Published: 05 October 2021 Author: Stefan Talmon
On 31 December 2019, the World Health Organisation (WHO) learnt of cases of viral pneumonia with an unknown cause in Wuhan City, Hubei Province, China. At the beginning of January 2020, the WHO started to share information about the cluster of cases in China and advised Member States to take precautions to reduce the risk of acute respiratory infections. On 7 January 2020, the Chinese authorities determined that the outbreak was caused by a novel coronavirus. Coronaviruses are a large family of viruses that cause illness ranging from the common cold to severe diseases. On 11 January 2020, the Chinese media reported the first deaths from the novel coronavirus; two days later, Thailand reported the first case outside China. In mid-January, evidence of human-to-human transmission emerged. On 27 January 2020, the WHO urged countries in the South-East Asia Region to focus on their readiness for the rapid detection of imported cases and prevention of further spread. On 30 January 2020, the WHO Director-General declared the novel coronavirus outbreak a public health emergency of international concern, WHO’s highest level of alarm. On 11 February 2020, WHO announced that the disease caused by the novel coronavirus would be named “COVID-19”.
The Democratic People’s Republic of Korea (DPRK or North Korea) was ill-equipped to deal with the novel coronavirus pandemic. Mismanagement and international sanctions meant that the country lacked the/sufficient medical supplies to prevent, diagnose and treat COVID-19. In addition, more than 40 per cent of the population were chronically undernourished and thus vulnerable to disease. Any outbreak of the virus could have led to a humanitarian catastrophe with mass deaths. Given its geographic proximity to China and South Korea, the two countries with the highest number of COVID-19 cases at the time, North Korea took unprecedented and drastic measures to prevent an outbreak of the novel coronavirus within its borders – measures that also affected the diplomatic corps in the capital, Pyongyang.
On 30 January 2020, North Korean State news agency KCNA reported that the government had declared a “State emergency” in view of the coronavirus pandemic. On the same day, the DPRK Ministry of Foreign Affairs sent a note verbale to all foreign diplomatic missions informing them about the suspension of railway and air traffic between North Korea and China from 31 January 2020 and for an indefinite time in accordance with State measures to prevent the spread of a new type of coronavirus. This was followed on 31 January 2020 by another note on new quarantine measures regarding foreign citizens in the DPRK. The note provided for the following measures:
“First, employees and guests of diplomatic missions and representative offices of international organisations accredited in the DPRK, arriving from China directly or in transit through Russia, are isolated in their places of residence for 15 days.
Second, employees and guests of diplomatic missions and representative offices who arrived in the DPRK from 13 January 2020 are subject to medical examination by the staff of the Pyongyang Friendship Hospital for the diplomatic corps in their places of residence.
Thirdly, the staff of the Friendship Hospital will regularly visit diplomatic missions and representative offices and conduct inspections. Those employees who are suspected of being infected with a new type of coronavirus will be immediately delivered to certain places of isolation of foreigners that were previously reported.
Fourth, employees of diplomatic missions and representative offices isolated for medical supervision are strictly prohibited from visiting public places and being in contact with other people.
Fifth, the flight on the route Pyongyang-Vladivostok-Pyongyang ceases indefinitely.
Sixth, during February there will not be any kind of events, protocol visits and conversations. Conversations on urgent issues will be organized in the form of a telephone conversation.”
On 3 February 2020, it was reported that local medical staff were screening the temperature of foreign nationals using thermal imaging devices in the Munso-Dong diplomatic compound in Pyongyang’s Taedonggang District. The compound houses all foreign diplomatic missions with the exception of the Russian and Chinese embassies, which are located in the Central and Moranbong District, respectively. At the heart of the Munso-Dong diplomatic compound is the former East German embassy premises, which house the diplomatic missions of Germany, Sweden, and the United Kingdom.
On 4 February 2020, the DPRK Foreign Ministry sent another note to the diplomatic missions informing them about additional quarantine measures. The note was reported to read as follows:
“1. Considering that the last date of entry for some diplomatic mission staff is 31 January 2020, and during this period quarantined persons violated the [quarantine] regime and contacted other representatives of the diplomatic corps, the period of medical supervision for members of the diplomatic corps is set until 15 February 2020.
