Julian Assange, Ecuador and the law: a compendium

by Brian · 6 September, 2012

Since Mr Assange took refuge in the embassy of Ecuador in London last June, there has been extensive discussion on blogs (including mine), in emails and in the media of the many points of international law that arise from the whole affair.  This web page offers a compendium of some interesting exchanges between academic experts in diplomatic law, former practising diplomats, and others, and some key texts, plus extracts from blog posts and other writings, on which those interested might like to draw.  Most of the extracts below are written by lay persons, not lawyers, relying on their reading, the advice of others, their common sense and their experience in the field, so we, the authors, must appeal to the attorneys in Buffalo NY to forgive our many errors of law.

Any reader of this is welcome to comment on anything in this compendium, not here, please, but on my blog post (https://barder.com/3703) drawing attention to it.

Brian
6 September 2012

Historical:

http://www.diplomacy.edu/blog/i-may-be-wrong:

“Until the Renaissance, ambassadors were itinerant – if I remember my MATTINGLY correctly. These were peace-keeping missions, and at the end the ambassador withdrew, yielding the floor to arms or peace. In this framework ‘inviolate’ applied primarily to the ambassador’s person, his family, and retinue. Ambassadors were often neutral ‘peace-makers’ and their expenses were paid by the guest country.

“It probably was Venice which, a city of traders, first saw the need for resident ambassadors/traders. The concept of inviolate now had to be redefined with respect to residence. I suspect that by analogy to the concept of territorial exclave the one of extraterritoriality crept in. Easy to work with – particularly when you have to explain it to burly janissaries. Symmetrically, the ambassador’s country took over responsibility for the upkeep, clearly demarcating the separation..

“The analogy was rickety from the beginning — as they mostly are. Were the ambassador’s own commercial activities ‘extraterritorial’? I doubt it. Difficult to prove, because the Porte, e.g., was not beyond putting resident Ambassadors in jail in order to expedite negotiations with the foreign capital. I imagine that at the time any local business interests the man might have had would have been hostage to diplomatic fortunes.

“Could the ambassador extend the extra-territoriality analogy to cover third party business? Again I doubt it.

“Then there is the ‘dark side of diplomacy’. I’ve lamented in an old blog entry the ‘holier than thou’ attitude that permeates diplomatic studies. On a grumpy day (and I have quite a few of them) I’d maintain that diplomacy cannot be taught without illuminating the “cloak and dagger” activities that undergird diplomacy.

“….And what about personal behavior? Could the ambassador kill his partner with impunity inside the embassy, or shield a common criminal? Were extraterritoriality absolute, it would be of no concern to the local government, just as any other foreign murder is. The likely answer for the host country would be to say that such acts are ‘inconsistent with diplomatic activity’ and the ambassador would be expelled.”

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Expulsion of diplomats and claims to refugee status: the Libyan and Canadian experiences:

From a former British ambassador to Libya (1) :

In 1980, four years before we broke off diplomatic relations, we PNGd the Libyan ambassador equivalent Musa Kusa and half his staff because he had publicly endorsed the policy of murdering anti-Qadhafi activists outside Libya – two had already been murdered in London. As we prepared to take this action I remember that we were told by the Home Office that a problem might arise if those declared PNG did not leave – there was no legal basis for expelling them. We told the Home Office not to fuss.  We got away with it, but it appears the Canadians have not been so lucky. Could it happen here?
[See extract from article in the Libya Herald:]

Tripoli, 24 August:

Three of five Libyan diplomats ordered out of Canada in May last year, after being declared “persona non grata”, have since claimed asylum in the country.

The Canadian broadcaster CBC News uncovered the surprising development, thanks to a formal freedom of information request, for sight of records from Canada’s Department of Foreign Affairs and International Trade (DFAIT).

The three Qaddafi diplomats, who are so far unidentified, were ordered to leave the Ottawa embassy, along with two colleagues, reportedly because they were accused of trying to intimidate students and other Libyans living in Canada, who had joined protests against the regime.

A press release issued by the DFAIT at the time of the expulsion of the five diplomats said: “The activities carried out in Canada by the five Libyan diplomats are considered inappropriate and inconsistent with normal diplomatic functions.”.
CBC News was unable to establish if the three diplomats in fact left Canada as ordered, and have since returned there. It discovered however that the trio were requesting asylum because they claimed they would not be safe if they returned to Libya.

