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DIPLOMATIC and CONSULAR LAW Right of Legation DIPLOMATIC AND CONSULAR LAW Right of legation/ Right of Diplomatic Intercourse It is the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is governed by the Vienna Convention on Diplomatic Relations (1961). The exercise of this right is one of the most effective ways of facilitating and promoting intercourse among nations. Through the active right of sending diplomatic representatives and the passive right of receiving them, States are able to deal more directly and closely with each other in the improvement of their mutual intercourse. NOTE: As the right of legation is purely consensual, the State is not obliged to maintain diplomatic relations with other States. If it wants to, a State may shut itself from the rest of the world, as Japan did until the close of the 19th century. Disadvantage: A policy of isolation would hinder the progress of a State since it would be denying itself of the many benefits available from the international community. Agents of diplomatic intercourse 1. Head of State 2. Foreign secretary or minister 3. Members of diplomatic service 4. Special diplomatic agents appointed by head of the State 5. Envoys ceremonial Diplomatic corps It is a body consisting of the different diplomatic representatives who have been accredited to the same local or receiving State. It is headed by a doyun de corps, who, by tradition, is the oldest member within the highest rank or, in Catholic countries, the papal nuncio. Functions of a diplomatic mission (Re-P-Pro-N-A-R) 1. Represent sending State in receiving State 2. Protect in receiving State interests of sending State and its nationals 3. Negotiate with government of receiving State 4. Promote friendly relations between sending and receiving States and developing their economic, cultural, and scientific relations 5. Ascertain by all lawful means conditions and developments in receiving State and reporting thereon to government of sending State 6. In some cases, Represent friendly governments at their request. Classes of heads of a diplomatic mission 1. Ambassadors or nuncios- accredited to Heads of State and other heads of missions of equivalent rank. 2. Envoys ministers and internuncios- accredited to heads of State. 3. Charge d’ affaires- accredited to ministers of foreign affairs. NOTE: The appointment of diplomats is not merely a matter of municipal law because the receiving State is not obliged to accept a representative who is a persona non grata to it. Indeed, there have been cases when duly accredited diplomatic representatives have been rejected, resulting in strained relations between the sending and receiving State. Persona non grata In international law and diplomatic usage means a person not acceptable (for reasons peculiar to himself) to the court or government to, which it is proposed to accredit him in the character of an ambassador or minister. Agreation It is a practice of the States before appointing a particular individual to be the chief of their diplomatic mission in order to avoid possible embarrassment. It consists of two acts: 1. The inquiry, usually informal, addressed by the sending State to the receiving State regarding the acceptability of an individual to be its chief of mission; and 2. The agreement, also informal, by which the receiving State indicates to the sending State that such person, would be acceptable. Letter of credence It is the document by which the envoy is accredited by the sending State to the foreign State to which he is being sent. It designates his rank and the general object of his mission, and asks that he be received favorably and that full credence be given to what he says on behalf of his State. Letter Patent The appointment of a consul is usually evidenced by a commission, known sometimes as letter patent or letred’provision, issued by the appointing authority of the sending State and transmitted to the receiving State through diplomatic channels. Diplomatic Immunity (2001, 2005 Bar) Nature Diplomatic immunity is essentially a political question and the courts should refuse to look beyond the determination by the executive branch. Q: Besides the head of the mission, who can enjoy diplomatic immunities and privileges? A: Diplomatic suite or retinue which consist of: 1. Official staff- itis made up of the administrative and technical personnel of the mission, including those performing clerical work, and the member of their respective families 2. Non-official staff- composed of the household help, such as the domestic servants, butlers, and cooks and chauffeurs employed by the mission NOTE: As a rule, however, domestic servants enjoy immunities and privileges only to the extent admitted by the receiving State and insofar as they are connected with the performance of their duties. Privileges and immunities of diplomatic mission 1. Personal inviolability – Members of diplomatic mission shall not be liable for any form of arrest or imprisonment 2. Inviolability of premises – Premises, furnishings and means of transport shall be immune from search, seizure, attachment or execution. 3. Archives or documents shall be inviolable 4. Diplomatic agents are immune from criminal, civil or administrative liability. 5. Receiving State shall protect official communication and official correspondence of diplomatic mission. 6. Receiving State shall ensure all members of diplomatic mission freedom of movement and travel. 7. A diplomatic agent is exempted to give evidence as a witness. 8. Exemption from general duties and taxes including custom duties with certain exceptions. 9. Use of flag and emblem of sending State on premises of receiving State. XPNs to the privileges and immunities of diplomatic representatives 1. Any real action relating to private immovables situated in the territory of the receiving State unless the envoy holds the property in behalf of the sending State. 2. Actions relating to succession where diplomatic agent is involved as executor, administrator, heirs or legatee as a private person and not on behalf of the sending State 3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions Modes of waiving diplomatic immunity and privileges 1. Expressly by the sending State; 2. Impliedly, as when the person entitled to the immunity from jurisdiction commences litigation in the local courts and thereby opens himself to any counterclaim directly connected with the principal claim. NOTE: Waiver of immunity from jurisdiction with regard to civil and administrative proceedings shall not be held to mean implied waiver of the immunity with respect to the execution of judgment, for which a separate waiver shall be necessary. Q: The U.S. Ambassador from the Philippines and the American Consul General also in the Philippines quarreled in the lobby of Manila Hotel and shot each other. May Philippine courts take jurisdiction over them for trial and punishment for the crime they may have committed? A: The Ambassador is immune from prosecution for all crimes committed by him whether officially or in his private capacity. The consul is immune from criminal prosecution only for acts committed by him in connection with his official functions. The Philippine courts can take jurisdiction over the Consul but not over the Ambassador Q: The Ambassador of State X to the Philippines bought, in the name of his government, two houses and lots at ForbesPark, Makati. One house is used as the chancery and residence of the ambassador, and the other as quarters for nationals of State X who are studying in the University of Santo Tomas. The Registrar of Deeds refused to register the sale and to issue Transfer Certificates of Title in the name of State X on the ground of the prohibition of the Constitution against the alienation of lands in favor of aliens. Is his refusal justified? A: The prohibition in the Constitution against alienation of lands in favor of aliens does not apply to alienation of the same in favor of foreign governments to be used as chancery and residence of its diplomatic representatives. The receiving State is under obligation to facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission, or to assist the latter in obtaining accommodation in some other way. Therefore, the refusal of the Register of Deeds to register the sale and the issuance of TCT in the name of State X is unjustified. However, in so far as the house and lot to be used as quarters of the nationals of State X who are studying in the University of Santo Tomas are concerned, the Register of Deeds correctly refused registration. Here, the prohibition in the constitution against the transfer of properties to parties other than the Filipino citizens or corporation 60% of the capital of which is owned by such citizens should be followed. Exequatur An authorization from the receiving State admitting the head of a consular post to the exercise of his functions. Thus, an appointee cannot start performing his function unless the receiving State issues an exequatur to him. Diplomats vs. Consuls Diplomats Are concerned with political relations of States. They are not concerned with political matters and attend Consuls rather to administrative and economic issues. Kinds of consul 1. Consules missi – Professional or career consuls who are nationals of the sending State and are required to devote their full time to the discharge of their duties 2. Consules electi – May or may not be nationals of the sending State and perform their consular functions only in addition to their regular callings NOTE: Examples of regular callings include acting as notary, civil registrar and similar administrative capacities and protecting and assisting the nationals of the sending State. Duties of consuls (P-Ob- Prom-Is-Su) 1.
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