ADDU LLB PIL Second Exam Coverage - [PDF Document] (2024)

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PUBLIC INTERNATIONAL LAW [2-MANRESA] S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, andthe b ook of Isagani Cruz, 2003 Ed. ADDU LAW

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NorieSushi

PUBLIC INTERNATIONAL LAW

D O RODOLFO M ELMAN

Second Exam Coverage

RGHT OF INDEPENDENCE up to CONSULS

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RIGHT OF INDEPENDENCE~

SOVEREIGNTYsupreme power of state to commandand enforceobedience; enables state to control its ownforeign affairs vis--visother states.

The reason of the existence of state is inherent; therecognitionof this right is not dependent upon otherstates recognition of thestatus of the first state. In factin UN Charter, the concept ofsovereignty is expresslyembodied in Article 2(4).

Two aspects of sovereignty:1. Internalrefers to power of thestate to direct its

domestic affairs2. External freedom of the state its ownforeign

affairs. It is referred to as independence.

Right of independence recognized in article 2(4) ofcharter.

Article 2The Organization and its Members, in pursuit ofthePurposes stated in Article 1, shall act inaccordance with thefollowing Principles:xxx4. All Members shall refrain in theirinternationalrelations from the threat or use of force againsttheterritorial integrity or political independenceof any state, or inany other manner inconsistentwith the Purposes of the UnitedNations.xxx

Nature of independence: not absolute freedom;freedom fromcontrol by other states but not freedomfrom restrictions.

Illustrations of restrictions upon the state:

1.

Article 2(4) even non-member states shouldobserve this2. Pactasunt servanda state may not refuse to

observe treaties in good faith;3. Principle of mare liberum

o aka the free sea or the freedom of theseas

o State cannot arrogate unto itself theexclusive use of the openseas to thedetriment of other states

4. Acquiescence in exercise of belligerent rights under laws ofneutrality, state must acquiesce inthe exercise of certainbelligerent rights even ifthis might impair its own interests orthose of itsnationals.

5. Maintenance of international standard of justice

e.g. recent news: Indonesia will executeforeigners including aFilipino, related to drugsthis causes an international uproar

6. Observance of fundamental human rights7. Restriction of itsterritorial jurisdiction

Sovereignty is a well cherished concept of IL. However,even theconcept of sovereignty recognizes the fact thatbecause of advancesmade at present, modern ILrecognizes thatNo man is an island. Nostateisolation. State cannot exist alone.

Trade with other states which is the core of internationa

relations in times of peace is essential for thestatessurvival.

Maintenance of peace and security [(Article 2(3)] is thehighestvalue for all states to subscribe. This is far morecompelling thanvital state interests. Thus, UN Chartermakes Article 2(4) the mostimportant norm to attaingoal.

Article 2. xxx3. All Members shall settle their internationaldisputesby peaceful means in such a manner thainternational peaceand security, and justice, are no

endangered.xxx

Kosovos unilateral declaration of independence fromSerbia inFebruary 2008, did not violate international lawsince internationallaw contains no prohibition ondeclarations of independence. But ICJwas careful not torule on the legal status of Kosovo as a state toavoidencouraging nationalist movements and left the issue ofaterritorys independence at discretion of states thatchose torecognize it (ICJ Advisory Opinion issued on July21, 2010 uponrequest of the General Assembly)

This issue is better left to the members of theinternationalcommunity (states), members individuallyon their own, whether theychoose to recognize the statusof Kosovo as a state. This is reallymore of a politicadecision that has to be made by the authorizedorgan ofany state whether to grant such legal status of a statetoKosovo.

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NorieSushiINTERVENTIONRight of independence carries with it thecorrelative dutyof non-intervention. State must respect sovereigntyof theother states.

This is embodied in Article 2 of the UN Charter, under the

Domestic Jurisdictionclause. (sir refers to Article 2(7))

Interventionact of state in interfering with domesticor foreignaffairs of another state thru use of threat offorce; may beeconomic or political (but there must bepressure)

Intervention is not allowed in PIL except:1. as an act ofself-defense as provided under Article

51 of UN Charter2. when the Security Council decreesenforcement

or preventive action.3. Other instances according to somewriters:

a.

when so requested by parties;b. such action is agreed upon in atreaty

(ex. Article 5 of NATO agreement)c. when requested from sisterstatesd. when requested from the United Nations

by the parties to a dispute or by a statebeset by rebellion

Article 2, Sec 7: Nothing contained in the presentCharter shallauthorize the United Nations tointervene in matters which areessentially withinthe domestic jurisdiction of any state orshallrequire the Members to submit such matters to

settlement under the present Charter, but thisprinciple shallnot prejudice the application ofenforcement measures under ChapterVII.

Drago Doctrine (now embodied in HagueConvention) contractingpowers agree not to haverecourse to armed force for recovery ofcontract debtsclaimed from the government of one state byanotherstate as being due to its nationals. Drago isconsistentunder the UN Charter, to refrain from use of force.

Porter resolutionintervention is permitted if:

1.

debtor state refused an offer to arbitrate creditorsclaim; or2.having agreed to arbitrate, prevented agreement on

thecompromis; or3. having agreed thereto, refused to abide bythe award

of the arbitrator

* Porter resolution contravenes IL, because IL abhors theuse offorce

Note: There is a need for re-examination of law onintervention,especially where intervention is based onhumanitarian grounds. Ex.Somalia, Kosovo

Can the US use force to protect civilian populationsfromgenocide in Somalia, as an exception to the prohibition

against use of force?

In 1990, the NATO authorized military intervention toprotectAlbanian civilians in Kosovo without UN SecurityCouncilauthorization. Would this be legal in internationalaw? It iscontentious and unresolved.

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RIGHT OF EQUALITY~

Recognized in Article 2(1) of Charter:

Article 2(1) The Organization is based on theprinciple of thesovereign equality of all itsMembers.

Essence of Equality: not equality in number of rights orparityin physical power, political influence or economicstatus orprestige, but all rights of a state, regardless ofnumber, must beobserved and respected by internationacommunity; right to enjoymentof all its attributes as amember of family of nations.

Ex. Right to acquire territory, or make use of open sea, o

seize contraband

Rule of par in parem non habet imperium[equals do nothaveauthority over one another]: even the strongeststate cannot assumejurisdiction over another state, nomatter how weak, or question thevalidity of its acts solong as they are made to take effect withinits territory.

Ex. China. Even PH can assert its right under UNCLOS vsChina

Legal Equality vs. Factual inequality: absolute

equality among states is impossible. Inequality can evenbe seenin UN.

Ex. Security Council membership (permanent membersmembershipwith a term) and voting (non-proceduraquestions need concurrence ofthe Big 5)

So many member states in UN, but each state is entitledonly of 1vote. China (1.8B pop.) = 1 vote vs. Gabon(1.1M pop.) = 1 vote

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NorieSush*the surviving Filipina comfort women cannot sueJapanfor damages in our courts. A foreign State may not besuedbefore Philippine courts as a consequence of theprinciples ofindependence and equality of states(Republic of Indonesia vs.Vinzon, 405 SCRA 126) (2003).

Exception: if the foreign state allows the individual tosue inhis courts

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TERRITORY~

Right to acquire properties is inferred from war powersofCongress & treaty making power of President,conformably withSection 2, Article II. But such rightshould always be consistentwith the Principles ofInternational Law.

Assertion of the right to acquire territory. War may bewaged notfor the purpose of acquisition of territory perse, but alwaysconsistent with principles of internationallaw.

Territoryis the fixed portion of the surface of theearthinhabited by the people of the state.

