DIPLOMATIC IMMUNITYorIMPUNITY?

PS153 Term Paper

SIAPO, Gian / SONEJA, Mary Salve / VILLANUEVA, Danessa /YASAY, Joanna Andrea A.

DIPLOMATIC IMMUNITY OR DIPLOMATIC IMPUNITY?

ABSTRACT

Diplomatic immunity is the legitimate excuse that could exempt any individual from civil or criminal legal prosecution or proceedings despite any offense that they have committed. It is established as a customary diplomatic law of international law. . As formerly mentioned, from the moment a foreign diplomat has invoked its diplomatic immunity, the foreign office or receiving state shall recognize such immunity through their exemption from any administrative, civil and criminal proceedings - provided of course that the offense invoked with immunity has been corroborated to have been committed during the performance or execution of their function as diplomats. However, during the past decade, evidence of petty or minor offenses such as failure to pay parking tickets, non-compliance to traffic regulations, and of serious or major offenses such as rape, murder, and even slavery has accumulated - bringing to our attention the abuse of this immunity. Diplomatic immunity as the sincere manifestation of the international law is in fact capable of turning into a compromising and threatening impunity. And this is where this study shall focus on.

This study shall first, provide the roots and background of diplomatic immunity in the history of international relations and affairs. Pertinent international laws and conventions that shall effectively determine and describe the nature and limitations of diplomatic immunity will be included.

The objective is to account for the different kinds of offenses or crimes that some diplomats committed in the country and cite cases wherein immunity was recognized or not. Furthermore, this study also aims to problematize through the different cases or court decisions, the manner in drawing the line between minor and major offenses that can be invoked with diplomatic immunity, to deduce the existence or prevalence of impunity especially in instances wherein the grant of immunity supersedes not only the respect for the domestic law but the protection of human rights.

And as the last part of this study, it is of great significance to determine the availability of judicial remedies that are the sole agents in the guarantee of the protection of human rights that highly matter in times when diplomatic immunity turns out to be a form of impunity.

OUTLINE

I. IntroductionII. Historical Development of Diplomatic Immunity

A. Dawn of Modern DiplomacyB. “Statist” Doctrine of ImmunityC. 20th Century onwards and Vienna Convention of 1961

III. From Diplomatic Immunity to Impunity- Philippine Court CasesA. Cases when Immunity was granted (being a political question)

1. Republic of Indonesia v. Vinzon (2003)2. DFA vs. NLRC (1996)3. Lasco vs. United Nations (1995)4. International Catholic Migration Commission v. Calleja (1990)

B. Cases when Immunity was denied1. CNMEG vs. Santamaria et.al (2012)2. Shauf vs. Court of Appeals (1990)3. Liang vs. People (2001)

IV. Waive Immunity -Waive Impunity

V. Conclusion

Gian Zechariah Siapo

2010-46137

Diplomatic immunity on the principles of impunity

The dawn of modern diplomacy and immunity

A broad and civilizations-old definition of diplomacy as stated by Louis Nigro Jr. would be “a peaceful dialogue and interaction between political units.”1 At its first steps from Antiquity to the medieval period, diplomatic engagements consists of short-term, specific and occasional missions by rather ‘untrained’ envoys, serving with an ambiguous perspective that is certainly not much on the protection of the sending sovereign or even of themselves as agents of it.2 Diplomacy was not yet established as an enduring tool for political power; it was reserved and on such occasions, the untrained diplomats are more of hostages than negotiators to the receiving sovereign.3

Yet, at the light of the more territorial Italian state and its flourish in the Renaissance period, diplomacy has been established as an enduring and crucial element/institution for political power. 4With the Italians on their respective city-states, anxious of the anarchy that lies beyond their borders then, they have crafted and resorted to mechanisms though not necessarily legitimate, that will always be for the preservation of the statist interest (or will be later called by Cardinal Richelieu as raison d’état). There was a perceived need for continuous dialogue and intelligence gathering on other city-states. This led to the conception of diplomatic immunity – the ambassador having the power to “continuously and seamlessly” conduct negotiations and be the “eye and ear” for the sending state.5

Immunity, impunity and the statist doctrine

1 Nigro, L. J. Jr. Theory and practice of modern diplomacy: origins and development to 1914.2 Ibid. and also on Fendrick, R. J. Diplomacy as an instrument of national power.3 Ibid.4 Ibid.5 Ibid. with the last phrase quoting from Guicciardini in 1495.

