Julian Assange has spent the last few months in the Ecuadorian embassy in London awaiting a decision about his request for diplomatic asylum, which Ecuador granted earlier this morning (16 August 2012). A few days ago, the United Kingdom warned Ecuador that Assange could be arrested by force. But can he? Can UK authorities enter the Ecuadorian embassy in London and arrest Assange?
Diplomatic asylum is often linked to the theory of exterritoriality of diplomatic missions. According to this theory, the Ecuadorian embassy in London is considered part of Ecuador and consequently a place which cannot be entered by the UK police. Yet here is where the confusion starts.
It is true that the UK police cannot enter diplomatic premises, but the reason why this is so is not the principle of exterritoriality. The reason for the status of inviolability is the diplomatic function of the diplomatic mission. The mission represents a foreign country and it needs to be shielded from any pressure by the host government. Representation and functional necessity are behind the concept of diplomatic privileges and immunities granted in the Vienna Convention on Diplomatic Relations (1961) and are widely observed, even in the case of conflict between countries.
These and other intricacies of diplomatic law are covered in depth in Diplo’s online course Diplomatic Law: Privileges and Immunities.
Possible solutions for the Assange asylum case
First, it can be solved through negotiations like most diplomatic asylum cases. A recent case in point is the escape of a Chinese dissident Chen Guangcheng to the US embassy in Beijing. His release involved very delicate negotiations aimed at observing international law and saving face for both Chinese and US governments. The negotiated solution is also the only advice which the International Court of Justice (ICJ) gave in the Haya de la Torre case between Colombia and Peru (diplomatic asylum). The ICJ could not provide a legal solution and advised the governments to solve it through negotiation. The most important outcome of this case was the indication that diplomatic asylum is not protected by international law.
Secondly, the host government may let asylum seekers leave the country. The biggest example of this solution was the repatriation of thousands of people via diplomatic missions during the Spanish Civil War (1936–1939). More recently, in 1973, after Pinochet’s coup d’état, individuals linked to the previous Allende government escaped into the embassies of Mexico (300), Panama (250) and Venezuela (100). All of them were allowed to leave Chile. In the case of Assange, the UK could arrest him as soon as he is outside the Ecuadorian embassy. His travel between London and Quito is almost impossible. One illegal way would be to misuse the diplomatic bag (in this case a trunk) as was tried by the Nigerian diplomatic mission in London in 1984. Their attempt to transport a kidnapped political opponent back to Nigeria in a trunk marked as a diplomatic bag was stopped by the UK border authorities. Since then, countries have been paying more attention to diplomatic bags, especially when they are ‘oversized’.
Thirdly, in the case of an impasse, the asylum seeker may become a long-term resident of the Embassy as was the case with Hungarian Cardinal József Mindszenty, who spent 19 years in the US embassy in Budapest where he had escaped after the 1956 government crackdown on the opposition.
Fourthly, as has happened only a few times, the local government can enter the premises of a diplomatic mission by force. This is a serious breach of the Vienna Convention on Diplomatic Relations and it happens rarely. On 14 June 1980, the Liberian army entered the French embassy in Monrovia by force in order to arrest the son of the deposed president.
Fifthly, the host country can sever diplomatic relations, close the embassy, and force all diplomats to leave the diplomatic mission. The embassy building loses its inviolability and the asylum seeker can be arrested. This approach has never been used before. The UK Diplomatic and Consular Premises Act of 1987 provides a legal basis for this solution. Although it is legal, the severing of diplomatic relations between two countries because of diplomatic asylum has never happened. According to the UK’s letter to Ecuador, the UK is ready to use this option if the negotiations fail.
Solving the asylum case by severing diplomatic relations and arresting Assange involves high risks. This could trigger such practice worldwide and undermine diplomatic immunities, strictly observed by countries across the globe. The old adage of what goes around comes around applies in diplomacy more than in other professions. Ultimately UK missions will be exposed to the risk of similar treatment in other countries.
The outcome of the Assange’s asylum case could have a serious impact on diplomatic immunities, one of the cornerstones of the international diplomatic system.
Original published at the Diplo’s website.