+++ UPDATE +++
I have changed my mind about the A38 point mentioned below. See my next posting here.
* * * * *
Craig Murray (of course) weighs in in favour of Ecuador’s apparent claim (or at least request) that J Assange is now an Ecuador diplomat entitled to diplomatic privileges and immunities in the UK:
Ecuador cannot tell the UK who may or may not be a British diplomat, and the converse applies.
Not the issue. Ecuador can appoint whomever Ecuador wants as a diplomat, subject to Ecuador’s own law on the matter. The issue is whether the UK then has to accept his accreditation to the UK and grant him privileges/immunities withal.
The Vienna Convention on Diplomatic Relations – to which the UK and Ecuador are both party – is the governing international law and determines the obligations to respect diplomatic immunity.
It is crystal clear (Article 4,1) that the need to obtain agreement in advance of the receiving state only applies to the Head of Mission – ie the Ecuadorian Ambassador. For other staff of the mission the sending state (in this case, Ecuador) “may freely appoint” the other members of the mission, (Article 7), subject to provisos in Articles 5,8,9 and 11.
Plainly the only one of these which applies in the Assange case is Article 9. Julian Assange is persona non grata – unwelcome – to the UK government. That is a legitimate reply to notification, but comes following the appointment; it does not pre-empt the appointment.
Again, not the point. But not a bad point nonetheless, this time!
Here is the key point. A member of staff below head of mission can already have entered the country before appointment, and their diplomatic immunity starts from the moment their appointment is notified, and NOT from the moment it is accepted. Article 39 (i) could not be plainer:
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
So to summarise.
There is no requirement for prior approval before arrival of staff below Ambassador, and it is just a notification regime (Article 10). If the FCO is telling the truth and Ecuador notified the UK of its appointment of Julian Assange as a member of diplomatic staff, the UK can only have refused by declaring Assange persona non grata.
That does not remove his diplomatic immunity which started the moment he was notified. It continues until he has been given the chance to leave the country in “a reasonable time”. (Article 9.2, and 39.2).
Ah, Craig. Why not mention Article 38 too (my emphasis)?
1.Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
Assange is in trouble for all sorts of reasons pre-dating his supposed appointment as a diplomat to the UK. Any diplomatic immunity he might in theory enjoy in the UK explicitly does NOT cover that.
I’ve posted a comment under Caig’s post:
Thus it is 100% routine in diplomacy for state X to have a look at the proposed posting to state X of diplomat Y from state Z, and let state Z know that diplomat Y will not be welcome and/or not get a visa or accreditation.
For example, state X might have good reason to think that diplomat Y is fact a spy and that his/her activities in state X may not be compatible with the Convention. State X tells state Z that diplomat Y does not get accreditation or a diplomatic visa. [See UK/Russia relations passim]
State Z shrugs and proposes someone else. State Z does NOT start hooting that state X is thwarting or in breach of the Vienna Convention, not least because state Z may well be gearing up to deny accreditation from state P for diplomat Q. It suits all states to keep in reserve the right to reject other states’ diplomats!
Just say that Craig is right and in fact state Z CAN demand that state X accepts diplomat Y. Diplomat Y shows up at state X’s airport. How about VC Article 43:
“The function of a diplomatic agent comes to an end, inter alia:
(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.”
Diplomat Y does not get far.
If state Z kicks up a fuss, state X sighs and summarily ejects the Ambassador of state Z, citing VC Article 9:
“The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State…”
No-one needs all this.
Diplomacy is NOT JUST ABOUT RULES. It’s about ESTABLISHED and ACCEPTED PRACTICES and common sense TOO. Myriad examples available, as Craig himself and every other professional diplomat of course well know.