The broadcaster reported that Canadian asylum applications might take as long as four and a half years to be processed and in extreme cases, could run to ten years. The Canadian government is currently moving legislation to speed up the process.

It was not possible this evening to contact the foreign ministry here in Tripoli to see if they could identify the former diplomats and say if they had families living with them in Ottawa at the time of their expulsion.

From (Canadian) CBC News, http://www.cbc.ca/news/politics/story/2012/08/23/pol-libya-refugee-diplomats-dfait-protocol.html, Aug 23, 2012:  

Three ex-diplomats from Libya claimed refugee status in Canada last year after being declared persona non grata and ordered to leave the country, CBC News has learned.

The immigration cases are listed in quarterly reports compiled by the Department of Foreign Affairs Office of Protocol that track incidents involving alleged or suspected criminal activity involving diplomats, their family members and staff.

Summaries of diplomatic brushes with the law range from child sex assault, domestic abuse and impaired driving to making late-night party noise and shoplifting. There are also “debt cases” – including one where an embassy was in arrears for residential rent payments, but the report suggested diplomatic immunity would likely prevent eviction.

Immunity allows individuals with diplomatic status to avoid lawsuits and prosecution in the host country.

The reports, obtained by CBC News Network’s Power & Politics under Access to Information, cover Sept. 15, 2010, to March 15, 2012, and show a total of 21 diplomats claimed refugee status for 51 people over that 18-month period. Identifying features such as names and the embassy or consular office’s country are censored.

Neither Foreign Affairs nor Citizenship and Immigration would confirm the country or countries of origin for the ex-diplomats who sought asylum in Canada after being expelled from the country. According to the reports, the agents had been declared “persona non grata” by the department “for engaging in activities deemed incompatible with their status in Canada as diplomatic agents.”

“While we can not comment on specific cases due to privacy reasons, in general someone who is declared persona non grata by the Minister of Foreign Affairs loses their diplomatic status in Canada and may be removed if they fail to depart from Canada as requested,” said Citizenship and Immigration Canada (CIC) spokeswoman Nancy Caron.

“In the absence of diplomatic status in Canada, these individuals are subject to the same requirements under the Immigration and Refugee Protection Act as any other foreign national,” Caron said.

BB Comment: This report raises a potentially controversial question:  Art. 39(2) of the Vienna Convention — and common sense — suggests that if a foreign diplomat is declared persona non grata and required to leave the country, she presumably retains her diplomatic immunities until she has left, provided that she does so reasonably promptly (“or on expiry of a reasonable period in which to do so”).  But at what point, if any, is the host government entitled to say that she has not left within a reasonable period and has therefore lost her diplomatic status and immunities?  If that’s really a matter for the judgement of the host government, it implies a potential loophole in the whole diplomatic system. According to Professor Denza’s commentary on the Vienna Convention, no attempt has been made to agree on what constitutes a reasonable time since this will inevitably vary from one individual case to another.

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Public and private acts by the state, and a warning about international customary law, by a diplomatic law specialist:

JK:  In some writings and comments, including [Professor] Denza’s [commentary on the Vienna Convention], I notice a confusion between two capacities in which states act. A state acts in its sovereign capacity or public power (based on iure imperii) and it also acts in a private capacity, usually carrying out commercial or administrative acts (based on iure gestionis). These two legal regimes could be applied to the same building. For example, If the building of Ecuadorian embassy is owned by Ecuador, all property issues are considered as iure gestionis. Ecuador, as owner, has the same status as any other owner of  a building. But if the same building is used as the Embassy, its status is treated under “iure imprii”, which implies that it should be regulated by international public law. In this context I found the following paragraph from Denza’s letter to be problematic:

If the Secretary of State decided to withdraw consent to the use by Ecuador of these premises as embassy premises, this would be a last resort and it would be normal for a reasonable period of notice to be given. The decision could be challenged in a UK court — as in the case of the squatters in the former Cambodian embassy. Both Ecuador and the UK are parties to the Optional Protocol to the Vienna Convention on the Compulsory Settlement of Disputes, which provides possibilities for conciliation or arbitration as well as resort to the International Court of Justice.

I do not know how Denza will substantiate this analogy between squatters and legal representatives of a sovereign country. Moreover, since representation and immunities are  part of “iure imperii”, I do not see how Ecuador can appear in front of a UK court. The only place where either Ecuador or the UK can bring this case is the International Court of Justice. It is not clear what she suggests in this paragraph.

