On August 16, 2012, the Government of Ecuador made its decision to grant the petition for diplomatic asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom (“the Decision”).[1] The U.K. and Sweden challenge the legitimacy of this action, and this post will explore the issues relating to this dispute.[2]
The Decision sets forth a list of what it describes as 12 “fundamental principles of general international law” regarding asylum that purportedly support its grant of asylum. These principles are said to be derived from, and supported by, Ecuador’s own laws regarding asylum and 16 international treaties and declarations.
The Decision also states what it deems to be the relevant facts for the application along with a summary of Ecuador’s efforts to cooperate with the governments of the U.K., Sweden and the U.S. and the measures Ecuador will seek from the U.K. regarding Assange.
Let us examine these legal and factual assertions.
The Relevant Law
In its extensive legal discussion, the Decision fails even to mention what, in my opinion, is the essential first step in any such analysis: the International Court of Justice’s judgment in 1950 that diplomatic asylum was not part of general international law.
In Colombian-Peruvian Asylum Case, I.C.J. Rep. 1950, p. 266 (Nov. 20, 1950), the court concluded, “A decision to grant diplomatic asylum involves a derogation [or departure] from the sovereignty of [the territorial] . . . State [where the diplomatic premises are located]. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized [as a matter of general international law] unless its legal basis is established in each particular case.” Moreover, if the State granting diplomatic asylum had the “unilateral and definitive” authority to determine whether the offense of the asylum-seeker was a political or common crime, it would “aggravate . . . the derogation” and is “not inherent in the institution of diplomatic asylum.” (In addition, Judge Alvarez from Chile, dissenting in this case, said there also was no customary American international law of diplomatic asylum.)
Seven months later in the same case the ICJ rendered another judgment that stated, “The safety that arises out of [diplomatic] asylum cannot be construed as a protection against the laws and against the jurisdiction of legally constituted tribunals [of the host state].” (Haya de La Torre Case, I.C.J. Rep. 1951, p. 71 (June 13, 1951).)
Nor did Ecuador’s Decision refer in any way to the unsuccessful effort by Latin American countries to overrule the I.C.J. judgments by having diplomatic asylum recognized in the 1961 Vienna Convention on Diplomatic Relations or the unsuccessful U.N. effort to prepare and adopt an international, multilateral treaty on the subject of diplomatic asylum. In 1977 the U.N.’s International Law Commission concluded that there was not sufficient interest to justify any further work on the subject.
Another response to these ICJ rulings was an Inter-American Conference in Caracas, Venezuela on March 28, 1954, that adopted the text of the Inter-American Convention on Diplomatic Asylum. Today it is the only such treaty in the world, and Ecuador is one of the only 14 of the 35 states of the Organization of American States that have ratified that treaty.[3] In other words, 179 of the 193 U.N. member states have not adopted this or any similar treaty. The U.K. and Sweden, which are not in the Inter-American system, obviously are not parties to this treaty; nor is the U.S., which was eligible to sign and ratify. As a result, this treaty cannot and does not impose any legal obligations on the U.K., Sweden or the U.S.
It, therefore, is not too surprising that Ecuador’s Decision does not analyze the terms of this treaty for the current dispute although it is on the list of 16 international treaties and declarations that purportedly support the Decision.
Even more damning, the Decision does not address the clear problem facing all instances of diplomatic asylum, as pointed out in the ICJ judgment. A decision like Ecuador’s to grant asylum to someone in one of its embassies in a foreign country is at least a potential infringement upon the competence of that foreign country. Such an infringement or derogation cannot be ignored. Indeed, as discussed in a prior post, Article 41(1) of the Vienna Convention on Diplomatic Relations states that “it is the duty of all persons enjoying such [diplomatic] privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. . . .” In addition, Article 41(3) of that Convention provides that the “premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”
Instead of focusing on these clearly relevant legal issues, Ecuador’s Decision merely lists 15 other treaties and declarations that mention asylum while not offering direct legal support for the Decision. They are the following:
- All four of the countries involved in the current dispute are parties to the Convention Relating to the Status of Refugees, which is the major general treaty on refugees and asylum and which was discussed in a prior post. But it does not apply for various reasons. Assange cannot claim he has a “well-founded fear of persecution” on certain grounds in his home country of Australia, and the treaty excludes “any person with respect to whom there are serious reasons for considering that . . . [he] has committed a serious non-political crime [here, in Sweden] outside the country of refuge prior to his admission to that country as a refugee . . . .”
