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Article 31(a) of 1961 ViennaConvention on Diplomatic

Relations1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction ofthe 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 theterritory of the receiving State, unless he holds it on behalf of the sendingState 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 thereceiving 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 subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that themeasures 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 himfrom the jurisdiction of the sending State.

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Lateran Treaty The Lateran Treaty was one of the Lateran Pacts of 1929 orLateran Accords,

agreements made in 1929 between the Kingdom of Italy and the Holy See,signed on February 11, 1929 and ratified by the Italian parliament on June 7,1929, ending the "Roman Question". Italy was then under a Fascistgovernment; the succeeding democratic governments have all upheld the

treaty. The Lateran Pacts were in 1947 incorporated into thedemocratic Constitution of Italy.[1]

The pacts consisted of two documents, with four annexes:[2]

A political treaty recognising the full sovereignty of the HolySee in the State of Vatican City, which was thereby established,a document accompanied by the annexes: A plan of the territory of the Vatican City State A list and plans of the buildings with extraterritorial privilege and exemption from

expropriation and taxes A list and plans of the buildings with exemption from expropriation and taxes A financial convention agreed on as a definitive settlement of the claims of the

Holy See following the loss of its territories and property

A concordat regulating relations between the Catholic Church and theItalian state

http://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Holy_Seehttp://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Holy_Seehttp://en.wikipedia.org/wiki/Roman_Questionhttp://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Roman_Questionhttp://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Constitution_of_Italyhttp://en.wikipedia.org/wiki/Lateran_Treatyhttp://en.wikipedia.org/wiki/Constitution_of_Italyhttp://en.wikipedia.org/wiki/Lateran_Treatyhttp://en.wikipedia.org/wiki/Lateran_Treatyhttp://en.wikipedia.org/wiki/Vatican_Cityhttp://en.wikipedia.org/wiki/Vatican_Cityhttp://en.wikipedia.org/wiki/Concordathttp://en.wikipedia.org/wiki/Catholic_Churchhttp://en.wikipedia.org/wiki/Catholic_Churchhttp://en.wikipedia.org/wiki/Concordathttp://en.wikipedia.org/wiki/Vatican_Cityhttp://en.wikipedia.org/wiki/Lateran_Treatyhttp://en.wikipedia.org/wiki/Lateran_Treatyhttp://en.wikipedia.org/wiki/Constitution_of_Italyhttp://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)http://en.wikipedia.org/wiki/Roman_Questionhttp://en.wikipedia.org/wiki/Holy_Seehttp://en.wikipedia.org/wiki/Kingdom_of_Italy_(1861%E2%80%931946)

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BackgroundBefore the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the HolySee, was considered a subject of International Law. With the loss of the Papal States and the limitation ofthe territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Lawbecame controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusivedominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right ofthe Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter intotreaties according to International Law.

The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring to the Holy

See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in thefield of international relations.

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested inthe Holy See or in the Vatican City. Some writers even suggested that the treaty created two internationalpersons - the Holy See and Vatican City.

The Vatican City fits into none of the established categories of states, and the attribution to it ofsovereignty must be made in a sense different from that in which it is applied to other states. In acommunity of national states, the Vatican City represents an entity organized not for political but forecclesiastical purposes and international objects. Despite its size and object, the Vatican City has anindependent 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 aninternational state.

One authority wrote that the recognition of the Vatican City as a state has significant implication - that it ispossible for any entity pursuing objects essentially different from those pursued by states to be investedwith international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See andnot in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See thatis the international person.

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Holy See v RosarioFacts: Parcel of Land was donated by the archdiocese of Manila to the Holy

See for the Construction of a residence of the Pope located in theMunicipality of Paraaque, Metro Manila and registered in the name of

petitioner. The said parcel of land was adjacent to the parcel of landsregistered to the Philippine Realty Corporation (PRC).

April 17, 1988 - Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price ofP1,240.00 per square meters with the condition that earnest money ofP100,000.00 be paid by Licup to the sellers, and that the sellers clear thesaid lots of squatters who were then occupying the same.

Licup paid the earnest money to Msgr. Cirilo and assigned his rights overthe property to Star Bright Sales Enterprises, inc and informed the sellersof the said assignment. Thereafter, private respondent demanded fromMsgr. Cirilos that the sellers fulfill their undertaking and clear the propertyof squatters; however, Msgr. Cirilos informed private respondent of thesquatters' refusal to vacate the lots, proposing instead either that privaterespondent undertake the eviction or that the earnest money bereturned to the latter.

