2. There exist special, humanitarian and compelling circumstances. (Gov.

t
of Hong Kong v. Judge Olalia, 2007) Diplomats Consuls
Concerned with the political Concerned with commercial,
IMMUNITY FROM JURISDICTION relations of states. administrative and economic
issues.
Ø The purpose of immunity is to allow the state and its officials to perform their functions
properly without any hindrance. Ø Diplomatic immunities – governed by the Vienna Convention on
Ø Act of State Doctrine – every sovereign state is bound to respect the independence of every Diplomatic Relations. (hereinafter provided)
other sovereign state, and the courts will not sit in judgment of another government’s acts o Diplomatic relations between states are purely by mutual
done within its own territory. consent. Hence, an agreement must first be obtained
before the head of mission (diplomat) is sent to the
General Rule receiving state.
The jurisdiction of a state within its territory is complete and absolute. Ø Consular immunities – found in the Vienna Convention on Consular
Relations. (hereinafter provided)
Exceptions o Exequatur – term used for the authorization of the head of
a consular post from the receiving state.
(1) Sovereign Ø The state may not be sued without its consent.
Immunity Ø Based on the principal equity of states: par in parem non habet (3) Immunity of Ø Their immunities come from the conventional instrument creating
imperium. International them. (Ex. 1946 General Convention on the Privileges and
Ø State immunity is reserved only for acts jure imperii (governmental Organizations Immunities of the United Nations)
acts) but not for acts jure gestionis (trading and commercial acts).
o US v. Ruiz – A state may be said to have descended to the VIENNA CONVENTION ON DIPLOMATIC RELATIONS
level of an individual and can thus be deemed to have (Those in Bernas and discussed in class)
tacitly given its consent to be sued only when it enters into
business contracts. Article 1. Diplomatic representatives:
o It does not apply where the contract relates to the exercise 1. Head of the mission 6. Members of the administrative and
of its sovereign functions. 2. Members of the mission technical staff
Ø US v. Reyes – Unauthorized acts of government officials or officers 3. Members of the staff of the mission 7. Members of the service staff
are not acts of the State, and an action against the officials by one 4. Members of the diplomatic staff 8. Private servant
whose rights have been invaded or violated by such acts, for the 5. Diplomatic agent 9. Premises of the mission
protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. Article 3. Functions of the diplomatic mission:
Ø Holy See v. Rosario, Jr. – the logical question is whether the foreign 1. Representing the sending state in the receiving state.
state is engaged in the activity in the regular course of business. 2. Protecting in the receiving state the interests of the sending state and of its nationals,
o If not, the particular transaction must then be tested by its within the limits permitted by international law.
nature. If the act is in pursuit of a sovereign activity, or an 3. Negotiating with the government of the receiving state.
incident thereof, then it is an act jure imperii. 4. Ascertaining by all lawful means conditions and developments in the receiving state,
o In the Philippines, to claim sovereign immunity, the and reporting thereon to the government of the sending state.
practice is for the foreign government or the international 5. Promoting friendly relations between the sending state and the receiving state, and
organization to first secure an executive endorsement of developing their economic, cultural and scientific relations.
its claim of sovereign or diplomatic immunity.
(2) Immunity of Ø Immunity of head of state – Article 4. The receiving state may at any time, and without having to explain its decision, notify
representatives, o The sitting head of state is absolutely immune. the sending state that the head of mission et. al. is persona non grata or is not acceptable.
diplomats or o Immunity ratione materiae (from prosecution) applies not
consuls only to ex-heads of state and ex-ambassadors but to all Article 9. A person may be declared non grata or not acceptable before arriving in the territory of
state officials who have been involved in carrying out the the receiving state.
functions of the state.
§ Fr. B. commented that this was inconsistent with Article 22.
the Torture Convention, especially in the 1. GENERAL RULE: Premises of the mission shall be inviolable – agents of the receiving
Pinochet case, because then Pinochet and all state cannot enter them.
those who directly did the torturing would all be o EXCEPTION: with the consent of the head of the mission.
entitled to immunity. He believes immunity 2. Receiving state must protect the premises of the mission against any intrusion or
should not have applied because Pinochet was damage or disturbance.
not acting in any capacity which gives rise to 3. Premises, furniture therein, etc. shall be immune from search, reacquisition, attachment
immunity from prosecution because his actions or execution.
were contrary to law.

