Ann Julienne Aristoza

2012-71650

I.

1. Distinguish ratione personae and ratione materiae immunity. Draw some examples on
subjects and circumstances which they extend to.

Rationae Personae translates to “by reason of their person” and refers to immunity which
attaches to the officials by reason of the office they hold; it answers the question of who is
covered by immunity. It covers both official and personal acts. Some examples of these personal
immunities are immunity from arrest and detention, and immunity from civil, criminal, and
administrative jurisdiction of people. For example, in the case of Wei Ye et al v Jiang Zemin and
Falun Gong Control Office, it was decided that the petitioner, despite the human rights violations
he committed, is immune from prosecution because he held the office of head of State.

Rationa Materia, on the other hand, refers to functional immunity in that it attaches to the
official acts of officials and is determined in reference to the nature of these acts as opposed to
by reference to the office held by said individual; it answers the question of what is covered by
immunity. In Jurisdictional Immunities of State1, the ICJ implied that immunity from foreign
criminal jurisdiction from which all serving and former state officials benefit is a manifestation
of state immunity. The classification of acts covered by this immunity has the following aspects:

 Nature of the act: whether or not it was exercised within official competence or if it was
ultra vires
 Time of occurrence of the act: whether or not it was committed during the official’s term
or outside of it
 Place of commission of the act

2. Distinguish acta jure imperii and acta jure gestionis.

The concepts of acta jure imperii and acta jure gestionis find their importance in relation to
restrictive immunity. By restrictive immunity, as opposed to absolute immunity which covers
both acta jure imperii and acta jure gestionis- resulting in all acts of the State being covered by
immunity, only acts jure imperii are protected by sovereign immunity.

Acta jure imperii refers to sovereign or governmental acts- hence, public in nature. An example
is the conduct of public bidding for the repair of wharf at a US Naval Station 2. Acta jure
gestionis, on the other hand, refers to non-governmental, commercial or proprietary acts- hence,

1
Germany v Italy, ICJ Rep 2012
2
USA v Ruiz, GR No. L-35645, 1985
private in nature. An example is the bidding for the operation of barber shops in Clark Air Base
in Angeles City.3

The Philippines has adopted the restrictive immunity approach in that sovereign immunity is
only recognized in cases of acta jure imperii and not with respect to acta jure gestionis.

3. What is the Act of State Doctrine?

The Act of State Doctrine is taken in relation to each sovereign state’s obligation to respect the
independence of every other state, in that it is a method by which States prevent their national
courts from settling disputes which are related to the internal affairs of another State. Under this,
the sovereignty of each State is respected as they cannot be required to submit to the jurisdiction
of a national court nor be required to adjudicate without their consent.

In Banco Nacional de Cuba v Sabbatino4, the US Supreme Court issued a rather controversial
opinion by holding that the due to an absence of clear unity of international opinion disapproving
the seizure of land or property in a country by the government of that country, the doctrine can
be applied.

Due to this doctrine, the settlement of disputes must be through actions of sovereign powers as
between themselves, not involving their respective national courts.

4. In what circumstances can immunity extend to physical objects? Explain.

Under the following provisions of the Vienna Convention on Diplomatic Relations, immunity
extends to physical objects:

a. Article 22, paragraph 3 states that the premises of the mission, their furnishings and other
property, as well as the means of transport of the mission are immune from search,
attachment, execution, and requisition
b. Article 23, paragraph 1 states that sending States and their heads of the missions are
exempted from all taxes with respect to the premises of the mission, be they owned or
leased- we note however that such exemption does not extend to persons contracting with
sending States and their mission heads
c. Article 24 states that archives and documents of the mission are inviolable at any time,
regardless of their location
d. Article 30 states that the private residence, papers, and correspondence of a diplomatic
agent enjoy the same inviolability and protection as the premises of the mission.

II.

