PUBLIC INTERNATIONAL LAW [2-MANRESA]

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

NorieSushi

PUBLIC INTERNATIONAL LAW

D.O. RODOLFO M. ELMAN
Second Exam Coverage
RGHT OF INDEPENDENCE up to CONSULS

RIGHT OF INDEPENDENCE
~

SOVEREIGNTY supreme power of state to command

and enforce obedience; enables state to control its own
foreign affairs vis--vis other states.
The reason of the existence of state is inherent; the
recognition of this right is not dependent upon other
states recognition of the status of the first state. In fact
in UN Charter, the concept of sovereignty is expressly
embodied in Article 2(4).
Two aspects of sovereignty:
1. Internal refers to power of the state to direct its
domestic affairs
2. External freedom of the state its own foreign
affairs. It is referred to as independence.
Right of independence recognized in article 2(4) of
charter.

Article 2
The Organization and its Members, in pursuit of
the Purposes stated in Article 1, shall act in
accordance with the following Principles:
xxx
4. All Members shall refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
xxx

Nature of independence: not absolute freedom;

freedom from control by other states but not freedom
from restrictions.
Illustrations of restrictions upon the state:
1. Article 2(4) even non-member states should
observe this
2. Pacta sunt servanda state may not refuse to
observe treaties in good faith;
3. Principle of mare liberum
o aka the free sea or the freedom of the
seas
o State cannot arrogate unto itself the
exclusive use of the open seas to the
detriment of other states

4. Acquiescence in exercise of belligerent rights

under laws of neutrality, state must acquiesce in
the exercise of certain belligerent rights even if
this might impair its own interests or those of its
nationals.
5. Maintenance of international standard of justice
e.g. recent news: Indonesia will execute
foreigners including a Filipino, related to drugs,
this causes an international uproar
6. Observance of fundamental human rights
7. Restriction of its territorial jurisdiction
Sovereignty is a well cherished concept of IL. However,
even the concept of sovereignty recognizes the fact that
because of advances made at present, modern IL,
recognizes that No man is an island. No state
isolation. State cannot exist alone.
Trade with other states which is the core of international
relations in times of peace is essential for the states
survival.
Maintenance of peace and security [(Article 2(3)] is the
highest value for all states to subscribe. This is far more
compelling than vital state interests. Thus, UN Charter
makes Article 2(4) the most important norm to attain
goal.

Article 2. xxx
3. All Members shall settle their international disputes
by peaceful means in such a manner that
international peace and security, and justice, are not
endangered.
xxx
Kosovos unilateral declaration of independence from
Serbia in February 2008, did not violate international law
since international law contains no prohibition on
declarations of independence. But ICJ was careful not to
rule on the legal status of Kosovo as a state to avoid
encouraging nationalist movements and left the issue of
a territorys independence at discretion of states that
chose to recognize it (ICJ Advisory Opinion issued on July
21, 2010 upon request of the General Assembly)
This issue is better left to the members of the
international community (states), members individually,
on their own, whether they choose to recognize the status
of Kosovo as a state. This is really more of a political
decision that has to be made by the authorized organ of
any state whether to grant such legal status of a state to
Kosovo.

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PUBLIC INTERNATIONAL LAW [2-MANRESA]

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
INTERVENTION
Note: There is a need for re-examination of law on
Right of independence carries with it the correlative duty
intervention, especially where intervention is based on
of non-intervention. State must respect sovereignty of the
humanitarian grounds. Ex. Somalia, Kosovo
other states.
Can the US use force to protect civilian populations from
This is embodied in Article 2 of the UN Charter, under the
genocide in Somalia, as an exception to the prohibition
Domestic Jurisdiction clause. (sir refers to Article 2(7))
against use of force?

Intervention act of state in interfering with domestic

or foreign affairs of another state thru use of threat of
force; may be economic or political (but there must be
pressure)
Intervention is not allowed in PIL except:
1. as an act of self-defense as provided under Article
51 of UN Charter
2. when the Security Council decrees enforcement
or preventive action.
3. Other instances according to some writers:
a. when so requested by parties;
b. such action is agreed upon in a treaty
(ex. Article 5 of NATO agreement)
c. when requested from sister states
d. when requested from the United Nations
by the parties to a dispute or by a state
beset by rebellion

Article 2, Sec 7: Nothing contained in the present

Charter shall authorize the United Nations to
intervene in matters which are essentially within
the domestic jurisdiction of any state or shall
require the Members to submit such matters to
settlement under the present Charter, but this
principle shall not prejudice the application of
enforcement measures under Chapter VII.
Drago Doctrine (now embodied in Hague
Convention) contracting powers agree not to have
recourse to armed force for recovery of contract debts
claimed from the government of one state by another
state as being due to its nationals. Drago is consistent
under the UN Charter, to refrain from use of force.

In 1990, the NATO authorized military intervention to

protect Albanian civilians in Kosovo without UN Security
Council authorization. Would this be legal in international
law? It is contentious and unresolved.
~

RIGHT OF EQUALITY
~

Recognized in Article 2(1) of Charter:

Article 2(1) The Organization is based on the

principle of the sovereign equality of all its
Members.
Essence of Equality: not equality in number of rights or
parity in physical power, political influence or economic
status or prestige, but all rights of a state, regardless of
number, must be observed and respected by international
community; right to enjoyment of all its attributes as a
member of family of nations.
Ex. Right to acquire territory, or make use of open sea, or
seize contraband
Rule of par in parem non habet imperium [equals do not
have authority over one another]: even the strongest
state cannot assume jurisdiction over another state, no
matter how weak, or question the validity of its acts so
long as they are made to take effect within its territory.
Ex. China. Even PH can assert its right under UNCLOS vs.
China

Porter resolution intervention is permitted if:

1. debtor state refused an offer to arbitrate creditors
claim; or
2. having agreed to arbitrate, prevented agreement on
the compromis; or
3. having agreed thereto, refused to abide by the award
of the arbitrator

Legal Equality vs. Factual inequality: absolute

equality among states is impossible. Inequality can even
be seen in UN.

* Porter resolution contravenes IL, because IL abhors the

use of force

So many member states in UN, but each state is entitled

only of 1 vote. China (1.8B pop.) = 1 vote vs. Gabon
(1.1M pop.) = 1 vote

Ex. Security Council membership (permanent members,

membership with a term) and voting (non-procedural
questions need concurrence of the Big 5)

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PUBLIC INTERNATIONAL LAW [2-MANRESA]

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
The surviving Filipina comfort women cannot sue Japan
Discovery And Occupation
for damages in our courts. A foreign State may not be
sued before Philippine courts as a consequence of the
Terra nullius land belonging to no one; this is only
principles of independence and equality of states
property subject of acquisition of a state
(Republic of Indonesia vs. Vinzon, 405 SCRA 126) (2003).
Res communes - things owned by no one and subject
to use by all; it is not susceptible to discovery and
Exception: if the foreign state allows the individual to
occupation (e.g. open seas, outer space).
sue in his courts
Requisites of a valid discovery and occupation:

TERRITORY
~
Right to acquire properties is inferred from war powers of
Congress & treaty making power of President,
conformably with Section 2, Article II. But such right
should always be consistent with the Principles of
International Law.
Assertion of the right to acquire territory. War may be
waged not for the purpose of acquisition of territory per
se, but always consistent with principles of international
law.
Territory is the fixed portion of the surface of the earth
inhabited by the people of the state.
Modes of acquiring territory:
1. discovery and occupation original mode of
acquisition by which a territory not belonging to any
state or terra nullius is placed under the sovereignty
of the discovering state. The territory need not be
uninhabited provided it can be established that the
natives are not sufficiently civilized and can be
considered as possessing not rights of sovereignty
but only rights of habitation.
2. Prescription required long, continued and adverse
possession to vest acquisitive title in the claimant. No
rule yet in IL fixing the period of possesssion
3. Cession territory is transferred from one state to
another by agreement between them (sale, barter or
exchange, donation and testemantary disposition);
transfer of title is effected upon the meeting of the
minds, actual delivery not necessary
4. Subjugation having been previously conquered or
occupied in the course of war by the enemy, it is
formally annexed to it at the end of the war. Conquest
inchoate right on the occupying state; formal act of
annexation completes the acquisition
5. Accretion based on the principle of accessio cedat
principali; may be both natural or artificial

1. Possession may be effected through a formal

proclamation and the symbolic act of raising the
national flag in the territory.
Mere possession only gives inchoate title of
discovery; this means that the discovering state
has the right of exclusion of any other state to
appropriate or commence administration within a
reasonable time.
Inchoate title of discovery performs the function
of barring other states from entering the territory
until the lapse of a reasonable period within
which the discovering state may establish a
settlement thereon and commence to administer
it.
2. Administration
Las
Palmas
case:
Principle
of
Continuous
Administration.
* Netherlands had exercised sovereignty since 1677.
While Spain discovered island earlier, it never occupied it.
* Inchoate title could not prevail over continuous &
peaceful administration by another state
* another basis for awarding to Netherlands is long,
continuous, adverse possession without any
question of restriction
ICJ Ruling in February 2003 on ownership of Sipadan and
Ligitan Islands off Sabah in favor of Malaysia. Malaysia
had administrative control over the islands long before
Indonesia did under the principle of continuous
administration.
EXCEPTION to the prevailing rule of Las Palmas Case
(need for administration of discovered property):

Clipperton Island Case possession sans

administration of UNINHABITED island. France
acquired title.

Basis of Philippine claim to Spratlys or the Kalayaan island

is effective OCCUPATION of a territory not subject
to sovereignty of another state. Following Japans
renunciation of right to Spratlys under 1951 San
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PUBLIC INTERNATIONAL LAW [2-MANRESA]

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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
Francisco Peace Treaty, it became terra nullius and was
2. Waters adjacent to the coasts of the state up to
occupied by the Philippines in the title of sovereignty in a
a specified limit (bays, gulfs, straits, external
visit of Tomas Cloma in 1956. In 1978, Philippines
waters in the territorial sea
confirmed its title through PD1596 which declared
Kalayaan part of its territory and a municipality of
Rivers may be classified into:
Palawan. (00 BQ)
a. National situated completely in the territory of
one state
Philippines claim to Sabah is based on an 1878 contract
b. Multi-national flows through the territories of
between the Sultan of Sulu and Austrian Consul Gen.
several states
Baron Overbeck/British Alfred Dent. Philippines has not
c. International one that is navigable from the
renounced its claim over Sabah.
open sea and is open to the use of vessels from
all states
~ Malaysia claims mode of cession while Philippines
d. Boundary Thalweg doctrine
asserts it was contract of lease
~ no basis under international law to assert Philippine
Thalweg doctrine (in the absence of a specific
claim to Sabah by including it in 1987 Constitution (a
agreement between such states), the boundary line is laid
municipal law). From the viewpoint of international law
on the river that is, on the center, not of the river itself,
however, this claim is not binding.
but of its main channel.

Modes of losing territory:

1. abandonment or dereliction when a state
exercising sovereignty over it physically
withdraws from it with the intention of
abandoning it altogether. Two conditions must
concur:
a. act of withdrawal
b. intention to abandon
2. cession
3. subjugation
4. prescription
5. erosion
6. revolution
7. natural causes (e.g. volcanic eruption)

Bay it is a well-marked indentation whose penetration

is in such proportion to the width of its mouth as to
contain land-locked waters and constitute more than a
mere curvature of the coast. An indentation shall not,
however, be regarded as a bay unless its area is as large
as or larger than that of a semi-circle whose diameter is
a line drawn across the mouth of that indentation. (Take
note of so-called historic bays; waters have always
been considered internal by the international community)

Components of Territory:

Philippines claim to its territorial sea is based on historic

right or legal title, or the TREATY LIMITS THEORY.
Philippine territorial sea should embrace all non-internal
waters comprised within limits set in Treaty of Paris over
which Philippines and predecessors have exercised
sovereign rights for more than 3 centuries without
objection.

Basic/Main components:
1. TERRESTRIAL DOMAIN
2. MARITIME AND FLUVIAL DOMAIN
3. AERIAL DOMAIN
(A) TERRESTRIAL DOMAIN:
1. Integrate (Iran)
2. Dismembered (US)
3. Partly bounded by water (Burma)
4. Island (Iceland)
5. Several islands/mid-ocean archipelago (PH and
Indonesia)
6. Coastal archipelago (Greece)
(B) MARITIME AND FLUVIAL DOMAIN
1. Bodies of water within the land mass (internal
waters in the land-locked lakes, rivers and manmade canals within the land mass)

Territorial sea the belt of waters adjacent to the

coasts of the state excluding the internal waters in bays
and gulfs, over which the state claims sovereignty and
jurisdiction

PH prior position was that IL should recognize historic

title to territorial waters as it recognizes the so-

called historic bays.

UN Conference on the Law of the Sea

(UNCLOS effective 11/16/1994)
It is the fundamental law on maritime borders among
nations, freedom of high seas, shipping, fishing,
exploitation of resources of seabed and principles for
protection of marine environment.

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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
This UNCLOS provides for uniform breadth of 12 miles
Article 1. xxx. The waters [a]round, [b]etween,
(from the low-water mark of the coast) for territorial sea,
and [c]onnecting the islands of the
a contiguous zone of 12 miles from outer limits of
archipelago, regardless of their [b]readth and
territorial sea (Protective Jurisdiction) and an economic
[d]imensions, form part of the internal waters
zone or patrimonial sea extending 200 miles from the low
of the Philippines. (abc-bd)
water mark of the coastal state (BQ)
National Territory of the Philippines
* It may be possible that there is overlapping with
(Article 1, Section 1 of the 1987 Constitution)
different states.

