RIGHT OF LEGATION

A. The right of legation. Also known as the right of diplomatic intercourse, this refers
to the right of the State to send and receive diplomatic missions, which enables
States to carry on friendly intercourse. It is not a natural or inherent right, but exists
only by common consent. No legal liability is incurred by the State for refusing to
send or receive diplomatic representatives. Governed by the Vienna Convention on
Diplomatic Relations (1961).
1. Agents of Diplomatic Intercourse.
a) Head of State. He is the embodiment of, and represents, the sovereignty of the
State, and enjoys the right to special protection for his physical safety and the
preservation of his honor and reputation. His quarters, archives, property and
means of transportation are inviolate under the principle of exterritoriality. He is
immune from criminal and civil jurisdiction, except when he himself is the plaintiff,
and is not subject to tax or exchange or currency restrictions. See Mighell v. Sultan
of Johore, supra..
b) The Foreign Office. The actual day-to-day conduct of foreign affairs is usually
entrusted to a Foreign Office, headed by a Secretary or a Minister, who, in proper
cases, may make binding declarations on behalf of his government [Legal Status of
Eastern Greenland].
2. Establishment of Resident Missions. States carry on diplomatic intercourse
through permanent missions established in the capitals of other States. The mission
is composed of:
a) Head of Mission. The Vienna Convention classifies the heads of mission into:
i) Ambassadors or nuncios accredited to Heads of State, and other heads of mission
of equivalent rank;
ii) Envoys, ministers and internuncios, accredited to Heads of State; and
iii) Charges daffaires, accredited to Ministers of Foreign Affairs.
b) Diplomatic Staff, composed of those engaged in diplomatic activities and are
accorded diplomatic rank.
c) Administrative and Technical Staff, consisting of those employed in the
administrative and technical service of the mission.
d) Service Staff, i.e., those engaged in the domestic service of the mission.
3. The Diplomatic Corps. According to custom, all diplomatic envoys accredited to

the same State form a body known as the Diplomatic Corps. The doyen or head of
this body is usually the Papal Nuncio, if there is one, or the oldest ambassador, or, in
the absence of ambassadors, the oldest minister plenipotentiary.
4. Appointment of Envoys. In the Philippines, it is the President who appoints [Sec.
16, Art. VII, Philippine Constitution], sends and instructs the diplomatic and consular
representatives, and his prerogative to determine the assignment of the countrys
diplomatic representatives cannot be questioned [De Perio-Santos v. Macaraig, G.R.
No. 94070, April 10, 1992].
a) The sending State is not absolutely free in the choice of its diplomatic
representatives, especially heads of mission, because the receiving State has the
right to refuse to receive as envoy of another State a person whom it considers
unacceptable. To avoid embarrassment, States resort to an informal inquiry
[enquiry] as to the acceptability of a particular envoy, to which the receiving State
responds with an informal conformity [agrement]. This informal process is known as
agreation.
b) With the informal process concluded, the diplomatic mission then commences
when the envoy presents himself at the receiving State, generally armed with the
following papers: (i) Lettre de creance (letter of credence), with the name, rank and
general character of the mission, and a request for favorable reception and full
credence; (ii) diplomatic passport authorizing his travel; (iii) instructions, which may
include a document of full powers (pleins pouvoirs] authorizing him to negotiate on
extraordinary or special business; and (iv) cipher, or code or secret key, for
communications with his country.
5. Functions and duties. The main functions of a diplomatic mission are: a)
representing the sending State in the receiving State; b) Protecting in the receiving
State the interests of the sending State and its nationals, within the limits allowed
by international law; c) negotiating with the government of the receiving State; d)
ascertaining, by all lawful means, the conditions and developments in the receiving
State and reporting these to the sending State; and e) promoting friendly relations
between the sending State and the receiving State, and developing their economic,
cultural and scientific relations.
6. Diplomatic immunities and privileges. Except as provided below, the following
diplomatic immunities and privileges shall be enjoyed by the envoy and the
members of the diplomatic retinue, i.e., the administrative and technical staff.
a) Personal inviolability. The person of the diplomatic representative is inviolable; he
shall not be liable to any form of arrest or detention. The receiving State shall treat
him with due respect and take all steps to prevent any attack on his person,
freedom or dignity. In the Philippines, R.A. 75 punishes, on the basis of reciprocity,

