Gardens of Justice – Critical Legal Conference 2012

July 18, 2012 § Leave a comment

At the beginning of June I took a four week holiday to travel through California. Just before I left I received the fantastic news that my abstract ‘Asylum Seekers and the Welfare State: A Social Dystopia?’ had been accepted for the Critical Legal Studies Conference in Stockholm, in September, a conference that I was particularly keen to attend.

To put my abstract into context, I will present my paper in the welfare stream, the theme of which is the ‘welfare state as a social utopia?’  When I initially read the stream information for the conference I was excited at the prospect of entering an abstract as the ideas floated by the stream organiser’s mirrored topics I wished to explore in my thesis. The stream itself is heavily focused on ideas of solidarity, exclusion, equality and the utopian ideal to which the welfare state can aspire.

Despite gaining experience of presenting conference papers at the SLSA and Queen Mary Postgrad conferences, each conference is unique and presents its own challenges, which continues to test my confidence! Though this is a relatively new area of examination for me, I am enjoying exploring postmodern ideas within literature and forming nihilistic arguments of laws which I find arbitrary, ineffective and inhumane.

After four weeks of Californian sunshine, exhilaration and discovery, returning to research is both exciting and daunting, but I am grateful for the opportunity to present my ideas at such a fascinating and interesting conference. For now, the reading continues and then begins the formidable task of translating my thoughts and ideas into a conference paper.

The abstract for my paper is cited below and I will update the blog with a reflection after the event.

‘Asylum Seekers and the Welfare State: A Social Dystopia?

The redistribution of resources through the English welfare State is fundamentally an expression of national solidarity, which provides for the indigent members of society. However this form of solidarity is stratified on the basis of immigration status which, it will be argued, overlooks social need in defining the responsibilities of the welfare State. As a result, a hierarchy of entitlement and rights exists.

Despite international and European legal verification for the occupancy of asylum seekers within the sovereign State, NGO studies show that this group including those whose applications have been refused, suffer from systematic poverty, prejudice and inadequacy and in some instances abject destitution.

This paper will examine the welfare provision for asylum seekers and refused asylum seekers within this context.  The paper will use a hypothetical case study to outline the current support system for asylum seekers and refused asylum seekers, whilst at the same time accounting for the experiences, history and consciousness of applicants. It will stress that applicants are not only discriminated against in their exclusion from the national welfare framework but also experience the detrimental and compounded effects of intersectional grounds of discrimination, which can then impact further upon rights.

It aims to consider the boundaries of ‘solidarity’ within the current welfare system and whether those boundaries should be extended to include asylum seekers and refused asylum seekers. With reference to the case study, human rights and cosmopolitanism I will consider how  and why this is necessary even within ‘the factual reality of given society’.

Katie Bales

Photo Credit:

SHARPSHOOTA.com – NYC street photography

The Embassy and International Law

July 2, 2012 § 1 Comment

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Utilised in numerous Hollywood blockbusters in recent years, from Robert Langdon’s dash to the U.S embassy in Paris in ‘The Da-Vinci Code’ to Jason Bourne’s run in with the consulate officials in ‘The Bourne Identity’, the position of the embassy in international law could be mistaken for the setting of the latest cinematic release rather than a fundamental instrument in diplomatic relations. Events in the past two months however have illustrated that the inviolability of the embassy is much more than a plot device in the latest Bond film, and instead is one of the oldest and most sacrosanct principles of international law.

In late April 2012 Cheng Guancheng, a Chinese dissident activist, escaped house arrest and fled to the U.S embassy in Beijing. Arriving days before a planned visit from U.S Secretary of State Hilary Clinton, his residence in the U.S embassy sparked a brief diplomatic crisis between the United States and China. This crisis was seemingly reconciled in May 2012 when Mr Guancheng flew with his family to the United States to take up a position at a U.S university.

In developments much closer to home, wikileaks founder Julian Assange appears to be avoiding his imminent extradition to Sweden by residing in the Ecuadorian embassy in London. Mr Assange faces accusations of sexual assault in the Scandinavian country but has sought the sympathy of Ecuadorian officials to prevent the extradition which could see him further transferred to the United States. Mr Assange’s primary fear is that if extradited to the United States he could face the death penalty in relation to charges concerning his dissemination of confidential information.

Drawing on examples from these two recent cases, this post intends to set out the position of the embassy in international law and provide a brief uncritical explanation of why individuals wanted by a forum State have sought protection in the diplomatic premises of other nations.

