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.

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