RIGHT OF LEGATION

It is the right of the state to maintain diplomatic relations with other states

EXERCISE OF THE RIGHT OF LEGATION

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One of the MOST EFFFECTIVE ways of facilitating and promoting intercourse

among states.

AGENTS OF DIPLOMATIC INTERCOURSE

1.
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Head of State
May be a monarch or a president.
Entitled to certain immunities and honors
Exempt from criminal jurisdiction as well as civil jurisdiction EXCEPT where he

himself is the PLAINTIFF.

Not subject to tax or to exchange currency restrictions.
Ceremonial amenities are also due to him UNLESS travelling incognito

(WHAT IS INCOGNITO? )
The monarch or president will be covered by this immunity even if he enters into a
contract of marriage under a fictitious name.
In the case of Mighell vs. Sultqn Johore:
Hence in Mighell v. Sultan of Johore, 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. It was
held by the British Court that 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.
2. Foreign Secretary
- Before, heads of states personally undertake the function of diplomatic
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negotiations.
Now, the conduct of external affairs is now generally entrusted to foreign
secretary or minister, EXCEPT on matters of such significance or delicacy.

3. Diplomatic Envoys
- The regular day to day conduct of international affairs is entrusted to the
members of the foreign service who are the permanent envoys representing
their states.
The heads of these diplomastic missions as are as follows
a. Ambassadors
b. Envoys
c. Charges d affairs (annotations sa book)

Diplomatic Corps
-

A body consisting of the different diplomatic representatives who have been

accredited to the same local or receiving state

Appointment of Envoys
Commencement of the Diplomatic Mission
Diplomatic Functions:
1. Represent the sending state to receiving state.
2. Protect the interest of the sending state and its nationals in the receiving
state.
3. Negotiate with the government of the receiving state.
4. Ascertain conditions and developments in the receiving state and report
thereon to the government of the sending state.
5. Promote friendly relations between the sending state and the receiving state
and develop their economic, cultural and scientific relations.
[Annotations]
For more annotations http://www.e-ir.info/2011/07/20/the-functions-of-diplomacy/
1.
2.
3.
4.

Represent the home country in the host country

Protect the interests of the home country and its citizens in the host country
Negotiate with the government of the host country
Monitor and report on conditions and developments in the commercial,

economic, cultural, and scientific life of the host country

5. Promote friendly relations between the host country and the home country
6. Develop commercial, economic, cultural, and scientific relations between the
host country and the home country.

Conduct of Diplomatic Mission

Diplomatic Immunities and Privileges

Diplomatic Immunity is a principle of International Law by
which certain foreign government officials are not subject to
the jurisdiction of local courts and other authorities.
Granting privileges and immunities to diplomatic envoys has
been a long standing norm of international law. The formal
sending of envoys as representatives of Nation States can be
traced back to practices of ancient Greece. Ambassadors
exchanged between members of the Amphictyonic League,
or the ancient association of Greek Tribes, were regarded as
inviolable. Similar practices can be found in ancient India
and in Roman Empire.
The Amphictyonic League (Amphictyony) was a form of
Greek Hellenic religious organization that was formed to
support specific temple or sacred place.
a. Personal Inviolability
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Envoys are entitled to special protection of his person, honor and liberty
The Diplomatic Convention provides that:
The person of a diplomatic agent shall be inviolable. He shall not be liable in
any form of arrest or detention. The receiving state shall treat him with

due respect and shall take all appropriate steps to prevent any attack
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on his person, freedom or dignity.

EXCEPTIONS: envoy cannot complain if he is injured because he

himself caused the initial aggression and exposed himself to danger.

Local authorities may, IN EXCEPTIONAL CASES, lay his hands on him if
he has committed an act of violence and it is necessary to place him in

preventive restraint.
In the Philippines, RA NO 75, punishes, on the basis of reciprocity, any
person who assaults, strikes, wounds, imprisons or in any other
manner offers violence to the person of an ambassador or public
minister, in violation of the law nations with imprisonment for not
more than three years and a fine not exceeding two hundred pesos in

addition to penalties prescribed by the Revised Penal Code.

Noted: The attack is confined to the person of the envoy and does not
include his honor or reputation.

b.Immunity from Jurisdiction [ARTICLE 31]

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Diplomatic Agent shall be immune from the civil, criminal and

administrative jurisdiction of the receiving state except in few specified

cases.
However, he is expected to observe local laws as befits a

person of his rank and prestige.

He may be punished by the receiving state? :o
Ask for recall
IMMUNITY envoy can escape rigor of the local laws even if he

commits the most serious offense in the receiving state.

