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Home Diplomatic Asylum The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

As has been widely reported, and as UK Foreign Secretary confirmed in his press conference of yesterday, the UK has told Ecuador that there is a basis in UK under which Ecuador’s embassy could cease to be regarded as diplomatic premises. The UK is reported to have said that:

“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 sincerely hope that we do not reach that point, but if you are not   capable of resolving this matter of Mr Assange’s presence in your premises,  this is an open option for us.”

Roger O’Keefe has analysed the provisions of the Diplomatic and Consular Premises Act of 1987 in his post . Does the Act do what the UK says it does and would this be lawful under international law? As I indicate below, the Act does do what the UK says it does. Section 1(3) permits the Foreign Secretary to withdraw his consent from treating, as diplomatic premises, the building and land in which Ecuadorian embassy is located. That would remove the inviolability of those premises. Strictly speaking, the Act may not fall foul of international law because Section 1(4) of the Act expressly says the Foreign Secretary may only withdraw consent if this would be in accordance with international law. So the Foreign Secretary can only remove the inviolability of the premises where international law would permit this.

In my view, it would not be lawful for the UK  to remove the diplomatic status (with consequent loss of inviolability) of premises that are actually being used for diplomatic purposes even when those premises are being abused for other purposes. Such a removal of the status of diplomatic premises would be a dangerous precedent and one which might well backfire on the UK.
To undertake such an act would set quite a distabilising precedent in international relations. This precedent would almost certainly be used by other countries. The Telegraph reports a  former UK Ambassador to Russia (Sir Tony Brenton) as stating that

” ‘arbitrarily’ overturning the status of the building where Mr Assange has taken shelter to avoid extradition, would make life ‘impossible’ for British diplomats overseas. . . .  ‘I think the Foreign Office have slightly overreached themselves here, for both practical and legal reasons.’ ‘The Government itself has no interest in creating a situation where it is possible for governments everywhere to arbitrarily cut off diplomatic   immunity. It would be very bad.’  . . . He warned that if it did, life would become ‘impossible’ for those working in British embassies around the world, adding: ‘If the Russians had had the power and simply walked into the embassy and simply arrested  someone, we would have been in much more insecurity.’

To be fair, the Foreign Office is not suggesting that it would simply walk into the Embassy or storm it. As Roger points out even if consent is withdrawn with a view to depriving the building of its inviolability, the UK would have an obligation to permit the members of mission to leave the premises within a reasonable time (and with the archives and property of the mission too). However, even to suggest the possibility of unilateral termination of the diplomatic status of the building is to hand to other States the possibility of choosing to threaten missions with disruption to their work and removal from their premises, without the receiving State (the host State) having to pay the price of cutting off diplomatic relations. There is a  way in which the UK could get Julian Assange out of the Ecuadorian Embassy. This is to break diplomatic relations with Ecuador, with the consequence that Ecuador would have to withdraw from the premises in London. This is a high price to pay for seeking to get Assange but this is precisely what the UK government did to end the stand off at the Libyan Embassy in 1984. Suggesting that receiving States may kick diplomatic missions out of their buildings is probably an even higher price as it introduces uncertainty into the principle of inviolability of dplomatic premises.

The UK’s Diplomatic and Consular Premises Act, 1987

Section 1 of the Diplomatic and Consular Premises Act of 1987 Act sets up a scheme under which the UK Foreign Secretary has to give consent for land to be used as diplomatic premises. More importantly for our purposes, Section 1(3) of the Act provides that land is no longer to be regarded as a State’s diplomatic premises where the Foreign Secretary withdraws his consent. The implication is that such land or such premises will lose its inviolability under international law with the effect that UK agents are free to enter it. Section 1(4) of the Act does say that “shall only give or withdraw consent or withdraw acceptance if he is satisfied that to do so is permissible under international law.” So even under the Act, the UK can only act in accordance with international law. So the key question becomes what does international law provide? Can a State unilaterally withdraw from an embassy building, the status of diplomatic premises such that it loses its inviolability? Before considering this question, it is worth asking, what the purpose of the 1987 Act was? Why did it have these provisions requring the consent of the Foreign Secretary before land or a building could be considered diplomatic premises and why did it provide for the possibility of withdrawal of consent?

