Diligent readers will remember that now and then I argue with Brian Barder, another former Ambassador turned energetic contrarian.
The Assange Saga in its early days gave one such exchange, where we disagreed over how far if at all the UK government might be within its rights to enter the Ecuador Embassy without Ecuador’s permission and haul out Julian A. My view:
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And that acceptance can reasonably be withdrawn eg if the receiving State has good reason to think that that building is being used in ways grossly incompatible with international law.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 Ecuadorian Embassy 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.
Brian has reappeared over at the excellent Head of Legal website run by Carl Gardner, one of the UK’s very best legal pundits, where he floats the idea that Ecuador can solve the Assange problem by making Assange an Ecuador diplomat and then trying to escort him from the country:
The scenario that I envisage might be roughly as follows. The Ecuadorians formally notify the FCO that Assange has been appointed to the diplomatic staff of their embassy. Within minutes of the delivery of that notification, Assange leaves the embassy and tries to enter an embassy car. He is immediately arrested by the waiting police, who refuse to accept his and his ambassador’s protests that he now has immunity from arrest and is entitled to travel to the airport and leave the country…
He develops this argument at great length. Read the whole interesting exchange, where Carl elegantly tears any such proposition into thin strips.
I have just sent in my own comment:
Brian’s opinions rest on a wobbly view of what international law is.
It is not only the Vienna Convention, important though that is. It is also a mass of principles and rules and conventions developed over centuries. These are not all written down as such. Plus court cases round the world keep refining the rules as they apply in the courtroom.
At the heart of all this are basic principles of etiquette and indeed sanity. If I invite you into my house that does not mean that you are free to roam through every room or drink all my beer or try on my underwear. I don’t need to give you as my guest list all the things you can’t do: that would be impolite. I instead leave you to rely on common sense discretion and courtesy.
So with diplomatic relations. Embassies are guests in other countries. They need to behave nicely.
One way of not behaving nicely is to use an Embassy as a space where criminals or fugitives from the law can try to gain asylum. Some Latin American countries have agreed among themselves some rules on such ‘diplomatic asylum’, in part to allow dubious politicians to flee safely from their own country. Everyone else flatly and wisely denies that any such right exists.
Why? To maintain the principle that Embassies are places where only legitimate inter-state business is done, not sanctuaries for anyone who manages to get through the door. World diplomacy would grind to a dead stop if anyone with a grievance could get into an Embassy and claim ‘asylum’. No state would accept an Embassy from a country that becomes known for easily granting diplomatic privileges to fugitives or troublemakers to help them escape the local jurisdiction. Why bring into your country a Tardis-like device for spiriting people away against your own wishes?
It is therefore blindingly obvious under diplomatic practice established down the ages that Ecuador can not wave a pen and transform Assange into some sort of Ecuador diplomat entitled to diplomatic privileges and immunities in the UK. The UK government is not obliged to accept the accreditation of any Ecuadorean diplomats, let alone one who is (a) not from Ecuador and (b) is trying to escape the UK and wider EU legal system.
IF Ecuador tries to nominate Assange as an Ecuador diplomat and escort him to the border, the Ecuador Ambassador and everyone else involved will be committing the serious UK criminal offence of conspiring to pervert the course of justice and will be liable to be expelled on the spot. The UK police will sensibly intercept any car carrying Assange, haul him out and arrest him.
No UK court is going to find for Ecuador/Assange in such absurd circumstances: the Embassy will be in no-brainer breach of elementary diplomatic good manners. Carl’s legal detailed analysis of why such ploys crash at every hurdle is exemplary.
The Ecuador leadership know all this, of course. This is why they have not done anything so reckless. And so J Assange sits there, forlornly poring through Wikipedia trying to find a legal loophole he can sneak through that doesn’t and won’t ever exist.
So there. Can Assange be miraculously transformed into an Ecuador diplomat? QTWTAIN.
See also my famous article in DIPLOMAT about the history of diplomatic asylum-seekers of different shapes and sizes