Could Ecuador get Julian Assange out of the UK by giving him some mail to deliver?

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5

As mentioned in an answer to this question, the UK refused to declare Julian Assange an Ecuadorean diplomat, presumably as it would allow him to leave the Ecuadorean embassy and the UK without being subject to arrest (thanks to the provisions of the 1961 Vienna convention on Diplomatic Relations).

However, Article 27 of that convention (on diplomatic communications) also states:

1.The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher....

5.The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention.

6.The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

Couldn't the Ecuadorean ambassador get Mr. Assange out of the UK simply by handing him a plane ticket, a letter for the Ecuadorean Government, and an official document naming him an ad-hoc courier for the delivery of that letter?

Sneftel

Posted 2018-01-15T16:18:37.213

Reputation: 831

3In theory, yes. In practice, the police would immediately arrest him. – Valorum – 2018-01-15T16:52:25.093

23@Valorum If Ecuador believed that the UK was willing to so brazenly violate international law (seriously?), then they presumably wouldn't have bothered with the diplomat angle. – Sneftel – 2018-01-15T16:55:39.113

4Despite being exceptionally dishonorable, and an affront to the rule of law that most western democracies pretend to follow, @Valorum is probably right. It's far more likely that they would simply arrest him, with the calculated belief that the political fallout would be short lived, than follow their treaty obligations and be seen to 'lose'. – Jack Of All Trades 234 – 2018-01-15T17:34:47.840

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@JackOfAllTrades234 Would they also force a judge, at gunpoint, to ignore the UK's own 1964 Diplomatic Privileges Act? One can assume as much lawlessness as one wants, but in a nation generally known for respecting the rule of law, that comes off as more reactionary than explanatory.

– Sneftel – 2018-01-15T17:42:10.813

30Remember, the convention which protects diplomats is the same one which protects the embassy itself (and, by extension, Assange). Any answer of the form "The UK's jackbooted thugs would just ignore the law" would need to additionally explain why they haven't done so thus far. – Sneftel – 2018-01-15T17:49:32.347

49Ecuador could, in theory, also send him out inside a diplomatic bag, which is protected against search and seizure. It has happened before and seems more viable than making him a courier (it is doubtful whether any country can make some non-diplomat already present in the host country an ad hoc courier). – chirlu – 2018-01-15T18:02:17.767

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The UK has historically had no qualms about violating diplomatic immunities https://en.wikipedia.org/wiki/Triplex_(espionage) It also isn't clear to me whether they are one of the nations that declares exceptions to the rules, like them only applying to the embassy nation's citizens. https://en.wikipedia.org/wiki/Diplomatic_immunity#Exceptions_to_the_Vienna_Convention

– Jack Of All Trades 234 – 2018-01-15T18:03:52.833

6@chirlu AFAICT, allowing the embassy to make some random dude into an ad-hoc courier is the primary purpose of that paragraph. Otherwise the embassy would have to maintain a permanent staff of diplomatic couriers, approved as diplomats in every country they might need to go to. Still, maybe that's the answer? Feel free to post it as one! – Sneftel – 2018-01-15T18:21:36.730

30On a first glance, I misread the title of this question as asking if Ecuador could get Julian Assange out of the UK by mailing him. Actual question is slightly more disappointing. +1 anyway for the chuckle. – tonysdg – 2018-01-15T19:44:03.413

1@Sneftel in practice, couriers are based in the sending country, and travel out to the receiving country to deliver or collect diplomatic bags. So the embassy doesn't maintain a permanent staff of couriers, but the sending country does. In the UK they are (rather grandly) called "Queen's messengers", there are about 18 of them, mostly ex-army officers. – James K – 2018-01-15T21:26:36.640

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@chirlu The UK has, at least once, opened a diplomatic "bag" that was being used to smuggle a person, though Wikipedia claims the bag (actually, a large wooden crate) wasn't properly labelled so wasn't actually diplomatic mail.

– David Richerby – 2018-01-15T21:58:49.140

1@JackOfAllTrades234 find a better example than something which happened during a declared war. – RonJohn – 2018-01-16T04:19:46.280

From the sound ofthings, if they could they would, just to get rid of him. – pojo-guy – 2018-01-16T04:46:35.713

3@WS2 The point of this question is whether Ecuador could employ the tactic described above. Let's not get off-topic. – Sneftel – 2018-01-17T12:05:26.960

1@tonysdg "Sorry, we tried to deliver but you weren't in. Please find the parcel at your nearest depot: <Guantanamo Bay>" – Bilkokuya – 2018-01-19T12:46:42.223

Answers

45

No.

