CYIL vol. 12 (2021)
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.
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