r42 IwreruvarroNnl- Law
Tlm Rrcnr op Lrc.r,rIoN 14tl
. The Head of State
The head of state, be he monarch or president, is re_
garded as the embodiment of or at least represents the
sovereignty of his state. Accordingly, he is entitled to cer-
tain immunities and honors befitting his status. His per_
son being regarded as sacrosanct, he has a right to special
protection not only for his physical safety but for the pres_
ervation of his honor or reputation as well. His qr"rt".",
archives, property, and means of transportation are invio_
late under the principle of exterritoriality. He is also ex-
empt fuorn criminal jurisdiction and likewise from civil
jurisdiction, except where he himself is the plaintiff, and is
not subject to tax or to exchange or cru'rency restrictions.
ceremonial amenities are also due him unless he is trav-
elnng incognito.'
In the case of Mighelt u. Sittan of Johore,'suit was
brought for breach of a promise to marry allegedly made
by the defendant who had represented himse* as a pri_
vate individual. The action was dismissed when he re_
vealed his real identity as head of an independent state.
By contrast, a civil claim for money due the plaintiffs was
allowed by the French courLs against former eueen trsa_
bela of Spain, then iiving in par:is., .]urisdiction was a^s-
sumed because she had already been deposed at the tirne
and was no longer entitled to royal prerogatives"
The Foreign Secretary
It was corunon before for heads of state to personally
undertake the function of diplomatic negotiations, but thl
practice has now largely fallen into disuse. Except on rare
occasions when the matter under consideration is of such
'Ibid.
'L.H. (tr894), 1e.8. Div. 149.
o
0ppenheim-Lauterpachr, 761".
signfficance or delicacy as to warrant no less than what is
known as a "summit meeting," the conduct of exbernal
atraim is now generally entrusted to the foreign secretary
or minister.
Under the municipal law of most states, the foreign
secretary is the immediate representative of the head of
state and directly under his control. As such, he can make
binding declarations on behalf of his state on any matter
fa[ing within his authority, such as questions relating to
recognition of states or goverrlments and the settlement of
international claims against the state.' The foreign secre-
tary is also the head of the foreign office and has direction
of all ambassadors and other diplomatic representatives of
his government.
Diplomatic Envoys
The regular or day-to-day conduct of international af-
fairs is entrusted to the members of the foreign serwice
who are accredited by the sending state as its permanent
envoys to represent it in the states with which it is main-
taining fiplomatic relations. The development of this service
was the offshoot of the practice of establishing permanent
legations which became general during the seventeenth
century.
The heads of these diplomatic missions are classified
as follows by the Convention on Diplomatic Relations,
which was signed at Vienna in 1961:
(1) Ambassadors or nuntros accredited to heads of
state.
(2) Envoys, ministers ot internuntios accredited to
heads ofstate.
u
Case concerning the Legal Status of Eastern Greenland, de-
cided April 5, 1933, by the Permanent court of International Jus-
tice, Oppenheim-Lauterpacht, 765-766.
 -l
r44 Illuruvnurlruer. [.aw
Tlm Rtcrrr oF LTATIoN 145

(3) charg1s d'affaires accredited to ministers for

-foreign affairs.u powers or attributes. It is nonetheless irnportant in watch-
irrg or"t diplomatic privileges and honors and has
at tirnes
The classification of diplomatic representatives rights of its rnem-
was ..La officially in the protection of the
considered significant before because direct
communica- bers.
tion with the head of state depended then on
the rank of
the diplomat and, moreover, oniy the powerfiil
states were Appointment of EnvoYs
regarded as entitled to send envoys orthe
highest.u"r.. at to
present, however, diplomatic matters
are usually dis_ The Diplomatic Convention provides that the class
cussed not with the head of state but with which the heads of their mtssions are to be assigned shall
the foreign sec_
retary regardless of the diplomat's rank. Moreor".,"it
rrr" U* upon between the states concerned"' Moreover'
"gxu"a of
become the practice now for even the smallest
and weak_ the Jending state must make eertain that the agrdmnnt
person pro-
est states to send diplomatic representatives
of the highest the receiving state has been given for the it
rank, even to the major po*"... po*"u to accredlt as head of the rnission to that state''
It may be said, therefore, that the distinctions among The appointment of diplomats is not merely a rnatter
of *,*icip.i t"* because the receiving st'ate is not
the members of the diplomatic seryice are important obtriged
only nnn grata tn
in connection with rnatters of protocol or the grant
of spe_ to accept any representative who is Wrsono
repre-
cial honors. In other ."rp""l., the various diplomaiic ii" trrA*a, tirershave been cases when accredited
agents enjoy substantially the same prerogatives
regard_ sentatives were rejected, resulting in strained nelations
less of rank. U"t**n the sending and receiving states' For exarnple' an
American minister was not received in Italy for having
The Diplomatic Corps previously protested in a speech the annexation of the
The diplomatic corps is a body consisting of il*p.l Stad by ltaly; and when next accredited to Austria in
ent- diplomatic representatives who have
the differ_ he was also rejected, thi" time because he was married
goverrl-
treen accredited
to the sarne local or receiving state. It is headed a civil ceretnony to a Jewess' The United States
not'
by a dry"" ment considerei these neasons inadequate but could
(y yorns who, by tradition, is the oldest member with the of course, insist on its appointment'
highest rank or, in Catholic countries, the papal Nuncio.
