Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy?

by Carl Gardner on August 15, 2012

The latest twist in the Julian Assange case, as we await Ecuador’s decision on granting him asylum (a decision which would not, as I’ve written before, in itself allow protection from arrest if he steps outside the embassy), is that people are wondering whether the UK can simply strip the embassy of its diplomatic status, so allowing police officers to enter it.

It seems the British embassy in Quito has written to the Ecuadorian government (hat tip to @JasonLeopold) saying

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the Embassy.

We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr Assange’s presence in your premises, this is an open option for us.

The 1987 Act does indeed give ministers a power to withdraw recognition from diplomatic premises. Section 1(3) says

In no case is land to be regarded as a State’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the Secretary of State has given that State consent under this section in relation to it; and if—
(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or
(b) the Secretary of State withdraws his acceptance or consent in relation to land,
it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

On the face of it, then, the Secretary of State (in practice a foreign office minister) could now simply withdraw consent, and with one bound, police would be free to make an arrest.

But it’s not quite as simple as that. You’ll note that section 1(4) says

The Secretary of State shall only give or withdraw consent or withdraw acceptance if he is satisfied that to do so is permissible under international law

and that according to section 1(5), in deciding whether to withdraw consent, the minister

shall have regard to all material considerations, and in particular, but without prejudice to the generality of this subsection—
(a) to the safety of the public;
(b) to national security; and
(c) to town and country planning.

The “compliance with international law” requirement may present a problem, since article 21 of the Vienna Convention on Diplomatic Relations requires the UK to facilitate the acquisition by Ecuador of premises necessary for its mission, or assist it in obtaining accommodation. It’s not obvious this allows the UK to just de-recognise the current premises without helping arrange something new.

Section 1(5) is interesting because, in spite of the way the drafting clearly intends to preserve ministers’ ability to take account of anything they think relevant, I’ve no doubt lawyers for Ecuador could argue that the list of three particular concerns colours the scope of ministers’ considerations, the result being that only some particular difficulty relating to safety or to the premises themselves could justify withdrawal.

More importantly, they could argue that Assange’s presence in the embassy and Ecuador’s conduct in sheltering him is not a material consideration; and that since that clearly lay behind the withdrawal, ministers would in deciding to withdraw consent, have taken into account an irrelevant factor.

In addition, there’d be a potentially strong argument to be made that ministers had exercised their power for an improper purpose not intended by Parliament when it enacted the 1987 legislation – their desire to arrest Julian Assange.

Ecuador could judicially review any proposed withdrawal: I think the effect on Assange means this is the type of case in which, as Lord Sumption explained in a recent speech, the courts would consider intervening in a foreign policy decision. Perhaps Assange could obtain an injunction on judicial review, preventing any arrest pending the outcome of proceedings. Of course, if the government successfully fought off that judicial review, the arrest could go ahead. But I don’t think a defence would be easy, and at the very least, a judicial review would create further delay – which probably suits Assange fairly well. I’m not sure giving him a hook to hang one on would be the best tactical move for the government.

The Quito letter from the UK to Ecuador went on apparently to say

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

If I were advising the government, I think I’d say that, if ministers are determined to allow the arrest of Assange, it might be better simply to cut off diplomatic relations with Ecuador, send the ambassador home, close the embassy and arrest Assange after that. Ending diplomatic relations is the major sort of foreign affairs decision I doubt the courts would interfere with. But that’d be a major diplomatic call.

{ 47 comments… read them below or add one }

1 Greg Callus August 16, 2012 at 00:41

Excellent as always Carl.

Just been reading “R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Samuel (1989), The Times, 17 August 1989″ which is the only case I can find on the DCPA (evicting squatters from the disused Cambodian embassy, by transferring it by deed in to the ownership of the Foreign Sec under Section 2.

It can be read in the International Law Reports (ed. E Lauterpacht) here (p 232 of Google Books preview) http://bit.ly/N19U1k

Top of p233 it considers that it is for the Foreign Secretary, not the courts, to determine whether his order is permissible under International Law, unless there is evidence that he (a) acted in bad faith, or (b) unreasonably.

Finally, whilst Assange could bring judicial review over a decision to remove the Embassy’s status to arrest him, if Ecuador were to challenge the UK’s actions, it would not be appropriate for the English courts to hear the case, but rather the International Court of Justice.

