For the past two months, Julian Assange has been staying at Ecuador’s embassy to the United Kingdom to avoid arrest in England, extradition to Sweden on sexual assault charges, and possible extradition from Sweden to the United States for charges connected with Wikileaks’ disclosure of State Department cables in 2010. The UK has demanded that Ecuador hand over Assange, but today Ecuador officially refused. In response, British officials have threatened to suspend the embassy’s diplomatic immunity so that they can enter the embassy grounds and make the arrest.
The dispute raises a question that Britain has encountered before. In 1984, during an anti-Gaddafi demonstration outside the Libyan embassy in London, someone inside the embassy shot and killed a British law enforcement officer who was policing the protest near the embassy grounds. The British government, however, had no legal means of arresting the shooter. The Vienna Convention on Diplomatic Relations had established that the premises of a diplomatic mission “shall be inviolable,” that “agents of [a] receiving State may not enter them, except with the consent of the head of the mission,” and that the premises “shall be immune from search . . . .” Libya, moreover, refused to allow entry and search. This dissatisfying result eventually led Parliament to pass a law called the Diplomatic and Consular Premises Act of 1987. The Act provides that embassy grounds are not to be regarded as a foreign state’s diplomatic premises unless accepted as such by the British Secretary of State, and that the Secretary can withdraw his acceptance if doing so “is permissible under international law.” The result of a withdrawal is that the land on which the embassy is located “ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law,” including the robust immunity provisions of the Vienna Convention. The Act thus creates a way for the British government to circumvent the inviolability principle. If the law had been in place prior to the shooting in 1984, the thinking went, the government could have entered the Libyan embassy and arrested the shooter. Now British officials are relying on the law as the basis for their threat to enter Ecuador’s embassy and arrest Assange.
I see a potential difficulty with the threatened usage: It is unclear that withdrawing acceptance of the embassy premises would be compatible with international law in the circumstances, as the Act requires. First, the Vienna Convention strongly suggests that sending state conduct cannot justify the denial of premises immunity. The inviolability principle has no express exception other than the consent of the sending state itself. And although embassy personnel must “respect the laws and regulations of the receiving State” and not use the premises “in any manner incompatible with the functions of the mission,” nothing in the Convention provides that failure to honor such obligations entitles a receiving state to disregard inviolability. Indeed, the travaux preparatoires states that the failure to use embassy grounds for legitimate purposes “does not render . . . [the] inviolability of the mission premises . . . inoperative.” Even if one were to consider Ecuador’s conduct a fundamental breach of the Convention, the UK could sever diplomatic relations, but the Convention would still require the British government to “respect and protect the premises” of the Ecuadorean mission. Second, given that sending-state conduct cannot justify the denial of premises immunity, it is questionable that the British government can accomplish the same result by withdrawing its acceptance of the embassy grounds. The entry of premises rendered non-immune by the withdrawal of acceptance is in form different from entry into immune premises, but in effect indistinguishable. If governments can withdraw acceptance too easily, inviolability seems to lose much of its meaning.
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