Modes of acquiring territory:1. discovery and occupationoriginal mode of

acquisition by which a territory not belonging to anystate orterra nulliusis placed under the sovereignty

of the discovering state. The territory need not beuninhabitedprovided it can be established that thenatives are not sufficientlycivilized and can beconsidered as possessing not rights ofsovereigntybut only rights of habitation.

2. Prescriptionrequired long, continued and adversepossession tovest acquisitive title in the claimant. Norule yet in IL fixing theperiod of possesssion

3. Cessionterritory is transferred from one state toanother byagreement between them (sale, barter orexchange, donation andtestemantary disposition);transfer of title is effected upon themeeting of the

minds, actual delivery not necessary4. Subjugationhaving beenpreviously conquered oroccupied in the course of war by the enemy,it isformally annexed to it at the end of the war. Conquestinchoateright on the occupying state; formal act ofannexation completes theacquisition

5. Accretionbased on the principle of accessio cedatprincipali;may be both natural or artificial

Discovery And Occupation

Terra nulliusland belonging to no one; this is onlypropertysubject of acquisition of a stateRes communes- things owned by noone and subjectto use by all; it is not susceptible to discoveryand

occupation (e.g. open seas, outer space).

Requisites of a valid discovery and occupation:

1. Possession may be effected through a formaproclamation andthe symbolic act of raising thenational flag in the territory. Merepossession only gives inchoate title of

discovery; this means that the discovering statehas the right ofexclusion of any other state toappropriate or commenceadministration within areasonable time.

Inchoate title of discovery performs the function

of barring other states from entering the territoryuntil thelapse of a reasonable period withinwhich the discovering state mayestablish asettlement thereon and commence to administerit.

2. Administration

Las Palmas case: Principle of ContinuousAdministration.*Netherlands had exercised sovereignty since 1677While Spaindiscovered island earlier, it never occupied it* Inchoate titlecould not prevail over continuous &

peaceful administration by another state* another basis forawarding to Netherlands is long,continuous, adverse possessionwithout anyquestion of restriction

ICJ Ruling in February 2003 on ownership of Sipadan andLigitanIslands off Sabah in favor of Malaysia. Malaysiahad administrativecontrol over the islands long beforeIndonesia did under theprinciple of continuousadministration.

EXCEPTION to the prevailing rule of Las Palmas Case

(need for administration of discovered property):

Clipperton Island Case possession sansadministration ofUNINHABITED island. Franceacquired title.

Basis of Philippine claim to Spratlys or the Kalayaan islandiseffective OCCUPATION of a territory not subjectto sovereignty ofanother state. Following Japansrenunciation of right to Spratlysunder 1951 San

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NorieSushiFrancisco Peace Treaty, it became terra nulliusandwasoccupied by the Philippines in the title of sovereignty inavisit of Tomas Cloma in 1956. In 1978, Philippinesconfirmed itstitle through PD1596 which declaredKalayaan part of its territoryand a municipality ofPalawan. (00 BQ)

Philippines claim to Sabah is based on an 1878 contractbetweenthe Sultan of Sulu and Austrian Consul Gen.Baron Overbeck/BritishAlfred Dent. Philippines has notrenounced its claim over Sabah.

~ Malaysia claims mode of cession while Philippinesasserts itwas contract of lease~ no basis under international law to assertPhilippineclaim to Sabah by including it in 1987 Constitution(amunicipal law). From the viewpoint of international lawhowever,this claim is not binding.

Modes of losing territory:1. abandonment or dereliction when astate

exercising sovereignty over it physicallywithdraws from it withthe intention ofabandoning it altogether. Two conditionsmustconcur:

a. act of withdrawalb. intention to abandon

2. cession3. subjugation4. prescription5. erosion6.revolution

7.

natural causes (e.g. volcanic eruption)

Components of Territory:

Basic/Main components:1. TERRESTRIAL DOMAIN2. MARITIME ANDFLUVIAL DOMAIN3. AERIAL DOMAIN

(A)TERRESTRIAL DOMAIN:1. Integrate (Iran)2. Dismembered (US)

3.

Partly bounded by water (Burma)4. Island (Iceland)5. Severalislands/mid-ocean archipelago (PH and

Indonesia)6. Coastal archipelago (Greece)

(B)MARITIME AND FLUVIAL DOMAIN1. Bodies of water within the landmass (internal

waters in the land-locked lakes, rivers and man-made canalswithin the land mass)

2. Waters adjacent to the coasts of the state up toa specifiedlimit (bays, gulfs, straits, externawaters in the territorialsea

Rivers may be classified into:a. Nationalsituated completely inthe territory of

one stateb. Multi-national flows through the territoriesoseveral states

c. International one that is navigable from theopen sea and isopen to the use of vessels fromall states

d. BoundaryThalweg doctrine

Thalweg doctrine (in the absence of a specificagreement betweensuch states), the boundary line is laidon the river that is, on thecenter, not of the river itself,but of its main channel.

Bayit is a well-marked indentation whose penetrationis in suchproportion to the width of its mouth as tocontain land-lockedwaters and constitute more than amere curvature of the coast. Anindentation shall nothowever, be regarded as a bay unless its areais as largeas or larger than that of a semi-circle whose diameterisa line drawn across the mouth of that indentation. (Takenote ofso-called historic bays; waters have alwaysbeen considered internalby the international community)

Territorial sea the belt of waters adjacent to thecoasts of thestate excluding the internal waters in baysand gulfs, over whichthe state claims sovereignty and

jurisdiction

Philippines claim to its territorial sea is based onhistoricright or legal title, or the TREATY LIMITS THEORYPhilippineterritorial sea should embrace all non-internawaters comprisedwithin limits set in Treaty of Paris overwhich Philippines andpredecessors have exercisedsovereign rights for more than 3centuries withoutobjection.

PH prior position was that IL should recognize historictitle toterritorial waters as it recognizes the so

called historic bays.

UN Conference on the Law of the Sea(UNCLOS effective11/16/1994)

It is the fundamental law on maritime borders amongnations,freedom of high seas, shipping, fishingexploitation of resources ofseabed and principles forprotection of marine environment.

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NorieSush*this UNCLOS provides for uniform breadth of 12miles(from the low-water mark of the coast) for territorial sea,acontiguous zone of 12 miles from outer limits ofterritorial sea(Protective Jurisdiction) and an economiczone or patrimonial seaextending 200 miles from the lowwater mark of the coastal state(BQ)

* It may be possible that there is overlapping withdifferentstates.

History:Three international conferences were called toformulatelaw of the sea:

1. First conference in 1958 held in Geneva, Switzerlandadoptionof the:

a. Convention on the Territorial Sea and theContiguous Zone

b. the Convention on the High Seas

c.

the Convention on Fishing and the LivingResources of the HighSeas

d. Convention on the Continental Shelf

Weaknesses: It failed to define the breadth of theterritorial

sea The Conventions adopted were ratified by

only 40 states PH did not ratify because of the absence of

provisions recognizing the archipelagodoctrine it wasadvocating

2.

