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Assange asylum legal redux: what are we really talking about, here?

London police wait outside the main door of the Ecuadorean embassy, where WikiLeaks founder Julian Assange is holed up.
Credit: Will Oliver

Since Ecuador’s offer of asylum to Julian Assange Thursday morning, news outlets have been trying to crack the legal code surrounding the WikiLeaks founder’s fate.

Can the UK raid Ecuador’s embassy? How would Assange even get to Ecuador? What about diplomatic immunity? Which country’s laws apply here, and what's the role of international law?

In an effort to find clarity, GlobalPost broke down some of the basics.

Can Britain enter Ecuador's embassy to take custody of Assange?

In spite of the dramatic scene conjured by suggestions that the UK may "storm" Ecuador's London embassy, the reality is that "diplomatic premises are inviolable" under international law, according to Matthew Happold, a professor of public international law at the University of Luxembourg. The Guardian's Rajeev Syal also wrote a helpful guide on this question.

Thus, according to Happold, "Assange remains outside the reach of the UK authorities so long as he remains within the Ecuadorean embassy."

What are we talking about when we say "international law"?

In this case, the 1961 Vienna Convention on Diplomatic Relations. Both Ecuador and the UK are signatories. The convention "requires that diplomats respect their host State’s laws and regulations," Happold wrote in his analysis. It is arguable, then, that Ecuador itself could be violating the terms of the convention by harboring Assange. 

Can the UK suspend diplomatic immunity?

"All diplomatic relations are governed by bilateral or in some cases multilateral agreements," Dinah Shelton, a professor of international law, wrote to GlobalPost.

"If there is none that applies between the UK and Ecuador, the fall back position would be customary international law, which allows any country to declare diplomats personas non grata and expel them from the country. If they do so, the personnel of the embassy would continue to benefit from diplomatic immunity until they return to Ecuador."

However, Shelton added: "I would have to look into how this would affect Assange's status."

While reports have noted that the UK might invoke its domestic Diplomatic and Consular Premises Act of 1987 to justify taking action against Assange within embassy grounds, that act only allows for such action as permitted under international law.

What does the offer of asylum mean?

There have been various characterizations of the offer Assange received. Reuters — and initially, several other outlets — reported that Ecuador offered Assange “political asylum.” But while Ecuador’s foreign ministry cited potential “political persecution” as one of the reasons for offering asylum to Assange, the offer was in fact of “diplomatic asylum,” according to the Spanish text of the foreign ministry statement.

Why does that matter? Diplomatic asylum and political asylum aren’t the same thing. Asked how the two types of asylum compare, law professor Shelton remarked to GlobalPost: "Apples and oranges."

"Diplomatic asylum refers to who is granting while political asylum refers to the motivation," she wrote in an e-mail. Robert Sloane, an international law professor at Boston University, told the Associated Press that "political asylum would imply that Great Britain is persecuting [Assange] or threatens to persecute him." Diplomatic asylum, which does not award Assange any special status, leaves room for further negotiation between the countries, the AP reported.

Further, the diplomatic variety is uniquely recognized in Latin America, where many countries are signatories to the Convention on Diplomatic Asylum, according to Happold. The UK is not a signatory, and therefore not bound by its terms.

British Foreign Secretary William Hague pointed this out in remarks delivered Thursday:

“The UK does not accept the principle of diplomatic asylum. It is far from a universally accepted concept: the United Kingdom is not a party to any legal instruments which require us to recognise the grant of diplomatic asylum by a foreign embassy in this country. Moreover, it is well established that, even for those countries which do recognise diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts. And in this case that is clearly what is happening.”

Mariano Castillo, the news desk editor for Latin America at CNN, tweeted his agreement with Hague's characterization:


How would Assange leave the embassy for Ecuador?

Now, this is where the speculation has really come into play. Without safe passage from Britain — which the UK has said it will not grant — Assange can't make it to an airport without exposing himself to arrest. Could Ecuador award Assange diplomatic status? Smuggle him out of the embassy in an immunity-protected crate? As the Guardian says, it wouldn't be the first-ever attempt.

The moment Assange watchers are now anticipating is Sunday, 2 p.m. London time: that's when Assange is due to deliver a public statement from in front of Ecuador's embassy, WikiLeaks announced via Twitter.

How he plans to pull that off, we'll just have to wait and see.

More from GlobalPost: Ecuador's asylum statement decoded

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