Africa will celebrate 52 years of regionalism on 25 May 2015. The Organization of African Unity (OAU) was set up to “safeguard and consolidate the hard-won Independence as well as the sovereignty and territorial integrity of our states, and to fight against neo-colonialism in all its forms” as stated in the preamble of the OAU Charter.
The African Union (AU) on the other hand appears to be a different strain of Pan-Africanism—one which no doubt has roots in the OAU but not in a fight against colonialism but rather with a goal to develop African states politically and socio-economically.
We see this in the preamble of the African Union Constitutive Act which states that the AU is:
…the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and of the need to promote peace, security and stability as a prerequisite for the implementation of our development and integration agenda
Regardless of differences between objectives of the OAU and AU, both have one common motivation and devotion—Improved development of the continent. For the OAU, development could not materialize while still under the clutches of imperialism and colonialism.
The Human Development Index (HDI) is a summary measure published by the United Nations Development Programme (UNDP) of key dimensions of development namely:
long and healthy life
access to knowledge and
decent standard of living
It’s one way to measure how well a people are doing. The dimensions are as follows:
The 2013 Africa Progress Report gives a sobering summary of human development on the continent thus far. This is aptly captured in a number of the infographics contained in the report. The one I wish to consider is the one captured in the header.
This graphic focused on 20 sub-Saharan Africa (SSA) countries identified by the IMF as resource intensive. Together they account for about 56 per cent of the region’s population and around 79.6 per cent its GDP. This region according to the World Bank’s Africa’s Pulse Volume 7, sub-Saharan African countries have been growing at a steady pace for years—driven in part by the extractives sector.
As one report put it, “On one estimate, extractive industries have accounted for around one-third of regional GDP growth over the past decade – more than transport, telecommunications and manufacturing combined.”
The challenge is there exists a wide gap between economic growth in sub-Saharan Africa and human development. The wealth rank of an overwhelming majority of this resource rich SSA countries are way higher than their HDI rank meaning the wealth or growth is not translating into better human development for citizens.
The economic growth phenomenon in sub-Saharan Africa will not last forever. For that reason, while it lasts, it should be taken advantage of for the good of Africa.
Government is established amongst other things to devise fiscal policies that help redistribute income/wealth. Failure to do this will invariably lead to ever widening inequality—which has potential to increase violence and promote instability.
In providing a critical appraisal of the refuge being provided Julian Assange, I will first talk about who Julian Assange is and how he ended up in the Ecuadorian Embassy. After this, the paper will take a look at what the Vienna Convention on Diplomatic Relations 1961 is—specifically how Article 41(3) of the convention relates to the subject under discussion. In addition to this, the presentation will look at what some other legal scholars have to say about the subject under discussion.
Who is Julian Assange?
Julian Assange is an Australian publisher, journalist, computer programmer, activist and whistleblower from Townsville, Queensland, Australia. In 2006, he and some friends founded Wikileaks where he worked as its editor-in-chief according to the Wikileaks website.
Wikileaks operated out of Sweden probably because of the country’s strict anonymity laws. Between 2006 and 2009, Mr. Assange and Wikileaks gained international notoriety for making public, very large amounts of previously confidential government and corporate information.
The most cited of the whistle blowing documents are the ones allegedly obtained from Chelsea Manning (formerly Bradley Edward Manning, a U.S. Army intelligence analyst). The documents included:
the Collateral Murder video (April 2010): This is the Baghdad airstrike video
the Afghanistan war logs (July 2010): This comprises 91,731 documents
the Iraq war logs (October 2010): This is made up of 391,832 classified military reports covering the period January 2004 to December 2009
over a quarter of a million diplomatic cables (November 2010)
the Guantánamo files (April 2011)
The U.S. understandable unhappy with the collateral damage caused by the leaks of the classified information opened investigations into Wikileaks and Julian Assange.
Why did Assange seek refuge at the Ecuadorian Embassy?
Right about the time the U.S. opened investigations into Julian Assange, the Swedish government received complaints from two women who alleged that Julian Assange had sexually abused them.
Mr. Assange was in the UK when and European Arrest Warrant (EAW) was issued for his arrest so he could come and answer questions. The warrant listed four alleged offenses namely:
one count of unlawful coercion
two counts of sexual molestation
one count of lesser-degree rape (European Arrest Warrant Ref No. Am-131226-10, 2010)
Julian Assange refused to submit himself to the Swedish authorities and a debate soon ensued in the UK where he was at the time of the serving of the warrant. The UK was initially unsure if such a warrant could be served in the UK. Eventually the UK Supreme Court “…found that European prosecutors could issue extradition warrants in the UK without any judicial oversight, even though Parliament intended otherwise” (Ambos, 2012). It had been agreed that Assange would be extradited to Sweden. The UK court granted Julian Assange bail on December 16, 2010.
