PIL REVIEWER
March 16 to March 21: Chapter 10 on Immunity from Jurisdiction to Chapter 11 on State
Responsibility
IMMUNITY FROM JURISDICTION
* GR: Jurisdiction of a state within its territory is
complete and absolute.
* Exceptions: 1.) Sovereign immunity 2.)
Diplomatic/consular immunity
A. Immunity of Head of State - Applies to both the
Head of State and to the State itself
B. State Immunity
- The State may not be sued without its consent.
- Based on the principle of equality and
independence of states: par in parem non habet
imperium.
- With the gradual expansion of state involvement
in commerce, the principle of state immunity has
evolved to one of restrictive state immunity: only
acts jure imperii (governmental acts) and not acts
jure gestionis (trading and commercial acts) are
immune.
How to claim State immunity?
- a State must request the Foreign Office of the
state where it is sued to convey to the court that it is
entitled to immunity.
- In the Philippines, the foreign government or
international organization must first secure an
executive endorsement (in whatever form) of its
claim of sovereign or diplomatic immunity.
Diplomatic and Consular Immunities
- Based on customary law.
- Official representatives of a state are given
immunities and privileges within the territory of
another state.
- The immunities and privileges are personal (for
diplomat’s benefit) but also functional (to enable
the diplomat to perform his functions properly).
- The receiving state has a corresponding
obligation to protect the representative and his
property and office.
* Diplomatic Immunities (Vienna Convention on
Diplomatic Relations 1961)
- Diplomatic relations are purely by mutual
consent.
- An agreement by the receiving state (RS) is a
prerequisite before the head of mission is sent. The
RS has no obligation to explain its refusal, and may
at any time and without explanation notify the
sending state (SS) that a diplomatic agent is
persona non grata or that a staff member is
unacceptable.
- The SS can either recall the person or terminate
his functions with the mission.
Article I. Who can enjoy diplomatic immunities?
a.) head of mission
b.) diplomatic agent (head of mission or member of
diplomatic staff)
c.) members of the mission including the
diplomatic, administrative and technical, and
service staff
d.) private servant in the domestic service of a
member of the mission, not employed by the
sending state
e.) premises of the mission, irrespective of
ownership
Article III. Functions of the diplomatic mission:
a.) Represent the sending state in receiving state
b.) protect its interests and of its nationals
c.) negotiate with the government
d.) report on developments and conditions in the
receiving state
e.) promote friendly relations
* Rights and Privileges of the diplomatic mission:
a.) Inviolability of mission premises and means of
transport; RS has duty to protect the premises and
prevent any disturbance to the mission or
impairment of its dignity. (Art. 22)
b.) Tax Exemptions for the SS and the head of
mission, not extending to those payable under the
laws of RS by persons contracting with them. (Art.
23)
c.) Inviolability of archives and documents of the
mission. (Art. 24)
d.) Free communication and inviolability of official
correspondence, of the diplomatic courier, and of
the diplomatic bag. (Art. 27)
- Exceptions:
1.) Mission must have consent of RS to instate and
use a wireless transmitter.
2.) Diplomatic bag may only contain diplomatic
documents or articles for official use.
e.) Inviolability of the person of diplomatic agent
from arrest or detention. (Art. 29)
f.) Inviolability of the private residence, property,
papers, and correspondence of a diplomatic agent.
(Art. 30)
g.) Immunity of diplomatic agent from criminal,
civil, and administrative jurisdiction of RS;
immunity from giving evidence as witness;
immunity from execution of judgement. (Art. 31)
Exceptions: 1.) real action relation to private
immovable property in the RS, unless held on
behalf of the SS for mission purposes 2.) action
relating to succession, done as a private person and
not on behalf of the SS 3.) action relating to any
professional or commercial activity done in the RS
outside his official capacity
h.) Express waiver of immunity from suit made by
SS or impliedly by diplomatic agent upon initiation
of proceedings, but only in respect to compulsory
counterclaims. Waiver of immunity from suit is
distinct from waiver of immunity from execution.
(Art. 32)
i.) Exemption from social security provisions of the
RS for services rendered for the SS. (Art. 33) –
Exception:
1.) private servant who is either a national or a
permanent resident of the RS; and
2.) not covered by the social security provision in
the SS or a third state
j.) Tax exemption of diplomatic agents. (Art. 34) -
Exceptions:
1.) indirect taxes incorporated in price of goods or
services
2.) dues and taxes on private immovable property
in RS (unless on behalf of SS, for mission purpose)
3.) estate, inheritance, succession duties
4.) private income from within RS
5.) charges levied for services rendered
6.) registration, court or record fees, mortgage dues
and stamp duty on immovable property
k.) Free entry of articles for official use of the
mission and for the personal use of the diplomatic
agent or his family. (Art. 36)
- Exception:
1.) personal baggage of the diplomatic agent may
be inspected in his/duly authorized representative’s
presence if there is serious ground to presume that
it contains articles not exempted, or prohibited by
import or export laws or quarantine regulations
l.) Extension of immunity to family of diplomatic
agent under Art. 29-36; immunity of members of
administrative and technical staff and their families
under Art. 29-35; immunity of service staff for
official acts and tax exemption under Art. 33; and
tax exemption of private servant for emoluments
due to employment. (Art. 37)
- Exception:
1.) nationals of RS
2.) permanent resident of RS (not for family of
diplomatic agent)
m.) Immunities of a diplomatic agent who is a
national or permanent resident of RS is limited to
immunity from jurisdiction and inviolability in
respect to official acts. For others, only such
privileges and immunities that the RS may allow.
(Art. 38)
n.) Privileges and immunities begin from entry into
RS, or if already there, from notification of
appointment to Ministry of Foreign Affairs of the
RS. They cease upon leaving the RS, or on
reasonable period, but shall subsist even in armed
conflict. (Art. 39)
*Obligations of diplomatic mission:
a.) To respect the laws and regulations of the RS
