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Home Posts tagged "Vienna Convention on Diplomatic Relations"

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?

Published on January 25, 2018        Author: 
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There is a recent twist in the Julian Assange saga leading to new claims that the UK has the legal obligation to allow Assange to leave the Ecuadorian embassy in London without arresting him. In December, Ecuador granted Assange its nationality following which it then purported, this January, to appoint Julian Assange as one of its diplomats to the UK (see here). Apparently, the UK rejected that appointment. It has now been reported by Reuters that a legal team is working on filing a case at the International Court of Justice in order to have Assange’s Ecuadorean diplomatic status affirmed under international law. The strategy being pursued by Ecuador is a very interesting one raising tricky questions of diplomatic law. Undoubtedly, Ecuador was aware that the UK would seek to deny diplomatic status to Assange. However, Ecuador argues that what has happened is that while it has appointed Assange as a diplomat, what the UK has done is to declare him persona non grata, and that having done that, the UK now has an obligation to allow Assange to leave the UK within a reasonable period of time, whilst enjoying diplomatic immunities within that period of time.

There are a number of issues that arise as a result of these developments. First, is the issue of whether Ecuador has a unilateral right to appoint Assange as a member of its diplomatic staff, or whether instead, the approval of the UK was required for the conferral of diplomatic status on Assange. Second, assuming that Ecuador is right, and that as a matter of international law Assange did at some point in time have diplomatic status because of a unilateral right of appointment of Ecuador, does the rejection of his status by the UK impose an obligation on the UK to allow him to leave the embassy, and indeed leave the UK, with the immunities that a diplomat would ordinarily be entitled to. Third, is there a basis for the ICJ to hear and determine the matter between those two states?

Let me start with the question of ICJ jurisdiction. Read the rest of this entry…

 

A Diplomat in Name Only? Judicial Scrutiny of Diplomatic Appointments

Published on February 22, 2016        Author: 
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The English High Court has delivered two important Judgments on diplomatic immunity this month. Both cases concern the entitlement to immunity of a person claiming to be a diplomat. They reached opposite conclusions as to how far a court may inquire into whether a person is in fact acting as a diplomatic agent.

On 8 February 2016, Mr Justice Hayden in Estrada v Al-Juffali [2016] EWHC 213 (Fam) adopted (para 36) a functional test: has the person “in any real sense” taken up his appointment and discharged any responsibilities in connection with it? One week later, Mr Justice Blake in Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB) rejected the functional test (para 73) and took (paras 37(i), 74-5) a formal approach: A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the FCO.

Facts: Diplomats in Name Only? 

Colourful, if not scandalous, facts underpin each case.  Read the rest of this entry…