X.

DIPLOMATIC AND CONSULAR RELATIONS

The general rule is that the jurisdiction of a state within its territory is complete and absolute.
However, there are two categories of exceptions to this rule. The first is sovereign immunity and
the second is the immunity of the representative of states or diplomatic and consular immunities.
Sovereign immunity covers both a head of state and the state itself.1

a. Right of Legation
Also known as the right of diplomatic intercourse, refers to the right of the State to send and
receive diplomatic missions, which enables States to carry on friendly intercourse. It is not a
natural or inherent right, but exists only by common consent. No legal liability is incurred by the
State for refusing to send or receive diplomatic representatives.2
Legation may either be active or passive. Active right of legation is the right of a state to send
diplomatic representatives to other states. Passive right of legation is the right of a state to
receive diplomatic representatives from other states.
Legation is not an obligation under public international law, it is purely consensual and based
on voluntary consent.

b. Classes of Heads of Missions

The head of the mission is the person charged by the sending State with the duty of acting
in that capacity.
Article 14 of the Vienna Convention on Diplomatic Relations enumerates the classes of heads
of missions, namely: (a) That of ambassadors or nuncios accredited to Heads of State, and other
heads of mission of equivalent rank; (b) That of envoys, ministers and internuncios accredited to
Heads of State; and (c) That of chargs daffaires accredited to Ministers for Foreign Affairs.
Except as concerns precedence and etiquette, there shall be no differentiation between heads of
mission by reason of their class.

c. Diplomatic Corps
The diplomatic corps or service is the collective body of foreign diplomats accredited to a
particular country or body.3
Article 3 of the Vienna Convention on Diplomatic Relations provides the functions of a
diplomatic mission, namely: (a) Representing the sending State in the receiving State; (b)
Protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law; (c) Negotiating with the Government of the receiving
State; (d) Ascertaining by all lawful means conditions and developments in the receiving State,

1 Bernas, J. G. (2009). INTRODUCTION TO PUBLIC INTERNATIONAL LAW. Quezon City: REX pRilMTiNq COMpANy, ilNC.

2 RIGHT OF LEGATION. (2009, January 20). Retrieved from http://anneclaudette.blogspot.com/2009/01/right-of-legation.html

3 Diplomatic corps. (n.d.). Retrieved May 6, 2017, from https://en.wikipedia.org/wiki/Diplomatic_corps

 and reporting thereon to the Government of the sending State; and (e) Promoting friendly
relations between the sending State and the receiving State, and developing their economic,
cultural and scientific relations.

d. Privileges and Immunities

Official representatives of a state are given immunities and privileges when they are within
the territory of another state. The immunities and privileges they enjoy are personal in the sense
that they benefit the person. But the purpose of the immunities given them is functional, that is,
to enable them to perform their functions properly. On the part of the receiving state there lie
certain obligations to protect the representative and his property and office. 4 The following are
some of the rights and privileges of the diplomatic mission:
d.1. Personal inviolability.
The doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. x x x A foreign agent, operating within a territory, can
be cloaked with immunity from suit but only as long as it can be established that he is acting
within the directives of the sending state. x x x5
Immunity is necessary to assure unimpeded performance of their functions. The purpose
is "to shield the affairs of international organizations, in accordance with international
practice, from political pressure or control by the host country to the prejudice of member
States of the organization, and to ensure the unhampered performance of their functions"6
x x x It is well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice or in
bad faith or beyond the scope of his authority or jurisdiction.7
Even in the case of armed conflict or in the case of a breach in diplomatic relations
those provisions require that both the inviolability of the members of a diplomatic mission and
of the premises, property and archives of the mission must be respected by the receiving State.
Naturally, the observance of the principle does not mean - and the Applicant Government
expressly acknowledges - that a diplomatic agent caught in the act of committing an assault or
other offence may not, on occasion, be briefly arrested by the police of the receiving State in
order to prevent the commission of the particular crime.8