On another topic…. whenever I hear the argument on international customary law, I am cautious for two major reasons. Firstly, most customary law has been codified over the last few centuries (the last major codification was the Law of the Sea). Secondly, it is used very loosely whenever some good legal justification cannot be found. International customary law has rather clear requirements: a) practice of a majority of states and b) opinio iuris (‘the belief by a state that behaved in a certain way that it is under a legal obligation to act that way’ – Shaw, 2003, p. 6). Can [a blogger commenting on the Assange case] identify these two elements in the areas that he claims are international customary law? We should be also clear that the 1987 Act* is not a codification of the international customary law.

*[The Diplomatic and Consular Premises Act 1987]”

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Options for Ecuador and Assange?

BLB:  On the suggestion that Assange could be invested with diplomatic immunity simply by being appointed to the diplomatic staff of the embassy of Ecuador, with no requirement to receive HMG’s approval of the appointment (which would of course not be forthcoming), this extract from the Vienna Convention seems to uphold my speculation that this might provide Assange with a legal means of escaping from the Ecuador embassy and making his way to Ecuador:

Article 39
1.Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.  [My emphasis.]

(nb: Notification is enough.  No need to wait for the receiving state’s acknowledgement of the notification, still less for its approval.  I don’t see how a receiving state can override this provision in international law if the sending state chooses — or has the wit — to rely on it.  Highly relevant to the Assange case!  Once Assange has been notified, he’s got immunity, and all HMG can do is expel him, which means he can go to Ecuador in no danger of being arrested en route to the plane.  Customary international law can’t presumably override this: nor can the administrative practices of the receiving state, however long established.)

It has been suggested that as a matter of customary international law, or of common sense, or both, host government ‘A’ must have an “inherent right” to refuse to accept a specific person nominated by a foreign government ‘B’ to be a member of its embassy’s diplomatic staff in country ‘A’, on the grounds that the nominee is objectionable to the receiving government in some way (such as that the nominee has skipped bail when awaiting extradition to country ‘C’ and should legally be returned to the custody of country ‘A’ for such extradition).  However, Professor Denza’s account (Diplomatic Law, 1st edition, pp. 245-246) of the negotiations leading to the drafting and approval of Art. 39 of the Vienna Convention, describes how a draft amendment introduced or supported by France, Italy and the United States designed to provide that diplomatic status and immunities should begin only from the moment that the appointment by the sending state had been “formally or tacitly accepted” by the receiving state was debated but rejected, concluding that —

In view of the clear rejection by the Conference of an amendment in this sense it is unfortunately [sic] difficult to argue that the second of these [i.e. interpreting notification as implying acceptance of the notification] is a legitimate interpretation.

One former practitioner has observed that the UK Foreign & Commonwealth Office does in practice require sending governments to submit for prior FCO approval the names of persons whom they wish to nominate as members of the civilian diplomatic staffs of their diplomatic missions in London, with the implication that the FCO claims the right to veto any specific appointment to which it objects.  It seems impossible to reconcile this practice, if it exists, with the provisions of Articles 7 and 39 of the Vienna Convention, especially as throughout the Convention the requirement to obtain the agreement of the receiving state to proposed diplomatic appointments is expressly confined to heads of mission (ambassadors, high commissioners, etc.) and service attachés (defence, military, naval and air).  All the rest may be “freely” appointed and notified to the receiving state, and acquire diplomatic status and immunities from the moment when they have been notified.  Moreover the Vienna Convention specifically includes in these provisions persons who are already on the receiving state’s soil at the time when they are appointed to the diplomatic staff of the relevant embassy and the receiving government is notified of the appointment.  It is difficult, therefore, to see why Assange should not be appointed to the diplomatic staff of the Ecuador embassy, notified to the FCO, and walk out of the Ecuador embassy five minutes later immune from arrest or prosecution to be driven to the airport for a flight to Ecuador.

GB:  I was staggered by the threat [in the UK aide memoire to Ecuador[1]] to enter the Ecuadorean embassy and agreed entirely with your piece on this, which you kindly sent me last night. However, on my reading of Article 8 (esp. 8.3*) of the VCDR (1961), the UK would lawfully be able to refuse to recognise Assange as a diplomat of Ecuador.

