Ecuador and Assange 409


It is for the government of Ecuador, not the UK, to determine who is an Ecuadorian citizen. It is for the government of Ecuador, not the UK, to determine who is an Ecuadorian diplomat.

It is not in the least unusual for Julian Assange to become an Ecuadorian citizen. Having been granted political asylum, and having lived for over five years under Ecuadorian jurisdiction, naturalisation is a perfectly normal step. There are a great many refugees in this country who are now naturalised UK citizens. Julian appears suitably proud of his new citizenship, and rightly so.

The Foreign and Commonwealth Office appears to be putting out a story that it has refused to accredit Assange as an Ecuadorian diplomat. As the Guardian reports:
“Earlier this week the UK’s Foreign Office revealed that Ecuador had asked for Assange, who was born in Australia, to be accredited as a diplomat. The request was dismissed.”

I have no knowledge that the Ecuadorian government ever notified Assange as a member of diplomatic staff of its mission. But it has every right to appoint Assange, now an Ecuadorian citizen, as an Ecuadorian diplomat if it so chooses. Ecuador cannot tell the UK who may or may not be a British diplomat, and the converse applies.

The Vienna Convention on Diplomatic Relations – to which the UK and Ecuador are both party – is the governing international law and determines the obligations to respect diplomatic immunity. It is crystal clear (Article 4,1) that the need to obtain agreement in advance of the receiving state only applies to the Head of Mission – ie the Ecuadorian Ambassador. For other staff of the mission the sending state (in this case, Ecuador) “may freely appoint” the other members of the mission, (Article 7), subject to provisos in Articles 5,8,9 and 11. Plainly the only one of these which applies in the Assange case is Article 9. Julian Assange is persona non grata – unwelcome -to the UK government. That is a legitimate reply to notification, but comes following the appointment; it does not pre-empt the appointment.

Here is the key point. A member of staff below head of mission can already have entered the country before appointment, and their diplomatic immunity starts from the moment their appointment is notified, and NOT from the moment it is accepted. Article 39 (i) could not be plainer:

1.Every person entitled to privileges and immunities shall enjoy them from the moment he enters
the territory of the receiving State on proceeding to take up his post or, if already in its territory, from
the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry
as may be agreed.

So to summarise.

There is no requirement for prior approval before arrival of staff below Ambassador, and it is just a notification regime (Article 10). If the FCO is telling the truth and Ecuador notified the UK of its appointment of Julian Assange as a member of diplomatic staff, the UK can only have refused by declaring Assange persona non grata. That does not remove his diplomatic immunity which started the moment he was notified. It continues until he has been given the chance to leave the country in “a reasonable time”. (Article 9.2, and 39.2).

The immunity of envoys has been universally regarded as essential to inter-state relations for thousands of years. The reasons why that immunity must start at notification are obvious if you think it through. The FCO bragging about refusing the alleged Ecuadorian request has been carried in virtually the entire neo-liberal media. Not one article, anywhere, has reflected anything approaching the applicable legal arguments. I am again left wondering whether mainstream media journalists are simply entirely incompetent, or deeply corrupt.

I suppose both.


409 thoughts on “Ecuador and Assange

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  • Abel kotze

    They should appoint him as ambassador to Sweden. That will give them something to chew on!

  • SA

    To continue from a previous thread of the BBC bias with regards to Syria. Yesterday on weekend world on Radio 4 Matthew Price introduced three people from Syria to outline the plight of the residence of Idlib, the last province in Syria where the ‘rebels’ predominate. It started with a man called Abdul Kafi Alhamdo, who claims to be a teacher. He has appeared on BBC before and CNN and Aljazeera. He was apparently in Aleppo and then evacuated to Idlib. His style was extremely dramatic with little actual contents except to say how dire the situation was for civilians. Then he was followed by a woman called Khayriya explaining how civilians were suffering because of Russian and Syrian army bombardment followed by Sarah who reiterated the same from what seemed like a written script. This was then rounded up by more talking from Mr Alhamdo. Then Mathew Price interviewed an expert from Chatham House. Lena Katib who reiterated the same pro rebel stance.