Assange took advantage of this, went to the Ecuadorian Embassy in London to request “diplomatic protection of the Ecuadorian State, invoking the norms on political asylum in force (Statement of the Government of the Republic of Ecuador on the asylum request of Julian Assange , 2012). The Ecuadorian government granted this request citing among others Article 41 of the Constitution of the Republic of Ecuador which defines the right to grant asylum. The right to asylum is also enshrined in “Article 4.7 of the Organic Law of Foreign Service of 2006 of the Ministry of Foreign Affairs, Trade and Integration of Ecuador to know the cases of diplomatic asylum, according to the laws, the treaties, the rights and the international practice”.
Mr. Assange has been taking refuge in the Ecuadoran embassy for the past 2 years. At a cost to taxpayers of an estimated £6 million, the UK police have for this period been stationed around the embassy (Robinson, 2014).
The Vienna Convention on Diplomatic Relations 1961
The United Nations Conference on Diplomatic Intercourse and Immunities took place in Vienna from 2 March to 14 April 1961. Eighty-one delegates took part of which, seventy-five were United Nations members. The convention was signed on 18 April, 1961 and entered into force on 24 April 1964 in accordance with article 51 (Denza, 2009).
As of the time of this writing, the convention has sixty Signatories and one hundred and ninety Parties.
The Convention describes the framework for establishing, maintaining and terminating diplomatic relations on a basis of consent between independent sovereign States. Article 22 states the inviolability of mission premises – which in Julian Assange’s case bars “any right of entry by law enforcement officers of the receiving State and imposing on the receiving State a special duty to protect the premises against intrusion, damage, disturbance of the peace or infringement of dignity” (Denza, 2009).
Article 41(3) states that:
The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
The functions of diplomatic missions are captured in Article 3:
The functions of a diplomatic mission consist, inter alia, in:
Representing the sending State in the receiving State;
Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
Negotiating with the Government of the receiving State;
Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission
According to the Statement of the Government of the Republic of Ecuador on the asylum request of Julian Assange, “On June 19, 2012, the Australian citizen Julian Assange, showed up on the headquarters of the Ecuadorian Embassy in London, with the purpose of requesting diplomatic protection of the Ecuadorian State, invoking the norms on political asylum in force. The requester has based his petition on the fear of an eventual political persecution of which he may be a victim in a third State, which can use his extradition to the Swedish Kingdom to obtain in turn the ulterior extradition to such country”.
As per the 2006 Draft Articles on Diplomatic Protection adopted by the International Law Commission at its fifty-eighth session, diplomatic protection is defined by Article 1 as “the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility”.
Article 3 (1) states that, “The State entitled to exercise diplomatic protection is the State of nationality”. Article 4 clarifies what is meant by state of nationality: “For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States or in any other manner, not inconsistent with international law.”
Mr. Assange did not qualify for any of the above.
Article 5 (3) adds that “Diplomatic protection shall not be exercised by the present State of nationality in respect of a person against a former State of nationality of that person for an injury caused when that person was a national of the former State of nationality and not of the present State of nationality”.
Diplomatic protection is this extended to nationals (Article 3), corporations (Article 9), stateless persons and refugees (Articles 8).
Below is Article 8:
A State may exercise diplomatic protection in respect of a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.
A State may exercise diplomatic protection in respect of a person who is recognized as a refugee by that State, in accordance with internationally accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.
Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the State of nationality of the refugee.
Mr. Assange at the time of requesting for diplomatic protection was and is currently not a national, corporation, a stateless person but may be considered as a refugee. Refuge is not a concept of customary international law
The Convention relating to the Status of Refugees defines refugee as:
…any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Mr. Assange could qualify as a refugee not because Australia was no longer hospitable to him but because he fears being persecuted for reasons of membership of a particular social group i.e. Wikipedia and for his political opinions. The questions that beg to be answered though are:
Does this fear exonerate him from the criminal offences for which he has been alleged to commit?
Does he have any substantial proof that Sweden will hand him over to the United States?
To what extent can Ecuador infringe upon the judicial process of the receiving state while brazenly challenging its authority?
The same 1951 convention states in Article 1 (F)
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
The (b) is a valid argument for this convention not applying to Julian Assange if one were to use the argument that he committed non-political crime(s) i.e. the offenses stated in the European arrest warrant that Brittan was hindered by Ecuador form effecting.
The word “asylum” is said to be derived from the Latin equivalent of the Greek word “asylon,” which means freedom from seizure (Boed, 1994). Writing on “Asylum in International Law”, in the Encyclopedia Britannica, Professor George J. Andreopoulos differentiates 3 types of asylum:
Territorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition…
Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought. Cases of extraterritorial asylum granted in embassies, legations, or consulates (generally known as diplomatic asylum) are often occasions for dispute. For example, after an unsuccessful uprising against the communist government of Hungary in 1956, the United States controversially granted diplomatic asylum to dissident Hungarian Roman Catholic József Cardinal Mindszenty, who was given refuge in the U.S. embassy and remained there for 15 years.
