VI.

RIGHT OF LEGATION Envoys, ministers

and internuncios,
Right of legation. accredited to Heads
 Also known as the right of diplomatic intercourse of State; and
 Refers to the right of the State to send and receive diplomatic missions, which enables
States to carry on friendly intercourse. Charges d’affaires,
 Not a natural or inherent right, but exists only by common consent. accredited to
 No legal liability is incurred by the State for refusing to send or receive diplomatic Ministers of Foreign
representatives. Affairs.
 Governed by the Vienna Convention on Diplomatic Relations (1961).

Agents of Diplomatic Intercourse.

1. Head of State The Diplomatic Corps.
 the embodiment of, and represents, the sovereignty of the State, and enjoys the right to  According to custom, all diplomatic envoys accredited to the same State form a body
special protection for his physical safety and the preservation of his honor and known as the “Diplomatic Corps”.
reputation.  The doyen or head of this body is usually the Papal Nuncio, if there is one, or the
 His quarters, archives, property and means of transportation are inviolate under the oldest ambassador, or, in the absence of ambassadors, the oldest minister
principle of exterritoriality. plenipotentiary.
 He is immune from criminal and civil jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or exchange or currency restrictions. Appointment of Envoys.
 In the Philippines, it is the President who appoints [Sec. 16, Art. VII, Philippine
2. The Foreign Office Constitution], sends and instructs the diplomatic and consular representatives, and his
 The actual day-to-day conduct of foreign affairs is usually entrusted to a Foreign prerogative to determine the assignment of the country’s diplomatic representatives
Office, headed by a Secretary or a Minister, who, in proper cases, may make binding cannot be questioned.
declarations on behalf of his government.
 The sending State is not absolutely free in the choice of its diplomatic representatives,
Establishment of Resident Missions. especially heads of mission, because the receiving State has the right to refuse to
 States carry on diplomatic intercourse through permanent missions established in the receive as envoy of another State a person whom it considers unacceptable.
capitals of other States.  To avoid embarrassment, States resort to an informal inquiry as to the acceptability of
a particular envoy, to which the receiving State responds with an informal conformity.
 The mission is composed of:  This informal process is known as agreation.
Head of Mission. Diplomatic Staff, Administrative Service Staff
 With the informal process concluded, the diplomatic mission then commences
and Technical
Staff when the envoy presents himself at the receiving State, generally armed with the
The Vienna composed of those consisting of those those engaged in following papers:
Convention classifies engaged in employed in the the domestic 1. Lettre de creance (letter of credence), with the
the heads of mission diplomatic activities administrative and service of the  Name
into: and are accorded technical service of mission.  rank and
diplomatic rank the mission.  general character of the mission, and
Ambassadors or  a request for favorable reception and full credence;
nuncios accredited to 2. Diplomatic passport authorizing his travel;
Heads of State, and 3. Instructions, which may include a document of full powers (pleins pouvoirs)
other heads of authorizing him to negotiate on extraordinary or special business; and
mission of equivalent 4. Cipher, or code or secret key, for communications with his country.
rank;
Functions and duties.
 The main functions of a diplomatic mission are:
1. Representing the sending State in the receiving State;
 2. Protecting in the receiving State the interests of the sending State and its nationals,
within the limits allowed by international law;
3. Negotiating with the government of the receiving State;
4. Ascertaining, by all lawful means, the conditions and developments in the receiving
State and reporting these to the sending State; and
5. Promoting friendly relations between the sending State and the receiving State, and
6. Developing their economic, cultural and scientific relations.
Diplomatic immunities and privileges.
 Except as provided below, the following diplomatic immunities and privileges shall be
enjoyed by the envoy and the members of the diplomatic retinue, i.e., the
administrative and technical staff.
1. Personal inviolability.
 The person of the diplomatic representative is inviolable;
 he shall not be liable to any form of arrest or detention.
 The receiving State shall treat him with due respect and take all steps to prevent any
attack on his person, freedom or dignity.
 In the Philippines, R.A. 75 punishes, on the basis of reciprocity, any person who
assaults, strikes, wounds, offers violence to the person of the ambassador or minister
(except if done in selfdefense).
 The UN Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons considers crimes against diplomatic agents as
international, not political, in nature.
 However, the diplomatic envoy may be arrested temporarily in case of urgent danger,
such as when he commits an act of violence which makes it necessary to put him under
restraint for the purpose of preventing similar acts; but he must be released and sent
home in due time.
 Persona Non Grata
 Although the diplomatic agent is immune from arrest or detention Article 9 of the
Vienna Convention on Diplomatic Relations provides that the receiving State can,
without need of an explanation, have a diplomatic agent declared persona non grata
even before arriving in the receiving States territory the effect will be that the sending
state must recall the diplomatic agent or terminate his functions with the mission.
 Failure of the sending state to do so within a reasonable time enables the receiving
State to refuse to recognize the diplomatic agent concerned.
 Official Acts
 A diplomatic agent has permanent immunity in relation to official acts he has
performed.
 Such immunity of official acts continues to subsist even when he is no longer a