14 YAP, K. | ATENEO LAW

Article 23.
1. Sending state and head of mission shall be exempt from all dues and taxes in respect
of the premises of the mission.
2. Exemption shall not apply to dues and taxes payable under the law of the receiving state
by persons contracting with the sending state or head of the mission.
Article 24. The archives and documents of the mission shall be inviolable.
Article 27.
1. Receiving state shall permit and protect free communication on the part of the mission
for all official purposes.
o The mission may install and use a wireless transmitter only with the consent
of the receiving state.
2. Official correspondence (relating to the mission and its functions) shall be inviolable.
3. Diplomatic bag shall not be opened or detained.
o Its contents must bear visible external marks of their character and may
contain only diplomatic documents or articles intended for official use.
4. Diplomatic courier shall be protected by the receiving state.
Article 29. The person of a diplomatic agent shall be inviolable. He shall not be liable to any form
of arrest or detention.
Article 30.
1. Private residence of a diplomatic agent shall enjoy the same inviolability and protection
as the premises of the mission.
2. GR: His papers, correspondence, and property shall likewise enjoy inviolability.
o EX: Article 31 (3)
Article 31.
1. GR: Diplomatic agent shall enjoy immunity from criminal, civil and administrative
jurisdiction.
o EX:
1. Real action relating to private immovable property situated in the
territory of the receiving state.
§ EX TO EX: When he is holding it on behalf of the sending
state and for the purposes of the mission.
2. 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.
3. Action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving state outside his official
functions.
2. Diplomatic agent is not obliged to give evidence as a witness.
3. GR: No execution may be taken against a diplomatic agent.
o EX: The exceptions to No. 1.
4. Immunity of diplomatic agent from the jurisdiction of the receiving state does not exempt
him from the jurisdiction of the sending state.
Article 32.
1. Immunity from jurisdiction of diplomatic agents and under Article 37 may be waived by
the sending state.
2. Waiver must be express.
3. Initiation of proceedings by a diplomatic agent enjoying immunity under Article 37 shall
preclude him from invoking immunity in respect of any counterclaim directly connected
with the principal claim.
4. Waiver of immunity in civil or administrative cases 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.
15
Article 33.
1. GR: Diplomatic agent shall, with respect to services rendered for the sending state, be
exempt from social security provisions of the receiving state.
2. GR: The same exemption applies to private servants in the sole employ of a diplomatic
agent.
o EX:
1. They are nationals of or permanently resident in the receiving state.
2. They are covered by the social security provisions which may be in
force in the sending state or a third state.
Article 34.
1. GR: Diplomatic agent shall be exempt from all dues and taxes.
o EX:
1. Indirect taxes normally incorporated in the price of goods or
services.
2. Dues and taxes on private immovable property situated in the
territory of the receiving state.
§ EX TO EX: When held on behalf of the sending state for
the purposes of the mission.
3. Estate, succession or inheritance duties levied by the receiving
state.
4. Dues and taxes on private income having its source in the receiving
state and capital taxes on investments made in commercial
undertakings in the receiving state.
5. Charges levied for specific services rendered.
6. Registration, court or record fees, mortgage dues and stamp duty,
with respect to immovable property.
Article 36.
1. Exemption from customs duties of:
a. Articles for the official use of the mission.
b. Articles for the personal use of a diplomatic agent or member of his family
forming part of his household.
2. GR: Personal baggage of a diplomatic agent shall be exempt from inspection.
o EX: Serious grounds for presuming that it contains articles not covered by the
exceptions, or those prohibited by law or controlled by the quarantine
regulations of the receiving state.
Article 37.
1. GR: Members of the family of a diplomatic agent forming part of his household shall
enjoy the privileges and immunities specified in Articles 29 to 36.
o EX: When they are nationals of the receiving state.
2. Members of the administrative and technical staff of the mission and members of their
families forming part of their households shall enjoy the immunities under Articles 29 to
35.
o EX: When they are nationals of the receiving state.
