Diplomatic immunity

See - Confusing discussion on diplomatic immunity | Inquirer Opinion

"x x x.

There are actually two international conventionsthe Vienna Convention on Diplomatic Relations
(1961) and the Vienna Convention on Consular Relations (1963)and a third set of immunities
involved. The first convention governs the status of diplomats (ambassadors, envoys, ministers,
diplomatic secretaries and attachs), while the second covers consular officers (consuls general,
consuls, vice consuls and consular agents).

And there are two types of immunities involved: absolute or complete immunity (a diplomat is
immune from all legal proceedings in his or her country of assignment) and limited immunity (a
person is immune only with respect to those actions performed in connection with his or her
consularread: officialduties). To simplify, if one lends money to a diplomat and the latter refuses
to pay, the lender cannot sue the diplomat in a local court. (The lender can bring action in the
diplomats home country.) By way of contrast, a consular officer under the same circumstances can
be sued in a local court because contracting the loan is not part of his or her official duties.

There is a third set of immunities which was linked to the current dispute in Tarra Quismundos
article, When does diplomatic immunity end? (News, 10/23/15). The article discussed a case
involving an Asian Development Bank (ADB) economist. The immunity in this instance is not covered
by the two Vienna conventions cited earlier in this article. Rather, the immunity in the ADB case is
governed by a specific headquarters agreement between the Philippines and the ADB.

One must note that the immunities and privileges of all personnel working in UN agencies and UN-
affiliated organizations are governed by the so-called headquarters agreements between the host
government and the UN agency. Thus, as an example, the United Nations Organization (New York,
United States), United Nations Education, Scientific, and Cultural Organization (Paris, France), World
Trade Organization (Geneva, Switzerland ), UN Economic and Social Commission for Asia and the
Pacific (Bangkok, Thailand ) etc., just like the ADB, all have headquarters agreements with the host
countries. The immunities and privileges of the staff of the UN bodies cited are defined in these
agreements, not in the Vienna conventions.

One can state as a general rule, that only the highest-ranking officials of each international
organization are conferred absolute immunity in these agreements. The lower-ranking personnel of
these organizations are conferred only limited immunitythat is, if the dispute arose in the
performance of their official duties. These international agencies are huge bureaucracies, hence
complete immunity to all their personnel is out of the question.

The ADB case cited by Quismundo involves an economist. He is way down in the ADB organization
and must have enjoyed only limited immunity, hence the Supreme Court decision. The Erick Shcks
case is governed by the Vienna Convention on Diplomatic Relations. Shcks was accredited as a
diplomat to the Philippines by Panama.

The Chineses case in Cebu has an added complexity. It appears that the Philippines had signed a
consular convention with China conferring absolute immunity to the consular officers of the two
countries. In other words, it is not the immunity under the Vienna Convention on Consular Relations
which applies in that case, but the immunity under the Vienna Convention on Diplomatic Relations.
Under the circumstances, the Philippines has to yield jurisdiction to the Chinese government.
We must, however, emphasize that this agreement we concluded with the Chinese government is
deeply flawed diplomacy. China, in common with other communist countries, uses its diplomatic and
consular service as an arm of its security service.

The defunct Union of Soviet Socialist Republics, in its early years, initiated such agreements with
many countries, conferring diplomatic or absolute immunities on consular officers instead of the
limited immunity then in vogue. Later on, most countries declined to conclude similar conventions
when they found out that such agreements placed Soviet consular officers doing espionage beyond
local jurisdiction.

In the Cebu case, had we not concluded such agreement with China, the two errant officials could
have been tried and convicted under Philippine law. During their prolonged incarceration in our
country, they could have supplied a gold mine of information on Chinas clandestine activities in the
Philippines. One cannot help but note the frantic actions of Beijing in this affair. It sent a big number
of security officers and a special chartered flight to Cebu. Beijing wanted to extricate their errant
consular officials asap before they could start spilling the beans.

The Philippines should abrogate this one-sided consular convention with China. We do not use our
consular service as an arm for clandestine overseas operations. As our dispute with China on the
West Philippine Sea escalates, we will be at a big disadvantage in the conduct of our foreign relations
with China under this agreement.

Hermenegildo C. Cruz was accredited as Philippine ambassador to the United Nations in 1984-1986.

IMMUNITY FROM SUIT OF AN INTERNATIONAL

ORGANIZATION AND ITS OFFICERS
By: Atty.Fred | November 23, 2009 in Elections and Constitutional Law

What is the concept of sovereign immunity in international law?

