CYIL vol. 12 (2021)
CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… all are steps practically having an impact, whether direct or not, on the efficient performance of the mission’s functions, and, what is more relevant for the present article, may interfere with privileges and immunities of its staff. Recalling that the Vienna Convention itself balances the provisions on immunities with that one imposing on their “beneficiaries” a duty to respect laws and regulations of the receiving State, two pertinent questions arise: are those persons obliged to respect local pandemic measures, and are such measures permissible under the Vienna Convention? The answers are to be searched both in the relevant provisions of the Convention and their interpretation, as well as in its application in the pandemic State practice. 2. The key provisions of the Vienna Convention The Vienna Convention on Diplomatic Relations (“VCDR”) 5 is nowadays one of the most universal treaties worldwide. Throughout 60 years of its existence it has gained 193 State Parties 6 . The most cited reasons of its success and wide support refer to the essentiality of the subject-matter of diplomatic relations itself, coupled with the stability of the majority of rules that have not changed significantly since the times of Vattel. 7 Yet the Convention, despite its universality and sufficient flexibility to face modern phenomena shaping international politics in recent decades, is not itself the only source of diplomatic law. Codifying largely the pre-existing customary law, the preamble of the Convention does not leave any doubt, that customary rules continue to govern questions not embodied in the Convention. 8 Accordingly, if there is within the Convention an absence of the possibility to restrict privileges and immunities, for instance in a time of emergency or due to grave public concern, an instinctive conclusion that such restrictions would be unlawful, might just be well premature. One must admit, that neither the Convention predecessors explicitly addressed this issue. The earlier multilateral codifications or attempts, such as the Vienna Regulation of 1815 regarding the classes and precedence of heads of mission or the Harvard Draft Convention on Diplomatic Privileges and Immunities of 1932, focused on different tasks. On the other hand, the rules applying to diplomatic relations through recent centuries have survived more than one world war conflict and even faced pandemics, far before the Covid-19. Time of emergency, when usual certainties are jeopardized, is therefore not completely precedential in the diplomatic world. While some significance is hidden in the Convention’s preambular recall that all nations recognized (a special) status of diplomats, diplomatic practice with regard to those emergency events in the pre-codification period (for instance a Spanish- flu pandemic in the early 20s), is rather scarcely recorded. 9 An in-depth historical excurse is beyond the scope of the present article, but – as evidenced during travaux – it may be 5 Adopted by the UN Conference on Diplomatic Intercourse and Immunities in Austria, Vienna, on 18 April, 1961. 6 Last update: 2/9/2021, source: treaties.un.org 7 As explains DENZA, E. Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, 3rd edition. Oxford: Oxford University Press, 2008, p. 2. 8 Preambular paragraph 5. 9 For a very authentic testimony given by a U.S. diplomat posted in Paris during the Spanish flu in 1918, see: Reed, Vivian: “ In the Eye of the Storm: A U.S. Diplomat Hugh Gibson and the Spanish Flu ”, 14 December 2020, available at https://blog.degruyter.com/in-the-eye-of-the-storm-u-s-diplomat-hugh-gibson-and-the-spanish-flu/ [20-5-2021].
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