Neutral asylum is employed by states exercising neutrality during a war to offer asylum within its territory to troops of belligerent states, provided that the troops submit to internment for the duration of the war (Andreopoulos, 2014).
What has been granted Assage is thus Extraterritorial asylum.
The right to asylum has further been subdivided by Reed (1994) into 3:
the right of a state to grant asylum: This is taken from the principle that every sovereign state is deemed to ,have exclusive control over its territory and hence over persons present in its territory
the right of an individual to seek asylum: This comes from the principle that “a State may not claim to ‘own’ its nationals or residents.”
the right of an individual to be granted asylum: There is no general acceptance of this ‘right’ under international law
The Universal Declaration of Human Rights (UNDHR) in Article 14 states that:
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Diplomatic asylum can be said to be founded on this article.
The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees regulates national legislation with respect to political asylum because these form the primary instruments for the protection of people seeking asylum and refugees.
The 1951 Convention provides a way for determining who qualifies for the legal status of refugees, and also stipulates that they are not returned to the countries they run away from where their lives might be in danger (refoule).
The International Covenant on Civil and Political Rights of 1966 (ICCPR) is a treaty and provides in Article 26 that:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2 of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa which entered into force on June 20, 1974 also states:
Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality.
The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.
Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the Member State granting asylum.
Where a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presented himself as a refugee pending arrangement for his resettlement in accordance with the preceding paragraph.
For reasons of security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin.
While the UNDHR makes room or can be stretched to include Extraterritorial asylum, it would seem the others cannot. They rather make clear a case for territorial asylum.
Historical Antecedents: The Case of József Mindszenty & Manuel Noriega
The Cardinal was critical of the pro-Nazi authorities under which he had served 8 years in prison even though he was the Prince Primate, and cardinal, and leader of the Catholic Church in Hungary. He was also critical of communism and so when the Soviet Union took power, he sought asylum from the U.S. Embassy in Budapest. It was granted and he ended up living there for 15 years.
In 1989, President Manuel Noriega was wanted by the US on several charges. He sought refuge in the Apostolic Nunciature of the Holy See which was granted by the Papal Nuncio in Panama.
In both cases, the church premises and embassy remained inviolable and the exit of the refuge seekers was only as a result on agreements arrived at by the different actors involved.
The 22 September 1975, UN General Assembly, Question of Diplomatic Asylum: Report of the Secretary-General defines diplomatic asylum as follows:
The term “diplomatic asylum” in the broad sense is used to denote asylum granted by a State outside its territory, particularly in its diplomatic missions (diplomatic asylum in the strict sense), in its consulates, on board its ships in the territorial waters of another State (naval asylum), and also on board its aircraft and of its military or para-military installations in foreign territory. The other form of asylum granted to individuals, namely, that which is granted by the State within its borders, is generally given the name “territorial asylum” (UN General Assembly, 1975).
This report shows clearly how divided world leaders were almost 20 years after the 1951 convention on diplomatic asylum.
Elements of diplomatic asylum as granted to Assange can be summed up in the following according to Simona Leonavičiūtė:
It is internal asylum;
granted in diplomatic missions or consulates;
in the territory of the receiving State;
by the head of mission of the Sending State;
for fugitives from the Receiving State;
who are being sought mainly for political reasons
Again, Assange was not being sought by the UK or Sweden for political reasons. As of today, no charges as yet have been brought against him—only the offenses stated in the European Arrest warrant.
The term ‘diplomatic asylum’ has come under disputation by some scholars with regards to this particular case.
Curiously, the Vienna Convention on Diplomatic Relations does not expressly make mention of diplomatic asylum.
In the republic of Ecuador’s government’s detailed statement as to why they granted Assange refuge, the statement reads, “[F]aithful to its tradition to protect those who seek shelter in its territory or in the premises of its diplomatic missions, [The Government of Ecuaddor] has decided to grant diplomatic asylum to the citizen Julian Assange” (Statement of the Government of the Republic of Ecuador on the asylum request of Julian Assange , 2012).
A Professor of Public International Law at the University of Luxembourg and an associate tenant at 3 Hare Court, London, Matthew Happold has argued that the general use of the term “diplomatic asylum” in this peculiar case is flawed.
Recalling the Colombia v Perú  ICJ 6 (also known as the Asylum Case) brought before the International Court of Justice, the leader of the Peruvian APRA movement sought protection in a Colombian Embassy in Lima. In this matter the International Court of Justice ruling` stated:
In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves derogation from the sovereignty of that State. It 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. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.
The opinion suggests that where there is no treaty or customary rules to the contrary, if Ecuador for instance grants diplomatic asylum to Assange, this constitutes a derogation of the sovereignty of the receiving state i.e. the UK.
