G. R. No. 138570
October 10, 2000
Bayan vs Zamora
Facts:
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.
Monday, September 29, 2008
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
G.R. No. 153675
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
FACTS:
Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the offense of “accepting an advantage as an agent”, conspiracy to defraud, was penalized by a common law of Hongkong. A warrant of arrest was issued and if convicted, he may face jail terms.
On September 23, 1999, He was arrested and detained.
On November 22, 1999, Hongkong Special Administrative Region filed with the RTC of Manila a petition for his extradition.
Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia granted.
Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge.
ISSUE:
Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a potential extradite a right to bail.
HELD:
The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2 Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty.
The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty.
While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her from filing a motion for bail, aright to due process under the Constitution.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
Gov. of Hongkong Special Administrative Region vs. Hon. Felixberto Olalia
FACTS:
Juan Antonio Munoz, who was charged before the Hongkong Court with three (3) counts of the offense of “accepting an advantage as an agent”, conspiracy to defraud, was penalized by a common law of Hongkong. A warrant of arrest was issued and if convicted, he may face jail terms.
On September 23, 1999, He was arrested and detained.
On November 22, 1999, Hongkong Special Administrative Region filed with the RTC of Manila a petition for his extradition.
Juan Antonio Munoz filed a petition for bail, which Judge Felixberto Olalia granted.
Petitioner (Hongkong Administrative), filed a petition to vacate such order, but it was denied by the same judge.
ISSUE:
Whether or not Juan Antonio Munoz has the right to post bail when there is nothing in the Constitution or Statutory law providing a potential extradite a right to bail.
HELD:
The Philippines committed to uphold the fundamental human rights as well as value the worth and dignity of every person (Sec. 2 Art II 1987 Constitution) have the obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty.
The right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty.
While our extradition law does not provide for the grant of bail to an extradite, however, there is no provision prohibiting him or her from filing a motion for bail, aright to due process under the Constitution.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hongkong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition.
Monday, September 15, 2008
Answer to Question Nos. 2 & 3 of 2008 Bar Exam-Political & International Law
QUESTION NO. 2
May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.
Answer:
Yes, a treaty may be a violation to international law. It happens when the subject matter of the treaty of the contracting parties can not be legally complied with because it is forbidden by universally recognized principle of international law. The treaty of Tordesillas in 1494 which is sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are open seas under the law of nations is an example of a treaty which is a violation of international law.
QUESTION NO. 3
The President alone without the concurrence of the senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
Answer:
It could be resolved by applying the legal principle established in the case of Senator Pimentel Jr. vs. Office of the Executive Secretary G.R. No. 158088, July 6, 2005. In that case, Senator Aquilino Pimentel Jr. file a petition to compel Executive Secretary Hon. Alberto Romulo and Secretary of Foreign Affairs Hon. Blas Ople to transmit the signed documents – The Rome Statute which was signed by Charge d’ Affairs Enrique Manalo – to transmit it to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.
The Court settled the issue by declaring that: The President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.
May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why.
Answer:
Yes, a treaty may be a violation to international law. It happens when the subject matter of the treaty of the contracting parties can not be legally complied with because it is forbidden by universally recognized principle of international law. The treaty of Tordesillas in 1494 which is sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are open seas under the law of nations is an example of a treaty which is a violation of international law.
QUESTION NO. 3
The President alone without the concurrence of the senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
Answer:
It could be resolved by applying the legal principle established in the case of Senator Pimentel Jr. vs. Office of the Executive Secretary G.R. No. 158088, July 6, 2005. In that case, Senator Aquilino Pimentel Jr. file a petition to compel Executive Secretary Hon. Alberto Romulo and Secretary of Foreign Affairs Hon. Blas Ople to transmit the signed documents – The Rome Statute which was signed by Charge d’ Affairs Enrique Manalo – to transmit it to the Senate for ratification.
Hon. Alberto Romulo and Hon. Blas Ople, on the other hand, argue that they as representative of the Executive Department have no duty to transmit the Rome Statute to the Senate for concurrence.
The Court settled the issue by declaring that: The President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.
