CYIL vol. 12 (2021)
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.
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