    I would not in any way like to belittle the sufferings of civilians caught in this desperate situation but several points struck me about this report:
    1. There was no balance, the point of view of the Syrian government or even ordinary Syrian people in government areas was not sought for balance.
    2. The fact that Idlib is occupied by many factions, but that the predominant one is Hayat Tahrir Al Sham (HTS), which is Al Qaeda in Syria, was not mentioned. This gave the impression that the Syrian Army was vicariously bombarded innocent defenseless civilians. The predominance of HTS in Idlib is well known and was clearly mentioned by Brett McGurk six months ago.
    https://www.youtube.com/watch?v=EsA-j9HTbrg
    see at 53 minutes into video.
    The BBC fails to mention this basic fact showing either ignorance or clear bias.
    3. Mr Alhamdo is a well know activist who has appeared before on BBC, CNN and Aljazeera, usually prophesying doom and genocide and massacres in Aleppo, Idlib and Easter Ghouta, areas occupied by the rebels including HTS. His style seems overblown and unconvincing. Here is s critique from 21st century wire:
    http://21stcenturywire.com/2016/12/18/the-last-clown-in-aleppo-mr-alhamdo-does-bad-monty-python-for-al-jazeera-and-cnn/
    4. The two women Khayrya and Sarah both seemed to read from a script but there was something strange about thier accents. They did not sound Syrian at all. The closest I could identify is probably a Russian accent to thier English, it was the strange way the pronounced the Ls such as in ‘killed’ and also other words. I wonder if any of you have linguistic skills to analyse this further.

    The BBC has now launched another regular news about Syria which is typical when the Syrian army is advancing as they are now in Idlib. Two days ago, they broadcast this chlorine attack in east Ghouta which left six people temporarily breathless for 30 minutes, but no other maim media mentioned this and the original sources appear to be sketchy or non-existent. Is this really what our license fees is going on, rather poor propaganda for Al Qaeda? Should there be an enquiry?

      • Clark

        SA, I wonder if this is related to the ‘internal market’ in the BBC. You have to check the credits, because the BBC commission most programmes now, buying them from private production companies. There may be a further effect that complaining to or about the BBC only goes so far, private companies being protected by commercial confidentiality. Familiar themes from pharmaceutical and other research.

        The BBC is often criticised as being Westminster’s ‘state broadcaster’, but the BBC is a global corporation now. Here’s an example from BBC Advertising(!) We don’t see advertising on the BBC in the UK, but that’s not so in other countries:

        https://www.youtube.com/watch?v=R1z7sPDVy04

        There are also conflicts of interest within, I believe, the BBC Trust; an oversight body. A CEO of the high-tech armament manufacturer BAE Systems was recently instated into the BBC Trust, I think; Campaign Against the Arms Trade (CAAT) were campaigning to prevent it.

        Then there is the matter of the half billion dollars paid from the Pentagon to a PR company, to make fake Al Qaeda recruitment videos in Iraq:

        https://www.thebureauinvestigates.com/stories/2016-10-02/fake-news-and-false-flags-how-the-pentagon-paid-a-british-pr-firm-500m-for-top-secret-iraq-propaganda

        That’s a huge budget; do we actually know that these recruitment videos were all they made? Iraq is right next door to Syria; maybe some of these ‘news’ items have a different source altogether.

        • SA

          Clerk
          I don’t know how to check the credits on this radio 4 programme. However it seems to be a rather low budget programme judging by the quality of the product. The Syrian ‘teacher’ has been used before and appears to be a rebel ‘activist’ probably operating somewhere in Turkey. And thank you for reminding me that the BBC is a corporation but as it receives state funding through the licence fees, it must be a state corporation and still answerable which it appears not to be.
          Your second link is interesting. Bell Pottinger seems to have been contracted by the CIA but from what I can understand, some of the work they produced had the purpose of tracing individuals accessing this pseudo IS material for surviellence, a sort of entrapment. It is the same Bell Pottinger that, under new management, recently folded up after thier link with certain corrupt South African companies and politicians.

  • Billy

    Thank you Mr Murray for providing the legal background, and quotes and references to the legal text under which the UK and Ecuadorian nations are bound. It is pitiful that one would not find this in the “old” media. One merely finds opinion to the left of opinion to the right, but no foundation.

    The comments seem to be largely dominated by 4 – 6 people who are discussing matters not directly related to the article. Its wonderful to see people able to engage in exchanges in pseudonymous fashion, and hats off to you Mr Murray for allowing it. I encourage the commenting community to try to stick to topic. It is nice to see that there is little or no abusive language in the comments whilst the discussion meandours wildly.

  • Charles Crawford

    Piffle.

    As you well know, the UK is under NO obligation to let anyone Ecuador nominates be a diplomat accredited to the UK. Russia routinely turns down UK diplomatic visa bids. Are you really saying that that is not allowed by the Vienna Convention?