In the Diplomatic Convention, however, it is pr"ovided To avoid such awkward situations, most states now
that observe the practice of the ogreatinn, by means
of which
"heads of missions shall take precedence in
their respec_ informal inquiries are addressed to the receiving state
tive classes in the order of the date and time trkid;;
their functions."' "f regarding a proposed diplomatic representative o{^th"
Being a loose organization without any corporate ,uldirrg ,| t".-tt is only when the receiving state manifests
character, the diplomatic corps does not po.""". its agrdmcnt or consent, also informally, that the diplo-
any legal *"til representative is appointed and formally accredited.
u
Art. 14.
'Art. 16. 'Art.
n
15.
Art. 4.
 I
t46 lvn;nNnrroNru, l,aw
'I'ttu Rrc;rrr or Lnr;arroru \47

Article 4 of the Diplomatic convention provides that .,the

receiving state is not obliged to grve reasons for treeln appointed economic counselor of the Romanian lega-
a refusal of' tion there. It was hekl that, since he had never been ac-
agrdment."
cepted as such hy the Swiss government, he could not
Under our Constitution, it is the president who is
clairn diplomatic immunity.'
empowered to appoint ambassadors, other public
minis-
ters and consuls, subject to the consent of the commission Diplomatic Fr.mctions
on Appointments. His discretion is exclusive when it
:oTe" to receiving ambassadors and other public ministers The firnctions of a diplomatie mission consist intur
o,lirl-in:
;Comnaencement of the Diplomatic
(1) Representing the sending state in the receiving
Mission statc.
The head ortr,f#uriilir.oil;iu"."d as having taken (.2) Protecting in the receiving state the interests of
up his functions in the receiving state either whenle the sending state and its nationals.
has
presented his credential or when he has notified
his arri-
(3) Negotiating with the govemment of the receiving
val_an! a tme copy of his credentials has b*, pr""".rt"a state.
to the foreign ministry of the receiving state.,' (4) Ascertaining by all lawfrrl rneans conditions and
The credentials of the diplomatic agent include chiefly clevelopments in the neceiving state and reporbing thereon
the letter of credenc e, or leitre dz cr6lncn, Uy .""""" -of to the goverr*rnent of the sendirrg state.
which he is accredited to the receiving state with the
re- (5) Promoting f?iendly retrations between the send-
quest that firll faith and credit be given to his ing and receiving states and developing their economic,
official acts
on behalf of the sending state. In addition to this docu- cultural and scientific relations""
rnent, the envoy usually also carries his diplomatic
pass- The diplomatic nrission may also perform consular
port, his rifficial instructions and a cipher or
code uooi ro. functions in the absence of a consular mission florr the
usc+ in serrding secret communicationsto
his government. sending state. On request or by agreement, it may also
Although marked with solemnity and sometimes even represent friendiy governments, as when the United
ryTp, the reception of the envoy is not a rnere ceremony. States undertook the diplomatic representation of the
Unless the receiving state trad previously gtven iL Philippine Republic while we were still in the process of
agrdm,ent to his appointment, the diplomatic
,"!r"""rrt._ organizing our own fbreign seryice.'n
five cannot claim the wual privileges and immunities
of
his offico until he is formally Oppenheim cites
the case of one Vitianu, who".."ft"d.
was convicted of certain
crimes in Switzerland despite his assertion that
he had
tt
'oArt. vII, Sec. 16. Oppenheim-Lauterpacht, 784.
t'Diplomatic
Convention, Art. 1g. " Diplomatic Convention, Art. 3.
'n RP-US Treaty on General Relations.
r
148 INrrmlarrorvar, Lew
Conduct of Diplomatic Mission
In the performance of his functions, the diplornatic
agent must exercise the utmost discretion and tact, taking
care always to. preserve the goodwill of the sending state
and to avoid interference with its internal affairs. The
envoy is not justified in pitbing or aiding one political parby
against another, or publicly criticizing the policies or acts
of the receiving state, or ernploying threatening or offen-
sive language or methods in the protection of the interests
of his state or its nationals. FIis mission is also under mo
circuwst'eflce. to be used for espionage, the dissernination
ofpropaganda against the receiving state, or subversion of
its government.
