Julian Assange has spent the last few months in the Ecuadorian embassy in London awaiting a decision about his request for diplomatic asylum, which Ecuador granted earlier this morning (16 August 2012).  A few days ago, the United Kingdom warned Ecuador that Assange could be arrested by force. But can he? Can UK authorities enter the Ecuadorian embassy in London and arrest Assange?

Diplomatic asylum is often linked to the theory of exterritoriality of diplomatic missions. According to this theory, the Ecuadorian embassy in London is considered part of Ecuador and consequently a place which cannot be entered by the UK police. Yet here is where the confusion starts.

It is true that the UK police cannot enter diplomatic premises, but the reason why this is so is not the principle of exterritoriality. The reason for the status of inviolability is the diplomatic function of the diplomatic mission. The mission represents a foreign country and it needs to be shielded from any pressure by the host government. Representation and functional necessity are behind the concept of diplomatic privileges and immunities granted in the Vienna Convention on Diplomatic Relations (1961) and are widely observed, even in the case of conflict between countries.

These and other intricacies of diplomatic law are covered in depth in Diplo’s online course Diplomatic Law: Privileges and Immunities.

Possible solutions for the Assange asylum case

First, it can be solved through negotiations like most diplomatic asylum cases. A recent case in point is the escape of a Chinese dissident Chen Guangcheng to the US embassy in Beijing. His release involved very delicate negotiations aimed at observing international law and saving face for both Chinese and US governments. The negotiated solution is also the only advice which the International Court of Justice (ICJ) gave in the Haya de la Torre case between Colombia and Peru (diplomatic asylum). The ICJ could not provide a legal solution and advised the governments to solve it through negotiation. The most important outcome of this case was the indication that diplomatic asylum is not protected by international law.

Secondly, the host government may let asylum seekers leave the country. The biggest example of this solution was the repatriation of thousands of people via diplomatic missions during the Spanish Civil War (1936–1939). More recently, in 1973, after Pinochet’s coup d’état, individuals linked to the previous Allende government escaped into the embassies of Mexico (300), Panama (250) and Venezuela (100). All of them were allowed to leave Chile. In the case of Assange, the UK could arrest him as soon as he is outside the Ecuadorian embassy. His travel between London and Quito is almost impossible. One illegal way would be to misuse the diplomatic bag (in this case a trunk) as was tried by the Nigerian diplomatic mission in London in 1984. Their attempt to transport a kidnapped political opponent back to Nigeria in a trunk marked as a diplomatic bag was stopped by the UK border authorities. Since then, countries have been paying more attention to diplomatic bags, especially when they are ‘oversized’.

Thirdly, in the case of an impasse, the asylum seeker may become a long-term resident of the Embassy as was the case with Hungarian Cardinal József  Mindszenty, who spent 19 years in the US embassy in Budapest where he had escaped after the 1956 government crackdown on the opposition.

Fourthly, as has happened only a few times, the local government can enter the premises of a diplomatic mission by force. This is a serious breach of the Vienna Convention on Diplomatic Relations and it happens rarely. On 14 June 1980, the Liberian army entered the French embassy in Monrovia by force in order to arrest the son of the deposed president.

Fifthly, the host country can sever diplomatic relations, close the embassy, and force all diplomats to leave the diplomatic mission. The embassy building loses its inviolability and the asylum seeker can be arrested. This approach has never been used before. The UK Diplomatic and Consular Premises Act of 1987 provides a legal basis for this solution. Although it is legal, the severing of diplomatic relations between two countries because of diplomatic asylum has never happened. According to the UK’s letter to Ecuador, the UK is ready to use this option if the negotiations fail.

Solving the asylum case by severing diplomatic relations and arresting Assange involves high risks. This could trigger such practice worldwide and undermine diplomatic immunities, strictly observed by countries across the globe. The old adage of what goes around comes around applies in diplomacy more than in other professions. Ultimately UK missions will be exposed to the risk of similar treatment in other countries.

The outcome of the Assange’s asylum case could have a serious impact on diplomatic immunities, one of the cornerstones of the international diplomatic system.

See also:

Comments

Kishan S Rana (not verified)
International law is a multi-hued amalgam of universal, as also broadly accepted and part-digested notions. 'Diplomatic asylum' is an example of the latter cluster of ideas. For instance, there exists a 1954 OAS Convention on Diplomatic Asylum, to which the US (and I guess Canada as well) is not signatory. How and why dip asylum emerged in Latin America is a good subject for study. I think it connects with political turbulence, as also Latin American notions of fair play and limits to state power. But that is just a surmise.
Aldo Matteucci's picture
Aldo Matteucci
Jovan, If I’m mistaken, Ecuador has granted Assange “political asylum”. To me “political asylum” is strictly a government’s discretionary gesture (in fact sovereign waiving - which can be revoked at political will - of national applicable national law on immigration and residence) unlike granting of status of “refugee”. Political asylants are not subject of international law and if they leave the territory of the country which has granted them asylum – well, they are on their own. The term “diplomatic asylum” you use is thus confusing. The reasons for Ecuador’s gesture may be construed as “humanitarian”. Assange faced (a) extradition by the UK/S to the US for what many might consider a political crime; (b) kidnapping or killing by the US under their current policy of hunting “criminals” worldwide; (c) jail sentence in Sweden for what might be an unrelated criminal matter, but which may be used by said government to put Assange away for good – thus fulfilling US objectives. Assange is currently domiciled in the Ecuadorian embassy in London and thus shielded from the bobbies. He has no “legal or diplomatic standing” – for the UK he is simply a guest there. What protects him is the convention that governments do not invade each other’s embassies. Sure these conventions are not absolute – but there are “good faith” rules like the one on specificity. Entering the place to fight a fire does not justify firemen rifling through the ambassador’s files – or planting hidden microphones. In the end political, not legal, arguments will determine how strong that shield is. A Serbian Consulate in Sarajevo would not have protected Gavril Princip from the hand of the Austrian police, even had the VC been in force then. The UK construed legal arguments around Pinochet’s “diplomatic immunity” and kept him so out of the Spanish authorities’ clutches long enough for him to catch the next plane out to Chile. Card. Mindszenty’s stay inside the US embassy in Budapest served everyone’s interests. It neutralized him politically. The Hungarians did not have to try – and possibly hang him. For the US it was a welcome political gesture that hid America’s toleration of Soviet intervention. There has long been a bi-millenarian tradition of “granting sanctuary” from the hand of the law - mostly in churches and sacred places (see Greek tragedies). Somehow this tradition has migrated to embassy buildings – it was upheld mostly by reciprocal convenience. When the Turkish Ambassador fired a deadly shot into a small but hostile crowd surrounding the Chancery in Bern both sides were more than happy to see him take the plane and leave for Ankara. Was justice done? You tell me. Whether Ecuador will be able to stand up to the impending ham-fisted measures by both the UK and US is anyone’s guess. In 1848 Switzerland granted “political asylum” to numerous Europeans, after the revolutionary movements collapsed. When the influx got to be too much for the surrounding autocracies, they put pressure on the Federal Council to stop it. It caved in.
Jovan Kurbalija's picture
Jovan Kurbalija
Aldo, you made a good point: difference between political and diplomatic asylum. Political asylum is discretion of any state, as long as there is no breach of some other rules (e.g. asylum for a person accused for genocide). Diplomatic asylum is "transitory" phase for a person to reach the home country (in this case for Assange to reach Ecuador). More in the separate blog on diplomatic asylum.
Ginger's picture
Ginger
Jovan, Liz: Did you see this? "Craig Murray, a former ambassador to Uzbekistan, writes that he “returned to the UK today to be astonished by private confirmation from within the FCO that the UK government has indeed decided – after immense pressure from the Obama administration – to enter the Ecuadorean Embassy and seize Julian Assange.”" from http://www.forbes.com/sites/andygreenberg/2012/08/16/as-ecuadorean-grants-assange-asylum-former-uk-ambassador-says-embassy-raid-is-coming/ Is this likely just 'rumor'? What are likely scenario?
Ginger's picture
Ginger
Very interesting distinctions here: Jovan seems to treat this as a diplomatic issue. Liz brings up a legal point: 'I doubt whether the precedent of entering diplomatic premises without the permission of the mission is one which the UK would want to set even if there were a legal justification.' (Quote from Liz), whereas I am more familiar with Amb. Kishan's point number 1, referring to political asylum. I see this as a case of 'sanctuary' rather than 'diplomatic asylum'. So, apparently we have a 'diplomatic' issue dealing with the inviolability of the embassy premises (Jovan) we have a 'legal' issue (Liz), and a political/sanctuary issue (where Kishan and I seem to agree ). With a long history of sanctuary in churches and embassies, is there not a clear precedent, even without the VCDR?
Liz Galvez's picture
Liz Galvez
I am not an expert in the Vienna Convention but I doubt whether the precedent of entering diplomatic premises without the permission of the mission is one which the UK would want to set even if there were a legal justification. There are too many unscrupulous governments who would use it and UK diplomatic staff might be put at risk. The UK can always arrest him before he boards the plane for Ecuador. Unless they try to smuggle him out in the diplomatic bag, he has to touch UK soil somewhere before leaving the country. There was a case some years ago where the Nigerian High Commission tried to smuggle someone out of the country in the diplomatic bag (actually a crate) - against his will, I think. This was discovered at the airport and because they had breached the Vienna Convention as to the use of diplomatic bags, the crate was opened. What I find more interesting is how the Ecuadorean Government justify a decision to grant political asylum when the crime alleged is not political and how they can state seriously that Assange's human rights would be violated if he were extradited to Sweden, of all countries probably one of the most respectful of human rights. Shouldn't the international diplomatic community be questioning this distortion of diplomatic law?
Kishan S Rana (not verified)
I have no expertise on VCDR or in International law. But as a former working diplomat, may I say the following? 1. VCDR says nothing about 'dip asylum'. But a tradition has developed, esp. in Latin America, for dissidents or political refugees to seek asylum in foreign embassies. 2. 'Extra-territoriality' is a myth. If an embassy building is on fire, and the embassy refuses help, firemen can still enter that building if the fire threatens other adjoining buildings. Such cases have occurred. 3. UK will surely negotiate this hard, because it will refuse to let itself be deterred by an asylum doctrine. The Chinese dissident left the US embassy when the shoe was on the other foot, since the US also does not accept a right to asylum. But in that case, a deal was quietly worked out behind the scene, and China showed flexibility. 4. For sure, this will be an interesting issue to track. How pragmatic will Ecuador prove itself to be? And how supple will be the UK approach? Remains to be seen.
Jovan Kurbalija's picture
Jovan Kurbalija
Thank you Kishan for a valid point that diplomatic asylum is not supported by international law. It is not mentioned in VCDR. The ICJ declined its legal relevance. It is regional custom (Latin America). Legally speaking, Ecuador's action does not have a solid basis in international law. But, this issue - like most diplomatic asylum cases - is political. It has to solved through negotiated solution. Like in the recent USA-China case, the main challenge will be to find "face saving" formula for both sides (even mroe for the UK after threat to use 1987 act).
Mary's picture
Mary
'It is true that the UK police cannot enter diplomatic premises, but the reason why this is so is not the principle of exterritoriality.' Perhaps in a future blog post, Jovan, you might explain the principle of exterritoriality ... for me, this indeed is where the confusion begins.

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