diplomatic agent.
 Administrative and Technical staff
 Enjoy absolute immunity for criminal offenses but only enjoy immunity with regard
to official acts in case the offense involved is civil or administrative.
 Service Staff
 Provided that they are not nationals or permanent residents of the receiving state, they
are entitled to immunity from liability arising from the acts performed in the course of
their duties.
 Papers, Letters and Property
 Article 30 of the Vienna Convention on Diplomatic Relations provides that a
diplomatic agent’s papers, correspondence, and to a certain extent property shall be
inviolable.
 Immunity During War
 There appears to be no justification for suspending the immunities enjoyed by
diplomatic agent during war.
2. Inviolability of premises and archives.
 The premises occupied by a diplomatic mission, as well as the private residence of the
diplomatic agent, are inviolable.
 The agents of the receiving State may not enter without the consent of the envoy,
except in extreme cases of necessity, e.g., when the premises are on fire, or where there
is imminent danger that a crime of violence is to be perpetrated in the premises.
 Such premises cannot be entered or searched, and neither can the goods, records and
archives be detained by local authorities even under process of law.
 The service of writs, summons, orders or processes within the premises of the
mission or residence of the envoy is prohibited.
 Even if a criminal takes refuge within the premises, the peace officers cannot break
into such premises for the purpose of apprehending him.
 The fugitive should, however, be surrendered upon demand by local authorities, except
when the right of asylum exists.
 But if it is the ambassador himself who requests local police assistance, this privilege
cannot be invoked.
 The Vienna Convention provides that the receiving State has the special duty to
protect diplomatic premises against invasion, damage, or any act tending to disrupt the
peace and dignity of the mission.
 However, the Supreme Court held as invalid the denial by the Mayor of the
application for a permit to hold a public assembly in front of the U.S. Embassy, there
being no showing of a clear and present danger that might arise as a result of such a
rally.
 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.
 Inviolability also extends to the
 Archives
 Documents
 papers and
  correspondence of the mission at all times and
 wherever they may be, and the receiving State has the duty to respect and protect their
confidential character.
 Unless the right is recognized by treaty or by local usage, an envoy should not permit
the premises of his mission or his residence to be used as a place of asylum for
fugitives from justice. An envoy may, however, in the interests of humanity, afford
temporary shelter to persons in imminent peril of their lives, such as those fleeing from
mob violence.
Right of official communication.
 The right of an envoy to communicate with his government fully and freely is
universally recognized.
 The mission may employ all appropriate means to send and receive messages, whether
ordinary or in cipher, by any of the usual modes of communication or by means of
diplomatic couriers.
 Because of this right, the diplomatic pouch and diplomatic couriers shall also enjoy
inviolability.
1. Diplomatic Pouch
 Diplomatic Bag
 Must bear visible external marks that would identify it as the diplomatic pouch.
 Likewise, it should only contain diplomatic documents or articles intended for
official use.
2. Diplomatic Couriers
 Should always carry official documents indicating their status as diplomatic
couriers, and the number of packages they are transporting.
Immunity from local jurisdiction.
 Under the 1961 Vienna Convention on Diplomatic Relations
 a diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving
State.
 Thus, he cannot be arrested, prosecuted and punished for any offense he may
commit, unless his immunity is waived.
 But immunity from jurisdiction does not mean exemption from local law; it does not
presuppose a right to violate the laws of the receiving State.
 Diplomatic privilege does not import immunity from legal liability but only
exemption from local jurisdiction.
 The diplomatic agent also enjoys immunity from the civil and administrative
jurisdiction of the receiving State, and thus, no civil action of any kind may be
brought against him, even with respect to matters concerning his private life.
 As a rule, his properties are not subject to garnishment, seizure for debt,
execution and the like, except in the following cases:
a. any real action relating to private immovable property situated in the territory
of the receiving State, unless the envoy holds it on behalf of the sending State
for the purposes of the mission;
b. 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; and
c. an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
 Implied Waiver
 Where the diplomat chooses to initiate a civil suit in a local court, he places himself
under the jurisdiction of that court.
 This immunity also means that the diplomatic agent cannot be compelled to testify, not
even by deposition, without the consent of his government, before any judicial or
administrative tribunal in the receiving State.
 However, the Supreme Court held that the act of private respondent Drug
Enforcement Agent of the U.S. in the frame-up of petitioner was unauthorized and
could not be considered performed in the discharge of official functions, despite a
belated diplomatic note from the US Embassy;
 thus, suit against the private respondent was upheld, being a suit against him in his
personal and private capacity.
 Held: that the immunity does not protect a public official who commits unauthorized
acts, inasmuch as such unauthorized acts are not acts of State.
 Accordingly, he may be sued for such unlawful acts in his private capacity.
Subject to the rule on reciprocity.
 Republic Act No. 75 declares as void any writ or process issued out or prosecuted by
any person in any court of the Philippines,
or by any judge or justice,
whereby the person of any ambassador or public minister of any foreign State,
