Political and Public International Law › Public International Law › Jurisdiction of States › Exceptions
b. Diplomatic and Consular Law
What is the right of legation?
The right of a state to maintain diplomatic relations with other states.
What are the types of legation?
- Active Right to send diplomatic representatives
- Passive Right to receive diplomatic representatives.
What are the diplomatic and consular immunities?
- Personal inviolability
- Inviolability/Immunity of premises
- Right of protection
- Immunity from local jurisdiction on the basis of international custom
- Exemption from taxes and personal services
- Inviolability of means of communication
- Diplomatic bag: shall not be opened or detained (Vienna Convention on Diplomatic Relations, Art. 27(3)). Consular bag: generally shall not be opened or detained; on serious grounds, the receiving State may request that it be opened, and if the request is refused, the bag shall be returned to its place of origin (Vienna Convention on Consular Relations, Art. 35(3)).
What is the difference between diplomatic immunity and consular immunity?
| DIPLOMATIC IMMUNITY (Vienna Convention on Diplomatic Relations) | CONSULAR IMMUNITY (Vienna Convention on Consular Relations) |
| “Premises of the mission” - include the buildings or parts of the buildings and the land irrespective of ownership used for the purpose of the mission including the residence of the head of mission. | “Consular premises” - include the buildings or parts of the buildings and the land irrespective of ownership used exclusively for the purposes of consular post. |
| The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State. | |
| The agents of the receiving State may not enter the premises except with the consent of the head of the mission. | The agents of the receiving State may not enter the premises except with the consent of the head of consular post. The consent may be assumed in case of fire or other disaster requiring prompt protective action. |
| The diplomatic bag shall not be opened or detained. | The consular bag shall not be opened or detained. Authorities may request that the bag be opened in their presence by an authorized representative of the sending state if they have serious reason to believe that the bag contains objects other than official correspondence and documents or articles intended exclusively for official use. If the request is refused by the authorities of the sending State, the bag shall be returned to its place of origin. |
| A diplomatic agent is not obliged to give evidence as a witness. | Members of the consular post may be called upon to attend as witnesses. If a consular officer should decline to do so, no coercive measure or penalty may be applied. |
| Under Article 31(1) of the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the receiving State's criminal jurisdiction. The following exceptions apply only to immunity from its civil and administrative jurisdiction: 1. Real action relating to private immovable property. Exception: He holds it in behalf of the sending State for the purposes of the mission. 2. Actions for succession. 3. Professional or commercial activity |
Members of the consular post shall enjoy immunity from the jurisdiction of the receiving State in respect of acts performed in the exercise of consular function except in case of: 1. Civil action arising out of a contract concluded by a person who did not contract expressly or impliedly as an agent of the sending State. 2. Civil action by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. |
The Agreement between the Asian Development Bank and the Philippines only provides officers and staff of the bank immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity. Slander cannot be considered as falling within the purview of the immunity granted since it is not an act performed in an official capacity. (Jeffrey Liang v. People of the Philippines G.R. No. 125865, March 26, 2001)
The establishment of a diplomatic mission as well as its upkeep and maintenance are acts jure imperii. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings, and equipment of the embassy and the living quarters of its agents and officials. (Rep. of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003)
Who determines immunity in the Philippines?
Under Philippine law, the DFA’s function includes the determination of persons and institutions covered by diplomatic immunities. While exclusive to the DFA, the DFA’s determination is not conclusive.
Even with a DFA certification, however, the court is not precluded from making an inquiry into the intrinsic correctness of such certification. (China National Machinery & Equipment Corp. v. Santamaria, G.R. No. 185572, February 7, 2012)
What is Diplomatic Immunity?
Diplomatic immunity essentially differs from State immunity in that the modern law on diplomatic immunity is contained in the 1961 Vienna Convention on Diplomatic Relations
Consequently, the rules on diplomatic immunity work much more smoothly and uniformly than, say, the ‘rules’ on State immunity.
Diplomatic relations are established by mutual consent between the two States concerned. However, they may be broken off unilaterally (often as a mark of disapproval of an illegal or unfriendly act by the other State); when State A breaks off diplomatic relations with State B, it not only withdraws its own diplomatic mission from State B, but also requires State B to withdraw its mission from State A. (AKEHURST)
Immunity from the jurisdiction of courts
The preamble to the 1961 Vienna Convention recites that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” it is still the case that diplomatic immunity under Article 31 VCDR is wider than State immunity available to all State officials, in that Article 31 does not focus on the nature of acts in relation to which immunities may be claimed. (AKEHURST)
When are diplomats made liable?
One of the most striking features of the Vienna Convention is that it does not grant full immunity to all the staff of a diplomatic mission. In addition to diplomatic agents, the Convention speaks of administrative and technical staff (for example, clerical assistants) and of service staff (for example, drivers and receptionists).
Administrative and technical staff who are neither nationals nor permanent residents of the receiving State enjoy immunity from criminal jurisdiction, but their immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duties (Vienna Convention on Diplomatic Relations, Art. 37(2)). Service staff who are neither nationals nor permanent residents of the receiving State enjoy immunity only for acts performed in the course of their duties (Art. 37(3)). A diplomatic agent who is a national or permanent resident of the receiving State enjoys immunity from jurisdiction and inviolability only for official acts, unless the receiving State grants additional privileges and immunities (Art. 38(1)).
When an individual ceases to be a member of the staff of a diplomatic mission, his immunity continues for a reasonable time thereafter, in order to give him time to leave the country. After that, he may be sued for private acts done during his period of office, but not for official acts. (AKEHURST)
Authorities
- 1961 Vienna Convention on Diplomatic Relations
- 1961 Vienna Convention on Diplomatic Relations|VCDR, Sec. 31
- Agreement between the Asian Development Bank and the Philippines
- Akehurst
- China National Machinery & Equipment Corp v. Santamaria, G.R. No. 185572, 7 February 2012
- Liang v. People, G.R. No. 125865, 26 March 2001
- Republic of Indonesia v. Vinzon, G.R. No. 154705, 26 June 2003
- Vienna Convention on Consular Relations
- Vienna Convention on Diplomatic Relations
- Vienna Convention on Diplomatic Relations, 1961
- Vienna Convention on Diplomatic Relations, Sec. 1961