Second Conference held in 1960 in Genevaquestionof the breadthof the territorial sea still unresolved

3. Third Conference in 1970 resulted finally in theadoption of anew Convention on the Law of the Sea,which was signed in Jamaica in1982 by 119/150conferee states. This convention became effectiveon11/16/1994, after its ratification by more than therequired 60 ofthe signatory states. This providesamong others:

Protective Jurisdiction (Contiguous Zone)

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Prevent infringement of its customs, fiscal,immigration andsanitary regulations and punishinfringement of said regulations

Archipelago Doctrine- Defines the internal watersof thePhilippines

as articulated in second sentence of Art. 1,Section 1 of theConstitution:

Article 1. xxx. The waters [a]round, [b]etween,and [c]onnectingthe islands of thearchipelago, regardless of their [b]readthand[d]imensions, form part of the internal watersof thePhilippines. (abc-bd)

National Territory of the Philippines(Article 1, Section 1 ofthe 1987 Constitution)

Article 1. The national territory comprises thePhilippinearchipelago, with all the islands and watersembraced therein, andall other territories over whichthe Philippines has sovereignty orjurisdiction,consisting of its terrestrial, fluvial and aerialdomainsincluding its territorial sea, the seabed, the subsoil,theinsular shelves, and other submarine areas. Thewaters [a]round,[b]etween, and [c]onnectingthe islands of the archipelago,regardless oftheir [b]readth and [d]imensions, form part o

the internal waters of the Philippines. (abc-bd)

PH position is that, all these 7100+ islands of varyingsizesshould be considered as one integrated wholeinstead of beingfragmented into separate units each withits own territorial sea.Otherwise, the waters outsideeach of these territorial seas (ofevery island) will beregarded as high seas and thus be open to allforeignvessels to the prejudice of our economy and thenationasecurity.

Archipelago a group of islands, including parts ofislands,interconnecting waters and other natural features

which are so closely interrelated that such islands, watersandother natural features form an intrinsic geographicaleconomic andpolitical entity, or which historically havebeen regarded assuch.

In defining the internal waters of thearchipelago, straightbaselines should bedrawn to connect appropriate points oftheoutermost islands, without departingradically from the generaldirection of thecoast so that the entire archipelago shallbeencompassed as one whole territory. The

waters inside these baselines shall beconsidered internal andthus not subject toentry by foreign vessels without the consentofthe local state.

The ARCHIPELAGO DOCTRINE is embodied in the1982 Convention onthe Law of the Sea, with modificationthat archipelagic sea lanesshall be designated over theinternal waters through which foreignvessels shall havethe right of passage.

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NorieSushiArchipelagic sea lanes passage means theexercise inaccordance with this Convention ofthe rights of navigation andoverflight in thenormal mode solely for the purpose ofcontinuous,expeditious and unobstructedtransitbetween one part of the highseas or an

exclusive economic zone and another part of thehigh seas or anexclusive economic zone. UNCLOS,1982

Methods of Defining the Territorial Sea:

1. Normal baseline method The territorial sea is simply drawnfrom the

low-water mark of the coast, to the breadthclaimed, followingits sinuosities andcurvatures but excluding the internal watersinbays and gulfs.

2. Straight baseline method

Straight lines are made to connectappropriate points on thecoast withoutdeparting radically from its general direction.

(C)AERIAL DOMAINIt is the airspace above the terrestrial domainand themaritime and fluvial domain of the state, to anunlimitedaltitude but not including outer space.

~

JURISDICTION~

Under the RoC, jurisdiction is the power or authority of acourtto accept a case, to make decisions and judgments.

In the same manner in IL, jurisdiction refers to thepowerpossessed and exercised by the state over persons andthingswithin or sometimes outside its territory, subject tocertainexceptions.

Jurisdiction may be exercised by a state over:a.) Itsnationalsb.) The terrestrial domainc.) The maritime and fluvialdomaind.)

The continental shelfe.) The open seasf.) The aerial domaing.)Outer space; andh.) Other territories

States assert authority/power over PERSONS andTHINGS.

Classifications:

1. Personal JurisdictionIt is the power exercised by a stateover its nationals.Ex:

a. Article 15 and 16 of CC

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PH exercises jurisdiction over its nationals evenoutsideterritory

Art. 15. Laws relating to family rights and duties, orto thestatus, condition and legal capacity of personsare binding uponcitizens of the Philippines, eventhough living abroad. (9a)

Art. 16. Real property as well as personal property issubject tothe law of the country where it is situated

However, intestate and testamentary successions,both withrespect to the order of succession and to

the amount of successional rights and to the intrinsicvalidityof testamentary provisions, shall be regulatedby the national lawof the person whose succession isunder consideration, whatever maybe the nature othe property and regardless of the countrywhereinsaid property may be found. (10a)

b. TaxationPH citizens are taxed even if notresiding in PH fromincome derived by themfrom all sources

Basis of personal jurisdiction: duty of protectionby astate ofits national wherever he may be (stated in

Constitution). The national has right to compel thegovernment toprotect him. He is therefore bound to it bya duty of obedience andallegiance.

DOCTRINE OF INDELIBLE ALLEGIANCEA national may not be permittedto renounce his ownnationality. Simply because of the duties ofallegiance inreturn of the protection given by the state to itsnational

Jurisprudence Applying the Doctrine:

Joyce v. Director of Public Prosecution

Lord Haw Haw, a British subject, because he wascarrying aBritish passport, in fact he resided in Britain for18 long years.He went to Germany during the WWII, andwhile in Germany, he waspart of the anti-Alliedpropaganda. So he was tried for treason, andwasconvicted. Even assuming that he was not a Britishnational, butbecause he was carrying a British passportand he resided for solong in Britain, and representedhimself as a British subject, thenhe should not be allowedto renounce his nationality.

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From the lectures and notes of Atty. Elman, online sources, andthe b ook of Isagani Cruz, 2003 Ed. ADDU LAW

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NorieSushiHarry Blackmer v. USAA US citizen who is long-timeresident of Paris, France.This US national was the subject ofsubpoena. The UScourt summoned him to testify in several cases inthe UScourt, but he refused and so he was cited in contempt ofcourtby the SC of Columbia and the properties he had in

the US became subject of garnishment because of hisrefusal totestify for the US. The Court decided that he isthe resident ofFrance, but then this doctrine applied.

~ Chief Justice Hughes, in delivering the opinion of theCourt,stated "nor can it be doubted that the United Statespossesses thepower inherent in sovereignty to requirethe return to this countryof a citizen, resident elsewhere,whenever the public interestrequires it, and to penalizehim in case of refusal." Also, "it isalso beyond controversythat one of the duties which the citizenowes to hisgovernment is to support the administration of justicebyattending its courts and giving his testimony whenever he

is properly summoned." ~ Wikipedia

Kawakita vs. USApplying the doctrine of indelible allegiance, apersonpossessing both US and Japanese nationalities wasconvicted oftreason for committing brutalities onAmerican prisoners in aJapanese camp.

~ In his defense, Kawakita claimed that he had renouncedhis U.S.citizenship during his time in Japan, and thuscould not be triedfor treason. However, his argumentswere undermined by his 1945 U.S.passport application,

in which he swore he had never renounced his U.S.citizenship.Kawakita argued that a person with dualnationality can only beguilty of treason to the country inwhich he resides, not anotherwhich claims him as anational. The prosecution pointed out that theU.S.Constitution places no territorial limitations on treason.Andit pointed out that U.S. citizenship cannot be cast offor on soeasily. Decision: Kawakita owed allegiance to theUnited States,being its national during his residence inJapan. His U.S.citizenship was revoked. ~ Wikipedia

News:Kenji Goto was a Japanese freelance video journalistwho

was captured and held hostage by the ISIL militantsafterentering Syria. He was killed by the ISIL.

Osama Bin LadenThe American forces were looking forBin Ladden,and was able to apprehend an American whofought side by side withthe al-Qaeda Taliban forces, withthe name John Walker Lindh. JohnWalker claimed thathe already denounced his nationality because hewasalready fighting with the al-Qaeda. US Court ruled thathecommitted several crimes.

Protective Principle of Criminal JurisdictionundeArticle 2, RPC.An alien may be held under criminal lawsof a state whose nationalinterest he has violated anddespite that the offense was committedoutside itsterritory.