any person who assaults, strikes, wounds, offers violence to the person of the
ambassador or minister (except if done in self-defense). The UN Convention on the
Prevention and Punishment of Crimes Against Internationally Protected Persons
considers crimes against diplomatic agents as international, not political, in nature.
However, the diplomatic envoy may be arrested temporarily in case of urgent
danger, such as when he commits an act of violence which makes it necessary to
put him under restraint for the purpose of preventing similar acts; but he must be
released and sent home in due time.
b) Inviolability of premises and archives. The premises occupied by a diplomatic
mission, as well as the private residence of the diplomatic agent, are inviolable. The
agents of the receiving State may not enter without the consent of the envoy,
except in extreme cases of necessity, e.g., when the premises are on fire, or where
there is imminent danger that a crime of violence is to be perpetrated in the
premises. Such premises cannot be entered or searched, and neither can the goods,
records and archives be detained by local authorities even under process of law.
i) The service of writs, summons, orders or processes within the premises of the
mission or residence of the envoy is prohibited. Even if a criminal takes refuge
within the premises, the peace officers cannot break into such premises for the
purpose of apprehending him. The fugitive should, however, be surrendered upon
demand by local authorities, except when the right of asylum exists. But if it is the
ambassador himself who requests local police assistance, this privilege cannot be
invoked [Fatemi v. U.S.].
ii) The Vienna Convention provides that the receiving State has the special duty to
protect diplomatic premises against invasion, damage, or any act tending to disrupt
the peace and dignity of the mission. However, in Reyes v. Bagatsing, 125 SCRA
553, the Supreme Court held as invalid the denial by the Mayor of the application
for a permit to hold a public assembly in front of the U.S. Embassy, there being no
showing of a clear and present danger that might arise as a result of such a rally.
iii) 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. Inviolability also extends to the archives, documents,
papers and correspondence of the mission at all times and wherever they may be,
and the receiving State has the duty to respect and protect their confidential
character.
iv) Unless the right is recognized by treaty or by local usage, an envoy should not
permit the premises of his mission or his residence to be used as a place of asylum
for fugitives from justice. An envoy may, however, in the interests of humanity,
afford temporary shelter to persons in imminent peril of their lives, such as those
fleeing from mob violence.

c) Right of official communication. The right of an envoy to communicate with his

government fully and freely is universally recognized. The mission may employ all
appropriate means to send and receive messages, whether ordinary or in cipher, by
any of the usual modes of communication or by means of diplomatic couriers.
Because of this right, the diplomatic pouch and diplomatic couriers shall also enjoy
inviolability.
d) Immunity from local jurisdiction. Under the 1961 Vienna Convention on
Diplomatic Relations, a diplomatic agent shall enjoy immunity from criminal
jurisdiction of the receiving State. Thus, he cannot be arrested, prosecuted and
punished for any offense he may commit, unless his immunity is waived. But
immunity from jurisdiction does not mean exemption from local law; it does not
presuppose a right to violate the laws of the receiving State. Diplomatic privilege
does not import immunity from legal liability but only exemption from local
jurisdiction [Dickinson v. Del Solar, 1 K.B. 376].
i) The diplomatic agent also enjoys immunity from the civil and administrative
jurisdiction of the receiving State, and thus, no civil action of any kind may be
brought against him, even with respect to matters concerning his private life. As a
rule, his properties are not subject to garnishment, seizure for debt, execution and
the like, except in the following cases: a) any real action relating to private
immovable property situated in the territory of the receiving State, unless the envoy
holds it on behalf of the sending State for the purposes of the mission; b) an action
relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending
State; and c) an action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State outside his official functions.
ii) This immunity also means that the diplomatic agent cannot be compelled to
testify, not even by deposition, without the consent of his government, before any
judicial or administrative tribunal in the receiving State.
iii) However, see Minucher v. Court of Appeals, G.R. No. 97765, September 24, 1992,
where the Supreme Court held that the act of private respondent Drug Enforcement
Agent of the U.S. in the frame-up of petitioner was unauthorized and could not be
considered performed in the discharge of official functions, despite a belated
diplomatic note from the US Embassy; thus, suit against the private respondent was
upheld, being a suit against him in his personal and private capacity. See also Shauf
v. Court of Appeals, 191 SCRA 713, where it was held that the immunity does not
protect a public official who commits unauthorized acts, inasmuch as such
unauthorized acts are not acts of State. Accordingly, he may be sued for such
unlawful acts in his private capacity.

