Ecuador Seeks to Confer Diplomatic Status on Julian Assange: Does this Oblige the UK to Allow Him to Leave the Embassy & Is the Matter Headed to the ICJ?

There is a recent twist in the Julian Assange saga leading to new claims that the UK has the legal obligation to allow Assange to leave the Ecuadorian embassy in London without arresting him. In December, Ecuador granted Assange its nationality following which it then purported, this January, to appoint Julian Assange as one of its diplomats to the UK (see here). Apparently, the UK rejected that appointment. It has now been reported by Reuters that a legal team is working on filing a case at the International Court of Justice in order to have Assange’s Ecuadorean diplomatic status affirmed under international law. The strategy being pursued by Ecuador is a very interesting one raising tricky questions of diplomatic law. Undoubtedly, Ecuador was aware that the UK would seek to deny diplomatic status to Assange. However, Ecuador argues that what has happened is that while it has appointed Assange as a diplomat, what the UK has done is to declare him persona non grata, and that having done that, the UK now has an obligation to allow Assange to leave the UK within a reasonable period of time, whilst enjoying diplomatic immunities within that period of time.

There are a number of issues that arise as a result of these developments. First, is the issue of whether Ecuador has a unilateral right to appoint Assange as a member of its diplomatic staff, or whether instead, the approval of the UK was required for the conferral of diplomatic status on Assange. Second, assuming that Ecuador is right, and that as a matter of international law Assange did at some point in time have diplomatic status because of a unilateral right of appointment of Ecuador, does the rejection of his status by the UK impose an obligation on the UK to allow him to leave the embassy, and indeed leave the UK, with the immunities that a diplomat would ordinarily be entitled to. Third, is there a basis for the ICJ to hear and determine the matter between those two states?

Let me start with the question of ICJ jurisdiction. Both Ecuador and the UK are parties to the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes (1961) with both states ratifying the protocol in September 1964 within a few weeks of each other. By virtue of Article 1 of that Protocol, disputes arising out of the interpretation or application of the Vienna Convention “lie within the compulsory jurisdiction” of the ICJ. From the reporting it is unclear whether Ecuador has made the decision to take the case to the ICJ or whether the work is being done by Assange’s own legal team. However, it appears that there would be a basis for jurisdiction.

Did Ecuador Have a Unilateral Right to Appoint Assange as a Diplomat?

On January 10, the UK Foreign and Commonwealth Office is reported as having issued a statement that:

“The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request, nor are we in talks with Ecuador on this matter. Ecuador knows that the way to resolve this issue is for Julian Assange to leave the embassy to face justice.”

The question that arises is whether appointment of a diplomat by a sending state requires the agreement of the receiving state. In the Reuters piece of a couple of days ago, I am reported as having said that Ecuador could argue that Britain had no right under international law to reject its declaration that Assange had diplomatic status and that “‘[i]n principle, the U.K. cannot approve or disapprove’ diplomatic status declarations by foreign governments other than for ambassadors or military attaches”. While this is essentially correct, the matter is a bit more complicated and the qualifications and additional points I made in the interview were, unfortunately, left out in the reporting.

Under Article 7 of the Vienna Convention on Diplomatic Relations, “the sending state may freely appoint the members of the staff of the mission” without requiring the agreement of the receiving state. There are a number of exceptions to this rule. Under Art. 4 the agrément of the receiving state is required for accreditation of a head of mission; approval is also required for the approval of military attaches (Art. 7); and, significantly for Assange, receiving states may, under Art. 8(3), reserve the right to approve the appointment of “nationals of a third state who are not also nationals of the sending state.” Assange was until December 2017 in that third category and this is why Ecuador conferred nationality on him before appointing him as a diplomat. As long as there are no grounds to challenge that grant of Ecuadorian nationality (on which more below), Ecuador would be entitled to rely on its right to freely appoint him as a diplomat without the UK’s approval.

The UK has not disclosed the basis on which, in its words, it “did not grant [Ecuador’s] request” for diplomatic status. As stated above, there are no grounds in the Convention itself for denying Assange diplomatic status ab initio. What the Convention allows the UK to do is to declare Assange as persona non grata which in effect means that it is entitled to request that he be recalled or that his diplomatic functions (and therefore his diplomatic status) be terminated. Under Art. 9, once such a declaration is made then the sending state has an obligation to either recall the diplomatic agent or to terminate his diplomatic functions. Moreover, Art. 9 allows the receiving state to declare a person non grata even before his arrival in the territory of the receiving state, and this implies that in a case such as Assange’s, such a declaration can be made even before he takes up his functions.

It is not clear from the facts that have been reported at what point Ecuador sought for Assange to take up his functions as a diplomat. Under Art. 10 of the Vienna Convention, notification to the receiving state’s Foreign Ministry is required of the appointment of members of the mission and of their arrival. Given that the receiving state can declare that diplomat is persona non grata before their arrival and in effect prevent their entry, the person would, in such a case, never have diplomatic status within the receiving state. However, where the person is already within the receiving state when appointed, notification of the person’s engagement as a diplomat is still required (Art. 10(1)(d)) but there is no requirement of prior notification before the person takes up their functions. Indeed Art. 39(1) makes it clear that person entitled to diplomatic privileges and immunities shall enjoy them in the receiving state, “if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs”. As Denza puts it in her authoritative commentary on the Convention:

“Taking Article 10 together with Articles 7 and 39.1, and in the light of the negotiating history, it is clear that notification is not a limitation on the right of the sending State freely to appoint members of its diplomatic mission. If when appointed they are outside the territory of the receiving State, the Convention requires prior notification of their appointment only ‘where possible’. They may be declared persona non grata or unacceptable before their arrival, but if this has not happened, they are entitled to enter the territory of the receiving State and from the moment of entry they are entitled to privileges and immunities by virtue of Article 39.1. If already in the territory of the receiving State, however, their entitlement begins only when their appointment is notified.” (Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4^th ed., 2016, p. 76)

Thus, once the appointment of a person within the territory as a diplomat is notified to the receiving state, that person is from that moment entitled to diplomatic status and the corresponding privileges and immunities. One can only assume that Ecuador was astute enough to have communicated a notification rather than a “request” and that it was a notification of an immediate appointment rather than of a future one. If that is so, then under the Vienna Convention, Assange would have been entitled to diplomatic status, from that moment of notification (assuming the UK has no extra-conventional grounds to challenge ab initio such an appointment).

Denza notes that there was UK domestic case law which relied on Article 10 and held that the entitlement to diplomatic immunity was dependent on the acceptance of the individual concerned by the receiving state. However, she also notes that those cases were later overruled by the Court of Appeal in R v Secretary of State for the Home Department, ex parte Bagga and others [1991] 1 QB 485. In that case, Leggatt LJ stated that:

“There is nothing in the [UK Diplomatic Privileges] Act which imports any requirement of notification, nor any stipulation that a person is not to become a member of the staff of a mission until the Foreign Office has been informed of the fact that that has happened … it is clear from Article 10 that … notification is not constitutive of the status of a member of a mission, but a consequence of it. A priori there is therefore no ground for introducing a requirement for notification as a condition precedent to the acquisition of the status.” Page Id: 76

Recent English cases have also confirmed the freedom that sending states have to make appointments their diplomatic mission and also confirmed that there is no requirement of acceptance of these appointments by the receiving state for the person to enjoy diplomatic immunity. In Al Atiyya v Al Thani [2016] EWHC 212 (QB), which was discussed in this previous post on this blog, the judge spoke of “the sending state’s freedom of appointment under Article 7 [of the Vienna Convention]” (para. 78), and also stated that “acceptance is not an act that itself affords the immunity” (para. 74) Also, the Court of Appeal, in Al-Juffali v Estrada [2016] EWCA Civ 176,  reversed the High Court’s decision (also discussed here) which had adopted a “functional approach” to diplomatic recognition, and confirmed that diplomatic status accrues from the moment of notification of appointment by the sending state (particularly at paras. 15, 27 & 28).

Does the UK have the Obligation to let Assange leave the Embassy/UK if he has or had Diplomatic Status?