In this period:
– It is recommended that the staff of diplomatic missions and representative offices of international organisations, whenever possible, avoid contact with quarantined persons and move only within the diplomatic quarter.
– In connection with the suspension for an indefinite period of service in hotels, shops, restaurants, in the market on Tongil Street and other places within Pyongyang, as well as services for foreigners in the Taedonggang Diplomatic Club, you should use the service network located in the hotel for foreigners within the Munsu-Dong diplomatic quarter.
– The services concerning heating representative offices, providing fuel for machinery and equipment, repairing cars, and other household needs will be provided, as before, by the DPRK Diplomatic Corps Office.
– At medical posts established at the main entrances to the Embassy of Russia, the Embassy of the People’s Republic of China, the Munsu-Dong diplomatic quarter of the Taedonggang District, medical checks will be conducted.
– In case quarantined people leave the quarantine and go outside the city, as well as in the case of non-compliance with the measures to prevent the spread of a new type of coronavirus, indicated in the note of the DPRK Ministry of Foreign Affairs No. 947 of 31 January 2020, the beginning of the 15-day quarantine period will be automatically counted from the moment the violation was committed.
– The quarantine is lifted subject to the final and accurate confirmation of the diagnosis of being infection free by the medical institution of the DPRK.
– Diplomatic correspondence forwarded by diplomatic missions and representative offices of international organisations to the DPRK Ministry of Foreign Affairs will be received through the mailbox located at the entrance to the meeting room of the Foreign Ministry.
2. Entry to and exit from the country is prohibited for members of the diplomatic corps in order to purchase goods, as well as for new staff members. In case of arrival in the country due to necessity or circumstances beyond your control, entry into Pyongyang is permitted only after a 15-day quarantine at entry points.
3. International train services connecting Pyongyang-Moscow, Pyongyang-Khabarovsk passing through the Tumangang station are suspended for an indefinite period.”
On 11 February 2020, the German Government for the first time publicly expressed concern about the effect of the DPRK’s measures on foreign diplomatic missions. In response to the question of whether the measures were in violation of the Vienna Convention on Diplomatic Relations (VCDR), the Federal Foreign Office stated:
“The Federal Foreign Office is concerned about the travel restrictions for diplomatic staff in North Korea. Germany is in talks with North Korea on that issue.”
At that time, however, diplomats could still enter and leave the country by car using one of the 13 crossing points on the border with China, such as the Sino-Korean Friendship Bridge across the Amnok River, which connects the cities of Dandong in China and Sinuiju of North Korea. However, the 230km journey along winter roads from Pyongyang to the border made this no more than a theoretical possibility.
On 13 February 2020, this possibility was also removed. In another note verbale, the DPRK Foreign Ministry informed foreign embassies of the latest government quarantine measures. The note was reported as follows:
“In order to prevent the spread of a new type of coronavirus epidemic, the Presidium of the DPRK Supreme People’s Assembly decided on the proposal of the Extraordinary Central Steering Committee for Public Health that the quarantine period is temporarily extended to 30 days, and that all foreign citizens staying on the territory of the DPRK must observe that period.
The DPRK Ministry of Foreign Affairs informs that the period of quarantine and medical supervision established for the staff of diplomatic missions and representative offices of international organisations is extended until 1 March 2020. In addition, the provisions of the note of the DPRK Foreign Ministry No. 976 of 4 February 2020 on the procedure for entry and exit expire, and movements through all border crossings are temporarily suspended.
The DPRK Ministry of Foreign Affairs hopes for the active cooperation on the part of the staff of diplomatic missions and representative offices of international organisations within the framework of the DPRK Government’s efforts to combat the epidemic, since the fight against the spread of a new type of coronavirus is directly related not only to State security but also to the life and security of the entire diplomatic corps.”
