Right of Legation Also known as the right of diplomatic intercourse, this refers to the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No legal liability is incurred by the State for refusing to send or receive diplomatic representatives. Governed by the ienna !onvention on "iplomatic #elation $%&'%( •
Foreign policy Involves all of a country)s relationship diplomatic, diplomatic, military, commercial, and other with other countries.
1. Agents of diplomatic intercourse a. Head Hea d of state sta te *mbodies the sovereignty of the state and en+oys the right to special protection for his physical safety and the preservation preservation of his honor and reputation. is -uarters, archives, property and means of transportation are inviolate under the principle of extraterritoriality. e is immune from criminal and civil +urisdiction, except when he himself is the plainti/, and not sub+ect to tax or exchange or currency restrictions. b. The The fore foreign ign oce oce 0he actual daytoday daytoday conduct of foreign foreign a/airs is usually entrusted entrusted to a foreign foreign o1ce, headed headed by a Secretary or a 2inister, who, in proper cases, may make binding declarations on behalf of his government. 2.) establishment of resident mission 3 the mission of composed of a.) head of mission the ienna convention classi4es the head of mission into5 I.( II.( II.( III.( III.(
Ambass Ambassad adors ors or nunc nuncios ios accre accredit dited ed to to head head of of state state,, and and othe otherr head heads s of of miss mission ion of e-uivalent rank5 *nvoys *nvoys,, minis minister ter and inter internun nuncio cios, s, accre accredit dited ed to to head heads s of state5 state5 and !harg !harges es d)a/ d)a/air aires, es, accre accredit dited ed to minist ministers ers of of foreig foreign n a/airs a/airs
b.) diplomatic sta , composed of those engaged in diplomatic activities and are accorded diplomatic rank c.) administrati!e and technical sta , consisting of those employed in the administrative and technical service of the mission d.) ser!ice sta , those engaged in the domestic service of the mission ".) the diplomatic corps According According to custom, all diplomatic envoys accredited to the same state form a body known as the 6diplomatic corps7 the doyen or head of this body is usually the papal nuncio, if there is one, or the oldest ambassador, or, in the absence of ambassadors, the oldest minister plenipotentiary. #.) appointment appointment of en!oys en!oys 8resident who appoints $Art 9, sec %' consti(, sends and instructs the diplomatic and consular representatives, and his prerogative to determine the assignment of the country)s diplomatic representatives cannot be -uestioned a.( 0he sending state is not absolutely absolutely free in the choice of its diplomatic representatives, representatives, especially heads of mission, bec the receiving state has the right to refuse to receive as envoy of another state a person whom it considers unacceptable. 0o avoid embarrassment, states resort to an informal in-uiry as to the acceptability of a particular envoy, to which the receiving sate responds with an informal conformity agreement. 0his informal process is known as agreation. b.( :ith the informal informal process concluded, concluded, the diplomatic mission mission then commences when the envoy presents himself at the receiving state, generally armed with the following papers i.( ;ettr ;ettre e de cr creance eance $let $letter ter of cre creden dence( ce(,, with with the the name name,, rank rank and and gene general ral charac character ter of the mission, and a re-uest for favorable reception and full credence< ii.( ii.( "ipl "iplom omat atic ic pass passpo port rt auth author ori= i=in ing g his his trav travel el<< iii.( iii.( Instru Instructi ction ons, s, which which may may inclu include de a docume document nt of full full power powers s $plein $pleins s pouvoi pouvoirs rs(( authori=ing him to negotiate on extraordinary or special business< and iv.( iv.( !ipher !ipher,, or code code or or secre secrett key, key, for for comm communi unicat cation ions s with with his his coun country try
$.) functions and duties
a.( representing the sending state in the receiving state< b.( protecting in the receiving state the interests of the sending state and its nationals, within the limits allowed by international law< c.( negotiating with the government of the receiving state< d.( ascertaining, by all lawful means, the conditions and developments in the receiving state and reporting these to the sending state, and< e.( promoting friendly relations between the sending state and the receiving state, and developing their economic, cultural and scienti4c relations.