    • John Spencer-Davis

      Piffle yourself.

      Craig Murray does not say that the UK is obliged to “let anyone Ecuador nominates be a diplomat accredited to the UK”. He says that the UK’s presumed refusal to do so does not remove its obligations under the Vienna Convention’s provisions as to diplomatic immunity, and he gives chapter and verse on this, which is Article 39 (i). If you are interested in making a proper contribution to the debate instead of just insulting Murray and piggybacking on his reader base, let’s see you refute his argument on Article 39 (i).

      • Charles Crawford

        Wrong again.

        Ecuador cannot insist that Assange be given diplomatic immunity in the UK simply because Ecuador proclaims him to be a diplomat in the UK! In diplomatic practice Assange gets on the London Diplomatic List and gets privileges and immunity etc only if he is accepted by the UK as a diplomat properly accredited to the UK.

        It’s impossible to make sense of all this unless you grasp the idea of common sense courtesy and reciprocity and good faith that underpins all diplomacy.

        PS even if I am wrong on that, see also VC Article 38:

        1.Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

        Assange’s machinations BEFORE he was ‘appointed’ an Ecuadorean diplomat are therefore not covered. As soon as he walks out of the Mission, he’s rightly arrested. QED

        • John Spencer-Davis

          Wrong again. VC Article 38 applies to a “diplomatic agent who is a national of or permanently resident in that State”, in this case the UK. Assange is neither. Therefore Article 38 does not apply to him.

  • Charles Crawford

    If anyone here is actually interested in the legal issues going to any possible appointment by Ecuador of J Assange as an Ecuador diplomat, read these excellent exchanges from 2014 where a real lawyer and a former UK Ambassador (with notably more experience than Craig) hammer it out:

    http://www.headoflegal.com/2014/08/18/julian-assange-do-recent-changes-to-extradition-law-make-any-difference/#comment-433502

    And this: http://charlescrawford.biz/2014/08/24/assange-the-transformer-can-he-become-an-ecuador-diplomat/

    • John Spencer-Davis

      I think it would be particularly helpful to reproduce these comments from that debate by Brian Barder. I apologise for the lengthy quotation.

      ————–

      “His first point can be dealt with quickly. Article 9 of the VCDR deals with the right of the receiving state to declare “a head of mission or any member of the diplomatic staff” persona non grata (png) and to require the sending state to terminate his functions or to withdraw him from the UK — i.e., the receiving state can expel any member of the diplomatic staff of an embassy or other diplomatic mission. I have several times expressed the opinion that once Assange had been formally notified as a “member of the diplomatic staff”, the only remedy available to HMG would be to expel him under Article 9, and in that event his diplomatic status and immunities would continue until he left the UK (Art. 39(2)). But there’s no dispute about that: the issue is whether HMG would have the right under the Convention to refuse to recognise Assange as a “diplomatic agent” enjoying diplomatic immunity *after* his appointment to the embassy’s diplomatic staff had been notified to the FCO. Declaring him png would imply that HMG recognised his diplomatic status, since Art. 9 applies only to heads of mission and diplomatic staff.

      “The position under Article 11 is more complicated. Art. 11(2) says that the receiving state (in this case, HMG) “may refuse to accept [as members of the diplomatic staff] officials of a particular category.” Obviously if HMG wished to make use of this provision it would need to perform a specific act — namely, to define the category of persons whom it would refuse to accept and notify the government or governments concerned of its decision to refuse to accept persons in that category. I have acknowledged more than once in this debate that Art. 11(2) would enable HMG to notify the Ecuadorian government at any time up to its notification of Assange’s diplomatic appointment that it would refuse to accept as diplomats persons in any category that would include Assange, such as Australians, persons accused of rape, persons against whom extradition proceedings had been initiated, or whatever. To the best of my knowledge HMG has not taken any such action. Until it does, Ecuador is clearly free to appoint Assange or indeed anyone else (subject to the limitations imposed by the Convention, none of which apply to Assange) to its diplomatic staff, and from the moment at which the FCO is notified of that appointment, Assange becomes a diplomatic agent and has the full range of immunities under the Convention (and also under UK law).

      “The receiving state also has the right, under Art. 9(1), to declare an individual person png “before [his arrival] in the territory of the receiving state”. This however can hardly apply to Assange since he is already in the UK, and HMG presumably did not declare him png before he arrived here.