Art. 2. Application of its provisions. Excepas provided in thetreaties and laws opreferential application, the provisions ofthisCode shall be enforced not only within thePhilippineArchipelago, including its atmosphere,its interior waters andmaritime zone, but alsooutside of its jurisdiction, against thosewho:

1. Should commit an offense while on a Philippineship orairship2. Should forge or counterfeit any coin orcurrency note ofthe Philippine Islands orobligations and securities issued bythe

Government of the Philippine Islands;3. Should be liable foracts connected with theintroduction into these islands of theobligationsand securities mentioned in the presidingnumber;4. Whilebeing public officers or employees,should commit an offense in theexercise of theirfunctions; or5. Should commit any of the crimesagainstnational security and the law of nations, definedin TitleOne of Book Two of this Code.

Addenda (not discussed, but may be asked in the exam):

Nationality PrincipleStates have jurisdiction over theirnationals over crimesspecified in their national law. Example: theSuppressionof Terrorist Bombing Act of Sri Lanka gives the HighCourthe jurisdiction to try a Sri Lankan national who blasts abombin a foreign countryeven if his only connection toSL is the factthat he is a Sri Lankan.

Passive Personality PrincipleIn this situation, the crime wascommitted abroad and theperson who committed the offense was not anational ofthat State. In this situation, only the victim is anationa

of the State which claims jurisdiction. In the Yunis caseUScourts decided that they had jurisdiction over Yunis (aLebanesenational) based on the passive personalityprinciple because two USnationals were abroad theJordanian airline that Yunis hijacked.

Protective PrincipleIn this situation, the crime was committedabroad andneither the person who committed the crime, northevictims, were nationals of that State. In this case,

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NorieSushijurisdiction is asserted on the basis that thesecurity orthe interests of the State is affected by an actcommittedabroad. Example: Art. 2, RPC

(Source:https://ruwanthikagunaratne.wordpress.com/tag/principle-of-nationality/)

TERRITORIAL JURISDICTION DOCTRINEGeneral Rule: State hasauthority/power/jurisdiction

over all persons & property within its territory. Sincethestate has such authority, on the basis of SOVEREIGNTYof thestate, it follows that processes of other states maynot be madeeffective without the consent/authority ofthe local state. Applieseven to aliens located in theterritory.

The jurisdiction of the nation within its own territoryisnecessary, exclusiveand absolute. It is susceptible ofnolimitation not imposed by itself. (Schooner Exchangev.McFaddon)

Exceptions:(1)

Foreign states, heads of states, diplomaticrepresentatives, andconsuls to a certain degree.

This is because of the sovereign equalityof statesand on thetheory that a contraryrule would disturb the peace of nations

In the same manner that diplomats andmembers of the diplomaticservice to acertain extent are not subject to jurisdictionof thelocal state, because, these diplomatsare said to be extensions offoreign states. Infact, there are existing conventions asapplicableto diplomats (Vienna Convention

on Diplomatic Relations). The diplomats are exempted in orderthat

they may have full freedom in the dischargeof their officialfunctions.

(2) Foreign state property, including embassies,consulates andpublic vessels engaged in non-commercial activities

Said to be extensions of the territory of otherforeign state.Whenever we have warships ofother state arriving in our local port,while inthe territory of PH, not covered except if avessel engagesin international industrial

services, this is not covered.

(3)Acts of State

This is related to many other principles ofinternational law

On the basis of sovereign immunity; based onthe concept equalityof states

In relation to domestic jurisdiction conceptcourt cannot judgeon acts performed in theterritory of other state

A political action not subject to judiciadetermination

Cruz book: as explained in Underhill v. HernandezEvery sovereignstate is bound to respect theindependence of every other sovereignstate, and the

courts of one country will not sit in judgment on the actsof thegovernment of another, done within its ownterritory.

(4) Foreign merchant vessels under rights of innocentpassage orarrival under stress Innocent Passage navigation through

territorial sea of a state, without enteringits internal waters,as long as it is notprejudicial (does not cause disturbance) tothepeace or security of the coastal state.

oCruz book: can be proceeding tointernal waters, or making orthe

high seas from internal waters, aslong as it is not prejudicialto thepeace, good order or security of thecoastal state. (n/a inT/F question)

Arrival under stress or involuntary entrancemay be due toinclement weather, vesseunseaworthiness, lack of provisions, orforcemajeure. (also: pursuit by pirates, majorepairs needed)

(5) Foreign armies passing thru or stationed in itsterritorywith its permission (or in the basis of anagreement)

Ex: VFA of 1999 (stay is of temporary nature) Defense MutualAgreement

(6) Persons/organizations, like UN, over which it may,byagreement, waive jurisdiction There is a waiver of jurisdictionon the part

of the local state (e.g. WHO, IMF, WorldBank, officials of theseorganizations arecovered)

Examples: Convention on Privileges andImmunities of the UnitedNations, Conventionon the Privileges and Immunities o

Specialized Agencies, RP-US Bases Treatywhich modified thecustomary exemptionsunder (5).

Everything in the states terrestrial domain is underitsjurisdiction. No process from a foreign government cantakeeffect for or against nationals and aliens within theterritory oflocal state without its permission.

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NorieSushiComment: Of course there may be agreement suchasextradition, the process of surrendering/deporting aforeignfugitive. But in the absence of such agreement,no process of aforeign state ought to take effect for oragainst its nationals oraliens. So even if a writ is issuedby a foreign government,normally for its national who is

hiding in the PH territory (prosecution of offenses in hisownstate), RULE: even if he is a fugitive from justice fromhis ownstate, in the absence of any agreement, noprocess or writ issued byany of theinstrumentalities/courts by the other states may bemadeeffective or enforced without the consent of the localstate.CONCEPT OF SOVEREIGNTY itself is at stake.

What is the jurisdiction of a state over foreign vesselswithinits territorial vessels?

RULE:No civil, administrative or criminal jurisdictionoverforeign vessels, unless engaged in commerce (e.g. war

ship of another state). Local state cannot acquirejurisdictionover that foreign warship unless this isengaged in merchantactivities

What about foreign private commercial vessels? Weapply theEnglish rule.

For foreign merchant vessels docked in a local port orbay,jurisdiction is exercised over them by the coastal stateincivil matters, but criminal jurisdiction is determinedaccordingto either the English ruleor the French rule.

English rulecoastal state shall have jurisdiction over

all offenses committed on board such vessels, exceptonlywhenthey do not compromise the peace of the port.

French ruleflag state shall have the jurisdiction overalloffenses committed on board such vessels, except onlywhere theycompromise the peace of the port.

*no difference actually

U.S. v. Look Chaw (1910)Mere possession of opium aboard foreignmerchant vesselin our waters is not a breach of our publicorder.

So, coastal state need not exert jurisdiction but inthesucceeding case:

Pp vs. Wong Cheng (1922)Smoking of the drug produces perniciouseffects and ispunishable

Note: Despite Look Chaw ruling, criminal jurisdiction maystillbe exercised by PH courts because the 1958 Geneva

Convention on Territorial Sea and Contiguous Zoneimposing statesthe duty to suppress all forms of drugtrafficking.

Applying this convention, coastal state has the right totakecognizance of any offense onboard foreign vessel

E.g. mere possession of drugs

THE PATRIMONIAL SEAPatrimonial Sea or the Exclusive EconomicZoneinUNCLOS is now incorporated in PD 1599. All livingandnon-living resources found within 200 nautical miles fromthecoast or baselines belong exclusively to the coastastate. (00 BQ)thats why we exert at all timeswhenever there areinfringements.

