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NorieSushiFrancisco Peace Treaty, it became terra nulliusand wasoccupied by the Philippines in the title of sovereignty in avisit of Tomas Cloma in 1956. In 1978, Philippinesconfirmed its title through PD1596 which declaredKalayaan part of its territory and a municipality ofPalawan. (00 BQ)

Philippines claim to Sabah is based on an 1878 contractbetween the Sultan of Sulu and Austrian Consul Gen.Baron Overbeck/British Alfred Dent. Philippines has notrenounced its claim over Sabah.

~ Malaysia claims mode of cession while Philippinesasserts it was contract of lease~ no basis under international law to assert Philippineclaim to Sabah by including it in 1987 Constitution (amunicipal law). From the viewpoint of international lawhowever, this claim is not binding.

Modes of losing territory:1. abandonment or dereliction when a state

exercising sovereignty over it physicallywithdraws from it with the intention ofabandoning it altogether. Two conditions mustconcur:

a. act of withdrawalb. intention to abandon

2. cession3. subjugation4. prescription5. erosion6. revolution

7.

natural causes (e.g. volcanic eruption)

Components of Territory:

Basic/Main components:1. TERRESTRIAL DOMAIN2. MARITIME AND FLUVIAL DOMAIN3. AERIAL DOMAIN

(A)TERRESTRIAL DOMAIN:1. Integrate (Iran)2. Dismembered (US)

3.

Partly bounded by water (Burma)4. Island (Iceland)5. Several islands/mid-ocean archipelago (PH and

Indonesia)6. Coastal archipelago (Greece)

(B)MARITIME AND FLUVIAL DOMAIN1. Bodies of water within the land mass (internal

waters in the land-locked lakes, rivers and man-made canals within the land mass)

2. Waters adjacent to the coasts of the state up toa specified limit (bays, gulfs, straits, externawaters in the territorial sea

Rivers may be classified into:a. Nationalsituated completely in the territory of

one stateb. Multi-national flows through the territories oseveral states

c. International one that is navigable from theopen sea and is open to the use of vessels fromall states

d. BoundaryThalweg doctrine

Thalweg doctrine (in the absence of a specificagreement between such states), the boundary line is laidon the river that is, on the center, not of the river itself,but of its main channel.

Bayit is a well-marked indentation whose penetrationis in such proportion to the width of its mouth as tocontain land-locked waters and constitute more than amere curvature of the coast. An indentation shall nothowever, be regarded as a bay unless its area is as largeas or larger than that of a semi-circle whose diameter isa line drawn across the mouth of that indentation. (Takenote of so-called historic bays; waters have alwaysbeen considered internal by the international community)

Territorial sea the belt of waters adjacent to thecoasts of the state excluding the internal waters in baysand gulfs, over which the state claims sovereignty and

jurisdiction

Philippines claim to its territorial sea is based on historicright or legal title, or the TREATY LIMITS THEORYPhilippine territorial sea should embrace all non-internawaters comprised within limits set in Treaty of Paris overwhich Philippines and predecessors have exercisedsovereign rights for more than 3 centuries withoutobjection.

PH prior position was that IL should recognize historictitle to territorial waters as it recognizes the so

called historic bays.

UN Conference on the Law of the Sea(UNCLOS effective 11/16/1994)

It is the fundamental law on maritime borders amongnations, freedom of high seas, shipping, fishingexploitation of resources of seabed and principles forprotection of marine environment.


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NorieSushiThis UNCLOS provides for uniform breadth of 12 miles(from the low-water mark of the coast) for territorial sea,a contiguous zone of 12 miles from outer limits ofterritorial sea (Protective Jurisdiction) and an economiczone or patrimonial sea extending 200 miles from the lowwater mark of the coastal state (BQ)

* It may be possible that there is overlapping withdifferent states.

History:Three international conferences were called to formulatelaw of the sea:

1. First conference in 1958 held in Geneva, Switzerlandadoption of the:

a. Convention on the Territorial Sea and theContiguous Zone

b. the Convention on the High Seas

c.

the Convention on Fishing and the LivingResources of the High Seas

d. Convention on the Continental Shelf

Weaknesses: It failed to define the breadth of the territorial

sea The Conventions adopted were ratified by

only 40 states PH did not ratify because of the absence of

provisions recognizing the archipelagodoctrine it was advocating

2.

Second Conference held in 1960 in Genevaquestionof the breadth of the territorial sea still unresolved

3. Third Conference in 1970 resulted finally in theadoption of a new Convention on the Law of the Sea,which was signed in Jamaica in 1982 by 119/150conferee states. This convention became effective on11/16/1994, after its ratification by more than therequired 60 of the signatory states. This providesamong others:

Protective Jurisdiction (Contiguous Zone)

-

Prevent infringement of its customs, fiscal,immigration and sanitary regulations and punishinfringement of said regulations

Archipelago Doctrine- Defines the internal watersof the Philippines

as articulated in second sentence of Art. 1,Section 1 of the Constitution:

Article 1. xxx. The waters [a]round, [b]etween,and [c]onnecting the islands of thearchipelago, regardless of their [b]readth and[d]imensions, form part of the internal watersof the Philippines. (abc-bd)

National Territory of the Philippines(Article 1, Section 1 of the 1987 Constitution)

Article 1. The national territory comprises thePhilippine archipelago, with all the islands and watersembraced therein, and all other territories over whichthe Philippines has sovereignty or jurisdiction,consisting of its terrestrial, fluvial and aerial domainsincluding its territorial sea, the seabed, the subsoil,the insular shelves, and other submarine areas. Thewaters [a]round, [b]etween, and [c]onnectingthe islands of the archipelago, regardless oftheir [b]readth and [d]imensions, form part o

the internal waters of the Philippines. (abc-bd)

PH position is that, all these 7100+ islands of varying sizesshould be considered as one integrated wholeinstead of being fragmented into separate units each withits own territorial sea. Otherwise, the waters outsideeach of these territorial seas (of every island) will beregarded as high seas and thus be open to all foreignvessels to the prejudice of our economy and the nationasecurity.