4 Ibid., 1.

5 MINUCHER vs. HON. COURT OF APPEALS, G.R. No. 142396, February 11, 2003

6 Lasco vs UN, 241 SCRA 681

7 LIANG vs. PEOPLE OF THE PHILIPPINES, G.R. No. 125865, January 28, 2000
 d.2. Inviolability of premises and archives.
The premises occupied by a diplomatic mission, as well as the private residence of the
diplomatic agent, are inviolable. The agents of the receiving State may not enter without the
consent of the envoy, except in extreme cases of necessity. Such premises cannot be entered or
searched, and neither can the goods, records and archives be detained by local authorities even
under process of law.
x x x it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government x x x. Courts may not so exercise their
jurisdiction by seizure and detention of property, as to embarrass the executive arm of the
government in conducting foreign relations.9

d.3. Right of official communication.

The right of an envoy to communicate with his government fully and freely is universally
recognized. The mission may employ all appropriate means to send and receive messages,
whether ordinary or in cipher, by any of the usual modes of communication or by means of
diplomatic couriers. Because of this right, the diplomatic pouch and diplomatic couriers shall
also enjoy inviolability.

d.4. Immunity from local jurisdiction.

A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the
case of: (a) a real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State; and
(c) an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.10
The rule in international law is that foreign armed forces allowed to enter ones territory
are immune from local jurisdiction, except to the extent agreed upon. x x x the principle
remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State
only to the extent agreed upon by the parties.11
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil
and administrative jurisdiction of the receiving state over any real action relating to private

8 UNITED STATES OF AMERICA v. IRAN) JUDGMENT OF 24 MAY 1980

9 World Health Organization v. Aquino 48 SCRA 243

10 THE REPUBLIC OF INDONESIA vs. VINZON, G.R. No. 154705. June 26, 2003

11 Nicolas vs Romulo, February 11, 2009

 immovable property situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission.12
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the Courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private act or acts jure gestionis.13

d.5. Exemption from taxes and customs duties.

Under the Vienna Convention, diplomatic agents are exempt from all dues and taxes,
whether personal or real, national, regional or municipal, except the following: [i] indirect taxes
normally incorporated in the price of goods or services; [ii] dues and taxes on private
immovable property situated in the territory of the receiving State, unless he holds it on behalf
of the sending State for purposes of the mission; [iii] estate, succession or inheritance taxes
levied by the receiving State; [iv] dues and taxes on private income having its source in the
receiving State and capital taxes on investments in commercial ventures in the receiving State;
[v] charges levied for specific services rendered; and [vi] registration, court or record fees,
mortgage dues and stamp duty, with respect to immovable property.
There are basically three propositions underlying the grant of international immunities
to international organizations. These principles, contained in the ILO Memorandum are stated
thus: 1) international institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the effective discharge
of which they are responsible to democratically constituted international bodies in which all the
nations concerned are represented; 2) no country should derive any national financial
advantage by levying fiscal charges on common international funds; and 3) the international
organization should, as a collectivity of States members, be accorded the facilities for the
conduct of its official business customarily extended to each other by its individual member
States. x x x The raison d'etre for these immunities is the assurance of unimpeded performance
of their functions by the agencies concerned.14

d.6. Other privileges, which include freedom of movement and travel in the territory of the
receiving State; exemption from all personal services and military obligations; the use of the
flag and emblem of the sending State on the diplomatic premises and the residence and means
of transport of the head of mission.15

12 THE HOLY SEE vs. ROSARIO, G.R. No. 101949, December 1, 1994

13 DEPARTMENT OF FOREIGN AFFAIRS vs. NATIONAL LABOR RELATIONS COMMISSION, G.R. No. 113191, September 18, 1996

14 ICMC vs calleja, 190 scra 130

e. Letter of Credence

To avoid embarrassment, States resort to an informal inquiry as to the acceptability of a

particular envoy, to which the receiving State responds with an informal conformity. This
informal process is known as agreation. Thus, the sending State is not absolutely free in the
choice of its diplomatic representatives, especially heads of mission, because the receiving State
has the right to refuse to receive as envoy of another State a person whom it considers
unacceptable.16

The receiving state will then issue a document known as agrement. This is a document
signifying the consent of the receiving state in so far as the appointment of the diplomatic
representative by the sending state.