The Fhilippine governrnent ordered the closure of the
Cuban ernbassy here when it was diseovered to be engaged
in subversive activities. Arnbassador Hanihara was re-
placed n 7924 when he suggested in a letter to the U.S.
State Department that the passage of a bill limiting Japa-
nese imrnigration was lilcely to produce "grave conse-
quences." Sending states have on oecasion, voluntarily or
on request, recalled their diplomatic nepresentatives for
improper discharge of their firnctions.
Diplomatic Tvr*rntrnities eed Privileges
Diplornats erqoy a number of privileges and immurli-
ties some of which can be traced to as far back as the
Greek and Roman eras. The reason originally given for the
special treatment of the envoy was the fiction of exterrito-
riality by which he was considered an extension of the
state he was representing. But this view has yielded to the
modern justification that his privileges and imrntmities
are nee$sar)i to give the envoy the.fullest freedorn or lati-
tud.e in the exercise of his official fiurctions.
Ttm Rrcrrr or Lrcnnox 149
Based largely on interrrational custonr,, rnost of the
diplomatic privileges and imrnunities have been reaf-
firrned and are now expressly provided for in the Diplo-
metic Cpnrrer,lfioa of 1961. Some of the more irnportant of
these are briefly discussed hereunder.
(a) Personal Inviolability
Like the head ofstate, the envoy is regarded as sacro-
sanct and is entitled to the special protection of his personi
honor and ,Iiber,by; An attack on any of these is deemed a
serious offense and rnr.rst be redressed with the most se-
vere penalties by the receivimg state.
The Diptromatic Convention provides: "The person of a
diplomatic agent shall be inviolable. F{e shall not be liable
to any form ofarrest or detention. The receiving state shall
treat him with due reslrect and shall take all appropriate
steps to prevent any attack on his person, freedom or dig-
. , tt15
rnf,y.
But these rules are not without exception. The envoy
cannot complain if he is injured because he himself caused
the initial aggression and thereby provoked retaliation or
unduly exposed himself to danger as by mixing with a
disorderly assernblage.'u The local authorities may also, in
exceptional cases, lay hands on him if he has eomrnitted
an act of vioience and it is necessarlr to place him in pre-
ventive restraint.
In the PhilippindRA. No. 75 punishes, on the basis
of reciprocity, 'any person who assaults, strikes, wounds,
imprisons or in any other manner offers violence to the
perrion of an ambassador or public minister, in violation of
the law nations" with imprisonrnent for not more than
three years and a fine not exceeding two hundred pesos in
'u Art,. 29.
'u Fenwick, 469.
 150 IN'rEnN.qrtoI'rAr l,Aw
addition to the penalties prescribed by the Revised penal
Code. It is to be noted, though, ttrat the attack is confined
to the person of the envoy and does not incrude his honor
or reputation.
(b) [rnmunit5r from Jurisdiction
It is a generaliy accepted principle of international
law that the diplomatic agent shall be immune from the
civil, criminal and administrative jurisfiction of the re-
ceiving state except in a few specifled cases. This does not
mean that he can violate the locai laws with impunity; on
the contrary, he is expected to observe them rneticuronsry
as befits a person ofhis rank and prestige. Ifhe does noi
he rnay not be punished fnr his offense by the receiving
state, but it can and usually will ask for his recall.
So strictly obsemed is this imrnunity that the envoy
can escape the rigor of the iocal laws even if he cornrnits
the rnost serious *ffense in the receiving state. Thus, when
in 1584 the Spanish ambassador to England piotted
against the life of Queen Elizabeth I, he was **olly o*-
dered to leave the country, as so too was the Frenctr- arn-
bassador when he was invotrved in a conspiracy to kiitr
Crornwell in 1654. Interestingly, however, when in lSE?
the Flench ambassador commitbed a simlrilar offense
against the same Queen Elizabeth I, he was simply given
a warning."
The Diplomatic Convention provides: *A diplornatic
agent shall erjoy immunity from the criminal j,risdiction
of the receiving state. He shall also enjoy immunity from
its civil and administrafive jurisdiction, except in the case
of: (a) a real action retrating to private irnmovable properry
situated in the territory of the receiving state, hL
"rrlu.s of
holds it on behalf of the sending state for the purposes
" Oppenheim-tauterpacht, ?g1.