- Ecuador was a state party to five of the other cited treaties that mentioned asylum, but they are not relevant to the current application or grant of asylum.[4]
- Another four treaties mention asylum, but they are from other regions of the world, and Ecuador is not, and could not be, a state party to them.[5]
- One treaty does not mention asylum at all. Instead it is a treaty on the interpretation of treaties.[6]
- The last four of the 16 cited sources are declarations, not treaties, and thus are not sources of binding international legal obligations on any state.[7]
Nor is the possibility of the U.S.’ seeking or imposing the death penalty on Assange for the crime of making public secret U.S. documents “persecution” under international law. Under Article 6 (2) of the International Covenant on Civil and Political Rights, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant . . . . This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” [8]
The U.K. and Sweden as well as other countries in Europe, however, have a different opinion regarding the propriety of the death penalty after initially permitting such in Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953. This changed in 1985, when Protocol No. 6 to this treaty went into force and provided in Article 1, “The death penalty shall be abolished. No one shall be condemned to such penalty or execution.” [9]
As a result, those 46 European states that have ratified Protocol No.6, including the U.K. and Sweden, routinely deny requests to extradite suspects to the U.S. when there are true risks of the imposition of the death penalty.
Indeed, the U.S.’ extradition treaty with the European Union, to which both the U.K. and Sweden belong, expressly provides that when an offense for which extradition is sought is punishable by death under the law of the requesting state [here theoretically, the U.S.] but not under the law in the requested state [here theoretically, the U.K. or Sweden], the requested state may grant the extradition on condition that the death penalty shall not be imposed or if imposed shall not be carried out. A similar provision is included in the recent extradition treaty between the U.S. and the U.K.
Assange, therefore, cannot have a “well-founded fear” of imposition of the death penalty even if it were regarded as “persecution,” which it is not.
Perhaps Ecuador was implicitly suggesting that the 11 of the 16 listed instruments that occurred after the previously mentioned ICJ decision of 1950 changed the general international law regarding diplomatic asylum. The Decision hints at this when it said, “The lack of international convention or internal legislation of the States cannot be legitimately claimed to limit, impinge or deny the right to asylum.” But a recent treatise on public international law asserts that this type of asylum is not part of general international law as does a recent thesis at the University of Leiden, a contemporary expert and London’s Economist. Ecuador’s veiled contrary suggestion, I submit, is patently ridiculous.
The U.K. certainly disagrees with Ecuador’s legal argument.
On August 17th (the day after the grant of asylum), the U.K.’s Foreign Secretary William Hague stated that the U.K. “was disappointed” in this decision and would not allow Assange safe passage out of the country. “The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the [U.K.] is not a party to any legal instruments which require us to recognize the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established, even for those countries which do recognize diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts.” In addition, the U.K. has “painstakingly explained the extensive human rights safeguards built into our law.”
These points were reiterated at the August 24th OAS meeting by the UK’s Permanent Observer, Philip Barton. He said the U.K. was not party to the Inter-American Convention on Diplomatic Asylum, and “there is no legal basis for the [U.K.] to meet the request of . . . Ecuador to grant safe passage for Mr. Assange out of the [U.K.].” He also said the U.K. has advised Ecuador about “the safeguards in place under the European Convention on Human Rights, international law, European Union law and [U.K.] law [that] fully address the concerns raised by Mr. Assange and by . . . Ecuador.”
