WikiLeaks founder Julian Assange has been granted political asylum. Assange is has been living in Ecuador’s embassy in London since June 19. He is trying to avoid extradition from the UK to Sweden, where he is wanted for questioning for alleged sexual misconduct.
The British government has suggested that it may move in on the Ecuadorian embassy and could find itself hauled before an international court if it does. According to Temple University international law professor Peter Spiro, under International law “without the consent of the state whose embassy is implicated, the host state may not enter those premises.”
According to the 1961 Vienna Convention on Diplomatic relations international treaty, of which Britain is a signator. “the premises of the mission shall be inviolable” and agents of the home country “may not enter them, except with the consent of the head of the mission.” Exceptions may be permitted where there is a physical threat emanating from the embassy such as a fire or a sniper. Obtaining custody over someone seeking asylum, not one such exception.
A little-known law, however – the Diplomatic and Consular Premises Act of 1987 – may allow British authorities to arrest Assange within the embassy premises.The law gives Britain the power to revoke the status of a diplomatic mission if the state in question “ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post” — but only if such a move is “permissible under international law.”
The Diplomatic and Consular Act of 1987, however, may be given little credence in an international court, where Ecuador could go to seek some sort of recourse.
Spiro noted that, “The downside for the U.K. if they are perceived as violating international law is that they are perceived as being an international lawbreaker and that has potential consequences in reciprocal situations.” That is, according to Spiro, “the next time the U.K. is protecting someone from a host state’s jurisdiction, that country could barge right in and say ‘hey you guys did it in London.”
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Under Article 22 of the Vienna Convention on Diplomatic Relations, even though an embassy remains the territory of the host nation local police may not enter unless they have the express permission of the ambassador. Specifically, Article 22 provides that 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.” This effectively places a duty on the host nation to protect the premises of the embassy from intrusion or damage. (See US v. Iran Hostage case).
Further, the European Convention on Human Rights and – in the case of the US – the International Covenant on Civil and Political Rights, follow this same rule of “involability.” Under these laws, an embassy is obliged to consider whether there is a real risk that the sought person could be killed or seriously injured if they were handed over to the local authorities. And if there is such a risk, then the embassy could be held accountable if they give that person up.
Among the many other laws that permit, and in some circumstances require, asylum to be granted are:
1. Article 14 of the Universal Declaration of Human Rights of 1948 (establishing the right to seek and enjoy asylum in any country, for political reasons);
2. Article 27 of the American Declaration of Men’s Rights and Duties of 1948 (establishing the right to seek and enjoy asylum in any country, for political reasons);
3. Article 45 of the Geneva Agreement of August 12, 1949 (regarding the Due Protection of Civilians in War Times: in no case it is due to transfer the protected person to a country where they can fear persecutions because of their political opinions);
4. Article 4 of the Convention on Diplomatic Asylum of 1954 (providing that the State has the right to grant asylum and to qualify the nature of the felony or reasons of persecution);
5. Article 22.7 of the American Convention on Human Rights of 1969 (also establishing the right to seek and receive asylum for political reasons);
6. Article 12.3 of the African Letter of Men and People’s Rights of 1981 (also establishing the right of the persecuted individual to seek and obtain asylum in other countries);
7. Cartagena Declaration of 1984 (recognizing the right to refuge, to not being rejected in the borders, and to not being returned);
8. Article 46 of the Fundamental Rights Letter of the European Union of 2000 (establishing the right to diplomatic and consular protection. Every citizen of the Union may seek refuge, in the territory of a third country, in which the Member State of nationality is not represented, to the protection of diplomatic and consular authorities of any member State, in the same conditions of the nationals of that State)
So, can the U.K. ‘get around’ all this by simply revoking it’s recognition of the embassy under Britain’s 1987 Diplomatic and Consular Premises Act? The answer seems to be: technically yes but practically no. The U.K. would still have to comply with the Vienna Convention on Diplomatic Relations, which requires Brittan to help Ecuador obtain a place in London for its embassy. On this issue, legal blogger Carl Gardner writes, “it’s not obvious [the Vienna Convention] allows the U.K. to just de-recognize the current premises without helping arrange something new.” https://www.npr.org/blogs/thetwo-way/2012/08/16/158921721/cut-diplomatic-ties-hide-him-in-a-crate-how-might-assange-standoff-end.