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DIPLOMATIC INTERCOURSE

Establishment of Diplomatic Relations

● Nowadays, it is hard to imagine a state living in complete isolation from the rest
of the world. Thus, one of the aims of the United Nations is to establish
diplomatic relations among different states.
● Every independent State has the right of ​legation​, or the right to send and receive
diplomatic missions. However, in the case of a State which is a member of a
federation, the question whether it is qualified to establish diplomatic relations will
depend on the federal constitution.
● The establishment of diplomatic relations, however, may only take place upon
mutual agreement. No state may ever be compelled to send or receive foreign
envoys.

Agents of Diplomatic Intercourse

The Head of State

● International law recognizes the Head of State as the chief organ and
representative of the State in the totality of its international relations.
● The head of state has the power to receive and send diplomatic missions,
conclude treaties, declare war and make peace.

When travelling abroad incognito

● A Head of State traveling incognito in a foreign country enjoys the same

privileges and immunities as if he were not traveling incognito except that no
ceremonial honors are rendered to him.

● He may, however, reveal his real character and demand the privileges and
immunities due him as a Head of State

The Foreign Office

● In practically every modern State today there is, in one form or another a Foreign
Office to whom the actual day-to-day conduct of foreign affairs is entrusted. The
head of the Office is usually a Minister or Secretary, who is a Cabinet member.
● In the Philippines, the equivalent to this, is the ​Department of Foreign Affairs,​
headed by the ​Cabinet Secretary of Foreign Affairs.
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■ International law recognizes him as the regular intermediary between his

government and foreign countries

■ It is he who normally carries on negotiations with foreign States, either

personally or through the diplomatic agents of his country abroad

■ All documents of importance and communications concerning relations

with other countries are signed by him or on his behalf. The resident
diplomatic representatives of other States conduct their negotiations with
him.

■ He may also, in proper cases, make binding declarations on behalf of his

government. In a case involving the status of Greenland, the Permanent
Court of International Justice held that ​a statement made by the
Norwegian Minister for Foreign Affairs to the Danish Minister that the
Norwegian Government would not make any difficulties in the settlement
of the question relating to Denmark's claim over the whole of Greenland
was binding on Norway.1

Establishment of Resident Missions

● Missions
○ How States carry on their diplomatic intercourse
○ Permanent, stationed at one another’s capital

● Mission Personnel
○ Diplomatic Staff
■ Engaged in diplomatic activities and are accorded a diplomatic rank
■ Ministers or Ministers-counsellors, Counsellors, First, Second, and
Third Secretaries, and attaches
■ Specialized officials such as military officers attached to the mission
○ Administrative and Technical Staff
■ Employed in the administrative and technical service of the mission
○ Service Staff
■ Employed in the domestic service of the mission
○ The size of the staff required for the mission is determined by the sending
State. However, in the absence of any specific agreement regarding the
size of the mission, the receiving State may require that the size of the

1
​Legal Status of Eastern Greenland, P.C.I.J. Pub., Series A/B, No. 53, p.22
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mission be kept at a certain limit and refuse to accept officials of a

particular category subject to a reasonable and non-discriminatory basis

Obligation and Limitation of the Sending State

● The Foreign Office of the receiving State must be furnished with a list of the
members of the mission and the Foreign must then publish a list of such persons.
■ Any changes must be promptly communicated as it is desirable for
the receiving State to know who may claim immunities and
privileges
● Without the prior consent of the receiving State, the sending State cannot
establish offices which form part of the mission in localities other than those in
which the mission itself is established

Obligation of the Receiving State

● Facilitate the acquisition, on its territory, of the premises necessary for the
sending State’s mission or assist the sending State in obtaining accommodation

Envoys and Consuls

● Envoy- a messenger or a representative on a diplomatic mission
● Kinds of Envoys
○ Ceremonial or Political
● Envoys Ceremonial
● Sent for the purposes of ceremonial functions
○ Attending coronations, inaugural ceremonies, notifying changes in the
headship of the sending State
● Envoys Political
○ Sent for political negotiations
○ Accredited to a State or Representing a State
○ Accredited to a State
■ Permanent or temporary
■ Sent for the purpose of negotiating with such State
○ Representing a State
■ Sent to represent the State at international conferences

