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International law and the Assange asylum case
Published on 20 August 2012
Updated on 19 March 2024
Updated on 19 March 2024
Over the last few days, one of the underlying questions in the Assange asylum has been if the frequently quoted 1987 UK Diplomatic and Consular Premises Act is against international law. The short answer is the Act is in accordance with international law (the 1961 Vienna Convention on Diplomatic Relations (VCDR) and international customary law).
A slightly longer explanation should rely on the sequence in establishing diplomatic relations between states with three important moments:
- First, states have to recognise each other.
- Second, after recognition, states establish diplomatic relations.
- Third, after two states establish diplomatic relations, they can open diplomatic missions.
Very few states (e.g. the USA and China) have global coverage with diplomatic missions in almost all 193 UN member states. Most states that have diplomatic relations cannot exchange diplomatic missions, due to human and financial constraints. They maintain mutual relations via ‘flying ambassadors’ (non-resident), third countries, joint missions, and permanent missions in New York (all states are represented at the UN in New York).
This is how this sequence can apply to the Assange asylum case:
The UK can sever diplomatic relations unilaterally. Diplomatic relations are concluded by mutual consent (Article 2 of VCDR). If consent is withdrawn, diplomatic relations cease to exist. There have been a few examples in recent UK diplomatic history: Guatemala (1963), Iceland (1976), Libya (1984), and Argentina (1982). It is interesting to note that the USA is much more reluctant to cut diplomatic relations, even in the case of major conflicts: Libya (1981) and Somalia (1991). India and Pakistan maintained diplomatic relations even during the 1965 and the 1971 armed conflicts.
After severing diplomatic relations, the UK would require Ecuador to close its embassy in London, and Ecuadorian diplomats to leave the territory of the United Kingdom within a reasonable time. ‘Reasonable time’ is not specified, but it usually takes between 7 days (in the case of the closure of the Libyan mission in London in 1984) and one month. On this point Assange would remain alone in the Ecuadorian embassy.
The VCDR does not specify how long the premises of the mission should preserve diplomatic status (remain inviolable). Article 45 specifies that:
….. If diplomatic relations are broken off between two states…. The receiving State must, even in case of armed conflict, respect and protect premises of the mission, together with its property and archives.
The lacuna on duration of inviolability of diplomatic missions is covered by interpretation of the following directions:
- It would be absurd to preserve diplomatic status indefinitely if there are no diplomatic relations.
- If we refer to the preamble which sets the spirit of the Convention and should be used for interpretations, we can see that privileges and immunities are granted ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’. If there is no diplomatic function (break of relations), there is no need to grant immunities and privileges to diplomatic missions after a certain time needed to wind up the mission’s activities.
- Lastly, this lacuna is covered by using the analogy with the Article 39 of the VCDR that regulates termination of diplomats’ privileges and immunities. According to Article 39, diplomats are given a ‘reasonable period’ to wind up their activities and leave the country. The practice is that the individual diplomat is given one month to leave the country. Given the complexity of closing diplomatic missions, a mission may take a few months to leave.
Most of the practice in diplomatic law follows this interpretation in order to close diplomatic missions by using the ‘reasonable time’ needed to protect the mission’s archives and property and those of the sending state. The 1987 Act codifies this practice and specifies how to deal with this lacuna in the VCDR (time for closing the mission).
Once the premises are no longer inviolable, the UK can enter the premises of the Embassy and arrest Assange, if he is still there. If the premises are rented, they will be returned to the landlord. If they are the property of Ecuador, they will enjoy ‘state immunity’ (state acting as owner; no special immunity; limited immunity from extradition; and a few other provisions).
It is very difficult to envisage a scenario in which the UK police could enter the Ecuadorian embassy without following the above described sequence – starting with the severing of diplomatic relations with Ecuador. Any other action would be a serious blow to the modern diplomatic system exposing – among others – the UK diplomatic missions worldwide, to high risks.
It is important to stress that this tactic of getting hold of Assange via the severance of diplomatic relations wouldn’t be possible in Latin America, where Article 19 of the 1954 Caracas Convention has the following provision protecting asylum seekers in such circumstances:
If as a consequence of a rupture of diplomatic relations the diplomatic representative who granted asylum must leave the territorial State, he shall abandon it with the asylees.
If this is not possible for reasons independent of the wish of the asylee or the diplomatic representative, he must surrender them to the diplomatic mission of a third State, which is a party to this Convention, under the guarantees established in the Convention.