There are two conflicting concepts of sovereign immunity, according to the Supreme Court: (a) Classical or
absolute theory a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign; and (b) 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 acts or acts jure gestionis.
What is the Constitutional basis for the grant of immunity to foreign governments/embassies, the
United Nations (UN) and other international organizations in the Philippines?

The Constitution provides (Art. II, Sec. 2) that the Philippines adopts the generally accepted principles of
international law. Rules of international law form part of Philippine law under the doctrine of incorporation.
Also, among the oldest and most fundamental maxims of international law is pacta sunt servanda, which
requires the parties to a treaty to keep their agreement therein in good faith.

What is the treaty that governs the sovereign immunity of diplomats and other state agents?

The Vienna Convention on Diplomatic Relations, which was ratified on 18 April 1961, is a codification of
centuries-old customary law affording protection to foreign diplomats. The Convention lists the classes of
heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state, (b)
envoys, ministers or internuncios accredited to the heads of states; and (c) charges d affairs accredited to
the ministers of foreign affairs. Comprising the staff of the (diplomatic) mission are the diplomatic staff, the
administrative staff and the technical and service staff.

Does the immunity apply even if a person is not the head of the diplomatic mission or part of the
staff?

Immunity can still attach under the generally-accepted principle in international law that a State cannot be
sued in the courts of a foreign state. The immunity attaches not just to the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting
in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent.

How does the Philippine government treat the Holy See or Vatican?

The Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since
1957. This appears to be the universal practice in international relations.

What is the applicable treaty for immunities to the United Nations (UN) and its agencies?

The Philippines is a member of the UN and a party to the Convention on the Privileges and Immunities of
the Specialized Agencies of the United Nations. It adheres to the doctrine of immunity granted to the UN and
its specialized agencies. These treaties have the force and effect of law here in the Philippines.

What are examples of specialized agencies of the UN?

Among the UN specialized agencies, the immunity of which were upheld by the Philippine Supreme Court:
World Health Organization (WHO) and the United Nations Revolving Fund for Natural Resources Exploration
(UNRFNRE).

What are examples of international organizations, other than the UN, that have been accorded
immunity in the Philippines?

1. Southeast Asian Fisheries Development Center (SEAFDEC), which was established by Burma,
Cambodia, Indonesia, Japan, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam, for the purpose
of contributing to the promotion of the fisheries development in Southeast Asia.
2. International Rice Research Institute (IRRI), which enjoys immunities accorded to international
organizations. Presidential Decree No. 1620 provides:

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and
administrative proceedings, except insofar as that immunity has been expressly waived by the Director-
General of the Institute or his authorized representatives.

3. International Catholic Migration Commission (ICMC), which was accredited by the Philippine Government
to operate the refugee processing center in Morong, Bataan. Its a non-profit agency involved in international
humanitarian and voluntary work.

4. Asian Development Bank (ADB). Being an international organization that has been extended diplomatic
status, the ADB is independent of the municipal law. The Supreme Court, while cognizant of this immunity,
also found that the immunity applies only to acts performed in an official capacity. Section 45 (a) of
the Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines
Regarding the Headquarters of the Asian Development Bankprovides:

Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing
missions for the Bank, shall enjoy the following privileges and immunities:

(a) Immunity from legal process with respect to acts performed by them in their official capacity except when
the Bank waives the immunity.

The imputation of theft is ultra vires and cannot be part of official functions. It cannot possibly be covered by
the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in
the name of official duty.

What is the rationale for the grant of immunity to international organizations?

The objective for the grant of immunity from local jurisdiction is to avoid the danger of partiality and
interference by the host country in the internal workings of these international organizations or agencies. It
is intended to shield the organization 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.

What is the remedy of a Filipino citizen in cases where an act is covered by the doctrine of sovereign
or diplomatic immunity?

The remedy is for an aggrieved person to ask the Philippine government to espouse his cause through
diplomatic channels.

Sources: Minucher vs. CA, G.R. No. 142396, 11 February 2003; The Holy See vs. Rosario, Jr., G.R. No.
101949, 1 December 1994; Callado vs. IRRI, G.R. No. 106483, 22 May 1995; ICIC vs. Calleja, G.R. No.
85750, 28 September 1990; DFA vs. NLRC, G.R. No. 113191, 18 September 1996; Liang vs. People, G.R.
No. 125865, 28 January 2000