3. Members of the service staff of the mission shall enjoy immunity in respect of acts
performed in the course of their duties, and exemption from dues and taxes on the
emoluments received by reason of their employment, and those under Article 33.
o EX: When they are nationals of the receiving state.
4. Private servants of members of the mission shall be exempt from dues and taxes on the
emoluments they receive by reason of their employment.
o EX: When they are nationals of the receiving state.
YAP, K. | ATENEO LAW
Article 38.
1. Diplomatic agent who is a national of or permanently resident in the receiving state shall
enjoy only immunity from jurisdiction, and inviolability in respect of official acts
performed in the exercise of his functions, and those granted by the receiving state.
2. Other members of the staff of the mission and private servants who are nationals of or
permanently residents in the receiving state shall enjoy privileges and immunities only
to the extent admitted by the receiving state.
Article 39.
1. Every person entitled to privileges and immunities shall enjoy them from the moment he
enters the territory of the receiving state on proceeding to take up his post.
o Or, if already in its territory, from the moment when his appointment is notified
to the Ministry of Foreign Affairs or such other ministry as may be agreed.
2. Such shall normally cease at the moment when he leaves the country, or on expiry of a
reasonable period in which to do so.
o With respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist.
VIENNA CONVENTION ON CONSULAR RELATIONS
(Those in Bernas and discussed in class)
Article 5. (Summarized) Consular Functions
1. Protecting in the receiving state the interests of the sending state and of its nationals.
2. Development of commercial, economic, cultural and scientific relations.
3. Issuing passports and travel documents to nationals of the sending state, and visas or
appropriate documents to persons wishing to travel to the sending state.
4. Acting as notary and civil registrar, provided that there is nothing contrary thereto in the
laws and regulations of the receiving state.
5. Representing nationals of the sending state before the tribunals and other authorities of
the receiving state.
6. Transmitting judicial and extrajudicial documents or executing letters rogatory or
commissions.
7. Rights of supervision and inspection in respect of vessels having the nationality of the
sending state, and of aircraft registered in that state, and in respect of their crews.
8. Performing any other functions entrusted to a consular post by the sending state.
Article 34. Freedom of Movement
o GR: The receiving state shall ensure freedom of movement and travel in its territory to
all members of the consular post.
§ EX: Subject to its laws and regulations concerning zones, entry into which is
prohibited or regulated for reasons of national security.
2. If he so requests, the competent authorities of the receiving state shall inform the
consular post if a national is arrests or committed to prison or is detained in any other
manner.
3. Consular officers shall have the right to visit a national in prison, custody or detention.
Article 41. Personal Inviolability of Consular Officers
o GR: Consular officers shall not be liable to arrest or detention pending trial.
§ EX: In case of a grave crime and pursuant to a decision by the competent
judicial authority.
Article 42. Notification of arrest, detention or prosecution
o In the event of the arrest or detention, pending trial, of a member of the consular staff,
or of criminal proceedings being instituted against him, the receiving state shall promptly
notify the head of the consular post.
Article 43. Immunity from Jurisdiction
o GR: Consular officers and employees shall not be amendable to the jurisdiction of the
judicial or administrative authorities of the receiving state in respect of acts performed
in the exercise of consular functions.
§ EX:
1. Arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or
impliedly as an agent of the sending state.
2. By a third party for damage arising from an accident in the receiving
state caused by a vehicle, vessel or aircraft.
Article 44. Liability to Give Evidence
o Members of the consular post may be called upon to attend as witnesses in the course
of judicial or administrative proceedings.
o Consular officers may decline and no coercive measure or penalty may be applied to
him.
o Consular employees or members cannot decline to give evidence.
Article 45. Waiver of Privileges and Immunities
o Sending state may waive, with regard to a member of the consular post, any of the
privileges and immunities provided for in Articles 41, 43 and 44.

