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Breaking: Ecuador Grants Asylum to Julian Assange

BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.

Julian Assange and Diplomatic Asylum

Matthew Happold is Professor of Public International Law at the University of Luxembourg and an associate tenant at 3 Hare Court, London .

In taking refuge in the Ecuadorian embassy in London, Julian Assange joins a long list of individuals who have sought asylum in foreign embassies.  Recent examples include Chongqing police chief Wang Lijun in the US consulate in Chengdu, and blind Chinese dissident Chen Guangcheng in the US embassy in Beijing.  However, although embassy premises are legally inviolable, general international law does not recognise a right of diplomatic asylum.  Even if Ecuador does grant Assange asylum, the UK will not be obliged to grant him safe passage out of the country.

In 1949, Victor Raúl Haya de la Torre, leader of the Peruvian APRA movement, sought refuge in the Colombian embassy in Lima.  The dispute between Colombia and Peru as to whether he could be granted diplomatic asylum went twice to the International Court of Justice in The Hague. In its judgment in the Asylum Case, the Court ruled that no general rule in international law existed permitting States to grant diplomatic asylum; a legal basis had to be established in each particular case.  (more…)

A Hypothetical on Deprivation of Liberty and Torture

In light of today’s rather extraordinary statement by Prof. Nils Melzer, the UN Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment, that Julian Assange has been subjected not only to arbitrary deprivation of liberty, but also to a sustained campaign of collective persecution, the results of which were tantamount to psychological torture, here’s a brief hypothetical that can hopefully shed some light on Assange’s legal situation:

Variant 1: A is a human rights defender living and working in Dystopia, a highly authoritarian police state. He has helped countless people in his work, to much international acclaim. One day he receives reliable information that a Dystopian court has ordered his arrest, on charges of sedition, and that if convicted (which seems very likely) he could spend many years in prison. A decides to evade the police seeking to arrest him.  With the help of friends, A finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that if he ever left the cave the police would find him and arrest him. The years take their toll. A starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Dystopian police discover A’s hiding place and arrest him.

Questions: (1) While A was in the cave, was he subjected to a deprivation of liberty by the state of Dystopia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to A’s mental and physical health, due to the extended period of time he spent in the cave hiding from Dystopian authorities, qualify as torture or cruel, inhuman or degrading treatment of A on the part of the state of Dystopia?

Variant 2: R is the highest-ranking general of the army of a separatist regime in Anarchia, a country ravaged by a sectarian civil war. The International Criminal Court has issued a warrant for R’s arrest for war crimes and crimes against humanity on a massive scale; he is suspected of leading a campaign of ethnic cleansing which claimed the lives of tens of thousands of people. After the Anarchian civil war ends in the victory of his opponents, R decides to go into hiding. With the help of friends, R finds refuge in a cave in a remote location. He spends 7 years in that cave, with very little human contact, fearful that the Anarchian government authorities will arrest him and send him to The Hague for trial. The years take their toll. R starts suffering from a number of physical ailments. Even worse, the virtually total separation from his family, friends and the outside world eventually leads to serious impairment to his mental health, including severe anxiety and depression. After 7 years, the Anarchian police discover R’s hiding place and arrest him.

Questions: (1) While R was in the cave, was he subjected to a deprivation of liberty by the state of Anarchia? (2) If so, was that deprivation of liberty arbitrary? (3) In any event, do the accumulated consequences to R’s mental and physical health, due to the extended period of time he spent in the cave hiding from Anarchian authorities, qualify as torture or cruel, inhuman or degrading treatment of R on the part of the state of Anarchia? (4) If you have answered any of the preceding questions differently than their counterparts in Variant 1, please explain why you have done so.

Happy New Year and Most Read Posts of 2018!

I would like to wish our readers a very Happy 2019! Before we close out 2018, I would like to set out our most read posts of the year. These give a snapshot of the some of the key developments in international law over the course of the year, and/or of key incidents in international affairs with consequences for international law.

The top 10 posts are presented here with the numbers 11 to 20 below the fold.