(Art. 41)
b.) To refrain from practice for personal profit any
professional or commercial activity in the RS. (Art.
42)
* Consuls and Consular Immunities (Vienna
Convention on Consular Relations 1967)
- Not concerned with political matters.
- Attend only to the administrative and economic
issues.
- Head of consular post must first be authorized by
RS via an exequatur.
- RS may at any time and without explanation
notify the SS that a consular officer is a persona
non grata or a staff member is unacceptable. - SS
can only recall or terminate his functions with the
consular post.
- RS has duty to protect the consular premises,
archives and interests of the SS and ensure the
unimpeded functioning of the consular offices.
* Article V. Consular Functions:
a.) protect the interest of the SS and of its nationals
in the RS
b.) further development of economic, commercial,
cultural and scientific relations and promote
friendly relations between RS and SS
c.) report on development and condition of RS
d.) issue passports and travel documents to
nationals of SS and visa and appropriate documents
for those who wish to travel to SS
e.) assist nationals
f.) act as notary and civil registrar and perform
administrative functions
g.) safeguard interests of nationals in cases of
succession mortis causa in RS
h.) safeguard interest of nationals who are minors
or lack full capacity
i.) represent or arrange representation for nationals
before the tribunals or other authorities of the RS
j.) transmit judicial and extrajudicial documents or
executing letters to take evidence for the courts of
the SS
k.) exercise supervision and inspection over vessels
under SS flag, aircrafts registered in SS, and their
crew
l.) extend assistance to such vessels and aircrafts
and their crew m.) other functions not prohibited by
laws of RS
* Rights and Privileges of the consular mission:
a.) Freedom of movement (Art. 34)
b.) Freedom of communication (Art. 35)
c.) Communication and contact with nationals of
the SS (Art. 36)
d.) Personal inviolability of consular officers from
arrest or detention (Art. 41)
- Exceptions:
1.) grave crime; and
2.) pursuant to a decision by a competent judicial
authority
e.) Notification of arrest, detention or prosecution
(Art. 42)
f.) Immunity from jurisdiction for official acts.
(Art. 43)
- Exceptions:
1.) civil actions arising from contract not entered
into in official capacity;
2.) civil action by a 3rd party for damage arising
from an accident in the RS cause by a vehicle,
vessel or aircraft
g.) Liability to give evidence; a consular employee
can’t refuse while a consular officer may refuse
without threat of coercive measure or penalty. (Art.
44)
h.) Waiver of privilege and immunity under Art.
41, 43, and 44 by SS (Art. 45)
The Act of State Doctrine
Underhill v. Hernandez
―act of state doctrine‖: a.) Every sovereign state is
bound to respect the independence of every other
sovereign state, and the courts of one county will
not sit in judgment on the acts of the government of
another, done within its own territory.
b.) Redress of grievances due to such acts must be
obtained through the means open to be availed of
by sovereign powers as between themselves.
CHAPTER 11
STATE RESPONSIBILITY
PROTECTION OF ALIENS
 No State is obliged to admit aliens into its
territory unless there is a treaty requiring it
 Generally, it is difficult to deny admission to all;
Hence, States impose legal standards for admission
 Once admitted, at least under democratic
regimes, aliens may not be expelled without due
process
 Aliens -nationals abroad
 States protect aliens within their jurisdiction in
the expectation that their own nationals will be
properly treated when residing or sojourning
abroad
 Forms of ill-treatment of foreign nationals: a.
Mistreatment by judicial or police authorities
b. Unlawful expropriation of property
c. Denial of justice or denial of due process of law
– failure to prosecute those who attack foreign
nationals
 Diplomatic protection – the instrument used for
the protection of aliens
Injury to a national abroad = injury to the
individual’s State of nationality
The interest of the State is in the redress of the
injury to itself and not of the injury to the
individual
Individuals are at the mercy of their own State
Standard for the Protection of Aliens
 Under the Roman Law:
1. Jus gentium – applicable to both citizens and
aliens 2
2. Jus civile – applicable only to Roman citizens
 In modern times
1. National treatment or Equality of treatment –
aliens are treated in the same manner as nationals
Bright side: aliens would enjoy the same benefits
as local nationals
Dark side: if the State is tyrannical and its
municipal laws are harsh and violative of human
rights, then aliens would likewise be subject to
such laws
2. Minimum International Standard – however
harsh the municipal laws might be, aliens should be
protected by certain minimum standards of humane
protection
DOCTRINE OF STATE RESPONSIBILITY
 When an injury has been inflicted, there is need
to determine whether the State can be held
responsible for it
 Internationally wrongful act – committed when a
State violates a customary rule of international law
or a treaty obligation
INTERNATIONALLY WRONGFUL ACT  No
State can escape this responsibility when once it
has committed an act which satisfies the
requirements of an internationally wrongful act
Elements:
Subjective – act must be attributable not to the
persons or agencies who performed it, but to the
State itself
Objective – act constitutes a breach of an
international obligation of the State
 What determines the wrongful character of the
act is international law and not internal law
ATTRIBUTION TO THE STATE
1. Acts of State Organs
a. Acts of any State organ whether the organ
exercises legislative, executive, judicial or any
other functions, whatever position it holds, and
whatever its character
Organ – includes any person or body which has
that status in accordance with the international law
of the State
b. Conduct of an entity which is not an organ of the
State but which is empowered to exercise elements
of governmental authority provided the entity was
acting in that capacity in the case in question
c. Conduct of an organ placed at the disposal of a
State by another State acting in the exercise of
elements of governmental authority of the State at
whose disposal it had been placed
d. Conduct of a State organ or of an entity
empowered to exercise elements of governmental
authority, such organ or entity having acted in that
capacity, exceeding its authority or contravening
instructions concerning its exercise

