DIPLOMATIC AND CONSULAR LAW

Right of legation/ Right of Diplomatic Intercourse

It is the right of the state to send and receive diplomatic missions, which enables states to
carry on friendly intercourse. It is governed by the Vienna Convention on Diplomatic
Relations (1961).

The exercise of this right is one of the most effective ways of facilitating and promoting
intercourse among nations. Through the active right of sending diplomatic representatives
and the passive right of receiving them, States are able to deal more directly and closely with
each other in the improvement of their mutual intercourse.

NOTE: As the right of legation is purely consensual, the State is not obliged to maintain
diplomatic relations with other States.

If it wants to, a State may shut itself from the rest of the world, as Japan did until the close of
the 19th century.

Disadvantage: A policy of isolation would hinder the progress of a State since it would be
denying itself of the many benefits available from the international community.

Agents of diplomatic intercourse

1. Head of State
2. Foreign secretary or minister
3. Members of diplomatic service
4. Special diplomatic agents appointed by head of the State
5. Envoys ceremonial

Diplomatic Corps

It is a body consisting of the different diplomatic representatives who have been accredited
to the same local or receiving State. It is headed by a doyun de corps, who, by tradition, is the
oldest member within the highest rank or, in Catholic countries, the papal nuncio.

Functions of a diplomatic mission (Re-P-Pro-N-A-R)

1. Represent sending State in receiving State

2. Protect in receiving State interests of sending State and its nationals
3. Negotiate with government of receiving State
4. Promote friendly relations between sending and receiving States and developing their
economic, cultural, and scientific relations
5. Ascertain by all lawful means conditions and developments in receiving State and
reporting thereon to government of sending State
6. In some cases, Represent friendly governments at their request.

Classes of heads of a diplomatic mission

1. Ambassadors or nuncios- accredited to Heads of State and other heads of missions of

equivalent rank.
2. Envoys ministers and internuncios- accredited to heads of State.
3. Charge d’ affaires- accredited to ministers of foreign affairs.

NOTE: The appointment of diplomats is not merely a matter of municipal law because the
receiving State is not obliged to accept a representative who is a persona non grata to it.
Indeed, there have been cases when duly accredited diplomatic representatives have been
rejected, resulting in strained relations between the sending and receiving State.

Persona non Grata

In international law and diplomatic usage means a person not acceptable (for reasons
peculiar to himself) to the court or government to, which it is proposed to accredit him in the
character of an ambassador or minister.

Agreation

It is a practice of the States before appointing a particular individual to be the chief of their
diplomatic mission in order to avoid possible embarrassment.

It consists of two acts:

1. The inquiry, usually informal, addressed by the sending State to the receiving State
regarding the acceptability of an individual to be its chief of mission; and
2. The agreement, also informal, by which the receiving State indicates to the sending State
that such person, would be acceptable.

Letter of Credence

It is the document by which the envoy is accredited by the sending State to the foreign State
to which he is being sent. It designates his rank and the general object of his mission, and
asks that he be received favorably and that full credence be given to what he says on behalf
of his State.

Letter Patent

The appointment of a consul is usually evidenced by a commission, known sometimes as

letter patent or letred’provision, issued by the appointing authority of the sending State and
transmitted to the receiving State through diplomatic channels.
 DIPLOMATIC IMMUNITY

Nature

Diplomatic immunity is essentially a political question and the courts should refuse to look
beyond the determination by the executive branch.

Q: Besides the head of the mission, who can enjoy diplomatic immunities and
privileges?

A: Diplomatic suite or retinue which consist of:

1. Official staff- it is made up of the administrative and technical personnel of the mission,
including those performing clerical work, and the member of their respective families

2. Non-official staff- composed of the household help, such as the domestic servants,
butlers, and cooks and chauffeurs employed by the mission

NOTE: As a rule, however, domestic servants enjoy immunities and privileges only to the
extent admitted by the receiving State and insofar as they are connected with the
performance of their duties.

Privileges and immunities of diplomatic mission

1. Personal inviolability – Members of diplomatic mission shall not be liable for any form
of arrest or imprisonment
2. Inviolability of premises – Premises, furnishings and means of transport shall be
immune from search, seizure, attachment or execution.
3. Archives or documents shall be inviolable
4. Diplomatic agents are immune from criminal, civil or administrative liability.
5. Receiving State shall protect official communication and official correspondence of
diplomatic mission.
6. Receiving State shall ensure all members of diplomatic mission freedom of movement
and travel.
7. A diplomatic agent is exempted to give evidence as a witness.
8. Exemption from general duties and taxes including custom duties with certain
exceptions.
9. Use of flag and emblem of sending State on premises of receiving State.

XPNs to the privileges and immunities of diplomatic representatives

1. Any real action relating to private immovables situated in the territory of the receiving
State unless the envoy holds the property in behalf of the sending State.
2. Actions relating to succession where diplomatic agent is involved as executor,
administrator, heirs or legatee as a private person and not on 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

Modes of waiving diplomatic immunity and privileges

1. Expressly by the sending State;

2. Impliedly, as when the person entitled to the immunity from jurisdiction commences
litigation in the local courts and thereby opens himself to any counterclaim directly
connected with the principal claim.

NOTE: Waiver of immunity from jurisdiction with regard to civil and administrative
proceedings shall not be held to mean implied waiver of the immunity with respect to the
execution of judgment, for which a separate waiver shall be necessary.

Exequatur

An authorization from the receiving State admitting the head of a consular post to the
exercise of his functions. Thus, an appointee cannot start performing his function unless the
receiving State issues an exequatur to him.