2 Seeyouincourt1 August 16, 2012 at 01:02

It seems to me that the admin court is the most appropriate court to review a decision of the secretary of state to remove diplomatic status of the embassy- not the icj- for taking into account irrelevant factors, no?

3 thebomber August 16, 2012 at 01:04

Excellent post, but Isn’t it obvious this has move beyond law & into politics? Ecuador’s statement is entirely about boxing the UK on politically and nothing t do with the actual GB statement reminding them of the law.

Ecuador have been smart, the FCO dumb, but no one REALLY threatened anyone’s diplomatic stats.

4 Greg Callus August 16, 2012 at 02:01

@Seeyouincourt

It does seem odd that the ICJ – which has no jurisdiction to judicially review anything – might be the venue for what is essentially an examination of the rationale deployed by a Secretary of State, and in that sense I agree that the Admin division is perhaps more qualified.

However, the Court of Appeal in “ex parte Samuel” (judgment by Fox LJ) is very clear – an individual affected may bring JR against the Sec of State on the grounds given (though the court will not test whether the actions *were* permissible under international law, merely whether the Sec of State acted in good faith and reasonably in determining his order to be so) which will be in the Admin Court.

However, the Court of Appeal was also very clear that it was not appropriate for a domestic court to determine a dispute between the UK and another state. If Ecuador was minded to dispute the Sec of State’s order, an English court would be bound to refuse jurisdiction forcing the parties to take it to the ICJ.

At the ICJ, the matter likely would be whether the UK order was permissible under international law, rather than just whether the Sec of State in good faith reasonably believed it to be.

That’s how I understand the judgment in “Samuel” but I’m happy to be corrected by those who may know better.

5 Carl Gardner August 16, 2012 at 02:28

Thanks for the comments, and thanks for the link to Samuel, Greg. That’s really helpful.

I’m not completely sure where it leaves us as regards any application by Ecuador – I agree with you that the Court of Appeal was giving a strong signal that it would be slow to decide disputes between states; but on the other hand that was in the context of a dispute about whether the decision complied with international law rather than a purely domestic point. If there were no other applicant, and no other possible forum, I wonder what would happen.

But here we do have another applicant of course – Assange – and so, like Samuel, I think he has a viable judicial review. Since this is about arrest and extradition I doubt the courts would be all that deferential, and I wonder whether they might not scrutinise the “international law” point more intensely than they did in 1989.

I think the irrelevant consideration/improper purpose arguments would be the stronger ones, though.

6 Carl Gardner August 16, 2012 at 02:45

Interestingly, the 1987 Act seems to have been passed within a matter of a few days by both Houses in the wash-up period just before the 1987 general election.

It got second reading in the Commons on 12 May,
second and third reading in the Lords on the 14th and Royal assent on the 15th.

The only interesting thing ministers said about about the purpose behind section 1(3) was this from Baroness Young about one of the mischiefs the bill was aimed at:

… at present we would be unable to remove diplomatic status from premises which were being misused. I have in mind here evidence over a long period of time that a mission was being used, for instance, in support of terrorist activity.

I’m not saying this should influence the court’s reading under Pepper v Hart, but it’s interesting for us. Any “misuse” here is a long way from anything like sponsoring terrorism.

7 Bilancio August 16, 2012 at 06:07

What is the Latin for ‘bluff’ ?

8 Mike Scott August 16, 2012 at 07:26

What happens if Ecuador appoints Assange to a position within the embassy that gives him personal diplomatic immunity?

9 Carl Gardner August 16, 2012 at 07:36

Have a look at my earlier post on this, Mike. I don’t think that’d help him.

10 botogol August 16, 2012 at 08:35

Surely the UK won’t go through with this
If they storm the embassy
.. Someone could get shot
.. Ecuador would surely break off diplomatic relations anyway

11 ObiterJ August 16, 2012 at 09:25

At first sight it is difficult to see why the fact that an Embassy has given shelter to someone would be grounds to close the Embassy. The land has not ceased to be used for the purposes of the mission.

One would need to find out much more about the background to this Act and State practice. However, it looks like an Act to enable Britain to reclaim full title to land in cases where, for example, a country withdraws from diplomatic engagement with the UK.