The above BQ related to the conflict that we had withChina

The EEZ is the basis of Philippine claim over ScarboroughShoal(213 kms off Zambales); apprehension of Chinesepoachers

Now, it is also possible that a state may assert jurisdictionofthe open sea. I mentioned to you, that the open sea,it is withinthe concept of res communes. Meaning, itcannot be subject ofappropriation. But it can be exploredsubject of exploration.

Instances which state may exercise jurisdiction on theopen seas(res communes):

a) over its vessels;o

Publicanywhere at all timeso Merchant when in the territory ofthe

flag state, when coastal state waives itsjurisdiction or itcannot exercisejurisdiction, or when such vessel are onthe openseas

b) pirates, being enemies of all mankind;c) in exercise of rightof visit and search;

o Under the laws of neutrality, the publicvessels or aircraft ofa belligerent statemay visit and search any neutramerchant vesselon the open seas and

capture it if it is found or suspected to beengaged inactivities favorable to theother belligerent.

d) under doctrine of hot pursuito coastal state may pursue anoffending

foreign merchant vessel into the opensea and upon capture, bringit back to itsterritory for punishment

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NorieSushi in order for this doctrine to

apply, it must be immediate,continuous and unabated

even while in contiguous zone,coastal state may still pursue

AERIAL JURISDICTIONOuter space (res communes); astronauts;objectslaunched into outer space (03 BQ)

When does the outer space commence?

Whichever state sends/launches objects to outer spacecontinuesto have jurisdiction over such objects, stillunder its control andownership, but such state cannotown the space the objectoccupies

State may extend its jurisdiction beyond its territory andoverterritory not under its sovereignty in the following:

1. through assertion of personal jurisdiction over itsnationalsabroad or its right to punish offenses vs.its national interestseven if committed by non-resident aliens

2. on the basis of its relations/other stateso on the basis ofa*greements/conventionso ex. Extradition treaty

3. as consequence of waiver of jurisdiction by localstate overthose within its territory

o e.g. foreign troops while in territory oflocal state

4. acquisition of extraterritorial rightso

exterritoriality must be distinguishedfromextraterritoriality

o EXTERRITORIALITY refers toexemptions of persons andpropertyfrom the local jurisdiction on the basis ofinternationalcustom.

o EXTRATERRITORIALITY refersapplies only to personsand is basedontreaty or convention.

o The widely accepted principle ininternational law is theprinciple ofexterritoriality.

5.

through the enjoyment of easem*nts orservitudes (e.g. right ofinnocent passage, arrivalunder stress)

Universal Principle of Jurisdiction/UniversalityPrinciple: statehas jurisdiction over crimes vs.international law such as piracy,slave trade, airhighjacking, genocide and terrorism. These areoffensesviolative of law of nations and so stateacquiresjurisdiction to punish such offenses.

Is nuclear test on high seas allowed?~ danger of radioactivewaste materials in the sea &environment~ convention on Law ofSea prohibits state fromconducting nuclear tests on high seas,which are reservedfor peaceful purposes. States are obliged toconserve al

living resources of the sea.

Remember that the open sea concept is that it is rescommunesandtherefore it should be used for mankind.

~

RIGHT OF LEGATION~

Pertains to the (active) right given to senddiplomaticrepresentatives to the other states and (passive) righttoreceive them

Agents of diplomatic intercourseo Before, diplomaticrelations/negotiations

were conducted through the head ofstate, but not anymore,conduct ofdiplomatic relations are now being madeby the members ofdiplomatic serviceheaded by the minister/foreignaffairssecretary

o The heads of state are said to beembodiment of sovereignty andso theyare entitled to protection not onlypertaining to hisphysical safety, but also

the need to preserve honor and integrity Head of staterepresents sovereignty of state

entitled to special protection for his physical safetyandpreservation of his honor. His quarters, archivesproperty andtransport are inviolate under theprinciple of exterritoriality. Heis immune fromcriminal jurisdiction and also from civiljurisdiction,except where he is plaintiff.

Example: If you recall during the time of Pres. CorazonAquino,she sued a columnist for saying that she hidunder the bed during acoup attempt. So, she filed, she

shed off her immunity from suit.

Mighell vs. Sultan of Johore caseSultan of Johore, who was ahead of state, travelled toGreat Britain and met a British woman,courted andpromised her marriage. Sultan was the defendant foracivil suit for damages for breach of promise to marry. TheTribunalruled in Sultans favor applying the immunityfrom suit.

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NorieSushiClassification of heads of diplomatic mission

(based on the Convention on DiplomaticRelations, signed inVienna in 1961)

(1)Ambassadors of nuncios(2) Envoys, ministers orinternuncios

(3)

Chargs d affaires

Article 14 of the Vienna Convention on DiplomaticRelations:

1. Heads of mission are divided into three classes,namely:a)That of ambassadors or nuncios accredited to

Heads of State, and other heads of missionof equivalentrank;

b) That of envoys, ministers and internunciosaccredited to Headsof State;

c) That of charge daffaires accredited to

Ministers for Foreign Affairs.2. Except as concerns procedureand etiquette,

there shall be no differentiation between headsof mission byreason of their class.

Classification is important not only insofar asprivileges butalso matters of protocol or grant ofspecial honors. Before, onlybigger states were able tosend envoys of the highest rank. Now,small countriesmay be able to send highest rank diplomats.

Article 15. The class to which the heads of theirmissions are tobe assigned shall be agreed

between states.

Diplomatic corps under doyen du corpsThe diplomatic corps is abody consisting of thedifferent diplomatic representatives who havebeenaccredited to the same local or receiving state.

Doyen du corps:- He is the head of the diplomatic corps- Bytradition, oldest diplomat with the highest rank- However,Article16 of the Vienna Convention on

Diplomatic Relations provides that:

(1)

Heads of mission shall take precedence intheir respectiveclasses in the order of thedate and timeof taking up theirfunctionsin accordance with Article 13 xxx

- In Catholic countries such as PH, the PapalNuncio heads thediplomatic corps

APPOINTMENT OF A DIPLOMATThe appointment of diplomats is notsimply a matter ofmunicipal law of the sending state. There is alsoa

segment of IL in the matter of such authority, becausethereceiving state is not obliged to accept anyrepresentative who ispersona non gratato it.

In order to avoid problems, most states now observe thepracticeof agreation.

Practice of Agreation, by means of which, informainquiriesareaddressed to the receiving state regardinga proposed diplomaticrepresentative of the sendingstate.

It is only when the receiving state manifests itsagrment orconsent, also informally, that thediplomatic representative isappointed and formallyaccredited.

Article 41. The sending State must make certain that the

agrment of the receiving State has been given forthe person itproposes to accredit as head of themission to that state.

2. The receiving State shall not be obliged to givereasons tothe sending State for a refusal oagrment.

Under municipal law, who has the power to appoint?Ans. Under ourConstitution, it is the Presidentwith theconcurrence of theCommission on Appointments.

Article VII, Section 16, 1987 Consti:Section 16. The Presidentshall nominate and,

with the consent of the Commission onAppointments,appointambassadors, othepublic ministers and consuls, orandotheofficers whose appointments are vested in him inthisConstitution. Xxx

***TAKE NOTE: Presidents discretion is EXCLUSIVEwhen it comes toreceiving ambassadors and other publicministers duly accredited tothe government of PH.