International treaties do not have force of law. The actual statute that has force of law in the relevant jurusdiction, i.e. the U.K. where the U.K. police would be acting, is The Diplomatic Privileges Act 1964.

This imports parts of the Vienna Convention into law, the parts that are explicitly given in the schedule to the Act, and makes several modifications (mostly translating terms from terminology used in the Convention to terminology used in U.K. law) and additions along the way.

The most interesting additions here are:

  • the idea that the Sovereign can, by dint of an Order In Council laid before Parliament, withdraw immunities and privileges as xe sees proper from "such persons as connected with" the diplomatic mission, as stated in § 3 of the Act; and
  • the idea that the Secretary of State gets to provide conclusive evidence for settling any questions of whether someone is entitled to privileges, as stated in § 4 of the Act.

So whilst Ecuador could assign Assange courier status, the U.K. could, under its own law, in response (or even proactively) determine that that was not "proper", promptly have an Order In Council declaring the privileged courier status withdrawn, and have the Secretary Of State conclusively certify that loss of courier status.

This is not a violation of the law. It is not even a violation of the terms of the convention, which does not require that any choice of couriers be allowed by receiving states any more than it requires that receiving states allow any choice of heads of missions.

To put it another way: The law grants privileges to diplomatic couriers, but it does not guarantee that anyone at all can get diplomatic courier status. ad hoc is not ad libitum.

Indeed, although it had not been abused enough by the time of the 1961 Convention for states to consider it worthwhile explicitly laying out that the rules about personae non gratae could be applied to diplomatic couriers, even though it was generally considered that they could, later draft articles from the International Law Commission explicitly dealt with this subject, clearly supporting the notion that the U.K. can follow U.K. law in this way and proactively or immediately deny Assange diplomatic courier status. These articles were instigated precisely because some states were seeing diplomatic bags and diplomatic courier statuses being abused.

Here are Article 11 and Article 12 of a 1989 set of articles drafted by the International Law Commission, addressing this point and clearly indicating the way that the wind blows on this issue:

Article 11. End of the functions of the diplomatic courier

The functions of the diplomatic courier come to an end, inter alia, upon:

(a) […];

(b) […];

(c) notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 12, it ceases to recognize him as a diplomatic courier.

Article 12. The diplomatic courier declared persona non grata or not acceptable

1. The receiving State may, at any time and without having to explain its decision, notify the sending State that the diplomatic courier is persona non grata or not acceptable. […]

Observe that that very same text from article 12 is article 9 of the 1961 Vienna Convention.

It is not just "some mail", either. It is a diplomatic bag, which is a communication of a particular nature. Its nature raises another political consideration that militates against this idea: It would not be politically astute of Ecuador to entrust state secret communications to someone known for the practice of leaking them.

Further reading

JdeBP

Posted 2018-01-15T16:18:37.213

Reputation: 1 899

Thanks for the great description and comprehensive sourcing! This is a great answer. – Sneftel – 2018-01-17T14:44:20.460

1One clarification question: You mention later "draft articles from the ILC"... are these binding on UK law in any way? – Sneftel – 2018-01-17T14:45:51.253

(and/or, could they be used by a UK court in interpreting UK law?) – Sneftel – 2018-01-17T14:56:34.787

Re your final paragraph, I think it's clear that "some mail" in the question title is just a cute way of saying "a diplomatic pouch". – David Richerby – 2018-01-17T15:36:13.147

@DavidRicherby Aye, but it's relevant for the distinction to be made, because it sets up that wonderful point about leaking state secrets! – owjburnham – 2018-01-17T15:43:39.587

I don't think this says quite what you claim it does. What is the definition of "receiving state"? If it's "state that receives the piece of mail and accompanying courier", then the "receiving state" would be Ecuador, and everything you state says that all of the power is in their hands. In essence, Ecuador would be both sending and receiving state if these terms refer to the mail delivery itself. – zibadawa timmy – 2018-01-17T20:42:59.440

