RIGHT OF LEGATION
To avoid embarrassment, States resort to an informal
A. The right of legation. Also known as the right of diplomatic intercourse,
this refers to the right of the State to send and receive diplomatic missions,
which enables States to carry on friendly intercourse. It is not a natural or
inherent right, but exists only by common consent. No legal liability is
incurred by the State for refusing to send or receive diplomatic
representatives. Governed by the Vienna Convention on Diplomatic Relations
(1961).
1. Agents of Diplomatic Intercourse.
a) Head of State. He is the embodiment of, and represents, the sovereignty of
the State, and enjoys the right to special protection for his physical safety and
the preservation of his honor and reputation. His quarters, archives, property
and means of transportation are inviolate under the principle of
exterritoriality. 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. See Mighell v. Sultan of Johore, supra..
b) The Foreign Office. The actual day-to-day conduct of foreign affairs is
usually entrusted to a Foreign Office, headed by a Secretary or a Minister,
who, in proper cases, may make binding declarations on behalf of his
government [Legal Status of Eastern Greenland].
2. Establishment of Resident Missions.
States carry on diplomatic intercourse through permanent missions established
in the capitals of other States. The mission is composed of:
a) Head of Mission. The Vienna Convention classifies the heads of mission
into:
i) Ambassadors (official envoy; especially, a highest ranking diplomat who
represents a State and is usually accredited to another sovereign State
(country), or to an international organization as the resident representative of
his or her own government or sovereign or appointed for a special and often
temporary diplomatic assignment.) or nuncios (ecclesiastical diplomatic title,
derived from the ancient Latin word, Nuntius, meaning "envoy." This article
addresses this title as well as derived similar titles, all within the structure of
the Roman Catholic Church. A Papal Nuncio is the equivalent of
Ambassadors of other countries, although in Catholic countries, the nuncio
often ranks above Ambassadors in diplomatic protocol.). Accredited to Heads
of State, and other heads of mission of equivalent rank;
ii) Envoys (envoy extraordinary) minister plenipotentiary accredited to a
foreign government who ranks between an ambassador and a minister
resident. ministers (rank of diplomat directly below ambassador )and
internuncios (A Vatican diplomatic envoy or representative ranking just
beneath a nuncio and A messenger or an agent; a go-between), accredited to
Heads of State; and
iii) Charges d’affaires (a subordinate diplomat who substitutes for an absent
ambassador or minister), accredited to Ministers of Foreign Affairs.
b) Diplomatic Staff, composed of those engaged in diplomatic activities and
are accorded diplomatic rank.
c) Administrative and Technical Staff, consisting of those employed in the
administrative and technical service of the mission.
d) Service Staff, i.e., those engaged in the domestic service of the mission.
3. The Diplomatic Corps.
According to custom, all diplomatic envoys accredited to the same State form
a body known as the “Diplomatic Corps”. The doyen or head of this body is
usually the Papal Nuncio, if there is one, or the oldest ambassador, or, in the
absence of ambassadors, the oldest minister plenipotentiary.
4. Appointment of Envoys.
In the Philippines, it is the President who appoints [Sec. 16, Art. VII,
Philippine Constitution], sends and instructs the diplomatic and consular
representatives, and his prerogative to determine the assignment of the
country’s diplomatic representatives cannot be questioned [De Perio-Santos v.
Macaraig, G.R. No. 94070, April 10, 1992].
a) The sending State is not absolutely free in the choice of its diplomatic
representatives, especially heads of mission, because the receiving State has
the right to refuse to receive as envoy of another State a person whom it
considers unacceptable.
inquiry [enquiry] as to the acceptability of a particular envoy, to which the
receiving State responds with an informal conformity [agrement]. This
informal process is known as aggreation (a diplomatic procedure by which a
state determines in advance whether a proposed envoy will be acceptable to
the receiving state.)
.
b) With the informal process concluded, the diplomatic mission then
commences when the envoy presents himself at the receiving State, generally
armed with the following papers: (i) Lettre de creance (letter of credence),
with the name, rank and general character of the mission, and a request for
favorable reception and full credence; (ii) diplomatic passport authorizing
his travel; (iii) instructions, which may include a document of full powers
(pleins pouvoirs] authorizing him to negotiate on extraordinary or special
business; and (iv) cipher, or code or secret key, for communications with his
country.
5. Functions and duties.
The main functions of a diplomatic mission are:
a) representing the sending State in the receiving State;
b) Protecting in the receiving State the interests of the sending State and its
nationals, within the limits allowed by international law;
c) negotiating with the government of the receiving State;
d) ascertaining, by all lawful means, the conditions and developments in the
receiving State and reporting these to the sending State; and
e) promoting friendly relations between the sending State and the receiving
State, and developing their economic, cultural and scientific relations.
6. 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.
a) 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 self-defense). 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.
b) 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.
i) 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 [Fatemi v. U.S.].
ii) 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, in Reyes v.
Bagatsing, 125 SCRA 553, 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.
iii) 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.
iv) 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.
c) 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.
d) 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 [Dickinson v. Del Solar, 1 K.B. 376].
i) 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.
ii) 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.
iii) However, see Minucher v. Court of Appeals, G.R. No. 97765, September
24, 1992, where 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. See also Shauf v. Court of Appeals, 191
SCRA 713, where it was 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.
iv) 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.
v) 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.
e) 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: [i]
indirect taxes normally incorporated in the price of goods or services; [ii] 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; [iii] estate, succession or inheritance taxes levied by the
receiving State; [iv] 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; [v] charges levied for specific services rendered; and [vi]
registration, court or record fees, mortgage dues and stamp duty, with respect
to immovable property.
i) 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.
f) Other privileges, which include freedom of movement and travel in the
territory of the receiving State; exemption from all personal services and
military obligations; the use of the flag and emblem of the sending State on
the diplomatic premises and the residence and means of transport of the head
of mission.
7. 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.
8. 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.
9. 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.
B. Consular Relations. Consuls are State agents residing abroad for various
purposes but mainly in the interest of commerce and navigation.
1. Kinds of Consuls:
a) Consules missi are professional and career consuls, and nationals of the
appointing state.
b) Consules electi are selected by the appointing state either from its own
citizens or from among nationals abroad.
2. Ranks:
a) Consul General, who heads several consular districts, or one exceptionally
large consular district.
b) Consul, who takes charge of a small district or town or port
c) Vice Consul, who assists the consul
d) Consular agent, who is usually entrusted with the performance of certain
functions by the consul.
3. Appointment. Two important documents are necessary before the
assumption of consular functions, namely:
a) 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
b) 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.
4. 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.
5. 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.

