A Report on

Public International Law

by
Dalena, Luna, and Marcos
IMMUNITY FROM JURISDICTION
 International Jurisdiction

• Jurisdiction refers to the power of a state to affect persons,

property, and circumstances within its territory.
• It may be exercised through legislative, executive, or judicial
actions.
• International law particularly addresses questions of criminal law
and essentially leaves civil jurisdiction to national control.
• No state is obligated to exercise its jurisdiction even if
international law would raise no objections.
 Immunity from Jurisdiction

• Rationale:
• An equal cannot judge an equal (par in paren non habet imperium)
• Non – Intervention
• domestic courts must decline to hear cases against foreign sovereigns out of deference
to their roles as sovereigns
 Sovereign Immunity

• State itself
• Head of State
 Diplomatic and Consular Immunity
• Part of customary international law to grant immunity to diplomatic
representatives to uphold their dignity as representatives of their
respective states and allow free and unhampered exercise of their
functions
• Procedure starts with a request by the foreign state for an Executive
endorsement by the Department of Foreign Affairs
• The determination made is a political question and conclusive on
Philippine courts
 Sovereign Immunity

Absolute Theory
The doctrine of foreign sovereign immunity provides that a foreign state
generally is immune from the jurisdiction of the courts of another sovereign
state.

Restrictive Theory
The theory of state immunity that foreign states were immune from jurisdiction
relating to their “public acts” (acta jure imperii) but were not immune from
jurisdiction for their “private acts” (acta jure gestionis) including
commercial activities.
 The Schooner Exchange Case

• Facts: Two Americans (P) claimed they owned and were entitled to the schooner
Exchange they seized on the high seas. The claim which the United States
Attorney (D) put forward for the prevention of the ship leaving was that, the
ship which was owned by the Emperor of France had been forced to enter the
port of Philadelphia due to bad weather conditions.
At this point in time, the U.S and France were on friendly terms. The United
States’ (D) request for the dismissal of ownership and release of the ship was
granted by the district court. However, this judgment was reversed by the circuit
court and this did not prevent the United States (D) from appealing to the U.S.
Supreme Court.
 The Schooner Exchange Case

• Held: National ships of war are viewed as been exempted by consent of

the power of the friendly jurisdiction whose port the ship enters. A
nation’s jurisdiction within its sovereign territory is exclusive and
absolute.
The Exchange been a public armed ship, currently under the control and
supervision of a foreign power, who at the time of the ship’s entry into
the United States territory, was at peace with the United States, must be
viewed as having entered the states territory under an implied promise
that while in such environment, would be exempt from the jurisdiction of
the country. Reversed.
 The Schooner Exchange Case

• Discussion: The absolute form of sovereign immunity from judicial

jurisdiction was implicated in this case. Three principles were
brought forward by the court in this case; the immunity that all
civilized nations allow to foreign ministers; the exemption of the
person of the sovereign from arrest or imprisonment within a foreign
country; and when a sovereign permits troops of a foreign prince to
pass through his territory, such sovereign is understood to mean he
has ceded a portion of his territorial jurisdiction.
 Mighell v. Sultan of Johore

• Facts: The Sultan of Johore in India, whilst visiting England became engaged to
a young English woman to whom he disclosed his untrue identity as that of
Albert Baker. The Sultan, having failed to fulfill his promise of marriage, the
lady attempted to sue him for breach of promise of marriage.
• Held: A ruler of an independent sovereign state, Johore, having been so
regarded for that purpose, the ruler was immune from legal process unless he
decided to wave his immunity and to submit to jurisdiction.
 Pinochet Case

• Facts: Pinochet (D), the former head of state of Chile, was

considered by the House of Lords (P) to have contravened the
provisions of the Torture Convention. This convention became law
on the 8th of December 1988 and Chile, Spain and the United
Kingdom were all parties to it. But Pinochet (D), siting the fact that
he was a former head of state, he was immune under the principle
of international law.
• Issue: WoN the provision of the Torture Convention consistent
with the notion of continued immunity for former head of states?
 Pinochet Case

• Held: Yes. The provision of the Torture Convention is not consistent with
the notion of continued immunity for former head of states. Pinochet (D)
was not acting in any capacity that gives rise to immunity if as alleged; he
masterminded and authorized torture after the 8th of December 1988
because these acts clearly contravene international law. Hence, the torture
proceedings brought against the defendant should only continue on the
allegation that torture in pursuance of a conspiracy to commit torture was
being committed by the defendant after he lost his immunity in
December 1988.
 Pinochet Case