*Article 8 of the Vienna Convention:
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.

BB:  Thank you for pointing out that Art 8(3) could indeed be used by the UK to prevent Assange, as a national of a third state (Australia) being appointed to the diplomatic staff of the Ecuador embassy in London — but only, on my reading anyway, if HMG had taken specific action beforehand (i) to reserve and (ii) then to exercise its right under 8(3) to withhold consent to such appointments.  Art 8(3) is permissive — the receiving state “may” reserve the same right as that in 8(2) but if it has not done so when a citizen of a third country is notified as a member of the diplomatic staff, it’s hard to see how it could reserve that right and then exercise it retrospectively.  Even if it could find a way to act retrospectively, first reserving its right and then exercising it (in two separate acts), after Assange had been notified as a member of the Ecuador embassy diplomatic staff and thus acquired his immunities under Art. 39(1), the effect would be to declare him persona non grata, in which case he would have to be allowed a “reasonable period” to wind up his affairs and leave the country, still enjoying immunity from arrest, etc., until he had left.

But even if the UK government has the foresight to reserve and exercise its right not to accept citizens of third countries as diplomats in the Ecuador embassy before Ecuador tries to notify Assange’s appointment, Assange could perhaps be granted Ecuadorean citizenship and renounce his Australian citizenship, only then being notified to the FCO as a new appointment to the embassy diplomatic staff.  Neither Art. 8(2) or 8(3) would then be applicable to him and the only way HMG could get rid of him would be to recognise his diplomatic status and immunities and declare him persona non grata (i.e. expel him) — by which time he would no doubt already be safely holed up in Ecuador.  I expect that a sufficiently ingenious FCO lawyer would find a way round this scenario, but it looks quite plausible — to this layman, anyway.

DT:  There is another way Julian Assange might seek to escape to Ecuador. That is for the Ecuadorean Embassy to designate him as a diplomatic courier ad hoc under Article 27(6) of the VCDR [Vienna Convention on Diplomatic Relations]. Such a designation seemingly does not require prior acceptance by the FCO Protocol Directorate as I seem to recall all staff appointments first need to be agreed. No doubt there are very few regular individual courier journeys from London to Quito, but a diplomatic bag with genuine and classified materials could be ‘made up’ and Julian Assange be granted the well publicised ‘honour’ by the Ambassador of taking the bag to Quito. While he is in transit he would have full immunities which cease the moment the bag is delivered into safe keeping – see Article 27(6) of the VCDR.

If this was attempted, the UK authorities would not be thwarted and would deny that this was a genuine ‘couriership’ as it would be such an obvious ruse to defeat British justice. But quite a row could be caused, though it would lead to Julian Assange’s apprehension and extradition to Sweden. He might of course decide, on the basis of assurances, that it was time to face the music, but he is a publicist and might choose to stage a final stunt, provided the Ecquadoreans agreed. There would also be the problem of what to do with the diplomatic bag ‘unlawfully’ seized.

BB:  I continue to be surprised that the FCO insists on scrutinising and approving (or, presumably, rejecting) in advance all proposed appointments by foreign governments to the diplomatic staffs of their embassies (and presumably high commissions), and that it appears that other western foreign ministries operate similar systems. I doubt whether the FCO has any right under the Vienna Convention to compel sending States to seek prior approval for their diplomatic appointments other than those of heads of mission and defence attachés. This would certainly seem worth testing!

If I’m right, the sequence might be: Ecuador delivers a Note Verbale to the FCO notifying three or four new appointments to the diplomatic staff of its embassy, one of which is Assange — but not seeking HMG’s approval for them. Five minutes after the Note has been delivered to the FCO, Assange emerges from the front entrance of the embassy accompanied by three distinguished British and Spanish lawyers, each holding a certified copy of the Note Verbale. The police try to arrest Assange under the Swedish extradition warrant and for skipping bail. The lawyers produce their copies of the Note Verbale and tell the police that Assange is immune from arrest since he now has diplomatic immunity. There are then two possible outcomes: (1) The police accept the claim to immunity, Assange and his lawyers board a car which takes them to an airport from which he flies to Ecuador (unlikely); or (2) (more likely) the police ignore the lawyers and take Assange into custody. The lawyers immediately seek a court injunction requiring the immediate release of Assange on the grounds that he was illegally arrested. The FCO purports to exercise its right under Art 8 (2) and (3) to withdraw its consent to the appointment of third country nationals such as Assange to the embassy of Ecuador. Assange’s lawyers immediately seek judicial review of the FCO’s action on the grounds that FCO consent had not been withdrawn at the time when Assange was appointed and that accordingly his diplomatic status and immunities remained valid, since the withdrawal of consent could not be exercised retrospectively. The applications for an injunction and for judicial review drag on through the courts, up to and including the Supreme Court and possibly thence to the European Court of Human Rights, along with an application for bail for Assange pending decisions on them (unlikely to be granted given the fact that he has already skipped bail once!).

