The key international agreement is the 1961 Vienna Convention on Diplomatic Relations (VCDR), which codifies practice on the immunities and privileges of foreign diplomatic missions and their staff. Article 22 says: “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”. Some 187 states have ratified the VCDR, including the UK and Ecuador.
When Julian Assange took refuge in the embassy, the Ecuadorian government must have felt confident that UK police would not enter the mission to execute the Swedish extradition warrant. They were probably unaware that in the UK the inviolability accorded diplomatic missions is qualified by the little-known Diplomatic & Consular Premises Act 1987 (DCPA), introduced following flagrant abuses of diplomatic immunity in the UK – notably the murder of WPC Fletcher by a member of the Libyan People’s Bureau in 1984.
The Act allows the foreign secretary to withdraw his consent for premises to be used for diplomatic purposes, enabling the police to enter them without the agreement of the ambassador (the police would, of course, still need a warrant). However, under the DCPA, the secretary of state shall only withdraw consent if “he is satisfied that to do so is permissible under international law.” Furthermore, in determining whether to do so, he must have regard to “all material considerations” and in particular the safety of the public; national security; and planning law.
The DCPA wasn’t designed to handle a situation in which a person seeks to evade a judicial process by claiming asylum in a diplomatic mission. Whether it can be used in the Assange case may rest on the interpretations of “material considerations” and of relevant areas of international law.
The UK had been trying to resolve the dispute in behind-the-scenes negotiations, and seven rounds of formal talks had taken place when the FCO discovered that Ecuador’s President Correa was to make a public announcement about the case on 16 August. This prompted the FCO to send the Ecuadorians an aide-mémoire on 15 August, stating: “You should be aware that there is a legal basis in law in the UK... that would permit us to take steps to arrest Mr Assange within the current premises of the embassy. We sincerely hope that such a point is not reached, but if you cannot resolve the presence of Mr Assange on your premises, that route is open to us."
According to the 19 August Independent on Sunday, one FCO legal adviser questioned the wisdom of the reference. However, ministers apparently approved the document.
The Ecuadorians interpreted the reference as a threat that the UK would disregard the inviolability of their mission: they made public the aide-mémoire, announced they’d grant Assange diplomatic asylum, and sought support from members of the Union of South American Nations and later the Organisation of American States. President Correa reaped some political rewards, with his foreign minister calling the UK a “neo-colonial bully”.
Does Julian Assange have any right to claim ‘diplomatic asylum’ in this way? The UK does not recognise this concept, although it has occasionally sheltered people in its own missions. However, a number of South American states – including Ecuador – are parties to the 1954 Caracas Convention on Diplomatic Asylum. Ecuador’s interpretation is that Julian Assange is a victim of political persecution, and is therefore entitled to receive protection under this convention.
Referring to the DCPA in the aide-mémoire was a tactical error. It probably made it easier for President Correa to announce that Ecuador would grant asylum. He used the alleged threat to rally Latin American opinion against the UK and to promote his own political interests. The tension has subsided, as Correa has accepted that the UK does not intend to enter the mission. Meanwhile the UK refuses to grant Julian Assange safe passage to Ecuador. He is therefore likely to stay in the embassy indefinitely.
Paul Whiteway is director of the London office of the non-profit diplomatic advisory group Independent Diplomat
Picture credit: Sean Dempsey/PA Wire