The announcement by Ecuador to grant political asylum to Julian Assange suggests that the diplomatic stand-off between Ecuador and the United Kingdom - which began last June when Assange took shelter in the Ecuadorian Embassy in London - could take some time to resolve. The dispute has focussed attention on the relevant international law rules, in particular the rule that embassy premises are inviolable. These rules are set out in the very widely accepted and observed Vienna Convention on Diplomatic Relations 1961 (VCDR), described as 'a cornerstone of the modern international legal order.'
The rule on inviolability means that agents of the receiving State (UK) cannot enter embassy premises without the consent of the head of mission. The Convention contains no exceptions to this rule. The sending State (Ecuador) is, however, under an obligation to respect the laws of the UK. Has Ecuador violated that obligation by its action in refusing to surrender Assange (who has broken the conditions of his bail)? The question if and when it might be permissible for a sending State to offer shelter to a fugitive in its embassy (the so called right of diplomatic asylum) is complex. There are no clear rules on the subject but, given the obligation to respect the laws of the receiving State, it is unlikely that nowadays many States would regard such action as compatible with a State's international legal obligations except, possibly, in rare cases where temporary asylum might be offered if there is an immediate danger to the life or safety of the fugitive.
Ecuador's conduct, however, cannot be regarded as sufficient in itself to justify the UK to enter the embassy premises without the consent of the ambassador. In the Case Concerning US Diplomatic and Consular Staff in Tehran (the US hostages case) 1980, the International Court of Justice stated that the rules on diplomatic immunity (including those on inviolability of diplomatic premises) are of a 'fundamental character' and that their integrity is 'vital for the security and well being of the complex international community of today'. Recalling the shooting of WPC Fletcher outside the Libyan People's Bureau in 1984, it is also notable that the UK has demonstrated considerable respect for the inviolability of diplomatic premises in the face of much greater provocation.
Safe passage out of the UK?
It is clear that the offer of political asylum by Ecuador does not affect the right of the UK (which is itself under an obligation to extradite Assange to Sweden) to arrest Assange were he to leave the Embassy. The diplomatic 'stand-off' has prompted speculation as to ways in which the Ecuadorians might secure his safe passage to Ecuador. One possibility mooted was for Ecuador to appoint Assange as a diplomat thus purportedly giving him personal inviolability and immunity from criminal jurisdiction. Such action could delay extradition and might involve the UK courts again but is unlikely to prevent the UK authorities from arresting him. It would be obvious that such an appointment was not bona fide and constituted a blatant device to evade the laws of the receiving State. A State is entitled to freely appoint its diplomats (with the exception of the head of mission where the consent of the receiving State must be obtained) but, in such circumstances, the UK Government may well judge that it would be within its rights in refusing to recognise such an appointment. In addition, international law prescribes that diplomats should, in principle, be of the nationality of the sending State and the receiving State may reserve the right for its consent to be obtained for the appointment of third country nationals.
What can the UK do if Ecuador continues with its refusal to hand over Assange?
There are examples of such stand-offs continuing for years. A voluntary settlement should be the favoured option, but are there any legal options the UK can take to remove inviolability? In this connection, there has been a rather puzzling reference to the Diplomatic and Consular Premises Act 1987. This confers a power on the Foreign Secretary to require diplomatic missions to seek express consent for premises to be regarded as 'used for the purposes of the mission' and to withdraw that consent in certain circumstances. However, the circumstances envisaged are somewhat different from those here. Moreover, the Foreign Secretary must be satisfied that to withdraw such consent 'would be permissible under international law.'
One possibility would be for the UK to break off diplomatic relations with Ecuador, thus bringing to an end the functions of the mission; inviolability would cease after a reasonable period has elapsed to enable the Ecuadorians to pack and depart, but the UK would still be obliged to 'respect and protect' the premises – an obligation falling short of full inviolability.
Ecuador would, no doubt, seek to appoint another State to represent its interests and take care of its embassy. In such circumstances, it may seek UK agreement for its embassy premises to become part of the protecting State's own diplomatic mission and thus retain their inviolability. It is clear that the rules require that the protecting State be one that is acceptable to the UK. It is also clear that it is not permissible for a receiving State to refuse to allow any protection of the interests of a State with which relations have been broken - but the question of whether or not it is obliged to accept such an arrangement with regard to embassy premises has not been tested.