A variant on this: when the police are confronted with the Note Verbale proving (or purporting to prove) that Assange has diplomatic immunity, they agree not to arrest him immediately provided that he returns to the Ecuador embassy and doesn’t come out again until the legality of his claim to diplomatic status is resolved. Given the many ambiguities in Art. 8(3) of the Convention, this might take a year or two, or even more if it gets as far as the European Court of Human Rights.

However, if I’m wrong and there is a power somewhere in the Vienna Convention, despite the clear implication of Art. 7, under which the receiving State may demand the right to approve (or reject) in advance appointments to the civilian embassy staff below head of mission, then your suggestion that Assange might be appointed by Ecuador as a Diplomatic Courier tasked with carrying a genuine diplomatic bag to Quito would seem to be an ingenious way around the problem. You assume that the UK authorities would frustrate the ruse by ignoring his status as a diplomatic courier and arresting him anyway, but after the unholy row caused by Mr Hague’s imprudent threat to send the cops into the embassy without its permission, he might think twice before authorising this lesser, but still pretty blatant, breach of the Convention’s rules.

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PS:  It would be convenient for Britain and, in some sense, right, if an agreement could be reached transferring Mr. Assange to the embassy of Ecuador in Stockholm. It might give the Ecuadorians more room for maneuver (concessions to reasonable Swedes rather than imperialist Britons). It would let us off the hook in an acceptable way (he’s going to Sweden as we wanted). It would bring the Swedes closer to their man, and it  would discomfort Mr. Assange without placing him in any more danger than he already finds himself.

BB: That seems to me, if I may say so, a very useful idea.  It might remove some at least of the Swedes’ objections to coming to Britain to interview Assange here, either in the Ecuadorean or (less acceptable to Assange) the Swedish embassy in London.  But the Swedes might still have a problem over interviewing him in Ecuadorean diplomatic premises in Stockholm where it might be difficult, in view of Ecuador’s grant to Assange of refugee status to arrest and charge him, which seems to be what they now need to do.  Apparently that could only be done on Swedish soil (which technically of course would include the Ecuadorean embassy in Stockholm).  It would be more convenient for the Swedes as being close to the other witnesses and the complainants, who might need to be questioned again in the light of the further questioning of Assange.  Of course the refugee status would remain a problem as well as finding a way to transfer him to the Ecuador embassy in Stockholm without the risk of him doing a runner on the way.  Still, worth exploring, surely.

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Professor Denza‘s letter to The Times, Monday August 20 2012:

Sir, Contrary to what has been suggested, the Diplomatic and Consular Premises Act 1987 confers no powers to suspend or override the Vienna Convention on Diplomatic Relations (“Diplomatic storm over bid to seize Assange”, Aug 17). It is designed to give precision to the Convention’s definition of “premises of the mission” and the Secretary of State can use powers to withdraw consent to use of particular premises by a diplomatic mission only if he is satisfied on legal advice that this is permissible under international law.

Its original purpose was to solve the problem of the premises of the discontinued mission of Cambodia which were occupied for 12 years by squatters, but which the UK was obliged to “respect and protect” under the Vienna Convention. Its use in that context was challenged by the squatters, and upheld by the English court. The Act could, however, be used in response to persistent abuse of the inviolable status of mission premises.

This takes one to the decision by Ecuador to offer diplomatic asylum to Julian Assange. Under customary international law — as set out by the International Court of Justice in the asylum case between Colombia and Peru — fugitives within embassies are not in the same position as refugees within the 1951 Convention on the Status of Refugees, who seek territorial asylum. Fugitives in an embassy are within the territory of the host State (in this case the UK) and the sending State (Ecuador) has no inherent right to grant shelter, but can rely only on the inviolability of its premises. Under customary international law the sending State may grant asylum on humanitarian grounds on a temporary basis. This may be done to save life or prevent injury either where there is an immediate physical threat to the refugee or where the sending State determines that there is no prospect of his being given a fair trial by the authorities of the host State. Julian Assange is not at risk of immediate physical injury should he leave the embassy and he has exhausted his legal remedies against extradition in full compliance with the European Convention on Human Rights to which both Sweden and the UK are parties. So the decision by Ecuador cannot be justified under international law.

