Posted: Thursday 21 June 2012
By Jamie Kerr
There has been a flurry of news reports around the decision by Wikileaks founder Julian Assange to claim asylum at the Embassy of Ecuador in London (perhaps notably in the middle of Refugee Week). The BBC is reporting that he will be arrested as soon as he steps foot outside of the Embassy http://www.bbc.co.uk/news/uk-18529726 Many are wondering why the authorities do not just go in and arrest him and this article aims to give a brief overview as to why this is not legally possible and looks at how similar scenarios have been resolved in the past.
So what is an Embassy? Essentially, it is the buildings/offices/grounds/compound where a diplomatic mission is based. A diplomatic mission is where representatives of one state are sent to represent that state’s interests in another state. The head of a diplomatic mission is usually an Ambassador, who is usually assisted by a number of other officials and staff members.
Embassies hold a very special status in international law. The modern concepts of the law surrounding Embassies are contained within the Vienna Convention on Diplomatic Relations 1961. The relevant aspect of the Convention for this discussion is Article 22 as it is this article that is preventing is British police from entering the Ecuadorian Embassy and removing Mr. Assange. It quite clearly states: “[T]he 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.” It is also interesting to note that the same article states that the premises of the mission as well as the means of transport of the mission (eg their diplomatic cars) are immune from being searched by the authorities in the receiving state.
Almost all states respect the laws surrounding their diplomats as they are mutually beneficial. If the British authorities entered the Embassy of Ecuador in London, then they would risk other countries entering (violating) British Embassies abroad. If this were to happen, then the entire system of international relations would collapse. The system only works on the basis of absolute inviolability of diplomatic missions (which includes Embassies and Consulates) and the ability of diplomats to work freely without the intervention of their host state.
So unless Mr. Assange voluntarily leaves the Embassy, or the Ecuadorian government put him out, there is nothing the British authorities are able to do to remove him from there. This raises the question as to how long he can stay there.
The most recent example of a similar situation is from May 2012. Blind Chinese dissident, Chen Guangchen, sought refuge in the US Embassy in Beijing, China. There was much international coverage of this http://www.bbc.co.uk/news/world-asia-china-17920910 and after one week, an agreement had been reached between the two governments that allowed Mr. Chen to voluntarily leave the Embassy before travelling to the USA to study law.
A more historic example is that of Cardinal József Mindszenty. He was the Catholic Primate in Hungary and after having been detained and tortured; he was tried for treason and sentenced to life imprisonment by the Communist regime in 1949. During the revolution in 1956, he was released and praised the anti-Communist insurgents. Days later, the Soviet army invaded Hungary and Cardinal Mindszenty sought asylum at the US Embassy. Given the inviolability of the Embassy, stalemate ensued and the Cardinal could not leave the Embassy grounds. He remained confined there for 15 years until 1971 when Pope Paul VI managed to broker a deal between the USA and the Soviets that allowed the Cardinal to go into exile in Austria.
So what is likely to happen to Mr. Assange? Perhaps unfortunately for him, the Embassy is essentially a small first floor flat in London consisting only of some small rooms. It does not have a compound and the Ecuadorian authorities would presumably struggle to accommodate him there on a long term basis. Despite the fact that the Embassy’s cars are also inviolable, Mr. Assange would have a problem getting into the car to go anywhere as this would involve leaving the Embassy, at which point he would not have the protections that the Embassy offers.
Given the circumstances, it is likely intense negotiations will be ongoing and they ensure that his stay at the Embassy will be short lived, not least given the practical difficulties of him staying longer in a small Embassy.