The Act arose out of a general review, undertaken  in 1984 & 85, by the UK government, of the Vienna Convention on Diplomatic Relations. The review was prompted by the incident that took place in London in 1984 of the shooting of a British police officer by someone from within the Libyan Embassy in London. The review received added impetus after the attempts by the Nigerian government, also in 1984, to smuggle Mr Umaru Dikko (a former Nigerian minister) out of the UK in a diplomatic bag. The review was directed in general terms at the questions of the abuse of Vienna Convention including deliberate abuse of diplomatic premises, diplomatic status and the diplomatic bag. The government published its Report (Cmnd 9497) in April 1985 and extracts can be found in  (1985) 56 British Yearbook of International Law 437-453. Looking at the report, it is evident that there were a range of concerns that animated the decision to instigate the consent scheme. There was concern about the location of embassies, in particular the need to  ensure they were located in areas that would not pose arisks for security, public order or crowd control arising from demonstrations. There was also concern that some embassies were not being used for proper diplomatic purposes with some of them being used as tourist offices, for educational purposes or for financial gain. In addition, there were concerns about terrorist attacks (or other criminal acts) on or from embassies. When introducing the Bill in Parliament, Baroness Young (then a Foreign Minister) stated that

“at present we would be unable to remove diplomatic status from premises which were being misused. I have in mind here evidence over a long period of time that a mission was being used, for instance, in support of terrorist activity.”

The drafting history of the Act therefore seems to suggest that it was contemplated that the Act might be used as a way of responding to abusive uses of diplomatic premises. However, there is a spectrum of possibilities there. Where it is suggested that the premises are not actually being used for diplomatic purposes but for other functions (eg the Tourist Office that is labelled an embassy), it seems appropriate to withdraw the status of diplomatic premises. In such a case, such a status is really a sham status.

However, what of the case where the premises are really being used for diplomatic purposes but also being used for other purposes (eg in support of terrorist or other criminal activity). In such a case, the conclusion that the receiving State can unilaterally reclassify the status of the premises by withdrawing its consent is contrary to the conclusion that was reached, in 1984 by the Foreign Affairs Committee of the UK House of Commons when it looked at the incident relating to the Libyan Embassy in 1984. That Committee examined whether inviolability of diplomatic premises may be lost as a result of terrorist activitity from the premises. They concluded that the drafting history of Article 22 of the VCDR “probably makes this principle inappropriate, especially as a ‘remedy’ for violation is provided in the form of a severing of diplomatic relations.” Also, even the UK government in its 1985 report stated in relation to the Libyan incident that:

“It was not legally possible to cease to recognise the Bureau buildings as premises of the Mission while we remained in diplomatic relations with Libya and the buildings were being used for the purposes of the  mission.” (para. 82)

Thus, even British practice suggests that international law does not permit withdrawing the diplomatic status of a building where abusive acts are going on when it is also actually being used for the diplomatic purposes. In such cases the remedy, if it is thought necessary, is to terminate diplomatic relations. Indeed, it seems odd (Assange case aside) to consider that withdrawing consent from the diplomatic status of the building would solve the problem of abusive acts. Even if the status of a particular building is terminated, the receiving State is under an obligation under Art. 21 to facilitate acquisition of premises necessary for a diplomatic mission. If the sending state were inclined to continue to abuse its diplomatic privileges it would simply do it in the next building obtained.

The drafting history of the Vienna Convention and subsequent State practice appears to show quite strong support for the absolute nature of the inviolability of diplomatic premises. No exception that inviolability is provided for in the Vienna Convention. Eileen Denza in her influential book Diplomatic Law states that:

 “The practice, however, does little to support the view that exceptions may be implied to the strict inviolability prescribed by Article 22 . Suspicion of abuse of the premises by violations of local laws or by continued shelter of an asylum seeker is clearly not a justification for entry by law enforcement officers in contravention of inviolability. Because the Vienna Convention provides its own system of remedies by way of declaration of persona non grata and breach of diplomatic relations, even manifest abuse cannot be relied on to justify forcible entry as a form of reprisals for breach of the obligation under Article 41 of the Convention to respect the laws and regulations of the receiving State.” (p. 126, 2nd edition)

Finally, it may be stated that when the UK adopted the 1987 Act it notified all other States and no State appeared to object. This might be taken as some form of acquiesence in the UK’s position or as State practice supporting the UK’s view. However, States may not have objected because the Act requires the Foreign Secretary to act in accordance with international law. How can one object to such a requirement? Not demurring when the Act was passed does not mean agreement that it is always lawful to withdraw consent unilaterrally. Morever, States may take the view that is lawful to withdraw consent from premises not actually being used for diplomatic purposes without agreeing that withdrawal of consent is a remedy for abuse of premises actually being used for diplomatic premises.