Tnn Rr<;rrr ol' Lrcerrorv t51
the rnission; (b) an action relating to succession in which
the diplomabic agent is involved as executcr, administra-
tor, heir or legatee as a private person and not on behalfof
thq sending state; (c) an action reiating to any professional
slr comrnercial activity exercised by the diplomatic ag;ent
in the receiving state outside ids offiiatr firnctions"""
lrnmunity frorn jurisdiction may be waived expressly
by the sending state, or under its authority, by the head of
rnission. Waiver rray also be made impliediy, as when the
person entitled to the immunify cornfirences proceedings in
the local state and thereby opens himseif to any counter-
claim directiy connected with the principal clairn. Horru-
ever, waiver of imrnunity from jurisdiction in respect of
civil or admirristrative proceedirgs shaltr not be held to
i*ply waiver of immunity in respect of the execution of the
judgment, for which a sepanate waiver shall he necessary."
R.A. No. 75 provides that "any writ of process sued
out or prosecuted by any person in any court of the Re-
public 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 auy domestic senvant of any such ambas-
sador or minister is arrested or imprisoned, or his goods or
ehattels are distrained, seized, or attached, shall be
deemed void, a-nd every person by whorn the sarne is ob-
tained or prosecuted, whether as parby or as attorney, and
every officer concerned in executing it, shali, upon convic-
f,ion, be pu:rished by irnprisonment for not more that three
years and a fine of not exceedfug two hundred Flesos in the
Ciscrefion ofl the couf,'L."
trn Warld. Mealtlt Orgaruizatittn. u. Aquiruo,"' the tre-
spondent judge issued a wan"ant for the search and sei^
".&rt. 91.
19 A-+ to
'*48 scRA z4?,
r
t52 IxrpnNartouar, Law
zure ofcertain goods alleged to have been brought into the
country illegally by an official of the World Health Organi_
zation. The WHO and the official moved to quash the
warrant on the ground of the lattefs diplomatic irnmunity
under the Host Agreement conciuded between the philip-
pines and the WHO. The Secretary of Foreign Atrairs
joined them in this representation, as so too iater did the
Solicitor General. Nevertheless, the judge denied the mo_
tion, holding that there were "strong and positive indica-
tions of violations of local laws." In annuiling the search
warrant, the Supreme Court held as follows:
1. The executive branch of the philippine Government
has expressly recognized that petitioner verstuyf't is entitled to
diplomatic irnmunity, pursuant to the provisions of the Host
Agreement. The Department of Foreign Affairs formally ad_
vised respondent judge of the philippine Government's o{ficial
position that accordingly'Dr. verst,yft cannot be the subject of
a Philippine court summons without violating an obligation in
international law of the philippine Governmerii' anrr asked for
the quashal of the search warrant, since his personal effects
and baggage, after having been allowed free entry from all cus_
toms and duties and taxes, may not be baselessly claimed to
have been 'unlawfully imported, in violation of the tariff and
customs code as clairned by respondent COSAC officers. The
Solicitor General, as principal law officer of the Government,
likewise expressly affirmed said petitioner's right to dipromatic
imrnunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and un_
der our system of separation of powers that diplomatic immu_
nity is essentially a political question and courts should ref_
use to look beyond a determination by the executive branch of
the government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the jov_
ernment as in the case at bar, it is then the duty of the courts
to accept the claim of immunity upon appropriate suggestion
by the principal law officer of the government, the Solicitor
General in this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may
not so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm ofthe government
Trm Rrcrn or Lncanox 159
in conducting foreign relations, it is accepted doctrine that'in
such cases the judicial department of (this) government follows
the action of the political branch and will not embarass the
latter by assuming an antagonistic jurisdiction.'
2. The unfortunate fact that respondent judge chose to
rely on the suspicion of respondents COSAC officers 'that the
other renoaining crates unopened contain contraband items'
rather than on the categorical assurance of the Solicitor Gen-
eral than petitioner Verstuyft did not abuse his diplomatic
immunity, which was based in turn on the official positions
taken by the highest executive offrcials with competence and
authority to act on the matter, nanoely, the Secretaries of For-
eign Affairs and of Finance, could not justify respondent
judge's denial ofthe quashal ofthe search warrant.
As already stated above, and brought to respondent
court's attention, the Fhilippine Government is bound by the
procedure laid down in Article VII of the Convention on the
Privileges and Immunities of the Specialized Agencies of the
United Nations for consultations between the Host State and
the United Nations agency concerned to determine, in the first
instance the fact of occurrence of the abuse alleged, and if so,
to ensure that no repetition occurs and for other recourses'
This is a commitment voluntarily assuroed by the Fhilippine
Government and as such has the force and effect of law.
Hence, even assuming arguendo as against the categori-
cal assurance of the executive branch of, government that re-
spondent judge had some ground to prefer respondent COSAC
o{Iicers' suspicion that there had been an abuse of diplomatic
imrnunity, the continuation of the search warrant proceedings
before him was not the proper remedy' He should, neverthe-
less, in deference to the exclusive competence and jurisdiction
of the execut'ive bra,nch of government to act on the matter,
have acceded to thdluashal of the search warrant, and for-
warded his findings or grounds to believe that there had been
such abuse of diplomatic immunity to the Department of For-
eign Affairs for it to deal with, in accordance with the afore-
mentioned Convention, if so warranted.