If the Secretary of State decided to withdraw consent to the use by Ecuador of these premises as embassy premises, this would be a last resort and it would be normal for a reasonable period of notice to be given. The decision could be challenged in a UK court — as in the case of the squatters in the former Cambodian embassy. Both Ecuador and the UK are parties to the Optional Protocol to the Vienna Convention on the Compulsory Settlement of Disputes, which provides possibilities for conciliation or arbitration as well as resort to the International Court of Justice.

As to the question of reciprocity — there have been attempts by fugitives to seek asylum in UK mission premises abroad (in South Africa and in Australia) — the UK has acted in accordance with the law as set out above and the fugitives have left. The Australian case involved two Afghan boys who later challenged the decision by the UK authorities as contrary to the Human Rights Act. The English court held that the grant of diplomatic asylum would have been an abuse of the inviolability of the premises and would have infringed the obligations of the UK under international law.

Eileen Denza
(Author, Diplomatic Law:Commentary on the Vienna Convention on Diplomatic Relations)
London NW3

JK:  I found the following paragraph from Denza’s letter to be problematic:

If the Secretary of State decided to withdraw consent to the use by Ecuador of these premises as embassy premises, this would be a last resort and it would be normal for a reasonable period of notice to be given. The decision could be challenged in a UK court — as in the case of the squatters in the former Cambodian embassy. Both Ecuador and the UK are parties to the Optional Protocol to the Vienna Convention on the Compulsory Settlement of Disputes, which provides possibilities for conciliation or arbitration as well as resort to the International Court of Justice.

I do not know how Denza will substantiate this analogy between squatters and legal representatives of a sovereign country. Moreover, since representation and immunities are  part of “iure imperii”, I do not see how Ecuador can appear in front of a UK court. The only place where either Ecuador or the UK can bring this case is the International Court of Justice. It is not clear what she suggests in this paragraph.

GB: Re the penultimate para, does Professor Denza mean that this would be a ‘last resort’ short of breaking relations? Surely it would politically be just as damaging and have the enormous added disadvantage of being subject to protracted legal challenge. (I’m probably missing something here!)

BB: I very much agree that the implications of the penultimate paragraph of the letter are both obscure and worrying.  Perhaps the Professor means only to confirm that if the foreign secretary is rash enough to “withdraw consent to the use by Ecuador of these premises as embassy premises”  — which is somewhat different, of course, from withdrawing the immunities of the premises and sending the police into them — he would lay himself open to challenge in the courts (implying that his action would be of debatable legality) and that even if he won a court case,  he would have to allow enough time for the Ecuadoreans to find new premises for their embassy.  If so, it seems a pity that this is not set out more clearly.

I’m equally or more concerned by the last sentence of the second paragraph of the Denza letter:  “The [Diplomatic and Consular Premises Act 1987] could, however, be used in response to persistent abuse of the inviolable status of mission premises.”  An irrepressible former colleague of mine is already citing this as confirmation of his thesis that whatever the Vienna Convention might say, we can always do whatever our instinct tells us is fair and sensible under some kind of shadowy “inherent right” — ” I take that to mean that the Act gives effect to the inherent (and common sense) right of a receiving state to withdraw immunity under specified circs involving serious abuse by/through the Embassy.”   It’s not hard to imagine Mr Hague arguing that any long-drawn-out sheltering of Assange in the Ecuador embassy amounts to “persistent abuse of the inviolable status of mission premises.”  Whatever can be the basis for this sentence?