Much of the original doctrine and especially the initial theory of modern diplomacy are credited to Niccolo Machiavelli, a statesman and diplomat from one of Italy’s then-powerful city-states, Florence. Machiavelli stressed that in the anarchic world order, the new states as the players have the need to be organized for war (as wars will be frequent and therefore inevitable) and “continuous professional diplomacy” in order for it to protect and advance its own interests. And on this purpose, he stated that the conduct should be as “the end justifies the means” – regardless of any moral value, an act of the sovereign or its agents is good as long it is for the preservation of the state and its interests.6

As the Italian concept of state and sovereign conduct in an anarchic world order further flourished throughout Europe and resulted to the Peace of Westphalia in 1648, principle of equality and independence among states – par in parem non habet imperium, was established.7 The same principle backed the sovereign’s and diplomatic immunity from jurisdiction as the embodiment of the state.8

From the prior paragraphs, it is clear that the practice then of the so-called “modern diplomacy” as guided by such principles and customs, is highly statist and bureaucratic. Immunity from jurisdiction of a diplomatic mission on the receiving state was first established to enable ambassadors to act accordingly only as ordered by the sovereign of the sending state. To add is that secrecy was then a normal conduct in negotiations, treaties, and other dialogues; again the reason for such is that to protect matters of national interest. But to Fendrick, the latter is only due to the ‘non-democratic nature’ of states prior to the French and American revolutions.9 Nevertheless in all issues, it is still clear that a diplomatic mission can only be held accountable by the sovereign of the sending state alone.

Twentieth century onwards and immunity

In the age of democratization of many states, the replacement of most monarchs as sovereign, establishment of international organizations and even judicial bodies, and moreover technological innovations, new ideas in the conduct of diplomacy were introduced. One of such is the so-called “public diplomacy” – transactions are no longer done housed and hidden on foreign ministries; but positions are rather mediated by the diplomat to the informed public of the receiving state.10

Still, diplomatic immunity remains ‘intact’; justified by a functional doctrine of the international customary law.11 The immunity is given both for the benefit of the members of the diplomatic mission (ratione personae) and for them to perform their functions properly (ratione materia); and that is to “protect and promote civilized international relations.”12

6 Ibid. with quote from Machiavelli in The Prince.7 Pierot, E. (1986) Escaping diplomatic impunity – the case for diplomatic law reform; Bernas, J. Introduction to Public International Law.8 Pierot (2010) pp. 2-39 Fendrick, R. J. Diplomacy as an instrument of national power.10 Sucharipa, E. 21st Century Diplomacy.11 Pierot (2010) on p. 312 Bernas, J.; Pierot (2010) on p. 3

The Vienna Conventions on Diplomatic Relations in 1961 is quite clear to provide inviolability of the members of the diplomatic mission from arrest or detention (Article 29), and from criminal, civil, and administrative jurisdiction of the receiving state (Article 31). It also provides inviolability of mission premises (Article 22), documents (Article 24), and the ‘diplomatic bag’ (Article 27).13 But the same Convention on its Article 41 also compels the members of the mission to “respect the laws and regulations” of the receiving state. As mentioned by E. Pierot, “the receiving state may request the sending state to waive a member’s right to immunity if the latter is wanted to be subjected to criminal or civil action by the receiving state.” In the extreme cases, the receiving state may declare such member as a persona non grata. However, that is not the case most of the time.14

There were initiatives to provide exceptions even by the formulation of the original draft of the Convention itself – such instance is by the International Law Commission on its proposal to admit entry to mission premises (on Article 22) at “an extreme emergency in order to eliminate, a grave and eminent danger to human life, public health or property or to safeguard the security of the State.”15 However they arrived at the conclusion that listing exceptions “might easily lead to the erosion of the principle of inviolability”16

Another instance is the recommendation of the Parliamentary Assembly of the Council of Europe to amend the Convention “in order to waive diplomatic immunity be waived for all offenses committed in private life”.17 However, there is the question of how a line can be drawn between public and private functions. Another issue is that such amendment might be subjected to “abuse from politically motivated false accusations”18

Conclusion for this chapter

Clearly, the playing field of diplomacy is hardly legal and largely political; the customary doctrine of diplomatic immunity that remained is a testament to that claim. Yet, even the quest for accountability can never be bounded on standing legal institutions; for institutions themselves can also be tools for political repression and to legitimize impunity. Such quest is always a political struggle; and it is up to the sovereign, in the case of democratic states – the people, to challenge even the customary rules of international law which could be used by offending foreign state agents to avert punishment.

