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 letredprovision, 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. Protection of the interests of the sending State and its nationals in the receiving
State.
2. Promotion of the commercial, economic, cultural, and scientific relations of the
sending and receiving States.
3. Observation of the conditions and developments in the receiving State and
report the same to the sending State.
4. Issuance of passports and other travel documents to nationals of the sending
State and visas or appropriate documents to persons wishing to travel to the
sending State.
5. Supervision and inspection of vessels and aircraft of the sending State.

Sources of authority of consuls

1. Letter patent or letter de provision Which is the commission issued by the

sending State, and
2. Exequatur Which is the permission given them by the receiving State to
perform their functions therein.

Immunity of consuls

Consuls enjoy their own immunities and privileges but not to the same extent as
those enjoyed by the diplomats. Like diplomats, consuls are entitled to:
1. Inviolability of their correspondence, archives and other documents
2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed in their official capacity; and
4. Exemption from certain taxes and customs duties

Liabilities of consuls

1. Arrest and punishment for grave offenses; and

2. May be required to give testimony, subject to certain exceptions.

NOTE: Members of a consular post are under no obligation to give evidence on the
following situations:
a. Concerning matters connected with the exercise of their functions
b. To produce official correspondence and documents
c. To give evidence as expert witness with regard to the law of the sending
State

Immunity of consular offices

Extent: With respect to that part where the consular work is being performed;

May be expropriated by the receiving state?

Yes, for purposes of national defense or public utility.

NOTE: With respect to expropriation by the receiving State, steps shall be taken
to avoid impeding the performance of consular functions, and prompt, adequate
and effective compensation shall be paid by the sending State.

Diplomatic immunity vs. Consular immunity

 BASIS DIPLOMATIC
Premises of the mission
includes the building or
parts of building and the
Scope as to buildings land irrespective of the
and premises ownership used for the
purpose of the mission
including the residence of
the head of mission
GR: The agents of the
receiving state may not
enter the premises of the
mission
On entry of agents of
the receiving state XPN: Consent of the head of
the mission
Personal baggage of a
diplomatic agent shall not
be opened
As to inviolability of
baggage
Not obliged to give evidence
As a witness before as a witness
the court
Differences in the privileges or immunities of diplomatic envoys and consular
officers from the civil and criminal jurisdiction of the receiving State
1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction
XPNs:
CONSULAR
Consular premises includes
the buildings or parts of
buildings and the land
irrespective of ownership
used exclusively for the
purposes of consular posts
GR: The agents of the
receiving state may not enter
the consular premises
XPN: Consent of the head of
the consular post.
Consent is assumed in case
of fire or other disasters
requiring prompt protective
action
Consular bag shall not be
opened. It may be requested
that the bag be opened in
their presence by an
authorized representative of
the receiving state if they
have serious reason to
believe that the bag contains
objects of other articles,
documents, correspondence
or articles
May be called upon to attend
as a witness; if declined, no
coercive measure or penalty
may be applied
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
purpose of the mission;
b. An action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as private person and not on behalf of
the sending State;
c. An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside of his official functions (Vienna
Convention of Diplomatic Relations, Art. 31).

2. A consular officer does not enjoy immunity from the criminal jurisdiction of the
receiving State and are not amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of acts performed in
the exercise of consular functions.

However, this does not apply in respect of a civil action either:

1. Arising out of a contract concluded by a consular officer in which he did not
enter expressly or impliedly
2. By a third party for damages arising from an accident in the receiving State
caused by a vehicle, vessel or aircraft (Vienna Convention on the Consular
Relations, Arts. 41 and 43).

Grounds for termination of consular office

(2D-2W-RN)

1. Death of consular officer

2. Recall
3. Dismissal
4. Notification by the receiving State to the sending State that it has ceased to
consider as member of the consular staff
5. Withdrawal of his exequatur by the receiving State.
6. War outbreak of war between his home State and the receiving State.

Termination of diplomatic relations

Grounds for termination of diplomatic relations under municipal law (RADAR)

1. Resignation
2. Accomplishment of the purpose
3. Death
4. Abolition of the office
5. Removal

Grounds for termination of diplomatic relation under international law

1. War Outbreak between the sending and the receiving State.

2. Extinction of either the sending State or the receiving State.
3. Recall Demanded by the receiving State when the foreign diplomat becomes
persona non grata

Termination of diplomatic relations does not terminate consular relations

between the sending and receiving States

Consuls belong to a class of State agents distinct from that of diplomatic officers.
They are not clothed with diplomatic character and are not accredited to the
government of the country where they exercised their consular functions; they deal
directly with local authorities

They do not represent their State in its relations with foreign States and are not
intermediaries through whom matters of State are discussed between governments.
Consuls look mainly after the commercial interest of their own State in the territory
of a foreign State.