UPDATED: The BBC has a very good “Q&A: [on] Julian Assange and Asylum”, which is actually very good on the legal issues. One of the issues considered is whether there are any ways in which Assange could get out of the Ecuadorian embassy without being arrested. For example, could he smuggled out in a car or diplomatid bag. The BBC says:

“Assuming Julian Assange evaded arrest outside the embassy, he could get into a diplomatic car. These vehicles enjoy protection in international law from ‘search, requisition, attachment and execution’.

That could lead to the curious legal position of the Met having the power to stop the car – but no power to search it for Julian Assange.

Even if he got away, at some point he would have to get out of it into an aircraft – at which point the risk of arrest would return.”

This seems right to me. The reference is to Art. 22(3) of the VCDR which says that “the means of transport of the mission shall be immune from search, requisition, attachment or execution.” Note that the language here is different from the language used in para. 1 of that Article which deals premises of the mission. Para. 3 does not say that the means of transport are inviolable. The obligation to respect and protected is more limited than the obligation to respect inviolability. It seems to be accepted practice that there are some limited forms of interference with diplomatic cars which are legitimate, e.g. towing away a car that is causing a hazard or illegally parked, not for the purpose of enforcing a penalty but for the purpose of clearing the hazard. That action is not an attachment or execution. What about stopping the car? Stopping the car is, arguably, outside the prohibited actions in Art. 22(3). But if the car is stopped, then what? The car cannot be searched. And the members of the mission have freedom of movement (under Art. 26, VCDR). In any event, as the BBC says, even if Assange got to an airport or sea port, he would have to get out of the car at some point.

Readers may be interested in a piece in the Los Angeles Times where  I am quoted discussing these issues.

 

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19 Responses

  1. “That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)).”

    So if Mikhail Khodorkovsky shows up in a British Embassy and asks for asylum as a political refugee, the probability that he has really violated Russian tax laws means that he cannot be given asylum? ( not that the UK government would actually defy Putin, but hypothetically). Clearly, the intention of the charter is not that political asylum may only be offered to the most pure, but that asylum may not be offered to someone who is merely attempting to evade legitimate police action. Since, Assange claims he is willing to go to Sweden if he is assured that he will not be extradited to the United States and Sweden refuses such assurance, his claim is certainly within the intent of the charter.

  2. Roger O'Keefe Roger O'Keefe

    Dapo
    Would breaking off diplomatic relations with Ecuador get Assange out of the embassy or merely leave him alone in the funhouse? If they left him enough food, he could hold out for long enough seriously to embarrass the UK government; and if he began to suffer, we would have a great case on our hands as to the ‘territorial’ application of the ECHR. Or are you suggesting that the UK might break off relations, then use the DCPA?
    On the broader theme of getting Assange out, I would recommend the tried and true technique used to get General Noriega out of the papal nuncio’s residence in Panama City, i.e. to blast out really bad heavy metal music, e.g. Whitesnake, night and day from the street outside. (AC/DC, in contrast, would have the opposite effect on any true blue Australian, and indeed on any person of taste.) Alternatively, we could give it a Team GB touch and stage a Spice Girls reunion gig in the carpark. That’d have ‘im outta there in no time.
    Roger

  3. Moritz Moelle

    Another interesting disposition in the Vienna Convention is also worthwhile mentioning. Article 45 reads as follows:

    Article 45
    If diplomatic relations are broken off between two States, or if a mission is permanently or
    temporarily recalled:
    (a) The receiving State must, even in case of armed conflict, respect and protect the premises of the
    mission, together with its property and archives;
    (b) The sending State may entrust the custody of the premises of the mission, together with its
    property and archives, to a third State acceptable to the receiving State;
    (c) The sending State may entrust the protection of its interests and those of its nationals to a third
    State acceptable to the receiving State.

