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Analyn Layao

Gladys Pagulong

Daphne Jade Panes

Immunity from Jurisdiction

- Sovereign Immunity

-Sovereign Immunity is a legal doctrine by which the sovereign or state cannot commit a legal
wrong and is immune from civil suit or criminal prosecution.

-Immunity of Head of State

A head of state is immune from the jurisdiction of a foreign state's courts, at least as to
authorize official acts taken while the ruler is in power.
-Ratione Materiae

This is an immunity granted to people who perform certain functions of state.


The Pinochet Case: Background

- On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as


a result of a military coup that overthrew the then government of President Allende.
- Pinochet was the Commander in Chief of the Chilean Army until 1974 when he
assumed the title of President of the Republic. His presidency lasted until 1990 and
his role as Commander in Chief until 1998. His regime was known for its systematic
and widespread violations of human rights, with allegations of murder, torture and
hostage taking of political opponents.
- In 1998, during a visit to the United Kingdom for medical treatment, Pinochet was
arrested by the English authorities with a view to extraditing him to Spain where a
Spanish judge had issued an international arrest warrant.
- His extradition was, however, not to proceed smoothly as Pinochet applied to have
the arrest warrant quashed on the grounds that as a former Head of State he enjoyed
immunity from criminal proceedings. By a decision of 25 November 1998, the House
of Lords in a 3:2 majority held that Pinochet was not entitled to immunity from
criminal proceedings and could therefore be extradited.

Reason for the Decision:

- The availability under customary international law to a serving or former state official
of immunity ratione materiae from foreign criminal jurisdiction turns on whether the
act at issue was performed in an official capacity.
-State Immunity

The state may not be sued without its consent.

-Par In Parem non Habet Imperium

In public international law, the principle that one sovereign power cannot exercise
jurisdiction over another sovereign power. It is the basis of the act of state doctrine and
sovereign immunity.

-Republic of Indonesia v. Vinzon


G.R. No. 154705, June 26, 2003

- Republic of Indonesia, represented by its Counsellor, Siti Partinah, entered into a


Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade and
Services. The equipment covered by the Maintenance Agreement are air conditioning units
and was to take effect in a period of four years.
- When Indonesian Minister Counsellor Kasim assumed the position of Chief of
Administration, he allegedly found respondent’s work and services unsatisfactory and not in
compliance with the standards set in the Maintenance Agreement. Hence, the Indonesian
Embassy terminated the agreement.
- The respondent claims that the aforesaid termination was arbitrary and unlawful. Hence, he
filed a complaint against the petitioners which opposed by invoking immunity from suit.
- Issues:
- Whether or not the Republic of Indonesia can invoke the doctrine of sovereign immunity
from suit.

- Rulings:

- The Supreme Court ruled that the Republic of Indonesia cannot be deemed to have waived
its immunity to suit. The mere entering into a contract by a foreign state with a private party
cannot be construed as the ultimate test of whether or not it is an act juri imperii or juri
gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment
of a diplomatic mission is an act juri imperii.

The state may enter into contracts with private entities to maintain the premises, furnishings
and equipment of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign
activity when it entered into a contract with the respondent. The maintenance agreement
was entered into by the Republic of Indonesia in the discharge of its governmental functions.
It cannot be deemed to have waived its immunity from suit.
Immunity of the Representatives of States or Diplomatic And Consular Immunities

DIPLOMATIC IMMUNITIES

• The diplomatic representatives who can enjoy immunities in varying degrees are:
• “head of mission”
• “members of mission”
• “members of the staff of the mission”
• “members of diplomatic staff”
• “diplomatic agent”
• “members of administrative and technical staff”
• “members of service staff”
• ”private servant”
The functions of the diplomatic missions are:

• representing the sending State in the receiving State;


• protecting in the receiving State the interest of sending state and of its nationals,
within the limits permitted by international law;
• negotiating with Government of the receiving State;
• ascertaining by all lawful means conditions and developments in the receiving State,
and reporting thereon to the Government of sending state;
• promoting friendly relations between the sending State and the receiving State ,
and developing their economic, cultural and scientific relations.