Article 35. Freedom of Communication

1. Receiving state shall permit and protect free communication on the part of the consular
mission for all official purposes.
o The mission may install and use a wireless transmitter only with the consent
of the receiving state.
2. Official correspondence (relating to the consular mission and its functions) shall be
inviolable.
3. Consular bag shall not be opened or detained.
o Its contents must bear visible external marks of their character and may
contain only consular documents or articles intended for official use.

Article 36. Communication and Contact with Nationals of the Sending State
1. Consular officers shall be free to communicate with nationals of the sending state and
to have access to them.

16 YAP, K. | ATENEO LAW

 STATE RESPONSIBILITY PEACEFUL SETTLEMENT OF DISPUTES

Ø In traditional international law, individuals are generally considered objects, not subjects, of Ø Dispute – a disagreement on a point of law or fact, a conflict of legal views or interest between
international law – they possess neither international legal rights which they could assert on two persons.
their own. o NOT a disagreement if its resolution would have no practical effect on the
o Hence, whatever wrongs may be committed against them can be redressed only relationship between the parties.
by states or organizations with international personality. Ø GR: There is no general obligation to settle disputes.
Ø Standards in treatment: o EX: Art. 33 of the UN Charter – the parties to any dispute, the continuance of which
o Doctrine of national treatment (a.k.a. equality of treatment – aliens are treated in is likely to endanger the maintenance of international peace and security, shall,
the same manner as nationals of the state where they reside. first of all, seek a solution by negotiation, enquiry, mediation,, conciliation,
o Minimum International Standard – however harsh the municipal laws might be arbitration, judicial settlement, resort to regional agencies or arrangements, or
against a state’s own citizens, aliens should be protected by certain minimum other peaceful means of their own choice.
standards of humane protection.
Ø Doctrine of State Responsibility – if a state violates a customary rule of international law or a Classifications of Peaceful Means of Settling
treaty obligation, it commits an “internationally wrongful act” for which it must be held liable.
o Elements of Internationally Wrongful Acts: Negotiation Ø A give-and-take process of looking for a win-win
a. Attributable to the state under international law; and solution.
b. Constitutes a breach of an international obligation of the state. Ø Preliminary step – good offices – when a neutral third
• There is a breach of an international obligation by a state party tries to bring the two disputants together for
when an act of that state is not in conformity with what is negotiation.
required of it by that obligation, regardless of its or character. Mediation Ø Involves assistance by third parties who either act as
o Doctrine of Objective Responsibility a state is internationally responsible for the bridge between parties, who do not meet, or who may
acts of state officials or organs outside of their competence if the officials or organs sit with the disputants to chair meetings, suggest
acted at least to all appearances as competent officials or organs, or used powers solutions, cajole, etc.
or methods appropriate to their official capacity. Non- Ø The mediator must be approved by BOTH parties.
Ø Preliminary Objections (defenses against state responsibility) Judicial
1. Lack of nationality link Inquiry Ø A fact-finding done by a designated group of individuals
2. Failure to exhaust national remedies – applies only to cases found on diplomatic or an institution.
protection or on injury to aliens. Ø When undertaken with the consent of the parties, it
Ø Reparation – the state is responsible to make full reparation of the injury caused by the frequently resolves disputes based solely on questions
internationally wrongful act. of fact.
o Injury – any damage, whether material or moral, arising in consequence of the Conciliation Ø A formal technique whereby the parties agree to refer
international wrongful act of a state. controversies to an individual, a group of individuals or
an institution to make findings of fact and
recommendations.
Arbitration Ø The binding settlement of a dispute on the basis of law
by a non-permanent body designated by the parties.
Ø GR: States cannot be required to submit to arbitration.
o EX: When there is a previous agreement
making arbitration compulsory.
Ø Types of arbitral agreements:
1. An arbitration clause that is incorporated as
part of a treaty;
2. Treaties whose sole function is to establish
methods for the arbitration of disputes.
Quasi- 3. Ad-hoc arbitral agreements.
Judicial Ø GR: Arbitral tribunals apply international law.
o EX: When the parties specify that some other
law should be applied.
Ø Domestic courts may refuse to give recognition to
awards given by foreign arbitral tribunals under the
following grounds: (CONVENTION ON THE RECOGNITION
AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS)
1. Agreement to arbitrate was not valid under
applicable law;
2. Party against which the award was rendered
did not receive proper notice of the

