CYIL vol. 12 (2021)

CYIL 12 (2021) RESTRICTING DIPLOMATIC PRIVILEGES IN THE PROTECTION OF PUBLIC HEALTH?… the other hand, when interpreting a treaty, focusing solely on words and ordinary meaning of the terms employed therein would not only be short-sighted, but would also contravene with well-settled and custom-based rules of treaty interpretation. 24 Thus, the same attention should be paid to the object and purpose, as well as the overall context of the Convention during the travaux. The subsequent practice in maintaining the diplomatic intercourses has shaped the interpretation of the Convention over time as well. Finally, one should not forget the other applicable rules of international law, since the Convention itself does not intend to exist in a legal vacuum. The following part addresses those three in turn. 3.1 Object & purpose and overall context It is interesting to note that a widespread support to give the topic of diplomatic intercourse a priority had not incurred from the very beginning. 25 Yet, in 1958 the codification draft was completed when the International Law Commission adopted 45 draft articles with commentaries. 26 A vital attention attached to this result was clearly visible in 1961, when the Vienna Conference was taking place with the participation of more than 80 delegations. The object and purpose of the Convention have been incorporated in the five preambular paragraphs, from which two, in particular, have relevance for the present article. Recalling that the status of diplomats has been recognized by people of all nations from ancient times , leaves no doubt that a special legal regime for those persons, as contrary to ordinary visitors or citizens, has been established. It further implies, that this speciality as such has not been contested through the ages and the existence of immunities themselves has not been a disputable issue. The crucial debate at the Conference was, on the other hand, about the legitimate limits and roots of immunities, i.e. the element of their functional necessity and the representation of States. 27 The compromise of the debate was finally settled into the forth preambular paragraph, revealing the rationale of immunities, which is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States . 28 Indeed, regarding this formulation in the pandemic context one may denote that imposing restrictive measures vis-à-vis diplomats, that affect the efficient performance of the mission’s functions, may not only constitute a situation beyond the purpose of the Convention, but may also be viewed as a step indirectly impinging on the States who are represented by their missions. The functional necessity element recalls, inter alia , the fact that the privileges and immunities are not limitless. Their boundaries are implicitly based on their reasonability: States drafting the Convention seem to intend that privileging a diplomat should reflect that and only that he or she conducts a service to the sending State, and it is reasonable for the 24 See Article 31 para 1 of the Vienna Convention on the Law of Treaties. 25 Originally from an initiative of Yugoslav permanent representative to the United Nations, in the letter of 7 July 1952, and later under the mandate given to the Commission by the Sixth Committee, the Commission decided at its fifth and sixth sessions, respectively, to treat the topic of diplomatic immunities with priority and to appoint Special Rapporteur A. E. F. Sandstrom. See ILC Yearbook, 1955, vol. II, p. 13, and ILC Yearbook, 1958, vol. II, p. 89. 26 Ibid. 27 A Swiss proposal. See UN Official Records of the Vienna Conference, vol. I, A/CONF.20/C.1/SR.39, 39th meeting of the Committee of the Whole, 4 April 1961, p. 227 ff. 28 UN Offcial Records of teh Vienna Conference, vol. I, A/CONF.20/SR.4, 4th plenary meeting, 10 April 1961, p. 7.


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