Assange’s case: What is Britain doing?

The Foreign Office says it can lift the Ecuador embassy’s diplomatic status to fulfill a legal obligation to extradite Julian Assange. The Foreign Office says  it could use the Diplomatic and Consular Premises Act 1987.

Questions:

1. It seems as pretty unusual move. Or not?

2. How important is this case for the UK Government? Is it worth of risking an international row?

Answers:

Roger O’Keefe, University Senior Lecturer in Law, University of Cambridge

1. First, we only have Ecuador’s word for it that the UK government has asserted that it has the power to arrest Assange on Ecuadorian embassy premises under the Diplomatic and Consular Premises Act 1987 (‘DCPA’). So we should be cautious in accepting this without corroboration. It may not have been said or, if said, may not have been authorised.

As for the Act, I can only assume, if the UK has indeed suggested that it has the power to arrest Assange on the premises of Ecuador’s embassy (known in international law as its ‘diplomatic mission’), that the suggestion is based on section 1(3)(a) of the Act, which states as follows:

“if […] a State ceases to use land for the purposes of its mission […], it thereupon ceases to be diplomatic […] premises for the purposes of all enactments and rules of law.”

The main enactment this section refers to is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), the treaty which regulates, among other things, diplomatic premises. One of the key provisions of the VCDR which has been enacted into UK law by the DPA is article 22(1), which lays down the cardinal rule that the premises of a diplomatic mission are ‘inviolable’, meaning, among other things, that the authorities of the state where the mission is located may not enter the mission’s premises, except with the consent of the head of the mission (usually the ambassador’. (Note that this does not make the embassy premises Ecuadorian territory. The premises remain UK territory, but UK territory that the UK is not allowed to enter without permission.) To cut a long story short, the UK authorities may not, in accordance with the DPA, enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador – provided, that is, that the embassy premises remain diplomatic premises.

The suggestion, if it is true, would seem to be that, by harbouring a fugitive from British justice (which includes from the process of extradition from the UK to Sweden pursuant to the European Arrest Warrant issued by Sweden), Ecuador ‘ceases to use [the land on which Ecuador’s diplomatic mission is situated in London] for the purposes of its mission’, with the result, under section 1(3)(a) of the DCPA, that this land ceases be diplomatic premises for the purposes of article 22(1) of the VCDR and therefore of the DPA. This would mean that the premises are no longer inviolable, with the consequence that the UK police could enter and arrest Assange.

This would be a highly unusual interpretation of section 1(3)(a) of the DCPA, to say the very least. To say the most, it is utterly implausible. The situation referred to in section 1(3)(a) is one where the state whose embassy it is ceases to use the premises as an embassy. It does not refer to a situation where the embassy remains an embassy but is used in a way that the UK considers incompatible with the embassy’s functions as an embassy.

The reason that such an extraordinary interpretation of section 1(3)(a) would be advanced, if it has been advanced, is that the rule of inviolability laid down in article 22(1) of the VCDR is basically absolute. Whatever goes on inside the embassy (barring something like the preparation of a terrorist attack against the local territory), the local authorities may not enter it.

Under s.1(3)(b) of the DCPA, the Secretary of State for Foreign and Commonwealth Affairs may withdraw his acceptance of or consent to the land being diplomatic premises. It is far more likely that this is the device the UK would use. The catch is that section 1(4) stipulates that the Secretary of State may do this only ‘if he is satisfied that to do so is permissible under international law’. The UK would argue that, by harbouring a fugitive from justice in its embassy, Ecuador is using the embassy contrary to international law, thereby forfeiting the right to have it considered an embassy. But this would be as implausible an argument as the first one. Any such move by the Secretary of State would clearly not be permissible under international law, as required by s. 1(4) of the DCPA.

2. The whole situation is obviously important for the UK government. It does not want states using their embassies in London to harbour fugitives from justice. Moreover, in this particular case, it does not want to see its international obligations towards Sweden thwarted. The high-profile nature of the case makes it all the more of an irritant.

