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

Question

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?

Answer 1

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.

Answer 2

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

• Eileen Denza (2016). "Diplomatic Couriers". Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations. Oxford commentaries on international law. Oxford University Press. ISBN 9780198703969. pp. 208–211.
• International Law Commission (1989). "Draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by Diplomatic Courier and Draft Optional Protocols thereto, with commentaries". Yearbook of the International Law Commission. United Nations.
• Dapo Akande (2012-08-17). The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy?. Web log of the European Journal of International Law.
• Biswanath Sen (1988). "Diplomatic Immunities and Privileges". A Diplomat's Handbook of International Law and Practice. 3rd Edition. Martinus Nijhoff. ISBN 9789024736478. .

Answer 3

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

Answer 4

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.