R. A. No. 75
REPUBLIC ACT No. 75
AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES
Section 1. Any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines, or any person, or in such pretended character shall demand or obtain, or attempt to obtain from person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing, of value, shall be fined not more than five thousand pesos, or shall be imprisoned for not more than five years, or both, in addition to the penalties that may be imposed under the Revised Penal Code.
Section 2. Any person, other than a diplomatic or consular officer or attach, who shall act in the Republic of the Philippines as an agent of a foreign government without prior notification to, and registration with, the Secretary of Foreign Affairs shall be fined not more than five thousand pesos, or imprisoned not more than five years, or both, aside from other penalties that may be imposed by law.
Section 3. Any person, who with intent to deceive or mislead, within the jurisdiction of the Republic, wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated to deceive, unless such wearing thereof be authorized by such State, nation, or government, shall upon conviction, be punished by a fine not exceeding two hundred pesos or imprisonment not exceeding six months, or by both such fine and imprisonment.1awphil-itc-alf
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.
Section 5. The provisions of section four hereof shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the Republic of the Philippines, in the service of an ambassador or a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the said section apply to any case where the person against whom the process is issued is a domestic servant of an ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of Foreign Affairs, and transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt thereof post the same in some public place in his office. All persons shall have resort to the list of names so posted in the office of the Chief of Police, and take copies without fee.
Section 6. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than three years, and fined not exceeding two hundred pesos, in the discretion of the court, in addition to the penalties that may be imposed under the Revised Penal Code.
Section 7. The provisions of this Act shall be applicable only in case where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar penalties for like or similar offenses herein contained.
Section 8. This Act shall take effect upon its approval.
Approved: October 21, 1946
AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES OF THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY ACCREDITED FOREIGN DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES
Section 1. Any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines, or any person, or in such pretended character shall demand or obtain, or attempt to obtain from person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing, of value, shall be fined not more than five thousand pesos, or shall be imprisoned for not more than five years, or both, in addition to the penalties that may be imposed under the Revised Penal Code.
Section 2. Any person, other than a diplomatic or consular officer or attach, who shall act in the Republic of the Philippines as an agent of a foreign government without prior notification to, and registration with, the Secretary of Foreign Affairs shall be fined not more than five thousand pesos, or imprisoned not more than five years, or both, aside from other penalties that may be imposed by law.
Section 3. Any person, who with intent to deceive or mislead, within the jurisdiction of the Republic, wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated to deceive, unless such wearing thereof be authorized by such State, nation, or government, shall upon conviction, be punished by a fine not exceeding two hundred pesos or imprisonment not exceeding six months, or by both such fine and imprisonment.1awphil-itc-alf
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.
Section 5. The provisions of section four hereof shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the Republic of the Philippines, in the service of an ambassador or a public minister, and the process is founded upon a debt contracted before he entered upon such service; nor shall the said section apply to any case where the person against whom the process is issued is a domestic servant of an ambassador or a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of Foreign Affairs, and transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt thereof post the same in some public place in his office. All persons shall have resort to the list of names so posted in the office of the Chief of Police, and take copies without fee.
Section 6. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than three years, and fined not exceeding two hundred pesos, in the discretion of the court, in addition to the penalties that may be imposed under the Revised Penal Code.
Section 7. The provisions of this Act shall be applicable only in case where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar penalties for like or similar offenses herein contained.
Section 8. This Act shall take effect upon its approval.
