CYIL vol. 12 (2021)
Volume 12 (2021) presents a variety of studies and articles covering many issues of contemporary international and European law.
BOOK PASSAU • BERLIN • PRAGUE
SCIENCE & NEW MEDIA
Czech Yearbook of Public & Private International Law
Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého
Česká společnost pro mezinárodní právo Czech Society of International Law
Editor-in-Chief: Professor Pavel Šturma This Yearbook is included in the SCOPUS international database.
KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR
Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 12. – Praha : Česká společnost pro mezinárodní právo, 2021. – xv, 484 stran Česká, anglická a slovenská resumé Vydáno v nakladatelství Eva Rozkotová. – Obsahuje bibliografii a bibliografické odkazy
ISBN 978-80-87488-42-3 (Eva Rozkotová ; brožováno)
* 341.1/.8 * 341.9 * (048.8:082) * (058) – mezinárodní právo veřejné – mezinárodní právo soukromé – kolektivní monografie – ročenky
341 – Mezinárodní právo  Tato Ročenka je vydávána s finanční podporou Rady vědeckých společností při Akademii věd ČR. This Yearbook is published with a financial support of the Council of Scientific Societies of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Skils, s.r.o. © Česká společnost pro mezinárodní právo, 2021 © Czech Society of International Law, 2021 Vydala Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu Passau-Berlin-Praha ISSN 1805-0565 ISBN 978-80-87488-42-3
BOARDS AND EDITORS
EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor Naděžda Šišková Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member and former chair of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague
ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law
Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg, Masaryk University in Brno, Faculty of Law Professor PAUL TAVERNIER University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague
EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, chair of the ILC
EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague
REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Veronika Bílková, Monika Forejtová, Jakub Handrlica, Mahulena Hofmann, Věra Honusková, Milan Lipovský, Jan Ondřej, Emil Ruffer, Harald Scheu, Pavel Šturma, Petr Šustek and Tomáš Gřivna.
Preface Pavel Šturma
I. SYMPOSIUM ON THE ANNIVERSARY OF CODIFICATION
OF DIPLOMATIC RELATIONS AND INTERNATIONAL RESPONSIBILITY Restricting Diplomatic Privileges in the Protection of Public Health? The Application of the Vienna Convention in the Times of Pandemic Michaela Sýkorová 3 State Responsibility and the Acts of Non-state Actors (the Problem of Attribution) Jan Ondřej 22 Selected Issues of the Responsibility of the State of Israel and Palestine for Violations of Obligations Stemming from International Humanitarian Law in Connection with the Action of Palestine at the International Criminal Court in Respect of Crimes Committed in the Palestinian territories Veronika D’Evereux 33
II. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS The Mechanism of the Protection of Racial, National, and Religious Minorities within the League of Nations from the Perspective of Czechoslovakia Jan Kuklík
Pre-emptive self-defence in cyberspace Martina Šmuclerová
States’ reports under UN Human Rights Treaties: How to Read Overdue Reports? Jana Peterková, Zuzana Trávničková The Connally Reservation (Self-judging Reservation) to Declaration of Acceptance of the Compulsory Jurisdiction of the ICJ under art. 36 (2) of the Statute Milan Lipovský III. INTERNATIONAL LAW AND EUROPEAN LAW The role of Court of Justice of the European Union in inter se agreements. Enhanced cooperation: More legitimate alternative or path-dependency? Dimitris Liakopoulos The Influence of EU Law in ECtHR’s Case Law on Family Migration Jennie Edlund, Václav Stehlík Impacts of the CJEU Case Law on Regulatory Competition in the Field of Freedom of Establishment in the EU Tomáš Křivka
The Global Reach of the right to be forgotten through the Lenses of the Court of Justice of the European Union Ondrej Hamuľák – Lusine Vardanyan – Hovsep Kocharyan
The Role of Competition Policy in Cybersecurity Michal Petr
IV. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW COVID-19 restrictions of Freedom of movement in Czech Republic and Lithuania: legal basis and proportionality Harald Scheu – Irutė Pranevičienė – Violeta Vasiliauskienė The (Missing) Right to a Healthy Environment in International Human Rights Law, especially the European Convention on Human Rights Jan Lhotský Public Corporations under the European Convention on Human Rights Alla Tymofeyeva Toward Strengthening Accountability for Crimes aganist Children in Armed Conflict Peter Klanduch VI. INTERNATIONAL NUCLEAR LAW The 50th Anniversary of the Treaty on the Non-Proliferation of Nuclear Weapons: Balance and Future Perspectives for 10th Review Conference Maria Manuel Meruje The Feast of Insignificance of Small Nuclear Reactors in International Nuclear Law Jakub Handrlica – Marianna Novotná The Decarbonization Process, Nuclear Energetics Potential and the Challenges of Legal Regulation Victoria V. Romanova VII. HEALTH LAW, ETHICS, AND HUMAN RIGHTS Czech Expert Statements on Patient Prioritisation in the Covid-19 Pandemic in International Comparison Petr Šustek V. INTERNATIONAL CRIMINAL LAW Nuremberg Principles as the Basis of International Criminal Law Katarína Šmigová
Judicial Oversight in Times of a Pandemic Tomáš Holčapek
The Pandemic and the Law: Challenges of Covid-19 in Light of International Law Martin Šolc
VIII. INVESTMENT LAW, TRADE LAW AND PRIVATE INTERNATIONAL LAW Modernization of Energy Charter Treaty to Enable Climate Action Monika Feigerlová
Universal, Regional, and National Ways of Regulation of Jurisdiction and Arbitration Agreements Kateřina Zabloudilová
The Komstroy Judgment and Its Possible Imlications Miriama Kiselyova