    It underlines the inviolability of diplomatic premises, if it even applies in cases of armed conflict, then it must especially apply in all other cases.

  4. Moritz Moelle

    Roger,
    arguably the blast of bad heavy metal music day and night might amount to cruel and inhumane treatment ;)?

  5. Dapo Akande Dapo Akande

    Roger,

    If the UK does break off diplomatic relations with Ecuador that would mean that all embassy staff woul dbe required to leave and the premises would no longer be used for the purposes of the mission. In those circumstances, Art. 45 requires the UK to “respect and protect” the premises. However, this is not the same as the obligation of inviolabilitiy. It is a lesser obligation. The obligation of inviolability would end a reasonable time after the premises are vacated. In such a case, Ecuador would have to decide whether to take Assange out with embassy staff (in which case he would be liable to being arrested) or leave him there. If they leave him there, the UK could go in as the premises are no longer inviolable.

  6. Dapo Akande Dapo Akande

    Moritz,

    I saw your comment after I posted my response to Roger. [Reader's may wish to know that comments by first time posters on the blog require moderation and only appear after that moderation has occured].
    As I said to Roger, the duty to “respect and protect” in Art. 45 is not the same as the principle of inviolability. Respect and protect means the UK can’t go into the embassy building to thrash it but nonetheless the UK can go in, can search, can perform an arrest of any one left in there.

    One thing I failed to raise in my response to Roger and in my post is whether the UK can “suspend” diplomatic relations, by for example, requiring the mission to leave the premises, and whether this is the same as breaking them off. It may well be that the Diplomatic and Consular Relations Act is the domestic law vehicle by which the UK does this.

    But, if the UK has not broken off diplomatic relations it is arguable that it would have an obligation to facilitate acquisition of alternative premises (Art. 21 VCDR) and it may well be that it cannot require Ecuador to leave its present premises before it had alternative (even if temporary premises). In which case perhaps Ecuador could just seek to move Assange from one premises to the other. On whether the UK could stop an Ecuadorian car in which Assange is in, see update above.

  7. Moritz Moelle

    Dapo,

    Of course, the obligation of the receiving state are different under Article 45 are different than these under Article 22. My point is – that – under a systematic interpretation – Article 45 supports the high degree of protection accorded to diplomatic premises.
    It is an interesting point you raise regarding the possibility to suspend diplomatic relations only, the chapeau of Article 45 seems to suggest that such a case is equally covered, although implicitly.
    “If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:”

    The normal practice would be, to recall diplomatic staff in a case of suspension of diplomatic relations, but it presupposes a such move by Ecuador.

  8. Francesco Messineo

    Dear Dapo, Roger and Matthew,

    thanks for your posts which will hopefully be read by some of the journalists currently discussing the imminent invasion of Ecuador and other improbable legal assessments. I’d like to raise two points.

    1. As to whether Ecuador could or could not grant asylum to Assange. To answer negatively, it has often been mentioned a) that Article 1(F) of the Geneva Convention on Refugees would apply, and b) that diplomatic asylum is not provided for in general international law, as if these two points would exclude the possibility for Assange’s asylum to be acceptable or recognized under international law.

    I am not persuaded that any of these two points are in fact relevant at all: there is no rule providing that a state can only grant refuge or asylum when the Geneva Convention or other rules apply. On the contrary, a state is perfectly entitled to grant asylum to anyone it wishes under its own domestic law. France and Italy have very generous constitutional asylum provisions (sadly seldom appied); the European Union has arguably created a Common European Asylum System going partly beyond (but at times falling short of) the requirements of the Geneva Convention on Refugees; and American Countries have accepted systems of diplomatic asylum. These are all perfectly acceptable exercises of the sovereign right of each state to do what it wishes with its borders – unless international law provides otherwise, a state retains complete freedom to admit (or say it will admit, as in this case) anyone to stay in their country on whatever grounds. So Ecuador is perfectly within its right to say that it ‘grants asylum’ to Assange. Furthermore, Sweden’s complaints in this regard fall short of the known common-sense consideration that the granting of asylum should never be taken as an unfriendly act. It is a key element of the system of international protection that sovereigns do not ‘take it badly’ when their citizens find asylum somewhere else, because one day it could always be the opposite…

    The only real conflict of norms would arise if Ecuador had an extradition agreeement or some other international obligation that would make its decision to host Assange a breach thereof. Otherwise, any sovereign is free to grant asylum, or even citizenship, to whomever it pleases the sovereign. The Geneva Convention is only the most developed system of mutual recognition of refugee status decisions and of the rights that derive therefrom – states can well go beyond what is required at their wish.