Approved: October 21, 1946
vienna conventions-diplomatic & consular relations
CONTENTS
A. A BRIEF HISTORY OF DIPLOMACY
B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961
1. FUNCTIONS OF THE DIPLOMATIC MISSION
2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION
3. WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION
4. DIVISION OF THE HEAD OF MISSION
5. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION
6. PRIVILEGES TO THE DIPLOMATIC MISSION
7. THE END OF THE DIPLOMATIC MISSION
C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963
1. ESTABLISHEMENT OF A CONSULAR POST
2. CONSULAR FUNCTIONS
3. CLASSES OF HEADS OF CONSULAR POSTS
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
6. PERSONS DECLARED “NON GRATA”
7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
8. INVIOLABILITY OF THE CONSULAR PREMISES
9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES
10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
11. FREEDOM OF MOVEMENT
12. FREEDOM OF COMMUNICATION
13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
14. PROTECTION OF CONSULAR OFFICERS
15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
17. IMMUNITY FROM JURISDICTION
18. LIABILITY TO GIVE EVIDENCE
19. WAIVER OF PRIVILEGES AND IMMUNITIES
A. A BRIEF HISTORY OF DIPLOMACY
The ability to practice diplomacy is one of the defining elements of a state, and diplomacy has been practiced since the formation of the first city-states. Originally diplomats were sent only for specific negotiations, and would return immediately after their mission concluded. Diplomats were usually relatives of the ruling family or of very high rank in order to give them legitimacy when they sought to negotiate with the other state.
Modern diplomacy's origins are often traced to the states of Northern Italy in the early Renaissance, with the first embassies being established in the thirteenth century.
The practice spread from Italy to the other European powers. Milan was the first to send a representative to the court of France in 1455. Milan however refused to host French representatives fearing espionage and possible intervention in internal affairs. As foreign powers such as France and Spain became increasingly involved in Italian politics the need to accept emissaries was recognized. Soon all the major European powers were exchanging representatives. Spain was the first to send a permanent representative when it appointed an ambassador to the Court of England in 1487. By the late 16th century, permanent missions became the standard.
Many of the conventions of modern diplomacy developed during this period. The top rank of representatives was an ambassador. An ambassador at this time was almost always a nobleman - the rank of the noble varied with the prestige of the country he was posted to.
Ambassadors at that time were nobles with little foreign or diplomatic experience and needed to be supported by a large embassy staff. These professionals were sent on longer assignments and were far more knowledgeable about the host country. Embassy staff consisted of a wide range of employees, including some dedicated to espionage.
At the same time, permanent foreign ministries were established in almost all European states to coordinate embassies and their staffs. These ministries were still far from their modern form.
The elements of modern diplomacy slowly spread to Eastern Europe and arrived in Russia by the early eighteenth century
After the fall of Napoleon, the Congress of Vienna of 1815 established an international system of diplomatic rank. Disputes on precedence among nations (and the appropriate diplomatic ranks used) persisted for over a century until after World War II, when the rank of ambassador became the norm.
SOURCE: http://www.ediplomat.com/nd/history.htm
B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961
SOURCE: http://www.ediplomat.com/nd/treaties/diplomatic_relations.htm
1. FUNCTIONS OF THE DIPLOMATIC MISSION
The functions of a diplomatic mission consist inter alia in:
a. representing the sending State in the receiving State;
b. protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
c. negotiating with the Government of the receiving State;
d. ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
e. promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. (ART 3)
2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION
Art. 7. Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Art. 8. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission. (Art 9.)
WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION
The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
1. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission. (ART 13)
3. DIVISION OF THE HEAD OF MISSION
Heads of mission are divided into three classes, namely:
that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
that of envoys, ministers and internuncios accredited to Heads of State;
that of charges d'affaires accredited to Ministers for Foreign Affairs.
Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class. (ART 14)
4. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION
The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class. (ART 18)
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission. (ART 19)
6. PRIVILEGES TO THE DIPLOMATIC MISSION
AS TO PREMISES
The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
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.
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. (ART 22)
AS TO TAX DUTIES
The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. (ART 23)
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. (ART 28), (ART 34), (ART 36)
C. AS TO ARCHIVES, DOCUMENTS AND COMMUNICATION
The archives and documents of the mission shall be inviolable at any time and wherever they may be. (ART 24)
The receiving State shall accord full facilities for the performance of the functions of the mission. (ART 25) The receiving State shall permit and protect free communication on the part of the mission for all official purposes. (ART 27)
D. AS TO MOVEMENT WITHIN THE TERRITORY
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory. (ART 26)
E. AS TO ARREST AND DETENTION
The person of a 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. (ART 29)
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 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.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. (ART 31)
7. THE END OF THE DIPLOMATIC MISSION
The function of a diplomatic agent comes to an end, inter alia:
A. on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
B. on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission. ART (43)
C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963
SOURCE: http://www.sos.state.tx.us/border/intlprotocol/vienna.shtml
1. ESTABLISHEMENT OF A CONSULAR POST
A consular post may be established in the territory of the receiving State only with that State's consent.