The diplomatic representative will then present his proof of accreditation to the receiving
state. This document is known as the letter of credence.

f. Waiver of Diplomatic Immunity and Privileges

Article 32 of the Vienna Convention on Diplomatic Relations states that, the immunity from
jurisdiction of diplomatic agents and of persons enjoying immunity may be waived by the
sending State. The waiver must always be express. The initiation of proceedings by a diplomatic
agent or by a person enjoying immunity from jurisdiction shall preclude him from invoking
immunity from jurisdiction in respect of any counterclaim directly connected with the principal
claim. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings
shall not be held to imply waiver of immunity in respect of the execution of the judgment, for
which a separate waiver shall be necessary.
If the agency is incorporated, the test of its suability is found in its charter. The simple rule
is that it is suable if its charter says so, and this is true regardless of the functions it is
performing. x x x State immunity from suit may be waived by general or special law. The special
law can take the form of the original charter of the incorporated government agency.
Jurisprudence is replete with examples of incorporated government agencies which were ruled
not entitled to invoke immunity from suit, owing to provisions in their charters manifesting their
consent to be sued.17

g. Duration of Immunity

15 Ibid., 1.

16 Ibid.

17 DEUTSCHE GESELLSCHAFT TECHNISCHE ZUSAMMENARBEIT (GTZ) v. HON.COURT OF APPEALS G.R. No. 152318, April 16,
2009
 The privileges are enjoyed by the envoy from the moment he enters the territory of the
receiving State, and shall cease only the moment he leaves the country, or on expiry of a
reasonable time in which to do so. These privileges are available even in transitu, when traveling
through a third State on the way to or from the receiving State.18

h. Termination of Diplomatic Relations

Diplomatic relations may be terminated through the following modes: a) resignation of the
diplomatic representative; b) accomplishment of the purpose of the mission; c) death of the
diplomatic representative; d) abolishment of the office; and e)removal from office of the
diplomatic representative.

i. Kinds of Consul
Consuls are not concerned with political matters. They attend rather to administrative and
economic issues such as the issuance of visas.19 A consulate is an office established by the
sending state for the purpose of supporting or protecting its citizens travelling or residing within
the territory of the receiving state.
Article 12 of the Vienna Convention on Consular Relations states that, the head of a consular
post is admitted to the exercise of his functions by an authorization from the receiving State
termed as exequatur, whatever the form of his authorization. The head of a consular post shall
not enter upon his duties until he has received an exequatur. A letter of patent then is issued to the
consul showing his credentials. Such document is still subject to review by the receiving state.
Article 9 of the Vienna Convention on Consular Relations provides the four classes of consul,
namely: (a) consuls-general; (b) consuls; (c) vice-consuls; and (d) consular agents.

j. Consular Privileges and Immunities

Under the 1963 Vienna Convention on Consular Relations, consuls are allowed freedom of
communication in cipher or otherwise; inviolability of archives, but not of the premises where
legal processes may be served and arrests made; exempt from local jurisdiction for offenses
committed in the discharge of official functions, but not other offenses except minor infractions;
exempt from testifying on official communications or on matters pertaining to consular
functions; exempt from taxes, customs duties, military or jury service; and may display their
national flag and emblem in the consulate.20

18 Ibid.

19 Bernas, J. G. (2009). INTRODUCTION TO PUBLIC INTERNATIONAL LAW. Quezon City: REX pRilMTiNq COMpANy, ilNC.

20 RIGHT OF LEGATION. (2009, January 20). Retrieved from http://anneclaudette.blogspot.com/2009/01/right-of-legation.html