Archipelago a group of islands, including parts ofislands, interconnecting waters and other natural features

which are so closely interrelated that such islands, watersand other natural features form an intrinsic geographicaleconomic and political entity, or which historically havebeen regarded as such.

In defining the internal waters of thearchipelago, straight baselines should bedrawn to connect appropriate points ofthe outermost islands, without departingradically from the general direction of thecoast so that the entire archipelago shall beencompassed as one whole territory. The

waters inside these baselines shall beconsidered internal and thus not subject toentry by foreign vessels without the consentof the local state.

The ARCHIPELAGO DOCTRINE is embodied in the1982 Convention on the Law of the Sea, with modificationthat archipelagic sea lanes shall be designated over theinternal waters through which foreign vessels shall havethe right of passage.


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NorieSushiArchipelagic sea lanes passage means theexercise in accordance with this Convention ofthe rights of navigation and overflight in thenormal mode solely for the purpose ofcontinuous, expeditious and unobstructedtransitbetween one part of the high seas or an

exclusive economic zone and another part of thehigh seas or an exclusive economic zone. UNCLOS,1982

Methods of Defining the Territorial Sea:

1. Normal baseline method The territorial sea is simply drawn from the

low-water mark of the coast, to the breadthclaimed, following its sinuosities andcurvatures but excluding the internal watersin bays and gulfs.

2. Straight baseline method

Straight lines are made to connectappropriate points on the coast withoutdeparting radically from its general direction.

(C)AERIAL DOMAINIt is the airspace above the terrestrial domain and themaritime and fluvial domain of the state, to an unlimitedaltitude but not including outer space.

~

JURISDICTION~

Under the RoC, jurisdiction is the power or authority of acourt to accept a case, to make decisions and judgments.

In the same manner in IL, jurisdiction refers to the powerpossessed and exercised by the state over persons andthings within or sometimes outside its territory, subject tocertain exceptions.

Jurisdiction may be exercised by a state over:a.) Its nationalsb.) The terrestrial domainc.) The maritime and fluvial domaind.)

The continental shelfe.) The open seasf.) The aerial domaing.) Outer space; andh.) Other territories

States assert authority/power over PERSONS andTHINGS.

Classifications:

1. Personal JurisdictionIt is the power exercised by a state over its nationals.Ex:

a. Article 15 and 16 of CC

-

PH exercises jurisdiction over its nationals evenoutside territory

Art. 15. Laws relating to family rights and duties, orto the status, condition and legal capacity of personsare binding upon citizens of the Philippines, eventhough living abroad. (9a)

Art. 16. Real property as well as personal property issubject to the law of the country where it is situated

However, intestate and testamentary successions,both with respect to the order of succession and to

the amount of successional rights and to the intrinsicvalidity of testamentary provisions, shall be regulatedby the national law of the person whose succession isunder consideration, whatever may be the nature othe property and regardless of the country whereinsaid property may be found. (10a)

b. TaxationPH citizens are taxed even if notresiding in PH from income derived by themfrom all sources

Basis of personal jurisdiction: duty of protectionby astate of its national wherever he may be (stated in

Constitution). The national has right to compel thegovernment to protect him. He is therefore bound to it bya duty of obedience and allegiance.

DOCTRINE OF INDELIBLE ALLEGIANCEA national may not be permitted to renounce his ownnationality. Simply because of the duties of allegiance inreturn of the protection given by the state to its national

Jurisprudence Applying the Doctrine:

Joyce v. Director of Public Prosecution

Lord Haw Haw, a British subject, because he wascarrying a British passport, in fact he resided in Britain for18 long years. He went to Germany during the WWII, andwhile in Germany, he was part of the anti-Alliedpropaganda. So he was tried for treason, and wasconvicted. Even assuming that he was not a Britishnational, but because he was carrying a British passportand he resided for so long in Britain, and representedhimself as a British subject, then he should not be allowedto renounce his nationality.


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NorieSushiHarry Blackmer v. USAA US citizen who is long-time resident of Paris, France.This US national was the subject of subpoena. The UScourt summoned him to testify in several cases in the UScourt, but he refused and so he was cited in contempt ofcourt by the SC of Columbia and the properties he had in

the US became subject of garnishment because of hisrefusal to testify for the US. The Court decided that he isthe resident of France, but then this doctrine applied.

~ Chief Justice Hughes, in delivering the opinion of theCourt, stated "nor can it be doubted that the United Statespossesses the power inherent in sovereignty to requirethe return to this country of a citizen, resident elsewhere,whenever the public interest requires it, and to penalizehim in case of refusal." Also, "it is also beyond controversythat one of the duties which the citizen owes to hisgovernment is to support the administration of justice byattending its courts and giving his testimony whenever he

is properly summoned." ~ Wikipedia

Kawakita vs. USApplying the doctrine of indelible allegiance, a personpossessing both US and Japanese nationalities wasconvicted of treason for committing brutalities onAmerican prisoners in a Japanese camp.

~ In his defense, Kawakita claimed that he had renouncedhis U.S. citizenship during his time in Japan, and thuscould not be tried for treason. However, his argumentswere undermined by his 1945 U.S. passport application,

in which he swore he had never renounced his U.S.citizenship. Kawakita argued that a person with dualnationality can only be guilty of treason to the country inwhich he resides, not another which claims him as anational. The prosecution pointed out that the U.S.Constitution places no territorial limitations on treason.And it pointed out that U.S. citizenship cannot be cast offor on so easily. Decision: Kawakita owed allegiance to theUnited States, being its national during his residence inJapan. His U.S. citizenship was revoked. ~ Wikipedia

News:Kenji Goto was a Japanese freelance video journalist who

was captured and held hostage by the ISIL militants afterentering Syria. He was killed by the ISIL.

Osama Bin LadenThe American forces were looking forBin Ladden, and was able to apprehend an American whofought side by side with the al-Qaeda Taliban forces, withthe name John Walker Lindh. John Walker claimed thathe already denounced his nationality because he wasalready fighting with the al-Qaeda. US Court ruled that hecommitted several crimes.

Protective Principle of Criminal JurisdictionundeArticle 2, RPC. An alien may be held under criminal lawsof a state whose national interest he has violated anddespite that the offense was committed outside itsterritory.