%.) diplomatic immunities and pri!ileges a.) personal in!iolability the person of the diplomatic representative is inviolable< he shall not be liable to any form of arrest or detention. 0he receiving state shall treat him with due respect and take all steps to prevent any attack on his person. >reedom or dignity. In the 8hilippines, #A 9? punishes, on the basis of reciprocity, any person who assaults, strikes, wounds, o/ers violence to the person of the ambassador or minister $except if done in selfdefense(. 0he @n convention on the prevention and punishment of crimes against internationally protected persons considered crimes against diplomatic agents as international, not political, in nature. owever, he diplomatic envoy may be arrested temporarily in case of urgent danger, such as when he commits an act of violence which makes it necessary to put him under restraint for the purpose of preventing similar acts< but he must be released and send home in due time. b.)&n!iolability of premises and archi!es the premises occupied by a diplomatic mission, as well as the private residence of the diplomatic agent, are inviolable. 0he agents of the receiving state may not enter without the consent of the envoy, except in extreme cases of necessity. e.g., when the premises are on 4re, or where there is imminent danger that a crime of violence is to be perpetrated in the premises. Such premises cannot be entered or searched, and neither can the goods, records and archives be detained by local authorities even under process of law. i.(
0he service of writs, summons, orders or processes within the premises of the mission or residence of the envoy is prohibited. *ven if a criminal takes refuge within the premises, the peace o1cers cannot break into such premises for the purpose of apprehending him. 0he fugitive should, however, be surrendered upon demand by local authorities, except when the right of asylum exists. ut if it is the ambassador himself who re-uests local police assistance, this privilege cannot be invoked.
ii.(
0he ienna convention provides that the receiving state has the special duty to protect diplomatic premises against invasion, damage, or any act tending to disrupt the peace and dignity of the mission.
iii.(
0he premises of the mission, their furnishing and other property thereon, and the means of transport of the mission shall be immune from search, re-uisition, attachment or execution. Inviolability also extends to the archives, documents, papers and correspondence of the mission at all times and wherever they may be, and the receiving state has the duty to respect and protect their con4dential character.
iv.(
@nless the right is recogni=ed by treaty or by local usage, an envoy should not permit the premises of his mission or his residence to be used as a place of asylum for fugitives from +ustice. An envoy may, however, in the interest of humanity, a/ord temporary shelter to persons in imminent peril of their lives, such as those Beeing from mob violence.
c.)Rights of ocial communication the right of an envoy to communicate with his government fully and freely is universally recogni=ed. 0he mission may employ all appropriate means to send and receive messages, whether ordinary or in cipher, by any of the usual modes of communication or by means of diplomatic couriers. ec of the right, the diplomatic pouch and diplomatic couriers shall also en+oy inviolability d.)&mmunity from local 'urisdiction under the %&&% ienna convention on diplomatic relations, a diplomatic agent shall en+oy immunity from criminal +urisdiction of the receiving state. 0hus, he cannot be arrested, prosecuted and punished for any o/ense he may commit, unless his immunity is waived. ut immunity from +urisdiction does not mean exemption from local law< it does not presuppose a
right to violate the laws of the receiving state. "iplomatic privileges does not import immunity from legal liability but only exemption from local i.(
0he diplomatic agent also en+oys immunity from civil and administrative +urisdiction of the receiving state, and thus, no civil action of any kind may be brought against him, even with respect to matters concerning his private life. As a rule, his properties are not sub+ect to garnishment, sei=ure for debt, execution and the like, except in the following cases5 a.( Any real action relating to private immovable property situated in the territory of the receiving state, unless the envoys holds it on behalf of the sending state for the purposes of the mission< b.( An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state< and c.( An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his o1cial functions
ii.(
0his immunity also means that the diplomatic agent cannot be compelled to testify, not even by deposition, without the consent of his government, before any +udicial or administrative tribunal in the receiving state $2inucher vs. !A(
iii.(
Gfg
iv.(
Sub+ect to the rule on reciprocity. #A ? declares as void any writ or process issued out or prosecuted by any person in any court of the 8hilippines, or by any +udge or +ustice, whereby the person of any ambassador or public minister of any foreign state, authori=ed and received as such by the president, or any domestic servant of any such ambassador or minister, is arrested or imprisoned, or his goods or chattels distrained, sei=ed or attached< and penalties are imposed for violation of this provision. owever, this privileges is not granted to5 a.( !iti=ensC inhabitants of the 8hilippines, where the process is founded upon a debt contracted before his employment in the diplomatic service< and b.( "omestic servants of the ambassador or minister whose names are not registered with the department of foreign a/airs.