If this is also not possible, he shall surrender them to a State that is not a party to this Convention and that agrees to maintain the asylum. The territorial State is to respect the said asylum.
The question of the breach of diplomatic relations and the protection of asylum seekers was also addressed in the Article 13 of the Draft Convention on Diplomatic Asylum by the International Law Association (the convention remains in draft form since 1970):
In the event of a breach of diplomatic relations resulting in the withdrawal of the asylum-granting diplomat, the asylees under his protection shall be permitted to depart from the territory with the diplomatic envoy who is giving them asylum. If this should prove impossible for any reason beyond the control of the asylees or the diplomatic agent, the asylees shall be transferred to the care of a third State, provided it undertakes to observe the obligations of this Convention. If no such third State exists, the territorial State shall be bound to recognize the immunity of the asylees until arrangements can be made for them to transfer to the territory of the asylum-granting State.
While the UK has a legal basis for an action against the Ecuadorian embassy, its initiative could turn into a real diplomatic fiasco. It is surprising that UK diplomacy did not take into account the strong attachment of Latin American countries to the right of diplomatic asylum. Even in the case of political conflicts among themselves, Latin American countries have supported diplomatic asylum. It is a well-established regional customary law, codified in a few contentions, including 1928 – Havana, 1933 – Montevideo, 1954 – Caracas. This table with signatories of the 1954 Caracas Convention on Diplomatic Asylum shows the difference between Latin American countries who signed/ratified the convention and other member states of the Organisation of American States who did not join the convention (Caribbean countries, the USA, and Canada).The right of asylum is also granted by Article 27 of the 1948 American Declaration on Human Rights.
By accelerating the Assange asylum case, the UK – to use a football metaphor – has put the ball into the penalty area and asked President Correa to strike without a goal-keeper. He could not miss such a chance. Next week, President Correa will gather all LA ministers of foreign affairs as a symbol of unity against the UK action. Given his political situation, it is an unexpected and welcome gift.
The Assange asylum case, like other similar cases, is likely to be solved through negotiations that will provide the UK with a face-saving exit strategy. Might the Swedish authorities be persuaded to conduct the hearing ‘remotely’? If negotiations fail, Assange is likely to be long-term tenant of the Ecuadorian embassy in London.
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Jovan,
Jovan,
I generally agree your analysis, although – as far as I’m aware – the FO did not threaten to sever relations with Ecuador as a precursor to applying the 1987 Act in order to get immediate entry to the embassy premises to arrest Assange, thereby avowedly ‘closing the lacuna’ in the VCDR on the point at which a vacated mission loses its inviolability. Moreover, I am not surprised by this since, on the 1987 Act’s own admission, the VCDR overrides it; so, if the VCDR is vague on this, the UK has to accept it, the domestic legislation of 1987 notwithstanding. It is perhaps significant in this context that Eileen Denza, the leading British expert on the VCDR, does not see the 1987 Act as a way of closing the lacuna you mention. My own guess, like yours, is that it was just a blunder.
There have been a lot of private emails exchanged on this between former senior British diplomats Brian Barder, Oliver Miles, and Ivor Roberts (ed of 6th ed of Satow), all uniformly despairing of the idiocy of the FO’s posture. The first two have their own blogs, as does Charles Crawford (not involved in our email exchanges). Our general conclusion, I think it fair to say, is that – following Denza – the only way that the UK can lawfully gain entry to the Ecuador mission is either by severing diplomatic relations and then waiting until the diplos have departed (the 1984 precedent based on the argument from analogy to the ending of personal immunity) or by declaring that Assange poses a threat to national security that is so imminent, serious and incapable of resolution by any other means that forcible entry is justified under the international law concept of self-defence, which would be clearly ridiculous. Hey-ho! I have just added a few weary observations of my own on my Home Page and propose now to return to the nineteenth century.
Goodbye for now, old friend!
The Gardener
Thank you Geoff for – as
Thank you Geoff for – as usual – your great reflections. Here are a few comments. First, you are right that the famous letter did not mention explicitly the breach of diplomatic relations between the UK and Ecuador. My text discusses how the UK can implement its intention hinted in the letter: how to enter legally the Ecuadorian Embassy without consent of the Ecuador. It can be done only through the rupture of diplomatic relations between two countries.