4@zibadawatimmy The receiving state is the one in which the courier is claiming diplomatic protection. – David Richerby – 2018-01-17T21:27:12.547

What is "xe"? withdraw immunities and privileges as xe sees proper That's a typo, right? – CJ Dennis – 2018-01-19T00:26:29.683

@CJDennis it sounds suspiciously like (s)he... – jwenting – 2018-01-19T08:43:28.470

1Wrong. (-: – JdeBP – 2018-01-19T09:56:00.220

58

From the pre-amble to the convention:

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,

The purpose of allowing a country to nominate a courier to carry mail is to allow for the delivery of mail from a mission without it being intercepted by the host country. The purpose is not to use it as a loophole to prevent the arrest of an individual or get around the provisions of Article 9. The Treaty needs to be read as a whole, and not picked apart.

As for what would happen, that would be speculation. Most likely he would arrested. He would then wait in jail for a judge to decide his fate with reference to the 1964 act which incorportated the Vienna conventions into English Law, and the existing charge of jumping bail.

James K

Posted 2018-01-15T16:18:37.213

Reputation: 70 324

10In that case, why hasn't the UK already arrested him, arguing that the purpose of an embassy is not to prevent the arrest of an individual? – Sneftel – 2018-01-15T18:32:11.210

23@Sneftel That's probably setting too bad a precedent in terms of how other states could treat UK diplomatic missions, whereas the Assange situation isn't one they think they'll get in to. – origimbo – 2018-01-15T18:43:07.173

29@Sneftel also, in the current situation if the UK does nothing then the status quo is maintained (Assange is not in custody, but he is effectively locked in at the ambassy). If Assange were used as a courier, doing nothing would mean that Assange would escape and get definitely out of reach from the UK police. – SJuan76 – 2018-01-15T19:26:07.833

2According to a U.N ruling, the U.K government is obligated to give him free passage to any country he wants. So the U.K government is clearly breaking international laws. – dan-klasson – 2018-01-16T10:54:46.260

4

The whole thing about the status of the UN Working Group opinion has already been done to death in comments on anther answer that have been moved to chat Please, we don't need to repeat it here.

– David Richerby – 2018-01-16T18:51:24.377

2Preambles often aren't legally binding, they at most give some guidance on how to deal with ambiguity in the actual legal text. What is the legal status of this specific preamble? – Nobody – 2018-01-16T22:36:21.157

1"He would then wait in jail for a judge to decide his fate with reference to the 1964 act" What happened in 1964? – Acccumulation – 2018-01-16T23:09:23.600

@dan-klasson that UN statement isn't law, certainly not in the UK. It's not even an international treaty, let alone one to which the UK is a signatory. Thus the UK is in no way bound by it, just as Israel is in no way bound by the multitude of UN statements calling for its destruction. – jwenting – 2018-01-19T08:46:14.133

17

Theoretically they could, since the sending state, in this case Ecuador, can appoint any individual as its courier under article 27.6 of the Vienna Convention. Assange would then be free to carry his pouch (which presumably contains a genuine letter to the President of Ecuador thanking him for his hospitality) without let or hindrance to the nearest convenient airport.

In practice, however there are a number of distinct outcomes, none of which are especially favourable to Assange.

  • The most likely outcome is that the UK would simply arrest him, arguably in violation of the Vienna Convention, trusting that the inevitable judicial review and appeal would land in their favour. Since Mr Assange has a history of skipping bail, it's unlikely the courts would offer this to him, meaning that he'd remain in jail for a minimum of 2-3 years while the case drags through the courts (noting that the guideline sentence for bail evasion is 12 months). Recently the courts ruled in favour of the government in another case where diplomatic immunity was abused.

  • The UK could take affront to this blatant misuse of the Vienna Convention and immediately break off diplomatic relations with Ecuador. At that point, its courier would no longer enjoy the protection of the Vienna Convention and could be arrested with impunity. After a brief period of "discussion", relations could be recommenced.

  • Assange's immunity only applies as long as he has a letter to deliver. Were the police to remove it from his hand and put it unmolested back through the door of the embassy, it's legally arguable that his immunity would be at an end.

    The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.