17 YAP, K. | ATENEO LAW

 proceedings or was otherwise not afforded an
opportunity to present its case;
3. Award deals with matters outside the terms of
the agreement to arbitrate;
4. Constitution of the arbitral tribunal or the
arbitral procedure was contrary to the
agreement of the parties or to the law of the
state where the arbitration took place;
5. Award has not yet become binding on the
parties, or has been suspended or set aside
by a competent court in the state where it was
made;
6. Subject matter of the controversy is not
capable of settlement by arbitration; or
7. Recognition or enforcement would be public
policy.
International Ø All UN members are ipso facto parties to the STATUTE
Court of Justice OF THE INTERNATIONAL COURT OF JUSTICE. However, this
does not mean acceptance jurisdiction of the Court.
o It means that the state MAY accept the
jurisdiction of the Court.
Ø GR: States cannot be compelled to submit disputes to
international adjudication.
o EX: When they have consented to it either
before a dispute has arisen or thereafter.
Ø The ICJ has two jurisdictions:
o Contentious jurisdiction – minimum of two
parties, and involves almost cases.
o Advisory jurisdiction – minimum of one party;
non-binding; the state party is only asking for
an advisory opinion.
Ø Provisional Measures (Art. 41) – the Court shall have
the power to indicate, if it considers that circumstances
so require, any provisional measures which ought to be
Judicial taken to preserve the respective rights of either party.
Ø Intervention (Art. 62) – should a state consider that it
has an interest of a legal nature which may be affected
by the decision in the case, it may submit a request to
the Court to be permitted to intervene.
Ø Obligation to comply with decisions:
o (Art. 59) The decision has no binding force,
except between the parties and in respect to
that particular case.
o (Art. 60) Judgment is final and without appeal.
There may only be clarification upon request
of any party.
o (Art. 61) Revision of judgment may be made
only when it is based on the discovery of
some fact of such nature as to be a decisive
factor, which fact was, when the judgment
was given, unknown to the Court and also to
the party claiming revision, except when it
was not due to negligence.
18
THE USE OF FORCE SHORT OF WARD
Ø Art. 2(4) of the UN Charter – all members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.
o The text does not use the term “war” because what is prohibited is not merely the
use of force against the territorial integrity or political independence of any state,
but also the use of force in any other manner inconsistent with the purposes of the
UN.
o The prohibition on the use of force is both conventional law and customary
international law.
o Note that the charter likewise prohibits even the THREAT of force.
Ø In the Corfu Channel case, the Court ruled that even the theory of INTERVENTION for
facilitating the task of the international tribunal, or as a method of self-protection or self-help,
is unacceptable as a line of defense. Between independent states the respect for territorial
sovereignty is an essential foundation for international relations.
Ø GR: Member states are prohibited from the use of force.
o EX: Right to self-defense (Art. 51) – nothing in the present charter shall impair the
inherent right of an individual or collective self-defense if an armed attack occurs
against a Member of the UN, until the Security Council has taken measures
necessary to maintain international peace and security.
§ Such measures shall be reported immediately to the Security Council.
Ø Those who assert the right to defend the nationals abroad argue that such stems from the
right to self-defense in Art. 51 since population is an essential element of statehood.
Ø The prevailing opinion is that humanitarian intervention in response to massive human rights
violations in other states violates international law, unless authorized by the Security Council.
Traditionally Allowable Coercive Measures
(1) Retorsion Ø Any of the forms of counter-measures in response to an
unfriendly act. (Ex. Shutting of ports to vessels of unfriendly
states, revocation of tariff concessions not guaranteed by treaty,
or the display of naval forces near the waters of an unfriendly
state)
(2) Reprisal Ø Any kind of forcible measure whereby one state seeks to exercise
a different effect or obtain redress or satisfaction, directly or
indirectly, for the consequences of the illegal act of another state
which has refused to make amends for such illegal acts.
Ø MUST be preceded by an unsatisfied demand for reparation.
Ø Limitedly applies to situations likely to cause disruption of peace.
Ø Unlike retorsion, the acts, standing by themselves, would
normally be illegal.
(3) Embargo Ø Consists of seizure of vessels even in the high seas – applies to
specific products or areas. (ie., Not giving them your products)
Ø Pacific embargo – when a state keeps its own vessels for fear
that it might find their way in foreign territory.
(4) Boycott Ø A form of reprisal which consists of suspension of trade or
business relations with the nationals of an offending state.
Ø But it is argued to be a form of economic aggression which should
be prohibited by law.
(5) Non-intercourse Ø Suspension of all commercial relations with a state.
(6) Pacific Blockade Ø Naval operation carried out in time of peace whereby a state
prevents access to or exit from particular ports or portions of the
coast of another state for the purpose of compelling the latter to
yield to demands made by the blockading state.
YAP, K. | ATENEO LAW