      “Interpretation of the Convention is greatly facilitated by reference to Professor Eileen Denza’s authoritative commentary on its terms, article by article, in her three editions (so far) of her “Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations” (1976, 1998 and 2008). My copy of this indispensable work is a first edition (I can’t afford the latest edition and it would take up a disproportionate amount of my time to find a library in which to consult it), which is especially relevant to the case of Mr Assange and my suggested scenario for getting him off Britain’s back. In her first edition commentary on Art. 39, Professor Denza describes the unsuccessful attempts by a number of countries at the Conference which drew up the Convention to provide that a person’s diplomatic immunities should come into effect only when the receiving state had “formally or tacitly accepted” that person’s appointment to a diplomatic post. Prof. Denza notes that this proposal “met with little support” and was rejected by the Conference, which approved instead the langauge of what became Article 39(1) under which every person entitled to diplomatic privileges and immunities (namely every member of the diplomatic staff of a diplomatic mission) enjoys those privileges and immunities “from the moment when his appointment is notified to [the FCO]”. Ms Denza regretfully concludes that in view of the clear rejection by the Conference of the proposal to make privileges and immunities conditional on the acceptance by the receiving state of the person’s appointment, no such interpretation can (“unfortunately”) be regarded as “legitimate”. Thus from the moment of notification, the receiving state has no right to refuse to recognise and respect the immune status of a member of an embassy’s diplomatic staff: all it can do is expel him which enables him to leave the country still without being liable to arrest or other process.

      “Finally (I hope!), there seems to be no legal basis for the claim that HMG would have the right, after Assange had been notified to the FCO as a member of the Ecuador embassy’s diplomatic staff, to refuse to recognise him as such on the grounds that the intention behind the appointment was obviously to give him protection from arrest and extradition, not to carry out any recognised diplomatic functions, and that the appointment’s motivation was clearly inconsistent with the purposes of the Convention. All that would undoubtedly be true, but the decisive objection to it is surely that if a receiving state could override the express provisions of the Convention unilaterally and on the sole basis of its interpretation of the real but undeclared purpose of the appointment, it would remove at a stroke the effectiveness of any of the protections for diplomats laid down in the Convention.”

      ————–

      Barder’s contribution is of course vigorously disputed and I do encourage contributors to read the whole debate. Particularly difficult for Assange – I’m not necessarily denying the conclusion that his putative diplomatic status might legally fail – is the apparent requirement under Ecuadorian law that diplomats should be natural-born Ecuadoreans.

      Crawford’s sole idea of analyzing the Vienna Convention in contributing to the debate is this: “Brian’s opinions rest on a wobbly view of what international law is. It is not only the Vienna Convention, important though that is. It is also a mass of principles and rules and conventions developed over centuries.” (My italics.) Highly useful.

      J

      • Charles Crawford

        Plenty on my website about the diplomacy plus international law and practice of all this too: http://charlescrawford.biz/?s=assange

        The point is that I am right and Craig is wrong (as was Brian Barder).

        Thus it is 100% routine in diplomacy for state X to have a look at the proposed posting to state X of diplomat Y from state Z, and let state Z know that diplomat Y will not be welcome and/or not get a visa or accreditation.

        Why?

        For example, state X might have good reason to think that diplomat Y is fact a spy and that his/her activities in state X may not be compatible with the Convention. State X tells state Z that diplomat Y does not get accreditation or a diplomatic visa. [See UK/Russia relations passim]

        State Z shrugs and proposes someone else. State Z does NOT start hooting that state X is thwarting or in breach of the Vienna Convention, not least because state Z may well be gearing up to deny accreditation from state P for diplomat Q. It suits all states to keep in reserve the right to reject other states’ diplomats!

        Just say that Craig is right and in fact state Z CAN demand that state X accepts diplomat Y. Diplomat Y shows up at state X’s airport. How about VC Article 43:

        “The function of a diplomatic agent comes to an end, inter alia:

        (a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

        (b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.”

        Diplomat Y does not get far.

        If state Z kicks up a fuss, state X sighs and summarily ejects the Ambassador of state Z, citing VC Article 9:

        “The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State…”

        No-one needs all this.

        Conclusion?

        Diplomacy is NOT JUST ABOUT RULES. It’s about ESTABLISHED and ACCEPTED PRACTICES and common sense TOO. Myriad examples available, as Craig himself and every other professional diplomat of course well know.