At best the Ecuadorian government could make noises about being unhappy if he was arrested. The greater threat is that if the UK did act, it would harm its ability to argue that its own couriers should enjoy inviolability

Valorum

Posted 2018-01-15T16:18:37.213

Reputation: 2 443

1

Comments are not for extended discussion; this conversation has been moved to chat.

– Philipp – 2018-01-16T12:46:15.023

1Your points two and three are a clear violation of the meaning of the Convention. One cannot simply break a contract whenever one wants and then not be obligated by the terms of the contract. – Acccumulation – 2018-01-16T23:23:08.157

2@Acccumulation - Like many international agreements, any party can breach them at any time while facing no sanction other than the opprobrium of their peers and the repercussions of others breaching them in the same way. For the record, point 2 would certainly be no worse a technical violation of the Vienna Agreement than making a wanted criminal into a courier for the afternoon. – Valorum – 2018-01-16T23:28:34.367

"Like many international agreements, any party can breach them at any time while facing no sanction other than the opprobrium of their peers and the repercussions of others breaching them in the same way." And other retaliation. And this makes 2 and 3 simply wordier versions of 1. "For the record, point 2 would certainly be no worse a technical violation" It would be worse. Do you have a citation for the claim that the Convention allows any party to abrogate it at any time? – Acccumulation – 2018-01-16T23:58:01.700

1

@Acccumulation - As opposed to what? The only reason these agreements work is because they're mutually agreed to be acceptable. If one party wants to break them, they can break them. The Spanish recently searched a UK diplomatic pouch in violation of the Vienna Convention and the only ill consequence was some harsh words. No-one's going to go to war over Assange.

– Valorum – 2018-01-17T00:02:32.290

1

@Acccumulation - A technical breach of the convention can be arbitrated by the International Court of Justice, but there's no obligation for the offending party to turn up, rendering the case un-hearable (https://en.wikipedia.org/wiki/Nicaragua_v._United_States). And even if the case goes against Britain, it can simply ignore the findings and/or use its veto in the main UN council.

– Valorum – 2018-01-17T00:11:37.107

1@Valorum I don't think stealing a letter from a diplomatic courier is fair-game. Even if it is physically in his hand, and gets snatched out of it. – bobsburner – 2020-01-10T16:05:22.603

@bobsburner - International rules are only rules because both sides agree to abide by them. Unless you're willing/able to punish the other side for breaking them, they're just words – Valorum – 2020-01-10T17:13:30.100

I mean to say that if you're stealing a letter from a diplomatic courier so that you can arrest him, you might as well just arrest him. Heck, might as well just barge in the door and get him. – bobsburner – 2020-01-13T09:07:58.233

@bobsburner - Ah, but you're forgetting that the UK is a nation of laws. – Valorum – 2020-01-13T09:11:10.950

0

The answer to this question has more to do with politics than law, I think, and I'll answer it based on recent events.

Q: Provided the 1961 Vienna convention on Diplomatic Relations, would give Assange legal protection, could he use this protection to make a getaway? A: Probably not.

In 2013 the USA pressured 3 sovereign first world nations (France, Italy, and Spain) to close their airspace to the presidential plane of a fourth sovereign nation, namely Bolivia. Then the USA bullied Austria, where the plane was forced to land to refuel, to search the plane for Edward Snowden. (Wikipedia entry) Meanwhile Evo Morales, the president of Bolivia gave a press conference.

The Americans didn't (have the opportunity to) do this sneakily, all of it happened in broad daylight and was reported by media outlets worldwide. Closing one's airspace to a presidential airplane presumably entails threatening to shoot if it tries to fly over, and is pretty big news.

The actions of the USA and the four EU countries may have been illegal, all of it was certainly highly unusual. However the whole episode seems to have had zero consequences: shoulders were shrugged, America's status as world bully was again asserted, life went on.

So if the USA can step on the president of a country, who certainly has real diplomatic immunity, I'd say Assange has no chance.

Fun fact: Assange was the source of the leak that Snowden was on the Bolivian airplane.

Ivana

Posted 2018-01-15T16:18:37.213

Reputation: 249

Why the down-vote? Had the question been "Could Stevie Wonder see the Berlin Wall after this revolutionary new eye-treatment?" Surely the only correct answer would be "Regardless of the merits of that eye-treatment, he could not, because it's gone". – Ivana – 2018-02-13T22:32:43.873