Is the determination of the executive branch of the government that a state or instrumentality is entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political question and therefore, conclusive upon the courts?

●It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government x x x it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, x x x or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction x x x as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. (DFA vs. NLRC, G.R. No. 113191. September 18, 1996 citing World Health Organization vs. Aquino, G.R. No. L-35131, November 29, 1972) 

● The issue of petitioner’s (The Holy See) non-suability can be determined by the trial court without going to trial in light of the pleadings.  Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs.  As the department tasked with the conduct of the Philippines’ foreign relations, the Department of Foreign Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. The determination of the executive arm of government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts. Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country’s foreign relations. As in International Catholic Migration Commission and in World Health Organization, we abide by the certification of the Department of Foreign Affairs. (The Holy See vs. Rosario, G.R. No. 101949, December 1, 1994)

What is the remedy of a person who feels aggrieved by the acts of a foreign sovereign?

Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See. Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law. (The Holy See vs. Rosario, G.R. No. 101949, December 1, 1994)

What is the rationale for the grant of immunity to international organizations?

● The objective for the grant of immunity from local jurisdiction is to avoid the danger of partiality and interference by the host country in the internal workings of these international organizations or agencies. It is intended to shield the organization from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions.

● One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in there operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. In the case at bar, for instance, the entertainment by the National Labor Relations Commission of Mr. Madamba's reinstatement cases would amount to interference by the Philippine Government in the management decisions of the SEARCA governing board; even worse, it could compromise the desired impartiality of the organization since it will have to suit its actuations to the requirements of Philippine law, which may not necessarily coincide with the interests of the other member-states. It is precisely to forestall these possibilities that in cases where the extent of the immunity is specified in the enabling instruments of international organizations, jurisdictional immunity from the host country is invariably among the first accorded. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 14, 1992)

What are examples of international organizations, other than the UN, that have been accorded immunity in the Philippines?

1. Southeast Asian Fisheries Development Center (SEAFDEC), which was established by Burma, Cambodia, Indonesia, Japan, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam, for the purpose of contributing to the promotion of the fisheries development in Southeast Asia.

2. International Rice Research Institute (IRRI), which enjoys immunities accorded to international organizations. Presidential Decree No. 1620 provides:

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives.

3. International Catholic Migration Commission (ICMC), which was accredited by the Philippine Government to operate the refugee processing center in Morong, Bataan. It’s a non-profit agency involved in international humanitarian and voluntary work.

4. Asian Development Bank (ADB). Being an international organization that has been extended diplomatic status, the ADB is independent of the municipal law. The Supreme Court, while cognizant of this immunity, also found that the immunity applies only to acts performed in an official capacity. Section 45 (a) of the Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank provides:

Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities:

(a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity.

The imputation of theft is ultra vires and cannot be part of official functions. It cannot possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty.