CYIL vol. 12 (2021)

CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… drafting. Anchored in Article 41 (1) of the Convention, it represents a key provision against the abuse of privileges and immunities, elaborating further on the general preambular clause regarding the functional background of the immunities, as contrary to the benefit of individuals. Despite encompassing a “without prejudice” wording, this provision is undoubtedly interpreted in a way that staff of the mission and their families are expected to respect the laws and regulations of the receiving State. 15 One may observe that this general non-exemption from the prescriptive jurisdiction of the receiving State does not conflict, at least in legal terms, with the exemption of those persons from enforcing jurisdiction, be it criminal, civil or administrative, as Article 31 and related provisions provide for. The ILC’s commentary from 1958 captures the substance of this rule probably in the clearest way 16 , that “ immunity from jurisdiction implies merely that the agent may not be brought before the courts if he fails to fulfil its obligations ”, with an essential addition, that such failure of diplomat “ does not absolve the receiving State from its duty to respect the agent’s immunity ”. The credit to the indisputability of this rule is also driven by the fact that respective provision was adopted during the Vienna Conference without discussion. 17 In the light of Covid-19 pandemic, and due to its worldwide impact, many sending States generally, acting also in protecting its own interest, explicitly instructed their missions abroad to obey with the local regulations and The elements of non-discrimination and reciprocity go hand in hand throughout the Convention, being explicitly or implicitly present in several provisions.The non-discrimination is a general principle emanating from the equality of States 18 that requests from the receiving State to refrain from inequal treatment towards foreign missions. Article 47, however, does not lay down the duty to apply the Convention provisions in an absolutely uniform way. The reciprocity is crucial here, and a bilateral diplomatic intercourse is nothing else than a well- balanced play of give and take. This is based on the fact that every single State is both a sending State and a receiving State, and how it treats other State’s diplomats today may establish a regime for its representatives tomorrow. As Denza 19 argues, more importance at Vienna Conference was attached to reciprocity than to non-discrimination, since States already had a great bilateral practice based on reciprocity and would hardly proceed to ratification if the Convention precluded them from having special bilateral arrangements seeking a mutually reciprocal convenience. Thus, the Convention makes it clear that more favourable treatment based on a custom or an agreement between States is not considered discriminatory, and so is the case where a restrictive application of the Convention by one State is merely responsive to the same manner of application by another. In the context of pandemic measures, if one points to the lists of ‘red’ or ‘green’ countries in terms of travel conditions for return and entry for instance, this almost forgotten rule has revived its strength. 15 See relevant States practice observed by DENZA, p. 461–463, and her reference to previous perception in history that the respect for local laws was not an obligation but rather a moral duty of diplomats. 16 ILC, Yearbook of the ILC, 1958, vol. II, Article 40 commentary, p. 104. 17 UNConference on Diplomatic Intercourse and Immunities, 2–14 April 1961, A/CONF.20/SR.10, 10th plenary meeting, p. 38. 18 ILC, Yearbook of the ILC, 1958, vol. II, p. 105. 19 DENZA, p. 497. preventive measures of receiving State. 2.3 Non-discrimination & reciprocity


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