    Conversely, the UK is not bound by Ecuador’s decision as such – but it might be a good idea to start negotiations from the premise that Ecuador is within its right to say it wishes to host Assange, and not from the premise that Ecuador’s action is ‘illegal’.

    2. How can Assange get to Ecuador, given that he still isn’t in Ecuadorian territory, whatever some journalists may think? I wonder if a diplomatic car, which cannot be searched, can actually be stopped from taking the Eurotunnel… and would such car lose its diplomatic status once in French territory? Or would France also be bound not to stop it? And surely there must be an airport somewhere in Europe where a diplomatic car can reach directly onto the stairs of an aircraft flying the Ecuadorian flag, without Assange having to touch the soil of that country?

    Perhaps the Spice Girls won’t be necessary after all.

    Francesco

  9. Roger O'Keefe Roger O'Keefe

    Francesco
    Ciao, bello. I agree about asylum. As for the car, is a diplomatic vehicle inviolable? There is nothing about this in the VCDR, and I am afraid I am not up on customary international law in this regard. For sure the person of a diplomatic agent is inviolable, i.e. not subject to arrest or detention, but I doubt whether this is the same as saying that the car she is travelling in is. Moreover, would the inviolability of a car mean that it cannot be stopped? It would definitely mean that it could not be searched, but stopping it strikes me as a different question. Then again, maybe there is a difference between stopping it in the routine course of, say, traffic policing, only then to wave it on, and stopping it in the way and for the sorts of reasons we would be talking about here. Where is Eileen Denza when we need her?
    Roger

  10. Roger O'Keefe Roger O'Keefe

    Stupid me! I’m new to this blogging game. I usually think before I write.
    I now see article 22(3) VCDR, on the immunity of the means of transport of the embassy from search, etc. So my first question to Francesco I hereby unceremoniously quash. But my subsidiary question as to whether stopping a diplomatic vehicle, at least non-forcibly, stands. It would be great if someone who knew about state practice in this area could enlighten at least me.
    Roger

  11. Francesco Messineo

    Thanks Roger!

    I just lost myself for 20 minutes in Satow’s Diplomatic Practice [what wouldn't people do just to procrastinate other things that they must do] but cannot find anything helpful for our purposes. So, the car cannot be searched, but it can presumably be stopped. But for how long? Surely stopping a car with an ambassador inside for too long a time would become a form of detention – or in any event restriction of movement – which seems to be excluded from the ratio of the VCDR.

    I still place my bet on three black-windowed diplomatic cars (so that we don’t know where he is) coming out of the embassy, all in different directions, trying to board the eurotunnel and two other available ferries out of the island…

    The next question would then be how the Treaty of Canterbury (on Eurotunnel) would affect this question – are the joint organs of France and the UK bound by the diplomatic status of a car of a mission accredited to the Court of St James’s only?

    I can already see tripos questions being written on this…

  12. Moritz Moelle

    Dear all,

    Under Article 27, every State has the right to use diplomatic couriers etc. to communicate with its other respective missions, consulates etc.. Thus, arguably Assange could generally leave Britain in a car bound to another mission on the continent. I am not sure about the effect of the treaty of Canterbury regarding this issue

    Could the car be stopped/searched?

    According to U.S. guidelines on this issue:

    “TRAFFIC ENFORCEMENT
    Stopping a mission member or dependent and issuing a traffic citation for a moving violation does not constitute
    arrest or detention and is permitted.”