Observer Barton further told the OAS meeting representatives that the purported concern about Assange’s human rights upon extradition to Sweden was “completely unfounded,” and an “argument to this effect was comprehensively rejected by the courts in the UK.” The U.K. and Swedish courts “robustly implement and adhere to the highest standards of human rights protection.”
In any event, the Decision’s legal argument, in my opinion, is not persuasive.
The Relevant Facts
The Decision starts its statement of the relevant facts with the noncontroversial: Assange is a communication professional with international awards for his struggle for freedom of expression, freedom of press and human rights, and through WikLeaks he has publicized documents from different sources. The Decision then provides more contentious, and I think unfounded, assertions.
According to Ecuador’s Decision, the U.S. and other countries that produced these documents have threatened retaliation risking Assange’s safety, integrity and even his life and have refused to provide guarantees to protect his life and safety. Extradition of Assange to a third country outside the European Union [the U.S.] is feasible without the proper guarantees for his safety and personal integrity. If extradited to the U.S., Assange would not have a fair trial; he could be judged by a special or military court; and he probably would receive cruel and demeaning treatment and be condemned to a life sentence or the death penalty.
Other than stating the U.S. is not a party to the Inter-American Convention on Diplomatic Asylum and does not recognize the concept of diplomatic asylum, the U.S. has declined to comment on the merits of the dispute and has urged trilateral negotiations by the parties to resolve the dispute. There, however, is no credible evidence for Assange and Ecuador’s impugning the independence of fairness of the U.S. federal judicial system, and any risk of capital punishment in the U.S. would be eliminated by the European practice and law forbidding extradition to other countries where there is a risk of such punishment.
Any accusation against the independence and honesty of the U.K. courts is absurd. Indeed, Assange in 2011-2012 challenged his extradition to Sweden on the merits in the U.K. courts (magistrate’s court, High Court and Supreme Court) without any objection to the procedural rights he was accorded.
Ecuador’s Decision also has harsh allegations against the Swedish prosecutor’s office with respect to its ongoing investigation of Assange on criminal sexual charges. That office allegedly has prevented Assange from the total exercise of his legitimate right to defense to criminal charges. His procedural rights allegedly have been infringed during that investigation. Pretrial detention of Assange in Sweden would facilitate his extradition to a third country, i.e., the U.S.
Sweden has strongly rejected these charges. It did so at meetings with Ecuador’s Ambassador in Stockholm shortly after June 19th (when Assange arrived at the Ecuadorian Embassy in London) and on August 16th. This rebuttal, in part, emphasized that in the last months of 2010 Assange challenged the European Arrest Warrant on the merits in Swedish courts (district court, court of appeal and Supreme Court) without any objection to the procedural protections of Swedish law.
In addition, after Assange was in temporary “residence” at the Ecuadorian Embassy, Sweden rejected his offer to be interrogated at that Embassy with respect to the Swedish investigation. Sweden did so because it wanted to confront Assange in Sweden with the existing evidence and conduct supplementary interviews of others depending upon what Assange had to say. The Swedish prosecutors also wanted him in their country to assure his presence at any criminal trial that might result from the investigation, as required by their law.
At the OAS meeting on August 24th, a Swedish diplomat stressed that Sweden had an independent judiciary that needed to proceed with investigation of Assange’s alleged sexual offenses. There had been no request to Sweden for extradition to a third country, she added, but European and Swedish law prohibits extradition when there is a risk of capital punishment.
The Decision also says the governments of the U.K., Sweden and the U.S. will “not respect the international conventions and treaties and would give priority to internal laws of secondary hierarchy, contravening explicit norms of universal application.” It is difficult to understand exactly what Ecuador means by this allegation. If it means that the U.K., Sweden and the U.S. do not agree with Ecuador’s legal argument, then that is certainly correct.
In summary, there is no credible evidence to support the extreme accusations against the judicial systems of the U.K., Sweden and the U.S.