In response to the travel and movement restrictions imposed on foreign diplomats, Germany on 27 February 2020 became the first country to announce the temporary closure of its embassy and the withdrawal of its four diplomats and their two family members from North Korea. The Federal Foreign Office stated that the “Federal Government had repeatedly protested against the restrictions to the DPRK Government.” It was said that under such conditions ordinary embassy operations were no longer possible. In addition, there was no provision for a medical emergency. Usually, sick diplomats and their family members were flown to Beijing. A written assurance initially given by the DPRK Foreign Ministry that a medical evacuation aircraft would be allowed to land had been withdrawn.
On 2 March 2020, the 30-day quarantine for foreign diplomats and their family members ended. Upon being examined by medical staff at the Pyongyang Friendship Hospital and receiving certificates proving that they were free of the coronavirus, members of the diplomatic community were again allowed to visit a limited number of approved locations, including the Taedonggang diplomatic club and several department stores in Pyongyang outside the diplomatic compound. Restrictions on the work of foreign diplomats, however, continued. Diplomats were not allowed to leave the capital and their freedom of movement inside the city remained restricted.
On 9 March 2020, the German diplomats and their family members boarded a special North Korean airline flight from Pyongyang to the Russian city of Vladivostok. Also on board were diplomats from France and Switzerland, which had also temporarily closed their mission. Over the next couple of months, most other embassies also temporarily closed due to the restrictions put in place by the North Korean government in response to COVID-19. The Russian and Chinese embassies, however, continued to operate under difficult conditions.
During the regular government press conference on 9 March 2020, a spokesperson for the Federal Foreign Office announced the temporary closure of the embassy in Pyongyang, saying:
“Indeed, the staff of the embassy in Pyongyang were flown out of the country via Vladivostok this morning. The embassy is temporarily closed.
In order to prevent the spread of the coronavirus, North Korea has for several weeks now stopped all air and train connections abroad and has forcibly quarantined all foreigners, including members of diplomatic missions and representations of international organisations. Because of these North Korean measures, which we consider disproportionate and contrary to the VCDR, a normal operation of the embassy was no longer possible. The North Korean authorities said that these measures would last, and I quote, at least several months more.
This has led us to believe that normal operations will not be possible for the foreseeable future. For that reason, we have repatriated the staff. We plan to resume operations at the Pyongyang embassy as soon as the situation is back to normal.”
In a post on Twitter, the Legal Adviser to the Federal Foreign Office reiterated the German position, writing:
“Even in times of crisis, travel restrictions must be proportionate. They must allow for persons returning to their home country or country of residence and must not apply to travellers with an essential function, such as healthcare professionals and diplomats.”
Germany considered the North Korean measures “disproportionate and contrary to the VCDR”. Both Germany and the DPRK are parties to the VCDR, although only Germany is also a party to the Optional Protocol concerning the Compulsory Settlement of Disputes arising out of the interpretation or application of the VCDR, so that any dispute between the two countries over the VCDR could not be brought before the International Court of Justice (ICJ). The question may still be examined whether the Nork Korean measures were incompatible with international law.
On 30 January 2020, the WHO Director-General declared the novel coronavirus outbreak a public health emergency of international concern and issued recommendations for preventing the spread of the virus and ensuring a measured and evidence-based response. The WHO found that there was no reason for measures that unnecessarily interfered with international travel and trade. In particular, the WHO did not recommend limiting trade and movement. However, the International Health Regulations (IHR) allow WHO Member States, including North Korea, to implement additional health measures, in “accordance with their relevant national law and obligations under international law”, in response to public health emergencies of international concern. Such measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection. When determining whether to implement additional health measures, States shall be guided by scientific principles and available scientific evidence of the risk to human health. A State that refuses, for example, entry or departure of international travellers must provide to WHO, within 48 hours of implementation, the public health rationale and relevant scientific information for it. The North Korean travel restrictions therefore needed to be science-based and proportionate. However, even if they were not, they were not outlawed outright under the IHR. After assessing the information provided, the WHO may only “request that the State Party concerned reconsider the application of the measures.”