In the first edition of Professor Denza’s commentary on the Vienna Convention, she includes an illuminating account of international debates over the years of the kind of extreme circumstances — fire, violent life-threatening criminal activity in diplomatic premises, activity threatening the lives and security of citizens of the receiving state, and so forth — sometimes held to justify a breach of the inviolable status of diplomatic premises under Art. 22, the text of which admits of no exceptions.  It’s impossible to summarise Prof. Denza’s treatment of this issue adequately except to say that it has not proved possible to reach international agreement on any definition of extreme circumstances justifying breach of Art. 22 inviolability, partly because any such definition would open the way to serious abuse: a hostile host government could easily claim that almost any definition was applicable as an excuse and pretext for breaking into an embassy without the ambassador’s permission, riding roughshod over all the essential safeguards of diplomats’ independence in the Convention.  But Denza mentions in passing that only the most extreme misuse of diplomatic premises for improper purposes could possibly be cited as justification for breaching their inviolable status and that improper use of such premises for (e.g.) sheltering a fugitive would not provide justification.  (This was of course written long before the Assange affair.)

The one generally accepted exception to these principles and rules is where the receiving State acts under its “inherent right of self-defence” under Article 51 of the United Nations Charter.  To be able to assert this right, the receiving state has to be able to point to behaviour by or from the embassy which poses an immediate threat to the lives and safety of people in its vicinity, such as someone shooting randomly, or at all, from within the embassy.  When young PC Yvonne Fletcher was shot from a window of the Libyan embassy in 1984, the British government would have been entitled to exercise its right of self-defence to enter the embassy and take whatever action was necessary to prevent further murders.  (It decided against doing so, primarily because of the risk to the staff of the British embassy in Libya if it did — a point worth considering in the context of the Ecuadorean embassy in London, incidentally.)  This sole exception to the special status of Article 22 is not AFAIK set out in any formal legally binding document, but it is apparently generally recognised by students of international law, and confirmed in Professor Eileen Denza’s book ‘Diplomatic Law’, as well as in the chapters in the current edition of Satow on diplomatic privileges and immunities (of which Professor Denza was the author).

CC: I think [CG] agreed with my argument about the relationship between the Vienna Convention and the 1987 Act: the Act gives formal and proportionate expression to the inherent power under the Convention for a receiving state to withdraw diplomatic immunity if an Embassy behaves disgracefully. The question is, what level of disgracefulness counts to trigger that response properly? Assange’s footling asylum bid falls short, in his view and mine (hence the unwisdom of the FCO ‘threat’).

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Breaking off diplomatic relations

BLB: Breaking off diplomatic relations is certainly an option. But Ecuador would be entitled to ask another country — e.g. Venezuela — to look after its interests during the breach in relations, which might involve the protecting power using the existing Ecuadorean embassy to house its Ecuadorean Interests Section — so it would continue to enjoy immunity (although the UK would probably have opportunities to refuse its agreement to this at some point).

But more to the point: breaking off relations with another country is not something to be done lightly. Not only might it result in lost contracts for British companies and problems for UK citizens in Ecuador: other Latin American countries would almost certainly break off relations with Britain to show solidarity with Ecuador, especially after Mr Hague’s foolish threat to enter the embassy and arrest Assange without the ambassador’s consent, in breach of international law. British commercial and other interests all over Latin America and perhaps elsewhere would suffer, and it would be very difficult to find a way of restoring relations. We would be unable to forge alliances with these countries when we need their votes in the UN and other international organisations. Diplomatic relations are not a mark of approval, nor a favour to the country that we have relations with: they are an essential element in the protection and advancement of our national interests. Would it really be worth accepting all that damage and setback to our relations with much of central and south America just to get hold of Assange and hand him over to the Swedes, much as we would (rightly) like to do so?

In my view, FWIW, breaking off relations would be out of all proportion to the essentially trivial nature of the objective. Let Mr Assange stew in his own juice, confined indefinitely to a smallish flat in Knightsbridge and unable even to pop out to visit Harrods or buy himself a hot dog. The Ecuadoreans will get tired of having to give him food and shelter at their own expense eventually, and will probably at some point agree to hand him over in exchange for some kind of UK promises regarding his treatment. The FCO is continuing to talk to the Ecuadoreans about some such solution, which would clearly be in both governments’ interests. We have nothing to lose by being patient. Sometimes doing nothing is the least damaging course.