Many thanks to all of our contributors in 2018, and, to you, our readers 

1) Diane Desierto, Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the Philippines’ Drug War(Aug. 2018)

2) Marko Milanovic, The Syria Strikes: Still Clearly Illegal, (April 2018)

3) Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression(Dec. 2017)

4) Marko Milanovic, Palestine Sues the United States in the ICJ re Jerusalem Embassy, (Sept. 2018)

5) Leila N. Sadat, Fiddling While Rome Burns?  The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, (June, 2018)

6) Marc Weller, An International Use of Force in Salisbury?, (Mar. 2018)

7) Dapo Akande, Ecuador Seeks to Confer Diplomatic Status on Julian Assange: Does this Oblige the UK to Allow Him to Leave the Embassy & Is the Matter Headed to the ICJ?(Jan. 2018)

8) Monica Hakimi, The Attack on Syria and the Contemporary Jus ad Bellum, (April 2018)

9) Joseph Weiler, Publish and Perish: A Plea to Deans, Faculty Chairpersons, University Authorities, (Nov. 2018)

10) Koldo Casla, Supreme Court of Spain: UN Treaty Body individual decisions are legally binding(Aug. 2018) (more…)

Most Read Posts 2016

Happy New Year to all EJIL:Talk readers! In many ways, 2016 was a remarkable year for international law. It is hard to pick a standout event or development but perhaps 2016 will be remembered as the year when international lawyers began to think seriously, across the board, about the legal processes relating to how states exit from international commitments. It is probably fair to say that international lawyers have spent far more time thinking about the processes by which international law obligations are imposed on states and other actors than on the processes by which those international law commitments might cease to be binding.  The UK’s Brexit referendum of June 2016 means we now have to think about how the UK unwinds from its membership of the EU. The notices of withdrawal from the ICC Statute by South Africa, Burundi, and the Gambia also raise questions about treaty withdrawal. Then the election in the US of Donald Trump raises the prospect of US withdrawal from a range of treaties dealing with climate change, trade and the Iranian nuclear deal. All of this might suggest that research into issues relating to treaty withdrawal would constitute a profitable research agenda for 2017! All of these were covered on this blog in 2016 but clearly there will be more to say.

I would like to thank all of our readers but also all of those who wrote posts on EJIL:Talk! in 2016! Below is a list of the posts that were most read in 2016. Some of these posts were written in earlier years.

20) After Trump: China and Russia move from norm-takers to shapers of the international legal order, Anne Peters (2016)

19) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller (2015)

18) A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism, Olivier Corten (2016)

17) Grand Chamber Judgment in Al-Dulimi v. Switzerland, Marko Milanovic (2016)

16) Russia and China Challenge the Western Hegemony in the Interpretation of International Law, Lauri Mälksoo (2016)

15) Turkey’s Derogation from the ECHR – What to Expect?, Martin Scheinin (2016)

14) On My Way Out – Advice to Young Scholars II: Career Strategy and the Publication Trap, Joseph Weiler (2016)

13) Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum, Marko Milanovic (2010)

12) The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?, Dapo Akande (2016)

11) ICTY Convicts Radovan Karadzic, Marko Milanovic (2016)

10) European Court Decides Al-Skeini and Al-Jedda, Marko Milanovic (2011) (more…)

Our Most Popular Posts of 2012

We would like to wish all our readers a Happy New Year!! I should also say a belated happy birthday to the blog. We launched the blog in December 2008, so just over four years ago. I have to confess that I, and the rest of the board of EJIL, were unsure of how what was then an experiment would go. We are delighted with how things have turned out over that period.

2012 has brought some changes to the blog. In January, we welcomed,  Douglas Guilfoyle (University College London), Joanna Harrington (University of Alberta), and Michael Waibel (Cambridge) as permanent contributors to the blog. All three have been extremely valuable contributors to the blog and have added diversity to our offerings.  2012 also saw more posts by guest contributors than we had before. In previous years, Marko and I contributed about half the number of posts on the blog. With our new permanent contributors, and more posts from others, our share of posts has fallen (as the editorial responsibilities of Marko, Iain and me have risen!). Thank you to all who have contributed to the blog over the past year.

Towards the end of 2012, we also refreshed the look of the blog, improving our appearance and adding what we hope are some more useful functionalities. We continue to welcome feedback on changes that readers would like to see and how we can improve.

I have been looking over the statistics for the year, and I thought that readers might be interested to know which pieces on the blog have interested you the most. Well, here are our 10  most viewed posts from 2012, in reverse order:

10) Yet another mala figura: Italy breached non-refoulement obligations by intercepting migrants’ boats at sea, says ECtHR , by Francesco Messineo

9) Palestine as a UN Observer State: Does this Make Palestine a State?, Dapo Akande

 8) On Certainty by Andrea Bianchi

 7) A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case, by Peter Danchin

6) ICC Issues Detailed Decision on Bashir’s Immunity (. . . At long Last  . . . ) But Gets the Law Wrong, by Dapo Akande

(more…)

Enter at Your Own Risk

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.

(more…)