Bernas Public International Law – IMMUNITY FROM JURISDICTION Part 2

CHAPTER 10: IMMUNITY FROM JURISDICTION Part 2

US v. Hon. Luis Reyes (Philippines)

A claim of immunity by an American official was rejected when shown to have been committed outside the scope of her authority as well as contrary to law.

Unauthorized acts of government officials or officers are not acts of the State, and an action against the latter is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument to perpetrate an injustice.

Holy See v. Eriberto Rosario, Jr. (Philippines)

The mere entering into a contract by a foreign state with a private party cannot be the ultimate test of whether the activity or transaction is ―commercial.

One must also question: (a.) whether the foreign state is engaged in the activity in the regular course of business; and (b.) if not, whether the nature of the particular transaction or act is in pursuit of a sovereign activity or an incident thereof. If the answer to (b.) is yes, and especially if it is not undertaken for profit or gain, then the act is jure imperii.

In this case, petitioner has denied having bought and sold lands in the ordinary course of a real estate business. Instead, he claimed that the acquisition of Lot 5-A was for the site of its mission or the Apostolic Nunciature of the Philippines. Respondent failed to dispute such claim.

* How to claim State immunity?

– In PIL, a State must request the Foreign Office of the state where it is sued to convey to the court that it is entitled to immunity.

– In the Philippines, the foreign government or international organization must first secure an executive endorsement (in whatever form) of its claim of sovereign or diplomatic immunity.

Republic of Indonesia v. Vinzon (2003)

Petitioner, Republic of Indonesia entered into a Maintenance Agreement with respondent, James Vinzon of Vinzon Trade and Services, to maintain specified equipment (aircons, generator sets, electrical facilities, water heaters, water motor pumps) at the Embassy Main and Annex buildings and that the Wisma Duta.
Chief of Administration, Minister Counselor Azhari Kasim allegedly found Vinzon’s work unsatisfactory and not in compliance with the agreed standards. Thus, the Embassy terminated the agreement.

Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based on sovereign immunity from suit as well as diplomatic immunity under the Vienna Convention on Diplomatic Relations, regarding the suit against Ambassador Soeratmin and Minister Counsellor Kasim.

Respondent alleged that the petitioner has expressly waived its immunity from suit based on a provision in the Maintenance Agreement which states that any legal action arising from the agreement will be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines. In addition, the Ambassador and Minister Counsellor may be sued in their personal capacity for tortious acts done with malice and bad faith.

The trial court denied the Motion to Dismiss, which the CA affirmed.

Petitioner questions the ruling of the CA that the former had waived its immunity from suit based on the agreement.

The SC ruled in favor of the petitioner:

a.) The rules of IL are neither unyielding not impervious to change. The increasing need of sovereign states to enter into purely commercial activities brought about a new concept of immunity. The restrictive theory holds that immunity of the sovereign is recognized only with regard to public acts but not with regard to private acts.

b.) The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. If the foreign state is not engaged regularly in a business or commercial activity, as in this case, the particular act or transaction must be then tested by its nature. If it is in pursuit of a sovereign activity or an incident thereof, then it is an act jure imperii.

c.) The existence alone of a provision in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of state immunity from suit. It is merely meant to apply where: (a.) the sovereign party elects to sue in the local courts; or (b.) otherwise waives its immunity by any subsequent act. The applicability of Philippine laws include the principle recognizing sovereign immunity.

d.) Submission by a foreign state to local jurisdiction must be clear and unequivocal, given explicitly or by necessary implication. There is not such waiver in this case.

e.) The establishment of a diplomatic mission is a sovereign function. It encompasses its maintenance and upkeep. Hence, the state may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarter of its agents and officials.

f.) Under Article 31 of the Vienna Convention on Diplomatic Relations, a diplomatic agent may be sued in his private capacity for (c.) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Bu the acts of the Ambassador and the Minister Counsellor in terminating the agreement was committed in relation to their official functions. Thus, they enjoy immunity from suit.