3
USA v Guinto, GR No. 76607, 1990
4
Banco Nacional de Cuba v Sabbatino, 376 US 398, 1964
The Mid-Autumn Festival is a widely celebrated event not only within the People’s
Republic of China but also in many Chinese communities abroad. For 2018, China’s
Consulate-General in Cebu planned a number of week-long activities open to the public,
including a gala to be held on the eve of the Festival. Through the efforts of Ms. Weijia Xu,
a foreign service officer stationed at the Chinese Embassy in Manila, Party Flavors, a local
events and catering company, was hired to coordinate the gala to be held at the auditorium
of the Consulate-General’s Annex Building in Cebu.

On the evening of the event, and about ten minutes before the fireworks display marking
the culmination of the Festival, a fight broke out at one of the tables where members of the
Chinese diplomatic and consular staff were seated. An argument first ensued between
naval attaché Ha Min Li, and Mario Montes, a prominent Filipino-Chinese businessman in
Cebu. The exchange ended in Ha Min Li smashing a bottle of champagne on Montes’ head.
Montes was badly injured but survived the assault. As his bodyguards walked him out of
the premises so he can be taken to a nearby hospital, Montes was noted to have muttered
threatening words against Ha in Visayan.

Despite the interruption, the staff of Party Flavors proceeded with setting off the fireworks
display as planned. Gala attendees, as well as members of the public viewing the fireworks
from the street were overjoyed at the sight of the elaborate evening display. Ten minutes’
worth of boisterous fireworks had, however, masked something else: a gunshot leading to
the death of Consul-General Xiao Yue at the gala. Local police arrived within the next ten
minutes to seal off the crime scene. Taking advantage of the mayhem at the event, three
armed men also forcibly escorted Ha Min Li from the premises and into a black van,
despite his protests that he was immune from any form of arrest or detention. While he was
returned to the consulate three hours later, Ha Min Li claimed that he was beaten, berated,
and burned with cigarettes while blindfolded by police officers who were on Montes’
payroll.

CCTV evidence later revealed that Bee Hon, a member of the Chinese consular staff, had
fired at and killed Xiao Yue. According to his other co-workers, he was assisted by Mee
Shua, his wife, in staging the attack. The next day, the Chinese Ambassador formally
notified the Department of Foreign Affairs that it wished to exercise jurisdiction over Bee
Hon and Mee Shua for the Consul-General’s death. It also requested for rectification of the
situation concerning Ha Min Li.

The Philippines and China are parties to the Vienna Conventions on Diplomatic Relations,
and on Consular Relations, and the Convention Against Torture.

1) May the Philippine authorities exercise jurisdiction over the following persons?
Why or why not?

a. Ha Min Li (10%)

NO. With respect to Ha Min Li, a naval attache, the Vienna Convention on
Diplomatic Relations governs. Under the VCDR, the person of a diplomatic agent
 is inviolable and they are not liable to any form of arrest or detention. Diplomatic
agents enjoy immunity from not only civil and administrative jurisdiction of the
receiving State but also immunity from criminal jurisdiction, as applicable to the
case at bar. Such immunity applies to all acts of the diplomatic agent, both private
and official, and commences from the moment the agent enters the territory of the
receiving State to take up their post and ends only when the person leaves the
receiving State or upon a the expiration of a reasonable time to leave.
Furthermore, this immunity may be waived, but only by express pronouncement
of the sending State itself. Seeing as Ha Min Li is a naval attache who is still
within the Philippines and absent China’s waiver of the immunity, he cannot be
subjected to PH jurisdiction. Hence, it is the sending State, China, which may
properly exercise jurisdiction over the person of Ha Min Li.

b. Bee Hon (10%)

YES. With respect to Bee Hon, a member of the Chinese consular staff, the
Vienna Convention on Consular Relations governs. Under the VCCR, consular
officers and employees enjoy immunity from jurisdiction of administrative and
judicial authorities only for actions performed in the exercise of consular
functions. This means that the receiving State, in this case the Philippines, is free
to prosecute such individuals for private acts. Bee Hon shooting Xiao Yue is
clearly not an action in pursuit of his consular function and thus, being a private
act, puts him under the jurisdiction of the Philippines.

c. Mee Shua (10%)

YES. With respect to Mee Shua, the wife of a member of the Chinese consular
staff, no immunity is granted under the VCCR in relation to criminal, civil, nor
administrative jurisdiction. The only immunity granted to family members is to
those members of the family of a diplomatic agent, under the VCDR. Hence, the
Philippines may exercise jurisdiction over her person.