History:

Three international conferences were called to formulate

law of the sea:
1. First conference in 1958 held in Geneva, Switzerland
adoption of the:
a. Convention on the Territorial Sea and the
Contiguous Zone
b. the Convention on the High Seas
c. the Convention on Fishing and the Living
Resources of the High Seas
d. Convention on the Continental Shelf
Weaknesses:
It failed to define the breadth of the territorial
sea
The Conventions adopted were ratified by
only 40 states
PH did not ratify because of the absence of
provisions recognizing the archipelago
doctrine it was advocating
2. Second Conference held in 1960 in Geneva question
of the breadth of the territorial sea still unresolved
3. Third Conference in 1970 resulted finally in the
adoption of a new Convention on the Law of the Sea,
which was signed in Jamaica in 1982 by 119/150
conferee states. This convention became effective on
11/16/1994, after its ratification by more than the
required 60 of the signatory states. This provides
among others:
Protective Jurisdiction (Contiguous Zone)
- Prevent infringement of its customs, fiscal,
immigration and sanitary regulations and punish
infringement of said regulations
Archipelago Doctrine
- Defines the internal waters of the Philippines
as articulated in second sentence of Art. 1,
Section 1 of the Constitution:

Article 1. The national territory comprises the

Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The
waters [a]round, [b]etween, and [c]onnecting
the islands of the archipelago, regardless of
their [b]readth and [d]imensions, form part of
the internal waters of the Philippines. (abc-bd)

PH position is that, all these 7100+ islands of varying sizes

should be considered as one integrated whole

instead of being fragmented into separate units each with
its own territorial sea. Otherwise, the waters outside
each of these territorial seas (of every island) will be
regarded as high seas and thus be open to all foreign
vessels to the prejudice of our economy and the national
security.
Archipelago a group of islands, including parts of
islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters
and other natural features form an intrinsic geographical,
economic and political entity, or which historically have
been regarded as such.

In defining the internal waters of the

archipelago, straight baselines should be
drawn to connect appropriate points of
the outermost islands, without departing
radically from the general direction of the
coast so that the entire archipelago shall be
encompassed as one whole territory. The
waters inside these baselines shall be
considered internal and thus not subject to
entry by foreign vessels without the consent
of the local state.

The ARCHIPELAGO DOCTRINE is embodied in the

1982 Convention on the Law of the Sea, with modification
that archipelagic sea lanes shall be designated over the
internal waters through which foreign vessels shall have
the right of passage.
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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
Archipelagic sea lanes passage means the
Classifications:
exercise in accordance with this Convention of
the rights of navigation and overflight in the
1. Personal Jurisdiction
normal mode solely for the purpose of
It is the power exercised by a state over its nationals.
continuous, expeditious and unobstructed
Ex:
transit between one part of the high seas or an
a. Article 15 and 16 of CC
exclusive economic zone and another part of the
- PH exercises jurisdiction over its nationals even
high seas or an exclusive economic zone. UNCLOS,
outside territory

1982

Methods of Defining the Territorial Sea:

1. Normal baseline method
The territorial sea is simply drawn from the
low-water mark of the coast, to the breadth
claimed, following its sinuosities and
curvatures but excluding the internal waters
in bays and gulfs.
2. Straight baseline method
Straight lines are made to connect
appropriate points on the coast without
departing radically from its general direction.
(C) AERIAL DOMAIN
It is the airspace above the terrestrial domain and the
maritime and fluvial domain of the state, to an unlimited
altitude but not including outer space.
~

JURISDICTION

Art. 15. Laws relating to family rights and duties, or

to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even
though living abroad. (9a)
Art. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions,
both with respect to the order of succession and to
the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found. (10a)
b. Taxation PH citizens are taxed even if not
residing in PH from income derived by them
from all sources

Under the RoC, jurisdiction is the power or authority of a

court to accept a case, to make decisions and judgments.

Basis of personal jurisdiction: duty of protection by a

state of its national wherever he may be (stated in
Constitution). The national has right to compel the
government to protect him. He is therefore bound to it by
a duty of obedience and allegiance.

In the same manner in IL, jurisdiction refers to the power

possessed and exercised by the state over persons and
things within or sometimes outside its territory, subject to
certain exceptions.

DOCTRINE OF INDELIBLE ALLEGIANCE

A national may not be permitted to renounce his own
nationality. Simply because of the duties of allegiance in
return of the protection given by the state to its national.

Jurisdiction may be exercised by a state over:

a.) Its nationals
b.) The terrestrial domain
c.) The maritime and fluvial domain
d.) The continental shelf
e.) The open seas
f.) The aerial domain
g.) Outer space; and
h.) Other territories

Jurisprudence Applying the Doctrine:

States assert
THINGS.

authority/power over PERSONS

Joyce v. Director of Public Prosecution

and

Lord Haw Haw, a British subject, because he was

carrying a British passport, in fact he resided in Britain for
18 long years. He went to Germany during the WWII, and
while in Germany, he was part of the anti-Allied
propaganda. So he was tried for treason, and was
convicted. Even assuming that he was not a British
national, but because he was carrying a British passport
and he resided for so long in Britain, and represented
himself as a British subject, then he should not be allowed
to renounce his nationality.
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Harry Blackmer v. USA

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

A US citizen who is long-time resident of Paris, France.

This US national was the subject of subpoena. The US
court summoned him to testify in several cases in the US
court, but he refused and so he was cited in contempt of
court by the SC of Columbia and the properties he had in
the US became subject of garnishment because of his
refusal to testify for the US. The Court decided that he is
the resident of France, but then this doctrine applied.
~ Chief Justice Hughes, in delivering the opinion of the
Court, stated "nor can it be doubted that the United States
possesses the power inherent in sovereignty to require
the return to this country of a citizen, resident elsewhere,
whenever the public interest requires it, and to penalize
him in case of refusal." Also, "it is also beyond controversy
that one of the duties which the citizen owes to his
government is to support the administration of justice by
attending its courts and giving his testimony whenever he
is properly summoned."
~ Wikipedia

Kawakita vs. US

Applying the doctrine of indelible allegiance, a person

possessing both US and Japanese nationalities was
convicted of treason for committing brutalities on
American prisoners in a Japanese camp.
~ In his defense, Kawakita claimed that he had renounced
his U.S. citizenship during his time in Japan, and thus
could not be tried for treason. However, his arguments
were undermined by his 1945 U.S. passport application,
in which he swore he had never renounced his U.S.
citizenship. Kawakita argued that a person with dual
nationality can only be guilty of treason to the country in
which he resides, not another which claims him as a
national. The prosecution pointed out that the U.S.
Constitution places no territorial limitations on treason.
And it pointed out that U.S. citizenship cannot be cast off
or on so easily. Decision: Kawakita owed allegiance to the
United States, being its national during his residence in
Japan. His U.S. citizenship was revoked. ~ Wikipedia

News:
Kenji Goto was a Japanese freelance video journalist who
was captured and held hostage by the ISIL militants after
entering Syria. He was killed by the ISIL.
Osama Bin Laden The American forces were looking for
Bin Ladden, and was able to apprehend an American who
fought side by side with the al-Qaeda Taliban forces, with
the name John Walker Lindh. John Walker claimed that
he already denounced his nationality because he was
already fighting with the al-Qaeda. US Court ruled that he
committed several crimes.

Protective Principle of Criminal Jurisdiction under

Article 2, RPC. An alien may be held under criminal laws
of a state whose national interest he has violated and
despite that the offense was committed outside its
territory.

Art. 2. Application of its provisions. Except

as provided in the treaties and laws of
preferential application, the provisions of this
Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone, but also
outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine
ship or airship
2. Should forge or counterfeit any coin or
currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the obligations
and securities mentioned in the presiding
number;
4. While being public officers or employees,
should commit an offense in the exercise of their
functions; or
5. Should commit any of the crimes against
national security and the law of nations, defined
in Title One of Book Two of this Code.
Addenda (not discussed, but may be asked in the exam):
Nationality Principle
States have jurisdiction over their nationals over crimes
specified in their national law. Example: the Suppression
of Terrorist Bombing Act of Sri Lanka gives the High Court
the jurisdiction to try a Sri Lankan national who blasts a
bomb in a foreign country even if his only connection to
SL is the fact that he is a Sri Lankan.
Passive Personality Principle
In this situation, the crime was committed abroad and the
person who committed the offense was not a national of
that State. In this situation, only the victim is a national
of the State which claims jurisdiction. In the Yunis case,
US courts decided that they had jurisdiction over Yunis (a
Lebanese national) based on the passive personality
principle because two US nationals were abroad the
Jordanian airline that Yunis hijacked.
Protective Principle
In this situation, the crime was committed abroad and
neither the person who committed the crime, nor the
victims, were nationals of that State. In this case,
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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
jurisdiction is asserted on the basis that the security or
A political action not subject to judicial
the interests of the State is affected by an act committed
determination
abroad. Example: Art. 2, RPC
(Source: https://ruwanthikagunaratne.wordpress.com/tag/principle-of-nationality/)
Cruz book: as explained in Underhill v. Hernandez,
Every sovereign state is bound to respect the
TERRITORIAL JURISDICTION DOCTRINE
independence of every other sovereign state, and the
General Rule: State has authority/power/jurisdiction
courts of one country will not sit in judgment on the acts
over all persons & property within its territory. Since the
of the government of another, done within its own
state has such authority, on the basis of SOVEREIGNTY
territory.
of the state, it follows that processes of other states may
not be made effective without the consent/authority of
(4) Foreign merchant vessels under rights of innocent
the local state. Applies even to aliens located in the
passage or arrival under stress
territory.
Innocent Passage navigation through

The jurisdiction of the nation within its own territory is

necessary, exclusive and absolute. It is susceptible of
no limitation not imposed by itself. (Schooner Exchange
v. McFaddon)
Exceptions:
(1) Foreign states, heads of states, diplomatic
representatives, and consuls to a certain degree.
This is because of the sovereign equality
of states and on the theory that a contrary
rule would disturb the peace of nations
In the same manner that diplomats and
members of the diplomatic service to a
certain extent are not subject to jurisdiction
of the local state, because, these diplomats
are said to be extensions of foreign states. In
fact, there are existing conventions as
applicable to diplomats (Vienna Convention
on Diplomatic Relations).
The diplomats are exempted in order that
they may have full freedom in the discharge
of their official functions.
(2) Foreign state property, including embassies,
consulates and public vessels engaged in noncommercial activities
Said to be extensions of the territory of other
foreign state. Whenever we have warships of
other state arriving in our local port, while in
the territory of PH, not covered except if a
vessel engages in international industrial
services, this is not covered.
(3) Acts of State
This is related to many other principles of
international law
On the basis of sovereign immunity; based on
the concept equality of states
In relation to domestic jurisdiction concept
court cannot judge on acts performed in the
territory of other state

territorial sea of a state, without entering

its internal waters, as long as it is not
prejudicial (does not cause disturbance) to
the peace or security of the coastal state.
o Cruz book: can be proceeding to
internal waters, or making or the
high seas from internal waters, as
long as it is not prejudicial to the
peace, good order or security of the
coastal state. (n/a in T/F question)
Arrival under stress or involuntary entrance
may be due to inclement weather, vessel
unseaworthiness, lack of provisions, or force
majeure. (also: pursuit by pirates, major
repairs needed)

(5) Foreign armies passing thru or stationed in its

territory with its permission (or in the basis of an
agreement)
Ex: VFA of 1999 (stay is of temporary nature)
Defense Mutual Agreement
(6) Persons/organizations, like UN, over which it may, by
agreement, waive jurisdiction
There is a waiver of jurisdiction on the part
of the local state (e.g. WHO, IMF, World
Bank, officials of these organizations are
covered)
Examples: Convention on Privileges and
Immunities of the United Nations, Convention
on the Privileges and Immunities of
Specialized Agencies, RP-US Bases Treaty,
which modified the customary exemptions
under (5).
Everything in the states terrestrial domain is under its
jurisdiction. No process from a foreign government can
take effect for or against nationals and aliens within the
territory of local state without its permission.

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NorieSushi
Comment: Of course there may be agreement such as
Convention on Territorial Sea and Contiguous Zone
extradition, the process of surrendering/deporting a
imposing states the duty to suppress all forms of drug
foreign fugitive. But in the absence of such agreement,
trafficking.
no process of a foreign state ought to take effect for or
against its nationals or aliens. So even if a writ is issued
Applying this convention, coastal state has the right to
by a foreign government, normally for its national who is
take cognizance of any offense onboard foreign vessel.
hiding in the PH territory (prosecution of offenses in his
E.g. mere possession of drugs
own state), RULE: even if he is a fugitive from justice from
his own state, in the absence of any agreement, no
THE PATRIMONIAL SEA
process
or
writ
issued
by
any
of
the
Patrimonial Sea or the Exclusive Economic Zone in
instrumentalities/courts by the other states may be made
UNCLOS is now incorporated in PD 1599. All living and
effective or enforced without the consent of the local
non-living resources found within 200 nautical miles from
state. CONCEPT OF SOVEREIGNTY itself is at stake.
the coast or baselines belong exclusively to the coastal
state. (00 BQ) thats why we exert at all times
What is the jurisdiction of a state over foreign vessels
whenever there are infringements.
within its territorial vessels?
The above BQ related to the conflict that we had with
RULE: No civil, administrative or criminal jurisdiction over
China
foreign vessels, unless engaged in commerce (e.g. war
ship of another state). Local state cannot acquire
The EEZ is the basis of Philippine claim over Scarborough
jurisdiction over that foreign warship unless this is
Shoal (213 kms off Zambales); apprehension of Chinese
engaged in merchant activities
poachers

What about foreign private commercial vessels? We

apply the English rule.
For foreign merchant vessels docked in a local port or bay,
jurisdiction is exercised over them by the coastal state in
civil matters, but criminal jurisdiction is determined
according to either the English rule or the French rule.
English rule coastal state shall have jurisdiction over
all offenses committed on board such vessels, except only
when they do not compromise the peace of the port.
French rule flag state shall have the jurisdiction over
all offenses committed on board such vessels, except only
where they compromise the peace of the port.