If the Ecuadorian position regarding appointment is correct then Assange would have become an Ecuadorian diplomat on notification of his appointment but the UK would then be taken to have declared him persona non grata, with the effect that Ecuador has a duty to terminate his diplomatic functions or recall him (Art. 9). However where a person’s diplomatic functions are terminated, they do not lose diplomatic immunities immediately, Art. 39(2) provides that such immunities:

“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on the expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.”

In addition, Art. 44 provides that:

“The receiving state must, even in case of armed conflict, grant facilities in order to enable person enjoying privileges and immunities . . . to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.”

We can now see why determining whether Assange obtained diplomatic status on notification, which was then terminated by a persona non grata declaration, or instead never attained that status because of a lack of UK approval is hugely important in this matter. If Assange had diplomatic status, even for the briefest of periods, which was then terminated these provisions suggest that (i) he must be accorded facilities for departure from the UK and (ii) he has diplomatic immunity for a reasonable period time to allow him to leave.

The provisions of the Convention looked at in isolation provide a more than plausible basis for the Ecuadorian claim, assuming that state did indeed notify the UK of Assange’s immediate appointment as opposed to indicating a future appointment.

The problem with the Convention position that a sending state can, without requiring approval of the receiving state, appoint a person as a member of diplomatic staff from a point determined by the sending state, is that there is a risk that states would abuse the diplomatic privileges and immunities accorded under the Convention by appointing someone as a member of diplomatic staff simply to confer on them those diplomatic immunities on a person accused of a crime in order to prevent them from facing judicial processes for acts committed prior to the appointment [see this earlier post by Philippa Webb]. However, the question is whether there is a remedy for preventing such abuse.

It might be argued that the Vienna Convention is not intended to be abused in this way and that in cases of abuse the receiving state is entitled to take steps to prevent it by denying recognition of the diplomatic status of the individual, or by failing to accord him or her the usual immunities. To my mind, making this argument would carry very significant legal risk. It would be the “nuclear option” because if the argument is accepted it carries within it the risk of undermining the very basis on which the Convention works. In the decentralised international legal system there would be the danger that any state could also choose to ignore the provisions of the Convention on the basis of allegations of abuse by other states. Furthermore, the idea of the Convention as a self-contained regime which provides within it the remedy for abuse (see The Tehran Hostages Case of the ICJ) would be undermined,  as states would then be using methods of self-help not within the Convention. Nonetheless, one can see why the statement of the ICJ in the Tehran Hostages case is not of particular comfort in a case such as this since it would be the very thing that is said to be a remedy (the ability of states to declare diplomats to be persona non grata) that would be the subject of abuse.

Perhaps in this particular case, further consideration may be given to how the relevant provisions of the Convention are to be interpreted where there is suspicion of abuse. For example, is there scope for interpreting the words “shall normally cease” as suggesting that there are cases where the immunities cease at an earlier point in time, and perhaps even immediately on declaration of the person as persona non grata. However, that argument would carry its own risk of abuse.

In this particular case, it may well be that the focus should be placed not so much on the appointment as a diplomat but rather on the conferral of nationality. It may be argued that the circumstances of the conferral of nationality, including the timing of the act and the purpose for which it was done, reveal an abuse of rights by Ecuador which would entitle the UK to reject or refuse to recognise, for the purposes of the Vienna Convention, the Ecuadorian nationality of Assange.  If this is correct, it would open up the possibility that Assange would continue to be treated as if he were not a national of Ecuador, in which case the UK’s consent would be needed for his approval as a diplomat (Ar.t 8(3)). The concept of abuse of rights is one which is well known to international law. Also, the idea that nationality conferred for abusive purposes may be denied recognition by other states in particular circumstances,  finds expression not only in the “genuine link” principle developed for purposes of diplomatic protection by the ICJ in the Nottebohm case, but also more recently in decisions of arbitral tribunals that have rejected nationalities of convenience in investment claims under international investment agreements. (See Casas, “Nationalities of Convenience, Personal Jurisdiction, and Access to Investor-State Dispute Settlement” [2016] 49 NYU J. Int. L & Pol. 63, at pp 114 et seq).

It remains to be seen whether the case will indeed go to the ICJ and whether we will get a definitive ruling on these tricky questions.