○ Ordinary or Extraordinary
■ Ordinary Envoys
● Permanently represents the government of one State
■ Extraordinary Envoys
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● Entrusted with a special mission or accredited to

represent the government in international conferences
and congresses or other international bodies

Classes of Diplomatic Agents

● To avoid serious incidents arising by reason of claims to precedence between
various diplomatic agents, the Congress of Vienna of 1815 adopted regulations
which defined the order of precedence among diplomatic agents
1. Ambassadors, legates (a member of the clergy representing the Pope)
or nuncios (ecclesiastical diplomat representing the Holy See)
2. Ministers or other envoys accredited to sovereigns
3. Charges d’affaires accredited to Ministers for Foreign Affairs

● The Congress of Aix-la-Chapelle of 1818 instituted a fourth class, the resident

ministers, coming in order of precedence between the 2nd and 3rd classes
established by the Congress of Vienna

Classes of Heads of Mission

● The Vienna Convention of 1961 on Diplomatic Relations classified the heads of
mission into three classes:
1. Ambassadors or nuncios accredited to Heads of State, and other heads
of mission of equivalent rank
2. Envoys ministers and internuncios (a papal legate of lower rank than a
nuncio) accredited to Heads of State
3. Charges d’affaires accredited to Ministers for Foreign Affairs
○ The differentiation between heads of mission by reason of their
class are ​important only for purposes of precedence and etiquette
○ Precedence is ​determined in the order of the date and time of their
taking up of their functions​, without prejudice to any practice
accepted by the receiving State regarding the precedence of the
representative of the Holy See
■ Either when he was ​presented his credentials or when ​he
has notified his arrival and a true copy of his credentials has
been presented to the Ministry for Foreign Affairs or such
other ministry as may be agreed, in accordance with the
practice prevailing in the receiving State
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No exact rule for determining what rank a State should give to the envoys it
sends to other States
○ In general: Rank is determined by mutual desires of the two governments
concerned and is based largely on considerations of political, economic, and
cultural ties
○ In practice: The diplomatic representatives to be exchanged must be of equal
rank

Consul - an official appointed by a government to live in a foreign city and protect

and promote the government’s citizens and interests there
○ Mainly looks after the commercial interests of their own State in the territory of a
foreign State
○ Deals directly with the local authorities
○ Not entitled to maintain direct intercourse with the foreign government
○ Not clothed with diplomatic character and are not accredited to the government
of the country where they exercise their consular functions
○ Do not represent their State in its relations with foreign State and are not
intermediaries through whom matters of State are discussed between
governments
■ Exception: Article 17 of the Vienna Convention on Consular Relations,
1963
1. In a State where the sending State has no diplomatic mission
and is not represented by a diplomatic mission of a third State, a
consular officer may, with the consent of the receiving State, and
without affecting his consular status, be authorized to perform
diplomatic acts. The performance of such acts by a consular
officer shall not confer upon him any right to claim diplomatic
privileges and immunities.
○ However, since consuls are public officers of their State and permitted to perform
certain functions within the foreign territory, they ​have a recognized public
character

Kinds of Consuls

Consuls of Career and Honorary Consuls

■ Consuls of Career or Consules Missi
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● Members of the regular consular service sent abroad by their

governments expressly for the purpose of performing consular functions
in the territory of the receiving country
■ Honorary Consuls or Consules Electi
● Appointed from individuals residing in the consular districts for which
they are designated as consuls
● Not necessarily nationals of the State which they represent and are
usually not accorded all of the privileges and immunities granted to
consuls of career

Grades of Consuls
○ Heads of Consular Posts fall under 4 classes:
a. Consuls-general
b. Consuls
c. Vice-consuls
d. Consular agents
○ For purposes of precedence, heads of consular posts shall rank in each class
according to the date of the grant of the exequatur (​an official recognition by a
government of a consul, agent, or other representative of a foreign state,
authorizing them to exercise the duties of office)

Diplomatic Corps
○ Diplomatic Customs
■ All diplomatic envoys accredited to the same State form a body known
as the “Diplomatic Corps.”
■ Doyen or Head of this body
1. Usually the Papal Nuncio
2. If there is none, the oldest ambassador
3. If there is no ambassador, the oldest plenipotentiary, and so on.

