The restrictions of diplomatic immunity with regards to breaches of human rights

Abstract

This thesis is an examination of a conflict between two branches of international law, namely: Diplomatic Immunity and Human Rights. It is a conflict that has arisen, legally, since the end of the Second World War when Human Rights started to be internationally protected. The dawn of international protection has led to an on-going legal debate on the prioritization between diplomatic immunity and human rights. International law is divided into two schools of thought, as is shown through case law, that is, between the school of thought who believe that diplomatic immunity is sacrosanct as it lubricates the mechanics of international diplomacy and facilitates communication between states, and a school of thought that believes that human rights should have a priority over any other branch on international law. The work in this thesis tries to keep away as much as possible from the political considerations on the subject matter. Instead fundamental international law principles are examined and are applied. These fundamental principles make it clear that human rights when in a legal conflict with diplomatic immunity should be given priority. It is a known fact that this is opinio juris in international law but unfortunately has not developed into state practice. Diplomatic immunity which is derived from sovereign immunity is still strong within the legal world. But there are strong indications through case law that show that there is a trend developing in order to restrict diplomatic immunity, when the state official vested with it commits serious violations of human rights. Even though case law, such as the Pinochet case is proving to be the source of the developing trend, at the same time other judgments are a source of an impediment to these trends.