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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.
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
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.
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.)
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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.
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