Thursday, 16 August 2012

Julian Assange ~ Quo Vadis?


Update 1 : A statement has been issued by the Foreign Secretary - here.   "The UK does not accept the principle of diplomatic asylum.  It is far from a universally accepted concept:  the United Kingdom is not a party to any legal instruments which require us to recognise the grant of diplomatic asylum by a foreign embassy in this country.  Moreover, it is well established that, even for those countries which do recognise diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts."  Thus, the British government is not prepared to give Assange safe passage from the UK.


Update 2:  A number of other commentators have joined the fray.  Please see Of Interest to Lawyers ~ No get out of jail card for Assange! and the Podcast on the Charon QC blog and some observations by retired diplomat Brian Barder (here).

Update 3: and see the excellent post on The Blog that Peter Wrote .. Assange.

Update 4: Human Rights in Ireland - A footnote on the Julian Assange case

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Assange granted asylum by Ecuador:

The government of Ecuador has granted Wikileaks founder Mr Julian Assange asylum - BBC Report 16th August.  He has been in the Ecuadorean Embassy in London since June.   This matter has been considered in a number of posts:

20th June 2012 - Assange ~ Breach of Bail ~ Status of Embassies
 
14th June 2012 - Assange ~ Supreme Court rejects application to re-open

30th May 2012 - Assange ~ Supreme Court decision

and in some earlier posts - here, here and here.

"Threats" to arrest him?

According to the BBC Report 16th August - the U.K. made a "threat" to revoke the embassy status of the building where Julian Assange is and such a move would have been followed up by the arrest of Mr Assange.  As opposed to a "threat" it seems more likely that, during negotiations, the British government will have referred to English law relating to embassies.

On the one hand
there is the fact that Article 22 of the Vienna Convention on Diplomatic Relations states clearly:

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 or 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.

The Vienna Convention has effect in English law because of the Diplomatic Privileges Act 1964

in 1988, the Law Society Gazette published an article on the Inviolability of Diplomatic and Consular premises.

Against this is the Diplomatic and Consular Premises Act 1987.  This Act requires States to secure the agreement of the British government ("the Secretary of State") for the use of land / premises in the UK for diplomatic purposes.  A State may cease to use land or premises for such purposes and is then required, by English law, to so inform the Secretary of State.   The Act - in section 1(3)(b) goes further and says that the Secretary of State may withdraw his consent but that must be read with:
  • Section 1(4) - "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 with
  • section 1(5) - "In determining whether to do so he 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 starting point must be the international law position of the inviolability of the premises.  Next, the power in the 1987 Act may only be used if permissible under international law.  The question there would be whether, in international law, there are any situations in which an embassy may not be inviolate.  That would be a difficult issue productive of lengthy and costly legal proceedings.  Then, section 1(5) enables public safety, national security and town and country planning to be considered along with any other relevant considerations. 

It is difficult to see how the granting of asylum to an individual such as Mr Assange would justify the use of any power under the 1987 Act.  For further discussion on this see the excellent posts at Head of Legal and New Statesman.  Any attempt to use the 1987 Act would almost inevitably result in legal challenge by way of judicial review and any such challenge would equally inevitably be destined for the Supreme Court of the U.K.

Some comments made by Baroness Young in Parliament on 14th May 1987 may prove helpful in terms of what the 1987 Act was intended for.  

In any event, the government would be mindful that, if it were to use any power it may have, it might have practical repercussions to British Embassies around the world.

UK remains bound under European Arrest Warrant system:

Meanwhile, as things currently stand, the U.K. remains bound in international law to extradite Mr Assange to Sweden.  Mr Assange lost his appeal to the Supreme Court and, in a very brief and, I submit, unsatisfactory statement, the Supreme Court later refused to re-open the case.   It is arguable that the Supreme Court was incorrect in its interpretation of the European Framework Directive relating to the European Arrest Warrant.  Two posts in the Cambridge Journal of International and Comparative Law examine this point - see Part 1 and Part 2

So, Quo Vadis ~ Mr Assange?  He may remain in the London Embassy but may he be got out of the U.K. without being arrested by the British authorities?  Assuming they could get him into an embassy car then he could presumably be driven to Heathrow Airport.   The Vienna Convention Article 22(3) protects the "means of transport of the mission" from search etc.  However, arrest at Heathrow might be possible.  All of this is, of course, interesting speculation at this stage.

The Foreign and Commonwealth Office statement:

"We are disappointed by the statement from Ecuador's Foreign Minister that Ecuador has offered political asylum to Julian Assange.

Under our law, with Mr Assange having exhausted all options of appeal, the British authorities are under a binding obligation to extradite him to Sweden. We shall carry out that obligation. The Ecuadorian Government's decision this afternoon does not change that.

We remain committed to a negotiated solution that allows us to carry out our obligations under the Extradition Act."

See FCO News

The use of the word "disappointed" probably means that there is little chance of the UK government offering Assange safe passage out of the UK to Ecuador or anywhere else apart, of course, from Sweden!  the government is between a rock and a hard place.  However, it may well see its duty as having to stand by the decision of the UK Supreme Court which permits the extradition of Mr Assange and, of course, the Supreme Court's decision was prior to Mr Assange claiming asylum.

Footnote:

Asylum applications in the UK are based on the UN Convention of the Status of Refugees 1951.   The UK Border Agency website gives more information.    Members of the Organisation of American States have, between themselves, adopted a Convention dealing with political asylum.   See also the Nothing like the Sun blog for some discussion on Julian the Asylum Seeker

4 comments:

  1. See section 1(7) of the 1987 Act - that probably means the Court would not get involved in the question of whether or not the Embassy was immune if the Secretary of State issued a certificate saying it was not - that might not preclude a JR to quash the decision to remove the immunity though?

    (7) In any proceedings a certificate issued by or under the authority of the Secretary of State stating any fact relevant to the question whether or not land was at any time diplomatic or consular premises shall be conclusive of that fact.

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    Replies
    1. Ed (not Bystander)17 August 2012 at 16:59

      Presumably JR could still be sought claiming that the issuing of the certificate was Wednesbury unreasonable.

      Delete
  2. There's an interesting article here

    http://www.lawgazette.co.uk/news/the-inviolability-diplomatic-and-consular-premises

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  3. @ A Barrister in London - Thank you - in the post above I have added a link to the Law Gazette article.

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