v.(
As part of the envoy)s immunity from local +urisdiction, the children born to him while he possesses diplomatic status are regarded as born in the territory of his home state.
e.)(emption from taes and customs duties except the following5 i.( Indirect taxes normally incorporated in the price of goods or services ii.( "ues and taxes on private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for purposes of the mission iii.( *state, succession or inheritance taxes levied by the receiving state< iv.( "ues and taxes on private income having its source in the receiving state and capital taxes on investments in commercial ventures in the receiving state v.( !harges levied for speci4c services rendered< and vi.( #egistration, court or record fees, mortgage dues and stamp duty, with respect to immovable property. 0he ienna convention also provides for exemption from all customs duties and taxes of articles for the o1cial use of the mission and those for the personal use of the envoy or members of the family forming part of his household, including articles intended for his establishment. aggage and e/ects are entitled to free entry and, normally, exempt from inspection< articles addressed to ambassadors, ministers, charge d)a/aires are also exempt from customs inspection.
f.) other pri!ileges which include freedom of movement and travel in the territory of the receiving state5 exemption from all personal services and military obligations< the use of the Bag and emblem of the sending state on the diplomatic premises and the residence and means of transport of the head of mission. *.) duration of immunities+pri!ileges *n+oyed from the moment he enters the territory of the receiving state, and shall cease only the moment he leaves the country, or on expiry of a reasonable time in which to do so< although with respect to o1cial acts, immunity shall continue inde4nitely. 0hese privileges are available even in transit, when traveling through a third state on the way to or from the receiving state
,.) -ai!er of immunities "iplomatic privileges may be waived, but as a rule, the waiver cannot be made by the individual concerned since such immunities are not personal to him. :aiver may be made only be the government of the sending state if it concerns the immunities of the head of mission< in other cases, the waiver may be made either by the government or by the chief of mission. :aiver of this privilege, however, does not include waiver of the immunity in respect of the execution of +udgment< a separate waiver for the latter is necessary. .) Termination of diplomatic mission 0he usual modes of terminating o1cial relations, such as death, resignation, removal or abolition of o1ce, will terminate the diplomatic mission. Dther modes are recall by the sending state, dismissal by the receiving state, war between the receiving and sending states, or the extinction of the state. /. 034LAR R(LAT&3 !onsular are state agents residing abroad for various purpose but mainly in the interest of commerce and navigation. 1.) 5inds of consuls6 a.) 0onsules missi Are professional and career consuls, and nationals of the appointing state. b.) 0onsules electi Are selected by the appointing state either from its own citi=ens or from among nationals abroad. 2.) Ran7s6 a.) 0onsul general :ho heads several consular districts, or one exceptionally large consular district b.) 0onsul :ho takes charge of a small district or town or port c.) 8ice consul :ho assists the consul d.) 0onsular agent :ho is usually entrusted with the performance of certain functions by the consul ".) Appointment a.) Letters patent 9letter de pro!ision) :hich is the letter of appointment or commission which is transmitted by the sending state to the secretary of foreign a/airs of the country where the consul is to serve< and b.) (e:uatur :hich is the authori=ation given to the consul by the sovereign of the receiving state, allowing him to exercise his function within the territory. #.) Functions !ommerce and navigation, issuance of visa, and such as are designed to protect nationals of the appointing state. $.) &mmunities and pri!ileges @nder the %&'E vienna convention on consular relations, consuls are allowed freedom of communication in cipher or otherwise< inviolability of archives, but not of the premises where legal processes may be served arrests made< exempt from local +urisdiction for o/enses committed in the discharge of o1cial functions, but not other o/enses except minor infractions< exempt from testifying on o1cial communications or on matters pertaining to consular function< exempt from taxes, customs duties, military or +ury service< and may display their national Bag and emblem in the consulate Also available to the members of the consular post, their families and their private sta/. :aiver of immunities may be made by the appointing state. '.( Termination of consular mission @sual modes of terminating o1cial relationship< withdrawal of the exe-uatur< extinction of the state< war
Note5 severance of consular relations does not necessarily terminate diplomatic relations.