Here’s the court’s opinion citing a previous judgment:
…in principle, asylum cannot be opposed to the operation of justice. The safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country, whereas it is his duty to respect them (HAYA DE LA TORRE CASE: Colombia v. Peru, 1951)
From the above judgment as well as on the basis of Article 41(3) of the Vienna Convention on Diplomatic Relations (1961), it is amply clear that a diplomatic mission is not supposed to generally concern itself with obstructing the operation of justice. Furthermore the Vienna Convention on Diplomatic Relations, demands that Ecuador’s government and mission respect the UK’s laws and regulations—not interfere with them—especially when it concerns the regular application of the laws and against the jurisdiction of legally constituted tribunals”—in this case the UK Supreme Court.
It is true that the offense was not committed in the UK. But it is also true that the UK was mandated to effect that warrant but were prohibited in doing so by the granting of diplomatic asylum.
Ambos (2012) differentiated between conventional asylum and diplomatic asylum. The latter according to him is misconceivved by the Ecuadorian Government. He argues that “despite repeated occurrence of such escapes to embassies – [it] is not acknowledged in international law”. And because it is not acknowledged in genera international law, “States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case)” (Akande, 2012).
Ambo (2012) cites the ICJ in the aforementioned case of the Peruvian political figure Raúl Haya de la Torre making mention that, the ICJ “held that such kind of asylum can only be recognized if founded on explicit legal terms…This results from the fact that granting diplomatic asylum constitutes interference in the territorial state’s internal affairs” thus agreeing with the position held by Happold (2012).
Ambos (2012) adds, “For the sending state granting asylum would, as a consequence, deprive the receiving state jurisdiction over the fugitive. This essentially distinguishes diplomatic asylum from conventional asylum that is granted by a state to persons situated on its own territory” (Ambos, 2012).
Arguments against Ecuadorian Asylum to Assange
Article 41 of the Vienna Convention on Diplomatic Relations (1961) states:
Without prejudice to their privileges and immunities, it is the DUTY of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
Article 3 (3) states that:
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
On the question, DOES INTERNATIONAL LAW PROHIBIT DIPLOMATIC ASYLUM?, Paul Behrens, in the Michigan Journal of International Law cites Article 41 (1) and and makes the following contribution:
While no article of the VCDR deals specifically with diplomatic asylum, the Convention does contain two norms in particular that have a direct and prima facie limiting effect on this practice. The first of them is the ban on interference itself; that norm is enshrined in the general provision on duties of diplomatic agents (Article 41(1) VCDR), which reads: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”
But the VCDR does not offer any clarification on the concept of interference, and it certainly does not dwell on the question of whether sheltering refugees on mission premises falls within its scope. The ICJ, too, has not been able to provide a detailed examination of this phenomenon. In the Asylum Case mentioned above, the court did not offer objective parameters for its rather general view that asylum is a form of “intervention.” All the same, the finding must count as one of the most explicit considerations of diplomatic interference by the ICJ (Behrens, 2014).
Diversion vis-à-vis facts and law
The Republic of Ecuador is in clear violation of Article 41(3) because it is clear that the Ecuadorian government is using its premises in a manner incompatible with the functions of the mission as laid down in the Convention. Nowhere in the functions of the mission is a mission granted GENERAL permission to harbor fugitives from the law of the receiving nation. Again nowhere in the functions is any mission granted a GENERAL permission to interrupt or interfere with legal proceedings within a receiving state. This is the case in Julian Assange’s saga. The Ecuadorian government interrupted with the administration of justice in both Sweden and the UK.
As has been noted by the Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen in Germany who also works as a Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen, “Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010” (Ambos, 2012).
Much emphasis is placed by the media and the Assange camp on Wikileaks and Assange’s involvement in making public of classified information but the fact is that, the European Arrest Warrant issued against Mr. Assange has absolutely nothing to do with his Wikileaks activities—but everything to do with the allegations leveled against him by two women in Sweden.
It is noteworthy that in “… the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (Ambos, 2012).
What then is the Ecuadorian position for granting a fugitive from the law diplomatic asylum based on? Pure conjecture and political expediency it seems but not the facts of the warrant! In the detailed statement of the Government of the Republic of Ecuador explaining why Julian Assange was granted diplomatic asylum, none of the allegations of committing sexual offences were taken into consideration.
Professor Kai Ambos explains that “According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado” (Ambos, 2012). This means the UK is responsible for enforcing the warrant against Mr. Assange but they are hindered in doing so because of the interference by Ecuador.
To therefore obstruct the operation of justice in Sweden and the UK without considering the substance of the Warrant because of which Mr. Assange is wanted for questioning in Sweden is a violation of the convention. Such diplomatic conduct is not part of the functions of the Ecuadorian mission as laid out in Article 3 of the Vienna Convention on Diplomatic Relations.
In spite of Ecuador clearly flouting Article 41(3), it’s not justification for the UK not to adhere to Article 22 of the same Convention which states that:
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.