12 seeyouincourt1 August 16, 2012 at 09:38

If the SoS was satisfied that it was lawful in terms of international law (whereby he could satisfy himself should he find respectable arguments to support his view) then he has to consider ‘all material considerations’ plus those in s1 (5) of the Act before deciding to revoke status. The express factors don’t appear to help the UK but do not prejudice the generality of the section in any event. It would appear that they would have to find other material considerations that would assist their argument – perhaps a potential abuse of process – by seeking asylum to circumvent the legal process knowing a route out of the country is impossible… What do you think Carl?

13 Greg Callus August 16, 2012 at 10:18

Carl – I quite agree that the English courts would hear an Assange JR on the good faith/reasonableness, whether or not there was an ICJ case launched. He’d obviously be allowed to stay while it was in progress.

But I suspect the domestic courts wouldn’t hear any Ecuador v UK case, which would look at the on the substance of compliance with international law. I also don’t think they’d let Ecuador be joined as a party to an Assange JR (which might affect his ability to fund the action).

The Hansard link is fascinating – whilst the regular mischief is clearly partly administrative, this came only a couple of years after Yvonne Fletcher’s murder, and I think Baronness Young’s comments cannot be read without reference to the Libyan embassy. I agree that effecting an arrest pursuant to an EAW falls well short of the mischief when put in this way. Providing asylum is not a misuse of an embassy, how ever much it irritates the host country or their allies.

14 David S August 16, 2012 at 11:25

I think that by making this public, Ecuador is calling the FO’s bluff.

15 Mark2 August 16, 2012 at 12:29

What is the position when he exits the Embassy? Is he still covered if say, he is accompanied by an acredited diplomat? If not might the easiest thing be simply to wait till he exits and arrest him then? It is hardly any skin off the UK’s nose if he is holed up in the Ecuador Embassy (which can’t be much fun) with the added advantage that neither us, the Swedes nor the Americans have to pay for is upkeep.

16 Daniel Olive August 16, 2012 at 12:56

Mark2, being accompanied by a diplomat doesn’t give you immunity, so he would be arrested.

Carl, surely the JR would be of the withdrawal, and the injunction would restrain that not his arrest?

17 Anthony August 16, 2012 at 14:07

This whole case (to me) is about the ‘Sexual Harrasment’ case. Why doesn’t the International Community agree to ‘try’ Mr. Assange in an independent country (if there is such a thing) with a mixture of judges and lawyers from various ‘political’ countries?

Second… would this not give some sort of legal precedence to other countries when their people ‘defect’ to, for example, the U.K.?

18 Geoffrey Beresford Hartwell August 16, 2012 at 20:18

Does no-one worry about the safety of other persons who seek the safety of British Embassies abroad?

19 Alan Trench August 16, 2012 at 20:42

As usual, Carl’s analysis is excellent. But one practical point: Ecuador is hellishly difficult to get to from the UK. There are no direct flights. The Ecuadorian national airline, TAME, doesn’t even have links with most neighbouring capitals (for example, it flies to Cali in Colombia – but not Bogota.) I suspect the easiest connections are via Madrid on Iberia, though even then another connection in south America would be needed. US airlines, notably United, might offer another routing, but that’s messy too.

If Mr Assange does decide to make a run for it, rather than hole up in the embassy indefinitely, his options are pretty limited, and most run through Spain. I don’t know what sort of agreements regarding extradition exist between Sweden and Spain, but I suspect a lot of people are looking at them right now.

20 H Luce August 16, 2012 at 21:14

The Swedes refused to send a representative to question him at the Ecuadorian Embassy, and what’s more, Assange could exercise his right to remain silent, thus making this whole “questioning” controversy moot. If a case is fully dependent on self-incrimination by the suspect, then that’s not much of a case to begin with, which is probably why he hasn’t been charged in the first place.

If the Ecudorians grant him full citizenship, employ him within their government, and issue him a diplomatic passport, that might help things along.

21 gl August 16, 2012 at 23:32

Why can’t they take a diplomatic car through the chunnel?

22 botogol August 17, 2012 at 11:06

It’s easy to get very James Bond about possible escape plans.

I reckon he’ll wait it out.