BibliographyBernas, J. Introduction to Public International Law.

13 Bernas, J.14 Pierot (2010) p. 415 Herdegen, M. (1986). The abuse of diplomatic privileges and countermeasures not covered by the Vienna Convention on Diplomatic Relations - some observations in the light of recent British experience.16 ^ Ibid.17 Pierot (2010) p. 918 ^ Ibid.

Fendrick, R. J. Diplomacy as an instrument of national power.

Herdegen, M. (1986). The abuse of diplomatic privileges and countermeasures not covered by the Vienna Convention on Diplomatic Relations - some observations in the light of recent British experience.

Nigro, L. J. Theory and practice of modern diplomacy: origins and development to 1914.

Pierot, E. (2010). Escaping diplomatic immunity - the case for diplomatic law reform.

Sucharipa, E. 21st Century Diplomacy.

Villanueva, Mary Danessa R.

2010-43796

Touch me not: Immunity from Jurisdiction

There are different dimensions in addressing the conundrums of immunity in the international sense. Immunity from jurisdiction transcends several factors depending on the acceptance of a state party to international

convention regarding diplomatic immunity19.The clash between municipal and international law has brought about questions of where jurisdiction lies. In the Philippine context20, as indicated in its 1987 Constitution, Article II provides that generally accepted principles of customary international law shall be adopted as part of the law of the land (Bernas, 2009), hence the concern of diplomatic law as a means for practicality.

Granting diplomatic immunity may be stemmed from the concept of state immunity. In this sense, a state may not be sued without its consent21, prior to the principle of equality of states: par in parem non habet imperium22 (Bernas, 2009). In the case of Republic of Indonesia v. Vinzon23, state immunity was granted by the RTC of Makati prior to the termination of agreement24 characterized as arbitrary and unlawful by the respondent, James Vinzon25. The respondent then claims through an Opposition26 that the petitioner has expressly waived its immunity from suit based from a provision in the Maintenance agreement:

“Any legal action arising out of this Maintenance Agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines.”,

nonetheless such agreement is found not necessarily a waiver of state immunity from suit, particularly that the language provided in the provision does not entail the subject of state immunity. In addition to such, the establishment of diplomatic mission by the Republic of Indonesia implies governmental functions, therefore the agreement by both parties constitute to the concept of jure imperri27 as opposed to jure gestionis28, all the more reason for granting state immunity.

On the other hand, the case of international organizations enjoying diplomatic immunity is based on the need for the effective exercise of their

19 Vienna Convention on Diplomatic Relations (1961)20 The Philippines is a signatory to the Vienna Convention on Diplomatic Relations and has duly ratified21 Based on Philippine Constitution as well as customary international law followed by other states22 equals do not have authority over one another23 G.R. No. 154705, June 26, 200324 Maintenance agreement which stated that the respondent shall maintain specified equipment (air conditioning units, water heaters, etc) in the Embassy buildings (main and annex) as well as the Ambassador’s residence25 Sole proprietor of Vinzon Trade and Services26 against the petitioner’s Motion to Dismiss noting that the Republic of Indonesia as a foreign sovereign cannot be subjected to suit 27 Action in pursuit of a sovereign activity28 Private, commercial and propriety acts

functions (Bernas, 2009). According to Department of Foreign Affairs v. National Labor Relations Board29, the question arises on the issue of assuming jurisdiction by the National Labor Relations Commission over a case of illegal dismissal against the Asian Development Bank. ADB claims that the issue of dismissal should be deemed void because of the immunity enjoyed by the Bank according to its Charter, Article 50(1):

“The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy or sell or underwrite the sale of securities.”

as well as similar provisions found in the Headquarters Agreement30, Section 5. In this case, these charter and agreement ultimately provide a sense of commitment voluntarily assumed by the Philippines, and should therefore must be respected. As a result, ADB enjoys immunity from the municipal law and is out of reach of local legal jurisdiction.

