CYIL vol. 12 (2021)
michaela sýkorová CYIL 12 (2021) A certain analogy, however, may be found in States practice towards similar events, either emergent in nature or, somehow unknown to the Convention text. How far the personal inviolability of diplomats can go and where it has its limits, may be implied, for instance, from the practice on taking mandatory breath tests with regard to drink-driving offences. This can be analogous to subjecting diplomats to a medical examination, since both situations – an inebriated driving diplomat and an infectious diplomat – may threaten the public safety or humans’ lives. Here, although the practice is far from uniform, attitudes of some States show some reluctancy to perceive diplomats as perfectly inviolable under whichever circumstances. 38 Another example that could be brought by analogy, are cases where diplomatic immunity clashes with human rights – putting it into other words, when a receiving State finds itself in a situation of two conflicting obligations under international law: one obliging to grant immunity to a diplomat, while another one prescribing the protection of individuals’ rights. 39 More relevance to these spare examples of viewing personal inviolability of diplomats as being not boundless may be given if they are assessed in the light of the well-known ICJ pronouncement in the Tehran Hostages case, one of the first adjudicated breaches of the Convention. The often-cited passage with respect to the limits of inviolability reads as follows: 40 “ … the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established regime. … The fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 … Even in the case of armed conflict or in the case of breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State. Naturally, the observance of this principle does not mean … that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime ”. Yet this assessment reflected extreme circumstances of the particular case, it reveals that even a sacred inviolability of diplomatic agents may be temporarily and necessarily suspended, if accompanied by an urgent need to prevent harmful consequences of agents’ conduct. It is quite noteworthy, however, that although the cited passage starts with referring to both inviolabilities of missions and persons, the justification for an occasional restriction is linked solely to the latter. That may be an indicator of a different perception towards these two present a health clearence certificate in the Iraqui practice to be contrary with the WHO International Health Regulations, p. 14. 38 See DENZA, pp. 266-267, who refers to the practice by U.K., Canada and U.S. in taking breathalyser tests, and mentions the U.K. policy towards the medical checks. 39 For deeper theoretical analysis of this point, see SÝKOROVÁ, M., VALUCH, J. Diplomatické imunity v. ľudské práva [Diplomatic Immunities v. Human Rights] in: ŠTURMA, P., TRÁVNÍČKOVÁ, Z. (eds.), Imunity v mezinárodním právu [Immunities in International Law], 2016, ČSMP, Praha, s. 126 ff. For other interesting cases see HOWARD, D.: Twenty-first century Slavery: Reconciling Diplomatic Immunity. In Alabama Civil Rights & Civil Liberties Law Revies , vol. 3 (1), p. 123, available here https://www.law.ua.edu/acrcl/files/2017/04/ TWENTY-FIRST_CENTURY_SLAVERY.pdf [27-05-2021], and Oxford Pro Bono Publico, research study “The Prohibition of Human Trafficking and Diplomatic Immunity“, Feb 2016, University of Oxford, available here http://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2016/04/OPBP-report-for-Kalayaan-updated. pdf [27-05-2021]. 40 ICJ, Diplomatic and Consular Staff in Tehran (United States v. Islamic Republic of Iran) , Judgment of 24 May 1980, para. 86.
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