Sie sind auf Seite 1von 6

Right of Legation

Also known as the right of diplomatic intercourse, this refers to the right of the State to send and
receive diplomatic missions, which enables States to carry on friendly intercourse. It is not a
natural or inherent right, but exists only by common consent. No legal liability is incurred by the
State for refusing to send or receive diplomatic representatives. Governed by the Vienna
Convention on Diplomatic Relation (1961)

Foreign policy
Involves all of a countrys relationship diplomatic, military, commercial, and other with
other countries.

1. Agents of diplomatic intercourse


a. Head of state
Embodies the sovereignty of the state and enjoys the right to special protection for his physical
safety and the preservation of his honor and reputation.
His quarters, archives, property and means of transportation are inviolate under the principle of
extra-territoriality. He is immune from criminal and civil jurisdiction, except when he himself is the
plaintiff, and not subject to tax or exchange or currency restrictions.
b. The foreign office
The actual day-to-day conduct of foreign affairs is usually entrusted to a foreign office, headed by
a Secretary or a Minister, who, in proper cases, may make binding declarations on behalf of his
government.
2.) establishment of resident mission the mission of composed of
a.) head of mission
the Vienna convention classifies the head of mission into:
I.)
II.)
III.)

Ambassadors or nuncios accredited to head of state, and other heads of mission of


equivalent rank:
Envoys, minister and internuncios, accredited to heads of state: and
Charges daffaires, accredited to ministers of foreign affairs

b.) diplomatic staf, composed of those engaged in diplomatic activities and are accorded
diplomatic rank
c.) administrative and technical staf, consisting of those employed in the administrative and
technical service of the mission
d.) service staf, those engaged in the domestic service of the mission
3.) the diplomatic corps
According to custom, all diplomatic envoys accredited to the same state form a body known as
the diplomatic corps the doyen or head of this body is usually the papal nuncio, if there is one,
or the oldest ambassador, or, in the absence of ambassadors, the oldest minister plenipotentiary.
4.) appointment of envoys
President who appoints (Art 7, sec 16 consti), sends and instructs the diplomatic and consular
representatives, and his prerogative to determine the assignment of the countrys diplomatic
representatives cannot be questioned
a.) The sending state is not absolutely free in the choice of its diplomatic representatives,
especially heads of mission, bec the receiving state has the right to refuse to receive as
envoy of another state a person whom it considers unacceptable. To avoid embarrassment,
states resort to an informal inquiry as to the acceptability of a particular envoy, to which
the receiving sate responds with an informal conformity agreement. This informal process
is known as agreation.
b.) With the informal process concluded, the diplomatic mission then commences when the
envoy presents himself at the receiving state, generally armed with the following papers
i.)
Lettre de creance (letter of credence), with the name, rank and general character of
the mission, and a request for favorable reception and full credence;
ii.)
Diplomatic passport authorizing his travel;
iii.)
Instructions, which may include a document of full powers (pleins pouvoirs)
authorizing him to negotiate on extraordinary or special business; and
iv.)
Cipher, or code or secret key, for communications with his country
5.) functions and duties

a.) representing the sending state in the receiving state;


b.) protecting in the receiving state the interests of the sending state and its nationals, within the
limits allowed by international law;
c.) negotiating with the government of the receiving state;
d.) ascertaining, by all lawful means, the conditions and developments in the receiving state and
reporting these to the sending state, and;
e.) promoting friendly relations between the sending state and the receiving state, and
developing their economic, cultural and scientific relations.
6.) diplomatic immunities and privileges
a.) personal inviolability
the person of the diplomatic representative is inviolable; he shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due respect and take all steps to
prevent any attack on his person.
Freedom or dignity. In the Philippines, RA 75 punishes, on the basis of reciprocity, any person who
assaults, strikes, wounds, offers violence to the person of the ambassador or minister (except if
done in self-defense).
The Un convention on the prevention and punishment of crimes against internationally protected
persons considered crimes against diplomatic agents as international, not political, in nature.
However, he diplomatic envoy may be arrested temporarily in case of urgent danger, such as
when he commits an act of violence which makes it necessary to put him under restraint for the
purpose of preventing similar acts; but he must be released and send home in due time.
b.)Inviolability of premises and archives
the premises occupied by a diplomatic mission, as well as the private residence of the diplomatic
agent, are inviolable. The agents of the receiving state may not enter without the consent of the
envoy, except in extreme cases of necessity.
e.g., when the premises are on fire, or where there is imminent danger that a crime of violence is
to be perpetrated in the premises. Such premises cannot be entered or searched, and neither can
the goods, records and archives be detained by local authorities even under process of law.
i.)