IX. CZECH PRACTICE OF INTERNATIONAL LAW Provisional Application of Treaties, Protection of the Atmosphere and Other Topics at the 72nd Session of the International Law Commission Pavel Šturma List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2020 till 31st December 2020 Milan Beránek The Impact of the Adoption of the Framework Agreement between the Czech Republic and Germany on Cross-border Cooperation in the Field of Emergency Medical Services on the Organization and Provision of Emergency Medical Services in the Czech Republic Jindřich Psutka X. SHORTER ARTICLES AND NOTES Report from the International Conference SOLAIR 2021: Artificial Intelligence from the Perspective of Horizontal and Sectoral Legislation Alžběta Krausová XI. BOOK REVIEWS Investment Arbitration in Central and Eastern Europe (Edward Elgar Publishing) Ondřej Svoboda Principles of International Criminal Law 4th edition (Oxford University Press) Milan Lipovský Peaceful Settlement of Disputes in International Law (Praha: ČSMP – CSIL) Ondřej Svoboda XII. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY Zuzana Trávníčková Moot Courts on Issues of Public International Law in Year 2020/2021 Milan Lipovský
Dear Readers, It is with great pleasure that I introduce the twelfth issue of the Czech Yearbook of Public&Private International Law (CYIL). Volume 12 appears, as usual, in the autumn, which is the typical time for the readers of this Yearbook who are interested in the developments in international law. We did our best to meet this expectation even in 2021 which is the second year affected by the Covid-19 pandemic. The Czech Yearbook was established by the Czech Society of International Law in 2010. It was done thanks to the Board and the members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such a specialized journal or yearbook. Since 2014, the Czech Yearbook has been published by the international publishers, rw&w, Science & New Media, Passau-Berlin-Praha, which, in cooperation with Südost Service GmbH, ensures its distribution in Germany and Western Europe. As you know, the CSIL publishes the Yearbook in both printed and electronic versions ( www.cyil.eu ). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. This growth of the Czech Yearbook ranks it among the larger publications of its kind in an international comparison. However, in spite of the higher publishing costs, we are proud to announce that this publication is still available for free for members of the Czech Society of International Law (included in the membership fee) and on sale for a very reasonable price. The Czech Yearbook, in spite of its difficult beginnings, has succeeded in attracting a sufficient number of authors and readers in the Czech Republic and abroad. It found its place among other similar publications on international law. As usual, Volume 12 (2021) presents a variety of studies and articles covering many issues of contemporary international and European law. The Yearbook begins with the Symposium on the anniversary of codification of the law of diplomatic relations (Vienna Convention, 1961) and State responsibility (ARSIWA, 2001). However, its purpose is not just to commemorate these important codification documents. The articles in this section address some topical issues from the perspective of the current practice of international law. Other contributions include various subjects, ranging from the history of international law (the mechanism of the protection of minorities within the League of Nations), through pre-emptive self-defence in cyberspace, to the self-judging reservation to declaration of acceptance of the compulsory jurisdiction of the ICJ. The readers will also find many other traditional sections here, including human rights, international humanitarian law, and criminal law. These sections include articles on various subjects, such as Covid restrictions of the freedom of movement, the right to health, public corporations under the ECHR, Nuremberg Principles as the basis of international criminal law, and accountability for crimes against children in armed conflict. As in the previous years, the CYIL also presents a section on international law and EU law with five articles on a wide range of issues, including the enhanced cooperation and inter se agreements adopted by some EU Member States, the influence of EU law on the case law of the European Court of Human Rights regarding family migration, or the role
of competition policy in cybersecurity. Two contributions address the impacts of the CJEU case law on the field of freedom of establishment in the EU and on the right to be forgotten. This volume again includes special sections on international nuclear law and on problems of the Covid-19 pandemic in health law. According to its tradition, Volume 12 of the CYIL heavily covers many aspects of private international law and international investment law, including the modernization of the Energy Charter Treaty, universal, regional, and national ways of the regulation of jurisdiction and arbitration agreements, as well as a contribution on the possible implications of the recent Komstroy judgement. The Yearbook also covers the Czech practice of international law, in particular, a list of treaties ratified by the Czech Republic, a report on the recent works of the International Law Commission, book reviews, and a survey of the Czech international law bibliography. As usual, the authors of this publication, who are from academia and legal practice, come from both Czech and foreign institutions. This volume includes several contributions from foreign professors and researchers, coming from or teaching in Armenia, Austria, Lithuania, Slovakia, Portugal, Russia, Ukraine, and the United States. As to the Czech institutions involved, these include Charles University in Prague, Palacký University in Olomouc, Masaryk University in Brno, Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs, the Ministry of Industry and Trade, as well as some private law firms. This publication appears thanks to a continuing financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for the generous financial support from the law firm Skils (Prague). We also wish that this volume of the Czech Yearbook will find many readers and we are already looking forward to new authors and new contributions for our next volume in 2022. We are also grateful for any comments or suggestions on how to improve the quality of this journal.