;&3<4T( R(3L4T& A; TH( R&=HT T 3(LF ;(F(3( Litigation and arbitration Fudicial as opposed to political means of settlement because their results are both legally binding. 0he terms of arbitration are agreed on in advance either through an ad hoc agreement or a treaty. 0he former is called a !D28#D2IS and the latter a !D28#D2ISSD# clause. In both cases the parties agree to the +urisdiction of the arbitrators, the method of selecting the arbitrators a de4nition of the dispute, the procedure to be followed, and sometimes the applicable law. litigation results in opinions that are usually published< arbitration results in awards that are sometimes published (n:uiry Is also called in-uiry or fact4nding used as an independent procedure or as a preliminary part of other methods of peaceful dispute settlement. >ediation Is a political method of settlement. In mediation a thirdparty, acceptable to both parties to the dispute, e/ects communication between the parties and participates activity in the process of negotiation by o/ering proposals for settlement. =ood oce Similar to mediation is good o1ce, which is not mentioned in the @N charter. Good o1ce is recogni=ed by the ague convention for the paci4c settlement of international disputes of %H&&. It is like a mediation except that the third party does not participate actively in the negotiations. e merely e/ects communication between the parties saving them the di1culties of personal contract. And the parties have no prior commitment to the result. 0onciliation "i/ers from arbitration in one very important respect< the result of the former is not legally binding and thus has no inBuence on any further litigation of the dispute. It is a diplomatic method of third party peaceful settlement.. whereby a dispute is referred by the parties, with their consent, to a permanent or ad hoc commission.. whose task is impartially to examine the dispute and to prepare a report with the suggestion of a concrete proposal. /loc7ade An embargo $from the Spanish embargo, literally distraint( is the partial or complete prohibition of commerce and trade with a particular country or a group of country. *mbargoes are considered strong diplomatic measures imposed in an e/ort, by the imposing country, to elicit a given nationalinterest result from the country on which it is imposed. *mbargoes are similar to economic sanctions and are generally considered legal barriers to trade. /loc7ade A blockade is an e/ort to cut o/ food, supplies, war material or communications from a particular area by force, either in part or totally. It is distinct from a siege in that blockade is usually directed at an entire country or region, rather than a fortress or city. 2ay be by land, sea or airspace. !lose patrol of the hostile ports, in order to prevent naval forces from putting to sea, is also referred to as a blockade. It may also include cutting o/ electronic communications by +amming radio signals and severing undersea cables. Sometimes considered as an act of war. A=R(33& 83. AR>(; ATTA05 Agression Is the use of armed force by a state against the sovereign, territorial integrity and political independence of another state, or in any other manner inconsistent with the charter of the @N, as set out in this de4nitions Armed force Including not merely actions by regular armed forces across an international border, but also sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another state of such gravity as to amount to an actual armed attack conducted by regular forces , or its substantial involvement thereon.
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Note5 State which invokes right to selfdefense has burden of proof to show that there is in fact a situation of armed attack occurring against it 3 advisory opinion of I!F re 8alestine +uly &, %&J *xercise of right must be reported to the @N security council ASA8 Individual state right and collective selfdefense but there must be a re-uest for assistance $Nicaragua vs. @S( !ollective selfdefense treaties 3 NA0A $april J, %&J&(< @S, Fapan, Sept H, %&?%< @S and Korea $Dct %, %&?E( and @S !hina 2utual defense treaty $dec , %&?J(< warsaw pact of 2ay %&&?
(lements of la-ful self?defense &mminence #e-uires that there be no time to pursue nonforcible measures with a reasonable chance of averting or stopping the attack. ecessity State should exhaust all reasonable alternative methods of resolving the dispute before resorting to armed force. @se of force must be the only option.