Art. 2. Application of its provisions. Excepas provided in the treaties and laws opreferential application, the provisions of thisCode shall be enforced not only within thePhilippine Archipelago, including its atmosphere,its interior waters and maritime zone, but alsooutside of its jurisdiction, against those who:

1. Should commit an offense while on a Philippineship or airship2. Should forge or counterfeit any coin orcurrency note of the Philippine Islands orobligations and securities issued by the

Government of the Philippine Islands;3. Should be liable for acts connected with theintroduction into these islands of the obligationsand securities mentioned in the presidingnumber;4. While being public officers or employees,should commit an offense in the exercise of theirfunctions; or5. Should commit any of the crimes againstnational security and the law of nations, definedin Title One of Book Two of this Code.

Addenda (not discussed, but may be asked in the exam):

Nationality PrincipleStates have jurisdiction over their nationals over crimesspecified in their national law. Example: the Suppressionof Terrorist Bombing Act of Sri Lanka gives the High Courthe jurisdiction to try a Sri Lankan national who blasts abomb in a foreign countryeven if his only connection toSL is the fact that he is a Sri Lankan.

Passive Personality PrincipleIn this situation, the crime was committed abroad and theperson who committed the offense was not a national ofthat State. In this situation, only the victim is a nationa

of the State which claims jurisdiction. In the Yunis caseUS courts decided that they had jurisdiction over Yunis (aLebanese national) based on the passive personalityprinciple because two US nationals were abroad theJordanian airline that Yunis hijacked.

Protective PrincipleIn this situation, the crime was committed abroad andneither the person who committed the crime, nor thevictims, were nationals of that State. In this case,


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NorieSushijurisdiction is asserted on the basis that the security orthe interests of the State is affected by an act committedabroad. Example: Art. 2, RPC

(Source: https://ruwanthikagunaratne.wordpress.com/tag/principle-of-nationality/)

TERRITORIAL JURISDICTION DOCTRINEGeneral Rule: State has authority/power/jurisdiction

over all persons & property within its territory. Since thestate has such authority, on the basis of SOVEREIGNTYof the state, it follows that processes of other states maynot be made effective without the consent/authority ofthe local state. Applies even to aliens located in theterritory.

The jurisdiction of the nation within its own territory isnecessary, exclusiveand absolute. It is susceptible ofno limitation not imposed by itself. (Schooner Exchangev. McFaddon)

Exceptions:(1)

Foreign states, heads of states, diplomaticrepresentatives, and consuls to a certain degree.

This is because of the sovereign equalityof statesand on the theory that a contraryrule would disturb the peace of nations

In the same manner that diplomats andmembers of the diplomatic service to acertain extent are not subject to jurisdictionof the local state, because, these diplomatsare said to be extensions of foreign states. Infact, there are existing conventions asapplicable to diplomats (Vienna Convention

on Diplomatic Relations). The diplomats are exempted in order that

they may have full freedom in the dischargeof their official functions.

(2) Foreign state property, including embassies,consulates and public vessels engaged in non-commercial activities

Said to be extensions of the territory of otherforeign state. Whenever we have warships ofother state arriving in our local port, while inthe territory of PH, not covered except if avessel engages in international industrial

services, this is not covered.

(3)Acts of State

This is related to many other principles ofinternational law

On the basis of sovereign immunity; based onthe concept equality of states

In relation to domestic jurisdiction conceptcourt cannot judge on acts performed in theterritory of other state

A political action not subject to judiciadetermination

Cruz book: as explained in Underhill v. HernandezEvery sovereign state is bound to respect theindependence of every other sovereign state, and the

courts of one country will not sit in judgment on the actsof the government of another, done within its ownterritory.

(4) Foreign merchant vessels under rights of innocentpassage or arrival under stress Innocent Passage navigation through

territorial sea of a state, without enteringits internal waters, as long as it is notprejudicial (does not cause disturbance) tothe peace or security of the coastal state.

oCruz book: can be proceeding tointernal waters, or making or the

high seas from internal waters, aslong as it is not prejudicial to thepeace, good order or security of thecoastal state. (n/a in T/F question)

Arrival under stress or involuntary entrancemay be due to inclement weather, vesseunseaworthiness, lack of provisions, or forcemajeure. (also: pursuit by pirates, majorepairs needed)

(5) Foreign armies passing thru or stationed in itsterritory with its permission (or in the basis of anagreement)

Ex: VFA of 1999 (stay is of temporary nature) Defense Mutual Agreement

(6) Persons/organizations, like UN, over which it may, byagreement, waive jurisdiction There is a waiver of jurisdiction on the part

of the local state (e.g. WHO, IMF, WorldBank, officials of these organizations arecovered)

Examples: Convention on Privileges andImmunities of the United Nations, Conventionon the Privileges and Immunities o

Specialized Agencies, RP-US Bases Treatywhich modified the customary exemptionsunder (5).

Everything in the states terrestrial domain is under itsjurisdiction. No process from a foreign government cantake effect for or against nationals and aliens within theterritory of local state without its permission.


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NorieSushiComment: Of course there may be agreement such asextradition, the process of surrendering/deporting aforeign fugitive. But in the absence of such agreement,no process of a foreign state ought to take effect for oragainst its nationals or aliens. So even if a writ is issuedby a foreign government, normally for its national who is

hiding in the PH territory (prosecution of offenses in hisown state), RULE: even if he is a fugitive from justice fromhis own state, in the absence of any agreement, noprocess or writ issued by any of theinstrumentalities/courts by the other states may be madeeffective or enforced without the consent of the localstate. CONCEPT OF SOVEREIGNTY itself is at stake.

What is the jurisdiction of a state over foreign vesselswithin its territorial vessels?

RULE:No civil, administrative or criminal jurisdiction overforeign vessels, unless engaged in commerce (e.g. war

ship of another state). Local state cannot acquirejurisdiction over that foreign warship unless this isengaged in merchant activities

What about foreign private commercial vessels? Weapply the English rule.

For foreign merchant vessels docked in a local port or bay,jurisdiction is exercised over them by the coastal state incivil matters, but criminal jurisdiction is determinedaccording to either the English ruleor the French rule.

