In a comment on my earlier post, my old sparring partner and inveterate contrarian Brian Barder takes up the challenge re diplomatic immunity and Assange:

Entertaining knockabout, Charles, but completely wrong. The embassy’s premises are unequivocally immune from entry without the agreement of the ambassador, under international law as laid down in the Vienna Convention. Britain can’t lawfully withdraw the embassy’s immunity by gaily passing a law purporting to say it can (quite apart from the fact that the law explicitly rules out any action under it that would be contrary to international law, as your quotation from it makes clear — didn’t you notice that?). The aide memoire given to the Ecuadoreans explicitly threatens them with action that would be blatantly illegal, would prompt action against us in domestic and national courts, cause a storm of international obloquy, and would unquestionably encourage similar retaliation against our own embassies and diplomats (all right for the likes of us — we’re retired). Even the publication of the threat is already causing a storm, giving the im pression that if Britain is so obviously in the wrong, Ecuador and Assange must have right on their side (which they don’t).

If we disapprove of what’s going on in the Ecuadorean embassy, such as harbouring Mr Assange (although we have given refuge in our own embassies and indeed in Britain to many dissidents and other fugitives from local ‘justice’ over the years), we have a range of remedies open to us: formal protests, recall our ambo for consultation, expel the Ecuador ambassador, break off diplomatic relations and make them close down the embassy. What we can’t do is flout international law by claiming the non-existent right to strip it of its immunity, enter it illegally, and arrest someone taking refuge there. How clever to threaten the Ecuadoreans with the one form of counter-action that is simply not open to us!

… It’s becoming increasingly likely that the FCO lawyers and officials did try to explain to our Foreign Secretary the likely consequences of his folly, but he went ahead anyway — http://ind.pn/Pw4M1n. Such is the price we repeatedly pay when arrogant ministers think they know better than experienced FCO lawyers and senior officials and ignore their warnings: Blair, Straw, now Hague… They are perfectly entitled to reject the advice of their officials — they’re elected and their officials are not — but sidelining the FCO and obeying one’s gung-ho instincts carries high and unnecessary risks…

OK.

Brian is right that the Vienna Convention at Article 22 lays it all down pretty bluntly:

The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of mission.

To which one can say, so what? The Convention also has a catch-all Article 41 which requires diplomats to respect local laws and not use their diplomatic premises in ways incompatible with the Convention or wider international law rules.

Thus the 1987 Act, that gives HMG the right to strip a mission of its diplomatic status by withdrawing consent for that status in specified circumstances and “if the Secretary of State is satisfied that to do so is permissible under international law” (Note: a somewhat subjective test, ie Brian is not correct above on this point).

In other words, it is not open to a diplomatic mission to insist that any given building is its Embassy and remains so indefinitely – that has to be accepted by the receiving State.

And that acceptance can reasonably be withdrawn eg if the receiving State has good reason to think that that building is being used in ways grossly incompatible with international law. That is an expression of the rights available to a receiving State under the Convention, not a breach of the rights of the hapless cheating mission.

So much for theory. What would happen in practice if the Foreign Secretary did withdraw consent for a building to be used as an Embassy is far less clear, partly for the reasons Brian gives.

A vast global row would ensue if there was any serious question over the legal merits of the case, as there well might be if we tried to use the murky but footling activities of Assange and his ‘diplomatic asylum’ as a pretext.

Probably no row at all would ensue if eg the Ecuadorean Embasy or even J Assange starting shooting out of the window without provocation at passers-by and/or the police, gravely abusing the Convention. It would be absurd to say that in such a dramatic situation HMG could enter the Embassy only with the Ambassador’s permission to stop the mayhem: action to strip the Embassy’s diplomatic status would be right in principle, and overwhelmingly popular in this country and probably applauded by any country that takes diplomatic privilege seriously. Thereafter the lawyers could bicker expensively for years.

Conclusion? The Vienna Convention sensibly does not make diplomatic immunity a blank cheque. The whole core idea is reciprocity, based upon respecting civilised behaviour.

All of which said, I mainly agree with Brian that the FCO messed this one up: see my new Telegraph Blog piece today:

In diplomatic negotiations possible good options fall into different categories that together can be called LEWD: what’s Legal, what’s Effective, what’s Wise, and what’s Deliverable in Practice. Smart diplomats wrack their brains to recommend to Ministers LEWD options.

In this case it looks as if there was a failure of technique. The speaking note handed to the Ecuadoreans pointed explicitly to British options to act under the 1987 Act (ie the FCO ticked the Legal box) while noting in a slightly mournful way that HMG “very much hoped” not to have to use them (ticking, they thought, the Wise box). The aim was to bring these pesky Ecuadorians to their senses and thereby tick the Effective and Deliverable boxes too.

Needless to say, this plan collapsed on its first encounter with the enemy. Precisely because the text had made the “threat” to remove the Embassy’s diplomatic status so directly, it allowed the Ecuadorians deliberately to limit their own room for manoeuvre by granting Assange asylum and by playing the noisy eternal anti-imperialist victim PR card. This in turn reduced HMG’s room for manoeuvre by bringing into play issues of national reputation on both sides.

Why would any country want to limit its own room for manoeuvre? Simples. It’s a key trick in diplomacy: if there is to be an eventual policy climbdown, it boosts the case for getting a bigger price for it.

As things have turned out, it looks as if the FCO should have studiously avoided giving Ecuador that option. The speaking note could have been drafted very differently, for example to include a list of a number of relevant legal instruments (including the Vienna Convention and the 1987 Act) in an annex. The text of the note in a po-faced way then could say that as Ecuador already well knew, HMG had a number of legal options under international and UK law should, alas, Ecuador grant Mr Assange asylum, and invited Ecuador to scrutinize these instruments to draw its own conclusions. This (a) would have cultivated a sense of indirect mystery rather than overt menace, and (b) dodged the unseemly outcome of the Foreign Secretary saying that “there is no threat here to storm the Embassy”, when most normal people would think exactly the opposite.

In other words, if you think that the other side is poised to reduce its options, the trick is to offer ways to increase options instead. That is much less confrontational – and muddies the waters

Clear now?