CYIL vol. 12 (2021)

michaela sýkorová

CYIL 12 (2021)

4.2 The criteria for lawfulness Certain common tendencies may be conceived from the above-reported States practice. However, it must be said that the measures adopted have been brought into the attention of foreign embassies often without any specific reference to the Vienna Convention nor to any other diplomatic rule. Since those approaches only descriptively reflect certain attitudes of States in facing the pandemic that has affected also foreign diplomats, they cannot themselves be considered as a practice qualifiable to a legally binding customary rule. Nevertheless, the examples from practice expose some level of uniformity and they do not go beyond certain threshold, revealing thus, at least indicatively, the basis of opinio juris on the question of how States accommodate the implementation of necessary measures vis-à-vis immunities of certain persons. It is very likely that government legal advisors worldwide have been busy by providing legal advice on how to tackle the public health concerns while complying with all State’s obligations under international law. Those legal analysis, however, are not publicly available, which prevent us to research thoroughly whether some consensus exists among States on certain criteria under which those restrictive measures against diplomats are lawful or not. Nevertheless, some general guidance may be implied from the statements given by States at the UNGA 6 th Committee. Having assessed those, together with assertions on the interpretation of the Convention, suggested above, the author provides below for her own legal analysis on the appropriate threshold of lawfulness. During the 75 th UN General Assembly, when the regular topic on measures enhancing the protection of diplomatic and consular staff was discussed at the 6 th committee, various States pointed to the importance of respecting those persons’ immunities specifically in the times of pandemic. In particular, delegations emphasized that the duty to respect local laws and regulations under the Vienna Convention had to be balanced with preserving, to the extent possible and reasonable, the exercise of diplomatic functions, as well as the enjoyment of privileges and immunities of diplomatic representatives. 68 They considered rules of diplomatic and consular law being applicable even in exceptional or crisis circumstances, and highlighted the essentiality of respecting the inviolability of missions and persons. 69 At the same time, the duty of diplomats to respect the laws of regulations of the receiving State, including measures protecting public health, was underlined, and in this vein, States remarked that the balance between those two elements of the Vienna Convention should be maintained. 70 Also, the principles of proportionality and of sovereign equality of States were referred to. All those elements mentioned by States during the 6 th committee debate can serve as complementary points to the aforesaid discussion on the reasonable interpretation of the Convention in the light of its object and purpose, overall context, the subsequent practice and other relevant rules of international law. Taken into account all those together, following general criteria of cumulative nature can be derived, for considering measures permissible under international (diplomatic) law. First, a measure may not prejudice privileges and immunities, and must be respectful to status and 68 Summary of work, Sixth Committee, 75th session, Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives ( Agenda item 84 ), cited here https://www. un.org/en/ga/sixth/75/protection_of_diplomats.shtml [1-7-2021]. 69 Ibid, see Statement by Finlad of 10 November 2020, on behalf of Nordic countries. 70 Ibid. Statement by the EU of 10 November 2020, on behalf of its Member States and candidate countries; Statement by Portugal.

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