        • John Spencer-Davis

          [Crawford]: Thus it is 100% routine in diplomacy for state X to have a look at the proposed posting to state X of diplomat Y from state Z, and let state Z know that diplomat Y will not be welcome and/or not get a visa or accreditation.

          [Spencer-Davis]: That is irrelevant to Article 39 (i), which states that “Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

          [Crawford]: Why?
          For example, state X might have good reason to think that diplomat Y is fact a spy and that his/her activities in state X may not be compatible with the Convention. State X tells state Z that diplomat Y does not get accreditation or a diplomatic visa. [See UK/Russia relations passim]

          [Spencer-Davis]: That is irrelevant to someone already within the territory of state X.

          [Crawford]: State Z shrugs and proposes someone else. State Z does NOT start hooting that state X is thwarting or in breach of the Vienna Convention, not least because state Z may well be gearing up to deny accreditation from state P for diplomat Q. It suits all states to keep in reserve the right to reject other states’ diplomats!

          Just say that Craig is right and in fact state Z CAN demand that state X accepts diplomat Y. Diplomat Y shows up at state X’s airport.

          [Spencer-Davis]: In this case Diplomat Y is already in the territory of state X, so your example is irrelevant.

          [Crawford]: How about VC Article 43:

          “The function of a diplomatic agent comes to an end, inter alia:

          (a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

          (b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.”

          Diplomat Y does not get far.

          [Spencer-Davis]: Irrelevant to Craig Murray’s point that Article 39(i) shows that privileges and immunities apply to those persons within the territory whose appointments have been notified to the Ministry for Foreign Affairs. It’s not the acceptance as a diplomat that is in dispute. It is the privileges and immunities that are in dispute, and someone does not have to be accepted as a diplomat to have those privileges and immunities apply to him or her. Article 39(i) makes that clear. I have yet to see an argument from you addressing this point.

          [Crawford]: If state Z kicks up a fuss, state X sighs and summarily ejects the Ambassador of state Z, citing VC Article 9:

          “The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State…”

          [Spencer-Davis]: Irrelevant. See my note immediately above.

          [Crawford]: No-one needs all this.

          Conclusion?

          Diplomacy is NOT JUST ABOUT RULES. It’s about ESTABLISHED and ACCEPTED PRACTICES and common sense TOO. Myriad examples available, as Craig himself and every other professional diplomat of course well know.

          [Spencer-Davis]: There is NO NEED TO SHOUT. Your concluding remarks are irrelevant to the provisions of the Vienna Convention, as you well know.

          • Charles Crawford

            You studiously ignore the point.

            Whatever the Vienna Convention says, there are other rules and practices of international law that apply, as well as normal common sense and a certain operational circumspection.

            You are simply wrong. The acceptance as a diplomat *is* in dispute. The privileges and immunities flow *because* the diplomat’s status as a diplomat with privileges and immunities is accepted by the host state. If s/he’s not accepted, no immunities!

            This is why the FCO said exactly what it meant to say:

            “The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request…”

            It is simply absurd to think that if the UK embassy in (say) Moscow (or indeed Quito) took in a UK citizen wanted for murder by the Russian (or Ecuador) authorities and promptly appointed that UK citizen a diplomat, the Russians (or Ecuadoreans) would shrug and stand aside as said new ‘diplomat’ strolled immunely to the airport.

            The reason why that is absurd is that all states accept the provisions of the VC plus other common sense interpretations of it. ALL states want the right to keep out spies and criminals, whatever the VC might say.

            Finally, Craig of course does not mention A38 (my emphasis):

            1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, *in respect of official acts performed in the exercise of his functions*.

            Assange is in trouble for all sorts of reasons pre-dating his supposed appointment as a diplomat to the UK. Any diplomatic immunity he might in theory enjoy in the UK explicitly does NOT cover that.

            What is ‘relevant’ here is that Ecuador is fed up with this mess and it is not insane. It does not want to get its Ambassador charged with (or PNG’d for) attempting to abuse the VC and/or pervert the course of justice. Nor does it want to spend millions on UK QCs bickering about this in the High Court for years to come.

            QED

          • John Spencer-Davis

            Let’s deal first with your point about Article 38 – I have already answered it, but you may have missed that.

            “Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
            Assange is in trouble for all sorts of reasons pre-dating his supposed appointment as a diplomat to the UK. Any diplomatic immunity he might in theory enjoy in the UK explicitly does NOT cover that.”

