There are actually two international conventions-the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963)-and a third set of immunities involved.
The Erick Shcks case is governed by the Vienna Convention on Diplomatic Relations.
In other words, it is not the immunity under the Vienna Convention on Consular Relations which applies in that case, but the immunity under the Vienna Convention on Diplomatic Relations.
The essence of the Joint Protocol is that the operator of a nuclear installation situated in the territory of a Party to the Vienna Convention shall be liable in accordance with that Convention for nuclear damage suffered in the territory of a Party to both the Paris Convention and the Joint Protocol, and vice versa for the Paris and Vienna Conventions.
A COMPARISON OF THE REVISED PARIS AND VIENNA CONVENTIONS
States considering joining the Paris or Vienna Conventions should measure the provisions against the criteria discussed, including the importance of a backup fund; that absolute liability should govern; that limitation should be unlimited in amount; that there should be a just time limit of liability; that all responsible parties should bear liability; that claimants should be able to bring claims in a neutral tribunal; that the applicable law should be that of the claimant; that there should a broad definition of recoverable damage; and that there should be just rules on standing, access to justice, and burden of proof and causation.
According to Article 2 of the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, signed 21 March 1986 (hereafter referred to as the 1986 Vienna Convention),(8) such "an international agreement governed by international law and concluded in written form .
The Vienna Convention of 1986 (Article 60) provides that, in the case of "A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as grounds for terminating the treaty or suspending its operation in whole or in part." Article 60 further specifies "the violation of a provision essential to the accomplishment of the object or purpose of the treaty" as constituting a material breach.
Such an interpretation of Resolution 678 - i.e., negating Article 2(4) - would put it in conflict "with a peremptory norm of general international law [jus cogens], which, according to Article 53 of both the 1986 Vienna Convention and the 1971 Vienna Convention (another case of a rule that seems to be part of the opinio juris as well), makes a treaty, and by analogy a decision of the Security Council, void (not just voidable at the option of the parties).
Article 29 of the 1961 Vienna Convention which has been given the force of law through the 1972 Act says that "the person of a diplomatic agent shall be inviola-ble.
The Vienna Convention on Con-sular Relations 1963, which has also been given effect of law by the 1972 Pakistani Act, basically gives the same kind of immunity to consular officers as the 1961 Convention, except that it permits arrest or detention pend-ing trial, in the case of a grave crime, but only pursuant to a decision by the competent judicial authority.
If he is a diplomat, then he will have to be released and Paki-stan has violated the provisions of the Vienna Convention as he should not have been arrested in the first place.