Viennese Whirl – Assange, Ecuador and the Vienna Convention
Ricardo Patino, Ecuador’s Foreign Minister, is pretty angry about a threat by the UK to storm the Ecuadorian Embassy in Knightsbridge to arrest Julian Assange, who is seeking diplomatic sanctuary and political asylum there. Something that caught my eye reading about this was the citation on both sides of the Vienna Convention on Diplomatic Relations: the Foreign Office believes that Ecuador hosting Assange unconditionally in their Embassy is in violation of the Convention, whilst the Ecuadorians believe that the threat to storm the Embassy is in violation of the Convention. I thought, accordingly, I’d do a bit of research to try to figure out who’s right here.
The first thing to note is that this debate is always going to be a tougher battle for the UK. Ecuador can cite the very explicit Article 22 of the Convention, quoted here in full;
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.
2. 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 of impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
That’s fairly clear stuff, and it’s almost as if it’s written in response to the current story – the premises are inviolable and are explicitly rendered immune from search.
The UK, however, might wish to swiftly retort with clause 3 of Article 41;
The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
That the UK considers that the use of the Knightsbridge property to secure Assange to be in contradiction with the “functions of the mission” seems fairly clear from the letter they sent to the Ecuadorians;
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.
So what are the “functions of the mission”? Well, I’m no expert on international law, and I suspect we’d need one to give a definitive, all-encompassing answer to that question. A helpful start, though, is Article 3 of the Convention, which sets out the following;
1. The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending state;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
So it seems to me that if Assange is granted political asylum in Ecuador later today, under part (b), the use off the Embassy to house him should become legitimate. But what until then? What about the situation up until now, which the Foreign Office are so obviously peeved about?
I can’t see anything clear in the above quote which sets out that they have the right to house fugitives and applicants for diplomatic sanctuary. One complication is that they are supposed to avoid using the premises in a way which might contradict functions of the mission, so alongside the potential lack of affirmative rights to house Assange, it seems they also need to consider the apparent negative impact of the contradiction to part (e) of the above quote.
At the same time, I can’t really see anything definitive which says they can’t use their embassy in that way.
It’s all a bit cloudy. The picture I’m getting, however, is that we may have a stalemate between two vague elements of the law. If Assange is granted asylum then it seems that he should then be allowed to stay in the Embassy – unless, under Article 9, the UK informs Ecuador that he is persona non grata and gives them notice to remove him to Ecuador. The thing is, that doesn’t seem in the Foreign Office’s interest, because they actually have to let Ecuador do it – i.e. they couldn’t arrest him on his way to the airport as many in the media are speculating that they might.
In short, I hope Mr Assange is comfortable in that Embassy.
Of course, a very different story emerges if he is not granted asylum. I can only see that ending with him walking out of the Ecuadorian embassy and immediately being arrested.
References to the Vienna Convention are to the UN Convention on Diplomatic Relations signed in Vienna on 18 April 1961 and enacted on 24 April 1964. Available at “United Nations, Treaty Series, vol. 500, p. 95″.