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

  • 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?

    In theory, yes. In practice, the police would immediately arrest him.

    @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.

    Despite 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'.

    @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.

    Remember, 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.

    Ecuador 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).

    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

    @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!

    On 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.

    @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.

    @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.

    @JackOfAllTrades234 find a better example than something which happened during a declared war.

    From the sound ofthings, if they could they would, just to get rid of him.

    @WS2 The point of this question is whether Ecuador could employ the tactic described above. Let's not get off-topic.

    @tonysdg "Sorry, we tried to deliver but you weren't in. Please find the parcel at your nearest depot: "

  • JdeBP

    JdeBP Correct answer

    4 years ago

    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

    Thanks for the great description and comprehensive sourcing! This is a great answer.

    One clarification question: You mention later "draft articles from the ILC"... are these binding on UK law in any way?

    (and/or, could they be used by a UK court in interpreting UK law?)

    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".

    @DavidRicherby Aye, but it's relevant for the distinction to be made, because it sets up that wonderful point about leaking state secrets!

    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.

    @zibadawatimmy The receiving state is the one in which the courier is claiming diplomatic protection.

    What is "xe"? _withdraw immunities and privileges as **xe** sees proper_ That's a typo, right?

    @CJDennis it sounds suspiciously like (s)he...

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Content dated before 7/24/2021 11:53 AM