Prof. Pavel Šturma Editor-in-Chief
ABM – anti-ballistic missile ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts BITs – bilateral investment treaties BKA – German Competition Authority (Bundeskartellamt) CAT – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CCA – Czech Competition Act CED – International Convention for the Protection of All Persons from Enforced Disappearance CEDAW – Convention on the Elimination of All Forms of Discrimination against Women CEE – Central and Eastern Europe CJEU – Court of Justice of the EU CNB – Committee for Bioethics CNIL – Commission Nationale de l’Informatique et des Libertés CRC – Convention on the Rights of the Child CRC-OP-AC – Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict CRPD – Convention on the Rights of Persons with Disabilities CRSCA – Czech Republic Security Constitutional Act ČSARIM – Czech Society of Anaesthesiology and Intensive Care Medicine EC – European Commission ECB – European Central Bank ECD – E-Commerce Directive ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECT – Energy Charter Treaty ECtHR – European Court of Human Rights EDF – European Development Fund CESCR – Committee on Economic, Social and Cultural Rights CETA – EU-Canada Comprehensive Economic and Trade Agreement CFREU – Charter of the Fundamental Rights of the European Union DPAs – Data Protection Authorities DPD – Data Protection Directive DPRK – Democratic People’s Republic of Korea
EEC – European Economic Community EFTA – European Free Trade Association EU – European Union
EU/EC – European Union/ European Community FAO – Food and Agriculture Organization
FDI – Foreign Direct Investment FET – fair and equitable treatment
GATT – General Agreement on Tariffs and Trade GDPR – General Data Protection Regulation GG – greenhouse gas IACtHR – Inter-American Court of Human Rights IAEA – International Atomic Energy Agency ICC – International Criminal Court ICCPR – International Covenant on Civil and Political Rights ICERD– International Conventionon the Eliminationof All Forms of RacialDiscrimination ICESCR – International Covenant on Economic, Social and Cultural Rights ICJ – International Court of Justice ICRMW – International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ICSID – International Centre for Settlement of Investment Disputes ICTR – International Criminal Tribunal for Rwanda ICTY – International Criminal Tribunal for the former Yugoslavia
IHRL – international human rights law ILC – UN International Law Commission ILO – International Labour Organization INF – intermediate-range nuclear forces IoT – Internet of Things IP – Internet Protocol IPCC – Intergovernmental Panel on Climate Change ISDS – investor-state dispute settlement LRA – Lord’s Resistance Army MAD – mutual assured destruction NATO – North Atlantic Treaty Organization NCA – national competition authorities NGO – non-governmental organization NPT – Treaty on the Non-Proliferation of Nuclear Weapons OECD – Organisation for Economic Co-Operation and Development OHCHR – Office of the High Commissioner for Human Rights OTP – Office of the Prosecutor PCIJ – Permanent Court of International Justice RtbF – right to be forgotten SAMW – Swiss Academy of Medical Sciences
SIAARTI – Society of Anaesthesia, Analgesia, Reanimation and Intensive Care SMR – Small Modular Reactors SOLAIR – Society, Law, Artificial Intelligence, and Robotics
SORT – Strategic Offensive Reduction Treaty START – Strategic Arms Reduction Treaty TEC – Treaty establishing the Economic Community TCNs’ – Third-Country Nationals’ TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union UDHR – Universal Declaration of Human Rights
UK – United Kingdom UN – United Nations
UNCITRAL – United Nations Commission on International Trade Law UNESCO – United Nations Educational Scientific and Cultural Organization UNFCCC – United Nations Framework Convention on Climate Change UNGA – UN General Assembly UNIDIR – United Nations Institute for Disarmament Research UNIDROIT – International Institute for the Unification of Private Law UNSC – United Nations Security Council USA – United States of America VCDR – Vienna Convention on Diplomatic Relations WHO – World Health Organization
I. sYMPOSIUM ON THE ANNIVERSARY OF CODIFICATION OF DIPLOMATIC RELATIONS AND INTERNATIONAL RESPONSIBILITY
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH? THE APPLICATION OF THE VIENNA CONVENTION IN THE TIMES OF PANDEMIC Michaela Sýkorová Abstract: The article raises an interesting question how the application of the 1961 Vienna Convention in current States practice has faced the ongoing pandemic when it comes to various restricting measures. Having imposed range of travel restrictions, curfew, forced quarantine or mandatory medical examination States have been challenged to find out the right way how to prevent and ensure the public health while still respecting the status and privileges of foreign diplomats. Although generally subject to the duty to respect the laws and regulations of the receiving States, those persons enjoy a special treatment, in comparison to the local population, and, in particular, are exempted from the enforcing jurisdiction of the territorial sovereign. Thus, the issue of lawfulness of restricting measures, mainly in the caveats of necessity and proportionality, is analysed, both generally and in relation to concrete measures. Notwithstanding the self-contained nature of diplomatic legal regime, the author does not limit herself to the interpretation of the Vienna Convention, but also points to subsequent and recent practice by States and aims to assess the discussed