What papers are acceptable as credentials of diplomat?(1)Letterof credence

o

Authority given by the sending state asrepresentative to thereceiving state with therequest that all acts done bytherepresentative on behalf of the sending stateshall be given fullfaith and confidence

(2)Diplomatic passport(3)Official instructions(4)Cipher or codebook

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NorieSushio Used in sending secret

communications/coded messages to hisgovernment

Functions of Diplomat (code: RPNAP)1. REPRESENT the sendingstate in the receiving state;

2. PROTECT in the receiving state the interests of thesendingstate and its nationals;

3. NEGOTIATE with the government of the receivingstate;

4. ASCERTAIN conditions and developments in thereceiving stateand reporting thereon to thegovernment of the sending state;

5. PROMOTE friendly relations between the sending andreceivingstates;

DIPLOMATIC IMMUNITIES AND PRIVILEGES

A. PERSONAL INVIOLABILITY

Diplomatic agent is entitled to special protection of hisperson,honor and liberty. He is not liable to any form ofarrest ordetention unless he causes violence and has tobe restrained.

So he restrained for the purpose of prevent thecommission offurther illegal acts.

Article 29The person of the diplomatic agent shall

be inviolable. He shall not be liable to any form ofarrest ordetention. The receiving State shall treathim with due respect andshall take allappropriate steps to prevent any attack on hisperson,freedom or dignity.

Of course you may ask, what therefore is the recourse ofthereceiving state in the event he commits violation ofpenallaws?Receiving state may ask that he be recalled by thesendingstate. If the sending state refuses,receiving state may immediatelyexpel diplomat.

RA 75 punishes any person who wounds, attacks,imprisons or offerviolence to the person of anambassador with imprisonment xxx NOTE:the attack isconfined to the person (only his physical state) oftheenvoy/ambassador and does not include his honororreputation.

B. IMMUNITY FROM CRIMINAL, CIVIL ANDADMINISTRATIVE JURISDICTIONof thereceiving state

GENERAL RULE: A diplomat cannot be charged/suedbecause of theneed for him to be given leeway in the

discharge of his diplomatic functions. This is also in thebasisof the principle of the regularity in the performanceof hisofficial functions.

IMPORTANT! THERE ARE 3 EXCEPTIONS.

Article 31

1. A diplomatic agent shall enjoy immunity from thecriminaljurisdiction of the receiving State. He shalalso enjoy immunityfrom its civil and administrativejurisdiction, except in the caseof:

(a)A real action relating to private immovable

property situated in the territory of thereceiving State, unlesshe holds it out onbehalf of the sending State for the purposesofthe mission.

(b)An action relating to succession in which thediplomatic agentis involved as executor,administrator, heir or legatee as aprivateperson and not on behalf of the sendingState.

(c)An action relating to any professional orcommercial activityexercised by thediplomatic agent in the receiving Stateoutside hisofficial functions.

So whenever he performs an act, that has nothing to dowith hisofficial functions, he is not covered.

90 BQ: An ambassador may be civilly sued. Nepaambassador wasusing a vacation house in Baguio butbecause of a strike in hiscountry, funds were delayed andhe was not able to pay rentals. Ishe liable?

YES!He occupied the house in his private capacity unlesshe holdssuch property on behalf of the state.

* A consul is not an ambassador. He does not havethe sameprivileges and immunities of a diplomatbecause he is appointed toprotect the states commerciainterest.

The Vienna Convention on Diplomatic Relations of 1961its originwas on the basis of fiction ofexterritorialitysuch as that theywere considered as extensions of thesovereign and thereforeentitled to the privileges andimmunities under presentinternational law. But the

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NorieSushiacceptance of states is to the effect that thesediplomatsbe given wide latitude in the discharge of theirofficialfunctions, and should be on the basis of customary law.Soonafter, these were embodied in conventions.

Some Rules on Waiver of Immunity

Immunity from jurisdiction may be waived expresslyby sendingstate or head of mission. There is impliedwaiver when a personentitled to

immunity files suit and opens himself to counterclaimdirectlyconnected with the principal claim.

o Cory Aquino filing suit for damages against acolumnisthidunder the bed case

Waiver of immunity from jurisdiction in in respect ofcivil oradministrative proceedings does not implywaiver of immunity anentexecution of judgment forwhich a separate waiver is needed.

o E.g. Suit is commenced because of suchwaiver, and a decisionis rendered adverse to

the foreign state. It does not mean that justbecause there isthis adverse judgmentrendered against the foreign state thatthereis also already a waiver in the matter ofexecution ofdecision. So if there are real orpersonal properties that aresubject togarnishment, this cannot be doneautomatically. Becausethere is a need for anexecution of a separate waiver pertainingtothe execution of the judgment.

R.A. No 75 provides:Section 4. Any writ or process sued outor

prosecuted by any person in any court of the Republicof thePhilippines, or by any judge or justice, wherebythe person of anyambassador or public minister ofany foreign State, authorized andreceived as such bythe President, or any domestic ordomesticservant of any such ambassador or ministerisarrested orimprisoned, or his goods or chattels aredistrained, seized, orattached, shall be deemedVOID, and every person by whom the sameisobtained or prosecuted, whether as party or asattorney, and everyofficer concerned in executing it,shall upon conviction, bepunished by imprisonment

for not more than three years and a fine of notexceeding twohundred pesosin the discretion ofthe court.

NOTE:For ambassadors/diplomats, domestic servantsare included inthe immunity. (with exceptions rinactually under Sec. 5 of RA75)

C. INVIOLABILITY OF DIPLOMATIC PREMISES:

Article 221. The premises of the mission shall be inviolable.Theagents of the receiving State may not enter them, excepwith theconsent of the head of the mission.

2. The receiving State is under a special duty to takealappropriate steps to protect the premises of the missionagainstany intrusion or damage and to prevent anydisturbance of the peaceof the mission or impairment oits dignity.3. The premises of themission, their furnishings andother property thereon and the meansof transport of themission shall be immune from search,requisitionattachment or execution.

The so-called franchise de l'hotel extends immunityfrom thelocal law to the diplomatic premises. A diplomaticmission has theright to use its premises for their

prescribed purpose. These include the envoys offices,hisresidence and out-buildings, his means of transportationand thecompound where these are found, which may notbe entered by thelocal authorities without itspermission.

BUT, THIS RULE IS NOT ABSOLUTE.Exception: In cases of CLEAR andURGENT necessity,for the local authorities to take forciblemeasures to arresany person subject to their jurisdiction.

Right of Diplomatic Asylum granted only on thestrength of localusage, particularly in favor of politica

refugees, or of treaty stipulations. But this so-called rightofdiplomatic asylum is not really universally recognizedexcept whenit is extended for humanitarian reasonsExample, when the fugitiveseeking sanctuary is inimmediate danger of his life or safety. Sounless there isa treaty stipulation for this right (or at times ifthey arepolitical refugees), peace officers can take theserefugeeswithin said diplomatic premises.

D. INVIOLABILITY OF ARCHIVESAuthorities of the receiving Statecannot pry into therecords of the consulate or embassy even wherethere is

an outbreak of war. The documents in such case ofoutbreak mustbe sealed, and authorities have no right toconfiscate them.

Article 24. The archives and documents shall be inviolableat anytime and wherever they may be.

E. INVIOLABILITY OF COMMUNICATIONThis is the right of thediplomat to send messages, evencoded messages to his government.This includes the

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NorieSushidiplomatic courier carrying the diplomatic bag, aswell asmode of transport. The person carryingthemessages/communication docs/records are not subjecttoarrest/detention.

Article 27

1. The receiving State shall permit and protectfreecommunication on the part of the mission for allofficialpurposes. In communicating with theGovernment and other consulatesof the sendingState, wherever situated, the mission may employallappropriate means, including diplomatic couriers andmessages incode or cipher. However, the missionmay install and use a wirelesstransmitter only withthe consent of the receiving State.

2. The official correspondence of the mission shallbeinviolable. Official correspondence means allcorrespondencerelating to the mission and its

functions.3. The diplomatic bag shall not be opened ordetained.4. The packages constituting the diplomatic bag must

bear visible external of their character and maycontain onlydiplomatic documents or articlesintended for official use.