The same scenario is provided in the cases of Lasco, et.al v. United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE)31 pertaining also to the petitioners’ illegal dismissal; and International Catholic Migration Commission v. Calleja32 in relation to the pursuance of Certification Election33 by the respondent among the petitioner’s rank and file members. As a similar result, the respondents claimed that there is no jurisdiction over its personality as international organizations since such enjoy diplomatic immunity.

The reason for the granting of immunity over international organizations rests on the effectiveness in implementing their functions. Binds and cracks imposed by the local laws of the Philippines may interfere or even influence in carrying out their responsibilities and may ultimately alter in the results of their functions as well as their policies as international organizations.

29 G.R. No. 113191, September 18, 199630 Signed between the Government of the Republic of the Philippines and ADB31 G.R. Nos. 109095-109107, February 23, 199532 G.R. No. 85750, September 28, 199033 Certification Election means the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining.

BibliographyBernas, J. G. (2009). Introdution to public international law. Manila: Rex Book Store.

MacClanahan, J. V. (1989). Diplomatic Immunity: principles, practices, problems. New York: JSTOR

Websites:

G.R. No. 154705, taken September 21, 2013 from http://sc.judiciary.gov.ph/jurisprudence/2003/jun2003/154705.htm

G.R. No. 113191, taken September 22, 2013 from http://sc.judiciary.gov.ph/jurisprudence/1996/sept1996/113191.htm

G.R. Nos. 109095-109107, taken September 22, 2013 from http://www.lawphil.net/judjuris/juri1995/feb1995/gr_109095_109107_1995.html

G.R. No. 85750, taken September 24, 2013 from http://www.lawphil.net/judjuris/juri1990/sep1990/gr_85750_1990.html

SONEJA, Mary Salve T.

2010-36072

Not too fast to Impunity:

Philippine Cases denying invoked Diplomatic Immunity

Evidently, as provided in the first part of this paper34, diplomatic immunity as a manifestation of the international law-has not only casted a long history dating back from the 17th Century, but has also been considered a tradition and customary international law. Its old age in the history of international law brought some internal changes through its codification in the Vienna Convention although original and essential principles remain unaltered35. However, aside from being a positive manifestation of international relations among states, social problems due to this immunity are surfacing36. From petty illegal actions to serious and illegal and inhumane offenses, the abuse of this immunity has now become occasional and prevalent37. Diplomats now commit actions with the immunity serving as their license to get away and escape from the implications and legal liabilities. This issue of immunity-turned-into-impunity has now focused the attention of the scholars and the public to question the extent the cloak of diplomatic immunity covers38.

To complement with the cases cited in the previous section of this paper39, and to sufficiently dissect this issue and provide background of diplomatic immunity in the context of the Philippines, cases decided with diplomatic immunity being denied by the court will herein be presented. Jurisprudence shall aid in providing the clear scope of diplomatic immunity as far as offenses against diplomats filed in courts are concerned. In other words, these cases shall somehow serve as judicial remedy in this impunity as immunity invoked by diplomats in defense of the complaints against them are denied. Moreover, the grounds on which the court adjudicated and determined its decision in denying immunity as the line of defense of

34 Historical development of diplomatic immunity35 Vark, R. (2003) Personal Inviolability and Diplomatic Immunity in Respect of Serious Crime. Juridica International VIII, pp.110-11136 Ibid. 37 Ibid. 38 Bureau of Diplomatic Security (2011), Diplomatic and Consular Immunity:Guidelines for Law Enforcement and Judicial Authorities, Department of State Publication 10524, p.239 Touch me Not: Immunity from Jurisdiction- cases where immunity invoked was recognized by court

diplomats shall give light on the nature and specifications of diplomatic immunity.