aspects from the perspective of the law of responsibility as well. Finally, the criteria of permissibility are tested against particular measures. The author eventually concludes in question whether States practice during the pandemic has altered the perception of diplomatic privileges and immunities and how the application of the 60-year-old Convention in such an unprecedent situation has been preserved. Resumé: Článok sa zaoberá otázkou interpretácie a aplikácie Viedenského dohovoru o dip- lomatických stykoch v kontexte pandemických opatrení proti šíreniu COVID-19 v súčas- nej praxi štátov. Článok z tohto hľadiska analyzuje nevyhnutnosť a proporcionalitu prijí- maných opatrení vo vzťahu k diplomatickým výsadám a imunitám. Napriek autonómnej povahe diplomatického práva sa autorka nesústreďuje len na výklad travaux préparatoires a príslušných ustanovení Viedenského dohovoru, ale skúma legálnosť opatrení aj v kontexte následnej praxe štátov a relevantnej judikatúry, ako aj z pohľadu pravidiel medzinárodnej zodpovednosti. Autorka ďalej poukazuje na povinnosť prijímajúceho štátu všemožne uľahčiť diplomatickej misii výkon jej funkcií na svojom území ako na všadeprítomný element a tiež na zákaz diskriminácie i dôležitosť reciprocity vo vzájomnom diplomatickom vzťahu dvoch štátov. Pripomína, že jednotlivé výsady a imunity poskytnuté misii a jej členom sú vyvá- žené povinnosťou diplomatov rešpektovať zákony a predpisy prijímajúceho štátu. Autorka napokon formuluje všeobecné kritériá ako indície pre určenie, ktoré konkrétne opatrenie je ešte v súlade s právom, a ktoré už zrejme prekračuje hranice legality. Také opatrenie nesmie byť na ujmu výsadám a imunitám, musí rešpektovať dôstojnosť a postavenie diplomata, má byť cielené uvážlivo za účelom dosiahnutia potrebného cieľa, na základe nevyhnutnosti a v primeranom rozsahu. Článok v závere formuluje zistenie, že Viedenský dohovor je aj v neľahkom období globálnej pandémie, šesťdesiat rokov od svojho prijatia, stále relevant-
michaela sýkorová CYIL 12 (2021) ným právnym nástrojom, a že prax štátov zachováva jeho pôvodný spirit v rozumnej miere, pragmaticky ho prispôsobujúc novým výzvam. Key words: diplomatic privileges, Vienna Convention, treaty interpretation, duty of diplomats to respect laws of the receiving State, lawfulness of pandemic measures, mandatory quarantine, state of necessity, foreign diplomats About the author: JUDr. Michaela Sýkorová, LLM, Ph.D. Expert in public international law, since 2014 a legal officer at Slovak Ministry of Foreign and European Affairs 1 . Graduated in Law and Public International Law at Comenius University in Bratislava (2007), University of Utrecht (2013), Charles University in Prague (2017), alumni of International Law Seminar (2012) and the Hague Academy of International Law (2013). Former lecturer and coach for moot court competitions at Comenius University in Bratislava (2007–2014). Expertise gained in Conflict and Security Law. Main research focus on peremptory norms, use of force, jurisdiction, diplomatic law and human rights. 1. Introduction Since the COVID-19 pandemic has spread worldwide from the beginning of 2020 2 , States have been challenged on different levels how to fight efficiently against the new coronavirus in order to save lives and to protect their population. Not surprisingly, many of them have taken steps to eliminate the transmission of infection, including measures limiting human rights, personal freedom and movement. Even if unprecedented in scale, the time of crisis is, however, not without precedent: it may easily fall under the umbrella of well-established legal concepts, such as state of emergency, state of necessity or fundamental change of circumstances, the terms not unknown to international law, encompassing situations that allow either for a temporal derogation or simply for a conduct, otherwise considered wrongful, that does not give rise to any responsibility. The law of diplomatic relations, however, differs from the aforementioned corps of rules, at least due to absence of such escaping clause 3 , that would release a receiving State from its obligation to grant privileges to foreign diplomats if events unfolded in unusual way. When the Vienna Convention was drafted in the sixtieths, unanimous voice was heard among the delegations, that the rationale of diplomatic privileges and immunities is shaped not by granting benefits to individuals but, rather, by ensuring the efficient performance of the mission’s functions. 4 Against this background, some of the privileges and immunities embodied in the Convention are clearly formulated in an absolute language, inviolability of mission or personal inviolability in particular, leaving no doubt – at least prima facie – that such immunity may not be restricted in any circumstances whatsoever. Thus, when State authorities, in quest of protecting public health, facing a global epidemiologic threat, introduce forced quarantine, mandatory medical examination, obligatory hospitalisation, curfew, movement surveillance or teleworking instead of physical presence at workplace, these 2 On 30 January 2020, the WHO declared the novel coronavirus outbreak to be a public health emergency of international concern. On March 11, 2020 it was declared a pandemic affecting 114 countries worlwide. See https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/novel-coronavirus-2019- ncov [20-5-2021]. 3 Cf. Articles 44 and 45 of VCDR, see below. 4 Preamble. See below, in part discussing object and purpose. 1 The views and opinions in the article is presented solely in the author’s personal capacity.