*no difference actually

U.S. v. Look Chaw (1910)

Mere possession of opium aboard foreign merchant vessel

in our waters is not a breach of our public order.
So, coastal state need not exert jurisdiction but in the
succeeding case:

Pp vs. Wong Cheng (1922)

Smoking of the drug produces pernicious effects and is
punishable
Note: Despite Look Chaw ruling, criminal jurisdiction may
still be exercised by PH courts because the 1958 Geneva

Now, it is also possible that a state may assert jurisdiction

of the open sea. I mentioned to you, that the open sea,
it is within the concept of res communes. Meaning, it
cannot be subject of appropriation. But it can be explored,
subject of exploration.
Instances which state may exercise jurisdiction on the
open seas (res communes):
a) over its vessels;
o Public anywhere at all times
o Merchant when in the territory of the
flag state, when coastal state waives its
jurisdiction or it cannot exercise
jurisdiction, or when such vessel are on
the open seas
b) pirates, being enemies of all mankind;
c) in exercise of right of visit and search;
o Under the laws of neutrality, the public
vessels or aircraft of a belligerent state
may visit and search any neutral
merchant vessel on the open seas and
capture it if it is found or suspected to be
engaged in activities favorable to the
other belligerent.
d) under doctrine of hot pursuit
o coastal state may pursue an offending
foreign merchant vessel into the open
sea and upon capture, bring it back to its
territory for punishment

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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

in order for this doctrine to

apply, it must be immediate,
continuous and unabated
even while in contiguous zone,
coastal state may still pursue

AERIAL JURISDICTION
Outer space (res communes); astronauts; objects
launched into outer space (03 BQ)
When does the outer space commence?
Whichever state sends/launches objects to outer space
continues to have jurisdiction over such objects, still
under its control and ownership, but such state cannot
own the space the object occupies
State may extend its jurisdiction beyond its territory and
over territory not under its sovereignty in the following:
1. through assertion of personal jurisdiction over its
nationals abroad or its right to punish offenses vs.
its national interests even if committed by nonresident aliens
2. on the basis of its relations/other states
o on the basis of agreements/conventions
o ex. Extradition treaty
3. as consequence of waiver of jurisdiction by local
state over those within its territory
o e.g. foreign troops while in territory of
local state
4. acquisition of extraterritorial rights
o exterritoriality must be distinguished
from extraterritoriality
o EXTERRITORIALITY refers to
exemptions of persons and property
from the local jurisdiction on the basis of
international custom.
o EXTRATERRITORIALITY refers
applies only to persons and is based on
treaty or convention.
o The widely accepted principle in
international law is the principle of
exterritoriality.
5. through the enjoyment of easements or
servitudes (e.g. right of innocent passage, arrival
under stress)
Universal Principle of Jurisdiction/Universality
Principle: state has jurisdiction over crimes vs.
international law such as piracy, slave trade, air
highjacking, genocide and terrorism. These are offenses
violative of law of nations and so state acquires
jurisdiction to punish such offenses.

Is nuclear test on high seas allowed?

~ danger of radioactive waste materials in the sea &
environment
~ convention on Law of Sea prohibits state from
conducting nuclear tests on high seas, which are reserved
for peaceful purposes. States are obliged to conserve all
living resources of the sea.
Remember that the open sea concept is that it is res
communes and therefore it should be used for mankind.
~

RIGHT OF LEGATION
~
Pertains to the (active) right given to send diplomatic
representatives to the other states and (passive) right to
receive them

Agents of diplomatic intercourse

o Before, diplomatic relations/negotiations
were conducted through the head of
state, but not anymore, conduct of
diplomatic relations are now being made
by the members of diplomatic service
headed by the minister/foreign affairs
secretary
o The heads of state are said to be
embodiment of sovereignty and so they
are entitled to protection not only
pertaining to his physical safety, but also
the need to preserve honor and integrity.
Head of state represents sovereignty of state;
entitled to special protection for his physical safety
and preservation of his honor. His quarters, archives,
property and transport are inviolate under the
principle of exterritoriality. He is immune from
criminal jurisdiction and also from civil jurisdiction,
except where he is plaintiff.

Example: If you recall during the time of Pres. Corazon

Aquino, she sued a columnist for saying that she hid
under the bed during a coup attempt. So, she filed, she
shed off her immunity from suit.

Mighell vs. Sultan of Johore case

Sultan of Johore, who was a head of state, travelled to
Great Britain and met a British woman, courted and
promised her marriage. Sultan was the defendant for a
civil suit for damages for breach of promise to marry. The
Tribunal ruled in Sultans favor applying the immunity
from suit.
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NorieSushi
Classification of heads of diplomatic mission
segment of IL in the matter of such authority, because
(based on the Convention on Diplomatic
the receiving state is not obliged to accept any
Relations, signed in Vienna in 1961)
representative who is persona non grata to it.

(1) Ambassadors of nuncios

(2) Envoys, ministers or internuncios
(3) Chargs d affaires

Article 14 of the Vienna Convention on Diplomatic

Relations:
1. Heads of mission are divided into three classes,
namely:
a) That of ambassadors or nuncios accredited to
Heads of State, and other heads of mission
of equivalent rank;
b) That of envoys, ministers and internuncios
accredited to Heads of State;
c) That of charge daffaires accredited to
Ministers for Foreign Affairs.
2. Except as concerns procedure and etiquette,
there shall be no differentiation between heads
of mission by reason of their class.
Classification is important not only insofar as
privileges but also matters of protocol or grant of
special honors. Before, only bigger states were able to
send envoys of the highest rank. Now, small countries
may be able to send highest rank diplomats.

Article 15. The class to which the heads of their

missions are to be assigned shall be agreed
between states.
Diplomatic corps under doyen du corps
The diplomatic corps is a body consisting of the
different diplomatic representatives who have been
accredited to the same local or receiving state.
Doyen du corps:
- He is the head of the diplomatic corps
- By tradition, oldest diplomat with the highest rank
- However, Article 16 of the Vienna Convention on
Diplomatic Relations provides that:

(1) Heads of mission shall take precedence in

their respective classes in the order of the
date and time of taking up their functions
in accordance with Article 13 xxx

In Catholic countries such as PH, the Papal

Nuncio heads the diplomatic corps

APPOINTMENT OF A DIPLOMAT
The appointment of diplomats is not simply a matter of
municipal law of the sending state. There is also a

In order to avoid problems, most states now observe the

practice of agreation.
Practice of Agreation, by means of which, informal
inquiries are addressed to the receiving state regarding
a proposed diplomatic representative of the sending
state.
It is only when the receiving state manifests its
agrment or consent, also informally, that the
diplomatic representative is appointed and formally
accredited.

Article 4
1. The sending State must make certain that the
agrment of the receiving State has been given for
the person it proposes to accredit as head of the
mission to that state.
2. The receiving State shall not be obliged to give
reasons to the sending State for a refusal of
agrment.
Under municipal law, who has the power to appoint?
Ans. Under our Constitution, it is the President with the
concurrence of the Commission on Appointments.