5. The diplomatic courier, who shall be provided with anofficialdocument indicating his status and thenumber of packagesconstituting the diplomatic bag,shall be protected by the receivingState in theperformance of his functions. He shall enjoypersonalinviolability and shall not be liable to any form ofarrestor detention.

6.

The sending State or the mission may designatediplomaticcouriers ad hoc. In such cases theprovisions of paragraph 5 of thisArticle shall alsoapply, except that the immunities thereinmentionedshall cease to apply, when such courier has deliveredtothe consignee the diplomatic bag in his charge.

7. A diplomatic bag may be entrusted to the captain ofacommercial aircraft scheduled to land at anauthorized port ofentry. He shall be provide with anofficial document indicating thenumber of packagesconstituting the bag but he shall not beconsidered tobe a diplomatic courier. The mission may send oneof

its members to take possession of the diplomatic bagdirectly andfreely from the captain of the aircraft.

F. EXEMPTION FROM TESTIMONIAL DUTIES

Diplomat is under no compulsion to testify but he maywaive thisprivilege.

Article 31xxx2. A diplomatic agent is not obliged to giveevidence as

a witness.xxx

G.

EXEMPTION FROM TAXATIONThe diplomatic envoy is also exempt fromtaxes, customsduties, and other dues, subject to the exceptionlisted inthe Diplomatic Convention as well as from socialsecurityrequirements under certain conditions.

Article 33

1. Subject to the provisions of paragraph 3 of thisArticle, adiplomatic agent shall with respect toservices rendered for thesending State be exempfrom social security provisions which may bein forcein the receiving State.

xxx

Article 34

A diplomatic agent shall be exempt from all dues andtaxes,personal, or real, national, regional or municipal,except:

(a) Indirect taxes of a kind which are normallyincorporated inthe price of goods or services;

(b) Dues and taxes on private immovable propertysituated in theterritory of the receiving State, unlesshe holds it on behalf ofthe sending State for the

purposes of the mission;(c) Estate, sucession or inheritanceduties levies by the

receiving State, subject to the provisions of paragraph4 ofArticle 39;

(d) Dues and taxes on private income having its sourcein thereceiving State and capital taxes oninvestments made in commercialundertakings in thereceiving 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 theprovisions of Article 23.

Article 36

1. The receiving State shall, in accordance with suchlaws andregulations as it may adopt, permit entry oand grant exemption fromall customs duties, taxes,and related charges other than chargesfor storage,cartage and similar services, on:

(a)Articles for the official use of the mission;

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NorieSushi(b)Articles for the personal use of a diplomatic

agent or members of his family forming partof his household,including articles intendedfor his establishment.

2. The personal baggage of a diplomatic agent shall beexemptfrom inspection, unless there are serious

grounds for presuming that it contains articles notcovered bythe exemptions mentioned in paragraph 1of this Article, or articlesthe import or export ofregulations of the receiving State. Suchinspectionshall be conducted only in the presence of thediplomaticagent or of his authorized representative.

H. FREEDOM OF MOVEMENT AND TRAVEL IN THETERRITORY OF RECEIVINGSTATE

Article 35

The receiving State shall exempt diplomatic

agents from all personal services, from all public serviceof anykinds whatsoever, and from military obligationssuch as thoseconnected with requisitioning, militarycontributions andbilleting.

(90 BQ) Nepal ambassador leased a vacation house inBaguioseepage 12

(00 BQ) Foreign ambassador leased a vacation houseinTagaytay

A foreign ambassador to the Philippines leased a vacationhousein Tagaytay for his personal use. For some reason,

he failed to pay rentals for more than one year. The lessorfiledan action for the recovery of his property in court.Can the foreignambassador invoke his diplomaticimmunity to resist the lessorsaction? NO, since he is notusing the house for the purpose of hismission but merelyfor vacation.

In January 2003, a Cambodian newspaper article falselyallegedthat a Thai actress claimed that Angkor Watbelonged to Thailand.Other Cambodian print and radiomedia picked up the report andfurthered the nationalisticsentiment which resulted in riots inPhnom Penh on

January 29 where the Thai Embassy was burned andcommercialproperties of Thai businesses werevandalized. Later, the Cambodiangovernment issued aletter of apology, and paid about $23.54millioncompensation for the destruction of the Thai embassy.

Case: WHO v. Aquino (48 SCRA 243)This case is in relation todiplomatic immunity under HostAgreement between WHO and PH.

There was this diplomat from WHO. Crates belonging tohim thatwere transported were subject of confiscation foalleged violationof the Tariff and Customs Code. Thejudge issued a warrant but uponmotion, he refused toquash the search warrant. Judge wasreprimanded bySupreme Court.

Diplomatic immunity is a political question andcourts cannot gobeyond determination byExecutive Branch.

(97 BQ) Secretary/Consul in U.S. embassy boughtdiamond ringworth 50T which he gave to his FilipinoGF. He issued a bouncingcheck. Can he besued/charged criminally for violation of BP22?

Consul does not have the same status as a diplomatBecause theconsul is not in the business of a politicacharacter, rather in theinterest of commerce and

navigation of both sending and receiving State. Aconsul isprotected only insofar as the discharge ofofficial functions isconcerned. So if he commits aviolation of the penal laws in thelocal state, he canbe criminally liable. But, take note, if thisconsul isalso designated as secretary in the US embassy,chargedwith diplomatic duties as such Secretary, heis covered under theDiplomatic ConventionTherefore, he is entitled to privileges, andcan nolonger be criminally liable.

(91 BQ) A Marikina factory supplied military boots toIndonesia.Only 200,000 pairs were delivered out o

500,000 ordered. Indonesia paid for only 100,000pairs and filedsuit for specific performance againstthe shoe factory.

If the sovereign state commences a suit, it sheds offitsimmunity, and so the Indonesian government canbe a subject of acounter-suit that can be filed by theMarikina shoe factory.

So assuming, that the shoe factory indeed filed a counter-suitand the court rendered a decision in its favor, can thecourt issuethis order of garnishment in order to

implement/execute the judgment rendered against theIndonesiangovernment?

RECALL: Waiver of immunity from jurisdiction in inrespect ofcivil or administrative proceedings does notimply waiver ofimmunity anent execution of judgment forwhich a separate waiver isneeded.

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NorieSushiCase: International Catholic MigrationCommission v.Calleja (190 SCRA 130)Diplomatic immunity of ICMM and theInternational RiceResearch Institute (IRRI) was upheld. Immunityfromlocal jurisdiction is necessitated by theirinternationalcharacter/purposes. They should be shielded fromcontrol

or political pressure by the host state and to ensureunhamperedperformance of their functions.

DFA v. NLRC (262 SCRA 38)In a suit for illegal dismissal,diplomatic of ADB wasupheld.

DOCTRINE OF SOVEREIGN IMMUNITYA state, its agents or propertyare immune from judicialprocess of another state except with itsconsent.However, Philippines adheres to restrictive immunityand notthe absolute immunity school of thought. Onlygovernmental orsovereign acts (acta jure imperii) are

covered by sovereign immunity. Proprietary orcommercial acts(acta jure gestiones) are not covered.

A good illustration:We have properties in U.S., in New York.Three buildingsin Manhattan. There was this legal issue raisedbefore theFederal court and the said court, rendered adecisiondeclaring that even these properties owned byforeigngovernment. Actually, the court cited the propertiesofIndia, Mongolia, and PH. You know, in the case of Indiahas abuilding near UN that is used as living quarters byemployees,officials. Mongolia also has about 6-storeyproperty. TayoPhilippines, meron rin tayo. Maganda ang

property natin. To make the long story short, the federaljudgeruled that those portions used for diplomaticpurpose, tax exempted.Pero sa building the PH, meronpang restaurant doon, meron pangparang agency doon.So PH was assessed tax for other portions of thebuildingused for non-diplomatic purposes. Around $80k atthattime.