The service of writs, summons, orders or processes within the premises of the mission
or residence of the envoy is prohibited. Even if a criminal takes refuge within the
premises, the peace officers cannot break into such premises for the purpose of
apprehending him. The fugitive should, however, be surrendered upon demand by local
authorities, except when the right of asylum exists. But if it is the ambassador himself
who requests local police assistance, this privilege cannot be invoked.

ii.)

The Vienna convention provides that the receiving state has the special duty to protect
diplomatic premises against invasion, damage, or any act tending to disrupt the peace
and dignity of the mission.

iii.)

The premises of the mission, their furnishing and other property thereon, and the means
of transport of the mission shall be immune from search, requisition, attachment or
execution. Inviolability also extends to the archives, documents, papers and
correspondence of the mission at all times and wherever they may be, and the receiving
state has the duty to respect and protect their confidential character.

iv.)

Unless the right is recognized by treaty or by local usage, an envoy should not permit
the premises of his mission or his residence to be used as a place of asylum for fugitives
from justice. An envoy may, however, in the interest of humanity, afford temporary
shelter to persons in imminent peril of their lives, such as those fleeing from mob
violence.

c.)Rights of official communication


the right of an envoy to communicate with his government fully and freely is universally
recognized. The mission may employ all appropriate means to send and receive messages,
whether ordinary or in cipher, by any of the usual modes of communication or by means of
diplomatic couriers. Bec of the right, the diplomatic pouch and diplomatic couriers shall also enjoy
inviolability
d.)Immunity from local jurisdiction
under the 1991 Vienna convention on diplomatic relations, a diplomatic agent shall enjoy
immunity from criminal jurisdiction of the receiving state. Thus, he cannot be arrested,
prosecuted and punished for any offense he may commit, unless his immunity is waived. But
immunity from jurisdiction does not mean exemption from local law; it does not presuppose a

right to violate the laws of the receiving state. Diplomatic privileges does not import immunity
from legal liability but only exemption from local
i.)

The diplomatic agent also enjoys immunity from civil and administrative jurisdiction of
the receiving state, and thus, no civil action of any kind may be brought against him,
even with respect to matters concerning his private life. As a rule, his properties are not
subject to garnishment, seizure for debt, execution and the like, except in the following
cases:
a.) Any real action relating to private immovable property situated in the territory of the
receiving state, unless the envoys holds it on behalf of the sending state for the
purposes of the mission;
b.) An action relating to succession in which the diplomatic agent is involved as
executor, administrator, heir or legatee as a private person and not on behalf of the
sending state; and
c.) An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions

ii.)

This immunity also means that the diplomatic agent cannot be compelled to testify, not
even by deposition, without the consent of his government, before any judicial or
administrative tribunal in the receiving state (Minucher vs. CA)

iii.)

Gfg

iv.)

Subject to the rule on reciprocity. RA 5 declares as void any writ or process issued out or
prosecuted by any person in any court of the Philippines, or by any judge or justice,
whereby the person of any ambassador or public minister of any foreign state,
authorized and received as such by the president, or any domestic servant of any such
ambassador or minister, is arrested or imprisoned, or his goods or chattels distrained,
seized or attached; and penalties are imposed for violation of this provision. However,
this privileges is not granted to:
a.) Citizens/ inhabitants of the Philippines, where the process is founded upon a debt
contracted before his employment in the diplomatic service; and
b.) Domestic servants of the ambassador or minister whose names are not registered
with the department of foreign affairs.

v.)