In the case of The lloly See u. Rasari,o,'* the Supreme
Court dismissed a civil complaint against the petitioner
"o 288 scRA b24.
 L54 ln'rtnnnrroulr, Lnw
a-fter the Department of Foreign Atrairs had "officially
certified that the Embassy of the Holy See is a duly ac_
credited diplomatic mission to the Republic of the prriup-
pines exempt from local jurisdiction as entitled to all the
rights, privileges and immunities of a diplornatic mission
or embassy in this country." It was further affirmed that
"the determination of the executive arm of the government
that a state or instrumentality is entitled to sovereign or
diplomatic immunity is a political question that is conclu-
sive upon the courts. Where the plea of immunity is recog-
nized and affirmed by the executive branch, it is the duty
of the courts to accept this claim so as not to ernbarrass
the executive arm of the government in conducting the
country's foreign relations.,
(c) Inviolability of Diplomatic premises
The Diplomatic Convention provides: *The premises
of the mission shall be inviolable. The agents of the re_
ceiving state may not enter them except with the consent
of the head of mission."m It also places on the receiving
state "a special duty to take all appropriate steps to pro-
tect 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."r, Furthermore, ,,the
premises of the mission, their furnishings and other prop-
erby thereon and the rneans of transport of the mission
shall be immune frorn search, requisition, attachment or
excution.'
Originally derived f,rom the principle of exterritorial_
ity but now generally justified on rnore pragmatic grounds,
the so-called, franchise dn I'hotel exbends imrnunity from
the local law to the diplomatic premises. These include the
'o Art. zz.
" Ibid.
" Ibid.
Tlm Rrcrm or LrcenoN 155
envoy's offices, his residence and out-buildings, his means
of transportation, and the compound where these are
found, which may not be entered by the local authorities
without his perrnission.
But this rule is not absolute as it is allowed, in cases
of clear and urgent necessity, for the local authorities to
take forcible measures to arrest any person subject to
their jurisdiction. The so-called right of diplomatic asylum
has not received universal recognition except when it is
extended for humanitarian reasons, as when the fugitive
seeking sanctua4r is in immediate danger of his life or
safety. In other cases, asylum is granted only on the
strength of local usage, particularly in favor of political
refugees, or of treaty stipulations.
Of particular interest is the case of Sun Yat Sen, who
was detained in 1895 in the Chinese legation in london in
defiance of a writ of habeas corpus. When the British gov-
ernment threatened to use force to carry out the order of
the court, the Chinese minister imrnediately ordered the
prisoner's release.
(d) Inviolability of Archives
For quite obvious reasons, the receiving state has no
right to pry into the official papers and records of a foreign
diplomatic mission. Accordingly, the Diplomatic Conven-
tion sirnply provides that "the archives and documents of
the rnission shall be inviolable at any time and wherever
they may be."* This is true even in case of armed conflict,
during which the archives must remain sealed and may
not be confiscated by the local state.
'" Att,24.
156 hmnRNenoN.ql Lew
(e) IuviolahiliW of Co"'mt'nieation
Being essential to the proper discharge by the envoy
of his official functions, the right to free communication is
recogrrized and protected by international law. According
to the Diplomatic Convention, "T'he receiving state shall
permit and protect free communication on the part of the
mission for all official purposes. In comrnunicating with
the government and other missions and consulates of ttre
sending state, wherever situated, the rnission may employ
all appropriate means, including diplomatic couriers and
messages in code or cipher."*
Such comrnunications are "inviolable" and the diplo-
matic bag containing it "shall not be opened or detained."
Even the diplomatic courier carrying the diplomatic bag
"shall be protected by the receiving state in the perform-
ance of his functions. He shall enjoy personal inviolability
and shall not be liable to any fonn of arrest or detenf,ion."*
(f) Exenaption frorn Testimonial Duties
The Diplomatic Convention also provides that "a dip-
lomatic agent is not obliged to give evidence as a wit-
ness."'u Nevertheless, he is not prohibited by international
law llom doing so and may waive this privilege when
authorized by his government. For example, the Venezue-
lan envoy testified at the trial ofthe assassin ofPresident
Garfield in 1881. On the other hand, the Dutch envoy to
Washington invoked this right in 1856 when he rejected a
request to testifr in connection with a homicide cornmitted
in his presence and for the prosecution of which his testi-
mony was necessary. The American government later
asked for his recall.
'o Art. 27.
"'Ibid.
'u Art. 31.
Ttm Rlcrr or l,rcat:oN 15?
