Ecuador’s Disconnect of Assange: Politics or Principle?

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

Ecuador’s announcement that it had severed Julian Assange’s internet connection in its London Embassy can be seen as a cynical manipulation of international law or a principled stance in favor of an important rule. Recall that Assange has been holed up in the embassy since June 2012, evading a Swedish warrant for questioning him, upheld by the UK Supreme Court. Ecuador justifies the move as an act of diplomatic asylum, which it argues is allowed under international law. The UK has rejected the claim, calling him little more than a fugitive from justice for a sexual assault charge in Sweden.

In cutting off Assange’s internet combination, Ecuador suggests that Wikileaks’ publication of hacked Clinton emails constitutes unlawful intervention in the internal affairs of the United States, an act that Ecuador seeks to end. Marko Milanovic, over at EJILTalk!, finds this all too rich – that Ecuador has in fact been interfering in the UK’s internal affairs through the harboring of Assange, and that its latest act just makes matters worse by denying him his human right to free expression. I think Ecuador has a stronger case than that.

The legality of Ecuador’s shielding of Assange seems to go mostly against Ecuador. The right of a state to grant diplomatic asylum is not generally accepted as a matter of customary international law, and the ICJ rejected Colombia’s claim that it was a customary rule for Latin American states in the Asylum Case in 1950. Even if it is a rule of regional custom, it is certainly not opposable to the United Kingdom. As for the Caracas Convention on Diplomatic Asylum of 1954, although Ecuador is a party, the UK is not. Moreover, Assange does not seem, at least based on the evidence, to be bona fide political asylee, but merely a fugitive from justice for a non-political crime. The United States, for its part, does not recognize such a norm, though it has accepted that embassies can grant temporary humanitarian refuge to a foreign national facing imminent danger. This theory proved the basis for the U.S. secret harboring of Fang Lizhi in its Beijing Embassy for thirteen months after the June 1989 Tiananmen Square massacre, as well as its simultaneous rejection of any right of the Papal Nunciatura to hold Manuel Noriega after he sought refuge there after the US invasion of Panama the following December.

But what about the interference claims? Is Ecuador unlawfully interfering in UK domestic affairs, and was Assange unlawfully interfering in US domestic affairs? As an initial matter, the customary law norm of noninterference (or nonintervention) bars only coercive action, not all the run-in-the-mill ways that states try to influence run another. Thus, in the Nicaragua case, the ICJ wrote that coercion is “the very essence of prohibited intervention.” (para. 205) Broadcasts, diplomatic protest, withholding of foreign assistance, most prescription of domestic law to cover extraterritorial conduct, funding of foreign human rights NGOs, and other non-coercive acts, while sometimes unpleasant for the government on the receiving end, are not acts of unlawful interference or intervention, even if some global actors may claim that. If they were, much of routine international intercourse would be unlawful. Moreover, the interference must go to something core about the state, notably the way it organizes itself politically or economically.

So even if Ecuador has no ex ante right to deploy diplomatic asylum, it’s difficult to see it as unlawful interference in the UK’s internal affairs. It is not coercive and it does not go to core governance issues in the UK.   Nonetheless, it’s worth noting that the ICJ in the Asylum Case stated that “diplomatic asylum withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competence of that State.” (p. 275). On that view, Ecuador’s act is analogous to kidnapping Assange off the streets of London insofar as Ecuador did put him beyond the reach of British police. Either way, we have a more precise and clear norm that is relevant here -– namely the Vienna Convention on Diplomatic Relations, where it seems clear that Ecuador has violated Article 3 through an impermissible use of the diplomatic premises. (Though that list is non-exhaustive, it probably does not include as a normal function the prevention of arrest by local authorities.)

As for Assange, he would not seem to have any duties under international law in his current situation. Individual duties are generally confined to the list of well-accepted crimes (and even then, some scholars insist the only duties are on the states to suppress them). So he’s not breaking international law rules on nonintervention or diplomatic law (though I suppose evading an international warrant directed at him could be seen as breach of international law). That does not, however, contra Marko, mean that he has a human right to disseminate private emails all over the world. This too is a complicated question. The ICCPR makes freedom of expression a “balanceable” right, and so it’s not at all clear that he has a human right to share such information, even if the US might grant him a constitutional right to do so. Demands of privacy and public order in a democratic society would cut toward allowing Ecuador, the UK, or the United States to interfere with his exercise of free expression.

Where does that leave Ecuador’s claim that it shut down Assange’s internet connection to avoid interference in the US elections? Perhaps Ecuador fears that its grant to him of an internet connection made it complicit in interference in the U.S. elections. This makes some sense given the way in which an internet connection presumably facilitates Assange’s actions. (The embassy did not say whether they severed his phone connection as well.) Yet the ILC Articles on State Responsibility (ASRs) do not attribute the acts of a private actor to the state merely because the latter has facilitated the acts of the former, so legally it seems a stretch to say that Ecuador is committing an illegal act by allowing Assange access to the internet. Perhaps it fears complicity with Russia, which the U.S. government sees as responsible for the original hacking. But under ASR Article 16, one state is only complicit if it does so “with knowledge of the circumstances” of the act, and it’s hard to say Ecuador knew about the Russian hacking.

Moreover, even if Ecuador fears complicity of some sort, the release of the documents does not seem to represent truly unlawful interference in the US elections, as seen from the legal elaboration above. It certainly can affect the outcome, but is it coercive and does it deny the United States voters a voice in charting the future course of their country? Again, governments routinely express their preferences in foreign elections, in some ways muted and other ways quite direct. According to the New York Times, Ecuador’s president has expressed the hope that Hillary Clinton will prevail. And, in the end, Wikileaks is merely releasing authentic communications. But while we may find these foreign preferences distasteful, or unwarranted, that does not make them illegal. A harder question concerns the illegality of the hacking itself, as Sean Watts points out over at JustSecurity. If it’s not illegal under current international law, there is a good argument from the perspective interstate order that it should be, and state attitudes might well change on this question.

All this suggests that international law does not require Ecuador to sever the internet connection. Nevertheless, Ecuador’s invocation of the principle of noninterference is not that surprising. Latin American countries have traditionally been among the strongest advocates of the norm of non-intervention, and so from Ecuador’s perspective their claim that Assange’s acts constitute such interference does not seem cynical, even if that claim has not been broadly accepted internationally. Quite ironically, it is Latin America’s sensitivity to historical heavy-handedness by the United States in some Latin American countries that serves as the ground for an Ecuadorian attempt to avoid interference in the U.S. elections.

Ironic, but also quite principled. For legal rules do not function merely as commands to states as to what they must or must not do. Law can also frame a policy decision by suggesting that that decision is grounded in, and consistent with, a legal norm. As Rosalyn Higgins wrote long ago about the Security Council, we are witnessing “political operation within the law, rather than decision making according to the law.”

We will probably never know Ecuador’s exact motivations for the latest move. Maybe the U.S., the UK, or one of Ecuador’s friends read the government the riot act. Maybe its leaders want Hillary Clinton to win. Maybe they and their diplomats are getting a little tired of their houseguest and are signaling that they want to end the standoff with the UK and Sweden. But whatever their motivations, they seem to have come up with a pretty sound legal grounding for their actions. Their hands may not be so tied that they were legally bound to cut off the connection, but they have deployed the law to give a principled reason for doing so.

http://opiniojuris.org/2016/10/23/ecuadors-disconnect-of-assange-politics-or-principle/

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