Alan Franklin Lecturer, Athabasca University and Royal Roads University
Diplomatic immunity: The reality of the sources of law First published on Diplo Blog, 28 July It is generally understood that the source of the law on diplomatic immunity (DI) is the Vienna Convention on Diplomatic Immunity (VCDR), and the immunities of consular officers is the Vienna Convention on Consular Immunity (VCCR). While these conventions are an excellent starting point, they do not tell the whole story. Conventions bind states internationally Conventions or treaties are agreements signed between the states and bind the states who are parties. However, the law in most states is that such treaties have no legal effect within the state. In countries that use the common law system (UK, USA, Canada, Australia, New Zealand), the VCDR has no legal effect within the country. Thus, a diplomat who is arrested in Canada has no protection directly from the VCDR in the courts of Canada. Common law states will often pass laws to implement the VCDR into the domestic law of the state. When that is done, the diplomat is entitled to such protections as provided under the law that implemented the treaty, not under the convention directly. If a state does pass implementing legislation, that law will often omit certain protections contained in the VCDR. People rarely pay attention to the implementing law, and thus do not notice that many rights under the conventions may have been omitted. Particularly, common omissions are the right to fly the flag of the SS, freedom of movement by diplomats within the state, as well as restricting the immunities set out in the conventions.
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