CYIL vol. 12 (2021)

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. 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 [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 ebola-idUSKBN0LH0SS20150213 [27-05-2021] and here: oct/30/north-korea-quarantine-foreigners-ebola [27-05-2021]. Compare, for instance, with approach by the U.S.: [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 en/ [27-05-2021], where authors, interestingly, find exemption of diplomatic passport holders from the duty to


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