Bar Q and A #45

a. No, the foreign ambassador cannot invoke his diplomatic immunity to resist the action, since he is not using the house in Tagaytay City for the purposes of his mission but merely for vacation. Under Article 3(1)(a) of the Vienna Convention on Diplomatic Relations, a diplomatic agent has no immunity in case of 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 purposes of the mission.

b. No, the lessor cannot ask the court to stop the departure of the ambassador from the Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall not be liable to any form of arrest or detention

I shall advice that the high-ranking officials and rank-and- file employees be released because of their diplomatic immunity. Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.”

Under Article 37 of the Vienna Convention on Diplomatic Relations, members of the administrative and technical staff of the diplomatic mission shall, if they are not nationals of or permanent residents in the receiving State, enjoy the privileges and immunities specified in Article 29.

Under Article 9 of the Vienna Convention on Diplomatic Relations, the remedy is to declare the high-ranking officials and rank-and-file employees personae non gratae and ask them to leave.

The claim of diplomatic immunity of YZ is not tenable, because he does not possess an acknowledged diplomatic title and is not performing duties of a diplomatic nature. However, the suit against him is a suit against XX without its consent. YZ was acting as an agent of XX and was performing his official functions when he conducted surveillance on drug exporters and informed the local police officers who arrested MBC. He was performing such duties with the consent of the Philippine government, therefore, the suit against YZ is a suit against XX without its consent (Minucher v. Court of Appeals, 397 SCRA 244).

a. As counsel for Abad, I will argue that sovereign immunity will not lie as it is an established rule that when a State enters into a contract, it waives its immunity and allows itself to be sued. Moreover, there is a provision in the contract that any suit arising therefrom shall be filed with the proper courts of the City of Manila.

On the issue of diplomatic immunity, I will assert that the act of the Ambassador unilaterally terminating the agreement is tortuous and done with malice and bad faith and not a sovereign or diplomatic function.

b. The court should rule against said defenses. The maintenance contract and repair of the Embassy and Ambassador's Residence is a contract in jus imperii, because such repair of said buildings is indispensable to the performance of the official functions of the Government of Italy. Hence, the contract is in pursuit of a sovereign activity in which case, it cannot be deemed to have waived its immunity from suit.

On the matter of whether or not the Ambassador may be sued, Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state except if the act performed is outside his official functions, in accordance with the principle of functional necessity. In this case, the act of entering into the contract by the Ambassador was part of his official functions and thus, he is entitled to diplomatic immunity (Republic of Indonesia v. Vinzons, G.R. No. 154705 [2003]).

a. As counsel for Baker, I would argue that Adams is not a diplomatic agent considering that he is not a head of mission nor is he part of the diplomatic staff that is accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

b. As counsel for Adams, I would argue that he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country with the approval of the Philippine government. Under the doctrine of State Immunity from Suit, if the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Adams may not be a diplomatic agent but the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of Adams and thus he is entitled to the defense of state immunity from suit (Minucher v. CA, G.R. No. 142396, [2003]).

Ambassador Gaylor cannot invoke  his diplomatic immunity. In accordance with Paragraph 1, Article 31 of Vienna Convention of Diplomatic Relations, since State Paradise is not his receiving state, he does not enjoy diplomatic immunity within its territory. Under Paragraph 1, Article 40 of the Vienna Convention of diplomatic Relations, he cannot be accorded diplomatic immunity in State Paradise, because he is not passing through it to take up or return to his post or to return to State Paradise.

The claim of diplomatic immunity is improper. Courts cannot blindly adhere to and take on its face the communication from the DFA that Aristotle is covered by an immunity. The DFA’s determination that a certain person is covered by immunity is only preliminary and has no binding effect on courts. Besides, slandering a person cannot possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, under the guise of official duty. Under the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent outside his official functions in the receiving state. The commission of a crime is not part of official duty. (Liang vs. People, G.R. No. 125865, January 28, 2000)

a. State A may unilaterally withdraw from the mutual defense treaty, State B committed a material breach of the treaty by failing to come to the aid of State A. (Art. 60 of the Vienna Convention on the Law of Treaties; Kolb, The Law of Treaties, p. 220; Aust, Modern Treaty Law and Practice, pp. 236-237)

b. Yes. Pacta sunt servanda was what bound State A and State B to comply with their obligations under their mutual defense treaty, despite the existing trade agreements between State B and State C. Article 62 of the Vienna Convention on the Law of Treaties, which enunciates the doctrine of rebus sic stantibus, on the other hand, can be invoked by State B as the reason why it did not comply with its mutual defense treaty. Treaty is concluded with the implied condition that it is intended to be binding only as long as there is no vital change in the circumstances. To State B, compliance with the treaty would jeopardize its vital trade development, Because of this unforeseen change of circumstances combined with State B’s non-compliance with its obligations under the treaty in good faith,

State A may now opt to unilaterally withdraw from the treaty.

a. From the standpoint of Philippine law, the Executive Agreement is binding. According to Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 [1961], the President can enter into an Executive Agreement without the necessity of concurrence by the Senate.

b. The Executive Agreement is also binding from the standpoint of international law. As held in Bayan v. Zamora, 342 SCRA 449 [2000], in international law executive agreements are equally binding as treaties upon the States who are parties to them. Additionally, under Article 2(1)(a) of the Vienna Convention on the Law of Treaties, whatever may be the designation of a written agreement between States, whether it is indicated as a Treaty, Convention or Executive Agreement, is not legally significant. Still it is considered a treaty and governed by the international law of treaties.