Diplomatic Immunity as Political Question

Diplomatic immunity is argued to be a matter solely vested on the executive to be determined equating it to be a political question and a controversy wherein the court therefore cannot administer justice. This is the issue raised on the case of Liang v. People of the Philippines (2001)40. Jeffrey Liang41 was originally charged with two accounts of grave oral defamation by his co-worker Joyce Cabal42.Petitioner in this case is filing for a motion for reconsideration on the decision against him last January 28, 200043 claiming that the court erred in denying the petition as he is covered by diplomatic immunity44 determined by the executive, thus, making it conclusive to the court. Concededly, vesting a person or individual with this immunity insofar as the pertinent documentations and certifications are concerned to prove this privilege is within the prerogative of the executive45, or the Department of Foreign Affairs in this case. The hands of the court are virtually tied in such matters. As such, the petitioner in this case cited various cases46 decided here in the Philippines where the diplomatic immunity granted by the executive was conclusive to the court precluding further proceedings that:

“It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations.  Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be prosecuted,”

However, as one of the ramifications of the misinterpretation of both the states and diplomats in some of the essential provisions of the Vienna Convention, diplomats themselves occasionally misinterpret the extent or cloak of their immunity47.The court averted that Liang as an international

40 G.R. No. 125865, March 26, 200141 working in Asian Development Bank (ADB) as an economist42 Criminal Cases Nos. 53170 & 53171 of the Metropolitan Trial Court of Mandaluyong City, Branch 6043 Petition for review by Liang on SCA Case No. 743 of the Regional Trial Court of Pasig City, Branch 160 was denied by SC44 Petitioner provided documents from Department of Foreign Affairs to prove immunity45 J.L. Brierly, “The Law of Nations,” Oxford University Press, 6th Edition, 1963, p. 24446 WHO vs. Aquino (972); International Catholic Migration Commission vs. Calleja (1990); The Holy See vs. Rosario, Jr. (1994); Lasco vs. United Nations (1995); and DFA vs. NLRC (1996) 47 Vark, R. (2003), p.110

officer of Asian Development Bank was vested with official acts immunity48 which is completely different from the absolute immunity49 of international organizations. It is important to note that there exists a degree of immunity entitled to diplomats depending or based on their categories such as being either the head of the diplomatic mission or being only a member50. And this was respectively observed by the court in this case:

“A perusal of the immunities provisions in various international conventions and agreements will show that the nature and degree of immunities vary depending on who the recipient is.”

As such, the immunity vested by the executive to Liang51 only goes as far as his public official acts are concerned and not his private acts to which he was being charged. Therefore, notwithstanding the absence of waiver of immunity, the petitioner was still decided to be subject to the jurisdiction of the local court, denying his petition as the court’s final decision.

Diplomatic Immunity- Limited to Functions

From the previous section of this paper it was also established that diplomatic immunity may be anchored from the concept of state immunity. As it was also shown that the cases where the court recognized the diplomatic immunity invoked were by virtue of state immunity. However, diplomatic immunity as a state immunity is proved to be evolving in limiting such privilege to the functions of the individuals or persons vested by such52. It is immunity from suit that is limited to the concept of jure imperii53 and cannot be extended to jure gestionis54, making the distinction between the two highly significant to determine if an act shall be covered by the immunity55.

Unlike the case of Republic of Indonesia v. Vinzon where the immunity was recognized by virtue of state immunity in jure imperii, the following case of

48 Immunity only with respect to acts performed in their official capacity, private acts are subject to local courts jurisdiction49 Immunity to both acts performed in official capacity and private acts50 Bureau of Diplomatic Security (2011),p.1051 As an official or employee of the ADB and not as an international organization head52 JUSMAG v. NLRC (1994)53 Sovereign, official or governmental activities54 Commercial, private and proprietary acts55 Moutzouris, M. (2009) Sending and Receiving:Immunity sought by Diplomats Committing Criminal Offenses, Rhodes University, p.40

Shauf v. CA (1990)56 distinguished an act as in jure gestionis, denying the immunity invoked. This case is a petition for review on certiorari on the decision57 rendered by the Court of Appeals on the case of Loida Shauf58 v. Don Detwiler59 & Anthony Persi60 regarding damages due to discriminatory acts. In the ponencia of Justice Regalado in this case, it is relevant on how the discriminatory act accused against Detwiler and Persi was respectively considered to be a jure gestionis, therefore denying the invoked state immunity:

“The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.”