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.
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.
As Professor Eileen Denza points out, to allow Ecuador to grant asylum to Assange in this case would be tantamount to “shooting a hole into the system of extradition”.
Professor of Public International Law at the University of Oxford, Dapo Akande has noted that, “It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law” (Akande, 2012).
Today I would like to share two things—an amazing World Bank blog and a TEDGlobal 2014 talk filmed Oct 2014 on the subject of remittances. The blogger/speaker is Economist Dilip Ratha. According to his bio page on TED, he “was the first to point out the global and national significance of remittances and their social and economic impact. He is the manager of the Migration and Remittances team at the World Bank and the head of the Global knowledge partnership on migration and development (KNOMAD). He also co-coordinates the G8/G20 Global Remittances Working Group, and is involved in a number of other organizations focusing on remittances”.
The New York Times wrote of him, “No one has done more than Dilip Ratha to make migration and its potential rewards a top-of-the-agenda concern in the world’s development ministries.”
FACTS & FIGURES
In 2013, international migrants sent $413 billion home to families and friends — three times more than the total of global foreign aid (about $135 billion). This money, known as remittances, makes a significant difference in the lives of those receiving it and plays a major role in the economies of many countries. Economist Dilip Ratha describes the promise of these “dollars wrapped with love” and analyzes how they are stifled by practical and regulatory obstacles.
Dilip Ratha has also written a fascinating and enlightening blog with Dame Tessa Jowell titled, ‘It’s time to repeal the remittances “Super Tax” on Africa’. It’s a must read. Here are some excerpts:
Remittances are the shining light of development policy. While debate rages in austerity-hit Western capitals about spending on aid, remittances cost tax-payers nothing. Remittances to developing countries are worth nearly half a trillion dollars – that’s three times the level of aid – and they’re rising fast, quadrupling since the turn of the century. And remittances work. It’s hard to imagine a more efficient targeting system than people sending money home to their own families and the facts bear that out; remittances are linked to improved economic, health and education outcomes. And as if those benefits weren’t enough, remittances are a huge driver of financial inclusion, acting as a gateway to banking for the people sending and receiving them.
But people sending money home to many parts of the world, particularly sub-Saharan Africa, are paying far too much. They face what is, in effect, a remittances ‘super tax’. A worker sending $200 from London to Lagos can pay fees of over 13%, more than fifty percent above the global average. And within Africa it’s even worse, sending money from South Africa to Malawi could cost upwards of 20%. Of course we all expect some fees for financial transactions but there is strong evidence that these costs are excessive and are restricting the poverty-zapping remittances that reach poorer countries. Reducing fees for sub-Saharan Africa to the global average for instance would mean an extra $1.3 billion reaching families in the region.
…Indeed, if the cost of sending remittances could be reduced by just 5 percentage points relative to the value sent, remittance receipts in developing countries would receive over $20 billion dollars more each year than they do now. That amount of money could educate 18 million children and buy enough vaccines to prevent 8 million children dying from diseases like malaria.
To fix this situation, we need action on three fronts.
To read more on the action needed, read the enlightening blog here or use this shortened link: http://ow.ly/K6zUv
For whatever reason, you may not like Vladimir Putin but take a couple of minutes to analyze the transcript of his carefully crafted answer to this Senior Advisor at the Valdai International Discussion Club, 24 October 2014 quoted below the full video.
SENIOR INTERNATIONAL ADVISOR, AKIN GUMP STRAUSS HAUER & FELD LLP TOBY TRISTER GATI (retranslated from Russian): I will speak in the spirit of the Valdai forum. I hope you will understand my question in this same way.
Several weeks back, Mr Obama spoke of three challenges: Ebola, the Islamic State, and Russia, the Russian Federation, because of the events in Ukraine.
This statement greatly angered the Russian leaders. And I must say that what I heard from you today was not talk of three challenges, but of a single global problem that you outlined – the United States.
Some in the United States will welcome what you said because these are not statements about ‘soft power’, perhaps, not about a Cold War, but about a ‘hot war’ in the global system created by the United States.
Others will be surprised at your words and your tone, because many in the United States do not think that it is a good idea to completely destroy our ties, and I am one of these people.
I do not think that foreign policy should be based on not taking Russia’s interests into account, but I think that America’s interests need to be respected too.
To be honest, I do not recognise the country that you described in your statements.
My question is, who is the ‘they’ that you refer to in your statements? Is it President Obama, is it the US elite, which sets the foreign policy, or is it the American people? What did you describe as the ‘United States’ genetic code in the post-war world’? Did you say that you cannot work with the United States in general or with their closest allies?
One more question: do you see any special role that other countries could play, in particular China?
Finally and most importantly, what response do you expect from the Americans to your words?