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Facts:

Private respondent counter proposed that if it would undertake theeviction of the squatters, the purchase price of the lots should bereduced from P1,240.00 to P1,150.00 per square meter. Msgr. Cirilosreturned the earnest money of P100,000.00 and wrote privaterespondent giving it seven days from receipt of the letter to pay theoriginal purchase price in cash.

Private respondent sent the earnest money back to the sellers, butlater discovered that on March 30, 1989, petitioner and the PRC,without notice to private respondent, sold the lots to Tropicana.

Tropicana induced petitioner and the PRC to sell the lots to it andthus enriched itself at the expense of private respondent. Privaterespondent demanded the rescission of the sale to Tropicana andthe reconveyance of the lots, to no avail; and private respondentis willing and able to comply with the terms of the contract to selland has actually made plans to develop the lots into a townhouseproject, but in view of the sellers' breach, it lost profits of not lessthan P30,000.000.00.

Petitioner filed a motion to dismiss and asserts its sovereign immunityfrom suit but the trial court issued an order denying, among others,petitioner's motion to dismiss after finding that petitioner "shed off[its] sovereign immunity by entering into the business contract inquestion"

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Whether or not the department of

foreign affairs may intervene in thecase at bar in behalf of the holy see.

Yes. 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 itis sued to convey to the court that said defendant is entitled to

immunity. In the Philippines the procurement of an executive

endorsement of its claim of sovereign or diplomatic immunity

varies. It may be through the secretary of foreign affairs sending

a letter informing that such entity cannot be sued or through asuggestion made by Solicitor General. Hence, the court, in the

case at bench, allows the said Department to file its

memorandum in support of petitioner's claim of sovereign

immunity.

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Whether or not the claim of immunity

from suit by the Holy See, is applicableand valid in the case at bar.

Yes. Petitioner acquired Lot-5A for the site of itsmission or the Apostolic Nunciature in the Philippines.It was a donation from the Archdiocese of Manila.

The donation was made not for commercialpurpose, but for the use of petitioner to constructthereon the official place of residence of the PapalNuncio. The right of a foreign sovereign to acquireproperty, real or personal, in a receiving state,necessary for the creation and maintenance of itsdiplomatic mission, is recognized in the 1961 ViennaConvention on Diplomatic Relations (Arts. 20-22). Thistreaty was concurred in by the Philippine Senateand entered into force in the Philippines onNovember 15, 1965.

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In Article 31(a) of the Convention, a diplomaticenvoy is granted immunity from the civil andadministrative jurisdiction of the receiving stateover any real action relating to privateimmovable property situated in the territory ofthe receiving state which the envoy holds onbehalf of the sending state for the purposes ofthe mission. If this immunity is provided for adiplomatic envoy, with all the more reasonshould immunity be recognized as regards thesovereign itself, which in this case is the HolySee.

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The decision to transfer the property and thesubsequent disposal thereof are likewiseclothed with a governmental character.Petitioner did not sell Lot 5-A for profit or gain. Itmerely wanted to dispose the same becausethe squatters living thereon made it almostimpossible for petitioner to use it in accordanceto the purpose of the donation.

Thus, the said transaction made by petitioner isnot a purely commercial activity, rather an actincident to the pursuit of its sovereign activity,whereby, immunity from suit may be invoked.

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.The Court has distinguished the transactions by a state withprivate parties as jure imperii and jure gestionis. Jure imperiihas been defined as public acts of the government or the

exercise of the sovereign activity thereof, while jure gestionisare those private acts that are usually proprietary andcommercial in nature. A state impliedly waves its immunityupon entering into contracts that are commercial orpropreitary in nature. However, mere entering into a contractby a foreign state with a private party cannot be the

ultimate test of it proprietary functions. In the case at bar, theHoly See did not buy and sell the lot in the ordinary course ofbusiness. Infact, a part of the land, specifically Lot 5-A,was adonation from the Archdiocese of Manila, not forcommercial purpose but for the residence of the PapalNuncio. The sale of Lot 5-A was not entered into for profit or

gain. It merely wanted to dispose off the same because it isimpossible for the petitioner to use is for the purpose ofdonation due to the refusal of the squatters living on the saidparcel of land to vacate it. Hence, the decision to transferthe property and the subsequent disposal are clothed with agovernmental character.