(g) ExemPtion from Taxation
The diplornatic envoy is also exempt from taxes, cffil
toms duties, and other dues, subjest to the exception list'ed
in the Dipiomatic Convention,' and as well as from social
security reqr-dremenLs under eertain conditions'o His per-
sonal baggage is also free from inspection unless there are
serious grounds for presuming that it contains articles not
exempt fo* custorns duties or not admissible into the
receiving state.*
ft) Other Privileges
Subject to it,s laws and regulations concerning zones
entry into which is prohibited or regulated for reasons of
nationai security, the receiving state shall ensure to all
rnembers of the mission freedom of rnovement and travel
in its territory.s
The receiving state shall also exempt diplomatic
agents from all personal services, from all public services
oi*y kind whatever, and from rnilitary obligation such as
those connected with requisitioning, military contributions
and billeting."
The mission and its head shall have the right to use
the flag and ernblem of the sending state on the premises
of the mission, including the residence of the head of the
mission, and on his means of transport'"
" Arts. 34, 36.
" Art- 33,
" Art, 36.
'o Art. 26.
" A-rt. 35.
" Art. 20.
 V
r58 INrnnrvarroNal Lnw
The Diplomatic Suit or Retinue
The above-discussed immunities and privileges are
available not only to the head of mission and his family
b,ut also to the other members of the diplornatic retinue,
albit not in the same degree. The diplomatic retinue con-
sists of the diplornatic stafl, the administrative and techni-
cal staff and the service staff. The administrative and
technical staff enjoys the same rights as the diplornatic
staff except that immunity from civil and administrative
jurisdiction shall not extend to unofficial acts. On the other
hand, the private servants of the official rnernbens of the
rnission, if they are not nationals or perrnanent residents
of the receiving state, edoy only exemption from dues anci
taxes on their income from the mission and such other
immunities and privileges as may be granted by the re-
ceiving state.*
fluration
Every person entitled to diplomatic privileges and
irnmunities shall enjoy them from the morm.ent he enters
the territory of the receiving state on proceeding to take up
his post or, if already there, frorn the mornent his ap-
pointrnent is notified to the foreign ministry.*
$Ihen his functions have to come to an end, his privi-
leges and imrnunities shall normally cease from the mo-
naent he leaves the cciLrntry or on expil'.y of a reasonable
time in which to do so, but shail subsist until sueh time
even in case of, armed conflict. However', with respect to
acts performed by him in the exercise of his official {lurc-
tions, inununity shall eontinue indefinitely a.n it is sup-
'u Arts" s?, BB
* Art. ag.
'l'rrr,: Itrr:tt't' ttt,' l,t,;tla't'ttiN 151)
posed to have attached not to him personally but to the
state he was representing-'u
These privileges and immunities are avaiiatrle to him
and to his family not oniy in situ but as well in' transitu,
that is, when traveling through a third state on the way to
or from the receiving state, so far as may be necessarJr to
secure his transit or return'*
Termination of Diplomatic Mission
A diplomatic mission may come to an end by any of
the usuai methods of terminating official relations, like
death, resignation, removal, abolition of the offi'ce, etc'
These are governed by rmrnicipal law. Under international
law, the more important modes are recall and dismissal'
Recall rnay be demanded by the receiving state when
the foreign diplomat becomes personcl non grata to it for
*y ."*"n. An example is the request rnade hy the
U.S.S.R. in 1953 for the recall of U.S. Ambassador Kennan
for making derogatory statemenLs against the Soviet Gov-
ernment. Where the demand is rejected by the receiving
state, or even without making a request for recall, the
receiving state may resort to the more drastic method of
dismissal, by means of which the offending diplomat is
simply askerl to leave the country.
In October 1971, for instance, the British C'overn-
ment ordered no less than 105 soviet diplomatic officials to
leave Great Britain-the largest fiplomatic expulsion in
peacetirae history-for espionage. The U'S"S'R' later re-
taliated by ousting 5 British diplomats and refusing to
accept 13 others. In 1976, the North Korean arnbassador
and several rnernbers of his diplomatic mission were ex-
"u lbid.
'u Art. 40
1"
160 Il:truqenor'rAl LAw
pelled by the Scandinavian states to which they were
ac-
credited, for alleged involvement in ilticit d.rugs.
The outbreak of war between the sending and re-
ceiving states terminates their diplomatic relations, which
are in fact usually severed even before the actual corn-
IneRcement of hostilities. Extinction of either state will
also have the same effect. As for change of government,
diplomatic relafions arr not disturbed if the change is
peaceful but may be suspended where it is effected by
rreans of violence and the new government has not yet
been recognized by the receiving state. In either case, ac_
cording to Oppenheim, there is a necessity for the diplo-
r-natic agent to be provided with a new letter of credence.t,
" Oppenheim-Lauterpacht, 8 18.