As part of the envoys immunity from local jurisdiction, the children born to him while he
possesses diplomatic status are regarded as born in the territory of his home state.

e.)Exemption from taxes and customs duties


except the following:
i.)
Indirect taxes normally incorporated in the price of goods or services
ii.)
Dues and taxes on private immovable property situated in the territory of the receiving
state, unless he holds it on behalf of the sending state for purposes of the mission
iii.)
Estate, succession or inheritance taxes levied by the receiving state;
iv.)
Dues and taxes on private income having its source in the receiving state and capital
taxes on investments in commercial ventures in the receiving state
v.)
Charges levied for specific services rendered; and
vi.)
Registration, court or record fees, mortgage dues and stamp duty, with respect to
immovable property.
The Vienna convention also provides for exemption from all customs duties and taxes of articles
for the official use of the mission and those for the personal use of the envoy or members of the
family forming part of his household, including articles intended for his establishment. Baggage
and effects are entitled to free entry and, normally, exempt from inspection; articles addressed to
ambassadors, ministers, charge daffaires are also exempt from customs inspection.
f.) other privileges
which include freedom of movement and travel in the territory of the receiving state: exemption
from all personal services and military obligations; the use of the flag and emblem of the sending
state on the diplomatic premises and the residence and means of transport of the head of
mission.
7.) duration of immunities/privileges
Enjoyed from the moment he enters the territory of the receiving state, and shall cease only the
moment he leaves the country, or on expiry of a reasonable time in which to do so; although with
respect to official acts, immunity shall continue indefinitely. These privileges are available even in
transit, when traveling through a third state on the way to or from the receiving state

8.) waiver of immunities


Diplomatic privileges may be waived, but as a rule, the waiver cannot be made by the individual
concerned since such immunities are not personal to him. Waiver may be made only be the
government of the sending state if it concerns the immunities of the head of mission; in other
cases, the waiver may be made either by the government or by the chief of mission. Waiver of
this privilege, however, does not include waiver of the immunity in respect of the execution of
judgment; a separate waiver for the latter is necessary.
9.) Termination of diplomatic mission
The usual modes of terminating official relations, such as death, resignation, removal or abolition
of office, will terminate the diplomatic mission. Other modes are recall by the sending state,
dismissal by the receiving state, war between the receiving and sending states, or the extinction
of the state.
B. CONSULAR RELATIONS
Consular are state agents residing abroad for various purpose but mainly in the interest of
commerce and navigation.
1.) Kinds of consuls:
a.) Consules missi
Are professional and career consuls, and nationals of the appointing state.
b.) Consules electi
Are selected by the appointing state either from its own citizens or from among nationals
abroad.
2.) Ranks:
a.) Consul general
Who heads several consular districts, or one exceptionally large consular district
b.) Consul
Who takes charge of a small district or town or port
c.) Vice consul
Who assists the consul
d.) Consular agent
Who is usually entrusted with the performance of certain functions by the consul
3.) Appointment
a.) Letters patent (letter de provision)
Which is the letter of appointment or commission which is transmitted by the sending
state to the secretary of foreign affairs of the country where the consul is to serve; and
b.) Exequatur
Which is the authorization given to the consul by the sovereign of the receiving state,
allowing him to exercise his function within the territory.
4.) Functions
Commerce and navigation, issuance of visa, and such as are designed to protect nationals
of the appointing state.
5.) Immunities and privileges
Under the 1963 vienna convention on consular relations, consuls are allowed freedom of
communication in cipher or otherwise; inviolability of archives, but not of the premises
where legal processes may be served arrests made; exempt from local jurisdiction for
offenses committed in the discharge of official functions, but not other offenses except
minor infractions; exempt from testifying on official communications or on matters
pertaining to consular function; exempt from taxes, customs duties, military or jury service;
and may display their national flag and emblem in the consulate
Also available to the members of the consular post, their families and their private staff.
Waiver of immunities may be made by the appointing state.
6.) Termination of consular mission
Usual modes of terminating official relationship; withdrawal of the exequatur; extinction of
the state; war