authorized and received as such by the President, or any domestic servant of any such
ambassador or minister,
is arrested or imprisoned, or his goods or chattels distrained, seized or attached;
and penalties are imposed for violation of this provision.
 However, this privilege is not granted to:
a. citizens/inhabitants of the Philippines, where the process is founded upon a debt
contracted before his employment in the diplomatic service; and
b. domestic servants of the ambassador or minister whose names are not registered
with the Department of Foreign Affairs.
 As part of the envoy’s immunity from local jurisdiction, the children born to him while
he possesses diplomatic status are regarded as born in the territory of his home State.
Exemption from taxes and customs duties.
 Under the Vienna Convention, diplomatic agents are exempt from all dues and taxes,
whether personal or real, national, regional or municipal, except the following:
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, unless he holds it on behalf of the sending State for purposes of
the mission;
3. Estate, succession or inheritance taxes levied by the receiving State;
4. Dues and taxes on private income having its source in the receiving State and
capital taxes on investments in commercial ventures in the receiving State;
5. Charges levied for specific services rendered; and
6. Registration, court or record fees, mortgage dues and stamp duty, with respect to
immovable property.
 Servants and Staff
 Personal servants and service staff who are not citizens or permanent residents of the
receiving State also enjoy immunity from taxes.
 The Vienna Convention also provides for exemption from all customs duties and
taxes of articles for the official use of the mission and those for the personal use of the
envoy or members of the family forming part of his household, including articles
intended for his establishment.
 Baggage and effects are entitled to free entry and, normally, exempt from
inspection;
 articles addressed to ambassadors, ministers, charge d’affaires are also exempt
from customs inspection.
Other privileges
 which include
1. freedom of movement and travel in the territory of the receiving State;
2. exemption from all personal services and military obligations;
3. the use of the flag and emblem of the sending State on the diplomatic premises
and
4. the residence and means of transport of the head of mission.
Duration of immunities/privileges.
 The privileges are enjoyed by the envoy from the moment he enters the territory of the
receiving State, and shall cease only the moment he leaves the country, or on expiry of
a reasonable time in which to do so; although with respect to official acts, immunity
shall continue indefinitely.
 These privileges are available even in transitu, when traveling through a third State on
the way to or from the receiving State.
Waiver of immunities.
 Diplomatic privileges may be waived, but as a rule, the waiver cannot be made by the
individual concerned since such immunities are not personal to him.
 Waiver may be made only by the government of the sending State if it concerns the
immunities of the head of mission; in other cases, the waiver may be made either by
the government or by the chief of mission.
 Waiver of this privilege, however, does not include waiver of the immunity in respect
of the execution of judgment; a separate waiver for the latter is necessary.
Termination of diplomatic mission.
 The usual modes of terminating official relations, such as death, resignation, removal
or abolition of office, will terminate the diplomatic mission. Other modes are recall by
the sending State, dismissal by the receiving State, war between the receiving and the
sending States, or the extinction of the State.
Consular Relations.
 Consuls are State agents residing abroad for various purposes but mainly in the
interest of commerce and navigation.
Kinds of Consuls:
1. Consules missi are professional and career consuls, and nationals of the appointing
state.
2. Consules electi are selected by the appointing state either from its own citizens or
from among nationals abroad.
Ranks:
1. Consul General
who heads several consular districts, or one exceptionally large consular district.
2. Consul
who takes charge of a small district or town or port
3. Vice Consul
who assists the consul
4. Consular agent
who is usually entrusted with the performance of certain functions by the consul.
Appointment.
 Two important documents are necessary before the assumption of consular functions,
namely:
1. Letters patent (lettre de provision),
which is the letter of appointment or commission which is transmitted by the sending
state to the Secretary of Foreign Affairs of the country where the consul is to serve;
and
2. Exequatur,
which is the authorization given to the consul by the sovereign of the receiving state,
allowing him to exercise his function within the territory.
 Functions.
 Generally, the functions pertain to commerce and navigation, issuance of visa (permit
to visit his country), and such as are designed to protect nationals of the appointing
state.

Immunities and privileges.

 Under the 1963 Vienna Convention on Consular Relations,
 consuls are allowed freedom of communication in cipher or otherwise; inviolability
of archives, but not of the premises where legal processes may be served and arrests
made; exempt from local jurisdiction for offenses committed in the discharge of
official functions,
 but not other offenses except minor infractions;
 exempt from testifying on official communications or on matters pertaining to
consular functions; exempt from taxes, customs duties, military or jury service; and
 may display their national flag and emblem in the consulate.

These immunities and privileges are also available to the members of the consular post,
their families and their private staff.

Waiver of immunities may be made by the appointing state.

Termination of consular mission.

 Usual modes of terminating official relationship; withdrawal of the exequatur;
extinction of the state; war.
 Severance of consular relations does not necessarily terminate diplomatic relations.