Appointment of Diplomatic Convoys

○ Personal qualifications and manner of appointment of diplomatic officials
■ Matters to be determined solely by the municipal law of the sending
State.
■ In the Philippines, ambassadors, other public ministers and consuls
are appointed by the President, with the consent of the Commission on
Appointments
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Receiving State
● Has the right to refuse to receive as envoy of another State a person whom it
considers persona non grata or unacceptable.
● Since a state is not legally obligated to enter into diplomatic relations with
another; it is under no obligation to receive any designated individual as the
envoy of a foreign State.
● A State may refuse, without committing a breach of International Law, the
designation of a particular individual as a diplomatic envoy.
1. The State is not bound to state its objections or justify the refusal.

In practice, however, States are frequently offended if reception of their envoys is

refused.
■ To avoid possible embarrassment, it has become the universal practice of States
to make ​agreation before appointing a particular individual to be the chief of a
diplomatic mission.

Agreation
■ Consists of two acts:
1. The inquiry usually informal, addressed by the sending State to the
receiving State regarding the acceptability of an individual to be its chief of
mission
2. The agreement, also informal, by which the receiving State indicates to
the sending State that such person would be acceptable.

Letters of Credence
○ Among the papers which an envoy should have with him when he leaves for his
post to take up his duties are:
■ His diplomatic passport
■ His instructions
■ His letter of credence

○ The person who has been appointed as envoy receives from his government a
letter credence or letter de creance.
○ This is a document by which the envoy is accredited to the foreign State to which
he is being sent. It designates the rank and the general object of his mission, and
asks that he be received favorably and that full credence be given to what he
says on behalf of his State.
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○ Signed by the Head of State, and in the case of ​charges d’affaires, ​by the
Secretary or Minister for foreign Affairs.
○ The envoy receives the sealed original and an open copy of his letter of
credence.

Notification and Reception

Appointment of the head and other members of the mission must be notified to the
Ministry of Foreign Affairs of the Receiving State. As soon as he arrives, he sends the
copy of his letter of credence to the Foreign Office of the Receiving State to make
known his arrival. Charges d’affaires present their sealed letter of credence and are
formally received by the Minister or Secretary for Foreign Affairs.
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Exception to the Exception on Local Civil Jurisdiction ​(​Vienna Convention on

Diplomatic Relations, Art. 31 (1))​
(a) 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;

(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;

(c) An action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State OUTSIDE his official functions.

Exception to the Exemption from Taxation ​(​Vienna Convention on Diplomatic

Relations)
(a) INDIRECT taxes of a kind which are normally incorporated in the price of
goods or services;

(b) 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 the
purposes of the mission;

(c) Estate, succession or inheritance duties levied by the receiving State,

SUBJECT to the provisions of paragraph 4 of article 39;

(d) Dues and taxes on private income having its source in the RECEIVING State
and capital taxes on investments made in commercial undertakings in the
receiving State;

(e) Charges LEVIED for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with
respect to immovable property, subject to the provisions of article 23.

Waiver of Immunities
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● RULE: Waiver can only be made by the government of the sending State if it
concerns the privileges and immunities of CHIEF of mission
○ Cannot be waived by the Chief of the mission since such privileges are not
personal to him
○ Must always be express
● HOWEVER ​initiation of proceedings by diplomatic agent/any person enjoying
immunity from jurisdiction precludes him from invoking immunity from jurisdiction
in respect of any counter-claim directly connected with the principal claim
● Waiver of immunity from jurisdiction in civil and administrative proceedings does
NOT include an implied waiver of immunity in respect to EXECUTION of
judgment, for such a separate waiver is necessary