Note: severance of consular relations does not necessarily terminate diplomatic relations.
DISPUTE RESOLUTION AND THE RIGHT TO SELF DEFENSE
Litigation and arbitration
Judicial as opposed to political means of settlement because their results are both legally
binding. The terms of arbitration are agreed on in advance either through an ad hoc
agreement or a treaty. The former is called a COMPROMIS and the latter a
COMPROMISSORY clause.
In both cases the parties agree to the jurisdiction of the arbitrators, the method of selecting
the arbitrators a definition of the dispute, the procedure to be followed, and sometimes the
applicable law. litigation results in opinions that are usually published; arbitration results in
awards that are sometimes published
Enquiry
Is also called inquiry or fact-finding- used as an independent procedure or as a preliminary
part of other methods of peaceful dispute settlement.
Mediation
Is a political method of settlement. In mediation a third-party, acceptable to both parties to
the dispute, effects communication between the parties and participates activity in the
process of negotiation by offering proposals for settlement.
Good office
Similar to mediation is good office, which is not mentioned in the UN charter. Good office is
recognized by the Hague convention for the pacific settlement of international disputes of
1899. It is like a mediation except that the third party does not participate actively in the
negotiations. He merely effects communication between the parties saving them the
difficulties of personal contract. And the parties have no prior commitment to the result.
Conciliation
Differs from arbitration in one very important respect; the result of the former is not legally
binding and thus has no influence on any further litigation of the dispute. It is a diplomatic
method of third party peaceful settlement.. whereby a dispute is referred by the parties,
with their consent, to a permanent or ad hoc commission.. whose task is impartially to
examine the dispute and to prepare a report with the suggestion of a concrete proposal.
Blockade
An embargo (from the Spanish embargo, literally distraint) is the partial or complete
prohibition of commerce and trade with a particular country or a group of country.
Embargoes are considered strong diplomatic measures imposed in an effort, by the
imposing country, to elicit a given national-interest result from the country on which it is
imposed. Embargoes are similar to economic sanctions and are generally considered legal
barriers to trade.
Blockade
A blockade is an effort to cut off food, supplies, war material or communications from a
particular area by force, either in part or totally. It is distinct from a siege in that blockade is
usually directed at an entire country or region, rather than a fortress or city. May be by
land, sea or airspace.
Close patrol of the hostile ports, in order to prevent naval forces from putting to sea, is also
referred to as a blockade. It may also include cutting off electronic communications by
jamming radio signals and severing undersea cables.
Sometimes considered as an act of war.
AGRESSION VS. ARMED ATTACK
Agression
Is the use of armed force by a state against the sovereign, territorial integrity and political
independence of another state, or in any other manner inconsistent with the charter of the
UN, as set out in this definitions
Armed force
Including not merely actions by regular armed forces across an international border, but
also sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed forces against another state of such gravity as to amount to
an actual armed attack conducted by regular forces , or its substantial involvement
thereon.

Note:
State which invokes right to self-defense has burden of proof to show that there is in fact a
situation of armed attack occurring against it advisory opinion of ICJ re Palestine july 9,
1924
Exercise of right must be reported to the UN security council ASAP
Individual state right and collective self-defense but there must be a request for assistance
(Nicaragua vs. US)
Collective self-defense treaties NATA (april 4, 1949); US, Japan, Sept 8, 1951; US and
Korea (Oct 1, 1953) and US China Mutual defense treaty (dec 2, 1954); warsaw pact of May
1995

Elements of lawful self-defense


Imminence
Requires that there be no time to pursue non-forcible measures with a reasonable chance of
averting or stopping the attack.
Necessity
State should exhaust all reasonable alternative methods of resolving the dispute before resorting
to armed force. Use of force must be the only option.
Proportionality
Any act of self-defense must be reasonably proportionate with the use of force launched against
it. Methods for approximation include comparing number of casualties or original and defensive
attack; measure is proportionate to the targets of neutralizing the original attack
THE CAROLINE AFFAIR
The incident has been used to establish the principle of anticipatory self-defense in international
politics, which holds that it may be justified only in case in which the necessity of that selfdefense is instant, overwhelming, and leaving no choice of means, and no moment for
deliberation. This formation is part of the caroline test. The caroline affair is also now invoked
frequently in the course of the dispute around preemptive strike (or preemptive doctrine)