    (…)

    The property of a person enjoying full criminal immunity, including his or her vehicle, may not be searched or seized.
    Such vehicles may not be impounded or “booted” but may be towed the distance necessary to remove them from
    obstructing traffic or endangering public safety. If a vehicle that is owned by a diplomat is suspected of being stolen
    or used in the commission of a crime, occupants of the vehicle may be required to present vehicle documentation to
    permit police verification of the vehicle’s status through standard access to NLETS (use access code US). Should the
    vehicle prove to have been stolen or to have been used by unauthorized persons in the commission of a crime, the
    inviolability to which the vehicle would normally be entitled must be considered temporarily suspended, and normal
    search of the vehicle and, if appropriate, its detention, are permissible.

    (quote from http://www.state.gov/documents/organization/150546.pdf )

    However these guidelines only concern privately-owned cars and not cars of the mission. But if privately-owned cars are already protected from search and seizure, arguably it must especially apply to official cars (and also due to Article 22 (3).
    The question would be whether a diplomat – driving Assange – could be considered as participating in a crime?

    Under German law, the search of cars of diplomats is equally prohibited, however cars enjoying such status can be stopped for verification of the identity of the passengers (see Rundschreiben des Auswärtigen Amtes zur Behandlung von Diplomaten und anderen bevorrechtigten Personen in der Bundesrepublik Deutschland vom 19. August 2008, GMBl. S. 1154, especially p. 1172)

  13. Joanna Harrington

    Interesting discussion, but taking a step back, I’m still irked by the grounds for asylum. Asylum from what? Questioning in lovely social-democratic Sweden for suspected sexual offences? Surely not. So the basis for asylum is the potential of a re-extradition from Sweden to the US, albeit that such re-extraditions are permitted under international law with the consent of the first sending state? Will Ecuador now offer asylum to every wanted fugitive that claims a risk of re-extradition? Or a risk of re-extradition to the US?

    The rule of specialty prevents the re-extradition from one state to a third state without consent. It’s those last two words that are crucial. The UK, as the sending state to Sweden for the purposes of one offence, can consent to the extradition from Sweden to the US for another offence, with the purpose behind obtaining consent presumably serving to ensure that the sending State undertakes the analysis that would have taken place if the US request had been made of the UK, without Sweden’s request intervening on a first-in-line basis (e.g. extraditable offence, double criminality, assurance in place re death penalty, fair trial guarantees in receiving state etc). (I’ll leave aside the issue of whether a life-means-life prison sentence is a risk of facing cruel, inhuman and degrading punishment, as the issue is before the ECHR, and in any event can be addressed by an assurance, as with capital punishment). Is Ecuador suggesting by its grant of asylum that the UK can’t be trusted to go through this analysis if and when the time comes? Or that Sweden can’t be trusted to undertake this analysis?

    For a sample specialty provision, see article 14 of the Model Extradition Treaty, here: http://www.unodc.org/pdf/model_treaty_extradition.pdf

    Specialty also allows the granting of consent to face other charges that were not part of the first extradition. And many Canadians are at least thankful that specialty allows for such granting of consent, with the UK having granted such consent in the past, most notably in the case of the Air India bomber. The Air India bombing case also illustrates why a state should be reluctant to promise not to waive the principle of specialty in advance, as some have suggested the UK do in relation to Assange. Blank cheques given in advance are inherently worrisome, and further facts can arise later.

    For those unfamiliar, Inderjit Singh Reyat was extradited from the UK to Canada on charges of manslaughter arising from the 1985 Narita Airport bombing that killed two baggage handlers and injured four, but he was not extradited on charges in relation to the bomb on board Air India Flight 182 that exploded almost an hour after the Narita bomb, killing 329 (including 290 Canadians). Three years after the bombings, Reyat was arrested in the Midlands, and fought his extradition from the UK to Canada in the UK courts. He was eventually surrendered in 1989, and then tried and convicted in 1991 in relation to the Narita bomb (the scheme having been initiated in Canada with a view, it turned out later, to blowing up two 747s in the air – but one bomb exploded in the airport). Towards the end of his sentence for the Narita conviction, Reyat was charged for the Air India bombing, thanks to Britain’s permission under the rule of specialty. He later pleaded guilty.

