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And that acceptance can reasonably be withdrawn eg if the receiving State has good reason to think that that building is being used in ways grossly incompatible with international law.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
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Charles, I naturally don't accept that Carl Gardner has torn my case (or myself) into thin strips or any other kind of strips. If you read my various contributions to the debate on Head of Legal, you'll see that I have had perfectly tenable answers to all the objections raised by Carl (but not to your airy Tweets, Charles. They nearly all amount to vague and generalised assertions, such as diplomacy being about good manners, which are neither verifiable nor refutable but essentially gestures).
The nearest you come to advancing a concrete argument is to deny the existence of a recognised right of diplomatic asylum. There is no universally recognised right of asylum in the premises of a diplomatic mission but there are numerous examples of countries accepting fugitives of various kinds in their embassies, sometimes for many years, and no examples that I know of of host governments using their belief in the illegality of diplomatic asylum as a justification for violating the immunity of embassies from entry and search without the agreement of the relevant ambassador. The British embassy in Moscow was the home for several weeks in the 1970s to four young Soviet citizens sheltering from the KGB and the Russians, while demanding the expulsion of the refugees from the embassy, never attempted to break in and seize them. The FCO agreed at the time that the four refugees should not be forced out of the embassy against their will. I am sure of my facts on this because I was a first secretary in the embassy at the time. Your confident dismissal of this practice — of which the Moscow episode is only one example of many — is not supported by international precedents. It is also totally irrelevant to the question whether in principle Assange could be appointed to the diplomatic staff of the Ecuador embassy, notified to the FCO as a diplomat, and allowed to leave the country with immunity from arrest or extradition, no doubt after a challenge in the English courts. I have yet to hear a convincing reason why that should not be possible. But in any case it has nothing at all to do with diplomatic asylum.
I am putting this reply on Head of Legal also. But I shall waste no more time devising sound-bites in reply to yours on Twitter, since they degrade what should be a civil and mutually respectful debate — as it once was.
I of course did not 'dismiss' the fact that there are plenty of examples of people who have taken shelter in Embassies. Forsooth, I linked to a whole article I have written on that very subject!
The fact that Embassies at different times in different countries have welcomed into their midst people worrying about being persecuted of course does not mean that there is an internationally accepted concept or right of 'diplomatic asylum'. If an Embassy wants to host someone for days or weeks or months or years on end, that's in principle their business. The host country (if it wants to arrest or question said person) merely camps outside waiting for him/her to emerge again. As in the Assange case and many others.
As you say, that has nothing to do with whether a state can proclaim such a person one of its diplomats and properly insist that that person enjoy diplomatic immunity and privileges in the state hosting its Embassy. Likewise how far a host state can go if it suspects that another country's Embassy is engaged in criminal activity is another issue.
Over at Head of Legal you tried to build a separate case, namely that Ecuador could appoint Assange one of its diplomats and expect that in legal terms we dutifully stand aside as he leaves the UK.
There is no 'concrete' argument needed against that as it patently fails every possible test of evergreen diplomatic process and good sense. Above all (a) that it is up to the host state to decide whether to accept another country's diplomats' presence on its territory, as diplomats or otherwise, and (b) that an Embassy must not commit criminal offences such as trying to pervert the course of justice.
Oh, the irony !
Assange remains trapped by heavy surveillance in Ecuador's embassy in London.
Ecuador meantime is using specialists from Britain's College of Policing to provide public security training for the South American country's Integrated Security Service (ISS), with a special focus on surveillance.
https://www.gov.uk/government/world-location-news…