CYIL vol. 12 (2021)
michaela sýkorová CYIL 12 (2021) generally hard to observe any practice, evolved specifically to address pandemic or similar grave public concerns, that would be general and consistent enough to fulfil prerequisities of a customary rule. Notwithstanding the discussion above, theVienna Convention remains the proper starting point for further reflection and argumentation, whether in favour or against restricting the immunities; hence the key provisions that deserve attention in our research context. 2.1 Duty to accord full facilities for the performance of diplomatic functions A legitimate expectation of two States establishing mutual diplomatic relation is, that a mission of the sending State will perform without disturbance, and within the limits permitted by international law, the tasks for which it was mandated. Article 3 of the Vienna Convention provides a guideline on the functions officially performed by a mission 10 , which implies as well, that a State which has consented to receive a foreign mission, must allow the mission to perform its functions and to fulfil its mandate. This general presumption is strengthened by the duty of a receiving State to accord full facilities to the mission for the performance of its diplomatic functions. Embodied in Article 25, such an obligation in modern times foresees that a receiving State would, first, refrain from imposing obstacles to the mission’s legitimate activities 11 , and second, assist a foreign mission, if requested so, with any difficulty it encumbers while performing the official tasks. Accordingly, while not being precise in content, it is often invoked together with a more specific provision to give additional weight to such a claim based on that. 12 The travaux history shows that the meaning behind this provision is not boundless. The International Law Commission in its first commentaries on this rule, underscored that it is a reasonability of request that shapes the content and the limits of this obligation. 13 Thus, when a foreign mission addresses to a receiving State, the latter must not be reluctant to hear its concern and, in the spirit of reasonability and good faith, it is obliged to do its best to accommodate the mission’s request to the extent possible and to the extent permissible under its national law. This obligation, reflecting the fundamental principle ne impediatur legatio , may in no way be interpreted in the sense as imposing on the receiving State a burden to take impossible or unreasonable steps, or even to obstruct its own laws. Nor it is a carte blanche for presenting infinite requests, and the subsequent practice of States has confirmed such interpretation. 14 As will be discussed below, the issue how States have applied this provision during Covid-19 pandemic, is about exploring the right balance between this provision and another one, namely, the rule binding diplomats to respect receiving State’s laws and regulations. 2.2 Duty to respect local laws and regulations A duty of persons enjoying privileges and immunities to respect the laws and regulation of the receiving State reflected a customary rule, already well-established at the time of 10 See Article 3 paras. 1 and 2 of the VCDR. 11 DENZA, 2008, Commentary on Article 25, p. 200. 12 Ibid, p. 202. 13 ILC Yrbk 1958, vol. II, p. 96. 14 See DENZA, p. 201–203 where she reported cases and judicial decisions with regard to parking facilities and renewal of diplomatic number plates.
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