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

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.