In other words, the discriminating act61 which was accused against Detwiler and Persi was corroborated to be unconstitutional62 and illegal which were significant indicators that such activity is jure gestionis. For such illegal acts cannot be accounted to be performed in their official capacity. This serves as an important standard in drawing the line between what is to be considered a private and an official act. This functional approach that limits diplomatic immunity in functional necessity or activities during official duties is in fact embodied in the introduction of Vienna Convention of both the 1961 and 1963 and the UN International Immunities63.

Another case which was also decided by court on jure gestionis, highlights the theory behind this diplomatic immunity being limited in functions. The metamorphosis of diplomatic immunity as manifested in its limitation to the

56 G.R. No. 90314, November 27, 199057 CA-GR No.17932 (1989)-complaint for damages of Shauf due to discriminatory acts was dismissed58 Guidance Counselor at Clark Air Base; Filipino by origin married to an American US Air Force member59 Civilian personnel officer60 Education Director assigned to hire new Guidance Counselor GS-1710-961 Failure to hire Shauf despite her qualifications in the vacant Guidance Counselor GS-1710-9 of Clark Air Base due to her race and origin62 Violation of the Article II (1)(b) of 1987 Constitution63 Moutzouris, M. (2009),Chapter 2- p. 2

functional approach is also attributed to the restrictive theory64. As it shows in the case of China National Machinery & Equipment Corp. (CNMEG) v. Santamaria et.al (2012)65 where, in order to determine if the sovereign immunity invoked by CNMEG should be granted, it was considered an issue by the court that:

“Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved – whether the entity claiming immunity performs governmental, as opposed to proprietary, functions.”

This approach of the court of limiting the immunity on the functional capacity of the petitioner is also grounded on the historical inception of restrictive theory that well applies on the nature of this case

“The complexity of relationships between sovereign states, brought about by their increasing commercial activities, mothered a more restrictive application of the doctrine [sovereign immunity],“

as the nature of the case involves a commercial activity, the court deemed it necessary to determine if the nature of the contract of CNMEG with North Luzon Rail Transit System Corporation66 was in behalf of the of the government of China or was done as a private business act. And through the pertinent documents admitted in court67, CNMEG failed to corroborate that the contract was of their governmental function representing the government of China, therefore the sovereign immunity of CNMEG cannot be invoked subsequently denying this petition68 as the court determined the contract with finality to be in a nature of jure gestionis. This restrictive theory provides another standard in determining the nature of diplomatic activities in order to ascertain if it is bound by the immunity vested upon them, most importantly on cases where the subjects are the foreign business or commercial groups or entity.

64 This theory was brought about by the US Department of State in a circular to all Missions in 1984-limiting immunity to official functions65 G.R. No.185572, February 7, 201266To conduct the North Luzon Railways Project- construction of railways from Caloocan to Malolos67 Memorandum of Understanding dated 14 September 2002; China Ambassador Wang’s Letter dated 1 October 2003; Loan Agreement68 Petition for Review on Certiorari previously decided by Court of Appeals CA-G.R. SP No. 103351 against CNMEG

Conclusion

Diplomatic immunity from criminal jurisdictions is indeed clearly stated in the Vienna Convention of 196169. Unlike the immunity in civil and administrative jurisdictions which are entailed with some exceptions, immunity from criminal jurisdiction remains unqualified and absolute70. However, it also follows that diplomats are also vested with the obligation to respect the laws of the receiving state71 :

“Article 41 (1).Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.72”

It is highly important to remember that this diplomatic immunity in criminal jurisdiction is immunity from suit and NOT legal liabilities73. Meaning, that this immunity from criminal cases is a procedural obstacle, not affecting any underlying substantive liability74. Therefore, if the immunity is established in court unlike the aforementioned cases (where diplomatic immunity was denied as assailed acts of the diplomats were simply not covered by their immunity based on the degree of their immunity and its limitation to their functional or public official acts) it does not make the proceedings null and void although the court shall thereon preclude further proceedings75. The case can still be revived76 once the diplomatic status and immunity was terminated in future events due to any reasons77. Although this is not the predisposition most countries choose due to the principle of reciprocity78. Still, it cannot be neglected that this somehow leaves a morsel of hope in seeking judicial remedies when diplomats go beyond their board and turf in the expense of disrespecting the regulations and laws of the receiving State and in grave instances- violating human rights.