VLADIMIR PUTIN: First of all, I did not say that we perceive the United States as a threat. President Obama, as you said, views Russia as a threat. I do not think that the United States is a threat to us. I think that, to use a hackneyed term, the ruling establishment’s policies are misguided. I believe that these policies are not in our interests and undermine trust in the United States, and in this sense they damage the United States’ own interests by eroding confidence in the country as a global economic and political leader.
There are plenty of things we can pass over in silence. But I already said, and Dominique mentioned the same thing too, that unilateral action followed by a search for allies and attempts to put together a coalition after everything has already been done is not the way to reach agreement. This kind of unilateral action has become frequent in US policy today and it leads to crises. I already spoke about this.
President Obama spoke about the Islamic State as one of the threats. But who helped to arm the people who were fighting Assad in Syria? Who created a favourable political and informational climate for them? Who pushed for arms supplies?
Are you really not aware of who is fighting there? It is mostly mercenaries fighting there. Are you not aware that they get paid to fight? And they go wherever they get paid more.
So they get arms and they get paid for fighting. I have heard how much they get paid. Once they’re armed and paid for their services, you can’t just undo all that. Then they hear that they can get more money elsewhere, and so they go there, and then they capture oil fields in Iraq and Syria say, start producing oil, and others buy this oil, transport it and sell it.
Why are sanctions not imposed on those engaged in such activities? Doesn’t the United States know who is responsible? Isn’t it their own allies who are doing this? Don’t they have the power and opportunity to influence their allies or do they not want to do so? But then why are they bombing the Islamic State?
They started producing oil there and were able to pay more, and some of the rebels fighting for the so-called ‘civilised opposition’ rushed off to join the Islamic State, because they pay better.
I think this is a very short-sighted and incompetent policy that has no basis in reality. We heard that we need to support the civilised democratic opposition in Syria, and so they got support, got arms. And the next day half the rebels went off and joined the Islamic State. Was it so hard to foresee this possibility a bit earlier? We are opposed to this kind of US policy. We believe it is misguided and harmful to everyone, including to you.
As for the question of taking our interests into account, we would love to see people like you in charge at the State Department. Perhaps this would do something to help turn the situation around. If this does not happen, I ask you to get the message across to our partners, the US President, Secretary of State and other officials, that we do not want or seek any confrontation.
You think that with some respect for our interests many problems could be resolved. But this needs to be about action, not just words. Respecting others’ interests means, as I said in my opening remarks, that you cannot just put the squeeze on others by using your exceptional economic or military clout.
It is no good thing that they are fighting in Iraq, and Libya ended up in such a state that your ambassador there was killed. Are we to blame for these things? The [UN] Security Council took the decision at one point to declare a no-fly zone in Libya so that Gaddafi’s aircraft would not be able to bomb the rebels. I do not think this was the wisest decision, but be that as it may. But what happened in the end? The United States started carrying out air strikes, including against targets on the ground. This was a gross violation of the UN Security Council resolution and essentially an act of aggression with no resolution to support it. Were we to blame for this? You did this with your own hands. And what was the result? Your ambassador was killed. Who is to blame? You can only blame yourselves. Was it a good thing for the United States that an ambassador was killed? It was a terrible thing, a terrible tragedy.
But you should not look for scapegoats if you are the ones who made the mistakes. On the contrary, you need to overcome the desire to always dominate and act on your imperial ambitions. You need to stop poisoning the minds of millions of people with the idea that US policy can only be a policy of imperial ambitions.
We will never forget how Russia helped the United States to obtain independence, and we will never forget our cooperation and alliance during World War I and World War II. I think that the American and Russian peoples have many deep strategic interests in common, and it is on these mutual interests that we need to build our foundations.
PROFESSOR OF POLITICAL SCIENCE, DIRECTOR OF THE CENTER FOR GOVERNANCE AND PUBLIC POLICY AT CARLETON UNIVERSITY (OTTAWA) PIOTR DUTKIEWICZ: Mr. President, if I may I would like to go back to the issue of Crimea, because it is of key importance for both the East and the West. I would like to ask you to give us your picture of the events that lead to it, specifically why you made this decision. Was it possible to do things differently? How did you do it? There are important details – how Russia did it inside Crimea. Finally, how do you see the consequences of this decision for Russia, for Ukraine, for Europe and for the normative world order? I am asking this because I believe millions of people would like to hear your personal reconstruction of those events and of the way you made the decision.
VLADIMIR PUTIN: I do not know how many times I spoke about this, but I will do it again.
On February 21, Viktor Yanukovych signed the well-known documents with the opposition. Foreign ministers of three European countries signed their names under this agreement as guarantors of its implementation.
In the evening of February 21, President Obama called me and we discussed these issues and how we would assist in the implementation of these agreements. Russia undertook certain obligations. I heard that my American colleague was also ready to undertake some obligations. This was the evening of the 21st. On the same day, President Yanukovych called me to say he signed the agreement, the situation had stabilized and he was going to a conference in Kharkov. I will not conceal the fact that I expressed my concern: how was it possible to leave the capital in this situation. He replied that he found it possible because there was the document signed with the opposition and guaranteed by foreign ministers of European countries.