2) Were Philippine police authorities entitled to enter and respond to the incident
during the Festival gala without a specific request from consular authorities? (5%)

YES. The general rule under Article 31 of the VCCR is that consular premises are inviolable
and that State authorities may not enter the premises. However, entrance may be allowed in
cases where there is consent given by the head of the consular post or of his designee or of
the head of the diplomatic mission of the sending State. This consent may be assumed in case
of fire or other disaster requiring prompt protective action. Such assumed consent is
applicable in this case as there occurred the shooting incident which obviously requires
prompt protective action.

3) In the late 2000s, the Philippine Secretary of Foreign Affairs and the Chinese
Minister of Foreign Affairs entered into an agreement providing that immunity “from
the judicial and administrative jurisdiction of the receiving State, except [for certain]
civil proceedings”, also extends to their respective consular officers. Is such an
 agreement valid and binding upon the Philippines without further involvement by
another branch of government? (15%)

YES. The Philippines, being a signatory of the VCCR, is already bound by the provisions
under Art. 43 which provides consular officers and employees immunity from jurisdiction of
judicial and administrative authorities with respect to consular functions and to civil actions,
under certain conditions. The agreement entered by the Philippine SFA and the Chinese
MFA is a reiteration of this VCCR provision. The power of the SFA, as part of the executive
branch, to enter into such agreements has been confirmed by the Supreme Court5 which held
that to vest a person with diplomatic immunity is a prerogative of the executive branch of the
government. The question of immunity, sovereign or diplomatic, has been categorized a
political question which is conclusive upon the courts6. Hence, an agreement of such nature
similar in this case, is binding without any need for participation from other branches of the
government.

4) May the Philippines be held responsible for the treatment received by Ha Min Li?
What remedies are available to him in this regard? (15%)

As a matter of customary international law and under both the VCDR and VCCR, receiving
states have a duty to ensure the protection of diplomats and consular officials and staff. The
receiving State has the duty to take all appropriate actions to prevent any attack on their
persons, freedom, and dignity. Any violation of this duty is a violation of international legal
obligations and under the law of State responsibility, a State is responsible for actions
attributable to it that constitute a breach of its international legal obligations. However, for
the Philippines to be sued, the State must first give its consent. Hence, absent this waiver of
immunity from suit, Ha Min Li cannot hold the Philippines liable.

However, under both RA 75 and the Revised Penal Code, penalties are imposed on any
person who assaults, strikes, wounds, or in any manner offers violence to an ambassador or
public minister, in violation of law of nations. Therefore, as a remedy, Ha Min Li can file the
appropriate criminal case- provided that invocation of the provisions of RA 75 may only be
done if  the country of the diplomatic or consular representative adversely affected has
provided for similar protection to duly accredited diplomatic or consular representatives of
the Republic of the Philippines by prescribing like or similar penalties for like or similar
offenses herein contained.

5) In case of non-payment of services provided during the Festival gala, may Party
Flavors sue the Chinese Government for amounts still due from the latter in Philippine
courts? (5%)

NO. Under the Act of State Doctrine, the sovereignty of each State is respected, they cannot
be required to submit to the jurisdiction of a national court nor be required to adjudicate
without their consent. Furthermore, under Article 5 of the UN Convention on Jurisdictional
Immunities of States and their Property, a State enjoy immunity from jurisdiction of the

5
Minucher v CA, GR No. 97765, 1992.
6
Holy See v Rosario, GR No. 101949, 1994
 courts of another State. There is, however, an exception 7: that when a State enters into
business contracts, it is deemed to have tacitly given its consent to be sued. This exception
however is not applicable in the case at bar as the contract was entered into pursuant to a
consular function. Hence, absent consent of the Chinese Government, they cannot be sued by
Party Flavors.

7
supra note 2