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… all are steps practically having an impact, whether direct or not, on the efficient performance of the mission’s functions, and, what is more relevant for the present article, may interfere with privileges and immunities of its staff. Recalling that the Vienna Convention itself balances the provisions on immunities with that one imposing on their “beneficiaries” a duty to respect laws and regulations of the receiving State, two pertinent questions arise: are those persons obliged to respect local pandemic measures, and are such measures permissible under the Vienna Convention? The answers are to be searched both in the relevant provisions of the Convention and their interpretation, as well as in its application in the pandemic State practice. 2. The key provisions of the Vienna Convention The Vienna Convention on Diplomatic Relations (“VCDR”) 5 is nowadays one of the most universal treaties worldwide. Throughout 60 years of its existence it has gained 193 State Parties 6 . The most cited reasons of its success and wide support refer to the essentiality of the subject-matter of diplomatic relations itself, coupled with the stability of the majority of rules that have not changed significantly since the times of Vattel. 7 Yet the Convention, despite its universality and sufficient flexibility to face modern phenomena shaping international politics in recent decades, is not itself the only source of diplomatic law. Codifying largely the pre-existing customary law, the preamble of the Convention does not leave any doubt, that customary rules continue to govern questions not embodied in the Convention. 8 Accordingly, if there is within the Convention an absence of the possibility to restrict privileges and immunities, for instance in a time of emergency or due to grave public concern, an instinctive conclusion that such restrictions would be unlawful, might just be well premature. One must admit, that neither the Convention predecessors explicitly addressed this issue. The earlier multilateral codifications or attempts, such as the Vienna Regulation of 1815 regarding the classes and precedence of heads of mission or the Harvard Draft Convention on Diplomatic Privileges and Immunities of 1932, focused on different tasks. On the other hand, the rules applying to diplomatic relations through recent centuries have survived more than one world war conflict and even faced pandemics, far before the Covid-19. Time of emergency, when usual certainties are jeopardized, is therefore not completely precedential in the diplomatic world. While some significance is hidden in the Convention’s preambular recall that all nations recognized (a special) status of diplomats, diplomatic practice with regard to those emergency events in the pre-codification period (for instance a Spanish- flu pandemic in the early 20s), is rather scarcely recorded. 9 An in-depth historical excurse is beyond the scope of the present article, but – as evidenced during travaux – it may be 5 Adopted by the UN Conference on Diplomatic Intercourse and Immunities in Austria, Vienna, on 18 April, 1961. 6 Last update: 2/9/2021, source: treaties.un.org 7 As explains DENZA, E. Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, 3rd edition. Oxford: Oxford University Press, 2008, p. 2. 8 Preambular paragraph 5. 9 For a very authentic testimony given by a U.S. diplomat posted in Paris during the Spanish flu in 1918, see: Reed, Vivian: “ In the Eye of the Storm: A U.S. Diplomat Hugh Gibson and the Spanish Flu ”, 14 December 2020, available at https://blog.degruyter.com/in-the-eye-of-the-storm-u-s-diplomat-hugh-gibson-and-the-spanish-flu/ [20-5-2021].
michaela sýkorová CYIL 12 (2021) generally hard to observe any practice, evolved specifically to address pandemic or similar grave public concerns, that would be general and consistent enough to fulfil prerequisities of a customary rule. Notwithstanding the discussion above, theVienna Convention remains the proper starting point for further reflection and argumentation, whether in favour or against restricting the immunities; hence the key provisions that deserve attention in our research context. 2.1 Duty to accord full facilities for the performance of diplomatic functions A legitimate expectation of two States establishing mutual diplomatic relation is, that a mission of the sending State will perform without disturbance, and within the limits permitted by international law, the tasks for which it was mandated. Article 3 of the Vienna Convention provides a guideline on the functions officially performed by a mission 10 , which implies as well, that a State which has consented to receive a foreign mission, must allow the mission to perform its functions and to fulfil its mandate. This general presumption is strengthened by the duty of a receiving State to accord full facilities to the mission for the performance of its diplomatic functions. Embodied in Article 25, such an obligation in modern times foresees that a receiving State would, first, refrain from imposing obstacles to the mission’s legitimate activities 11 , and second, assist a foreign mission, if requested so, with any difficulty it encumbers while performing the official tasks. Accordingly, while not being precise in content, it is often invoked together with a more specific provision to give additional weight to such a claim based on that. 12 The travaux history shows that the meaning behind this provision is not boundless. The International Law Commission in its first commentaries on this rule, underscored that it is a reasonability of request that shapes the content and the limits of this obligation. 13 Thus, when a foreign mission addresses to a receiving State, the latter must not be reluctant to hear its concern and, in the spirit of reasonability and good faith, it is obliged to do its best to accommodate the mission’s request to the extent possible and to the extent permissible under its national law. This obligation, reflecting the fundamental principle ne impediatur legatio , may in no way be interpreted in the sense as imposing on the receiving State a burden to take impossible or unreasonable steps, or even to obstruct its own laws. Nor it is a carte blanche for presenting infinite requests, and the subsequent practice of States has confirmed such interpretation. 14 As will be discussed below, the issue how States have applied this provision during Covid-19 pandemic, is about exploring the right balance between this provision and another one, namely, the rule binding diplomats to respect receiving State’s laws and regulations. 2.2 Duty to respect local laws and regulations A duty of persons enjoying privileges and immunities to respect the laws and regulation of the receiving State reflected a customary rule, already well-established at the time of 10 See Article 3 paras. 1 and 2 of the VCDR. 11 DENZA, 2008, Commentary on Article 25, p. 200. 12 Ibid, p. 202. 13 ILC Yrbk 1958, vol. II, p. 96. 14 See DENZA, p. 201–203 where she reported cases and judicial decisions with regard to parking facilities and renewal of diplomatic number plates.
