Public International Law: Chapter X - Immunity from Jurisdiction

Immunity from jurisdiction. 

  • General Rule: The jurisdiction of a state within its territory is complete and absolute.
  • However, there are two categories of exceptions to this rule. 
    1. Sovereign immunity
      • Covers both:
        • head of state 
        • state itself
    2. Immunity of the representative of states or diplomatic and consular immunities.


Immunity of head of state. 
  • Immunity from jurisdiction is enjoyed by both the head of state and by the state itself. 
  • The example many authors give of the immunity of a head of state is the case of Mighell v. Sultan of Johore 1 QB 148(1894).
    • The Sultan of Johore was sued for breach of promise to marry in a British court. 
    • The subject of the suit therefore was a private matter, not a state matter. 
    • Upon verification of his being a sitting foreign sovereign, the case was dismissed. 
    • The immunity that is recognized here is absolute for a sitting head of state.
  • More recent is the Pinochet Case which involved one who no longer was a head of state but whose immunity for official or governmental acts was recognized. 
The Pinochet Case

Facts: 

  • In 1973, General Augusto Pinochet led a military coup that overthrew  democratically-elected Chilean President Salvador Allende in Chile.
  • A truth and reconciliation commission reported 3,196 deaths and disappearances, with thousands tortured or exiled during Pinochet's 17-year dictatorship.
  • In 1998, Pinochet was detained in London on a Spanish arrest warrant for charges of genocide, terrorism, and torture during his dictatorship.
  • Initially, British law lords ruled he lacked immunity and could be extradited to Spain, but this decision was later set aside due to a judge's ties to Amnesty International.
  • In a subsequent appeal in March 1999, a larger panel of law lords reaffirmed (6-1) that Pinochet could be extradited.
Issue:
  • Whether Pinochet, as a former head of state, enjoys immunity for alleged acts of torture carried out during his tenure as head of state.
Held:
  • Lord Browne-Wilkinson argued that while Senator Pinochet might have immunity for acts performed as a head of state, organizing state torture could not be considered an official function.
  • International law holds individuals accountable for committing international crimes.
    • Under the [Torture] Convention the international crime of torture can only be committed by an official or someone in an official capacity. Extending immunity to ex-heads of state in torture cases would protect all involved officials from prosecution.
  • Immunity for ex-heads of state in torture cases contradicts the Torture Convention's objective of holding torturers accountable.
  • When Senator Pinochet organized and authorized torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law...
  • Despite protests legal objections, British Home Secretary Jack Straw released Pinochet on medical grounds in 2000.


State immunity. 
  • The principle that the state may not be sued without its consent found in the Philippine Constitution is both municipal law and also international law applicable to foreign states. 
    • This is based on the principle of equality of states: par in parent non habet imperium. 
  • An early case, The Schooner Exchange v. MacFaddon 11 U.S. 116 [Cranch] is usually cited as authority for saying that states enjoy absolute immunity. 
    • Chief Justice Marshall noted that:
      • “the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” 
    • However, he immediately added that absolute territorial jurisdiction “would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory ... in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.” 
  • The immunity of the sovereign head is seen as also communicated to the sovereign state: 
    • “This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.” 
    • With the gradual expansion of state involvement in commerce, the principle evolved over the years. 
    • Immunity came to be reserved only for acts jure imperii (governmental acts) but not for acts jure gestionis (trading and commercial acts). 
  • Dralle v. Republic of Czechoslovakia, after a survey of various jurisdictions concluded:
    • The Supreme Court therefore reaches the conclusion that it can no longer be said that by international law so-called acta gestionis are exempt from municipal jurisdiction. This subjection of the acta gestionis to the jurisdiction of States has its basis in the development of the commercial activity of States. The classic doctrine of immunity arose at a time when all their political activities, either by the purchase of commodities for their diplomatic representatives abroad, or by the purchase of war material for war purposes, etc. Therefore, there was no justification for any distinction between private transactions and acts of sovereignty. Today the position is entirely different; States engage in commercial activities and, as the present case shows, enter into competition with their own nationals and with foreigners. Accordingly, the classic doctrine of immunity has lost its meaning and, ratione cessante, can no longer be recognized as a rule of international law.
  • This rule is also followed in Philippine jurisdiction as shown especially by the numerous cases involving U.S. military bases authorities. 
  • United States of America v. Hon. V.M. Ruiz, categorically said: 
    • The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them — between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in western Europe. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case, the projects [repairs of base facilities] are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.
  • In United States v. Hon. Luis Reyes, G.R. No. 79253, March 1,1993, the claim of immunity was rejected when it was shown that the acts of the American official were committed not only outside the scope of her authority but also contrary to law: 
    • It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. ... ‘Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights or the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent.’ The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
  • In the Holy See v. Eriberto Rosario, Jr., G.R. No. 101949, where it was claimed that the Holy See had waived its sovereign immunity by entering into a contract for the sale of a piece of land, the Court said: 
    • In the absence of legislation defining what activities and transactions shall be considered “commercial” and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.
  • The Court also indicated how a state claiming sovereign immunity should proceed: 
    • In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity. 
    • In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies.
  • By way of consolation, however, the Court added: 
    • Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Facts: 

  • The Republic of Indonesia entered a Maintenance Agreement in 1995 with James Vinzon for equipment maintenance at its embassy buildings and official residence.
  • Indonesia allegedly terminated the agreement due to unsatisfactory services.
  • Vinzon sued Indonesia, claiming arbitrary termination, citing specific instances where he was requested to provide services or donations even after the alleged dissatisfaction.
  • Indonesia filed a Motion to Dismiss, citing sovereign and diplomatic immunity.
  • RTC-Makati: Denied the motion, asserting a waiver of immunity based on a clause in the Maintenance Agreement.
  • Court of Appeals: Upheld the trial court's decision, prompting Indonesia to file a petition questioning the ruling.
Issue:
  • Whether or not the Court of Appeals erred in sustaining the trial court’s decision that petitioners have waived their immunity from suit by using as its basis the abovementioned provision in the Maintenance Agreement. YES
Held:
  • International law recognizes sovereign immunity, derived from principles of independence and equality of states. The "restrictive theory" limits immunity to public acts or jure imperii, not private acts or jure gestionis.
  • Cited examples:
    • act jure imperii—
      • conduct of public bidding for the repair of a wharf at a United States Naval Station
    • act jure gestionis—
      • hiring of a cook in the recreation center catering to American servicemen and the general public at the John Hay Air Station in Baguio City, 
      • bidding for the operation of barber shops in Clark Air Base in Angeles City
  • Test of whether or not it is an act jure imperii or jure gestionis:
    • Is the foreign State engaged in the regular conduct of a business?
    • If not, the particular act or transaction must then be tested by its nature. 
  • The existence alone of a paragraph in a contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from suit. Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary implication. We find no such waiver in this case.
    • Maintenance of diplomatic premises is a sovereign function; hence, the Maintenance Agreement was in pursuit of sovereign activity.

Diplomatic and consular immunities.
  • The law governing diplomatic relations dates back to earliest intercourse between nations. Much of it is customary law. 
  • Official representatives of a state are given immunities and privileges when they are within the territory of another state. 
    • The immunities and privileges they enjoy are personal in the sense that they benefit the person. 
    • But the purpose of the immunities given them is functional, that is, to enable them to perform their functions properly. 
  • On the part of the receiving state there lie certain obligations to protect the representative and his property and office. 
    • The law on this subject is very important because of the reliance states place on their representatives in dealing with other states.
Diplomatic immunities. 
  • Diplomats are concerned with the political relations of states. 
  • The codification of the law on the subject may be found in the Vienna Convention on Diplomatic Relations (1961). 
  • The diplomatic representatives who can enjoy immunities in varying degrees are enumerated in Article I:
Article I 
For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
  1. head of the mission 
    • is the person charged by the sending State with the duty of acting in that capacity;
  2. members of the mission
    • are the head of the mission and the members of the staff of the mission;
  3. members of the staff of the mission
    • are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission; 
  4. members of the diplomatic staff
    • are the members of the staff of the mission having diplomatic rank; 
  5. diplomatic agent
    • is the head of the mission or a member of the diplomatic staff of the mission;
  6. members of the administrative and technical staff
    • are the members of the staff of the mission employed in the administrative and technical service of the mission; 
  7. members of the service staff
    • are the members of the staff of the mission in the domestic service of the mission; 
  8. private servant 
    • is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State; 
  9. premises of the mission
    • are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.

