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Enter at Your Own Risk

Published on August 16, 2012        Author: 

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:

[I]f—

(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.

Related Posts:

Matthew Happold, “Julian Assange and Diplomatic Asylum” (Jun 2012)

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5 Responses

  1. Roger,

    I guess any arguments of self-defence or distress would meet with the difficulty that diplomatic law is a self-contained regime (U.S. Diplomatic and Consular Staff in Iran [1980] ICJ Rep 3, at 38-41), but I wonder if there might not be some problems in asserting this.

    In the Tehran Hostages case, Iran had of course referred to interference in its internal affairs by U.S. diplomats with a view to justifying its action against the U.S. mission. The Court did not accept this, holding that ‘diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.’

    The Court was referring there to ‘such abuses … as espionage or interference in the internal affairs of the receiving State.’ It presented the rules of the VCDR as accomodating the legitimate interests of the receiving State in such cases, and went on:

    ‘The rules of diplomatic law, in short, constitute a self-contained
    régime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the withdrawal by the receiving State
    of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once.’

    From my quick perusal, it appears that the Commentary on the ILC Articles on State Responsibility does not have to say very much about this (UN Doc. A/56/10, pp. 358-9, on Article 55). It simply records diplomatic law as being a self-contained regime and as therefore constituting a strong case of lex specialis vis-à-vis the Articles.

    Both the judgment in the Tehran Hostages case and the reference to lex specialis by the ILC seem to raise an important question in Mr Assange’s case: The Court referred specifically to wrongdoing by diplomatic and consular agents of a kind that would end when the offending agents left the receiving State. Against this background, the Court was able to describe the rules of the VCDR on persona non grata etc. as ‘entirely efficacious’. This suggests that the rules of the VCDR displace the more general rules because they occupy the same ground and are roughly as effective as the general rules in protecting the receiving State from abuses of the diplomatic function.

    The reference to lex specialis also suggests as much: lex specialis can only operate as between rules that cover the same ground or which are, to put it in Latin, in pari materiae. Therefore, if and insofar as diplomatic law does not provide the necessary tools, it may not be a self-contained regime after all.

    Diplomatic asylum may well be a test case for this approach: it cannot be brought to an end by booting out any particular diplomat or diplomats. Perhaps the ambassador could be declared a persona non grata, with an added message to Ecuador that no new ambassador would be accredited who was prepared to keep Mr Assange in the embassy. But that would be unlikely to help, because the decisions in this case are not the ambassador’s.

    Short of severing diplomatic relations altogether, it seems the receiving State is helpless against cases of diplomatic asylum.

    It seems to me that there are two possible solutions:
    – Either diplomatic law is not quite as self-contained as might be thought because there is nothing appropriate in diplomatic law to justify suspension of the general rules of state responsibility.
    – Or it is still self-contained because there remains the option of breaking off diplomatic relations (this is a very serious step, but so are any inroads into the inviolability of a diplomatic mission).

    I suspect the more plausible solution would be the latter, simply because the VCDR says so in the absolute guarantee of inviolability. The VCDR may not be ‘entirely efficacious’ in this case, and it may not provide specific rules for this case which might qualify as lex specialis, but it can be regarded as lex specialis overall (its regime as a whole being pitted against that of the Articles on State Responsibility).

    (I should say I have not done any further research on this.)

    Apologies for rambling on. I’d be grateful for any thoughts re the self-contained regime.

  2. Roger O'Keefe

    Tobias
    A great point that did not even cross my mind when I rattled off my remark about circumstances precluding wrongfulness. And you hit the nail on the head when you pose the question whether diplomatic law is really so self-contained. Article 55 of the ARSIWA states (emphasis added): ‘These articles do not apply where AND TO THE EXTENT THAT the conditions for the existence of an internationally wrongful act … are governed by special rules of international law.’ It seems to me that it might be one thing to say that countermeasures are not permitted in the context of diplomatic law, since the VCDR provides its own, analogous responses to international wrongdoing by the sending state—namely, as you say, declaring diplomats persona non grata or even severing diplomatic relations (although the latter is more a simple retorsion than a specific institution of diplomatic law). It seems something quite else to say that diplomatic law is lex specialis with respect to circumstances precluding wrongfulness like self-defence or, even better, necessity. Let’s imagine that the evil Grand Duchy of Fermi primes a nuclear device on its embassy premises. It is hard to see how the VCDR provides its own answer to the need ‘to safeguard an essential interest against a grave and imminent peril’ of this sort, in the words of article 25(1)(a) (‘Necessity’) ARSIWA; and I find it hard to believe that other states would not consider it justified or excused were the receiving state unilaterally to enter the premises to defuse the device. The same goes, mutatis mutandis, for the situation where armed units of the sending state fire and continue to fire, be it small arms or RPGs, from inside embassy premises to beyond, perhaps in the context of a wider armed conflict between the two states. It is not much good declaring these guys persona non grata. Firing on or storming the embassy, if both necessary and proportionate, would surely be permitted as a function of article 21 (‘Self-defence’) ARSIWA.
    Roger