Article VII, Section 16, 1987 Consti:

Section 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appointambassadors, other
public ministers and consuls, orand other
officers whose appointments are vested in him in
this Constitution. Xxx
***TAKE NOTE: Presidents discretion is EXCLUSIVE
when it comes to receiving ambassadors and other public
ministers duly accredited to the government of PH.
What papers are acceptable as credentials of diplomat?
(1) Letter of credence
o Authority given by the sending state as
representative to the receiving state with the
request that all acts done by the
representative on behalf of the sending state
shall be given full faith and confidence
(2) Diplomatic passport
(3) Official instructions
(4) Cipher or code book

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o

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

Used
in
sending
communications/coded messages
government

secret
to his

B. IMMUNITY FROM CRIMINAL, CIVIL AND

ADMINISTRATIVE JURISDICTION of the
receiving state

Functions of Diplomat (code: RPNAP)

1. REPRESENT the sending state in the receiving state;

GENERAL RULE: A diplomat cannot be charged/sued

because of the need for him to be given leeway in the
discharge of his diplomatic functions. This is also in the
basis of the principle of the regularity in the performance
of his official functions.

2. PROTECT in the receiving state the interests of the

sending state and its nationals;
3. NEGOTIATE with the government of the receiving
state;
4. ASCERTAIN conditions and developments in the
receiving state and reporting thereon to the
government of the sending state;
5. PROMOTE friendly relations between the sending and
receiving states;
DIPLOMATIC IMMUNITIES AND PRIVILEGES
A. PERSONAL INVIOLABILITY
Diplomatic agent is entitled to special protection of his
person, honor and liberty. He is not liable to any form of
arrest or detention unless he causes violence and has to
be restrained.
So he restrained for the purpose of prevent the
commission of further illegal acts.

Article 29
The person of the diplomatic agent shall
be inviolable. He shall not be liable to 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 on his
person, freedom or dignity.
Of course you may ask, what therefore is the recourse of
the receiving state in the event he commits violation of
penal laws?
Receiving state may ask that he be recalled by the
sending state. If the sending state refuses,
receiving state may immediately expel diplomat.
RA 75 punishes any person who wounds, attacks,
imprisons or offer violence to the person of an
ambassador with imprisonment xxx NOTE: the attack is
confined to the person (only his physical state) of the
envoy/ambassador and does not include his honor or
reputation.

IMPORTANT! THERE ARE 3 EXCEPTIONS.

Article 31
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:
(a) A real action relating to private immovable
property situated in the territory of the
receiving State, unless he holds it out 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.
(c) An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions.
So whenever he performs an act, that has nothing to do
with his official functions, he is not covered.
90 BQ: An ambassador may be civilly sued. Nepal
ambassador was using a vacation house in Baguio but
because of a strike in his country, funds were delayed and
he was not able to pay rentals. Is he liable?
YES! He occupied the house in his private capacity unless
he holds such property on behalf of the state.
* A consul is not an ambassador. He does not have
the same privileges and immunities of a diplomat,
because he is appointed to protect the states commercial
interest.
The Vienna Convention on Diplomatic Relations of 1961
its origin was on the basis of fiction of exterritoriality
such as that they were considered as extensions of the
sovereign and therefore entitled to the privileges and
immunities under present international law. But the
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NorieSushi
acceptance of states is to the effect that these diplomats
C. INVIOLABILITY OF DIPLOMATIC PREMISES:
be given wide latitude in the discharge of their official
functions, and should be on the basis of customary law.
Article 22
Soon after, these were embodied in conventions.
1. The premises of the mission shall be inviolable. The

Some Rules on Waiver of Immunity

Immunity from jurisdiction may be waived expressly
by sending state or head of mission.
There is implied waiver when a person entitled to
immunity files suit and opens himself to counterclaim
directly connected with the principal claim.
o Cory Aquino filing suit for damages against a
columnisthid under the bed case
Waiver of immunity from jurisdiction in in respect of
civil or administrative proceedings does not imply
waiver of immunity anent execution of judgment for
which a separate waiver is needed.
o E.g. Suit is commenced because of such
waiver, and a decision is rendered adverse to
the foreign state. It does not mean that just
because there is this adverse judgment
rendered against the foreign state that there
is also already a waiver in the matter of
execution of decision. So if there are real or
personal properties that are subject to
garnishment,
this
cannot
be
done
automatically. Because there is a need for an
execution of a separate waiver pertaining to
the execution of the judgment.
R.A. No 75 provides:

Section 4. Any writ or process sued out or

prosecuted by any person in any court of the Republic
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 or domestic
servant of any such ambassador or minister is
arrested or imprisoned, or his goods or chattels are
distrained, seized, or attached, shall be deemed
VOID, and every person by whom the same is
obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it,
shall upon conviction, be punished by imprisonment
for not more than three years and a fine of not
exceeding two hundred pesos in the discretion of
the court.

NOTE: For ambassadors/diplomats, domestic servants

are included in the immunity. (with exceptions rin
actually under Sec. 5 of RA 75)

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.
The so-called franchise de l'hotel extends immunity
from the local law to the diplomatic premises. A diplomatic
mission has the right to use its premises for their
prescribed purpose. These include the envoys offices, his
residence and out-buildings, his means of transportation,
and the compound where these are found, which may not
be entered by the local authorities without its
permission.
BUT, THIS RULE IS NOT ABSOLUTE.
Exception: In cases of CLEAR and URGENT necessity,
for the local authorities to take forcible measures to arrest
any person subject to their jurisdiction.
Right of Diplomatic Asylum granted only on the
strength of local usage, particularly in favor of political
refugees, or of treaty stipulations. But this so-called right
of diplomatic asylum is not really universally recognized
except when it is extended for humanitarian reasons.
Example, when the fugitive seeking sanctuary is in
immediate danger of his life or safety. So unless there is
a treaty stipulation for this right (or at times if they are
political refugees), peace officers can take these refugees
within said diplomatic premises.
D. INVIOLABILITY OF ARCHIVES
Authorities of the receiving State cannot pry into the
records of the consulate or embassy even where there is
an outbreak of war. The documents in such case of
outbreak must be sealed, and authorities have no right to
confiscate them.

Article 24. The archives and documents shall be inviolable

at any time and wherever they may be.
E. INVIOLABILITY OF COMMUNICATION
This is the right of the diplomat to send messages, even
coded messages to his government. This includes the
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NorieSushi
diplomatic courier carrying the diplomatic bag, as well as
Article 31
mode of transport. The person carrying the
xxx
messages/communication docs/records are not subject to
2. A diplomatic agent is not obliged to give evidence as
arrest/detention.
a witness.

Article 27
1. The receiving State shall permit and protect free
communication on the part of the mission for all
official purposes. In communicating with the
Government and other consulates of the sending
State, wherever situated, the mission may employ all
appropriate means, including diplomatic couriers and
messages in code or cipher. However, the mission
may install and use a wireless transmitter only with
the consent of the receiving State.
2. The official correspondence of the mission shall be
inviolable. Official correspondence means all
correspondence relating to the mission and its
functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must
bear visible external of their character and may
contain only diplomatic documents or articles
intended for official use.
5. The diplomatic courier, who shall be provided with an
official document indicating his status and the
number of packages constituting the diplomatic bag,
shall be protected by the receiving State in the
performance of his functions. He shall enjoy personal
inviolability and shall not be liable to any form of
arrest or detention.
6. The sending State or the mission may designate
diplomatic couriers ad hoc. In such cases the
provisions of paragraph 5 of this Article shall also
apply, except that the immunities therein mentioned
shall cease to apply, when such courier has delivered
to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of
a commercial aircraft scheduled to land at an
authorized port of entry. He shall be provide with an
official document indicating the number of packages
constituting the bag but he shall not be considered to
be a diplomatic courier. The mission may send one of
its members to take possession of the diplomatic bag
directly and freely from the captain of the aircraft.
F. EXEMPTION FROM TESTIMONIAL DUTIES
Diplomat is under no compulsion to testify but he may
waive this privilege.

xxx

G. EXEMPTION FROM TAXATION

The diplomatic envoy is also exempt from taxes, customs
duties, and other dues, subject to the exception listed in
the Diplomatic Convention as well as from social security
requirements under certain conditions.