• Discussion: Under common law, a former head of state enjoys

immunity for official acts done while in office, this implies that the
court also took cognizance of common law in this case. Ensuring that
no safe haven is available to torturers is the primary aim of the
Torture Convention.
 Holy See v. Rosario
• FACTS: Land was donated by the Archdiocese of Manila to the Papal Nuncio,
which represents the Holy See, who exercises sovereignty over the Vatican City,
Rome, Italy, for his residence. Said lots were sold by the Holy See through an agent
to Ramon Licup who assigned his rights to respondents Starbright Sales
Enterprises, Inc. When the squatters refuse to vacate the lots, a dispute arose
between the two parties because both were unsure whose responsibility was it to
evict the squatters from said lots. Respondent Starbright Sales Enterprises Inc.
insists that Holy See should clear the property while Holy See says that respondent
corporation should do it or the earnest money will be returned. With this, Msgr.
Cirilios, the agent, subsequently returned the P100,000 earnest money. The same
lots were then sold to Tropicana Properties and Development Corporation.
Starbright Sales Enterprises, Inc. filed a suit for annulment of the sale, specific
performance and damages against Msgr. Cirilios, PRC as well as
Tropicana Properties and Development Corporation. The Holy See and Msgr.
Cirilos moved to dismiss the petition for lack of jurisdiction based on sovereign
immunity from suit.
• ISSUE: WoN the Holy See can invoke immunity
HELD: Holy See may properly invoke sovereign immunity for its non-suability. As
expressed in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of
International Law are adopted by our Courts and thus shall form part of the laws of
the land as a condition and consequence of our admission in the society of nations.
• It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic
Relations that diplomatic envoy shall be granted immunity from civil and
administrative jurisdiction of the receiving state over any real action relating to
private immovable property. The Department of Foreign Affairs (DFA) certified
that the Embassy of the Holy See is a duly accredited diplomatic missionary to the
Republic of the Philippines and is thus exempted from local jurisdiction and is
entitled to the immunity rights of a diplomatic mission or embassy in this Court.
• The Holy See is immune from suit because the act of selling the lot of concern is
non-propriety in nature. The lot was acquired through a donation from the
Archdiocese of Manila, not for a commercial purpose, but for the use of petitioner
to construct the official place of residence of the Papal Nuncio thereof. The
transfer of the property and its subsequent disposal are likewise clothed with a
governmental (non-proprietal) character as petitioner sold the lot not for profit or
gain rather because it merely cannot evict the squatters living in said property.
 Guidelines for determining jure imperii from
gestonis (Holy See v. Rosario)
• Discussion: Mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for gain
or profit.
PHILIPPINE RULES OR JURISPRUDENCE ON STATE
IMMUNITY
 Indonesia v. Vinzon
• FACTS: Petitioner, Republic of Indonesia, represented by its Counsellor, Siti
Partinah, entered into a Maintenance Agreement in August 1995 with respondent
James Vinzon, sole proprietor of Vinzon Trade and Services. The equipment
covered by the Maintenance Agreement are air conditioning units and was to take
effect in a period of four years. When Indonesian Minister Counsellor Kasim
assumed the position of Chief of Administration in March 2000, he allegedly found
respondent’s work and services unsatisfactory and not in compliance with the
standards set in the Maintenance Agreement. Hence, the Indonesian Embassy
terminated the agreement in a letter dated August 31, 2000. Respondent filed a
complaint claiming that the aforesaid termination was arbitrary and unlawful.
Petitioners filed a Motion to Dismiss assailing that Republic of Indonesia, as a
foreign sovereign State, has sovereign immunity from suit and cannot be sued as a
party-defendant in the Philippines.
• ISSUE: WoN Indonesia’s immunity from suit has been waived?
HELD: No. The rule that a State may not be sued without its consent is a
necessary consequence of the principles of independence and equality of
States. The mere entering into a contract by a foreign State with a private party
cannot be construed as the ultimate test of whether or not it is an act jure
imperii or jure gestionis. Such act is only the start of the inquiry. A sovereign
State does not merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its maintenance and
upkeep. Hence, the State may enter into contracts with private entities to
maintain the premises, furnishings and equipment of the embassy and the
living quarters of its agents and officials. It is therefore clear that petitioner
Republic of Indonesia was acting in pursuit of a sovereign activity when it
entered into a contract with respondent for the upkeep or maintenance of the
air conditioning units, generator sets, electrical facilities, water heaters, and
water motor pumps of the Indonesian Embassy and the official residence of
the Indonesian ambassador.
 Indonesia v. Vinzon
• Discussion: Even contracts may be covered by the immunity if they
were entered into pursuant to a governmental purpose such as the
establishment of an embassy.
 US v. Ruiz
• FACTS: Sometime in May 1972, the United States invited the submission of
bids for certain naval projects. Eligio de Guzman & Co. Inc. responded to
the invitation and submitted bids. Subsequently, the company received two
telegrams requesting it to confirm its price. In June 1972, the copany
received a letter which said that the company did not qualify to receive an
award for the projects. The company then sued the United States of America
and individual petitioners demanding that the company perform the work on
the projects, or for the petitioners to pay damages and to issue a writ of
preliminary injunction to restrain the petitioners from entering into contracts
with third parties concerning the project.