The emergence of the embassy in international law

The relevant law which has led to the UK Foreign Office informing the Metropolitan Police that Mr Assange is out of their reach so long as he resides in the Ecuadorian embassy is found in the Vienna Convention on Diplomatic Relations (VCDR). As highlighted by the preamble to this international treaty, the provisions contained within the Convention were not new in 1961 when the treaty was formally created, but are a codification of principles which have been followed for hundreds of years in relation to the diplomatic official:

‘Recalling that peoples of all nations from ancient times have recognized the status of diplomatic Agents’

Writing in 1924 Korf highlighted that even in ancient civilizations the position of the diplomatic official was given a protected status:

‘[i]t was recognized everywhere that the envoy had a specially privileged position; his person was inviolable and sacred, his status abroad was protected by the principle of extraterritoriality; he was exempt from municipal and local laws and taxation’

By providing an individual with a special protected status tribes, kingdoms and other large groupings could negotiate differences and conduct trade without the fear that their envoy or messenger would be the victim of attack or imprisonment. The system was mutually beneficially between different parties as if an envoy of one kingdom was endangered or imprisoned while conducting his role in a receiving kingdom, his contemporary in his own kingdom would be at risk of direct retaliation. In effect, according to Dixon, the diplomat was seen as a representative or alter ego of the sovereign and was thus entitled to all of the immunities which he or she would have enjoyed.

Eileen Denza has stated that even before the congress of Westphalia in 1648, where international law is commonly seen to have emerged into its modern Sovereign State form, permanent legations were accepted as the normal way of conducting international business between different kingdoms or tribes. This is evident in that France’s permanent representation abroad began as early as 1522 when King Francis I sent a delegation to the Swiss.

Vienna Convention on Diplomatic Relations

In the period immediately following WW2, when international law was arguably at its most fertile and the concurrent demise of colonialism saw the creation of numerous new nations, the decision was made to codify the customary provisions which had previously regulated the law on embassies. Listed in the preamble to the treaty the purpose of the VCDR was for the ‘the maintenance of international peace and security, and the promotion of friendly relations among nations,’ and ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’.

Denza notes that, even despite the diplomatic problems caused by the Cold War, the treaty was relatively straightforward to negotiate. This was partly because the States who negotiated the treaty had generally followed the rules they were negotiating for hundreds of years until the point of codification, and also because States had a common interest in the successful creation of the treaty. Just as with the tribes and kingdoms of centuries before, States may have had enormous gripes and ideological differences with one another, however as the sanctity of diplomatic channels benefitted all parties, they could agree on the sovereign immunity of their diplomats abroad and safety of their embassies.

Entering into force in April 1964, the treaty currently has 60 signatories and 187 parties making it one of the most universally accepted provisions in international law. Dixon highlights that in the US Diplomatic and Consular Staff in Tehran Case the Court has indicated that a great part of the VCDR now also makes up customary international law as well as international treaty law.

The inviolability of the embassy

The reason why Mr Guancheng fled to the U.S embassy in Beijing, and why Mr Assange is currently residing in the Ecuadorian embassy in London, is because it is not only the position of the diplomat but of the embassy premises which are out of reach of the authorities of the forum government.  The inviolability of the diplomatic premises are a natural extension of the protection provided to diplomats. In theory it enables diplomatic staff the freedom to carry out their duties and functions conscious that they will not be harassed or intimidated by officials of the receiving State.

Their sanctity is provided for by Article 22 of the VCDR which states that:

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

It is the blanket inviolability of the embassy, visible here in section 1, which creates this loophole in international law. Intended seemingly to protect ambassadors, staff and their sensitive materials it is this provision which has the capacity to protect individuals within embassy premises also. Signed by both Ecuador and the United Kingdom in 1961, this safeguard is what is currently preventing the Metropolitan Police from gaining entry to the Ecuadorian embassy and arresting Mr Assange for breaching his bail conditions.

Although there is a certain irony in Mr Assange availing himself of embassy protection when his organisation undoubtedly caused diplomatic headaches for embassies all over the world, he will be safe within the Ecuadorian Embassy for as long as the mission is willing to accommodate him. Although it is likely that his visit to the embassy will be over in a matter of days, as Ecuadorian officials consider what approach to take on his case, it is not unheard of for individuals to spend long periods of time living in another State’s embassy. For instance, the Hungarian Priest Jozsef Mindszenty spent 15 years of voluntary confinement in the U.S Embassy in Budapest.

Thus, it is the right afforded to the Ecuadorian State under international law which is currently protecting Mr Assange. My next blog post will consider the responsibility of the Embassy State (the ‘sending State’) when an individual claims refuge there from human rights abuses.

– C. Mallory

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