The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State. (ART 4)
2. CONSULAR FUNCTIONS
Consular functions consist in:
protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;
issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
helping and assisting nationals, both individuals and bodies corporate, of the sending State;
acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;
safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;
extending assistance to vessels and aircraft mentioned in sub-paragraph of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and,without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;
performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State. (ART 5)
3. CLASSES OF HEADS OF CONSULAR POSTS
Heads of consular posts are divided into four classes, namely:
consuls-general;
consuls;
vice-consuls;
(consular agents. (ART 9)
Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.
Subject to the provisions of the present Convention, the formalities for the appointment and for the admission of the head of a consular post are determined by the laws, regulations and usages of the sending State and of the receiving State respectively. (ART 10)
5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
Heads of consular posts shall rank in each class according to the date of the grant of the exequatur.
If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, his precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.
The order of precedence as between two or more heads of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of Article 11 were presented to the receiving State.
Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of Article 15.
Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs.
Heads of consular posts shall have precedence over consular officers not having that status. (ART 16)
6. PERSONS DECLARED “NON GRATA”
The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.
If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this Article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.
A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.
In the cases mentioned in paragraphs 1 and 3 of this Article, the receiving State is not obliged to give to the sending State reasons for its decision. (ART 23)
7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
The functions of a member of a consular post shall come to an end inter alia:
on notification by the sending State to the receiving State that his functions have come to an end;
on withdrawal of the exequatur;
on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff. (ART 25)
8. INVIOLABILITY OF THE CONSULAR PREMISES
Consular premises shall be inviolable to the extent provided in this Article.
The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. (art 31)
9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES
Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
The exemption from taxation referred to in paragraph 1 of this Article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf. (ART 32)
10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and wherever they may be. (ART 33)
11. FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post.(ART 34)
12. FREEDOM OF COMMUNICATION
The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. (ART 35)
13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (ART 36)
14. PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity. (ART 40)
15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. (ART 41)
16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel. (ART 42)
17. IMMUNITY FROM JURISDICTION
Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. (ART 43)
18. LIABILITY TO GIVE EVIDENCE
Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State. (ART 44)
19. WAIVER OF PRIVILEGES AND IMMUNITIES
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.
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.
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 of any counter-claim directly connected with the principal claim.
The waiver of immunity from jurisdiction for the 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 decisio n; in respect of such measures, a separate waiver shall be necessary. (ART 45)
A. A BRIEF HISTORY OF DIPLOMACY
B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961
1. FUNCTIONS OF THE DIPLOMATIC MISSION
2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION
3. WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION
4. DIVISION OF THE HEAD OF MISSION
5. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION
6. PRIVILEGES TO THE DIPLOMATIC MISSION
7. THE END OF THE DIPLOMATIC MISSION
C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963
1. ESTABLISHEMENT OF A CONSULAR POST
2. CONSULAR FUNCTIONS
3. CLASSES OF HEADS OF CONSULAR POSTS
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
6. PERSONS DECLARED “NON GRATA”
7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
8. INVIOLABILITY OF THE CONSULAR PREMISES
9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES
10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
11. FREEDOM OF MOVEMENT
12. FREEDOM OF COMMUNICATION
13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
14. PROTECTION OF CONSULAR OFFICERS
15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
17. IMMUNITY FROM JURISDICTION
18. LIABILITY TO GIVE EVIDENCE
19. WAIVER OF PRIVILEGES AND IMMUNITIES
A. A BRIEF HISTORY OF DIPLOMACY
The ability to practice diplomacy is one of the defining elements of a state, and diplomacy has been practiced since the formation of the first city-states. Originally diplomats were sent only for specific negotiations, and would return immediately after their mission concluded. Diplomats were usually relatives of the ruling family or of very high rank in order to give them legitimacy when they sought to negotiate with the other state.