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… drafting. Anchored in Article 41 (1) of the Convention, it represents a key provision against the abuse of privileges and immunities, elaborating further on the general preambular clause regarding the functional background of the immunities, as contrary to the benefit of individuals. Despite encompassing a “without prejudice” wording, this provision is undoubtedly interpreted in a way that staff of the mission and their families are expected to respect the laws and regulations of the receiving State. 15 One may observe that this general non-exemption from the prescriptive jurisdiction of the receiving State does not conflict, at least in legal terms, with the exemption of those persons from enforcing jurisdiction, be it criminal, civil or administrative, as Article 31 and related provisions provide for. The ILC’s commentary from 1958 captures the substance of this rule probably in the clearest way 16 , that “ immunity from jurisdiction implies merely that the agent may not be brought before the courts if he fails to fulfil its obligations ”, with an essential addition, that such failure of diplomat “ does not absolve the receiving State from its duty to respect the agent’s immunity ”. The credit to the indisputability of this rule is also driven by the fact that respective provision was adopted during the Vienna Conference without discussion. 17 In the light of Covid-19 pandemic, and due to its worldwide impact, many sending States generally, acting also in protecting its own interest, explicitly instructed their missions abroad to obey with the local regulations and The elements of non-discrimination and reciprocity go hand in hand throughout the Convention, being explicitly or implicitly present in several provisions.The non-discrimination is a general principle emanating from the equality of States 18 that requests from the receiving State to refrain from inequal treatment towards foreign missions. Article 47, however, does not lay down the duty to apply the Convention provisions in an absolutely uniform way. The reciprocity is crucial here, and a bilateral diplomatic intercourse is nothing else than a well- balanced play of give and take. This is based on the fact that every single State is both a sending State and a receiving State, and how it treats other State’s diplomats today may establish a regime for its representatives tomorrow. As Denza 19 argues, more importance at Vienna Conference was attached to reciprocity than to non-discrimination, since States already had a great bilateral practice based on reciprocity and would hardly proceed to ratification if the Convention precluded them from having special bilateral arrangements seeking a mutually reciprocal convenience. Thus, the Convention makes it clear that more favourable treatment based on a custom or an agreement between States is not considered discriminatory, and so is the case where a restrictive application of the Convention by one State is merely responsive to the same manner of application by another. In the context of pandemic measures, if one points to the lists of ‘red’ or ‘green’ countries in terms of travel conditions for return and entry for instance, this almost forgotten rule has revived its strength. 15 See relevant States practice observed by DENZA, p. 461–463, and her reference to previous perception in history that the respect for local laws was not an obligation but rather a moral duty of diplomats. 16 ILC, Yearbook of the ILC, 1958, vol. II, Article 40 commentary, p. 104. 17 UNConference on Diplomatic Intercourse and Immunities, 2–14 April 1961, A/CONF.20/SR.10, 10th plenary meeting, p. 38. 18 ILC, Yearbook of the ILC, 1958, vol. II, p. 105. 19 DENZA, p. 497. preventive measures of receiving State. 2.3 Non-discrimination & reciprocity
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2.4 Privileges and immunities potentially affected Due to the diversity of preventive measures that States have applied to eliminate the spread of the pandemic, those can intervene with various privileges and immunities granted by the Convention. Ranging from entry and travel ban, forced quarantine and/or medical examination upon arrival, through tracing the contacts, digital tracking of movement, curfew and restriction of movement, up to forced relocations or hospitalisations, measures can directly hamper the performance of the mission’s official functions. Moreover, some of them may affect the personage or dignity of diplomat or his/her family member. Apart from the privilege of members of a foreign mission to move and travel freely within the territory of receiving State, sometimes – in cases, for instance, if the mission also performs consular functions, or if another office of the mission is established in other city or in cases of multiple accreditations, moving freely is not only a privilege, but also a necessary prerequisite of performing the official functions. It should therefore be underlined, that restrictions of movement may not only mean personal limitation that disturb diplomats but also, and this is more serious, under certain circumstances may encumber the smooth functioning of the mission itself. Indeed, Article 26 of the Convention is definitely one of the most concerned provision if discussing privileges potentially affected by pandemic measures. It stipulates that receiving State is bound to ensure to all members of the mission freedom of movement and travel within its territory, unless prohibited under national law or regulations for reasons of security. The inviolability of premises, firmly anchored in Article 22, and equivalent protection of personal residence granted by Article 30, may also be vulnerable. Further, personal inviolability and dignity protection, envisaged by Article 29 20 , is crucial when facing an obligatory medical examination. Not less importantly, according to Article 31 diplomatic agents enjoy immunity from criminal jurisdiction, and partially from civil and administrative jurisdictions, which raises an issue at the enforcement stage and points to impermissibility of sanctions in whatever form. The aforementioned provisions apply, similarly, to family members of diplomatic agents. 21 Other staff of the mission enjoying less privileged status, namely administrative and technical staff, is likely personally inviolable, and immune to the extent they perform acts within the course of their duties. 22 Here, it is appropriate to add that the aforementioned provisions of the Vienna Convention are not only contractual obligations but also obligations under general international law. 23 3. Reasonable interpretation of the Convention Even a less careful reader may observe that the Vienna Convention itself does not contain any specific provision enabling a restriction of privileges and immunities due to public health or, in general, any rule regarding epidemiologic or sanitary concern. But so is the case for many other situations not explicitly covered by the Convention: from the droit de chapelle and issue of protection of embassy bank accounts, through the inviolability in digital sense within a cyberspace and x-raying of diplomatic bags, to the status of locally hired staff. On 20 Article 29 of the VCDR. 21 Article 37 para 1 of the Convention. 22 Article 37 para 2 of the Convention. 23 See ICJ, Diplomatic and Consular Staff in Tehran (United States v. Iran) , Judgment of 24 May 1980, para. 62.