I will tell you more, I told him I was not sure everything would be fine, but it was for him to decide. He was the president, he knew the situation, and he knew better what to do. “In any case, I do not think you should withdraw the law enforcement forces from Kiev,” I told him. He said he understood. Then he left and gave orders to withdraw all the law enforcement troops from Kiev. Nice move, of course.
We all know what happened in Kiev. On the following day, despite all our telephone conversations, despite the signatures of the foreign ministers, as soon as Yanukovych left Kiev his administration was taken over by force along with the government building. On the same day, they shot at the cortege of Ukraine’s Prosecutor General, wounding one of his security guards.
Yanukovych called me and said he would like us to meet to talk it over. I agreed. Eventually we agreed to meet in Rostov because it was closer and he did not want to go too far. I was ready to fly to Rostov. However, it turned out he could not go even there. They were beginning to use force against him already, holding him at gunpoint. They were not quite sure where to go.
I will not conceal it; we helped him move to Crimea, where he stayed for a few days. That was when Crimea was still part of Ukraine. However, the situation in Kiev was developing very rapidly and violently, we know what happened, though the broad public may not know – people were killed, they were burned alive there. They came into the office of the Party of Regions, seized the technical workers and killed them, burned them alive in the basement. Under those circumstances, there was no way he could return to Kiev. Everybody forgot about the agreements with the opposition signed by foreign ministers and about our telephone conversations. Yes, I will tell you frankly that he asked us to help him get to Russia, which we did. That was all.
Seeing these developments, people in Crimea almost immediately took to arms and asked us for help in arranging the events they intended to hold. I will be frank; we used our Armed Forces to block Ukrainian units stationed in Crimea, but not to force anyone to take part in the elections. This is impossible, you are all grown people, and you understand it. How could we do it? Lead people to polling stations at gunpoint?
People went to vote as if it were a celebration, everybody knows this, and they all voted, even the Crimean Tatars. There were fewer Crimean Tatars, but the overall vote was high. While the turnout in Crimea in general was about 96 or 94 percent, a smaller number of Crimean Tatars showed up. However 97 percent of them voted ‘yes’. Why? Because those who did not want it did not come to the polling stations, and those who did voted ‘yes’.
I already spoke of the legal side of the matter. The Crimean Parliament met and voted in favour of the referendum. Here again, how could anyone say that several dozen people were dragged to parliament to vote? This never happened and it was impossible: if anyone did not want to vote they would get on a train or plane, or their car and be gone.
They all came and voted for the referendum, and then the people came and voted in favour of joining Russia, that is all. How will this influence international relations? We can see what is happening; however if we refrain from using so-called double standards and accept that all people have equal rights, it would have no influence at all. We have to admit the right of those people to self-determination.
Appiah – This decade 2015-2014 has been declared the International Decade for People of African Descent. It’s laudable initiative but not a strong enough denunciation and rejection of the atrocities perpetrated against people of African descent. When one reads the full background of this proclamation, we cannot help but feel this resolution was birthed in part as a result of recent police brutalities against people of colour in the United States of America with the Justice Department seemingly looking the other way. If this was the case, it should have been stated as such. If these atrocities happened anywhere else, chances are the resolution would have been more straight to the point calling out names and demanding justice. But the nation committing these atrocities is not just any other nation. Its the United States of America- the lone standing hegemon in the international system.
Not only is the United States of America the sole hegemon in the international system, it also picks up a sizable portion of the bills at the United Nations and its agencies. Since the United Nations depends to an extent on United States of America’s financial support, it seems it is ‘wary’ of directly reprimanding or rebuking the United States of America forthright. Instead it has chosen a round about approach, making use of blanket statements that point no fingers at the United States of America.
The above notwithstanding, the following background information is quite informative.
United Nations – There are around 200 million people identifying themselves as being of African descent live in the Americas. Many millions more live in other parts of the world, outside of the African continent.
Whether as descendants of the victims of the transatlantic slave trade or as more recent migrants, they constitute some of the poorest and most marginalized groups. Studies and findings by international and national bodies demonstrate that people of African descent still have limited access to quality education, health services, housing and social security.
In many cases, their situation remains largely invisible, and insufficient recognition and respect has been given to the efforts of people of African descent to seek redress for their present condition. They all too often experience discrimination in their access to justice, and face alarmingly high rates of police violence, together with racial profiling.
Furthermore, their degree of political participation is often low, both in voting and in occupying political positions.
In addition, people of African descent can suffer from multiple, aggravated or intersecting forms of discrimination based on other related grounds, such as age, sex, language, religion, political or other opinion, social origin, property, disability, birth, or other status.