The North Korean measures, even if not outlawed by the IHR, had to be in accordance with the country’s obligations under international law, including the VCDR. Under Article 41(1) of the VCDR, diplomats and their family members must respect the laws and regulations of the receiving State. This includes quarantine laws and all other COVID-19 regulations. However, the duty to respect the laws and regulations in the receiving State is without prejudice to their privileges and immunities. In addition, any COVID-19 related restrictions are subject to the receiving State’s obligations under the Convention in general.
Personal inviolability of diplomatic agents and their family members
According to the VCDR, diplomatic agents and their family members “shall be inviolable.” They shall not be liable to any form of arrest or detention. This raises the question of whether the medical examination, supervision, and monitoring of diplomats and their family members by North Korean medical staff was compatible with the VCDR. The same applies to their 30-day quarantine, which in many ways resembled house arrest. The VCDR defines the principle of inviolability in strict and absolute terms. It has therefore been concluded by some that diplomats cannot be required to submit to compulsory medical examination or medical checks. For others, coercive measures against diplomats, such as compulsory vaccination, “would be justifiable in actual emergency situations at most.”
The principle of inviolability, although formulated in absolute terms in the VCDR, is not without exception, as confirmed by the ICJ. Although the UN Conference on Diplomatic Intercourse and Immunities decided against including a list of exceptions in the VCDR, it was understood that some exceptions were nevertheless covered by customary international law. Paragraph 5 of the preamble of the VCDR expressly affirms that “that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention”. This accords with the understanding that personal inviolability does not exclude either self-defence or coercive measures to prevent the diplomatic agent from committing crimes or offences. It could be argued that the same is true for health measures in times of a public health emergency. The IHR, for example, apply to all travellers alike and do not make any special provision for diplomats. Diplomatic law also acknowledges the right of the receiving State to adopt quarantine regulations. For centuries, States have adopted and implemented national quarantine measures in order to prevent infectious diseases such as plague, cholera, or yellow fever from entering their territory. The imposition of a quarantine is an exercise of territorial sovereignty.
There is ample State practice of diplomats and their family members being quarantined. For example, the U.S. Government’s Manual for the Examination of Aliens of 1956 provided that foreign diplomats and members of their immediate families are not subject to the health provisions of the immigration law but then continued: “Such an alien is of course subject to isolation for any of the six ‘quarantinable diseases’”. In April 1962, two Chinese diplomats were quarantined in Calcutta Airport for six days because their vaccination certificates were not recognised by the Indian authorities, as the vaccine used had not been approved by the WHO. Germany also subjected foreign diplomats to quarantine. In March 2003, the German health authorities quarantined a South Korean diplomat and his wife for six days in their private residence because they had been in contact with a person infected with the SARS virus.
North Korea has a history of travel restrictions and quarantine regulations also being applied to foreign diplomats. After the outbreak of the SARS disease in China at the end of February 2003, the DPRK closed its borders for about four months and kept all incoming passengers from countries with SARS cases under observation for 10 days in the isolation ward of the People’s Hospital in Anju City, some 75 km west of Pyongyang. Passengers from other countries were medically assessed at the airport and, if found to display SARS symptoms, were also isolated. In 2014, North Korea subjected diplomats entering the country to a 21-day quarantine at home and regular check-ups for fear of the spread of the Ebola virus.
In February 2020, North Korea also was not alone in quarantining foreign diplomats in order to prevent the spread of the novel coronavirus. On 10 February 2020, Russia quarantined a Chinese diplomat arriving in the country for 14 days, and on 24 February 2020 Japan ordered two Israeli diplomats to self-isolate for 14 days because they had been in contact with a person who later tested positive for COVID-19. Also in February 2020, there was a stand-off at Dushanbe airport when members of a Chinese delegation arriving in Tajikistan refused to undergo a mandatory medical examination to prevent the spread of the coronavirus, citing their diplomatic immunity. The Chinese diplomats were held for 18 hours at the airport under the supervision of doctors before agreement was reached between the Tajik Ministry of Foreign Affairs and the Chinese embassy in Dushanbe that the members of the delegation would undergo a 14-day quarantine in a sanatorium.