I don’t think that issuing him a diplomatic passport helps. Diplomatic status is a two-way agreement : the proposed diplomat has to be accepted as such by the receiving country in order to get his/her privileged status.

23 Daniel Olive August 17, 2012 at 11:34

Alan, I would assume it would be a private jet, but in any case he is unlikely to get out.

24 Alan Trench August 17, 2012 at 11:52

The problem is that almost any route to get to Ecuador- even by private jet – takes Assange to other countries with extradition arrangements with both Sweden and UK. (Let’s not forget that, as someone in breach of his bail terms, Assange is now subject to arrest by UK authorities for bail offences as well as for extradition to Sweden; and so by those with extradition arrangements with UK but not Sweden.) And each of these routings will require plenty of notification to authorities about the identity of the passengers.

Other than causing a large amount of fuss, it’s hard to see how obtaining asylum from Ecuador helps Assange. He’s moved from being under house arrest in Suffolk to being under flat arrest in Kensington.

25 scriptoff August 17, 2012 at 13:31

“Manuel Noriega. Vatican Embassy in Panama City, 1989. U.S. forces invaded Panama to topple and arrest Noriega, prompting the dictator to seek refuge in the Holy See’s mission. American troops set up large speakers around the compound, blaring music at all hours, a psychological ploy to rattle the general. He surrendered after 10 days and was taken to the United States for trial. He was found guilty of drug trafficking and other crimes.”
Is it legal?

26 mightymark August 17, 2012 at 20:05

Don’t know if its legal Scriptoff but I certainly can’t see the Tories trying that one on here – not in Kensington, opposite Harrods and surely not far from Harvey Nicks!

27 H Luce August 17, 2012 at 20:33

Of course it’s legal, Parliament enacts the appropriate statute, the Queen gives her rubberstamp Royal Assent, and it’s off to the races. I’d suggest a 24/7 blaring of fox hunts in full cry mixed in with Jimmy Swaggart’s and Pat Robertson, I’m sure that would go over quite well in Central London.

28 mightymark August 17, 2012 at 22:00

“blaring of fox hunts ”

Aren’t they illegal?

I did however have a chum who blasted an objectionable neighbiour with the “Ride of the Valkyries”. Might we compromise on this?

29 Daniel Olive August 17, 2012 at 22:09

I think the Vienna Convention requires the receiving state to not harass the embassy. The US in Panama of course wasn’t the receiving state, so that’s not an issue.

Technically blasting them out with noise would be statutory noise nuisance, but Westminster Council can’t prosecute for 28 days after they serve the s 215 notice, which is almost 3 times as long as it took to get Noriega out.

30 H Luce August 17, 2012 at 23:43
31 Michael August 18, 2012 at 19:46

Out of curiosity does anyone know what happened when British soldiers entered the Iranian embassy in 1980. Were they invited in? If not was there any international or UK legal basis for their actions.

Sorry if this is well known but I couldn’t find an answer online.

Michael

32 Mike Scott August 18, 2012 at 21:33

Michael: Given that the Iranian embassy siege in 1980 consisted of the legitimate Iranian consular staff being taken hostage by an Iranian dissident group, I should imagine that the Iranian authorities gave their permission for UK forces to enter the embassy.

33 Paulina August 19, 2012 at 14:44

The Silly U K gov have now created St Julian of Free Speech.
What were they thinking of. I think that Anglo Saxon political
heads must take a step back and view the state of play in
today s world picture.
Facebook and twitter and the emerging new powers are the
future.

34 Kaz August 22, 2012 at 12:15

Any move our government makes now just makes me more concerned with the probable reaction round the world.I am now very apprehensive of any treatment our own folk get if they ask for sanctuary in an embassy, I fear the British Passport may well tainted by irreparable stench.

35 Interest August 22, 2012 at 17:43

The vienna-convention-on-diplomatic-relations.pdf appears quite specific. Assange could be appointed a diplomatic courier, given an appropriate passport and labelled bag and sent off to Ecuador. UK and intermediate countries are required by the convention not to arrest a courier. No approval of the person is required, in fact no prior approval is required for any diplomatic staff apart from the head of mission.

Since possession is 9/10th of the law whether Hague or Cameron would follow the international law is another question. Their threatening letter would indicate they don’t take the law too seriously.