  14. Joanna Harrington:
    Insofar as Assange has a case for political asylum it is that he faces the threat of being extradited to the United States to face a political charge of “espionage”. The idea that a citizen of nation A, never setting foot in nation B, and not partipating in a hostile armed force (not at war), can be extradited to B and tried for espionage is a rather disturbing one. I would not like US journalists to be extradited to Russia or China to face charges of violating state secrecy acts – which they undoubtedly do. I don’t like the practice of dragging foreign nationals to the UK to face its repressive libel law system or the eagerness of British courts to sieze the assets of poor third world nations to satisfy demands of vulture creditors. All of these practices
    are ones in which the unequal treatment of powerful and weak is glaring.

    Just to be clear, the US seems to me to be well within its rights to charge Bradley Manning – a US citizen and a US soldier. But Assange should not be subject to US law without some additional factor. Given Sweden’s ambiguous enforcement of sex crime law ( http://www.time.com/time/world/article/0,8599,2037078,00.html ), its eagerness to prosecute Assange and unwillingness to interview him in the UK does raise questions.

  15. Roger O'Keefe Roger O'Keefe

    Jo
    Hi! Long time! I have a point of information, which is intended not to dispute your analysis but simply to add an element of specificity or concreteness to the debate. That said, to be precise, it is not the rule of speciality which prevents onward extradition but simply the rule on onward extradition. Speciality refers to trial for something else in the requesting state.
    Anyway, my point is simply to remember that we are proceeding here under the Council Framework Decision 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). This does not alter the analysis. Paragraph 4 of Article 28 (“Surrender or subsequent extradition”) deals with onward surrender to a third state not bound by the Decision. It is your classic such provision: “[A] person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.”
    Note that it is Article 27 (“Possible prosecution for other offences”) which embodies the rule of speciality.
    Roger

  16. All,

    Focusing on the rather narrow issue of the possible ways in which Mr. Assange can exit the Embassy and London, I wonder if escaping as an ad hoc diplomatic courier for Ecuador (Moritz Moelle mentions this in passing before discussing the status of vehicles) is a possibility.

    Article 27(6) of the VCDR states that “[t]he sending State or the mission may designate diplomatic couriers ad hoc.” Cl. 5 of Article 27 explains the protection available to the courier: “The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.”

    Apart from the Convention, we also have the ILC’s Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag Not Accompanied by Diplomatic Courier and Draft Optional Protocols of 1989 and commentaries thereto. Before moving on to look at some of the relevant provisions of the draft articles, I would like to note that to me the draft articles, and indeed the entire legal regime relating to diplomatic couriers, seem to focus heavily on the the journey of the courier from the sending state TO its embassy in the receiving state, and not vice-versa. Although I am sure the draft articles and the law are as much relevant to the journey back, as they are to the journey from the sending state, the text of the draft articles did give me a sense of an unusual focus on the journey from the sending state.

    On whether Mr. Assange can be unilaterally appointed as a diplomatic courier by Ecuador, Article 9 of the draft articles is relevant. Crucially, whereas the sending state (Ecuador) is free to appoint its nationals as diplomatic couriers, nationals of the receiving state, nationals of the sending state who are a permanent resident of the receiving state and nationals of a third state who are not also nationals of the sending state can only be appointed as couriers with the consent of the receiving state (UK). Thus, Mr. Assange’s nationality and permanent residency would play an important role in determining whether UK’s consent would be required for his appointment as a courier. Let us assume, for the sake of argument, that Ecuador can appoint Mr. Assange as a courier without UK’s consent.

    The next issue is that of declaring the courier as persona non grata. Indeed, draft article 12 permits the receiving state to declare a courier as such at any time. However, what is interesting is what happens once a courier is declared not acceptable/persona non grata. If this happens, draft article 12 (1) contemplates that “[i]n any such case, the sending State shall, as appropriate, either recall the diplomatic courier or terminate his functions to be performed in the receiving State. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.” The commentary further notes: “the declaration by the
    receiving State that a diplomatic courier is persona non grata or not acceptable should lead the sending State to recall its courier.” As to the other option available under DA 12(1) the commentary explains: “The possibility also exists that the courier cannot be recalled because he is a national of the receiving State, as contemplated in paragraph 2 of article 9. That is why paragraph 1 of article 12 provides the alternative that the sending State shall ‘terminate his functions to be performed in the receiving State’.”