a) 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.

6. Termination of consular mission. Usual modes of terminating official

relationship; withdrawal of the exequatur; extinction of the state; war.

a) Severance of consular relations does not necessarily terminate

diplomatic relations.

RIGHT OF LEGATION
a. right of state to maintain diplomatic relations with other states
b. Governed by the Vienna Convention on Diplomatic Relations (1961)

Agents of Diplomatic Intercourse:

1. head of state;
be the monarch or the president, he is entitled to certain immunities and
honors benefiting to his status. He is exempt from criminal jurisdiction as well
as civil jurisdiction except where himself id the plaintiff, and he is not subject
to tax or to exchange currency restrictions.(Mighell v Sultan of Johore) The
case is about breach of promise to marry allegedly made by the defendant, the
action was dismissed when he revealed his identity as head of an independent
state.

2. foreign secretary of minister;-

3. members of diplomatic service.

Functions of Diplomatic Missions:

1. representing sending state in receiving state;
2. protecting in receiving state interests of sending state and its nationals;
3. negotiating with government of receiving state;
4. promoting friendly relations between sending and receiving states and
developing their economic, cultural and scientific relations;
5. ascertaining by all lawful means conditions and developments in receiving
state and reporting thereon to government of sending state; and
6. in some cases, representing friendly governments at their request.

Agreation
process in appointment of diplomatic envoy. Where states resort to an
informal inquiry(enquiry) as to the acceptability of a particular envoy, to
which the receiving state responds with an informal conformity (agreement).

Letre de Creance
(Letter of Credence) - with the name, rank and general character of his
mission, and a request for favorable reception and full credence.