Chapter 18
,./,,,,/coNsrJrs
CONSII,S are state agents residing abroad for various
purposes but mainly in the interest of commerce and navi-
gation. Unlike diplornatic agents, they are not charged
with the duty of representing their states in political mat-
terr nor are they accredited to the state where they are
supposed to disctrarge their functions. For this reason,
consuls do not ordinarfly eqioy all the traditional diplo-
matic immunities and privileges, although they are to a
eertain extent entitled to special treatment under the law
of nations.
The institution of eonsul dates back to as far as six
centrries hefore Christ, when the Egyptians allowed the
Greeks at Naucratis to choose frorn arnong themselves a
magistrate who would apply to them the laws of their own
cor.mtry. Later, the Greeks began sending to foreign juris-
dictions their own protectors or prostrates Qtrorenni), a
practice modified by the Romans with the appointrnent of
the practor peregrinus, who interpreted the law between
Romans and foreigners. Following the conquest of Rome,
the Visigoths established a special court that applied to
foreigners their own national laws rather than the law of
the territorial soverelgn. Similar courts were created by
the Chinese during the eighth century and by the Arabs in
the ninth century.
With the development of commerce in the Mefiterra-
nean cities and the Near East, numerous treaties of ca-
pitulation, as they were called, exernpted European na-
tionals in the Near East from the trocal jurisdiction and
161
 V
162 Ixlrnuettotvar, l,aw
made them triable by their own consuls according to their
own national laws. Eventually, in view of their growing
importaace, consuls acquired official character when they
were commissioned directly by their own governments
rather than merely by their own countr5nnen. The rise in
nationalism and the concept of sovereignty, however,
gradually decreased much of the power of consutrs until
they became vested only with authority to act generally on
commercial and related matters. Nevertheless, the con_
tinuing expansion of international commerce, coup ed with
the irnprovement of transportation and communication in
the seventeenth and eighteenth centuries, led to the fur_
ther growth ofconsular seryiees.
Kinds snd Grades
There are two kinds of consuls, to wit, tine consules
rnrssi and the consules electi.'The first are professional or
career consuls who are nationals of the appointing state
and are required to devote their fi:Il time to the discharge
of their consular duties. The second may or may not be
nationals of the appointing state and perform their con-
sular functions only in addition to their regrrlar callings.
Although consutrs enjoy a cerbain measure of interna_
tional character, their grades or ranks remain a matber of
municipal concern. Under the Consular Convention, how-
ever, the heads ofconsular posts are classified according to
importance into consul-general, consul, uice-consul and
consular agent.'
Appointment
Consuls derive their authority from two prineipai
sources, uiz.,the letter patent or lettre de prouision, which
' Consular Convention, Art. tr, Sec. 2.
'Ibid., Art. 9, Sec. 2.
L)owstrrs I (;:l
is the commission issued by the sending state,' and the
exequatur, which is the authority given to them by the
receiving state to exercise their duties therein'n Hence,
consuls are puhtric offi"cers not only of the sending state but
of the receiving state as well, and are governed by the laws
of both" d,s in the case of diplomats, states may refuse to
receive consuls and to withhold tlne exequatur ftatn them
w-ithout explanation.
The consent given to the establishment of diplornatic
relations between two states irnplies, unless otherwise
stated, consent to the estabiishrnent of consular retrations.'
I lowever, the severance of diplomatic relations shall not
ipso facto involve the severance of consular reiations,u and
uice uersa.
Functions
Generallv speaking, the functions of consuls rnay tre
divided into duties pertaining to commerce and navigation,
duties respecting the issuance ofpassports and visas, and
duties of protection of naLionals.
t'ile principal duty of consuls is to prornote the corn-
mercial interests of their country in the receiving st'ate and
to observe the commercial trends and developments
therein for report to their home goverrrment.
They aiso perfr:rm duties relati'ng to navigation, such
as visiting ancl inspecting vessels of their own states which
rnay be in the consular district, exercising a rneasure of
supen'ision over such vessels, adjusting rnatters pertajn-
ing to their internal order and discipline, as well as visit-
''Ibid., Art. 11, Sec. 1.
'Ibid., Art. 12, sec. 1.
' Ibid., Att.2, Sec. 2.
' Ibi.d., Arr. 2, Sec. 3.
r
164 lmtnNauoual l"ew
ing and inspecting forergn vessels destined for a port of the
sending state.
Consuls are also empowered to issue passports to na_
tionals of the sending state, to visa passports and to issue
documents relating to entry ixto ;d travel within the
territory of the sending state, and to visa invoices and
c,ertificates of origin of goods destined for the territory of
that state.
