CYIL vol. 12 (2021)

CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… dignity of a diplomatic agent. Second, a measure must be reasonably targeted and thus be aimed to fulfil its purpose which is to protect public health or a diplomat’s health. Third, a measure must be necessary, meaning than the aim cannot be achieved by other means, and proportionate – in terms of time, extent and scope – towards the interest protected, assessing carefully the particular context and potential risk. The first criterion is legally based on Article 41 (1) and Article 29 of the VCDR. Mainly, the inviolability of persons, premises, property and archives must be respected at all times, as the Convention itself stipulates. Moreover, measures cannot be forcibly imposed nor be enforced by any means of sanction or constraint as it would run contrary to the immunity from jurisdiction. It is, however, understood that privileges and immunities are protected from being affected so long as they ensure the efficient performance of the mission’s functions. Reasonability, necessity and proportionality are anchored firmly in international law, be it in the law of responsibility or human rights law. Indeed, these principles have to be followed whenever a State derogates from compliance or has to deviate from ensuring a normal course of events. Last but not least, all mentioned criteria have to be assessed on case-by-case basis. In this sense, they not only have to be tested against a particular nature of a measure in question but also, they have to take into account a specific context, actual pandemic situation in a country in the context of both the scale of outbreak and the ability of country’s critical infrastructure to respond emergencies. Similarly, the status of a person may be decisive, since different extent of immunities and privileges may be granted to diplomatic representatives, consular agents, their family members and to technical, administrative and service staff; needless to remind a different position of locally hired nationals or residents of the receiving State. Thus, the treatment of a spouse of diplomatic representative may alter if he or she performs a gainful occupation within the receiving State and is requested by the employer to fully comply with the measures imposed. 4.3 Brief analysis of concrete measures On the basis of the aforesaid, the last part is dedicated to an indicative assessment of the particular measures that have been commonly imposed by States during the COVID-19 pandemic. For the academic purposes of analysing the permissibility one may divide measures into three groups, counting the measures that are contrary, or very likely contrary, to diplomatic law, then those that are (in principle) admittable, and finally those that are particularly context-sensitive and where the threshold for lawfulness may vary significantly. The first mentioned refer to measures that either disregard immunities or dignity of diplomats or simply fail to meet the proportionality, necessity and reasonability tests. Examples may be viewed in any form of mandatory quarantine in mass or public facilities, relocation or forced hospitalization, subjecting to medical treatment without consent or non-voluntary vaccination. These all hamper diplomatic agent’s personal inviolability under Article 29 and the freedom of movement under Article 26. Those provisions are also undoubtedly affected by mobile or electronic tracing applications, whereas any permanent monitoring of movement of a diplomat is far beyond lawfulness. So is the case for entering into mission’s premises or diplomats’ residences without prior consent, for instance for the purpose of disinfection. Such an action would be a flagrant breach of Article 22, providing for the inviolability of premises. Similarly, closure of embassies, prescribing a mandatory teleworking or otherwise preventing a mission and its members from performing the official


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