Conclusion
Ecuador’s granting of asylum to Assange, in my opinion, is wrong on the law and wrong on the facts. Indeed, there is speculation in the press that the real reason for President Correa’s deciding to grant “asylum” in this case was to enhance his own political standing in his own country for next year’s presidential election.
Other than litigating these issues before the International Court of Justice or arbitrating or mediating them before a neutral third party, the only other peaceful way to resolve this dispute is for the parties to do so through diplomatic negotiations, as recommended by the OAS on August 24th.
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[1] According to the Decision, Assange’s written asylum application was submitted on June 19th with a June 25th written supplement, but neither of these documents is publicly available. This secrecy seems more than ironic for the self-proclaimed advocate for public transparency and disclosure. It also is ironic for Ecuadorian President Correa, who is known for his hostility to the press, to be the defender and protector of Assange.
[2] A prior post set forth the background for this dispute, and another post discussed the issue of the inviolability of the Ecuadorian Embassy in London.
[3] The other 13 parties to the Inter-American Convention on Diplomatic Asylum are Argentina, Brazil, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.
[4] U.N. Charter, Art. 1(3) (one of U.N. purposes is achieving “universal cooperation in . . . promoting and encouraging respect for human rights”); American Convention on Human Rights, Art. 22.7 (“Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”); Inter-American Convention for Extradition (no extradition when “the person sought has been tried or sentenced or is to be tried before an extraordinary or ad hoc tribunal of the requesting State” (Art. 4.3) or when “the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons” (Art. 4.4) or when “persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons” (Art. 4.5): and Convention may not “be interpreted as a limitation on the right of asylum when its exercise is appropriate” (Art. 6)); Inter-American Convention on Territorial Asylum, (“Every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable” (Art. I); this includes persons who “are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offenses” (Art. II); no “obligation to surrender to another State, or to expel from its own territory, persons persecuted for political reasons or offenses” (Art. III); no extradition of persons “sought for political offenses, or for common offenses committed for political ends, or when extradition is solicited for predominantly political motives” (Art. IV)); Geneva Convention [IV] Relative to Protection of Civilian Persons in Time of War, Art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs”).
[5] African Charter on Human and Peoples’ Rights, Art. 12.3 (“Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions”); European Union Charter of Fundamental Rights, Art. 46 (“Every citizen of the [European] Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as t he nationals of that Member State”); European Convention on the Suppression of Terrorism, Art. 5 (“no obligation to extradite if the requested State has substantial grounds for believing that the request for extradition . . . has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”); European Extradition Treaty, Art. 3.1 (“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence”).
[6] Vienna Convention on the Law of Treaties, Art. 53 (“treaty is void if . . . it conflicts with a peremptory norm of general international law . . . . [i.e.,] a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”), Art. 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”), Art. 66(b) (A party to a “dispute concerning the application or the interpretation of article 53 or 64 may . . .submit it to the International Court of Justice for a decision”).
[7] Universal Declaration of Human Rights, Art. 14 (“Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the [U.N.]”);U.N. Declaration on Territorial Asylum (recommends territorial asylum practices include asylum for “persons struggling against colonialism” (Art. 1.1) , non-rejection of persons at the frontier and non-explusion to state where person may be subjected to persecution (Art. 3.1)); American Declaration of the Rights and Duties of Man, Art. 27 (“Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”); Cartegena Declaration (at 1984 meeting to discuss protection of refugees in Central America, Mexico & Panama, reiteration of “importance of non-refoulement (including the prohibition of rejection at the frontier)”).
[8] In addition, Article 1 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that “torture” “does not include pain or suffering arising from, inherent in or incidental to lawful sanctions.”
[9] It should be noted that Protocol No. 6 had an exception that allowed the death penalty in times of war, but in 1988, Protocol No. 13 to the European Human Rights Convention eliminated this exception. Both the U.K. and Sweden have ratified Protocol No. 13.