            Article 38 is clearly intended, in this context, to apply to UK nationals or persons permanently resident in the UK, who are nonetheless Ecuadorian diplomatic agents. Assange is neither a UK national nor permanently resident in the UK. Therefore Article 38 does NOT apply to him. If not, why not?

          • Clark

            Hmmm, it seems to me that the government could have accepted Assange’s appointment, if only to declare him PNG. It offered an opportunity to break the stalemate and get Assange clear of states with extradition arrangements with the US. Sweden had dropped the investigation and the guarantors had forfeited their bail money; it seems a possible method of compromise / saving face.

            That the government has snubbed such a compromise suggests, again, that they’re holding Assange on behalf of the US.

          • Charles Crawford

            I think that you’re right on A38, subject to Assange not being ‘permanently resident in the UK’ (however that is defined somewhere else). Good point.

            Peering closely at the VC, I conclude that we start with A7:

            “Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the members of the staff of the mission.” That supports the proposition that Ecuador can ‘freely’ appoint JA as a diplomat.

            But there is a proviso in A9:

            “1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.”

            So the Ecuadoreans freely appointed JA as a diplomat for their London Embassy when he was already within the embassy, but HMG said that he was not acceptable, and so he never made it to the status of someone having diplomatic immunity in the UK. He was in effect PNG’d before he got to enjoying diplomatic status here.

            Craig’s claim is that in the split-second of time of JA being appointed as a diplomat TO the UK, he automatically got immunity IN the UK. That’s just not how it works, as Craig of course knows well! When a new diplomat is appointed the sending state politely notifies the receiving state of the appointment, and the receiving state can politely accept it or not.

            UNTIL the appointment is formally accepted, there is no immunity in the receiving state. Why not? Because it would open the way to absurd results and abuses (eg a Brit murderer fleeing justice in Beijing walks into the UK embassy there and is appointed a UK diplomat, so strolls out of the country free). No state wants that sort of thing on its own territory, going right back to all those courtly ideas of respect and hospitality.

            Ecuador is welcome to challenge this decision in the UK courts. Maybe the Craig view will prevail, but I bet him/you £5 it doesn’t, if only because the VC codifies centuries of practice but does not exhaustively and exclusively define the international law and practice of diplomacy. As well as being a former diplomat I’m a barrister. Never underestimate the role of pragmatic common sense in UK court decisions.

            It’s not ‘irrelevant’ to point out that the VC is only part of how diplomacy works on practice. Take the UK Highway Code. The law lays down speed limits but in real life you’re highly unlikely to be prosecuted at all (let alone successfully) if you are driving at 31 mph in a 30mph zone. There’s some operational flexibility, as life does not fit neatly into strict rules all the time.

            Craig’s whole point here is that some sort of existential injustice aided and abetted by the ‘neo-liberal media’ has been done to JA. Maybe the reason why the media are not carrying Craig’s arguments is that anyone who looks at this from a serious professional point of view can see that Craig’s arguments are basically tendentious/specious?

          • Clark

            It seems perfectly clear cut. The sending state can appoint freely, and the receiving state can declare PNG, just as Craig said.

            So why haven’t they declared PNG? And why haven’t the press asked about that?

            “Craig’s whole point here is that some sort of existential injustice aided and abetted by the ‘neo-liberal media’ has been done to JA”

            Well that’s certainly true, from the Guardian releasing Wikileaks decryption password and blaming Assange, to the innumerable pieces about Assange’s personal hygiene, to the relentless, one-sided and ongoing sexual smearing, to the constant repetitions of the “fugitive from justice” smear… This is just the latest example.

          • John Spencer-Davis

            On Article 38, thank you for your willingness to concede the point, it’s fully appreciated. However, that you are capable of writing out such a clunker not once but twice, and the second time after I pointed the matter out to you, hardly inspires confidence in the rest of your contribution.

            The chance that Assange is a permanent resident of the UK is vanishingly small, as you would soon discover if you troubled to research the matter.

            Full response to follow soon. J

          • John Spencer-Davis

            “As well as being a former diplomat I’m a barrister.”