Modern diplomacy's origins are often traced to the states of Northern Italy in the early Renaissance, with the first embassies being established in the thirteenth century.
The practice spread from Italy to the other European powers. Milan was the first to send a representative to the court of France in 1455. Milan however refused to host French representatives fearing espionage and possible intervention in internal affairs. As foreign powers such as France and Spain became increasingly involved in Italian politics the need to accept emissaries was recognized. Soon all the major European powers were exchanging representatives. Spain was the first to send a permanent representative when it appointed an ambassador to the Court of England in 1487. By the late 16th century, permanent missions became the standard.
Many of the conventions of modern diplomacy developed during this period. The top rank of representatives was an ambassador. An ambassador at this time was almost always a nobleman - the rank of the noble varied with the prestige of the country he was posted to.
Ambassadors at that time were nobles with little foreign or diplomatic experience and needed to be supported by a large embassy staff. These professionals were sent on longer assignments and were far more knowledgeable about the host country. Embassy staff consisted of a wide range of employees, including some dedicated to espionage.
At the same time, permanent foreign ministries were established in almost all European states to coordinate embassies and their staffs. These ministries were still far from their modern form.
The elements of modern diplomacy slowly spread to Eastern Europe and arrived in Russia by the early eighteenth century
After the fall of Napoleon, the Congress of Vienna of 1815 established an international system of diplomatic rank. Disputes on precedence among nations (and the appropriate diplomatic ranks used) persisted for over a century until after World War II, when the rank of ambassador became the norm.
SOURCE: http://www.ediplomat.com/nd/history.htm
B. VIENNA CONVENTION ON DIPLOMATIC RELATIONS – 1961
SOURCE: http://www.ediplomat.com/nd/treaties/diplomatic_relations.htm
1. FUNCTIONS OF THE DIPLOMATIC MISSION
The functions of a diplomatic mission consist inter alia in:
a. representing the sending State in the receiving State;
b. protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
c. negotiating with the Government of the receiving State;
d. ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
e. promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. (ART 3)
2. MANNER ON APPOINTING MEMBERS OF THE STAFF OF THE DIPLOMATIC MISSION
Art. 7. Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attaches, the receiving State may require their names to be submitted beforehand, for its approval.
Art. 8. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission. (Art 9.)
WHEN THE HEAD OF MISSION CONSIDERED AS TAKEN UP HIS FUNCTION
The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
1. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission. (ART 13)
3. DIVISION OF THE HEAD OF MISSION
Heads of mission are divided into three classes, namely:
that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
that of envoys, ministers and internuncios accredited to Heads of State;
that of charges d'affaires accredited to Ministers for Foreign Affairs.
Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class. (ART 14)
4. PROCEDURE FOR THE RECEPTION OF THE HEADS OF MISSION
The procedure to be observed in each State for the reception of heads of mission shall be uniform in respect of each class. (ART 18)
1. If the post of head of the mission is vacant, or if the head of the mission is unable to perform his functions, a charge d'affaires ad interim shall act provisionally as head of the mission. The name of the charge d'affaires ad interim shall be notified, either by the head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs of the sending State to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiving State, a member of the administrative and technical staff may, with the consent of the receiving State, be designated by the sending State to be in charge of the current administrative affairs of the mission. (ART 19)
6. PRIVILEGES TO THE DIPLOMATIC MISSION
AS TO PREMISES
The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
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.
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. (ART 22)
AS TO TAX DUTIES
The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. (ART 23)
The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes. (ART 28), (ART 34), (ART 36)
C. AS TO ARCHIVES, DOCUMENTS AND COMMUNICATION
The archives and documents of the mission shall be inviolable at any time and wherever they may be. (ART 24)
The receiving State shall accord full facilities for the performance of the functions of the mission. (ART 25) The receiving State shall permit and protect free communication on the part of the mission for all official purposes. (ART 27)
D. AS TO MOVEMENT WITHIN THE TERRITORY
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory. (ART 26)
E. AS TO ARREST AND DETENTION
The person of a 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. (ART 29)
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 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.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. (ART 31)
7. THE END OF THE DIPLOMATIC MISSION
The function of a diplomatic agent comes to an end, inter alia:
A. on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
B. on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission. ART (43)
C. VIENNA CONVENTION ON CONSULAR RELATIONS – 1963
SOURCE: http://www.sos.state.tx.us/border/intlprotocol/vienna.shtml
1. ESTABLISHEMENT OF A CONSULAR POST
A consular post may be established in the territory of the receiving State only with that State's consent.