  • The functions of the diplomatic mission are enumerated in Article 3:
  1. representing the sending State in the receiving State;
  2. protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
  3. negotiating with the Government of the receiving State; 
  4. ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; 
  5. promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations
  • Diplomatic relations between states are purely by mutual consent. 
  • Before the head of mission is sent to the receiving state, an agreement must first be obtained. 
  • The receiving state is under no obligation to give reasons for refusing an agreement. (Art. 4) 
  • Moreover, 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.” (Art. 9). 
  • The following are some of the rights and privileges of the diplomatic mission:

Article 22 
  1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 
  2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 
  3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23 
  1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
  2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission. 

Article 24 
  • The archives and documents of the mission shall be inviolable at any time and wherever they may be. 

Article 27
  1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State. 
  2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
  3. The diplomatic bag shall not be opened or detained.
  4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
  5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.
  6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. 
  7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
Article 29 
  • 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. 
Article 30 
  1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
  2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability. 

Article 31
  1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: 
    • (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it 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.

Article 32
  1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. 
  2. Waiver must always be express. 
  3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. 
  4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary. 
Article 33
  1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
  2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition: 
    • (a) that they are not nationals of or permanently resident in the receiving State; and
    • (b) that they are covered by the social security provisions which may be in force in the sending State or a third State. 
  3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. 
  4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State. 
  5. The provisions of this Article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future. 
Article 34 
  • A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
    • (a) indirect taxes of a kind which are normally incorporated in the price of goods or services; 
    • (b) dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; 
    • (c) estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39; 
    • (d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State; 
    • (e) charges levied for specific services rendered; 
    • (f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.

Article 36 
  1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on: 
    • (a) articles for the official use of the mission;
    • (b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. 
  2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

Article 37 
  1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36. 
  2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation. 
  3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33. 
  4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. 

Article 38
  1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
  2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. 
Article 39
  1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
  2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

  • Finally, “it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state.” (Art. 41) 
  • Nor may they “practice for personal profit any professional or commercial activity” in the receiving state. (Art. 42)

Consuls and consular immunities.
  • Consuls are not concerned with political matters. 
  • They attend rather to administrative and economic issues such as the issuance of visas. 
  • The codification of the law on consular relations may be found in the Vienna Convention on Consular Relations which entered into force in 1967. 
  • Some of the more important provisions are the following:
Article 5. Consular Functions
  • Consular functions consist in: 
  1. 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; 
  2. 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;
  3. 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; 
  4. 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;
  5. helping and assisting nationals, both individuals and bodies corporate, of the sending State; 
  6. 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; 
  7. 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; 
  8. 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; 
  9. 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; 
  10. 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;
  11. 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;
  12.  extending assistance to vessels and aircraft mentioned in sub-paragraph (k) 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; 
  13. 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.
  • The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur. 
  • There is no prescribed form, but without it, he may not enter upon his duties. 
  • 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. 
  • The receiving state has the duty to protect the consular premises, archives and interests of the sending state. (Arts. 27, 31, 32, 33) 
  • The receiving state must insure the unimpeded functioning of the consular offices.
Article 34. 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.
Article 35. Freedom of Communication
  1. 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. However, the consular post may install and use a wireless transmitter only with the consent of the receiving State. 
  2. The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.
  3. The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorities of the receiving State have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4 of this Article, they may request that the bag be opened in their presence by an authorized representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.
  4. The packages constituting the consular bag shall bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use. 
Article 36. Communication and Contact with Nationals of the Sending State
  1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
    • (a) 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; 
    • (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
    • consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
Article 41. 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. 
Article 42. 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. 
Article 43. Immunity from Jurisdiction
  1. 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. 
  2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either: 
    • (a) 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 
    • (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.
Article 44. 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.
Article 45. 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.
  • Diplomatic and consular immunities were the subject in the case of United States v. Tehran.
US Diplomatic and Consular Staff in Iran Case:

Facts: 