By March 2020, many countries started banning foreign travellers from entering in order to prevent the spread of the novel coronavirus. Foreign diplomats and their family members continued to be allowed to enter but were subjected to quarantines of between 14 and 30 days either at home, on embassy premises, or in government-supervised hotels. For example, in El Salvador diplomats were required to spend 30 days in quarantine. Israel made the entry of diplomats subject to a 14-day home quarantine. China subjected diplomats and their families to strict quarantine and epidemic control measures. The view taken by some States that they could not subject diplomats to enter quarantine or managed isolation because under the VCDR they “shall not be liable to any form of arrest or detention” remained a minority view. Even these States, however, required diplomats to self-isolate at their mission or place of residence.
Starting in March 2020, many countries also subjected diplomats to medical examination and testing for COVID-19 before allowing them to enter the country. In some countries, diplomats were required to wait for more than 24 hours at the airport or in quarantine hotels for their test results.
Against this background, it seems that in times of a public health emergency of international concern the large majority of States regards medical examination and quarantine measures to be read into the VCDR as customary international law exceptions to the principle of personal inviolability of members of diplomatic missions and their family members.
Freedom of movement of members of diplomatic missions
Diplomatic agents and other members of diplomatic missions shall not only be free from arrest and detention, but they shall also enjoy freedom of movement and travel in the territory of the receiving State. In addition, members of diplomatic missions and their family members are entitled to leave the receiving State at their own free will. Temporary restrictions to the freedom of movement and travel are an inevitable concomitant of a quarantine or self-isolation order and, as such, should be covered by the same customary international law exception that would apply to the personal inviolability of diplomatic agents. The same is not true, however, for the prolonged closure of all borders preventing members of diplomatic missions and their family members from leaving the receiving State, especially after their term of office has come to an end. While public health measures may prevent the rotating in of new personnel, it must not be used as a justification for preventing diplomats from leaving the receiving State. Even in times of armed conflict, the receiving State must grant facilities in order to allow diplomats and their family members to depart. This may explain why on 29 February 2020 the DPRK Ministry of Foreign Affairs sent a note verbale to diplomatic missions informing them that North Korea’s State-run airline, Air Koryo, would operate a flight to evacuate foreign diplomats from Pyongyang to Vladivostok. Initially scheduled for 6 March 2020, the flight finally departed on 9 March 2020 with 103 passengers – 63 foreigners and 40 North Koreans.
Freedom of communication of the diplomatic mission
The coronavirus-related restrictions imposed by the DPRK Government also affected the diplomatic missions’ freedom of communication. The closure of the border and, in particular, the suspension of air traffic between China and North Korea meant that the missions could no longer send and receive diplomatic mail or dispatch diplomatic couriers. Unlike in the case of the departure of members of diplomatic missions and their family members, the receiving State is under no obligation to put at the missions’ disposal the necessary means of communication or provide transport for couriers. The general interruption of public air, sea and land transport and the temporary closure of border crossings on grounds of public health must be considered a general operational risk of diplomatic missions.
Inviolability of the premises of diplomatic missions and the residences of diplomatic agents
It was reported that health inspection teams from the Pyongyang Central Hospital and the Central Epidemic Prevention Centre carried out daily inspections of embassies and private residences to measure the temperature of members of diplomatic missions and their families in order to detect cases of the novel coronavirus. Any such inspection without the consent of the head of mission would, however, have constituted a violation of the inviolability of diplomatic premises and private residences of diplomatic agents. The inviolability of mission premises and residences is formulated in absolute terms. Unlike in the case of personal inviolability of diplomatic agents, there is no room for any exceptions based on customary international law. The question of access to diplomatic premises in case of an epidemic was raised both during the work of the International Law Commission on diplomatic intercourse and immunities and at the UN Conference on Diplomatic Intercourse and Immunities resulting in the VCDR. It was recounted that Brazil had on one occasion been faced with a yellow fever epidemic and the authorities had wished to enter a particular diplomatic mission’s premises in order to trace a suspected source of infection. When the head of the mission refused to allow them to enter, the Brazilian authorities had no choice but to accept his refusal. There was not even enough support for a Mexican proposal to stipulate an obligation of the head of mission “to cooperate with the local authorities in case of […] epidemic”. While heads of mission will usually cooperate with the authorities of the receiving State during an epidemic, such cooperation need not mean consent to enter the premises. Cooperation could take the form of embassy personnel taking the temperature of staff and transmitting the results by phone to the authorities of the receiving State. Similarly, with regard to COVID-19 tests, swabs could be taken by embassy personnel and the tests could be conducted in labs of the receiving State.
