Its decision to grant diplomatic asylum to WikiLeaks founder Julian Assange is not without legal justification

WikiLeaks founder Julian Assange sought asylum in the Ecuadorian embassy in London on June 19 soon after he lost a legal battle before the British courts to prevent his extradition to Sweden, where he faces charges of committing sexual offences. Though the Ecuadorian government subsequently announced it was granting him diplomatic asylum, its decision raised several questions relating to the status of asylum in international relations.

A long-standing notion in international law, asylum as an institution is regulated today by the 1951 Refugee Convention. Its primary concern is with territorial asylum, i.e., a state granting refugee status to someone who is found to be on its territory or at the borders of its territory. However, the grant of asylum on diplomatic premises — diplomatic asylum — is argued not to have the same general legal status under international law as territorial asylum. Having entered the embassy of Ecuador in London and having been granted asylum, Mr. Assange’s status is considered as an asylee under diplomatic asylum. There are many examples of people seeking asylum on the diplomatic premises of countries, including Britain and the United States. In 1949, Victor Raul Haya de la Torre, leader of a Peruvian movement, sought asylum in the Colombian embassy in Lima. This matter went to the International Court of Justice (ICJ) which held that there is no rule under international law permitting diplomatic asylum and that legal basis has to be established in each case. Despite the absence of recognition for diplomatic asylum under general international law, Ecuador’s decision granting asylum to Mr. Assange is in accordance with the practice prevalent in Latin America and also in accordance with the Organization of American States (OAS) Convention on Diplomatic Asylum of 1954 to which Ecuador became a party in 1955. Under that Convention, states parties recognise the institution of diplomatic asylum. Britain’s arguments for non recognition of diplomatic asylum rely on the fact that it is not a party to any treaty which provides for diplomatic asylum and that the OAS Convention is meant only for its member states. As for the ICJ judgment in the Haya de la Torre case, international law does not provide for the possibility that the absence of a rule under general international law will prevail over the presence of rule in a regional convention or vice-versa. Further, there is no such clear hierarchy between the general and regional legal frameworks under international law.

Thus, despite the absence of general international law providing for diplomatic asylum, there is a general acceptance of the institution of asylum under international law of which diplomatic asylum is a variant. As such, the United Kingdom has an obligation to recognise the institution of asylum under general international law while evaluating the claims being made by Mr. Assange and the Ecuadorian government.

While arguing against diplomatic asylum, the U.K. also informed the Ecuadorian government of the possibility of arresting Mr. Assange by entering the embassy premises in London. It cited its own national legislation, the Diplomatic Consular Premises Act of 1987, which authorises the U.K. government to revoke diplomatic immunities and privileges. Under international law, diplomatic immunities and privileges are governed by the Vienna Convention on Diplomatic Relations of 1961. This Convention provides for the inviolability of diplomatic premises. This rule is strictly followed by states with rare exceptions. In general, an embassy’s premises may not be entered unless it is established that the actions of the diplomatic mission are not in accordance with its obligations under the Vienna Convention on Diplomatic Relations.

The Vienna Convention says that diplomatic missions should respect local laws and their activities should not interfere in the internal affairs of a state. In Mr. Assange’s case, the U.K.’s arguments could be that it has a legal obligation to execute a European arrest warrant and that the actions of the Ecuadorian embassy amount to disrespect for the laws of the U.K. and interfere in its internal affairs. The institution of asylum is inherently international in character, though it is for a state to decide whether or not to grant asylum, notwithstanding the customary international law status of nonrefoulement — the principle of not sending back asylum seekers. Categorising Ecuador’s decision to grant diplomatic asylum to Mr. Assange as disrespecting the local laws of the U.K. and as interference in its internal affairs is untenable, thereby justifying a forced entry by the police is untenable. The Vienna Convention is considered a self-contained regime, which means that it provides for the necessary remedial mechanisms in the event of violation of obligations arising out of it. Thus, the U.K. can at best declare all members of the embassy as persona non grata, which may lead to the closure of the Ecuadorian embassy. This, in turn, may facilitate the arrest of Mr. Assange in the absence of any Ecuadorian diplomatic personnel.

The options

Traditionally, asylum is granted to those who face threat of persecution for political and other reasons but not for the ordinary crimes. Mr. Assange argues that if he is extradited to Sweden for the alleged sexual offences, he would then be further extradited to the U.S. where he fears he would be prosecuted for the leakage of diplomatic cables and where there is a threat of facing death penalty. However, this cannot take away from Stockholm’s argument for his prosecution for sexual offences in Sweden for which, if convicted, he would have to undergo punishment. In this respect, Ecuador has already offered Sweden the option of questioning Mr. Assange within its embassy premises in London or even Stockholm. Sweden has refused to accept this. The other option available is for Sweden and the U.K. to provide diplomatic assurances to Ecuador, without violating their domestic and international legal obligations, that Mr. Assange will not be extradited to the U.S. Were he to be sent to the U.S., there is clear threat of persecution for his actions involving the dissemination of American diplomatic cables. Which, in all probability, would satisfy the legal requirement of subscribing to a political opinion and leading to persecution which necessarily justifies the status of asylum.

If there is such an assurance from Sweden and the U.K., it becomes untenable for Mr. Assange to argue against extradition. In the absence of such a response from Sweden and the U.K., however, Mr. Assange’s apprehensions constitute grounds for granting asylum within the international human rights framework. Therefore, Ecuador’s decision to grant diplomatic asylum to him is not without legal justification.

(Srinivas Burra is Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi.)

This article has been corrected for an editing error.

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