Acts of other Persons

a. Conduct of a person or group of persons acting

on the instructions of, or under the direction or
control of, that State in carrying out the conduct
b. Conduct of a person or group of persons
exercising elements of the governmental authority
in the absence or default of the official authorities
and in circumstance

Acts of Revolutionaries

a. Conduct of an insurrectional movement, which

becomes the new government of a State
b. Conduct of a movement, insurrectional or other,
which succeeds in establishing a new State in part
of the territory of a pre-existing State or in a
territory under its administration

PRELIMINARY OBJECTIONS

 Claim of denial of justice may be lost due to

failure to answer some preliminary objections
a. Lack of nationality link
b. Failure to exhaust national remedies

Purpose: to protect international courts from being

swamped with cases which are better handled
locally
Application: cases founded on diplomatic
protection or on injury to aliens

REPARATION

1. Obligation to make full reparation for the injury

caused by the internationally wrongful act
2. Injury consist of any damage, whether material
or moral, arising in consequence of the
internationally wrongful act
3. Responsible State may not rely on the provisions
of its internal law as justification for failure to
comply with its obligation

EXPROPRIATION OF ALIEN PROPERTY

 Expropriation can be internally wrong if it is

done contrary to the principles of international law
 1962 UN General Assembly Resolution on the
Sovereignty over Natural Resources

Expropriation shall be based on grounds or reasons

of public utility, security or the national inters
which are recognized as overriding purely
individual or private interests, both domestic and
foreign

In such cases, the owner shall be paid appropriate

compensation in accordance with the rules in force
in the State taking such measures in the exercise of
its sovereignty and in accordance with international
law