Article 33
1. Subject to the provisions of paragraph 3 of this
Article, a diplomatic agent shall with respect to
services rendered for the sending State be exempt
from social security provisions which may be in force
in the receiving State.
xxx
Article 34
A diplomatic agent shall be exempt from all dues and
taxes, personal, or real, national, regional or municipal,
except:
(a) Indirect taxes of a kind which are normally
incorporated in the price of goods or services;
(b) 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 the
purposes of the mission;
(c) Estate, sucession or inheritance duties levies by the
receiving State, subject to the provisions of paragraph
4 of Article 39;
(d) Dues and taxes on private income having its source
in the receiving State and capital taxes on
investments made in commercial undertakings in the
receiving State;
(e) Charges levied for specific services rendered;
(f) Registration, court or record fees, mortgage dues and
stamp duty, with respect to immovable property,
subject to the provisions of Article 23.
Article 36
1. The receiving State shall, in accordance with such
laws and regulations as it may adopt, permit entry of
and grant exemption from all customs duties, taxes,
and related charges other than charges for storage,
cartage and similar services, on:
(a) Articles for the official use of the mission;
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NorieSushi

(b) Articles for the personal use of a diplomatic

agent or members of his family forming part
of his household, including articles intended
for his establishment.
2. The personal baggage of a diplomatic agent shall be
exempt from inspection, unless there are serious
grounds for presuming that it contains articles not
covered by the exemptions mentioned in paragraph 1
of this Article, or articles the import or export of
regulations of the receiving State. Such inspection
shall be conducted only in the presence of the
diplomatic agent or of his authorized representative.

There was this diplomat from WHO. Crates belonging to

him that were transported were subject of confiscation for
alleged violation of the Tariff and Customs Code. The
judge issued a warrant but upon motion, he refused to
quash the search warrant. Judge was reprimanded by
Supreme Court.
Diplomatic immunity is a political question and
courts cannot go beyond determination by
Executive Branch.

H. FREEDOM OF MOVEMENT AND TRAVEL IN THE

TERRITORY OF RECEIVING STATE

Article 35

Consul does not have the same status as a diplomat.

Because the consul is not in the business of a political
character, rather in the interest of commerce and
navigation of both sending and receiving State. A
consul is protected only insofar as the discharge of
official functions is concerned. So if he commits a
violation of the penal laws in the local state, he can
be criminally liable. But, take note, if this consul is
also designated as secretary in the US embassy,
charged with diplomatic duties as such Secretary, he
is covered under the Diplomatic Convention.
Therefore, he is entitled to privileges, and can no
longer be criminally liable.

The receiving State shall exempt diplomatic

agents from all personal services, from all public service
of any kinds whatsoever, and from military obligations
such as those connected with requisitioning, military
contributions and billeting.
(90 BQ) Nepal ambassador leased a vacation house in
Baguio see page 12
(00 BQ) Foreign ambassador leased a vacation house in
Tagaytay
A foreign ambassador to the Philippines leased a vacation
house in Tagaytay for his personal use. For some reason,
he failed to pay rentals for more than one year. The lessor
filed an action for the recovery of his property in court.
Can the foreign ambassador invoke his diplomatic
immunity to resist the lessors action? NO, since he is not
using the house for the purpose of his mission but merely
for vacation.
In January 2003, a Cambodian newspaper article falsely
alleged that a Thai actress claimed that Angkor Wat
belonged to Thailand. Other Cambodian print and radio
media picked up the report and furthered the nationalistic
sentiment which resulted in riots in Phnom Penh on
January 29 where the Thai Embassy was burned and
commercial properties of Thai businesses were
vandalized. Later, the Cambodian government issued a
letter of apology, and paid about $23.54 million
compensation for the destruction of the Thai embassy.

Case: WHO v. Aquino (48 SCRA 243)

This case is in relation to diplomatic immunity under Host

Agreement between WHO and PH.

(97 BQ) Secretary/Consul in U.S. embassy bought

diamond ring worth 50T which he gave to his Filipino
GF. He issued a bouncing check. Can he be
sued/charged criminally for violation of BP22?

(91 BQ) A Marikina factory supplied military boots to

Indonesia. Only 200,000 pairs were delivered out of
500,000 ordered. Indonesia paid for only 100,000
pairs and filed suit for specific performance against
the shoe factory.
If the sovereign state commences a suit, it sheds off
its immunity, and so the Indonesian government can
be a subject of a counter-suit that can be filed by the
Marikina shoe factory.

So assuming, that the shoe factory indeed filed a countersuit and the court rendered a decision in its favor, can the
court issue this order of garnishment in order to
implement/execute the judgment rendered against the
Indonesian government?
RECALL: Waiver of immunity from jurisdiction in in
respect of civil or administrative proceedings does not
imply waiver of immunity anent execution of judgment for
which a separate waiver is needed.

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From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

Case:
International
Catholic
Migration
Commission v. Calleja (190 SCRA 130)

Diplomatic immunity of ICMM and the International Rice

Research Institute (IRRI) was upheld. Immunity from
local jurisdiction is necessitated by their international
character/purposes. They should be shielded from control
or political pressure by the host state and to ensure
unhampered performance of their functions.

DFA v. NLRC (262 SCRA 38)

In a suit for illegal dismissal, diplomatic of ADB was

upheld.
DOCTRINE OF SOVEREIGN IMMUNITY
A state, its agents or property are immune from judicial
process of another state except with its consent.
However, Philippines adheres to restrictive immunity
and not the absolute immunity school of thought. Only
governmental or sovereign acts (acta jure imperii) are
covered by sovereign immunity. Proprietary or
commercial acts (acta jure gestiones) are not covered.

A good illustration:
We have properties in U.S., in New York. Three buildings
in Manhattan. There was this legal issue raised before the
Federal court and the said court, rendered a decision
declaring that even these properties owned by foreign
government. Actually, the court cited the properties of
India, Mongolia, and PH. You know, in the case of India
has a building near UN that is used as living quarters by
employees, officials. Mongolia also has about 6-storey
property. Tayo Philippines, meron rin tayo. Maganda ang
property natin. To make the long story short, the federal
judge ruled that those portions used for diplomatic
purpose, tax exempted. Pero sa building the PH, meron
pang restaurant doon, meron pang parang agency doon.
So PH was assessed tax for other portions of the building
used for non-diplomatic purposes. Around $80k at that
time.
The Diplomatic Suite or Retinue
Diplomatic immunities and privileges are available to:
a) Head of the mission
b) Family of the head of mission
c) Other members of the diplomatic retinue
(entourage), although not in the same degree
o Diplomatic staff
o Administrative and technical staff (not
immune from civil and administrative
jurisdiction for unofficial acts)
d) Private servants of the official members of the
mission
o If they are not nationals or permanent
residents of the receiving State, enjoy

only exemption from dues and taxes on

their income from the mission and such
other immunities and privileges as may
be granted by the receiving state.
DURATION OF IMMUNITY
i.
ii.

i.
ii.