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… the other hand, when interpreting a treaty, focusing solely on words and ordinary meaning of the terms employed therein would not only be short-sighted, but would also contravene with well-settled and custom-based rules of treaty interpretation. 24 Thus, the same attention should be paid to the object and purpose, as well as the overall context of the Convention during the travaux. The subsequent practice in maintaining the diplomatic intercourses has shaped the interpretation of the Convention over time as well. Finally, one should not forget the other applicable rules of international law, since the Convention itself does not intend to exist in a legal vacuum. The following part addresses those three in turn. 3.1 Object & purpose and overall context It is interesting to note that a widespread support to give the topic of diplomatic intercourse a priority had not incurred from the very beginning. 25 Yet, in 1958 the codification draft was completed when the International Law Commission adopted 45 draft articles with commentaries. 26 A vital attention attached to this result was clearly visible in 1961, when the Vienna Conference was taking place with the participation of more than 80 delegations. The object and purpose of the Convention have been incorporated in the five preambular paragraphs, from which two, in particular, have relevance for the present article. Recalling that the status of diplomats has been recognized by people of all nations from ancient times , leaves no doubt that a special legal regime for those persons, as contrary to ordinary visitors or citizens, has been established. It further implies, that this speciality as such has not been contested through the ages and the existence of immunities themselves has not been a disputable issue. The crucial debate at the Conference was, on the other hand, about the legitimate limits and roots of immunities, i.e. the element of their functional necessity and the representation of States. 27 The compromise of the debate was finally settled into the forth preambular paragraph, revealing the rationale of immunities, which is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States . 28 Indeed, regarding this formulation in the pandemic context one may denote that imposing restrictive measures vis-à-vis diplomats, that affect the efficient performance of the mission’s functions, may not only constitute a situation beyond the purpose of the Convention, but may also be viewed as a step indirectly impinging on the States who are represented by their missions. The functional necessity element recalls, inter alia , the fact that the privileges and immunities are not limitless. Their boundaries are implicitly based on their reasonability: States drafting the Convention seem to intend that privileging a diplomat should reflect that and only that he or she conducts a service to the sending State, and it is reasonable for the 24 See Article 31 para 1 of the Vienna Convention on the Law of Treaties. 25 Originally from an initiative of Yugoslav permanent representative to the United Nations, in the letter of 7 July 1952, and later under the mandate given to the Commission by the Sixth Committee, the Commission decided at its fifth and sixth sessions, respectively, to treat the topic of diplomatic immunities with priority and to appoint Special Rapporteur A. E. F. Sandstrom. See ILC Yearbook, 1955, vol. II, p. 13, and ILC Yearbook, 1958, vol. II, p. 89. 26 Ibid. 27 A Swiss proposal. See UN Official Records of the Vienna Conference, vol. I, A/CONF.20/C.1/SR.39, 39th meeting of the Committee of the Whole, 4 April 1961, p. 227 ff. 28 UN Offcial Records of teh Vienna Conference, vol. I, A/CONF.20/SR.4, 4th plenary meeting, 10 April 1961, p. 7.
michaela sýkorová CYIL 12 (2021) receiving State to acknowledge the performance of such an official mandate given by other sovereign. This is, of course, only a theoretical guidance that could serve as a starting point when discussing the restriction of immunities. Hence, when focused on the text through the Convention, it is noteworthy to underline that some of the provisions may shed some light to this point. Interpreting those provisions in overall context, there is a valid presumption that despite of this functional necessity limitation of the privileges and immunities, certain of them are meant to be – at least prima facie – boundless, without leaving any potential for interference. The inviolability of the mission’s premises is the clearest example. Thus, Article 22 does not include any exception and makes it sure that the protection given to the premises must be absolute, as Denza adds, “ no pretext of public emergency … may justify entry by the authorities of the receiving State ”. 29 However, during the travaux such a definite approach was not employed. The first draft of the Special Rapporteur counted on situations of extreme emergency, of grave and imminent danger to a human life or – to a public health. In such cases, he proposed, the local organs had right to entry to premises, based on the authorisation of the Ministry of Foreign Affairs as an alternative to the consent normally required from head of the mission. 30 During the following discussion among members of the ILC, however, there was an uncertainty whether such customary rule had established, and the only case regarding epidemic of yellow fever was cited, giving evidence to the contrary. 31 The States at the Vienna Conference, when referring explicitly to epidemic or other extreme situation, suggested that a head of mission should be a reasonable person and that it would be inconceivable to expect that he or she would refuse to take preventive measures against such events or, in such cases, would not co-operate with local authorities. 32 Consequently, there was a prevailing view 33 that any unclear exception from the inviolability in cases of public emergency could give to the receiving State a tool for misuse a situation, so the final text was customized without any possibility for derogation of the consent. This provision contrasts with inviolability of consular premises where States favoured for such an exception of the rule. 34 The absolute protection of embassy’s premises is further strengthened by wording in Article 45(1) which imposes such an obligation upon receiving State even in case of breaking diplomatic relations or during the armed conflict. 29 DENZA, 2008, p. 4. 30 A proposal drafted in the Report of the Special Rapporteur, 7th session of the ILC, 1955, UN Doc A/CN.4/91, p. 12, proposed as Article 12 para 1. (translated by author from French): „ Il n‘est pas permis aux agents et aux autorites du Gouvernement accreditaire d‘y penetrer sauf avec le consentement du chef de la mission ou, en cas d‘extreme urgence, afin d‘eliminer des risques graves et imminents pour la vie humaine, les biens ou la sante de la population ou pour sauvegarder la securite de l‘Etat. Dans ces derniers cas l‘autorisation du ministere des affaires etrangeres doit, si possible, etre obtenue“. 31 A cited case referred to an effort of Brazilian authorities to trace a suspected source of infection within the embassy and to “ head of mission that remained deaf to every appeal of co-operation ” so the local authorities could not entry into premises. ILC, Yearbook of the ILC, 1957, vol. I, p. 56. 32 Mexican proposal to include duty to co-operate in case of fire, epidemic or other extreme emergency was therefore not supported. See the statements made by France, Romania, Czechoslovakia and Iran. Official Records of the Vienna Conference, 22th Meeting of the Committee of the Whole, A/CONF.20/C.1/SR.22, p. 137 ff. 33 See summary of the discussion, Official Records of the Vienna Conference, 21st, 22nd and 23rd meeting, 20 March 1961 and 21 March 1961. Emergency context was not at all discussed within articles concerning freedom of movement, which itself allows for a restriction in case of security interest of the receiving State, and the personal inviolability of diplomats. 34 Cf. Vienna Convention on Consular Relations, 1963, Article 31.