English rulecoastal state shall have jurisdiction over

all offenses committed on board such vessels, exceptonlywhen they do not compromise the peace of the port.

French ruleflag state shall have the jurisdiction overall offenses committed on board such vessels, except onlywhere they compromise the peace of the port.

*no difference actually

U.S. v. Look Chaw (1910)Mere possession of opium aboard foreign merchant vesselin our waters is not a breach of our public order.

So, coastal state need not exert jurisdiction but in thesucceeding case:

Pp vs. Wong Cheng (1922)Smoking of the drug produces pernicious effects and ispunishable

Note: Despite Look Chaw ruling, criminal jurisdiction maystill be exercised by PH courts because the 1958 Geneva

Convention on Territorial Sea and Contiguous Zoneimposing states the duty to suppress all forms of drugtrafficking.

Applying this convention, coastal state has the right totake cognizance of any offense onboard foreign vessel

E.g. mere possession of drugs

THE PATRIMONIAL SEAPatrimonial Sea or the Exclusive Economic ZoneinUNCLOS is now incorporated in PD 1599. All living andnon-living resources found within 200 nautical miles fromthe coast or baselines belong exclusively to the coastastate. (00 BQ) thats why we exert at all timeswhenever there are infringements.

The above BQ related to the conflict that we had withChina

The EEZ is the basis of Philippine claim over ScarboroughShoal (213 kms off Zambales); apprehension of Chinesepoachers

Now, it is also possible that a state may assert jurisdictionof the open sea. I mentioned to you, that the open sea,it is within the concept of res communes. Meaning, itcannot be subject of appropriation. But it can be exploredsubject of exploration.

Instances which state may exercise jurisdiction on theopen seas (res communes):

a) over its vessels;o

Publicanywhere at all timeso Merchant when in the territory of the

flag state, when coastal state waives itsjurisdiction or it cannot exercisejurisdiction, or when such vessel are onthe open seas

b) pirates, being enemies of all mankind;c) in exercise of right of visit and search;

o Under the laws of neutrality, the publicvessels or aircraft of a belligerent statemay visit and search any neutramerchant vessel on the open seas and

capture it if it is found or suspected to beengaged in activities favorable to theother belligerent.

d) under doctrine of hot pursuito coastal state may pursue an offending

foreign merchant vessel into the opensea and upon capture, bring it back to itsterritory for punishment


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NorieSushi in order for this doctrine to

apply, it must be immediate,continuous and unabated

even while in contiguous zone,coastal state may still pursue

AERIAL JURISDICTIONOuter space (res communes); astronauts; objectslaunched into outer space (03 BQ)

When does the outer space commence?

Whichever state sends/launches objects to outer spacecontinues to have jurisdiction over such objects, stillunder its control and ownership, but such state cannotown the space the object occupies

State may extend its jurisdiction beyond its territory andover territory not under its sovereignty in the following:

1. through assertion of personal jurisdiction over itsnationals abroad or its right to punish offenses vs.its national interests even if committed by non-resident aliens

2. on the basis of its relations/other stateso on the basis of agreements/conventionso ex. Extradition treaty

3. as consequence of waiver of jurisdiction by localstate over those within its territory

o e.g. foreign troops while in territory oflocal state

4. acquisition of extraterritorial rightso

exterritoriality must be distinguishedfrom extraterritoriality

o EXTERRITORIALITY refers toexemptions of persons and propertyfrom the local jurisdiction on the basis ofinternational custom.

o EXTRATERRITORIALITY refersapplies only to personsand is based ontreaty or convention.

o The widely accepted principle ininternational law is the principle ofexterritoriality.

5.

through the enjoyment of easements orservitudes (e.g. right of innocent passage, arrivalunder stress)

Universal Principle of Jurisdiction/UniversalityPrinciple: state has jurisdiction over crimes vs.international law such as piracy, slave trade, airhighjacking, genocide and terrorism. These are offensesviolative of law of nations and so state acquiresjurisdiction to punish such offenses.

Is nuclear test on high seas allowed?~ danger of radioactive waste materials in the sea &environment~ convention on Law of Sea prohibits state fromconducting nuclear tests on high seas, which are reservedfor peaceful purposes. States are obliged to conserve al

living resources of the sea.

Remember that the open sea concept is that it is rescommunesand therefore it should be used for mankind.

~

RIGHT OF LEGATION~

Pertains to the (active) right given to send diplomaticrepresentatives to the other states and (passive) right toreceive them

Agents of diplomatic intercourseo Before, diplomatic relations/negotiations

were conducted through the head ofstate, but not anymore, conduct ofdiplomatic relations are now being madeby the members of diplomatic serviceheaded by the minister/foreign affairssecretary

o The heads of state are said to beembodiment of sovereignty and so theyare entitled to protection not onlypertaining to his physical safety, but also

the need to preserve honor and integrity Head of state represents sovereignty of state

entitled to special protection for his physical safetyand preservation of his honor. His quarters, archivesproperty and transport are inviolate under theprinciple of exterritoriality. He is immune fromcriminal jurisdiction and also from civil jurisdiction,except where he is plaintiff.

Example: If you recall during the time of Pres. CorazonAquino, she sued a columnist for saying that she hidunder the bed during a coup attempt. So, she filed, she

shed off her immunity from suit.

Mighell vs. Sultan of Johore caseSultan of Johore, who was a head of state, travelled toGreat Britain and met a British woman, courted andpromised her marriage. Sultan was the defendant for acivil suit for damages for breach of promise to marry. TheTribunal ruled in Sultans favor applying the immunityfrom suit.


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NorieSushiClassification of heads of diplomatic mission

(based on the Convention on DiplomaticRelations, signed in Vienna in 1961)

(1)Ambassadors of nuncios(2) Envoys, ministers or internuncios

(3)

Chargs d affaires

Article 14 of the Vienna Convention on DiplomaticRelations:

1. Heads of mission are divided into three classes,namely:a) That of ambassadors or nuncios accredited to

Heads of State, and other heads of missionof equivalent rank;

b) That of envoys, ministers and internunciosaccredited to Heads of State;

c) That of charge daffaires accredited to

Ministers for Foreign Affairs.2. Except as concerns procedure and etiquette,

there shall be no differentiation between headsof mission by reason of their class.

