Search form

Comments (7)

avatar

Stephanie Borg ... August 21, 2012

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?
avatar

Jovan Kurbalija August 21, 2012

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?
avatar

Geoff Berridge (not verified) August 21, 2012

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
avatar

Jovan Kurbalija August 22, 2012

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.
avatar

Jovan Kurbalija August 22, 2012

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.
avatar

Geoff Berridge (not verified) August 22, 2012

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.
avatar

Jovan Kurbalija August 22, 2012

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.

Leave a comment

CAPTCHA
This question is for testing whether you are a human visitor and to prevent automated spam submissions.
Image CAPTCHA
Enter the characters shown in the image.
Scroll to Top