These considerations also preclude any justification of the North Korean authorities gaining access to the embassy premises on grounds of necessity. The DPRK Foreign Ministry requested entry of its medical personnel on the ground that it was necessary to protect its own people and the foreign diplomats from the spread of the novel coronavirus. While the outbreak and spread of the COVID-19 disease may constitute a “grave and imminent peril”, and public health and safety may qualify as an “essential interest” of North Korea, entering the premises of the diplomatic missions to carry out inspections and tests on site at the embassies was not “the only way” for North Korea to safeguard the essential interest in question.
Full facilities for the performance of the functions of the diplomatic mission
The receiving State must accord full facilities for the performance of the functions of diplomatic missions. Restrictions of access to the mission premises are generally considered incompatible with this obligation. Putting the embassies under quarantine automatically meant that they were no longer accessible to nationals of both the sending State and the receiving State. However, “quarantine due to the risk of an epidemic” has been identified as an admissible reason for access restrictions.
Due to the international sanctions imposed on North Korea and the dire economic situation in the country, diplomatic missions in Pyongyang were dependent on supplies imported from China or the sending States. In particular, diplomatic missions relied on incoming diplomats bringing cash, because money transfers to North Korea were not possible due to the sanctions and there were no cash machines in the country. The travel restrictions and border closures meant that the supply of cash was no longer guaranteed. As with means of communication or transport, however, the receiving State is not under any obligation to facilitate the resupplying diplomatic missions from abroad.
Germany took issue with the DPRK’s quarantine order and travel restrictions for diplomats. A 30-day preventive quarantine for all resident diplomats across-the-board seems excessive. However, during the course of the COVID-19 pandemic a number of countries imposed much longer lockdowns on their populations. One must also take into account that the quarantine was imposed shortly after the start of the pandemic when there was little scientific information about transmission and effects of the novel coronavirus and, consequently, much uncertainty. It could therefore be argued that the DPRK government was adopting a precautionary approach when it extended the quarantine period to 30 days in mid-February 2020. The country seemed to be particularly vulnerable due to its proximity to China, where the novel coronavirus was first reported, and the fact that the majority of diplomats and diplomatic couriers entered the country via China. Diplomats also regularly travelled to China to buy goods and supplies not otherwise available in North Korea due to the international sanctions. In addition, there was a livelier exchange between diplomats than in other receiving States due to the restrictive social situation in North Korea; and the DPRK government claimed that some diplomats had violated the initial quarantine regime. Another aspect to consider is the desolate state of the DPRK’s healthcare system as well as the lack of medical supplies to detect, prevent the spread, and treat the disease. Considering the special circumstances of North Korea, the quarantine measures may have been tough, but not necessarily disproportionate or illegal.
The claim by the Legal Adviser to the Federal Foreign Office that coronavirus-related travel restrictions “must not apply to travellers with an essential function, such as […] diplomats” seems out of touch with the reality of the COCID-19 pandemic. Diplomats, like other people can catch, transmit and spread the virus with disastrous consequences. This may be illustrated by a case from Nigeria. In July 2014, a foreign diplomat violated a quarantine order and travelled from Lagos to Port Harcourt and was responsible for the spread of the Ebola virus outside the Nigerian capital. Examples like this may be the reason why in 2020 the majority of States ultimately applied quarantine and travel restrictions equally to non-diplomats and diplomats. As the spokesperson for the Chinese Foreign Ministry put it pertinently: “Everybody is equal before the virus. Diplomats have immunity due to their posts, but the virus does not know that.”
Category: Diplomatic and consular relations
DOI: 10.17176/20220627-172707-0