DIPLOMATIC CONVENTION provides A diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving state. He shall
enjoy immunity from its civil and administrative jurisdiction, EXCEPT:
1. 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.
2. An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir, legatee as a private
person and not behalf of the sending state.

3. An action relating to any professional or commercial activity

exercised by the diplomatic agent in the receiving state outside his
official functions.
HOWEVER: Immunity may be waived expressly by the sending state
or by the head of mission. It may also be waived impliedly when
the person commences proceedings in the local state and thereby
opens himself to any counterclaim directly connected with the
principal claim.
CASE CASE CASE
c.

Inviolability of Diplomatic Premises

Article 22
1.

The premises of the mission shall be inviolable. The agents of the

receiving State may not enter them, except with the consent of the head of
the mission.

2.

The receiving State is under a special duty to take all appropriate

steps to protect the premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission or impairment of
its dignity.

3.

The premises of the mission, their furnishings and other property

thereon and the means of transport of the mission shall be immune from
search, requisition, attachment or execution.

Immunity extends not only from local law but ti diplomatic premises.
DIPLOMATIC CONVENTION provides: premises of the mission shall be
inviolable. The agents of the receiving state may not enter them
except with the consent of the head of mission. It is also the duty of
the receiving state to protect the premised of the mission against any
intrusion and prevent disturbance of the peace of the mission, and
the means of transport of the mission shall be immune from search,

requisition, attachment or execution.

These include envoys offices, residence and out buildings, means of
transportation and compound where these are found.

These may not be entered by the local authorities without his

permission.
EXCEPT: In cases of clear and urgent necessity

d.Inviolability of Archives
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The receiving state has no right to pry into official papers and records

of a foreign diplomatic mission.

Diplomatic Convention provides: the archives and documents of the

mission shall be inviolable at any time and wherever they may be.
Even in case of armed conflict, archives must remain sealed and may
not be confiscated by the local state.

e.Inviolability of Communications
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[ARTICLE 25]
Diplomatic Convention provides: the receiving state shall permit and
protect free communication on the part of the mission for all official

purposes.
Such communication shall be inviolable and the diplomatic bag shall

not be opened or detained.

Even the diplomatic courier carrying the diplomatic bag shall be
protected by the receiving state.,,,,,

f. Exemption from testimonial Duties

-

Diplomatic Convention provides: diplomatic agent is not obliged to

give evidence as a witness.

BUT, he may waive this privilege when authorized by his government.
EXAMPLE

g.Exemption from Taxation

Article 23
1.

The sending State and the head of the mission shall be exempt from all
national, regional or municipal dues and taxes in respect of the premises of
the mission, whether owned or leased, other than such as represent payment
for specific services rendered.

2.

The exemption from taxation referred to in this Article shall not apply
to such dues and taxes payable under the law of the receiving State by
persons contracting with the sending State or the head of the mission.

Also exempt from taxes, customs duties, other dues, as well as from
social security requirements under certain conditions. Personal baage
is also free from inspection UNLESS there are serious grounds for
presuming that it contains articles not acceptable to the receiving
state.
h. Other

MORE
http://www.ediplomat.com/nd/treaties/diplomatic_relations.htm

CASE OF PANAMANIAN DIPLOMAT

Erick Bairnals Shcks, 35 years old, Panama National
He was accused of raping a 19 year old girl during their date in Makati City.
The incident happened about 11 pm on April 23 2012 when Shcks invited the
girl over to his place after befriending her for a few days earlier. The victim
said the Panamian made her sniff marijuana- like substance, rendering him
almost unconscious and proceeded to rape her.

He was taken into police custody by the CIDG after the woman filed a
complaint. He was a member of the technical and administrative staff of the
Panamanian Embassy in Manila, therefore, outside the criminal jurisdiction of
the Philippines. The court ordered the release of the suspect because of the
Philippine Government could not file a case against Shcks due to his
diplomatic immunity.
DFA asked the Panamanian government to waive the diplomatic immunity of
the staff member but the Panamanian government decided not to waive his
immunity. The Department of Foreign Affairs declared the Panamanian
diplomat a persona non grata.
The Convention states: The receiving State may at any time and without
having to explain its decision, notify the sending State that the head of the
mission or any member of the diplomatic staff of the mission is persona non
grata."
If no action is taken by the Panamanian government within a reasonable
period of time after he was declared as PNG, the Philippine government will
cease to recognize Shcks as a member of the Embassy and will accordingly
be stripped of his immunities, the DFA said.
Panamanian diplomat left the Philippines on May 11, 2012.