My various postings and pronouncements on the rights and wrongs of the UK government’s ‘threat’ to remove the diplomatic immunity of the Ecuador Embassy in London to enable J Assange to be nabbed have prompted Brian Barder to weigh in.
And when Brian weighs in, he does so thoroughly. His long analysis was too much for the Comment function of this site, so he has sent me his views by email and I am pleased to post them in full below. I have taken the liberty of breaking down his paragraphs into manageable smaller pieces, to make the flow of the argument readable (BB is one for long sentences and longer paragraphs. I am not).
The key issue is simple. BB says (in effect, I think) that the 1987 UK Act purportedly giving the Foreign Secretary the power to remove an Embassy building’s diplomatic status under certain conditions is so constrained by the Vienna Convention (apart from an extreme case of obvious ‘self-defence’) that it can’t be used.
I by contrast argue that the Act gives legal force to the underlying time-honoured sense of reciprocity in the Vienna Convention by enabling modulated and proportionate action by a receiving state against grave breaches of the Convention by or through the Embassy concerned.
So we disagree on the margins (important margins) about what abuses of the Convention by/through an Embassy might trigger a legally justified move against the Embassy’s immunity. We nonetheless agree that in the Assange case the abuse (if any) by the Ecuadoreans of the Convention by sheltering Assange is NOT such as to make even the temporary removal of the Embassy’s diplomatic immunity by HMG a legally appropriate or politically wise response.
Note that some of this is all about deep diplomatic theory and high principle. What happens in practice – and how any case on the matter might come to the courts and who would decide the outcome – is a very different matter. Note too that in his excitement BB ascribes to me a number of positions that I do not hold, and/or strays into some weak non-sequiturs. But I forgive him.
Enough. Judge for yourselves. Here is Brian’s analysis, taking up my earlier piece here. CC in black, BB in blue
Brian Barder: I’m afraid there are so many elementary confusions in all this that it’s difficult to disentangle them. But here goes. Quotations from your post labelled "CC" are followed by my explanation of why they are wrong, labelled "BB".
CC: "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."
BB: You imply that if the British government believes, rightly or wrongly, that the embassy of Ecuador is behaving improperly, Article 41 of the Vienna Convention (VCDR) permits us to strip it of its diplomatic status and immunities, send in the cops, and arrest Assange, without the ambassador’s consent. But that’s simply wrong.
We have several options for responding to the embassy’s perceived misbehaviour, from a simple protest right up to expelling the ambassador or in the last resort breaking off diplomatic relations with Ecuador and closing down its embassy (which incidentally would be bad news for Assange).
What we can’t legally do is renounce our obligation to respect the embassy’s diplomatic status, claim to have abolished its immunities (which would be flat contrary to the VCDR), invade it, and arrest anyone we find there — even the sainted Mr Assange.
I did explain all this in my earlier comment on your blog, from which you quote selectively. Apparently it was not understood, although it seems simple enough to me.
CC: "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)."
BB: By calling the test "somewhat subjective", you seem to imply that if the Secretary of State declares himself satisfied that what he wants to do is permissible under international law, he can do as he likes. But that’s wrong. His declaration of satisfaction that his proposed action is legal would be subject to judicial review.
The courts would look into the basis for the Secretary of State’s claim of satisfaction, and would not take very long to find that he had no basis whatever for that claim, since any proposal to muscle into the Ecuador embassy would clearly be contrary to Art. 22 of the VCDR, which you yourself re-quote.
Mr Assange’s supporters and the Ecuadoreans or their sympathisers would be sure to seek that judicial review before you could say "William Hague". So it’s not purely subjective, and I was not wrong to point it out.
CC: "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."
BB: Wrong again. Art. 22 of the VCDR, part of which you recklessly re-quote, obliges us to respect the inviolability of what we have already recognised as an embassy and diplomatic mission. Art. 22(2) says: "The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity."
There’s no way that can be squared with the receiving State (Britain) itself mounting an intrusion. The receiving State has no option but to discharge its obligations under the whole of Art. 22. There’s no basis for your assertion that this has to be accepted by the receiving State, even if you underline ‘accepted’. The receiving State has already ‘accepted’ it by signing and ratifying the Vienna Convention.
Moreover Britain can’t wriggle out of those obligations by passing a domestic law purporting to permit it to do so. If it could, any country — North Korea, Zimbabwe, Iran, Ecuador — could pass a similar law, and send its heavies armed with baseball bats into the local British embassy or high commission an hour or two later. No international agreement (including the Vienna Conventions, plural) would be worth twopence.
CC: "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."
BB: Perhaps you would point to the Article or Articles of the VCDR which grants to the receiving State the right to denounce its Article 22 obligations and break into the premises of a diplomatic mission as a mark of its displeasure at allegedly — or manifestly — illegal or objectionable activity going on in those premises.
As I have now explained twice here already, there are many ways in which the receiving State can respond to illegal or improper activity in a diplomatic mission, but entering it without its consent simply isn’t one of them — with one clearly defined exception which we’ll come to immediately but which is totally irrelevant to anything currently being done by the Ecuadoreans or indeed by Mr Assange.
CC: "Probably no row at all would ensue if eg the Ecuadorean 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."
BB: The one exception to the principles and rules that I have now explained three times above is where the receiving State acts under its "inherent right of self-defence" under Article 51 of the United Nations Charter.
To be able to assert this right, the receiving state has to be able to point to behaviour by or from the embassy which poses an immediate threat to the lives and safety of people in its vicinity, such as the kind of situation you imagine — someone shooting randomly, or at all, from within the embassy.
When young PC Yvonne Fletcher was shot from a window of the Libyan embassy in 1984, the British government would have been entitled to exercise its right of self-defence to enter the embassy and take whatever action was necessary to prevent further murders. (It decided against doing so, primarily because of the risk to the British embassy in Libya if it did — a point worth considering in the context of the Ecuadorean embassy in London, incidentally.)
This sole exception to the special status of Article 22 is not AFAIK set out in any formal legally binding document, but it is generally recognised by students of international law, and confirmed in Professor Eileen Denza’s authoritative book ‘Diplomatic Law’, as well as in the chapters in the current edition of Satow on diplomatic privileges and immunities (of which Professor Denza was the author).
One further point: you talk about the functions of a diplomatic mission specified by the VCDR as proper and permissible, as if anything not mentioned in the Convention must be incompatible with the mission’s obligations under it. But the functions described in the Convention are purely illustrative, as shown by the all-important phrase ‘inter alia’ in Article 3.
It’s therefore wrong to argue that because the Convention is silent on the question of using diplomatic premises to shelter a refugee (something that many British embassies have done for years BTW), therefore sheltering Assange must be incompatible with the embassy’s international law obligations.
Whether this action by Ecuador is permissible in international law probably depends on whether the extradition proceedings against Assange can properly be regarded as politically motivated or whether they are purely associated with accusations of non-political criminal offences, a matter on which you and I will take one position and Mr Assange and the Ecuadoreans will no doubt take another.
But the presence of this gentleman in the Ecuadorean embassy can’t possibly justify action by the British government contrary to Art 22 of the VCDR in pursuance of its inherent right of self-defence. End of story.
And my last word on this issue on your ever entertaining blog. If I need to write yet more, I shall do it on my own, at https://www.barder.com/ephems/, where you and any other reader of this will find a pretty exhaustive account of my view of the issues, both in two recent posts and in my responses to numerous comments on them.