  • In 1979, Iranian students seized the US Embassy in Tehran and several consulates in other cities.
  • Iranian authorities failed to protect the Embassy and appeared to support the students' actions.
  • More than 50 US nationals, primarily diplomatic and consular staff, were held captive for 444 days.
  • The International Court of Justice (ICJ) issued provisional measures against Iran.
  • The US sought a declaration from the ICJ stating that Iran violated the Vienna Conventions.
Issues:
  • Whether Iran was in violation of its international obligations. YES
Held:
  • The Iranian authorities were aware of their obligations to protect the US Embassy and consulates but failed to act, breaching their obligations under international law.
  • Iran's continuation of the occupation and detention of embassy staff violated the Vienna Conventions even more seriously.
  • Iran did not employ diplomatic remedies but resorted to coercive action against the US Embassy and staff.

Immunity of International Organizations. 
  • The immunities of international organizations treated in Chapter 6. 

The Act of State Doctrine. 
  • Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. 
  • The act of state doctrine arose from a series of cases in the United States where the issue was whether United States courts could consider the validity of acts of a foreign state alleged to be in violation of international law. 
  • The doctrine was first stated in Underhill v. Hernandez 168 U.S. 250 (1897), November 29, 1897.

Facts: 

  • The 1892 Revolution in Venezuela led to General Hernandez assuming leadership after defeating the legitimate government's army.
  • George F. Underhill, a US citizen, provided a waterworks system and machinery repairs for Bolivar under a government contract.
  • Underhill requested a passport to leave the city from Gen. Hernandez, who refused, aiming to coerce Underhill into operating the waterworks and repair works for the benefit of the community and the revolutionaries.
  • After eventually being allowed to leave, Underhill sued in the United States for damages due to the denial of his permit to leave, alleged confinement to his house, and assaults by soldiers of Hernandez's army.
  • The US court applied the "act of state doctrine" to deny Underhill's plea, stating that it couldn't review acts of foreign governments within their own territory, emphasizing the separation between judicial and political branches in handling such matters.
Issues:
  • Whether the acts of the government of Venezuela can be subject of review of a foreign court. NO
Held: 
  • In denying the plea of Underhill, the U.S. court ruled with what is now known as the  “act of state doctrine.”
  • Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

  • The doctrine is similar to but different from the doctrine of sovereign immunity. 
  • What underlies it was explained later in Banco National de Cuba v. Sabbatinos which characterized it as a rule not of international law but of judicial restraint in domestic law whereby courts refrain from making decisions in deference to the executive who is the principal architect of foreign relations. 
    • The Court said:
      • The act of state doctrine does, however, have “constitutional” underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.
  • The act of state doctrine was again taken up in Alfred Dunhill of London, Inc. v. Cuba. 

Facts: 

  • Alfred Dunhill mistakenly paid funds for cigars sold to them by certain expropriated Cuban cigar businesses.
  • Cuba failed to return to Dunhill the funds mistakenly paid by Dunhill.
Issues:
  • Whether the failure of Cuba to return to Dunhill funds mistakenly paid was an “act of state” by Cuba precluding an affirmative judgment against respondents. NO
Held: 
  • The decision of the Court limited the scope of the act of state doctrine:
  • If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors’ adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. 
  • Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals... 
  • It is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments.
  • Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities.
  • Further refinement was made in Kirkpatrick Co. v. Environmental Tectonics Corp.
Kirkpatrick Co. v. Environmental Tectonics Corp  493 U.S. 400 (1990)

Facts: 

  • Nigerian government contracted Kirkpatrick for an aeromedical center at Kaduna Air Force Base.
  • Environmental Tectonics Corp., an unsuccessful bidder, discovered Kirkpatrick's bribery to win the contract.
  • Environmental Tectonics reported the bribery to Nigerian Air Force and the US Embassy, leading to a FBI investigation.
  • Kirkpatrick was charged and pleaded guilty for Foreign Corrupt Practices Act violations.
  • Environmental Tectonics sued Kirkpatrick and others under Racketeer Influenced and Corrupt Organizations Act seeking damages.
  • Defendants claimed dismissal under the act of state doctrine.
Issues:
  • Whether the act of state doctrine is applicable where the validity of a foreign government act is not in issue. NO
Held: 
  • The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. 
  • That doctrine has no application to the present case because the validity of a foreign sovereign act is not at issue.

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