DIPLOMATIC ASYLUM IS NOT UNIVERSALLY ACCEPTED AS PART OF CUSTOMARY INTERNATIONAL LAW

August 17, 2012 | By | Filed Under Features / Columnists, Peeping Tom 

The idea of spectacular and spine-chilling entry into the grounds of a foreign embassy by someone seeking refuge in a foreign embassy is the stuff of movies. And there have been many movies in which heroes and heroines are being chased by both official and unofficial persons and who manage to make their way into the foreign embassy and therefore towards freedom.
Such is the stuff of movies; reality is a little different. Ever since the late 1980’s when shots were allegedly fired from inside the Libyan embassy, the idea that foreign embassies are extra-territorial sovereign territories has long gone through the window.
If the Ecuadorians have not yet realized this, they soon will. They are holding tightly to the idea that any invasion of their embassy in London is tantamount to an act of aggression against their country, a violation of their sovereignty under the Vienna Convention and a breach of customary international law.
The Ecuadorians now find themselves at the center of a major diplomatic spat between themselves and the British Foreign Office. The British Foreign Secretary had made it clear that Britain has a binding obligation to extradite Julian Assange to Sweden where he is wanted for questioning into sexual assault allegations.
Assange sought asylum in the Ecuadorian embassy after having lost his appeal to overturn an order for him to be extradited to Sweden. That country is a member of the European Union and therefore the authorities in London are legally bound to ensure that Assange is extradited.
Obviously, the decision of the Ecuadorian left wing government to grant him political asylum complicates this arrangement. If the asylum was granted in another foreign country or in Ecuador itself there would not have been a problem but the problem arises precisely because Assange is holed up in the Ecuadorian embassy in London and the authorities are at the embassy’s doorsteps waiting to arrest him as soon as he leaves.
The Ecuadorians feel that he should not be arrested because he has been granted asylum. The British on the other hand indicate that they do not recognize the principle of diplomatic asylum.
This principle as has been reported is not universally acknowledged as being part of customary international law. Because it is hinged on the principle of extraterritoriality of the foreign embassy premises, it is not likely to find traction with the British because Assange had exhausted his appeals and was not being prosecuted in Britain.
The Ecuadorians have indicated that their decision to grant him asylum was invoked because of the risk of him being deported eventually to the United States where he could face the death penalty. However Britain is saying that the present dispute has nothing to do with the United States but with Britain’s obligations under its extradition laws.
Britain says it does not accept the principle of diplomatic asylum, and since that country has provisions under its law that allows it to de-recognize the special extra-territorial status of embassies in its country, there is a real diplomatic crisis brewing because to derecognize the extra-territorial status of the embassy would create unease internationally and raise other issues of international law.
But Britain has also made it clear that it will not allow Assange to leave the country. In fact it is widely speculated that he will be arrested as soon as he leaves the embassy or tries to get on a plane.  Britain has said he will not be allowed safe passage.
Britain is not likely to invade or derecognize the special status of the Ecuadorian embassy. That would risk international condemnation. What it will do is to apply a great deal of pressure on the authorities in Quito.
The Ecuadorians are not going to be allowed to shuttle Assange out of Britain.   This leaves them with only one other diplomatic option: to grant Assange diplomatic immunity by making him a member of the diplomatic staff. However, since these appointments have to be confirmed by the Foreign Office, this is an option that is not a realistic possibility.
As such, Ecuador’s case boils down to the degree to which diplomatic asylum is accepted as part of customary international law. There is no universal acceptance that it does.
Ecuador does not have the political muscle internationally to fend off the pressures that are going to be applied. That is unless it can gain the support of other countries particularly in Latin America.
It has had two months to obtain opinions on Assange’s request for political asylum and would have had to consider all the political ramifications. It seems that it may have missed the larger picture.
It will now have to devote a great deal of its time to try to wriggle out of this one because its case is quite honestly very weak and given its overall lack of international clout, it is not going to be easy for it to succeed in shuttling Assange out of Britain, at least not as long as its decision to grant the asylum can be argued as being in breach of the protocol of interfering in a country’s internal affairs.

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