ISSUE: WoN the petitioners exercise governmental or proprietary functions?

HELD: The rule of State immunity exempts a State from being sued in the
courts of another state without its consent or waiver. This is a necessary
consequence of the principles of independence and equality of states.
However, state immunity now extends only to governmental acts of the state.
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign. In
this case, the projects are integral part of the naval base which is devoted to the
defense of the USA and Philippines which is, indisputably, a function of the
government. As such, by virtue of state immunity, the courts of the Philippines
have no jurisdiction over the case for the US government has not given consent
to the filing of this suit.
 US v. Ruiz
• Discussion: The restrictive application of state immunity is proper
only when proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated differently, a
State may be said to have descended to the level of an individual and can thus
be deemed to have tacitly given its consent t be sued only when it enters into
business contracts. It does not apply where the contract relates to the exercise of
its sovereign functions.
 US v. Reyes
• FACTS: ISSUE: Montoya is an American citizen was employed as an I.D.
checker at the U.S. Navy Exchange (NEX) at the Joint United States Military
Assistance Group(JUSMAG) headquarters in Quezon City. Bradford also
worked at NEX JUSMAG as an“activity manager”. There was an incident on
22 January 1987 whereby Bradford had Montoya’s person and belongings
searched in front of many curious onlookers. This caused Montoya to feel
aggrieved and to file a suit for damages. Bradford claimed that she was
immune from suit because as manager of the US Navy Exchange Branch at
JUSMAG, Quezon City, she is immune from suit for acts done by her in the
performance of her official functions under the Philippines-United States
Military Assistance Agreement of 1947 and Military Bases Agreement of
1947.
• WoN Bradford enjoys immunity from suit?
• HELD: No. In the present case, it appears that Bradford was sued for acts
done beyond the scope and beyond her place of official functions. Thus she
may not avail of immunity. She may not even avail of diplomatic immunity
because Article 31 of the Vienna Convention on Diplomatic Relations
admits of exceptions. It reads: 1. A diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction except in the case
of:xxx xxx xxx(c) an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving State outside his
official functions
 US v. Reyes
• Discussion:
• A public official may be liable in his personal private capacity for whatever damage he
mayhave caused by his act donewith malice and in bad faith, or beyond the scope of his
authority or jurisdiction.
• The State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or officers
by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit.
• Test for applicability
• whether, assuming the public officer is found liable, enforcement of the decision will
require an affirmative act on the part of the State
• If yes, the act in question would be covered by State immunity
RIGHT OF LEGATION
 Agents Of Diplomatic Intercourse

• Head of State
• Foreign Secretary or Minister
• Diplomatic Envoys
 Head Of State

• Embodiment of, and represents the sovereignty of the State.