  3. Rick

    Roger,

    In your article you postulate that it could be argued that the Ecuadorian Embassy has ceased to use the premises as a Diplomatic mission as it is harbouring a fugitive from British justice. However, interpretations of the UNHCR by Kapferer (2003) states on the UN’s strong position on refoulment that, “where the extradition of a refugee or an asylum-seeker is sought, or where an asylum application is filed after the individual concerned learns that a request for his or her extradition has been made, the special protection needs of the wanted person must be taken into consideration.”

    Now, if Ecuador believes (as does most of the world) that Assange will be at risk of extradition to the U.S. from Sweden, then Ecuador must continue to offer Assange protection, even under U.S. law. Specifically Article 22(8) of the 1969 American Convention on Human Rights provides that “In no case may an alien be deported or returned to a country, regardless of whether or not it is his [or her] country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his [or her] race, nationality, religion, social status, or political opinions (UNHCR 2003, para. 20). However, it could be argued that under the U.S. Patriot Act this convention has been subjugated. If this is the case then what of the UNHCR convention that ”Obligations under international refugee and human rights law take precedence over those derived from other international treaties also in the context of States’ efforts to suppress and prevent terrorism.” (UNHCR 2003, pg. 12, para. 23). Article 22(8) and the UNHCR convention on non-refoulment would most likely be the reasons why the U.S. has remained silent on the issue of Assange’s extradition, because if it did get out that Assange was to be extradited to the U.S., then the U.K. would also need to offer protection to Assange.

    So, as far as I can tell, Ecuador is the only country protecting Assange’s human rights, but Ecuador both operating within it’s obligations and right in providing Assange with protection.

  4. Roger O'Keefe

    Rick
    When I say ‘It could be argued’, all I mean is that there is a colourable argument – a partisan submission, if you will – to be made, i.e. ‘If one were representing the Secretary of State, one might say …’. I had hoped it was clear from the following passage that I did not agree with the argument.
    Roger

  5. André de Hoogh

    If I might just add a few of my own thoughts to those of Roger’s and Dapo’s:

    The question of self-defence raises the issue whether shots fired from an embassy would constitute an armed attack. As you know, article 51 of the Charter requires the armed attack to be directed against a Member of the United Nations, and one would think that generally an incident would not qualify. When the case would be one of organization of terrorist attacks from an embassy, or provision of weapons to insurgents, this might perhaps be assessed differently.

    However, suppose that we have an incident such as the one where police officer Fletcher was killed, another option could be to resort to domestic law. The ICJ, after recalling the inviolability of diplomats and (among others) the premises, stated in the Diplomatic Staff case (para. 86; though the Court did not provide any authority for this view and this option cannot, as far as I know, be traced back to the Vienna Convention on Diplomatic Relations):

    “Naturally, the observance of this principle does not mean – and this the Applicant Government expressly acknowledges – that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime. But such eventualities bear no relation at all to what occurred in the present case.”

    Applied to the present situation, it does not appear that this would play any role, since there is no question of any assault or crime being committed specifically from the embassy premises that the British authorities would need to prevent through effecting an arrest.

    Let me raise one other issue and that concerns an option where Assange might leave the embassy and not be arrested. If he simply leaves the premises he will of course be liable to arrest. However, immunity is also accorded to means of transport of the mission, which shall not be subject to search, requisition, attachment or execution (art. 22(3) Vienna Convention on Diplomatic Relations).

    In principle therefore Assange could leave in an official car and leave the country. However, he would have to get out of the car at some point, for instance at a port or airport, since Great Britain is an island. Nevertheless there is one other option now and that is to use the tunnel to France. The problem there could possibly be, but I don’t know since I haven’t used that option yet, that in going through the tunnel by putting the car on the train the occupants of the car would have to leave the car. If such is the case, Assange would of course be liable to arrest.