Classification is important not only insofar asprivileges but also matters of protocol or grant ofspecial honors. Before, only bigger states were able tosend envoys of the highest rank. Now, small countriesmay be able to send highest rank diplomats.

Article 15. The class to which the heads of theirmissions are to be assigned shall be agreed

between states.

Diplomatic corps under doyen du corpsThe diplomatic corps is a body consisting of thedifferent diplomatic representatives who have beenaccredited to the same local or receiving state.

Doyen du corps:- He is the head of the diplomatic corps- By tradition, oldest diplomat with the highest rank- However,Article 16 of the Vienna Convention on

Diplomatic Relations provides that:

(1)

Heads of mission shall take precedence intheir respective classes in the order of thedate and timeof taking up their functionsin accordance with Article 13 xxx

- In Catholic countries such as PH, the PapalNuncio heads the diplomatic corps

APPOINTMENT OF A DIPLOMATThe appointment of diplomats is not simply a matter ofmunicipal law of the sending state. There is also a

segment of IL in the matter of such authority, becausethe receiving state is not obliged to accept anyrepresentative who is persona non gratato it.

In order to avoid problems, most states now observe thepractice of agreation.

Practice of Agreation, by means of which, informainquiriesare addressed to the receiving state regardinga proposed diplomatic representative of the sendingstate.

It is only when the receiving state manifests itsagrment or consent, also informally, that thediplomatic representative is appointed and formallyaccredited.

Article 41. The sending State must make certain that the

agrment of the receiving State has been given forthe person it proposes to accredit as head of themission to that state.

2. The receiving State shall not be obliged to givereasons to the sending State for a refusal oagrment.

Under municipal law, who has the power to appoint?Ans. Under our Constitution, it is the Presidentwith theconcurrence of the Commission on Appointments.

Article VII, Section 16, 1987 Consti:Section 16. The President shall nominate and,

with the consent of the Commission onAppointments, appointambassadors, othepublic ministers and consuls, orand otheofficers whose appointments are vested in him inthis Constitution. Xxx

***TAKE NOTE: Presidents discretion is EXCLUSIVEwhen it comes to receiving ambassadors and other publicministers duly accredited to the government of PH.

What papers are acceptable as credentials of diplomat?(1)Letter of credence

o

Authority given by the sending state asrepresentative to the receiving state with therequest that all acts done by therepresentative on behalf of the sending stateshall be given full faith and confidence

(2)Diplomatic passport(3)Official instructions(4)Cipher or code book


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NorieSushio Used in sending secret

communications/coded messages to hisgovernment

Functions of Diplomat (code: RPNAP)1. REPRESENT the sending state in the receiving state;

2. PROTECT in the receiving state the interests of thesending state and its nationals;

3. NEGOTIATE with the government of the receivingstate;

4. ASCERTAIN conditions and developments in thereceiving state and reporting thereon to thegovernment of the sending state;

5. PROMOTE friendly relations between the sending andreceiving states;

DIPLOMATIC IMMUNITIES AND PRIVILEGES

A. PERSONAL INVIOLABILITY

Diplomatic agent is entitled to special protection of hisperson, honor and liberty. He is not liable to any form ofarrest or detention unless he causes violence and has tobe restrained.

So he restrained for the purpose of prevent thecommission of further illegal acts.

Article 29The person of the diplomatic agent shall

be inviolable. He shall not be liable to any form ofarrest or detention. The receiving State shall treathim with due respect and shall take allappropriate steps to prevent any attack on hisperson, freedom or dignity.

Of course you may ask, what therefore is the recourse ofthe receiving state in the event he commits violation ofpenal laws?Receiving state may ask that he be recalled by thesending state. If the sending state refuses,receiving state may immediately expel diplomat.

RA 75 punishes any person who wounds, attacks,imprisons or offer violence to the person of anambassador with imprisonment xxx NOTE: the attack isconfined to the person (only his physical state) of theenvoy/ambassador and does not include his honor orreputation.

B. IMMUNITY FROM CRIMINAL, CIVIL ANDADMINISTRATIVE JURISDICTION of thereceiving state

GENERAL RULE: A diplomat cannot be charged/suedbecause of the need for him to be given leeway in the

discharge of his diplomatic functions. This is also in thebasis of the principle of the regularity in the performanceof his official functions.

IMPORTANT! THERE ARE 3 EXCEPTIONS.

Article 31

1. A diplomatic agent shall enjoy immunity from thecriminal jurisdiction of the receiving State. He shalalso enjoy immunity from its civil and administrativejurisdiction, except in the case of:

(a)A real action relating to private immovable

property situated in the territory of thereceiving State, unless he holds it out onbehalf of the sending State for the purposesof the mission.

(b)An action relating to succession in which thediplomatic agent is involved as executor,administrator, heir or legatee as a privateperson and not on behalf of the sendingState.

(c)An action relating to any professional orcommercial activity exercised by thediplomatic agent in the receiving Stateoutside his official functions.

So whenever he performs an act, that has nothing to dowith his official functions, he is not covered.

90 BQ: An ambassador may be civilly sued. Nepaambassador was using a vacation house in Baguio butbecause of a strike in his country, funds were delayed andhe was not able to pay rentals. Is he liable?

YES!He occupied the house in his private capacity unlesshe holds such property on behalf of the state.

* A consul is not an ambassador. He does not havethe same privileges and immunities of a diplomatbecause he is appointed to protect the states commerciainterest.

The Vienna Convention on Diplomatic Relations of 1961its origin was on the basis of fiction ofexterritorialitysuch as that they were considered as extensions of thesovereign and therefore entitled to the privileges andimmunities under present international law. But the


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NorieSushiacceptance of states is to the effect that these diplomatsbe given wide latitude in the discharge of their officialfunctions, and should be on the basis of customary law.Soon after, these were embodied in conventions.