The seat of the consular post, its classification and the consular district shall be established by the sending State and shall be subject to the approval of the receiving State. (ART 4)
2. CONSULAR FUNCTIONS
Consular functions consist in:
protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;
issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
helping and assisting nationals, both individuals and bodies corporate, of the sending State;
acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;
safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;
extending assistance to vessels and aircraft mentioned in sub-paragraph of this Article and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship's papers, and,without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorized by the laws and regulations of the sending State;
performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State. (ART 5)
3. CLASSES OF HEADS OF CONSULAR POSTS
Heads of consular posts are divided into four classes, namely:
consuls-general;
consuls;
vice-consuls;
(consular agents. (ART 9)
Paragraph 1 of this Article in no way restricts the right of any of the Contracting Parties to fix the designation of consular officers other than the heads of consular posts.
4. APPOINTMENT AND ADMISSION OF HEADS OF CONSULAR POSTS
Heads of consular posts are appointed by the sending State and are admitted to the exercise of their functions by the receiving State.
Subject to the provisions of the present Convention, the formalities for the appointment and for the admission of the head of a consular post are determined by the laws, regulations and usages of the sending State and of the receiving State respectively. (ART 10)
5. RECEDENCE AS BETWEEN HEADS OF CONSULAR POSTS
Heads of consular posts shall rank in each class according to the date of the grant of the exequatur.
If, however, the head of a consular post before obtaining the exequatur is admitted to the exercise of his functions provisionally, his precedence shall be determined according to the date of the provisional admission; this precedence shall be maintained after the granting of the exequatur.
The order of precedence as between two or more heads of consular posts who obtained the exequatur or provisional admission on the same date shall be determined according to the dates on which their commissions or similar instruments or the notifications referred to in paragraph 3 of Article 11 were presented to the receiving State.
Acting heads of posts shall rank after all heads of consular posts and, as between themselves, they shall rank according to the dates on which they assumed their functions as acting heads of posts as indicated in the notifications given under paragraph 2 of Article 15.
Honorary consular officers who are heads of consular posts shall rank in each class after career heads of consular posts, in the order and according to the rules laid down in the foregoing paragraphs.
Heads of consular posts shall have precedence over consular officers not having that status. (ART 16)
6. PERSONS DECLARED “NON GRATA”
The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.
If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this Article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.
A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.
In the cases mentioned in paragraphs 1 and 3 of this Article, the receiving State is not obliged to give to the sending State reasons for its decision. (ART 23)
7. TERMINATION OF THE FUNCTIONS OF A MEMBER OF A CONSULAR POST
The functions of a member of a consular post shall come to an end inter alia:
on notification by the sending State to the receiving State that his functions have come to an end;
on withdrawal of the exequatur;
on notification by the receiving State to the sending State that the receiving State has ceased to consider him as a member of the consular staff. (ART 25)
8. INVIOLABILITY OF THE CONSULAR PREMISES
Consular premises shall be inviolable to the extent provided in this Article.
The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. (art 31)
9. EXEMPTION FROM TAXATION OF CONSULAR PREMISES
Consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.
The exemption from taxation referred to in paragraph 1 of this Article shall not apply to such dues and taxes if, under the law of the receiving State, they are payable by the person who contracted with the sending State or with the person acting on its behalf. (ART 32)
10. INVIOLABILITY OF THE CONSULAR ARCHIVES AND DOCUMENTS
The consular archives and documents shall be inviolable at all times and wherever they may be. (ART 33)
11. FREEDOM OF MOVEMENT
Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure freedom of movement and travel in its territory to all members of the consular post.(ART 34)
12. FREEDOM OF COMMUNICATION
The receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. (ART 35)
13. COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (ART 36)
14. PROTECTION OF CONSULAR OFFICERS
The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity. (ART 40)
15. PERSONAL INVIOLABILITY OF CONSULAR OFFICERS
Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. (ART 41)
16. NOTIFICATION OF ARREST, DETENTION OR PROSECUTION
In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel. (ART 42)
17. IMMUNITY FROM JURISDICTION
Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft. (ART 43)
18. LIABILITY TO GIVE EVIDENCE
Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State. (ART 44)
19. WAIVER OF PRIVILEGES AND IMMUNITIES
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.
