CYIL vol. 12 (2021)
CYIL 12 (2021)
2.4 Privileges and immunities potentially affected Due to the diversity of preventive measures that States have applied to eliminate the spread of the pandemic, those can intervene with various privileges and immunities granted by the Convention. Ranging from entry and travel ban, forced quarantine and/or medical examination upon arrival, through tracing the contacts, digital tracking of movement, curfew and restriction of movement, up to forced relocations or hospitalisations, measures can directly hamper the performance of the mission’s official functions. Moreover, some of them may affect the personage or dignity of diplomat or his/her family member. Apart from the privilege of members of a foreign mission to move and travel freely within the territory of receiving State, sometimes – in cases, for instance, if the mission also performs consular functions, or if another office of the mission is established in other city or in cases of multiple accreditations, moving freely is not only a privilege, but also a necessary prerequisite of performing the official functions. It should therefore be underlined, that restrictions of movement may not only mean personal limitation that disturb diplomats but also, and this is more serious, under certain circumstances may encumber the smooth functioning of the mission itself. Indeed, Article 26 of the Convention is definitely one of the most concerned provision if discussing privileges potentially affected by pandemic measures. It stipulates that receiving State is bound to ensure to all members of the mission freedom of movement and travel within its territory, unless prohibited under national law or regulations for reasons of security. The inviolability of premises, firmly anchored in Article 22, and equivalent protection of personal residence granted by Article 30, may also be vulnerable. Further, personal inviolability and dignity protection, envisaged by Article 29 20 , is crucial when facing an obligatory medical examination. Not less importantly, according to Article 31 diplomatic agents enjoy immunity from criminal jurisdiction, and partially from civil and administrative jurisdictions, which raises an issue at the enforcement stage and points to impermissibility of sanctions in whatever form. The aforementioned provisions apply, similarly, to family members of diplomatic agents. 21 Other staff of the mission enjoying less privileged status, namely administrative and technical staff, is likely personally inviolable, and immune to the extent they perform acts within the course of their duties. 22 Here, it is appropriate to add that the aforementioned provisions of the Vienna Convention are not only contractual obligations but also obligations under general international law. 23 3. Reasonable interpretation of the Convention Even a less careful reader may observe that the Vienna Convention itself does not contain any specific provision enabling a restriction of privileges and immunities due to public health or, in general, any rule regarding epidemiologic or sanitary concern. But so is the case for many other situations not explicitly covered by the Convention: from the droit de chapelle and issue of protection of embassy bank accounts, through the inviolability in digital sense within a cyberspace and x-raying of diplomatic bags, to the status of locally hired staff. On 20 Article 29 of the VCDR. 21 Article 37 para 1 of the Convention. 22 Article 37 para 2 of the Convention. 23 See ICJ, Diplomatic and Consular Staff in Tehran (United States v. Iran) , Judgment of 24 May 1980, para. 62.
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