Some Rules on Waiver of Immunity

Immunity from jurisdiction may be waived expresslyby sending state or head of mission. There is impliedwaiver when a person entitled to

immunity files suit and opens himself to counterclaimdirectly connected with the principal claim.

o Cory Aquino filing suit for damages against acolumnisthid under the bed case

Waiver of immunity from jurisdiction in in respect ofcivil or administrative proceedings does not implywaiver of immunity anent execution of judgment forwhich a separate waiver is needed.

o E.g. Suit is commenced because of suchwaiver, and a decision is rendered adverse to

the foreign state. It does not mean that justbecause there is this adverse judgmentrendered against the foreign state that thereis also already a waiver in the matter ofexecution of decision. So if there are real orpersonal properties that are subject togarnishment, this cannot be doneautomatically. Because there is a need for anexecution of a separate waiver pertaining tothe execution of the judgment.

R.A. No 75 provides:Section 4. Any writ or process sued out or

prosecuted by any person in any court of the Republicof the Philippines, or by any judge or justice, wherebythe person of any ambassador or public minister ofany foreign State, authorized and received as such bythe President, or any domestic or domesticservant of any such ambassador or ministerisarrested or imprisoned, or his goods or chattels aredistrained, seized, or attached, shall be deemedVOID, and every person by whom the same isobtained or prosecuted, whether as party or asattorney, and every officer concerned in executing it,shall upon conviction, be punished by imprisonment

for not more than three years and a fine of notexceeding two hundred pesosin the discretion ofthe court.

NOTE:For ambassadors/diplomats, domestic servantsare included in the immunity. (with exceptions rinactually under Sec. 5 of RA 75)

C. INVIOLABILITY OF DIPLOMATIC PREMISES:

Article 221. The premises of the mission shall be inviolable. Theagents of the receiving State may not enter them, excepwith the consent of the head of the mission.

2. The receiving State is under a special duty to take alappropriate steps to protect the premises of the missionagainst any intrusion or damage and to prevent anydisturbance of the peace of the mission or impairment oits dignity.3. The premises of the mission, their furnishings andother property thereon and the means of transport of themission shall be immune from search, requisitionattachment or execution.

The so-called franchise de l'hotel extends immunityfrom the local law to the diplomatic premises. A diplomaticmission has the right to use its premises for their

prescribed purpose. These include the envoys offices, hisresidence and out-buildings, his means of transportationand the compound where these are found, which may notbe entered by the local authorities without itspermission.

BUT, THIS RULE IS NOT ABSOLUTE.Exception: In cases of CLEAR and URGENT necessity,for the local authorities to take forcible measures to arresany person subject to their jurisdiction.

Right of Diplomatic Asylum granted only on thestrength of local usage, particularly in favor of politica

refugees, or of treaty stipulations. But this so-called rightof diplomatic asylum is not really universally recognizedexcept when it is extended for humanitarian reasonsExample, when the fugitive seeking sanctuary is inimmediate danger of his life or safety. So unless there isa treaty stipulation for this right (or at times if they arepolitical refugees), peace officers can take these refugeeswithin said diplomatic premises.

D. INVIOLABILITY OF ARCHIVESAuthorities of the receiving State cannot pry into therecords of the consulate or embassy even where there is

an outbreak of war. The documents in such case ofoutbreak must be sealed, and authorities have no right toconfiscate them.

Article 24. The archives and documents shall be inviolableat any time and wherever they may be.

E. INVIOLABILITY OF COMMUNICATIONThis is the right of the diplomat to send messages, evencoded messages to his government. This includes the


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NorieSushidiplomatic courier carrying the diplomatic bag, as well asmode of transport. The person carrying themessages/communication docs/records are not subject toarrest/detention.

Article 27

1. The receiving State shall permit and protect freecommunication on the part of the mission for allofficial purposes. In communicating with theGovernment and other consulates of the sendingState, wherever situated, the mission may employ allappropriate means, including diplomatic couriers andmessages in code or cipher. However, the missionmay install and use a wireless transmitter only withthe consent of the receiving State.

2. The official correspondence of the mission shall beinviolable. Official correspondence means allcorrespondence relating to the mission and its

functions.3. The diplomatic bag shall not be opened or detained.4. The packages constituting the diplomatic bag must

bear visible external of their character and maycontain only diplomatic documents or articlesintended for official use.

5. The diplomatic courier, who shall be provided with anofficial document indicating his status and thenumber of packages constituting the diplomatic bag,shall be protected by the receiving State in theperformance of his functions. He shall enjoy personalinviolability and shall not be liable to any form ofarrest or detention.

6.

The sending State or the mission may designatediplomatic couriers ad hoc. In such cases theprovisions of paragraph 5 of this Article shall alsoapply, except that the immunities therein mentionedshall cease to apply, when such courier has deliveredto the consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain ofa commercial aircraft scheduled to land at anauthorized port of entry. He shall be provide with anofficial document indicating the number of packagesconstituting the bag but he shall not be considered tobe a diplomatic courier. The mission may send one of

its members to take possession of the diplomatic bagdirectly and freely from the captain of the aircraft.

F. EXEMPTION FROM TESTIMONIAL DUTIES

Diplomat is under no compulsion to testify but he maywaive this privilege.

Article 31xxx2. A diplomatic agent is not obliged to give evidence as

a witness.xxx

G.

EXEMPTION FROM TAXATIONThe diplomatic envoy is also exempt from taxes, customsduties, and other dues, subject to the exception listed inthe Diplomatic Convention as well as from social securityrequirements under certain conditions.

Article 33

1. Subject to the provisions of paragraph 3 of thisArticle, a diplomatic agent shall with respect toservices rendered for the sending State be exempfrom social security provisions which may be in forcein the receiving State.

xxx

Article 34

A diplomatic agent shall be exempt from all dues andtaxes, personal, or real, national, regional or municipal,except:

(a) Indirect taxes of a kind which are normallyincorporated in the price of goods or services;

(b) Dues and taxes on private immovable propertysituated in the territory of the receiving State, unlesshe holds it on behalf of the sending State for the

purposes of the mission;(c) Estate, sucession or inheritance duties levies by the

receiving State, subject to the provisions of paragraph4 of Article 39;

(d) Dues and taxes on private income having its sourcein the receiving State and capital taxes oninvestments made in commercial undertakings in thereceiving State;

(e) Charges levied for specific services rendered;(f) Registration, court or record fees, mortgage dues and

stamp duty, with respect to immovable property,subject to the provisions of Article 23.