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.
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 of any counter-claim directly connected with the principal claim.
The waiver of immunity from jurisdiction for the 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 decisio n; in respect of such measures, a separate waiver shall be necessary. (ART 45)
Wednesday, September 10, 2008
marriage of a married man in a foreign land
THE PROBLEM
A man (Filipino citizen) married to a Filipina in the Philippines under the Philippine law went to the United States and married a citizen of the United States under the law of the state he resides. What crime he committed?
1. CRIMINAL LIABILITY UNDER THE REVISED PENAL CODE
Under the law of the Philippines, the man committed no crime (Art. 2 Revised Penal Code).
Article 2 of the Revised Penal Code provides that the provision of said code shall be enforced within the Philippine Archipelago. The same Article, however, enumerates the exceptions to this rule so that it provides instances when this code is enforceable even outside the territory of the archipelago.
The crime of the married man, if any, in the example is not included in the enumeration of the crimes committed outside the Philippine territory as enumerated in Article 2 of the Revised Penal Code (EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS), therefore, the code cannot be invoked to prosecute the married man who marry in the foreign land.
2. JURISDICTION UNDER INTERNATIONAL LAW
The general principles of jurisdiction provides that a state is entirely free to project its jurisdiction over any matter taking place outside its territory, so long as this is not prohibited by a contrary rule of international law in a specific case. This power is strengthened further of the principle of the prescriptive jurisdiction of a state to bring any matter within the cognizance of its national law to any person, property, territory or event, wherever they may be situated or wherever they may occur.
However, the same principle asserts that jurisdiction to enforce can generally take place only within its own territory. So that, following the premise cited, a state cannot enforce its prescriptive jurisdiction in the territory of another state.
Applying the national law of the Philippines specifically the Revised Penal Code in consonance to the generally accepted pniciple of international law to indict the person in the example, the national law may have the power to bring the matter within its cognizance, however, it is devoid of any power to enforce such law outside the Philippine territory.
A man (Filipino citizen) married to a Filipina in the Philippines under the Philippine law went to the United States and married a citizen of the United States under the law of the state he resides. What crime he committed?
1. CRIMINAL LIABILITY UNDER THE REVISED PENAL CODE
Under the law of the Philippines, the man committed no crime (Art. 2 Revised Penal Code).
Article 2 of the Revised Penal Code provides that the provision of said code shall be enforced within the Philippine Archipelago. The same Article, however, enumerates the exceptions to this rule so that it provides instances when this code is enforceable even outside the territory of the archipelago.
The crime of the married man, if any, in the example is not included in the enumeration of the crimes committed outside the Philippine territory as enumerated in Article 2 of the Revised Penal Code (EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS), therefore, the code cannot be invoked to prosecute the married man who marry in the foreign land.
2. JURISDICTION UNDER INTERNATIONAL LAW
The general principles of jurisdiction provides that a state is entirely free to project its jurisdiction over any matter taking place outside its territory, so long as this is not prohibited by a contrary rule of international law in a specific case. This power is strengthened further of the principle of the prescriptive jurisdiction of a state to bring any matter within the cognizance of its national law to any person, property, territory or event, wherever they may be situated or wherever they may occur.
However, the same principle asserts that jurisdiction to enforce can generally take place only within its own territory. So that, following the premise cited, a state cannot enforce its prescriptive jurisdiction in the territory of another state.
Applying the national law of the Philippines specifically the Revised Penal Code in consonance to the generally accepted pniciple of international law to indict the person in the example, the national law may have the power to bring the matter within its cognizance, however, it is devoid of any power to enforce such law outside the Philippine territory.
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