• 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.
• Exempt from criminal jurisdiction. Also from civil jurisdiction, except when he
himself is the plaintiff.
• Not subject to tax or to exchange or currency restrictions.
• Entitled to ceremonial amenities except if her is traveling in cognito.
 Foreign Secretary

• His office, the Foreign Office handles the actual day-to-day conduct of
foreign affairs.
• He is the immediate representative of the head of state and directly under his
control.
• He makes binding declarations on behalf of his state on any matter falling
within his authority, i.e. questions relating to international claims against the
state.
• He is the head of the foreign office and has direction of all ambassadors and
other diplomatic representatives of his government.
 Diplomatic Envoys

• Ambassadors or nuncios accredited to heads of state;

• Envoys, ministers or internuncios accredited to heads of state; and
• Charg´e d’affaires accredited to ministers for foreign affairs.
Note: The are classifications of heads of mission under the Vienna Convention
on Diplomatic Relations in 1961. Classification important only in matters of
protocol or grant of special honors.
 Other Members Of The Diplomatic Mission

• Diplomatic Staff – composed of those engaged in diplomatic activities and

accorded diplomatic rank.
• Administrative & Technical Staff – those employed in the administrative and
technical service of the mission.
• Service Staff –those engaged in the domestic service of the mission
 Diplomatic Corps

• Composed of all diplomatic envoys accredited to the same local or receiving

state.
• Headed by a DOYEN DU CORPS or doyen, who by tradition is usually the
Papal Nuncio or the oldest ambassador, or in the absence of the
ambassadors, the oldest Minister Plenipotentiary.
 Appointment of Envoys

• President appoints, sends and instructs the diplomatic and consular

representatives. His prerogative to determine the assignment of the
diplomatic representative cannot be questioned. [De Perio-Santos v.
Macaraig, G.R. No. 94070, Apr. 10, 1992]
• Sending state not totally free in choosing it diplomatic representatives,
especially heads of mission. Receiving state has the right to refuse to receive
the representative.
 Process Of Agreation

• The informal process of avoiding rejection of diplomatic representative that

may result to strained relations between the sending and receiving states.
• Sending state resorts to informal inquiry (enquiry) as to the acceptability of a
particular envoy.
• Receiving state responds with an informal conformity (agrement).
• The process is concluded by appointment and formal accreditation of the
representative.
 Commencement Of Diplomatic Mission

Envoy presents himself at the receiving state armed with the following
papers:
• Lettre de creance (Letter of credence) – with his name, rank and general
character of his mission and request for favorable reception and full
credence;
• Diplomatic passport – authorizing his travel;
• Instructions – which may include document of full powers (pleins pouvoirs)
giving him authority to negotiate on extraordinary or special business;
• Cipher or Code Book – for use in sending secret communication to his home
country.
 Functions Of A Diplomatic Mission

• Represents the sending state in the receiving state;

• Protects in the receiving state the interests of the sending state and its
nationals within the limits allowed by international law;
• Negotiates with the government of the receiving state;
• Ascertains, by all lawful means, the conditions and developments in the
receiving state and reporting these to the sending state; and
• Promotes friendly relations between the sending state and the receiving state
and developing their economic, cultural and scientific relations.
 Proper Conduct Of Diplomatic Mission

• Exercise utmost discretion and tack, taking consideration always the

preservation of the goodwill of the sending state;
• Avoid interference with the internal affairs of the receiving state.
• Not to aid one political party at the expense of another.
• Not to publicly criticize the policies or acts of the receiving state or its
nationals.
• Not to use his mission for espionage, dissemination of propaganda against
the receiving state, or subversion of its government.
 Diplomatic Immunities & Privileges

• Personal inviolability
• Immunity from jurisdiction
• Inviolability of diplomatic premises
• Inviolability of archives
• Inviolability of communication
• Exemption from testimonial duties
• Exemption from taxation
• Other privileges
 Personal Inviolability

• Not liable to any form of arrest or detention.

• Receiving state should treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or dignity.
 Immunity From Criminal Jurisdiction

• The diplomatic agent is immune from criminal jurisdiction of the receiving

state.
• But this does not mean he is exempt from local laws; it does not give him the
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]
 Immunity From Civil & Administrative
Jurisdiction
• The diplomatic agent also enjoys immunity from civil and administrative
jurisdiction of the receiving state.
• No civil action of any kind may be brought against him, even with respect to
matters relating to his private life.
• His properties are not subject to garnishment, seizure for debt, execution and
the like.
• Note: The children born to a diplomatic agent while he possesses diplomatic
status are regarded as born in the territory of his home state.
• Exceptions:
a) A real action relating to private immovable property situated in the
territory of the receiving state, unless he holds it on behalf of the sending
state for the purposes of the mission;
b) An action relating to succession in which the diplomatic agent is involved
as executor, administrator, heir or legatee as a private person and not on
behalf of the sending state; and
c) An action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving state outside his official functions.
• The diplomatic agent cannot be compelled to testify, not even
by deposition before any judicial or administrative tribunal in
the receiving state, without the consent of his government.
• But immunity does not protect a public official who commits
unauthorized acts inasmuch as such are not acts of state. He
may be sued for such unlawful acts in his private capacity
 Republic Act No. 75