Starts:
from the moment he enters the territory of the
receiving State on proceeding to take his post or, if
already there,
from the moment his appointment is notified to the
foreign ministry.
Ends:
from the moment he leaves the country or
on expiry of a reasonable time in which to do so, but
shall subsist until such time even in the case of armed
conflict.
Immunity and privileges are available to him and to his
family not only in situ, but as well in transitu, that is, when
travelling through a third state on the way to or from the
receiving State, so far as may be necessary to secure his
transit or return. (Article 40)
TERMINATION OF DIPLOMATIC MISSION
1. RECALL
2. DISMISSAL
3. death
4. resignation
5. removal
6. abolition of the office
7. other methods
DIPLOMATIC ASYLUM
A person seeks refuge in the premises of a foreign mission
in the receiving State.
TERRITORIAL ASYLUM
A person seeks refuge in a foreign country.
e.g. case of Jalandoni who sought territorial asylum in
Netherlands
Conditions of diplomatic asylum:
1. individual is being prosecuted for a political offense
2. his life is in danger
3. he will not be given fair trial if he is surrendered to
the state demanding his surrender.
The rule here is that diplomatic asylum has not
gained general acceptance in IL but this can be
granted when all above 3 conditions arise.
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PUBLIC INTERNATIONAL LAW [2-MANRESA]

NorieSushi

Case of Alfredo Saulo

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW

Saulo here is a Hukbalahap leader in Jolo. He was wanted

for murder, kidnapping, bombings. So what he did, he
sought protection in Indonesian Embassy in Manila. There
were negotiations that transpired. He was given
diplomatic asylum.
~

CONSULS

~
The consul is NOT a diplomat.
Consuls are state agents residing abroad for various
purposes but mainly in the interest of commerce and
navigation.
Consuls do not ordinarily enjoy all the traditional
diplomatic immunities and privileges, although they are to
a certain extent entitled to special treatment under the
law of nations.
Kinds and Ranks of Consuls:
TWO (2) KINDS:

1. consules missi professional or career consuls who

are nationals of the appointing state and are required
to devote their full time to the discharge of their
consular duties.
2. consules electi may or may not be nationals of
the appointing state and perform their consular
fnctions only in addition to their regular callings.

* Although consuls enjoy a certain measure of

international character, their grades or ranks REMAIN A
MATTER OF MUNICIPAL CONCERN.
Classifications under the Consular Convention
(accdg. to importance/rank)
a) consul-general
b) consul
c) vice-consul
d) consular agent
Authority of the consul emanates from two (2) sources:
1. letter patent or lettr de provision the
authority given by his own state/sending state
2. exequatur the authority given by the receiving
state

IMMUNITIES/PRIVILEGES OF
CONSULS
Consuls are public officers of both sending and receiving
states, hence governed by laws of both.
Diplomats, receiving state may refuse to receive them and
withhold the exequatur from them without explanation.
CONSUL:
Entitled to immunity from jurisdiction for acts
performed in their official capacity
Liable to arrest and punishment for grave offenses
May be required to give testimony
May not be prosecuted for minor offenses for reasons
of comity
Consular office is immune only to that part where
work is being performed (does not extend to mode of
transport, other areas). So there may be issuance of
subpoena/search warrant to the consular office
pertaining to areas where consular work is not
performed.
Immunities and privileges are available not only to the
consul but also to the members of the consular post,
their respective families and the private staff
For official acts, immunity from jurisdiction subsists
without limitation of time
Right to official communication and may correspond
with their home government or other official bodies
by any means, including cipher or code (but may be
curtailed or restricted whenever exercised to the
prejudice of the receiving state)
Inviolability of archives

A Case about Consular Protection

(June 01 ICJ Decision) Regarding the execution of 2
German brothers (Walter and Karl LaGrand) in Arizona in
1999 for their involvement in a bank robbery in 1982
* Karl was first executed.
* US breached its international duties when it ignored
ICJs request for last minute stay of execution for Walter.
* US violated the Vienna Convention on Consular
Protection which requires police/court officials to
inform foreign detainees of their right to seek help
from consular officials from their own countries.
IMPORTANT NOTE:
Consent given to the establishment of diplomatic relations
between two states IMPLIES, unless otherwise stated,
consent to the establishment of consular relations. (Article
2, Sec 2)
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PUBLIC INTERNATIONAL LAW [2-MANRESA]

S.Y. 2014-2015

From the lectures and notes of Atty. Elman, online sources, and the book of Isagani Cruz, 2003 Ed. ADDU LAW
NorieSushi
HOWEVER, severance of diplomatic relations shall not
of any counterclaim directly connected with the principal
ipso facto involve the severance of consular relations, and
claim.
vice versa. (Article 2, Sec 3)
4. The waiver of immunity from jurisdiction for the

VIENNA CONVENTION ON CONSULAR RELATION

Done at Vienna on April 24, 1963

Article 11
The consular commission or notification of appointment
1. The head of a consular post shall be provided by the
sending State with a document, in the form of a
commission or similar instrument, made out for each
appointment, certifying his capacity and showing, as a
general rule, his full name, his category and class, the
consular district and the seat of the consular post.
2. The sending State shall transmit the commission or
similar instrument through the diplomatic or other
appropriate channel to the Government of the State in
whose territory the head of a consular post is to exercise
his functions.
3. If the receiving State agrees, the sending State may,
instead of a commission or similar instrument, send to the
receiving State a notification containing the particulars
required by paragraph 1 of this article.

purposes of civil or administrative proceedings shall not

be deemed to imply the waiver of immunity from the
measures of execution resulting from the judicial decision;
in respect of such measures, a separate waiver shall be
necessary.
Article 41 Personal inviolability of consular officers
Article 43 Immunity from jurisdiction
Article 44 Liability to give evidence

You need to endure so that you can receive the promises after you do
Gods will.
Hebrews 10:36, KJV

Article 12
The exequatur
1. The head of a consular post is admitted to the exercise
of his functions by an authorization from the receiving
State termed an exequatur, whatever the form of this
authorization.
2. A State which refused to grant an exequatur is not
obliged to give to the sending State reasons for such
refusal.
3. Subject to the provisions of articles 13 and 15, the head
of a consular post shall not enter upon his duties until he
has received an exequatur.
Article 45
Waiver of privileges and immunities
1. The sending State may waive, with regard to a member
of the consular post, any of the privileges and immunities
provided for in articles 41, 43 and 44.
2. The waiver shall in all cases be express, except as
provided in paragraph 3 of this article, and shall be
communicated to the receiving State in writing.
3. The initiation of proceedings by a consular officer or a
consular employee in a matter where he might enjoy
immunity from jurisdiction under article 43 shall preclude
him from invoking immunity from jurisdiction in respect
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