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In an article in 1988 published in the Law Society Gazette, the author Carl Islam explains, with some rigour, the basis of immunity afforded to diplomatic and consular premises in Britain. The subject seems dry, until you realise the serious implications it poses to individuals such as Julian Assange, who sought refuge in the Ecuadorean embassy in violation of his bail conditions.
Islam begins with the principle of inviolability. “Inviolability guarantees the sanctity of diplomatic and consular premises.” Then, the warning. “While it does not place premises about the law, anybody who remains on diplomatic or consular premises can take refuge from the law.” Hence the need for changes to rectify such abuse.
The background to this change of heart and the need to embrace a qualification to such diplomatic immunities came in 1984. The British establishment was shaken that year by the activities of the Libyan People’s Bureau, which saw the killing of Woman Police Constable Fletcher from shots fired from the Bureau’s premises. Over the years, the LPB had been purportedly stockpiling weapons under the cover of immunity, ostensibly to deal with dissidents of the Gaddafi regime. While these were deemed gross abuses of diplomatic privileges granted by the Vienna Convention on Diplomatic Relations, the British found their hands tied.
The white paper of 1985 made it clear that the British authorities were keen on implementing a “firmer” policy on how the Vienna Convention was applied and “take administrative measures to deal with abuse of diplomatic premises and to limit the extent of mission premises in accordance with international law and practice.” Hence the passage of the Diplomatic and Consular Premises Act 1987 which would remove the diplomatic status of premises that were being misused. The Vienna Convention, while accepted as part of British law, is qualified as to the residence of the mission accepted in the country.
Ecuador’s foreign minister Ricardo Patino has been forceful about the stance on Assange and equally forceful towards the efforts being made by the British authorities to extract the Australian from the premises. “We are not a colony of Britain.” WikiLeaks has itself released a statement claiming that Assange’s rights to asylum are being compromised in this act of bullying.
The British response is both clever and sophistic – not so much to discredit the Ecuadorean mission as to discredit the premises the mission is being used for. In June, the Foreign Office did accept the embassy as diplomatic territory. As long as Assange was on the premises, he was “beyond the reach of police” (Guardian, Jun 20). Citing the DCPA signals a change of approach, though the Ecuadoreans could hardly be surprised. The Act grants the British government the power to determine the status of land for diplomatic and consular missions. Importantly, it controls sites, locations and places where those embassies might be established. Prior to the act’s passage, diplomatic missions might establish their premises in any part of the city, or allow premises to fall into decay, immune from the title aspirations of local authorities.
What are the options for Assange? The fact that Assange is on Ecuadorean premises, as it were, does not, of its own, accord him immunity from interference. Even if he was to be granted an Ecuadorean diplomatic passport, and become an Ecuadorean national, he would still not be beyond the reaches of British law. The irony of that would be that he could hardly seek asylum in a place of which he was a national. The second complicating feature of that would be that immunity from arrest is only applicable to diplomats accredited to the Court of St. James’s with the Foreign Office’s blessing.
Diplomatic immunity for consular missions has been previously revoked in spectacular fashion. The U.S. embassy in Teheran was occupied in 1979-1980 under a wave of fundamentalist fervour with the blessing of the Ayatollah Khomeini. The Vienna Convention became a mere piece of paper before the revolution. But the assumption underlying such diplomatic missions is that an unwarranted entry onto their premises is tantamount to an act of aggression. Sanctity is indispensable to good relations. Again Patino’s comments are on point. “If the measure announced in the British official communication is enacted, it will be interpreted by Ecuador as an unacceptable, unfriendly and hostile act and as an attempt against our sovereignty. It would force us to respond.”
As this situation develops, it is clear, however, that Assange’s options are few and far between. The question is how far the British authorities are willing to make the case that the Ecuador mission has abused its premises. While it is true that Assange has violated his bail conditions, he is merely a suspect before charges that have not even been formally laid. The gravity of his offences hardly qualify as matters of terrorist import, and it would be questionable whether the DCPA is being appropriately used. But that may well be something the local constabulary will disagree with.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com