• Subject to the rule on reciprocity, it declares as void any writ or process

issued to:
- the person of any ambassador or public minister of any foreign state,
authorized and received by the President; or
- any domestic servant of any such ambassador or minister; or
- his goods or chattels distrained, seized or attached.
Exceptions:
• Citizens/inhabitants of the Philippines, where the process is
founded upon a debt contracted before his employment in the
diplomatic service; and
• Domestic servants of the ambassador or minister whose names
are not registered with the DFA
 WHO v. Aquino, 48 SCRA 242

Facts:
• Respondent judge issued a warrant for the search and seizure of certain
goods alleged to have been brought into the Philippines illegally by an
official of the World Health Organization.
• The WHO and the official moved to quash the warrant on the ground of
diplomatic immunity enjoyed by the official.
• The DFA Secretary and OSG joined them in the representation but the judge
denied the motion
• Held:
• The search warrant is void. It is a recognized principle of
international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and
courts should refuse to look beyond a determination by the
executive branch.
• Where the plea of diplomatic immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to
accept the claim of immunity so as not to embarrass the executive
arm of the government in conducting the country’s foreign
relations. [See also The Holy See v. Rosario, 238 SCRA 524]
Inviolability Of Diplomatic Premises & Archives

• The diplomatic premises shall be inviolable. The agents of the receiving state
may not enter them without the consent of the head of mission. This
immunity is known as FRANCHISE DE L’HOTEL.
• Exception: Extreme cases of necessity or 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 archive be detained by local authorities even under process of
law.
 Inviolability Of Communication

• Universal recognition of the right of an envoy to communicate fully and

freely with his government.
• The mission may employ all appropriate means to send and receive
messages, whether by ordinary or in cipher, by any mode of communication
or by diplomatic couriers.
• Diplomatic pouch and diplomatic couriers also enjoy inviolability.
 Exemption From Testimonial Duties

• A diplomatic agent is not obliged to give evidence as a witness.

• However, he is not prohibited by international law fro doing so and may
waive this privilege.
• Example:
• Venezuelan envoy testifying at the trial on the assassination of US President
Garfield in 1881.
 Exemption From Tax

• The diplomatic agent is exempt from all taxes, customs duties, and other
dues and from social security requirements under certain conditions. [See
Art. 33, Vienna Convention on Diplomatic Relations]
• His personal baggage is also free from inspection, except when there are
serious grounds for presuming that it contains articles not exempt from
customs duties or not admissible into the receiving state.
 Other Privileges

• Freedom of movement and travel in the territory of the receiving state.

• Exemption from all personal services and military obligations.
• Use of the flag and emblem of the sending state on the diplomatic premises
and the residence and means of transportation of the head of mission.
 Precedence Among Diplomatic Representatives

• In conferences or congresses of state, precedence is according to the

alphabetical FRENCH NAMES of states.
• Where a number of states are signatories, treaties to be signed in alphabetical
order, with due regard to the principle of alternat.
 Precedence In Social Functions

• Precedence is dependent upon nearness to the person at the head of the table:
1st place – the chair at his right;
2nd place – the chair at his left;
3rd place – the second chair at his right;
4th place – the second chair at his left; et. seq.
• In processions:
Generally, the place of honor is the first or sometimes the last.
• Protocol in short processions:
(2) dignitaries – the 1st has the precedence
(3) dignitaries – the middle is the place of honor; the first, the 2nd
in honor; and the third, the third in honor
(4) dignitaries – 2nd is the place of honor; the 1st is the second in
honor; 3rd & 4th, third and fourth respectively.
(5) dignitaries – middle is the place of honor; the one in advance
is the 2nd in honor; the 4th place is the 3rd in honor; the 1st place is
the 4th in honor, and the 5th place is the 5th in honor.
 Gun Salutes

• Ambassadors – 19 guns
• Envoys Extraordinaire and Ministers Plenipotentiary – 15 guns
• Ministers Resident – 13 guns
• Charge d’affairs – 11 guns
 Duration Of Immunities & Privileges

• From the moment he enters the territory of the receiving state until he leaves
or upon expiration of a reasonable time in which to do so.
• With respect to official acts, immunity shall continue ad infinitum.
• Privileges are available even in transitu, when traveling through a third state
on his way to or from the receiving state.
 Waiver of Immunities

• Diplomatic privileges may be waived.

