Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention
Saturday, May 13, 2017 at 12:37PM
Craig Forcese in Chapter 14: Detention, General Commentary, consular protection, diplomatic protection, icj, international law, national security, protection of nationals

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

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