            I can’t find you on the current register for England and Wales, so I assume you are either from a different jurisdiction, or do not hold a current practising certificate. Since it is a criminal offence to call yourself a barrister without entitlement, I have written to the Bar Council to confirm the matter. I trust that will cause you no difficulties. J

          • John Spencer-Davis

            In fairness to Charles Crawford, the Bar Council informs me that he was called to the Bar in 1978, and is on their records as an unregistered Barrister. Therefore he has not broken the law by describing himself as a barrister here. However, I understand that he joined the FCO in 1979, so if he ever knew his way around “UK court decisions” as a barrister, it wasn’t for very long. Perhaps Crawford would like to inform the people reading this if he ever actually practised as a barrister at all? And might it not have been relevant to mention that, if he never has? J

          • Clark

            Vast swathes of presumably knowledgeable people seem to be in fervent denial of the excessive power of the US:

            – <em"The forcing down of the Bolivian President’s jet was a clear breach of the Vienna Convention by Spain and Portugal, which closed their airspace to this Head of State while on a diplomatic mission. […] To the US and its allies, international law is no longer of any consequence."

            https://www.craigmurray.org.uk/archives/2013/07/all-law-is-gone-naked-power-remains/

  • Hieroglyph

    Truth is, you can always find a lawyer who will argue that whatever Assange wants is wrong, and any legal avenue he may wish to pursue is impossible under [insert some well-renumerated legal bullshit].My guess is, that’s exactly the plan. More lengthy and costly legal moves in which bent ‘Supreme Court’ (UK) judges make bizarre ruling after bizarre ruling, which the media applauds.

    My advice to Mr Assange: stay in your room until Corbyn becomes PM, and save on the legal fees. Then come back to Australia, and destroy our corrupt politicians, all of whom left you high and dry.

    Alternatively, just walk out of the embassy, and see what happens. A bit of time for dodging bail could be ok.

  • Charles Crawford

    “In fairness to Charles Crawford, the Bar Council informs me that he was called to the Bar in 1978, and is on their records as an unregistered Barrister. Therefore he has not broken the law by describing himself as a barrister here. However, I understand that he joined the FCO in 1979, so if he ever knew his way around “UK court decisions” as a barrister, it wasn’t for very long. Perhaps Crawford would like to inform the people reading this if he ever actually practised as a barrister at all? And might it not have been relevant to mention that, if he never has?”

    John Spencer-Davis (for it is he) does his research!

    I did a degree in Jurisprudence at Oxford University. Then I did the UK Bar Exams and was called to the Bar. I did not practise as a barrister because I took up a scholarship to read an MA in Law and Diplomacy at the Fletcher School of Law and Diplomacy in the USA. After I left the FCO I qualified as a Mediator with all three leading UK Mediation teaching bodies. I now give classes in Diplomatic Protocol to international officials (“It was one of the best trainings in my 8 years within the UN system”).

    So, yes, I know far more about law than most people and orders of magnitude more than historian Craig Murray or (I daresay) JSD. Both the law in itself and how legal processes work in practice.

    Does that mean I’m right in this case? No. It’s complicated on many legal and diplomatic and wider policy levels simultaneously. But my instinct here is that Ecuador is looking for a way out and tried this doomed ploy just to see what would happen. This move may in fact be part of some wider manoeuvres behind the scenes as between UK and Ecuador and even Sweden/USA aimed at ruling in some options by ruling out others.

    But the legal route remains wide open for Assange/Ecuador. Wikileaks can pay to fund a challenge to this FCO position. See you in court! http://charlescrawford.biz/2018/01/19/assange-is-not-a-diplomat-4/

    • John Spencer-Davis

      “So, yes, I know far more about law than most people and orders of magnitude more than historian Craig Murray or (I daresay) JSD.”

      I daresay you do. And my legal qualifications are zero. However, barrister or no, mediator or no, diplomat or no, I am clearly still better at reading legal documents than you are, or you wouldn’t have made such a howler as you did above. J

        • John Spencer-Davis

          Certainly. But I would be more impressed with such a sentiment coming out of your mouth, if you were not: (a) continually bragging about what a clever and well-qualified chap you are, and: (b) busy insulting me over at your website where I am less likely to see it. Oh, and by the way: you might want to look into the difference between “its” and “it’s”. J

        • John Spencer-Davis

          Kindly post your claims about Walid Juffali on here. I will be happy to take them to bits, because you do not know what you are talking about: but since you chose to come over here and attack Murray, I think you should defend any claim that you say is relevant over here.

          Walid Juffali was dealt with strictly according to the Vienna Convention, and you have seriously cherry picked what you say about the case. I’m challenging you to post what you say on here and defend it on here. J

    • John Spencer-Davis

      [Crawford 1a]: You studiously ignore the point.