• But the waiver cannot be made by the individual concerned SINCE
IMMUNITIES ARE NOT PERSONAL TO HIM.
• Waiver may be made only by the government of the sending state for head of
mission. In other cases, by either the government or the chief of mission.
• Waiver does not include execution of judgment. A separate waiver is
necessary
 Termination Of Diplomatic Mission

• Death
• Resignation
• Removal
• Abolition of office
• Recall by the sending state
• Dismissal by the receiving state
• War between them
• Extinction of the state
CONSULS
 Nature Of Office Of Consuls

• They are state agents residing abroad for various purposes but mainly in the
interest of COMMERCE AND NAVIGATION.
• Unlike diplomatic agents, they are not charged with the duty of representing
their states in political matters
• Nor are they accredited to the state where they are supposed to discharge
their functions.
• Consuls do not enjoy all the traditional diplomatic immunities and
privileges.
• They are, however, entitled to SPECIAL TREATMENT under the law of
nations.
 Historical Evolution of Consuls

• Dates back to 6 BC when Egyptians allowed the Greeks at Naucratis to

choose from among themselves a magistrate who would apply to them the
laws of their own country. They were called PROXENOI (protectors or
prostrates).
• The practice was modified by the Romans with the appointment of their
PRAETOR PEREGRINUS, who interpreted the law between the Romans and
foreigners.
• The Visigoths, after their conquest of Rome, later established a
special court that applied to foreigners their own national laws
rather than the law of the territorial sovereign.
• On the other hand, the Chinese also created similar courts in the
8th century while the Arabs in the 9th century.
• When commercial trade flourished among the Mediterranean
cities and the Near East, ‘treaties of capitulation’ were made
exempting European nationals in the Near East from local
jurisdiction and made them triable by their own consuls.
 Kinds of Consuls

• Consules Missi – Professional or career consuls who are NATIONALS of the

appointing state and required to devote full time to the discharge of their
consular duties.
• Consules Electi – They may or may not be nationals of the appointing state.
They perform their consular functions only in addition to their regular
callings.
• Consuls are further classified according to rank or grade: Consul General,
Consul, Vice-Consul, and Consular Agent.
 Appointment of Consuls

• Two important documents are necessary before a consul assumes his

functions:
1) Lettre de Provision (Letters Patent) – The of appointment or commission
issued by the sending state and transmitted to the Secretary/Minister,
Foreign Affairs of the receiving state.
2) Exequatur – The authority given to consul by the RECEIVING STATE
authorizing them to exercise their duties. By it, consuls are public office both
 Functions/Duties Of Consul

• Promotes the commercial interests of his country in the receiving state and
observes the commercial trends and developments therein for report to his
home government.
• Performs duties relating to navigation, such as visiting and inspecting vessels
of his own state which may make call at his consular district. He may also
exercise a measure of supervision over such vessel, adjusting matters
pertaining to their internal order and discipline.
• Issues passport to the nationals of the sending state
• Issues visas and other documents relating to entry into and travel
within the territory of the sending state.
• Issues visa invoices and certificates of origin of goods destined
for the territory of that state.
• Looks after the interests of fellow national and extends to them
official assistance when needed.
• Authenticates documents, solemnizes marriages, registers births
and deaths, administers temporarily estates of deceased nationals
within the consular district, advises and adjusts differences
between fellow nationals, etc.
 Immunities & Privileges of Consul

• Freedom of communication in cipher or codes.

• Inviolability of archives, BUT NOT THE PREMISES. Hence, legal processes
may be served and arrests made within consular premises.
• 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.
• Right to display their national flag and emblem in the
consulate.
• Exempt from taxes, customs duties, military or jury service.
• Right to display his national flag and emblem in the consulate.
• The immunities and privileges are also available to the members
of the consular post, their respective families, and the private
staff.
• WAIVER OF IMMUNITIES, in general may be made ONLY BY
THE SENDING STATE.
• Immunity from jurisdiction on acts performed in the exercise of
consular duties will subsist without limitation of time.
 In Re Kasenkina

