Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.
Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:
You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.
We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.
We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.
The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:
(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or
(b) the Secretary of State withdraws his acceptance or consent in relation to land,
it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.
The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.
The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.
First, it might be claimed that, by harbouring a fugitive from British justice (which would include from the process of extradition from the UK to Sweden pursuant to the European arrest warrant issued by Sweden), Ecuador ‘ceases to use [the premises of its diplomatic mission] for the purposes of its mission’, as per section 1(3)(a) DCPA, with the result, again as per section 1(3)(a) DCPA, that this land ceases be diplomatic premises for the purposes of article 22(1) VCDR and therefore, via the DPA, of UK law. This would mean that the premises are no longer inviolable, with the consequence that the UK police could enter and arrest Assange.
This would be a highly unusual interpretation of section 1(3)(a) DCPA, to say the very least. To say the most, it would be utterly implausible. The situation referred to in section 1(3)(a) is where the state whose embassy it is ceases to use the premises as an embassy. This construction is supported by section 1(6) DCPA, according to which, ‘[i]f a State intends to cease using land as premises of its mission or as consular premises, it shall give the Secretary of State notice of that intention, specifying the date on which it intends to cease so using them’. Section 1(3)(a) DCPA does not refer to a situation where the embassy remains an embassy but is used in a way that the UK government considers incompatible with the embassy’s functions as an embassy.
Alternatively, it might be that the Secretary of State ‘withdraws his acceptance … in relation to [the] land’, in the words of section 1(3)(b). The catch, however, is section 1(4), which stipulates that ‘[t]he Secretary of State shall only … withdraw acceptance if he is satisfied that to do so is permissible under international law’, and there is seemingly nothing in the VCDR or customary international law which would permit the UK to withdraw its acceptance once the sending State’s permanent diplomatic mission is established in London. Moreover, if there were, it is highly likely, as in the case of declaring a diplomatic agent persona non grata, that a collateral rule of international law would give the sending state a reasonable time to shut down the mission and leave. It is inconceivable that international law would permit the receiving state to send its authorities onto the premises before the mission vacated it.
The reason that such creative recourse might be had to section 1(3)(a) DCPA in order to assert the power to arrest Mr Assange on embassy premises is that the rule of inviolability laid down in article 22(1) VCDR is, on its face, absolute. Whatever goes on inside the embassy, the local authorities may not enter it without permission, a position affirmed almost uniformly by subsequent state practice. The only justification or excuse for non-observance of the inviolability of embassy premises would be if one of the circumstances precluding wrongfulness recognized in chapter V of Part One of the Articles on Responsibility of States for Internationally Wrongful Acts were to be made out. Candidates include self-defence and distress.
In the final analysis, the UK will need to, and need only, sit and wait. Even if Mr Assange were to be granted asylum by Ecuador, he could not leave the embassy’s premises without being exposed to arrest by the UK authorities. He is stuck in the embassy. That said, it could be a long wait. Cardinal Mindszenty lived in the US embassy in Budapest from 1956 until 1971, when the Hungarians allowed him to leave and go into exile. By the time Julian Assange emerges, his hair may, if it is possible, be even greyer.
Matthew Happold, “Julian Assange and Diplomatic Asylum” (Jun 2012)