      [Spencer-Davis 1a]: Oh, I do? I thought the point was the one you originally raised yourself. Let’s remind you of it.

      “As you well know, the UK is under NO obligation to let anyone Ecuador nominates be a diplomat accredited to the UK. Russia routinely turns down UK diplomatic visa bids. Are you really saying that that is not allowed by the Vienna Convention?”
      That was the point you originally raised, and it was piffle, as you are fond of saying. Another howling blunder. I challenge you to point to any text in Murray’s original blog post that states that the UK is under an “obligation to let anyone Ecuador nominates be a diplomat accredited to the UK”. In fact, he says the opposite. I challenge you to point to any text in Murray’s original blog post that says the Vienna Convention does not allow routine turn down of diplomatic visa bids. You can’t.

      I don’t think you even read Murray’s post before you started to comment. That isn’t my fault, it’s yours. If you don’t want your points answered and your errors pointed out, you should be more careful how you comment.

      It will not have escaped the notice of the readers, just how far you have shifted your ground from your original posting. You rely on the Vienna Convention yourself there: ”Are you really saying that that is not allowed by the Vienna Convention?” Your story is very different now. It’s: “Whatever the Vienna Convention says…” and “whatever the VC might say.” So you are implicitly admitting that your original position was wrong, and you are now saying that it doesn’t matter what the Vienna Convention says. I’d be more impressed if you had taken that position at the start.

      [Crawford 1a]: Whatever the Vienna Convention says, there are other rules and practices of international law that apply, as well as normal common sense and a certain operational circumspection.

      [Spencer-Davis 1a]: Let’s see some specifics, please. What “other rules and practices of international law apply” that supersede the Vienna Convention regarding these matters? As to common sense and operational circumspection, you might be right and you might not be. The matter has not been tested in court, unlike the Juffali case that you have also made the most amazing blunders about. It is clear, from a review of the historical uses and abuses of diplomatic immunity, that courts have to walk a fine line between preserving the relations between countries and administering local justice. The Juffali case is a perfect example: it is not at all certain that the Court of Appeal would have been able to reach a “common sense” conclusion, had not Juffali been a permanent resident of the UK and therefore excluded from diplomatic immunity under Article 38.

      As the law currently stands, the position is this. UK law on diplomatic privileges is set out in the Diplomatic Privileges Act 1964. Section 2 of the Act states that “the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in the United Kingdom”. (My emphasis.) Schedule 1 to the Act (“Articles of Vienna Convention Having the Force of Law in the United Kingdom”) includes, in its entirety, Article 39 of the Vienna Convention, which is the Article on which Murray relies and which includes the words: “Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.” So there is no doubt about what the law actually is. There is of course doubt about whether the law would actually be applied, but Murray isn’t really arguing about that: he’s observing that the media has not bothered to investigate the matter
      publicly, whether through corruption or incompetence or both.

      I will continue this as and when I can. It’s easy to type out whatever comes into your head, which seems to be your method. Discussing the matter with chapter and verse is a little different. J

  • Ba'al Zevul

    I’m happy to note that the Assache (sic) Saga proceeds roughly according to the lines predicted earlier. Assache is now to exploit the vagueness of the Vienna Convention, and take his case to the Hague. Though there’s nothing to stop him walking out of the embassy whenever he pleases, save the certainty of being charged with a criminal offence the world saw him commit, he will play the victim card, presumably.

    https://uk.reuters.com/article/uk-ecuador-assange-britain/assange-team-hopes-uk-could-declare-him-persona-non-grata-idUKKBN1FB25D

    On the bright side, even if the tender-hearted judiciary at the Hague concedes that a previously-convicted Australian, hiding from a bail-jumping charge, and recently awarded Ecuadoran citizenship in order to claim diplomatic status for the express purpose of getting him safely out of the Ecuadoran embassy (!) , should be afforded every possible facility to leave these shores, we needn’t be too heartbroken. Or, as some might be, joyful and triumphant all over RT.

    Assache’s internet connection was cut off, it is rumoured, at the request of the Spanish government, due to it and Assache disagreeing about Catalonian independence. The new Ecuadoran government, therefore, is likely to listen attentively to similar requests concerning its new citizen’s output in the future. And should Trump decide that after all, Assache’s insider knowledge of the DNC …and Trump…isn’t as extensive as all that, it should be relatively simple to whisk him north in an orange jumpsuit. Much stranger things have happened, particularly when the President’s voter base is fundamentalist Christian, belligerent, and carnivorous.

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