It is likewise the responsibility of consuls to look after
the interests of fellow nationals and to extend them official
assistance whenever needed. Thus, they may authenticate
docurnents, solemnize marriages, regrster births and
deaths, temporarily administer the estates of deceased
nationals within the consular district, advise and adjust
differences between their fellow nationals, visit them *iru'
they are a*ested or detained by the receiving state, assist
them in proceedings before or in reratio, *ith the rocal
authorities, and inquire into any incidents which have
occurred within the consular district affecting the interests
of such nationals.'
Immunities an d Privileges
had already been noted that consuls, not being
diplomatic officials, do not ordinarily enjoy the traditioni
diplomatic immunities and privileges. Ho*".,,u", interna_
tional comity and conventions have invested them with
certain privileges and immunities which are generally
recogrrized and observed by civilized states.
By almost universal acceptance, consuls have a right
to official eornrnunication and may conrcspond with their
home goverrrment or other official bodies by any means,
including cipher or code, without being subjected to cen-
sorship or unreasonable restraint. However, this right
' Ibid.,Art. b.
Coxsus 165
may be curtailed or restricted whenever it is exercised to
theprejudice of the receiving state''
Consuls also enjoy inviotability of their arehives,'
which rnay not be exarrlined or seized by the receiving
state under any circumstance, nor may their production or
testimony concerning thern be cornpelled in official pro-
ceedings.'o But this immunity does not extend to the con-
sdar frernises thernselves, where legal process may be
served and anests made without violation of international
law, except only in that part where consular work is being
puir*.*d." In the famous case of Mrs' Kasenkina, for
example, the United States rejected a protest neade by
Russia against the service of a writ of habeas col'pas upon
the lattei's consul at his official residence in New York for
the production of a Russian schoolteacher alleged to be
detained in the premises. In fact, the consular offices may
even be expropriated for purposes of national defense or
public utility."
Respecting crirninal offenses, the rule is that corrsuls
are exempt from the local jurisdiction for crimes commit-
ted by them in the discharge of their official functions. But
withiegard to other offenses, they are f,lly subject to the
local lai and may be arrested, prosecuted and punished in
proper proceedings. For reasons of cornity, however, con-
t"f. *"uUy are not prosecuted for minor offenses and'
when arrested, are given adequate opportunity to secure
their release on bail ut,gfr* earliest possible time'"
Civil suits rnay be instituted against consuls in their
personal or private capacity but not in matters connected
'trbid., Art.35.
'Ibid., Art. 33.
'o Ibid., Art. 44, Sec. 3.
" Ibid., Art. 31.
" Ibid., Art. 31, sec.4.
" Ibid., Arts. 40, 43.
 I.66 INrntrNarioN,,rr, Law CoNsus L67

with their official duties.'n In Watthier u. Thomson,,ro for like. The exequntur may also be withdrawn by the receiv-
examptre, where a consul was sued for damages resulting ing state, either of the appointing or receiving state may
from cerLain statements allegedly made by him, it was be extinguished, or war may break out between them. In
held that the "consular officiar is immune from suit when the event of war, the consulate is closed and the archives
the acts complained of were performed in the course of his are sealed and left in the custody of a caretaker', usually a
officiai duties. . . Thus, if the statements allegedly made
to eonsul f,rom a neutral state. The consr.d from the belliger-
Walthier by Thomson were uttered in pursuance of Thom_ ent state is allowed to depart for his own country as soon
son's official functions as a consular offi"u., then the sug_ as possible and without unnecessary molestation.
gestion of the ambassador of canada should be It should be noted that severance of consular rela-
adopted
and the defendant held immune.', tions does not necessarily terrrrinate diplornatic relations.
Consuls are also generaily exempted from taxation, Thus, as an offshoot of the Kasenkina case, Russia and the
customs duties, service in the militia, and social security United States discontinued consular relations for more
rules, and are privileged to display their nationat flag
and than fifteen years. During that period, however, they
insignia in the consulate arthough these concessions are maintained diplomatic relations.
considered "non-essentiar" to the proper discharge of
their
official duties."'u
_ These immunities and privileges are available not
only to the consul but also to the members of the consular
p_ost, their respective families, and the private
staffs.'u
[-alver may in general be made by the sending state.',
with respect to acts performed by the consul or a consura.
officer or employee in the exercise of his functions, immu-
nity from jurisdiction will subsist without limitation of
tirne."
Termination of Consular Mission
The consul's office may end in accordance with the
usual modes of terminating official relations, such as re_
moval, resignation, death, expiration of the term, and the

'n lbid.., Art.49.

'* 189 F. Supp. J19 (1960).
"-Ibid., Arts. 49, bo, sz, 4g, zg
''_Ibid., Art. 53, Secs. l, 3.
" IbirL., art. 4s, sec. 1.
" Ibid., Art. ss, Secs. s, 4.