Thank you, Jovan. I don’t
Thank you, Jovan. I don’t think there is spitting distance between us on this. You are right to remind me that no state objected to the 1987 Act. However, the fact remains that if, under the VCDR AND SUBSEQUENT PRACTICE, a receiving state only has to wait for a week to enter diplomatic premises following a break in relations, and since it would be dangerous to enter earlier if diplos were still packing their bags for departure, what would be the point of seeking to apply domestic legislation such as the UK’s 1987 in such circumstances? Incidentally, I gather that Eileen Denza had a letter published in The Times two days ago but neither Brian Barder nor I can get past the Dirty Digger’s paywall to read it. If anyone can get hold of this,I woukld be most grateful for a copy. Incidentally, I have link at ‘threatening’ to the ‘famous letter’ (actually, it seems, an aide memoire) in line 3 down of my piece on the Assange affair on the home page of my website.
Geoff, it is a good point.
Geoff, it is a good point. Let me use DeBono’s “hat” strategy which I may need to protect my scalp during these hot days. If I put my “diplomatic hat”, I would not advise the adoption of the 1987 Act since it reduced a room for manouver for the UK. Ultimately, it led the UK – after many mistakes – into this absurd situation. If I put my “legal hat” I would prefer the adoption of the 1987 Act because VCDR, as we discussed, has lacuna and subsequent practice is very limited. It is not definitely customary law yet. The 1987 Act provides explicit rules and increases legal stability and predictability. Thanks for an indication about the letter. The fact that it was aide memoire puts a better light on the British diplomat in Ecuador. He made oral intervention, which he supported with aide memoire. It is much weaker form of diplomatic communication than note verbale or diplomatic letter. The safest option for him was to use “non paper” strategy – to leave paper “by mistake” on the table after his meeting in the Ecuadorian Ministry of Foreign Affairs. Let us see what Elleen Denza will say. We will try to get hold of this text.
On the 1987 Act I have
On the 1987 Act I have slighlty different view. If we take a HISTORICAL interpretation of the 1987 Act, it is clear that it was introduced after the 1984 experience with the Libyan mission. After the breach of the diplomatic relations, the UK entered the premisses of the mission 7 days after the departure of the last Libyan diplomat. They covered the lacuna in the VDRC by applying rules for individual diplomat (diplomats loose immunity after the laps of “reasonable time” = e.g. 7 days). If we take a TELEOLOGICAL interpretation of the 1987 Act, we can see that one the main purpose of the 1987 Act is to deal with “abandoned diplomatic premises”, which do not serve any more its main function (hosting diplomatic mission). The specific law (the 1987 Act) can complement a more general law (VCDR) especially in the cases when it covers legal lacuna. The specific law cannot contradict the general law which is not the case with the 1987 Act. Ultimately, it is better for the legal system to have such situations regulated by the explicit law (the 1987 Act) than covered by implicit interpretations via analogy as the UK authorities did in the case of the Libyan mission in 1984. Lastly, the UK authorities informed all signatories about the adoption of the 1987 Act and nobody objected to the proposed regulation. It would be interesting to hear Denza’s views. I relied a lot on her writings about the 1987 Act.
Excellent discussion on the
Excellent discussion on the provisions of the VCDR in the light of recent developments.
What I’m having difficulty in understanding is which legal basis the UK is referring to (quoting the letter – details released by Ecuador Foreign Minister Ricardo Patino – “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.”)
The severing of diplomatic relations is possibly one of the legal bases. However, as you well say, it could take up a considerable amount of time. At the same time, it is a road the UK might be willing to take, especially to allow enough time for the furore (on what has been perceived as a threat to illegally enter the Ecuadorian embassy) to die down.
The other basis I can think of is with reference to the preamble: ‘Realizing that the purpose of such privileges and immunities is not to benefit individuals but to
ensure…’ Can the UK argue that the P&Is in question are being used for the benefit of one individual (with accusations of sexual assault) and contrary to the spirit of the VCDR?
Steph, The UK diplomacy made
Steph, The UK diplomacy made diplomatic blunder, which was easily used by Ecuador. They were referring to the internal law (1987 Act) which is based on the international law (Vienna Convention Diplomatic Relations). In the 1987 Act you have the reference on the international law in almost every paragraph. They could have made easily the reference to the Vienna Convention instead of the 1987 Act. We can start guessing why it happened. Here are a few guesses …. the UK wanted to exercise a bit of diplomatic pressure on Ecuador. They probably thought that it was a good timing (after the Olympics created a lot of good wibes about Britain worldwide). I can imagine that senior and experienced diplomats were on holidays after burn out during the Olympics (handling many dignitaries and “Olympic diplomacy, etc.). It would be interesting to hear from the British diplomats what has happened. Anyone online or in blogosphere?