Termination of Diplomatic Mission

ACT ENVOY CONSUL

Death ✔ ✔

Recall by his government ✔ ✔

dismissal by sending ✔ ✔
State

Rupture of diplomatic ✔
relations

Outbreak of war between ✔ ✔

sending and receiving
State

If diplomatic mission is ✔
for a limited duration, the
same terminates upon
expiration of the period

Mission sent for a ✔

special purpose, comes
to an end upon
accomplishment of, or its
failure to accomplish, its
object
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Notification by receiving ✔
State to the sending
State that it has ceased
to consider him as a
member of the consular
staff

Withdrawal of his ✔
exequatur by the
receiving State

Cases
Dickinson v. Del Solar
This is a suit to recover damages against the defendant, who was at that time the First
Secretary of the Peruvian Legation in London, for injuries sustained by plaintiff arising
from a motorcar accident. The defendant sought a declaration that he was entitled to be
indemnified by his insurer, the Mobile and General Insurance Co. Ltd., for any amount
he might be adjudged to pay to the plaintiff. The insurance company interposed, among
other defenses that the defendant was under no legal liability to the plaintiff because of
his diplomatic status.

Diplomatic agents are not, in virtue of their privileges as such, immune from legal
liability for any wrongful acts. The accurate statement is that they are not liable to be
sued in the English Courts unless they submit to the jurisdiction.

Diplomatic privileges do not import immunity from liability, but only exemption from local
jurisdiction. The privilege is the privilege of the Sovereign by whom the diplomatic agent
is accredited, and it may be waived with the sanction of the Sovereign or of the official
superior of the agent
In the present case, the privilege was waived and jurisdiction was submitted to by the
entry of appearance and as Mr. Del Solar had so submitted to the jurisdiction, it was no
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longer open to him to set up the privilege. If the privilege had been pleaded as a
defense, the defense could, in the circumstances, have been struck out. Mr.Del Solar
was bound to obey the direction of his Minister in the matter

Walthier v. Thomson
This is a suit against a Canadian government officer for damages resulting from alleged
false statements to induce plaintiff to migrate to Canada. The question raised concerned
the liability of the officer to be sued.

D. P.Heeney, Ambassador of Canada to the U. S. appears as amicus curiae for the

defendant Thomson and has submitted suggestions of Her Majesty in Right of Canada,
Queen Elizabeth II, that Canada “is not subject to suit * * * without Her consent whether
the suit be brought directly against Her or Her Government acting in course of his
official duties and in Her Majesty’s behalf in the City of New York
Plaintiff consenting, U. S. Attorney has informed the Court of the Department of State’s
response to a note, dated March 17, 1960, from the Charge d’Affaires of Canada to the
Secretary of State concerning the complaint herein. The charge’s note requested the
assistance of the Secretary of State in bringing to the Court’s attention that the
defendant Thomson enjoys sovereign immunity. The Department’s reply, as
communicated to this Court is:

“It is a matter of record in the Department of State that Mr.Hubert W. P.

Thomson is ‘Settlement Officer–Department of Citizenship and Immigration‘ of
the Canadian Government on duty at the Canadian Consulate General in New
York City, that he held that position on and continuously subsequent to March 6,
1957, [his] official duties include interviewing and advising prospective
immigrants to Canada.”

The statements which form the matrix of plaintiff’s claim, as reflected in the amended
complaint, are all comments made by Mr. Thomson to plaintiff with respect to what
plaintiff might anticipate upon arrival in Edmonton. The complaint specifically alleges
that Mr. Thomson was at all times an officer of the Canadian government. We address
ourselves solely to the application of sovereign immunity to the facts of this case.A
consular official is immune from suit when acts complained of were performed in the
course of his official duties. Thus, if the statementallegedly made to Walthier by
Thomson were uttered in pursuance of Thomson’s official functions as a consular
officer, then the suggestion of the Ambassador of Canada should be adopted and the
defendant held immune.

Mr. Thomson was sent to NY to interview and advise prospective immigrants to

Canada. Since the complaint itself alleges that the statements were “designed to induce
the plaintiff to leave the US,” it appears beyond peradventure that he was acting in the
course of his official duties