• The US rejected the protest made by Russia against the service of writ of
habeas corpus upon the latter’s consul at his official residence in New York
for the production of a Russian schoolteacher alleged to have been detained
in the premises.
• Note: Consular offices may be expropriated for purposes of national defense
or public utility.
 Walthier v. Thomson,
189 F. Supp. 319 (1960)
• Facts: Thomson was sued for damages resulting from certain statements
allegedly made by him while in the discharge of his duties.
• Held: A consular official is immune from suit when the acts complained of
were performed in the course of his official duties. Hence, statements
allegedly made to Walthier by Thomson were uttered in pursuance of the
latter’s official functions as consular officer, then the suggestion of the
ambassador of Canada should be adopted and the defendant held immune.
 Termination Of Consular Mission

• Removal
• Resignation
• Death
• Expiration of terms
• Withdrawal of the exequatur
• War between the receiving and sending states
Note: Severance of consular relations does not necessarily terminate diplomatic
relations.
 US v. Tehran
Facts:
On 4 November 1979, a militant group of Iranian students entered the United States Embassy
and overtook it, taking its 65 occupants hostage. 13 women and blacks were released, leaving 52
hostages. Although Iran had promised protection to the U.S. Embassy, the guards disappeared
during the takeover and the government did not attempt to stop it or rescue the hostages. The
U.S. arranged to meet with Iranian authorities todiscuss the release of the hostages; however,
Ayatollah Khomeini forbid officials to meet them. The U.S. subsequently ceased relations with
Iran, stopped U.S. exports, oil imports, and Iranian assets were blocked. Although the militants
were not acting on behalf of the State, neither did the State uphold their agreement to protect
U.S. nationals. The militants said they would hold the hostages until the Shah, who was
receiving medical treatment in the U.S., was returned to Iran. The United States argued that Iran
violated the Vienna Convention of 1961 which stated the Embassy would be protected, as well
as the Vienna Convention of 1963 which stated the nationals would be protected while in their
country. Furthermore, the 1955 Treaty was in effect, which promoted good relations between the
U.S. and Iran and promised protection to its territory and nationals.
 US v. Tehran
• Issues:
• Did Iran violate the Vienna Conventions of 1961 and 1963 as well as the 1955
Treaty?
• Even though the State of Iran did not overtake the United States Embassy,
does it have the responsibility of ensuring the hostages’ release?
• Should Iran be held responsible for the takeover by the militants? That is,
should Iran have to make reparation to the United States for these actions?
• Decisioins:
US v. Tehran
• The Court found that the Vienna Conventions and the Treaty were violated, as the Government
of Iran knew of the militants’ actions and made no attempt to help the United States’ hostages.
Iran had stepped in on other militant attacks of embassies, but did not do so in this case.
Therefore, the Court determined that the Governmentknowingly decided to not intervene in this
case.
• Iran, through its 1955 Treaty and the Vienna Conventions, must ensure the protection of the
United States’ citizens while they are in Iran. Therefore, Iran is responsible for releasing the
hostages even though they themselves did not contain them. Iran was under obligation to ensure
that the people as well as the property were protected, and therefore should remedy this.
• The Court determined that Iran was more than negligent in these circumstances. They had, on 1
March 1979, claimed to be making arrangements to prevent the United States from any takeovers
or attacks. Many Iranian authorities approved of the takeover and the Foreign Minister claimed
that America was responsible for the incident. Iran deliberately ignored requests for the hostages
to be released and should, for these reasons, be help to make reparation for the actions.
• Discussion:
US v. Tehran
• The international law elements are the power of Treaties and Vienna Conventions and,
from that, the responsibility of a State to enforce these against militant groups.
• The rules of law in this case are the Vienna Convention of 1961, the Vienna Convention
of 1963, and the 1955 Treaty.
• This case touches on the extradition rules, as it discusses bringing the militants to the
United States if Iran did not try them. It discusses the importance of Government
responsibility over its unruly citizens. Furthermore, it addresses the importance of
keeping to binding documents made between States.
• Discussion:
US v. Tehran
• This case stressed the importance of the Vienna Convention’s rules as well as Treaties.
• Additionally, it emphasized that a Government is responsible for what goes on within its
boundaries even if the actions are not specifically Government-related. The Government
should be held to the Vienna Conventions and Treaties, no matter the circumstances.
• Furthermore, the case heavily impacted the relations between the United States and Iran
even still today as this was a pivotal moment in the relationship between the two States.