This said, the UK need only sit and wait. Even if Assange were to be granted asylum by Ecuador, he could not leave the premises of the embassy without being exposed to arrest. He is stuck in the embassy. Of course, it could be a long wait. Cardinal Mindszenty lived in the US embassy in Budapest from 1956 until 1971, when the Hungarians allowed him to leave and go into exile. By the time Julian Assange emerges, his hair could be even greyer.

Paul Arnell, Department of Law, Robert Gordon University

1. The removal of the inviolability of Ecuador’s embassy is possible but would be a serious step for the UK government to take. The UK government has to-date not acted under the provisions of the 1987 Act. Significantly, the 1987 Act provides that action under it must be in conformity with international law. It is certainly debatable whether entry by the UK government on account of Assange’s continued presence within it would be lawful under international law.

2. The case is certainly high-profile in the sense of the extent and nature of the media coverage of it. It is therefore important for the UK government because its actions, or indeed inaction, will make the front pages in the UK and abroad. Politically and legally the UK obviously would like to follow its obligation under the European Arrest Warrant and co-operate with Sweden by surrendering Assange. The UK’s legal processes have run their course, with the Supreme Court holding in favour of his surrender. Overall, the case is more of an embarrassment and irritant to the UK rather one of real importance, so it is unlikely that the UK will act on its threat to invoke the 1987 Act and enter the Ecuadoran Embassy.

David Lowe, Principal Lecturer, Law School, Liverpool John Moores University

1. It has been nearly two months since Assange sought asylum in the Equadorian Embassey and no doubt, during that period there will have been considerable dialogue between the UK’s Foreign Office and the Ecuador government. If the UK is considering using section 1 Diplomatic and Consular Premises Act 1987, one can only assume that dialogue has reached an impasse. For the UK to take such a step and implement the provisions under section 1 of the Act is an extreme step. So this makes it an unusual move.

This is an important case for the UK government on two counts. One is regarding the effectiveness of the EU’s European Arrest Warrants. If no action is taken then this could encourage other suspected offenders to take similar action and seek protection from embassy and consular buildings belonging to states outside the EU and out of the reach of extradition. Under section 1(5) of the Diplomatic and Consular Premises Act 1987, the UK’s Foreign Minister (the current one being William Hague) from the provisions that apply to Assange, if they believe that it is in the interests of the safety of the public or national security, the Minister can withdraw the acceptance or consent of the land being a diplomatic premises. Once this step is taken then diplomatic immunity no longer applies to those premises. In Assange’s case he is accused of serious sexual offences in Sweden, so it could be argued that he is a threat to the safety of the public. Add this to the allegations made by the USA regarding Wikileaks, he is also a potential threat to national security. These are serious issues.

The second count is seeing that, in this case, the European Convention on Human Rights is adhered to. All EU states have signed up to the Convention and key to this is article 6, the right to a fair trial. All EU member states are democracies founded upon human rights. An important principle under ECHR jurisprudence is the principle of proportionality. In essence this principle is founded upon utilitarian measures balancing the rights of citizens with the rights of the accused. Governments have a duty to protect citizens and in this case Assange is accused of a number of sexual assaults and those victims’ rights also have to be protected.

In my opinion it is worth the UK Government risking an international row. Justice must not only be done, it must also be seen to be done. Assange has used the media and small states like Equador to maximise publicity as he tries to show  he is the victim in all of this knowing fully well in the current circumstances it would result in the image of a more powerful state like the UK in effect being seen to bully a smaller state within its own borders. This will no doubt cause outrage. However. the bottom line is Assange is facing trial in a democratic country that abides by the rule of law, within which are rights for defendants. This would also apply should he be extradited to the USA at a later stage. It is not a case that Assange would be extradited to a state where it is recognised that torture is used to secure confessions and does not respect defendant’s rights in a fair trial.

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