iv) Subject to the rule on reciprocity, Republic Act No. 75 declares as void any writ
or process issued out or prosecuted by any person in any court 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 servant of any such ambassador or minister, is arrested or imprisoned, or
his goods or chattels distrained, seized or attached; and penalties are imposed for
violation of this provision. However, this privilege is not granted to: [a]
citizens/inhabitants of the Philippines, where the process is founded upon a debt
contracted before his employment in the diplomatic service; and [b] domestic
servants of the ambassador or minister whose names are not registered with the
Department of Foreign Affairs.
v) As part of the envoys immunity from local jurisdiction, the children born to him
while he possesses diplomatic status are regarded as born in the territory of his
home State.
e) Exemption from taxes and customs duties. Under the Vienna Convention,
diplomatic agents are exempt from all dues and taxes, whether personal or real,
national, regional or municipal, except the following: [i] indirect taxes normally
incorporated in the price of goods or services; [ii] 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 purposes of the mission; [iii] estate, succession
or inheritance taxes levied by the receiving State; [iv] dues and taxes on private
income having its source in the receiving State and capital taxes on investments in
commercial ventures in the receiving State; [v] charges levied for specific services
rendered; and [vi] registration, court or record fees, mortgage dues and stamp duty,
with respect to immovable property.
i) The Vienna Convention also provides for exemption from all customs duties and
taxes of articles for the official use of the mission and those for the personal use of
the envoy or members of the family forming part of his household, including articles
intended for his establishment. Baggage and effects are entitled to free entry and,
normally, exempt from inspection; articles addressed to ambassadors, ministers,
charge daffaires are also exempt from customs inspection.
f) Other privileges, which include freedom of movement and travel in the territory of
the receiving State; exemption from all personal services and military obligations;
the use of the flag and emblem of the sending State on the diplomatic premises and
the residence and means of transport of the head of mission.
7. Duration of immunities/privileges. The privileges are enjoyed by the envoy from
the moment he enters the territory of the receiving State, and shall cease only the
moment he leaves the country, or on expiry of a reasonable time in which to do so;
although with respect to official acts, immunity shall continue indefinitely. These

privileges are available even in transitu, when traveling through a third State on the
way to or from the receiving State.
8. Waiver of immunities. Diplomatic privileges may be waived, but as a rule, the
waiver cannot be made by the individual concerned since such immunities are not
personal to him. Waiver may be made only by the government of the sending State
if it concerns the immunities of the head of mission; in other cases, the waiver may
be made either by the government or by the chief of mission. Waiver of this
privilege, however, does not include waiver of the immunity in respect of the
execution of judgment; a separate waiver for the latter is necessary.
9. Termination of diplomatic mission. The usual modes of terminating official
relations, such as death, resignation, removal or abolition of office, will terminate
the diplomatic mission. Other modes are recall by the sending State, dismissal by
the receiving State, war between the receiving and the sending States, or the
extinction of the State.
B. Consular Relations. Consuls are State agents residing abroad for various purposes
but mainly in the interest of commerce and navigation.
1. Kinds of Consuls:
a) Consules missi are professional and career consuls, and nationals of the
appointing state.
b) Consules electi are selected by the appointing state either from its own citizens
or from among nationals abroad.
2. Ranks:
a) Consul General, who heads several consular districts, or one exceptionally large
consular district.
b) Consul, who takes charge of a small district or town or port
c) Vice Consul, who assists the consul
d) Consular agent, who is usually entrusted with the performance of certain
functions by the consul.
3. Appointment. Two important documents are necessary before the assumption of
consular functions, namely:
a) Letters patent [lettre de provision], which is the letter of appointment or
commission which is transmitted by the sending state to the Secretary of Foreign
Affairs of the country where the consul is to serve; and
b) Exequatur, which is the authorization given to the consul by the sovereign of the

receiving state, allowing him to exercise his function within the territory.
4. Functions. Generally, the functions pertain to commerce and navigation, issuance
of visa (permit to visit his country), and such as are designed to protect nationals of
the appointing state.
5. Immunities and privileges. Under the 1963 Vienna Convention on Consular
Relations, consuls are allowed freedom of communication in cipher or otherwise;
inviolability of archives, but not of the premises where legal processes may be
served and arrests made; exempt from local jurisdiction for offenses committed in
the discharge of official functions, but not other offenses except minor infractions;
exempt from testifying on official communications or on matters pertaining to
consular functions; exempt from taxes, customs duties, military or jury service; and
may display their national flag and emblem in the consulate.
a) These immunities and privileges are also available to the members of the
consular post, their families and their private staff. Waiver of immunities may be
made by the appointing state.
6. Termination of consular mission. Usual modes of terminating official relationship;
withdrawal of the exequatur; extinction of the state; war.
a) Severance of consular relations does not necessarily terminate diplomatic
relations.
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