International law and the Assange asylum case

20 August 2012

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 If consent is withdrawn, diplomatic relations cease to exist.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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