36 Mrs. Josephine Hyde-Hartley August 22, 2012 at 22:38

Apparently according to Vienna “1. 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 the mission.”

But it’s only a convention and most importantly..whose mission is this anyway?

37 H Luce August 22, 2012 at 23:15

It’s Ecuador’s mission. If the UK invades it to take Assange, then British Embassies around the world will become targets. I think Ecuador might well send the British Embassy and its staff packing – it’s really an insult and an invasion and would be treated as such. There might be similar reactions in other Latin American countries. There’d be massive fallout for very little gain.

38 Alexandra September 3, 2012 at 08:52

What is required is for the Swedes to give a firm undertaking that they will not extradite Assange to the USA. He then loses his argument for resisting extradition to Sweden and the basis on which he sought asylum with the Ecuadorians. Or am I missing something?

39 Carl Gardner September 4, 2012 at 07:44

I think you are missing something, Alexandra, yes. If there is ever an extradition request from the US, then Sweden will have to process that request in accordance with its own domestic law, and with its extradition agreement with the US.

As I understand it those provisions envisage a process in which both the courts and then the Swedish government have a role – but it must be wrong to see the government as able to simply overrule the courts in advance. It seems to me that proper adherence to due process and the rule of law must require the Swedish government to make whatever decisions may fall to it at the appropriate time – not in advance, before the request had even been looked at by the courts, and pre-empting the role of the courts. I’m sure the government here would not feel able to do anything like that (I can’t remember the last government making any public statement about the Pinochet case before the proper time, after it came to them from the courts, for example) and I imagine the same considerations will govern the way the Swedes approach it.

The other thing you’re missing is this. I don’t for a second accuse Assange of any hidden wrongdoing. But simply in principle, it’s impossible for any government to know that you’ve never committed a serious offence in another country. You don’t know that I’ve not murdered a French citizen, for example, which would be a triable offence in France (even if I’ve never been there), so it’d be wrong, surely, for you to exclude my extradition to France, ever. Equally, how can Sweden know Assange has never committed a serious offence under American law? So how can they exclude ever extraditing him, in advance?

40 Geoffrey Beresford Hartwell September 4, 2012 at 09:19

If the Swedish police genuinely want to question Assange, the answer is simple. They ask to do sp at the Ecuadorian embassy. Extradition is not necessary for questioning, only for trial.

41 Carl Gardner September 4, 2012 at 09:21

What do they do if Assange simply walks out of the interview, seconds after it begins?

42 Geoffrey Beresford Hartwell September 4, 2012 at 17:19

Carl, That’s a fair point but a) I understand him to have said he is willing to answer questions b) his following would dwindle very quickly if he refused the interview.

43 Carl Gardner September 4, 2012 at 17:32

He has said so, yes. But then he also said the Swedish prosecutors had made no effort to interview him in Sweden before he left – which turned out not to be right. And he persuaded sureties and securities he’d turn up to his court and police appointments – and has failed to do so. Why should the Swedes accept what he says?

I doubt he’d lose all his following, either. If he said he’d terminated the interview because the first question was unfair, I imagine quite a few people would defend his decision. More importantly, whatever anyone thought, there’d be nothing the Swedes could do about it.

Finally, there may be other reasons why the Swedes want to conduct this interview on their own territory, where they have legal powers, rather than somewhere where they have no power. We can only speculate about that, but it may be a factor.

44 Mag September 4, 2012 at 21:00
45 H Luce September 4, 2012 at 21:24

Assange can put a swift end to this controversy by saying, simply:

“On the advice of my attorneys, I intend to exercise my right to remain silent under the European Declaration of Human Rights as to any questions proferred by the Swedish prosecutorial service.”

That will simply render this whole matter moot, and then the Swedes can go ahead and charge him – for which he can be extradited, without question – or not, in which case he walks free.

46 ALEX M TAIWO MOJIMINIYI December 19, 2012 at 13:10

NATIONS SHOULD LEARN TO RESPECT INTERNATIONAL LAW ESPECIALLY THE VIENNA CONVENTION.

47 Layman April 21, 2013 at 09:11

If a Government can withdraw diplomatic protection at will, I would argue that there is no diplomatic privilege, only the grace and favour of the host, for so long as it lasts.

Is it worth creating such a dangerous precedent for such a doubtful case?

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