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As to the current impasse with the Ecuadoreans, my guess is that in two or three weeks’ time, or maybe longer, the Ecuadoreans will have become so disenchanted by their uninvited guest that they’ll agree to hand him over in exchange for some grandiose undertaking by the UK and Swedish governments, for example a promise that they will not accede to any future application for his extradition to the US if there’s even the smallest risk that as a result he might be given a death sentence (something which of course no signatory of the ECHR can do anyway).  Assange, deprived of his creature comforts (including the company of women) as long as he’s imprisoned in the Ecuadorean embassy, might even eventually decide to come out of his own accord on the basis of some such undertaking, given a strong steer in that direction from his Ecuadorean hosts.  So the case for masterly inactivity on the part of the UK government for a few weeks seems very strong, apart perhaps from some quiet sympathetic talks with the Ecuadoreans at a suitable level just below the top, to remind them that in fact we all really want to achieve the same result:  Assange out of their embassy and on his way to Stockholm.

But I may well be completely wrong and my government might be on the brink of doing something stupid (again!).

CC:  There’s always the fascinating wrinkle that if state X breaks off relations with Y, X’s Embassy in Y still is X’s property and might be protectable if it is passed promptly to state Z. So eg if we break off relations with Ecuador and ask them all to leave, Ecuador might pass its rights in the Embassy to Paraguay and Assange stays in there for ever more (haha). When we broke off relations with Serbia during the NATO bombing we carried on having an interests section of some sort in/with the Brazil (I think) Embassy and our diplomatic estate was maintained in that form. Funny how tenacious all this is even in the worst moments.

From former British ambassador to Libya (2):

I feel that some of this discussion is getting a bit fanciful. As I have already declared my position, I am not an international lawyer or a protocol expert, but I do have some practical experience which is relevant. Reading the small print is all very well, but I note that Eileen Denza has drawn attention to the statement in the preamble to the Vienna Convention that ‘the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention.’

In my own experience in Libya in 1984, once the decision had been taken to break off relations there were numerous details and more than details which had to be agreed. Would we appoint protecting powers? Would we be permitted to hand over sealed bags to them? Would an interests section consisting of members of our staff be allowed to remain under diplomatic protection in the embassy of the protecting power? When would diplomatic staff be permitted to leave? Could they have freedom of movement to deal with their personal affairs (including selling off illegal alcohol stocks)? Would family members of diplomatic staff be allowed to move freely and to leave the country in advance of the departure of diplomatic staff? Would the protecting power’s flag fly over the vacated premises?

Agreement on all these points was reached by horse trading, not by reference to Scripture. If we or the Libyans had said unilaterally, for example, that the embassy premises were being handed over to the protecting power and would remain immune from search we would simply have been laughed at.

I do appreciate that we were working under time pressure, which is not the case in the present instance. But that cuts both ways: the FCO have plenty of time for example to notify the Ecuadorian Embassy that no new appointments of diplomatic staff, whether permanent or as temporary couriers, will be considered effective unless the agreement of the FCO is obtained, and perhaps to ask the Doyen to inform all embassies that re-flagging of diplomatic premises also requires FCO agreement.

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BB: I fully accept (of course!) what you (and Prof Denza) say about customary international law continuing to govern the parts that the Vienna Convention doesn’t reach, but the questions raised by HMG’s threat are covered by the Convention and what Hague or the FCO threatened to do would, on any ordinary reading of it, be in breach of it.  Statute law after all supersedes common law and conventional law. I hope our government isn’t reduced to saying in effect:  Maybe the Vienna Convention wouldn’t allow us to do what we’ve claimed to have the power and right to do, but we mustn’t be obsessed by the small print – according to common sense and customary international law we can do whatever we like.  That may sound quite acceptable to Brits who are used to a constitution that’s mostly not written down and relies a lot on convention and common sense, but it also makes it wide open to abuse, and would seem very questionable indeed to the nine-tenths of the world which lives under more or less tightly written constitutions.

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Assange: some legal myths exploded:

http://www.newstatesman.com/blogs/david-allen-green/2012/08/legal-myths-about-assange-extradition

On the question of a guarantee by Sweden (and or by the UK) that they will never agree to Assange’s extradition to the US, as demanded by Assange:

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Afterthought:

CL: I marvel at British deviousness. How in the hell did you all palm that Assange turkey off on the poor damn Ecuadorians?! The UK unloads responsibility. Ecuador gets stuck for the room and board of a permanent house guest. (Cardinal Mindszenty lasted 15 years in the US Embassy back in the Cold War.) And Assange winds up in a prison. Maybe it’s a luxurious prison, but he ain’t walking the streets no more and the Ecuadorians are paying the bills.

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London, 6 September 2012