Diplomatic Immunity and Territoriality Principle

A few months ago, our PIL professor asked us to review the 2014 Political Law bar exam questions and answer those which fall under the purview of Public International Law course.  Below is what I came up with.  If you have any feedback or opinion as to the accuracy and the way I answered the questions, please feel free to comment on the post.  After all, criticism can be a great teacher.

 

Ambassador Gaylor is State Juvenus’ diplomatic representative to State Hinterlands. During one of his vacations, Ambassador Gaylor decided to experience for himself the sights and sounds of State Paradise, a country known for its beauty and other attractions. While in State Paradise, Ambassador Gaylor was caught in the company of children under suspicious circumstances. He was arrested for violation of the strict anti-pedophilia statute of State Paradise. He claims that he is immune from arrest and incarceration by virtue of his diplomatic immunity. Does the claim of Ambassador Gaylor hold water? (4%)

No, Ambassador Gaylor does not hold any merit in the case.

While it is true that according to the Diplomatic Convention, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state, it is subject to the following exceptions: 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 an 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.

The third exception applies in the case. When Ambassador Gaylor was caught, he was not in the process of exercising his official functions; he was merely on vacation and was taking a stroll, and it just so happened that he was suspiciously caught in the company of children. As such, his diplomatic immunity cannot be invoked in this case.

 

Alienmae is a foreign tourist. She was asked certain questions in regard to a complaint that was filed against her by someone who claimed to have been defrauded by her. Alienmae answered all the questions asked, except in regard to some matters in which she invoked her right against self-incrimination. When she was pressed to elucidate, she said that the questions being asked might tend to elicit incriminating answers insofar as her home state is concerned. Could Alienmae invoke the right against self-incrimination if the fear of incrimination is in regard to her foreign law? (4%)

No. Alienmae cannot invoke her right against self-incrimination even if the fear of incrimination is in regard to her foreign law.

Under the territoriality principle, the general rule is that a state has jurisdiction over all persons and property within its territory. The jurisdiction of the nation within its own territory is necessary, exclusive, and absolute. However, the are a few exceptions on when a state cannot exercise jurisdiction even within its own territory, to wit: 1) foreign states, head of states, diplomatic representatives, and consults to a certain degree; 2) foreign state property; 3) acts of state; 4) foreign merchant vessels exercising rights of innocent passage or arrival under stress; 5) foreign armies passing through or stationed in its territories with its permission; and 6) such other persons or property, including organisations like the United Nations, over which it may, by agreement, waive jurisdiction.

Seeing that the circumstances surrounding Alienmae do not fall under those exceptions, that she is a foreign tourist who received a complaint for fraud, such principle of territoriality can be exercised by the State to get the information it needs to proceed with the case.

Extradition and Deportation

A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory.  The act of extraditing amounts to a “delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice.” As it is an act of “surrender” of an individual found in a sovereign State to another State which demands his surrender , an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not imposed an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State’s demand, in accordance with the requested State’s own interests.

The principles of international law recognize no right of extradition apart from that arising from treaty. Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert them to the State where their offenses were committed, jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition.

Deportation is the expulsion of a person or group of people from a place or country. All countries reserve the right to deport foreigners, even those who are longtime residents. In general, foreigners who have committed serious crimes, entered the country illegally, overstayed and/or broken the conditions of their visa, or otherwise lost their legal status to remain in the country may be administratively removed or deported. In many cases, deportation is done by the government’s executive apparatus, and as such is often subject to a simpler legal process (or none), with reduced or no right to trial, legal representation or appeal due to the subject’s lack of citizenship.

Deportation can also happen within a state, when (for example) an individual or a group of people is forcibly resettled to a different part of the country. If ethnic groups are affected by this, it may also be referred to as population transfer.

Extradition differs from deportation in that extradition is affected at the request of the state of origin whereas deportation is the unilateral act of the local state; extradition is based on offenses generally committed in the state of origin whereas deportation is based on causes arising in the local state; and extradition calls for the return of the fugitive to the state of origin whereas an undesirable alien may be deported to a state other than his own or the state of origin.

References:  Oppenheim, International Law: A Treaties 362-369 (1912). Bishop, International Law 471 (1962). Terlindan v Arnes, 184 U.S. 270, 289 (1902). Factor v. Laubenheimer, 270 U.S. 276 (1933). Fenwick, Cases of International Law 448 (1951). Henckaerts, Mass Expulsion in Modern International Law and Practice, 1995. Cruz, Isagani. International Law, 2000.

Case Brief: The Holy See v. Rosario Jr, et al.

G.R. No. 101949   December 1, 1994

THE HOLY SEE, petitioner,

vs.

THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Facts:

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the Papal Nuncio. Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.

The petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila and registered in the name of petitioner.

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights to the sale to private respondent. In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).

Respondent filed a complained for the annulment of the sale of the land and damages against the petitioner, as represented by the Papal Nuncio and other defendants.

Petitioner answered, saying that the complaint should be dismissed for lack of jurisdiction based on sovereign immunity from suit. Respondent contended that the petitioner “shed off [its] sovereign immunity by entering into the business contract in question.”

Issue:

Whether the petitioner Holy See is immune from suit from its act of entering into a contractual relations centering on the sale of lot to a private person.

Held:

Yes, Holy See is immune from suit in the case at hand.

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered into a commercial transaction for the sale of a parcel of land located in the Philippines.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations.

In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an “international state.”

As expressed in Section 2 of Article II of the 1987 Constitution, the country has adopted the generally accepted principles of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations.

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 right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint.

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.

Case Brief: Tanada v Angara

G.R. No. 118295   May 2, 1997

WIGBERTO E. TAÑADA et al, petitioners,

vs.

EDGARDO ANGARA, et al, respondents.

Facts:

Petitioners prayed for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and for the prohibition of its implementation and enforcement through the release and utilization of public funds, the assignment of public officials and employees, as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith.

They contended that WTO agreement violates the mandate of the 1987 Constitution to “develop a self-reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods” as (1) the WTO requires the Philippines “to place nationals and products of member-countries on the same footing as Filipinos and local products” and (2) that the WTO “intrudes, limits and/or impairs” the constitutional powers of both Congress and the Supreme Court.

Issue:

Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is ‘vested in the Congress of the Philippines.

Held:

No, the WTO agreement does not unduly limit, restrict, and impair the Philippine sovereignty, particularly the legislative power granted by the Philippine Constitution. The Senate was acting in the proper manner when it concurred with the President’s ratification of the agreement.

While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations.” By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith. “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, “Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here.”

The WTO reliance on “most favored nation,” “national treatment,” and “trade without discrimination” cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on “equality and reciprocity,” the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

WHEREFORE, the petition is DISMISSED for lack of merit.