Diplomats vs. Consuls

Diplomats Are concerned with political relations of States.

They are not concerned with political matters and attend
Consuls rather to administrative and economic issues.

Kinds of Consuls

1. Consules missi – Professional or career consuls who are nationals of the sending State and
are required to devote their full time to the discharge of their duties
2. Consules electi – May or may not be nationals of the sending State and perform their
consular functions only in addition to their regular callings

NOTE: Examples of regular callings include acting as notary, civil registrar and similar
administrative capacities and protecting and assisting the nationals of the sending State.

Duties of Consuls (P-Ob- Prom-Is-Su)

1. Protection of the interests of the sending State and its nationals in the receiving State.
2. Promotion of the commercial, economic, cultural, and scientific relations of the sending
and receiving States.
3. Observation of the conditions and developments in the receiving State and report the
same to the sending State.
4. Issuance of passports and other travel documents to nationals of the sending State and
visas or appropriate documents to persons wishing to travel to the sending State.
5. Supervision and inspection of vessels and aircraft of the sending State.

Sources of Authority of Consuls

1. Letter patent or letter ‘de provision – Which is the commission issued by the sending State,
and
2. Exequatur – Which is the permission given them by the receiving State to perform their
functions therein.

Immunity of Consuls

Consuls enjoy their own immunities and privileges but not to the same extent as those
enjoyed by the diplomats. Like diplomats, consuls are entitled to:
1. Inviolability of their correspondence, archives and other documents
2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed in their official capacity; and
4. Exemption from certain taxes and customs duties

Liabilities of Consuls

1. Arrest and punishment for grave offenses; and

2. May be required to give testimony, subject to certain exceptions.

NOTE: Members of a consular post are under no obligation to give evidence on the following
situations:
a. Concerning matters connected with the exercise of their functions
b. To produce official correspondence and documents
c. To give evidence as expert witness with regard to the law of the sending State

Immunity of consular offices

Extent: With respect to that part where the consular work is being performed;

Q: May consular offices be subject to expropriation by the receiving State?

A: YES, for purposes of national defense or public utility.

NOTE: With respect to expropriation by the receiving State, steps shall be taken to avoid
impeding the performance of consular functions, and prompt, adequate and effective
compensation shall be paid by the sending State. (Article 31 of the Vienna Convention on
Consular Relations and Optional Protocols)
Diplomatic Immunity vs. Consular Immunity

BASIS DIPLOMATIC CONSULAR

Premises of the mission Consular premises includes
includes the building or parts the buildings or parts of
of building and the land buildings and the land
Scope as to buildings irrespective of the ownership irrespective of ownership used
and premises used for the purpose of the exclusively for the purposes of
mission including the consular posts
residence of the head of
mission
GR: The agents of the GR: The agents of the receiving
receiving state may not enter state may not enter the
the premises of the mission consular premises

On entry of agents of XPN: Consent of the head of XPN: Consent of the head of
the receiving state the mission the consular post.
Consent is assumed in case of
fire or other disasters
requiring prompt protective
action
Personal baggage of a Consular bag shall not be
diplomatic agent shall not be opened. It may be requested
opened that the bag be opened in their
presence by an authorized
As to inviolability of representative of the receiving
baggage state if they have serious
reason to believe that the bag
contains objects of other
articles, documents,
correspondence or articles
Not obliged to give evidence May be called upon to attend
As a witness before as a witness as a witness; if declined, no
the court coercive measure or penalty
may be applied

Differences in the privileges or immunities of diplomatic envoys and consular officers

from the civil and criminal jurisdiction of the receiving State

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

XPNs:
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 purpose of the
mission;
b. An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as private person and not on behalf of the sending State;
c. An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside of his official functions (Vienna Convention of
Diplomatic Relations, Art. 31).

2. A consular officer does not enjoy immunity from the criminal jurisdiction of the receiving
State and are not amenable to the jurisdiction of the judicial or administrative authorities
of the receiving State in respect of acts performed in the exercise of consular functions.

However, this does not apply in respect of a civil action either:

1. Arising out of a contract concluded by a consular officer in which he did not enter
expressly or impliedly
2. By a third party for damages arising from an accident in the receiving State caused by a
vehicle, vessel or aircraft (Vienna Convention on the Consular Relations, Arts. 41 and 43).

Grounds for Termination of Consular Office

(2D-2W-RN)

1. Death of consular officer

2. Recall
3. Dismissal
4. Notification by the receiving State to the sending State that it has ceased to consider as
member of the consular staff
5. Withdrawal of his exequatur by the receiving State.
6. War – outbreak of war between his home State and the receiving State.

DIPLOMATIC RELATIONS

Grounds for termination of diplomatic relations under municipal law (RADAR)

1. Resignation
2. Accomplishment of the purpose
3. Death
4. Abolition of the office
5. Removal

Grounds for termination of diplomatic relation under international law

1. War – Outbreak between the sending and the receiving State.

2. Extinction of either the sending State or the receiving State.
3. Recall – Demanded by the receiving State when the foreign diplomat becomes persona
non grata

Termination of diplomatic relations does not terminate consular relations between

the sending and receiving States

Consuls belong to a class of State agents distinct from that of diplomatic officers. They are
not clothed with diplomatic character and are not accredited to the government of the
country where they exercised their consular functions; they deal directly with local
authorities

They do not represent their State in its relations with foreign States and are not
intermediaries through whom matters of State are discussed between governments. Consuls
look mainly after the commercial interest of their own State in the territory of a foreign State.