Friday, November 6, 2015

Diplomatic immunity

See - Confusing discussion on diplomatic immunity | Inquirer Opinion

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There are actually two international conventions—the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963)—and a third set of immunities involved. The first convention governs the status of diplomats (ambassadors, envoys, ministers, diplomatic secretaries and attachés), while the second covers consular officers (consuls general, consuls, vice consuls and consular agents).

And there are two types of immunities involved: absolute or complete immunity (a diplomat is immune from all legal proceedings in his or her country of assignment) and limited immunity (a person is immune only with respect to those actions performed in connection with his or her consular—read: official—duties). To simplify, if one lends money to a diplomat and the latter refuses to pay, the lender cannot sue the diplomat in a local court. (The lender can bring action in the diplomat’s home country.) By way of contrast, a consular officer under the same circumstances can be sued in a local court because contracting the loan is not part of his or her official duties.

There is a third set of immunities which was linked to the current dispute in Tarra Quismundo’s article, “When does diplomatic immunity end?” (News, 10/23/15). The article discussed a case involving an Asian Development Bank (ADB) economist. The immunity in this instance is not covered by the two Vienna conventions cited earlier in this article. Rather, the immunity in the ADB case is governed by a specific “headquarters agreement” between the Philippines and the ADB.

One must note that the immunities and privileges of all personnel working in UN agencies and UN-affiliated organizations are governed by the so-called “headquarters agreements” between the host government and the UN agency. Thus, as an example, the United Nations Organization (New York, United States), United Nations Education, Scientific, and Cultural Organization (Paris, France), World Trade Organization (Geneva, Switzerland ), UN Economic and Social Commission for Asia and the Pacific (Bangkok, Thailand ) etc., just like the ADB, all have headquarters agreements with the host countries. The immunities and privileges of the staff of the UN bodies cited are defined in these agreements, not in the Vienna conventions.

One can state as a general rule, that only the highest-ranking officials of each international organization are conferred absolute immunity in these agreements. The lower-ranking personnel of these organizations are conferred only limited immunity—that is, if the dispute arose “in the performance of their official duties.” These international agencies are huge bureaucracies, hence complete immunity to all their personnel is out of the question.

The ADB case cited by Quismundo involves an “economist.” He is way down in the ADB organization and must have enjoyed only limited immunity, hence the Supreme Court decision. The Erick Shcks case is governed by the Vienna Convention on Diplomatic Relations. Shcks was accredited as a diplomat to the Philippines by Panama.

The Chinese’s case in Cebu has an added complexity. It appears that the Philippines had signed a consular convention with China conferring absolute immunity to the consular officers of the two countries. In other words, it is not the immunity under the Vienna Convention on Consular Relations which applies in that case, but the immunity under the Vienna Convention on Diplomatic Relations. Under the circumstances, the Philippines has to yield jurisdiction to the Chinese government.
We must, however, emphasize that this agreement we concluded with the Chinese government is deeply flawed diplomacy. China, in common with other communist countries, uses its diplomatic and consular service as an arm of its security service.

The defunct Union of Soviet Socialist Republics, in its early years, initiated such agreements with many countries, conferring diplomatic or absolute immunities on consular officers instead of the limited immunity then in vogue. Later on, most countries declined to conclude similar conventions when they found out that such agreements placed Soviet consular officers doing espionage beyond local jurisdiction.

In the Cebu case, had we not concluded such agreement with China, the two errant officials could have been tried and convicted under Philippine law. During their prolonged incarceration in our country, they could have supplied a gold mine of information on China’s clandestine activities in the Philippines. One cannot help but note the frantic actions of Beijing in this affair. It sent a big number of security officers and a special chartered flight to Cebu. Beijing wanted to extricate their errant consular officials asap before they could start spilling the beans.

The Philippines should abrogate this one-sided consular convention with China. We do not use our consular service as an arm for clandestine overseas operations. As our dispute with China on the West Philippine Sea escalates, we will be at a big disadvantage in the conduct of our foreign relations with China under this agreement.

Hermenegildo C. Cruz was accredited as Philippine ambassador to the United Nations in 1984-1986.
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