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… To complement the overall context of the Convention, it is relevant to refer to the explicit restrictions in the Convention as to the extent of immunity from jurisdiction: Article 31(1) provides for three situations where diplomats are not immune from the civil and administrative jurisdictions. On the other hand, immunity from criminal jurisdiction as well as the personal inviolability granted by Article 29 are both formulated in absolute wording, leaving no exception. The duty of diplomats to respect the laws and regulations of the receiving States, discussed before, may also not be forgotten in the overall context of the Convention. It may be, eventually, another footprint of the functional necessity element, echoed in the Preamble. As follows from the aforesaid, while the functional necessity might serve as a general ‘mental’ limitation for personal privileges and immunities, a diverse approach was applied in the Convention when it comes to respective immunities in concreto . Not less important footnote is that States – at the Vienna Conference period – were reluctant to narrow the scope of some essential privileges even in cases of public emergency or similar grave situations. It remained therefore to the decades to come to test whether this firm opinio would have changed or not. 3.2 Subsequent practice and judicial interpretation over time The life of the Convention since the sixties has not been easy and experienced various situations either not explicitly covered by or, on the contrary, blatantly breaching its provisions. Although epidemics were also present during past 60 years of the Convention’s existence, and we can name few like the Hong Kong Flu in 1968, the H1N1 influenza (swine flu) in 2009–2010, the MERS coronavirus in 2012, the Ebola virus in 2014–2016 or the Zika virus in 2015–2016, unlike the COVID-19 pandemic, the scale of emergency in all formerly mentioned did not reach worldwide. 35 Preventive measures, if taken, were applied mainly regionally with few cases of restrictive policy 36 vis-à-vis foreign missions, and the WHO itself did not even advise imposing general bans on international travel. 37 35 All these were under scaled in terms of geographic spread, transmission potential or victim rates, if compared to the novel coronavirus and the COVID-19 pandemic. Cited according to WHO, Regional Office for Europe website. Only the outbreak of Ebola virus in West Africa and the Zika virus in Americas, were declared in 2014 and 2016, respectively, public health emergencies of international concern by the WHO. See https://www.euro. who.int/en/health-topics/communicable-diseases/pages/news/news/2014/08/ebola-outbreak-in-west-africa- declared-a-public-health-emergency-of-international-concern [27-05-2021]. 36 See for illustration, a quarantine measure applied by Nicaragua upon a member of U.S. Embassy in the context of ebola virus in April 2015, available here https://www.bbc.com/news/world-latin-america-32296244 [accessed 27-05-2021]; or a practice by North Korea: Pearson, James, “ N. Korea warns diplomats under Ebola quarantine: no more parties “, February 13, 2015, available here https://www.reuters.com/article/us-northkorea- ebola-idUSKBN0LH0SS20150213 [27-05-2021] and here: https://www.theguardian.com/world/2014/ oct/30/north-korea-quarantine-foreigners-ebola [27-05-2021]. Compare, for instance, with approach by the U.S.: https://2009-2017.state.gov/ofm/emergency/ebola/index.htm [27-05-2021] or Iraq, requiring health- clearance certificates from every person entering the territory, except for holders of diplomatic passports, cited by Rhymer, Wendy & Speare, Rick: Countries‘ Response to WHO’s travel recommendations during the 2014-2016 Ebola outbreak, In Bulletin of the WHO 2017, vol. 95, pp. 10-17, available here https://www.who. int/bulletin/volumes/95/1/16-171579/en/ [27-05-2021]. 37 Fever screening at the airports were recommended instead. See in detail Rhymer, Wendy & Speare, Rick: Countries‘ Response to WHO’s travel recommendations during the 2013-2016 Ebola outbreak, In Bulletin of the WHO 2017, vol. 95, pp. 10-17, available here https://www.who.int/bulletin/volumes/95/1/16-171579/ en/ [27-05-2021], where authors, interestingly, find exemption of diplomatic passport holders from the duty to
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