69 Article 31 of the Vienna Convention of 196170 Vark, R. (2003), p.11371 Moutzouris, M. (2009), Chapter 2-p.372 Vienna Convention on Diplomatic Relations of 196173 Sebastian,T. (2011), Diplomatic Immunity versus Harm to Individual: An Attempt from Appraisal, The Practical Lawyer74 ^Ibid.75 Vark, R. (2003), p.11376 Referring to any subsisting action that had to be stayed on the ground of the defendant’s immunity77 Vark, R. (2003), p.11378 Moutzouris, M. (2009),p.116. “…in the event that there is failure to accord privileges and immunities todiplomatic missions or its members it would likely to be met by a countermeasure of the other State.”

BIBLIOGRAPHY

Bureau of Diplomatic Security (2011), Diplomatic and Consular Immunity: Guidelines for Law Enforcement and Judicial Authorities, Department of State Publication 10524

J.L. Brierly, (1963) “The Law of Nations,” Oxford University Press, 6th Edition,

Moutzouris, M. (2009) Sending and Receiving: Immunity sought by Diplomats Committing Criminal Offenses, Rhodes University

Sebastian, T. (2011), Diplomatic Immunity versus Harm to Individual: An Attempt from Appraisal, The Practical Lawyer

Vark, R. (2003) Personal Inviolability and Diplomatic Immunity in Respect of Serious Crime. Juridica International VIII

Vienna Convention on Diplomatic Relations (1961)

WEBSITES

G.R. No. 185572 (2012) taken September 28, 2013 from

http://sc.judiciary.gov.ph/jurisprudence/2012/february2012/185572.htm

G.R. No.90314 (1990) taken September 27, 2013 fromhttp://www.lawphil.net/judjuris1990/gr_90314_1990.html

G.R. No. 125865 (2001) taken September 27, 2013 from http://www.cahnrobles.com/scdecision/jurisprudence2001/mar2001/125865_puno.php

G.R. No. 108813 (1994) taken September 28, 2013 fromhttp://www.lawphil.net/judjuri1994/dec1994/gr_108813_1994.html

Waive ImmunityWaive Impunity

Insofar as the cases cited in this paper to perorate the ability of the court to ascertain the cloak of immunity of diplomats are concerned, charges involved are ranging from breach of contract, oral defamation to discrimination. Admittedly, these cases do not involve grave accounts of criminal act or violations that should further highlight the importance of judicial remedy when diplomats fail to respect and obey domestic laws, more importantly uphold human rights as their immunity continues to serve as an assurance of escaping culpability. And this failure of holding diplomats accountable and legally liable in grave abuse and violation of human rights best manifests itself in the Philippines during the case of the Panamanian diplomat who walked free despite the charge of rape against him. Erick Bairnals Shcks79, the accused diplomat was in the end released from police custody as he was declared persona non grata80 by the Department of Foreign Affairs and was immediately sent back to Panama. 81

Persona non grata

Declaring a diplomat or any of the staff of an envoy persona non grata, is one of the measures a Sending State can resort to once an abuse of diplomatic immunity is perceived82. And it shall follow that once a diplomat is declared persona non grata, the sending State shall either immediately recall the diplomat to his home country or terminate his functions with the 79 member of the administrative and technical staff of the Panamanian Embassy. 80 Article 9….any member of the staff of the mission is not acceptable (Vienna Convention of 1961)81 Santos,T. (2012), PH declares Panamanian diplomat in rape case ‘persona non grata’, Philippine Daily Inquirer82 Moutzouris, M. (2009),p.98

mission- both of which should be immediately decided by the sending State within the maximum of 48 hours83. Interestingly, if the sending State fails to immediately respond to this kind of measure84, the diplomat will be open for jurisdiction and prosecution of the local court85.

This seemingly provides an opening to proceed in the prosecution of the diplomat. However, just in the case of the aforementioned Panamanian diplomat, negotiation and response of the sending State (Panama) in the Philippines like most cases proceed without any delay. Moreover, most countries and States rarely resort to this kind of measure of declaring diplomats persona non grata86.

Prosecute at Home

Another option that any receiving State can consider in pursuing prosecution of a diplomat had the declaration as persona non grata not considered, is to continue the prosecution in the jurisdiction of the sending State.

It should be noted that the immunity from suit of any individual is in essence “territorial.87” In other words, diplomats cannot be sued within the receiving State simply because it is not within the jurisdiction of their local courts88. However, diplomats can definitely be tried on the courts of the sending State89 as in:

“Article 31.Sec.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”90

83 Ibid.84 Should the sending State refuse to remove the individual/diplomat from his duties85 Ibid.86 Pierot, E. (1986) Escaping diplomatic impunity – the case for diplomatic law reform; Bernas, J. Introduction to Public International Law.

87 Vark, R. (2003), p.11488 Ibid.89 Ibid.90 Vienna Convention of 1961

This option does not defeat itself in the aspect that there are some cases which are manifestation of this measure. For one, a French diplomat was tried when he returned to France on the charge of killing his colleague as they were engaged in a violent quarrel during his stay in Angola.91 And another was the case of the criminal proceedings of United States against a head of the mission diplomat in the charge of homicide against him in Equatorial Guinea.92

Still, these serve as only few significant cases as there is so far no progress in countries or States in embracing this initiative due to some problems and complexities this measure entail such as the procedural problem of assuring or securing the appearance of witnesses in the case that shall greatly affect the due process of the case.93 Provided that it poses greater challenge as the case is being conducted in another country which necessitates the recognition and familiarity of their court rules and procedures. 94

Waiver of Immunity

The last option that can be considered to serve as remedy in the abuse of diplomats is to ask the sending State to waive his immunity.95 Basically, once waiver occurs and is achieved, local courts will thereon have the jurisdiction to prosecute the diplomat although being subject to the punishment or execution of judgment will still be another matter as it shall require another waiver.96

Provided that a waiver of immunity shall mean submitting to the local jurisdiction of the receiving State, does this similarly entail that when the sending State charges or files suit against receiving State which is basically

91 Reveu General de Proit International Public 1984 p.674 as cited in Vark, R. (2003)92 United States v. Erdos, US Court of Appeals 1973 as cited in Vark, R. (2003)93 Vark, R. (2003), p.11594 Ibid.95 Ibid. 96Article 32.Sec.4- Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall notbe held to imply waiver of immunity in respect of the execution of the judgement, for which a separatewaiver shall be necessary. (Vienna Convention of 1961)

submitting to the local jurisdiction, isn’t it that waiver of immunity occurred thereon?

Indeed, as it is stated in the Vienna Convention,

“Article 32.Sec-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….”

Such kind of initiation of diplomats shall automatically prevent them from invoking their immunity, which is in another sense a waiver of their immunity, provided of course that it is the sending State who have determined such act since only the sending State is allowed to determine any waiver of immunity.97 However, such waiver of immunity does not lead to the extent of prosecuting the diplomat or agent by the local court on cases other than that which the diplomat initiated proceedings as it is conjugated in the Article 32 Section 3 cited above:

“…shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.”

Waiver of immunity in such case will be limitedly expressed on the proceeding that the diplomat initiated and shall not apply other than such case. 98

BIBLIOGRAPHY

Kay, R.C. (2013), United States v. Deaver: Implied and Express Waivers of /diplomatic Immunity, Maryland Journal of International Law Vol.12, Retrieved October 9, 2013 at

97 Article 32.Sec1-… may be waived by the sending State98 Kay, R.C. (2013), United States v. Deaver: Implied and Express Waivers of /diplomatic Immunity, Maryland Journal of International Law Vol.12,

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1310&context=mjil

Moutzouris, M. (2009) Sending and Receiving: Immunity sought by Diplomats Committing Criminal Offenses, Rhodes University

Pierot, E. (1986) Escaping diplomatic impunity – the case for diplomatic law reform; Bernas, J. Introduction to Public International Law.

Santos,T. (2012), PH declares Panamanian diplomat in rape case ‘persona non grata’, Philippine Daily Inquirer, Retrieved October 9, 2013 at http://globalnation.inquirer.net/36619/ph-declares-panamanian-diplomat-in-rape-case-persona-non-grata

Vark, R. (2003) Personal Inviolability and Diplomatic Immunity in Respect of Serious Crime. Juridica International VIII