The Diplomatic Suite or RetinueDiplomatic immunities andprivileges are available to:

a) Head of the missionb) Family of the head of mission

c)

Other members of the diplomatic retinue(entourage), although notin the same degreeo Diplomatic staffo Administrative and technicalstaff (not

immune from civil and administrativejurisdiction for unofficialacts)

d) Private servants of the official members of themission

o If they are not nationals or permanentresidents of thereceiving State, enjoy

only exemption from dues and taxes ontheir income from themission and suchother immunities and privileges as maybe granted bythe receiving state.

DURATION OF IMMUNITY

Starts:i. from the moment he enters the territory of the

receiving State on proceeding to take his post or, ifalreadythere,

ii. from the moment his appointment is notified to theforeignministry.

Ends:i. from the moment he leaves the country orii. on expiry ofa reasonable time in which to do so, but

shall subsist until such time even in the case ofarmedconflict.

Immunity and privileges are available to him and to hisfamilynot only in situ, but as well in transitu, that is, whentravellingthrough a third state on the way to or from thereceiving State, sofar as may be necessary to secure histransit or return. (Article40)

TERMINATION OF DIPLOMATIC MISSION1. RECALL2. DISMISSAL3. death4.resignation5. removal

6.

abolition of the office7. other methods

DIPLOMATIC ASYLUMA person seeks refuge in the premises of aforeign missionin the receiving State.

TERRITORIAL ASYLUMA person seeks refuge in a foreigncountry.

e.g. case of Jalandoni who sought territorial asyluminNetherlands

Conditions of diplomatic asylum:1. individual is beingprosecuted for a political offense2. his life is in danger3. hewill not be given fair trial if he is surrendered to

the state demanding his surrender.

The rule here is that diplomatic asylum has notgained generalacceptance in IL but this can begranted when all above 3 conditionsarise.

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NorieSushiCase of Alfredo SauloSaulo here is a Hukbalahap leaderin Jolo. He was wantedfor murder, kidnapping, bombings. So what hedid, hesought protection in Indonesian Embassy in Manila. Therewerenegotiations that transpired. He was givendiplomatic asylum.

~

CONSULS~

The consul is NOT a diplomat.

Consuls are state agents residing abroad for variouspurposes butmainly in the interest of commerce andnavigation.

Consuls do not ordinarily enjoy all the traditional

diplomatic immunities and privileges, although they are toacertain extent entitled to special treatment under thelaw ofnations.

Kinds and Ranks of Consuls:

TWO (2) KINDS:1. consules missiprofessional or career consulswho

are nationals of the appointing state and are requiredto devotetheir full time to the discharge of theirconsular duties.

2. consules electimay or may not be nationals ofthe appointingstate and perform their consular

fnctions only in addition to their regular callings.

* Although consuls enjoy a certain measure ofinternationalcharacter, their grades or ranks REMAIN AMATTER OF MUNICIPALCONCERN.

Classifications under the Consular Convention(accdg. toimportance/rank)

a) consul-generalb) consulc) vice-consuld) consular agent

Authority of the consul emanates from two (2) sources:1. letterpatent or lettr de provision the

authority given by his own state/sending state2. exequatur theauthority given by the receiving

state

IMMUNITIES/PRIVILEGES OFCONSULS

Consuls are public officers of both sending and receivingstates,hence governed by laws of both.

Diplomats, receiving state may refuse to receive themandwithhold the exequaturfrom them without explanation.

CONSUL: Entitled to immunity from jurisdiction for acts

performed in their official capacity Liable to arrest andpunishment for grave offenses May be required to give testimony Maynot be prosecuted for minor offenses for reasons

of comity Consular office is immune only to that part where

work is being performed (does not extend to mode oftransport,other areas). So there may be issuance of

subpoena/search warrant to the consular officepertaining toareas where consular work is notperformed.

Immunities and privileges are available not only to theconsulbut also to the members of the consular posttheir respectivefamilies and the private staff

For official acts, immunity from jurisdiction subsistswithoutlimitation of time

Right to official communication and may correspondwith theirhome government or other official bodiesby any means, includingcipher or code (but may becurtailed or restricted wheneverexercised to theprejudice of the receiving state)

Inviolability of archives

A Case about Consular Protection(June 01 ICJ Decision) Regardingthe execution of 2German brothers (Walter and Karl LaGrand) inArizona in1999 for their involvement in a bank robbery in 1982

* Karl was first executed.

* US breached its international duties when it ignoredICJsrequest for last minute stay of execution for Walter

* US violated the Vienna Convention on ConsularProtection whichrequires police/court officials toinform foreign detainees of theirright to seek helpfrom consular officials from their owncountries.

IMPORTANT NOTE:Consent given to the establishment of diplomaticrelationsbetween two states IMPLIES, unless otherwise statedconsentto the establishment of consular relations. (Article2, Sec 2)

7/25/2019 ADDU LLB PIL Second Exam Coverage

18/18

PUBLIC INTERNATIONAL LAW [2-MANRESA] S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, andthe b ook of Isagani Cruz, 2003 Ed. ADDU LAW

18 | P a g e

NorieSushiHOWEVER, severance of diplomatic relations shallnotipso facto involve the severance of consular relations, andviceversa. (Article 2, Sec 3)

VIENNA CONVENTION ON CONSULAR RELATIONDone at Vienna on April24, 1963

Article 11The consular commission or notification ofappointment

1. The head of a consular post shall be provided by thesendingState with a document, in the form of acommission or similarinstrument, made out for eachappointment, certifying his capacityand showing, as ageneral rule, his full name, his category andclass, theconsular district and the seat of the consular post.2.The sending State shall transmit the commission orsimilarinstrument through the diplomatic or otherappropriate channel tothe Government of the State in

whose territory the head of a consular post is to exercisehisfunctions.3. If the receiving State agrees, the sending Statemay,instead of a commission or similar instrument, send tothereceiving State a notification containing theparticularsrequired by paragraph 1 of this article.

Article 12The exequatur

1. The head of a consular post is admitted to the exerciseof hisfunctions by an authorization from the receivingState termed anexequatur, whatever the form of this

authorization.2. A State which refused to grant an exequatur isnotobliged to give to the sending State reasons for suchrefusal.3.Subject to the provisions of articles 13 and 15, the headof aconsular post shall not enter upon his duties until hehas receivedan exequatur.

Article 45Waiver of privileges and immunities

1. The sending State may waive, with regard to a member

of the consular post, any of the privileges andimmunitiesprovided for in articles 41, 43 and 44.2. The waivershall in all cases be express, except asprovided in paragraph 3 ofthis article, and shall becommunicated to the receiving State inwriting.3. The initiation of proceedings by a consular officer oraconsular employee in a matter where he might enjoyimmunity fromjurisdiction under article 43 shall precludehim from invokingimmunity from jurisdiction in respect

of any counterclaim directly connected with the principaclaim.4.The waiver of immunity from jurisdiction for thepurposes of civilor administrative proceedings shall nobe deemed to imply the waiverof immunity from themeasures of execution resulting from thejudicial decision;

in respect of such measures, a separate waiver shallbenecessary.

Article 41 Personal inviolability of consular officersArticle 43Immunity from jurisdictionArticle 44 Liability to give evidence

You need to endure so that you can receive the promises afteryou doGods will.

Hebrews 10:36, KJV