Article 36

1. The receiving State shall, in accordance with suchlaws and regulations as it may adopt, permit entry oand 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 mission;


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NorieSushi(b)Articles for the personal use of a diplomatic

agent or members of his family forming partof his household, including articles intendedfor his establishment.

2. The personal baggage of a diplomatic agent shall beexempt from inspection, unless there are serious

grounds for presuming that it contains articles notcovered by the exemptions mentioned in paragraph 1of this Article, or articles the import or export ofregulations of the receiving State. Such inspectionshall be conducted only in the presence of thediplomatic agent or of his authorized representative.

H. FREEDOM OF MOVEMENT AND TRAVEL IN THETERRITORY OF RECEIVING STATE

Article 35

The receiving State shall exempt diplomatic

agents from all personal services, from all public serviceof any kinds whatsoever, and from military obligationssuch as those connected with requisitioning, militarycontributions and billeting.

(90 BQ) Nepal ambassador leased a vacation house inBaguiosee page 12

(00 BQ) Foreign ambassador leased a vacation house inTagaytay

A foreign ambassador to the Philippines leased a vacationhouse in Tagaytay for his personal use. For some reason,

he failed to pay rentals for more than one year. The lessorfiled an action for the recovery of his property in court.Can the foreign ambassador invoke his diplomaticimmunity to resist the lessors action? NO, since he is notusing the house for the purpose of his mission but merelyfor vacation.

In January 2003, a Cambodian newspaper article falselyalleged that a Thai actress claimed that Angkor Watbelonged to Thailand. Other Cambodian print and radiomedia picked up the report and furthered the nationalisticsentiment which resulted in riots in Phnom Penh on

January 29 where the Thai Embassy was burned andcommercial properties of Thai businesses werevandalized. Later, the Cambodian government issued aletter of apology, and paid about $23.54 millioncompensation for the destruction of the Thai embassy.

Case: WHO v. Aquino (48 SCRA 243)This case is in relation to diplomatic immunity under HostAgreement between WHO and PH.

There was this diplomat from WHO. Crates belonging tohim that were transported were subject of confiscation foalleged violation of the Tariff and Customs Code. Thejudge issued a warrant but upon motion, he refused toquash the search warrant. Judge was reprimanded bySupreme Court.

Diplomatic immunity is a political question andcourts cannot go beyond determination byExecutive Branch.

(97 BQ) Secretary/Consul in U.S. embassy boughtdiamond ring worth 50T which he gave to his FilipinoGF. He issued a bouncing check. Can he besued/charged criminally for violation of BP22?

Consul does not have the same status as a diplomatBecause the consul is not in the business of a politicacharacter, rather in the interest of commerce and

navigation of both sending and receiving State. Aconsul is protected only insofar as the discharge ofofficial functions is concerned. So if he commits aviolation of the penal laws in the local state, he canbe criminally liable. But, take note, if this consul isalso designated as secretary in the US embassy,charged with diplomatic duties as such Secretary, heis covered under the Diplomatic ConventionTherefore, he is entitled to privileges, and can nolonger be criminally liable.

(91 BQ) A Marikina factory supplied military boots toIndonesia. Only 200,000 pairs were delivered out o

500,000 ordered. Indonesia paid for only 100,000pairs and filed suit for specific performance againstthe shoe factory.

If the sovereign state commences a suit, it sheds offits immunity, and so the Indonesian government canbe a subject of a counter-suit that can be filed by theMarikina shoe factory.

So assuming, that the shoe factory indeed filed a counter-suit and the court rendered a decision in its favor, can thecourt issue this order of garnishment in order to

implement/execute the judgment rendered against theIndonesian government?

RECALL: Waiver of immunity from jurisdiction in inrespect of civil or administrative proceedings does notimply waiver of immunity anent execution of judgment forwhich a separate waiver is needed.


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NorieSushiCase: International Catholic MigrationCommission v. Calleja (190 SCRA 130)Diplomatic immunity of ICMM and the International RiceResearch Institute (IRRI) was upheld. Immunity fromlocal jurisdiction is necessitated by their internationalcharacter/purposes. They should be shielded from control

or political pressure by the host state and to ensureunhampered performance of their functions.

DFA v. NLRC (262 SCRA 38)In a suit for illegal dismissal, diplomatic of ADB wasupheld.

DOCTRINE OF SOVEREIGN IMMUNITYA state, its agents or property are immune from judicialprocess of another state except with its consent.However, Philippines adheres to restrictive immunityand not the absolute immunity school of thought. Onlygovernmental or sovereign acts (acta jure imperii) are

covered by sovereign immunity. Proprietary orcommercial acts (acta jure gestiones) are not covered.

A good illustration:We have properties in U.S., in New York. Three buildingsin Manhattan. There was this legal issue raised before theFederal court and the said court, rendered a decisiondeclaring that even these properties owned by foreigngovernment. Actually, the court cited the properties ofIndia, Mongolia, and PH. You know, in the case of Indiahas a building near UN that is used as living quarters byemployees, officials. Mongolia also has about 6-storeyproperty. Tayo Philippines, meron rin tayo. Maganda ang

property natin. To make the long story short, the federaljudge ruled that those portions used for diplomaticpurpose, tax exempted. Pero sa building the PH, meronpang restaurant doon, meron pang parang agency doon.So PH was assessed tax for other portions of the buildingused for non-diplomatic purposes. Around $80k at thattime.

The Diplomatic Suite or RetinueDiplomatic immunities and privileges are available to:

a) Head of the missionb) Family of the head of mission

c)

Other members of the diplomatic retinue(entourage), although not in the same degreeo Diplomatic staffo Administrative and technical staff (not

immune from civil and administrativejurisdiction for unofficial acts)

d) Private servants of the official members of themission

o If they are not nationals or permanentresidents of the receiving State, enjoy

only exemption from dues and taxes ontheir income from the mission and suchother immunities and privileges as maybe granted by the receiving state.

DURATION OF IMMUNITY

Starts:i. from the moment he enters the territory of the

receiving State on proceeding to take his post or, ifalready there,

ii. from the moment his appointment is notified to theforeign ministry.