    The issue is made more interesting by DA 12(2): “If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1, the receiving State may cease to recognize the person
    concerned as a diplomatic courier.” This suggests that if Ecuador fails to recall its courier, Mr. Assange, once he’s been declared not acceptable by the UK, within a reasonable period, the UK can cease to recognize him as a diplomatic courier. As a corollary, once he’s been declared not acceptable by the UK, he still has the status of a diplomatic courier for a reasonable period in which to return (or be “recalled” to Ecuador).

    As for the protection accorded to the courier, DA 16 reads: “The diplomatic courier shall be protected by the receiving State or the transit State in the performance of his functions. He shall enjoy personal inviolability and
    shall not be liable to any form of arrest or detention.” Arguably, if the couriers function is to take documents from the Ecuadorian embassy in London to Quito, he cannot be arrested or detained while performing this function (I know I am stretching this, hence “arguably”). DA 18 also talks about the immunity of the courier from the criminal jurisdiction of the receiving state in “respect of acts performed in the exercise of his functions”.

    In when these immunities and priviliges enter into effect, DA 21 notes: “1. The diplomatic courier shall enjoy privileges and immunities from the moment he enters the territory of the receiving State or the transit State in order to perform his functions, or, if he is already in the territory of the receiving State, from the moment he begins to exercise his functions.” The latter part being directly relevant to Mr. Assange’s case at hand.

    From the above, it does seem that, arguably at least, the diplomatic courier option is better than escaping in a diplomatic car or bag.

    HOWEVER, let us not forget that good faith remains a fundamental principle of international law. As Bin Cheng notes in his work on the doctrine of abuse of rights in international law, for any interpretive task relating to competing legal rights of states, it is necessary to identify the “legitimate interests” sought to be protected by the rights in order to interpret the law such that it does not allow a state to abuse its rights. Helping Mr. Assange flee UK may not to fall within the “legitimate interests” sought to be protected by international law relating to diplomatic and consular relations, which came into existence for very specific purposes and was founded on the sanctity of the diplomatic process and activities. Indeed, imagining creative legal escape options for Mr. Assange may be fun, but, if effectuated as abuses, they might pose greater systemic dangers for the international law relating to diplomatic relations. Hence, in my opinion the doctrine of abuse of rights should not be lost sight of in any such discussion on the legal escape options for Mr. Assange.

    Please feel free to poke at my analysis,

    Apologies for the lengthy comment,
    Shashank

    P.S.
    Quick links for the draft articles on diplomatic couriers: http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_5_1989.pdf
    and the commentary:
    http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_5_1989.pdf

  17. Joanna Harrington

    Thanks Roger (and many hellos to you too). Yes, I opted for the model treaty for a quick link, as a sample, as it puts onward extradition/re-extradition to a third state within speciality. But, yes, same point with the EAW, which ironically was intended as a move away from politics to put surrender on a judge-to-judge basis; mutual recognition of the equally fine legal systems within the Union and all that. But yes, you’re correct that my focus was on the consent aspect, which must entail a requirement for an analysis of whatever charges are laid by the US, whether those charges satisfy the terms of the surrender arrangement, and what safeguards are in place. Ecuador’s granting of asylum seems to assume that the UK just won’t undertake that analysis, notwithstanding that the UK has done so in the past, and is party to the ECHR etc, and we need to see what the US charges are (e.g. an unsealed indictment) to do the analysis to determine if the political offence exception applies as a ground for refusing surrender/extradition.

  18. Miroslav Baros Miroslav Baros

    I am really glad that the discussion took a right path so to speak after Roger’s post of 17 August; granting asylum stems from national sovereignty and not from international law. To argue that “there is no right of asylum under general international law” is correct, but only from an asylum seeker’s perspective in the sense that the person cannot insist on it (as a matter of some kind of legal entitlement) and not from the receiving state’s perspective because it is entirely within its discretionary powers to grant asylum. It appears absurd and potentially politically harmful to argue that states are not allowed to grant asylum because general international law does not provide for it.

  19. dubito

    Have read the very interesting post and the Comments. Perhaps I’m wrong but I have not seen any reference to the ICJ Asylum case I and II which could be helpful in highlighting the underlying legal issues. Furter also UK Courts have shown to interpret obligations towards the Host State and (conflicting) obligation under human rights treaties in a way not excluding the obligation to grant protection in UK diplomatic and consular premises in respect of violations jus cogens human rights.