The following are some of the rights and privileges of the diplomatic mission:

• The premises of the mission shall be inviolable. The agents of the receiving State may
not enter them, except with the consent head of the mission.
• The receiving State is under a special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity.
• The premises of the mission, their furnishings and other property thereon and the
means of transport of the mission shall be immune from search, requisition,
attachment or execution.
• The sending State and the head of the mission shall be exempt from all national,
regional or municipal dues and taxes in respect of the premises of the mission,
whether owned or leased, other than such as represent payment for specific services
rendered.
• The exemption from taxation referred to in this Article shall not apply to such dues
and taxes payable under the law of the receiving State by persons contracting with
the sending State or head of the mission.

• The archives and documents of the mission shall be inviolable at anytime and
anywhere they may be.

• The receiving State shall permit and protect free communication on the part of the
mission for all official purposes. In communicating with the Government and other
missions and consulates of the sending State, wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and messages in code or
cipher. However, the mission may install and use a wireless transmitter only with the
consent of the receiving State.

• The official correspondence of the mission shall be inviolable. Official correspondence


means all correspondence relating to the mission and its functions.

• The diplomatic bag shall not be opened or detained.

• The diplomatic courier, who shall be provided with an official document indicating his
status and the number of packages constituting the diplomatic bag, shall be
protected by the receiving State in the performance of his functions. He shall enjoy
personal inviolability band shall not be liable to any form of arrest or detention.

• The sending State or the mission may designate diplomatic couriers ad hoc. In such
cases the provisions of paragraph 5 of this Article shall also apply, except that the
immunities therein mentioned shall cease to apply when such a courier has delivered
to the consignee the diplomatic bag in his charge

• The person of a diplomatic agent shall be inviolable. He shall not be liable to any form
of arrest or detention. The receiving State shall treat him with due respect and shall
take all appropriate steps to prevent any attack on his person, freedom or dignity.

• The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission.

• His papers, correspondence and, except as provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability.

• Immunities of Diplomatic Agents


• 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,
except in the case of:

• 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;

• 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;

• An action relating to any professional or commercial activity exercised by the


diplomatic agent in the receiving State outside his official functions.

• A diplomatic agent is not obliged to give evidence as a witness.

• The immunity of a diplomatic agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending State.

• Waiver of Immunity

• The immunity from jurisdiction of diplomatic agents and of persons enjoying


immunity under Article 37 may be waived by the sending State.

Consuls and Consular Immunities

• Consul
• A consul is an official representative of the government of one state in
the territory of another, normally acting to assist and protect the
citizens of the consul’s own country, and to facilitate trade and
friendship between the people of two countries. Consuls are not
concerned with political matters but attend rather to administrative
and economic issues such as the issuance of visas.

Difference between the consul and Ambassador


• A consul is distinguished from an ambassador, the latter being a representative from
one head of state to another.
• There can be only one ambassador from one country to another, and his/ her duties
revolve around diplomatic relations between two countries however there may be
several consuls, one in each of several main cities, providing assistance with
bureaucratic issues to both the citizens of the consul’s own country.

Consulate

• Refers to the office of the consul and is usually subordinate to the state’s main
representation in that foreign country, usually an Embassy. It also refers to the
building occupied by the consul and his or her staff. The consulate may share
premises with the embassy itself.

• Sources of Consular Immunity Law:


• International Custom
• Treaties
• Multilateral Treaties
• Bilateral Treaties
• National Legislation
• Jurisprudence and Doctrine
The Vienna Convention on Consular Relations

• It is an international treaty that defines a framework for consular relations between


independent states. A consul normally operates out of an embassy in another
country, and performs two functions:
• Protecting in the host country the interests of their countrymen,
• Furthering the commercial and economic relations between the two states.
• While a consul is not a diplomat, they work out of the same premises, and under this
treaty they are afforded most of the same privileges, including a variation of the
diplomatic immunity called consular immunity.

Waiver of immunity (Article 45)

• The sending State, as regards a member of the consular post, may waive any of the
privileges and immunities, i.e. the waiver may concern the personal inviolability,
immunity from jurisdiction and liability to give evidence. The waiver must be express,
save for where the consular officer or employee has initiated proceedings and his
counterpart raises a counterclaim, and shall also be communicated to the receiving
State in writing. A waiver of immunity from jurisdiction for civil or administrative
proceedings does not include waiver of immunity from eventual measures of
execution following the judgement.
Act of State Doctrine

• The Act of State Doctrine states that every sovereign state is bound to respect the
independence of every other sovereign state, and the courts will not sit in judgment
of another government's acts done within its own territory.