Ends:i. from the moment he leaves the country orii. on expiry of a reasonable time in which to do so, but

shall subsist until such time even in the case of armedconflict.

Immunity and privileges are available to him and to hisfamily not only in situ, but as well in transitu, that is, whentravelling through a third state on the way to or from thereceiving State, so far as may be necessary to secure histransit or return. (Article 40)

TERMINATION OF DIPLOMATIC MISSION1. RECALL2. DISMISSAL3. death4. resignation5. removal

6.

abolition of the office7. other methods

DIPLOMATIC ASYLUMA person seeks refuge in the premises of a foreign missionin the receiving State.

TERRITORIAL ASYLUMA person seeks refuge in a foreign country.

e.g. case of Jalandoni who sought territorial asylum inNetherlands

Conditions of diplomatic asylum:1. individual is being prosecuted for a political offense2. his life is in danger3. he will not be given fair trial if he is surrendered to

the state demanding his surrender.

The rule here is that diplomatic asylum has notgained general acceptance in IL but this can begranted when all above 3 conditions arise.


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NorieSushiCase of Alfredo SauloSaulo here is a Hukbalahap leader in Jolo. He was wantedfor murder, kidnapping, bombings. So what he did, hesought protection in Indonesian Embassy in Manila. Therewere negotiations that transpired. He was givendiplomatic asylum.

~

CONSULS~

The consul is NOT a diplomat.

Consuls are state agents residing abroad for variouspurposes but mainly in the interest of commerce andnavigation.

Consuls do not ordinarily enjoy all the traditional

diplomatic immunities and privileges, although they are toa certain extent entitled to special treatment under thelaw of nations.

Kinds and Ranks of Consuls:

TWO (2) KINDS:1. consules missiprofessional or career consuls who

are nationals of the appointing state and are requiredto devote their full time to the discharge of theirconsular duties.

2. consules electimay or may not be nationals ofthe appointing state and perform their consular

fnctions only in addition to their regular callings.

* Although consuls enjoy a certain measure ofinternational character, their grades or ranks REMAIN AMATTER OF MUNICIPAL CONCERN.

Classifications under the Consular Convention(accdg. to importance/rank)

a) consul-generalb) consulc) vice-consuld) consular agent

Authority of the consul emanates from two (2) sources:1. letter patent or lettr de provision the

authority given by his own state/sending state2. exequatur the authority given by the receiving

state

IMMUNITIES/PRIVILEGES OFCONSULS

Consuls are public officers of both sending and receivingstates, hence governed by laws of both.

Diplomats, receiving state may refuse to receive them andwithhold the exequaturfrom them without explanation.

CONSUL: Entitled to immunity from jurisdiction for acts

performed in their official capacity Liable to arrest and punishment for grave offenses May be required to give testimony May not be prosecuted for minor offenses for reasons

of comity Consular office is immune only to that part where

work is being performed (does not extend to mode oftransport, other areas). So there may be issuance of

subpoena/search warrant to the consular officepertaining to areas where consular work is notperformed.

Immunities and privileges are available not only to theconsul but also to the members of the consular posttheir respective families and the private staff

For official acts, immunity from jurisdiction subsistswithout limitation of time

Right to official communication and may correspondwith their home government or other official bodiesby any means, including cipher or code (but may becurtailed or restricted whenever exercised to theprejudice of the receiving state)

Inviolability of archives

A Case about Consular Protection(June 01 ICJ Decision) Regarding the execution of 2German brothers (Walter and Karl LaGrand) in Arizona in1999 for their involvement in a bank robbery in 1982

* Karl was first executed.

* US breached its international duties when it ignoredICJs request for last minute stay of execution for Walter

* US violated the Vienna Convention on ConsularProtection which requires police/court officials toinform foreign detainees of their right to seek helpfrom consular officials from their own countries.

IMPORTANT NOTE:Consent given to the establishment of diplomatic relationsbetween two states IMPLIES, unless otherwise statedconsent to the establishment of consular relations. (Article2, Sec 2)


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NorieSushiHOWEVER, severance of diplomatic relations shall notipso facto involve the severance of consular relations, andvice versa. (Article 2, Sec 3)

VIENNA CONVENTION ON CONSULAR RELATIONDone at Vienna on April 24, 1963

Article 11The consular commission or notification of appointment

1. The head of a consular post shall be provided by thesending State with a document, in the form of acommission or similar instrument, made out for eachappointment, certifying his capacity and showing, as ageneral rule, his full name, his category and class, theconsular district and the seat of the consular post.2. The sending State shall transmit the commission orsimilar instrument through the diplomatic or otherappropriate channel to the Government of the State in

whose territory the head of a consular post is to exercisehis functions.3. If the receiving State agrees, the sending State may,instead of a commission or similar instrument, send to thereceiving State a notification containing the particularsrequired by paragraph 1 of this article.

Article 12The exequatur

1. The head of a consular post is admitted to the exerciseof his functions by an authorization from the receivingState termed an exequatur, whatever the form of this

authorization.2. A State which refused to grant an exequatur is notobliged to give to the sending State reasons for suchrefusal.3. Subject to the provisions of articles 13 and 15, the headof a consular post shall not enter upon his duties until hehas received an exequatur.

Article 45Waiver of privileges and immunities

1. The sending State may waive, with regard to a member

of the consular post, any of the privileges and immunitiesprovided for in articles 41, 43 and 44.2. The waiver shall in all cases be express, except asprovided in paragraph 3 of this article, and shall becommunicated to the receiving State in writing.3. The initiation of proceedings by a consular officer or aconsular employee in a matter where he might enjoyimmunity from jurisdiction under article 43 shall precludehim from invoking immunity from jurisdiction in respect

of any counterclaim directly connected with the principaclaim.4. The waiver of immunity from jurisdiction for thepurposes of civil or administrative proceedings shall nobe deemed to imply the waiver of immunity from themeasures of execution resulting from the judicial decision;

in respect of such measures, a separate waiver shall benecessary.

Article 41 Personal inviolability of consular officersArticle 43 Immunity from jurisdictionArticle 44 Liability to give evidence

You need to endure so that you can receive the promises after you doGods will.

Hebrews 10:36, KJV

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