Protecting Human Life Against Abuses of Diplomatic Inviolability - Can Distress Be Applied in Diplomatic Law?

Abstract

This article discusses the possibility of applying distress as provided in Articles on Responsibility of States for Internationally Wrongful Acts in the context of serious abuse of diplomatic inviolability. The author will argue that a strict distinction between primary and secondary rules permits the application of distress in the case where receiving State violated personal inviolability of sending State’s diplomatic agents in order to stop an ongoing crime that threatened human lives. Moreover, although traditionally distress was mostly invoked by States in the context of boundary violation such as ships in distress entering the harbor of foreign States without prior permission, the rationale behind distress as well as subsequent State practices suggest its application of a general character. The author will conclude by pointing out the advantages of applying distress to compromise diplomatic inviolability: firstly, it is based on a case-by-case analysis. Thus, unlike past literature which focused on creating exceptions based on other primary rules such as fundamental human rights, this approach does not create an exception in the principle of diplomatic inviolability. By doing so, it leaves diplomatic inviolability intact for future development; secondly, it confines the possibility of disregarding diplomatic inviolability within the narrow scope of life-saving context. Therefore, it could effectively prevent possible abuses by receiving States.