The promotion and protection of human rights of people of African descent has been a priority concern for the United Nations. The Durban Declaration and Programme of Action acknowledged that people of African descent were victims of slavery, the slave trade and colonialism, and continue to be victims of their consequences.
The Durban process raised the visibility of people of African descent and contributed to a substantive advancement in the promotion and protection of their rights as a result of concrete actions taken by States, the United Nations, other international and regional bodies and civil society.
Still, despite these advances, racism and racial discrimination, both direct and indirect, de facto and de jure, continue to manifest themselves in inequality and disadvantage.
The International Decade for People of African Descent, proclaimed by General Assembly resolution 68/237 and to be observed from 2015 to 2024, provides a solid framework for the United Nations, Member States, civil society and all other relevant actors to join together with people of African descent and take effective measures for the implementation of the programme of activities in the spirit of recognition, justice and development.
It is also a unique opportunity to build on the International Year for People of African Descent, which was observed by the international community in 2011, and to further underline the important contribution made by people of African descent to our societies and to propose concrete measures to promote their full inclusion and to combat racism, racial discrimination, xenophobia and related intolerance.
You are cordially invited to participate in the 2014 STATE OF THE NATION SUMMIT, being held October 25, 2014, at the Sam Jonah Hall at the African University College of Communication, Accra, Ghana. The theme under consideration is: National Transformation: Role of the Youth.
The organizers would be delighted to have you join in the State of the Nation Summit. Personal invitations are not necessary to attend. This is an open event, and we welcome everyone who is interested in increasing their knowledge about the current state of the nation and what they can personally do to contribute to a positive transformational process.
The organizers are Team One CaaT GH—transforming one community at a time.
Below is a part of a speech by Ex-President Jerry John Rawlings on 12 September 2014 at a seminar attended by Namibian Prime Minister, leading Pan Africanists and other political figures. The Ex-Prez made some relevant observations about the global order. Here is one:
“In one fell swoop, the right of might was made to supersede and almost destroy the sacred might of right.”
This was the case with U.S. interventions in Afghanistan, Libya and the Ukraine. I like the United States of America. It is a great country with some amazing history and people.
Morality is not an easy subject to broach in our day—not by even the most ‘moral’ voices of our times. A man with alleged blood on his hands (by way of the coup d’état) might be deemed by some unfit to give such a public address on morality.
But with such an opinion, I’d beg to differ. Truth is Truth regardless of the mouth from which it ushers. President Rawlings has a somewhat blemished record tied to the military government he headed. Agreed! But to his credit, unlike some of SSA’s military rulers, he eventually returned Ghana to democratic rule despite the huge support he still enjoys from the Ghana Armed Forces. Do read his remarks with an unbiased lens if possible.
Ghana’s former President, Flt Lt Jerry John Rawlings, has in an address in Windhoek, Namibia, challenged the United States and other Western powers to restore morality into the manner they manage global affairs.
The Global financial Integrity disclosed that, “As a percent of GDP, Sub-Saharan Africa suffers more from illicit financial outflows than any other region in the world”. The gravity of this statement is better appreciated when one considers that this part of the globe constitutes a huge percentage of the world’s youthful populations—many of which are poor, live on less than a dollar a day and suffer from low human development with poor access to healthcare, education and security. In effect, the region that needs help the most suffers the most from Illicit Financial Flows (IFF) which if rightfully curbed could aid development.
In the past I have written about Illicit Financial Flows in my article entitled “Africa: Tackling Illicit Outflows” but I have not really taken the time to define what they are. So what are they?
Illicit flows are all unrecorded private financial outflows involving capital that is illegally earned, transferred, or utilized, generally used by residents to accumulate foreign assets in contravention of applicable capital controls and regulatory frameworks. Thus, even if the funds earned are legitimate, such as the profits of a legitimate business, their transfer abroad in violation of exchange control regulations or corporate tax laws would render the capital illicit.
Illicit money is money that is illegally earned, transferred, or utilized. If it breaks laws in its origin, movement, or use it merits the label.
Flight capital takes two forms. The legal component stays on the books of the entity or individual making the outward transfer. The illegal component is intended to disappear from records in the country from which it comes.
By far the greatest part of unrecorded flows are indeed illicit, violating the national criminal and civil codes, tax laws, customs regulations, VAT assessments, exchange control requirements, or banking regulations of the countries out of which the unrecorded/illicit flows occur.
There are two main channels through which illicit capital, unrecorded in official statistics, can leave a country.
The World Bank Residual model captures the first channel through which illicit capital leaves a country through its external accounts. The second type of illicit flows, generated through the mispricing of trade transactions, is captured by the Trade Misinvoicing model which uses IMF Direction of Trade Statistics.
Mohamed Sultan, an economic governance program officer at the Open Society Initiative for West Africa offers yet another explanation of IFFs as follows:
When money is moved secretly and illegally from one jurisdiction to another, this constitutes an illegal financial flow. For developing countries, the term refers to money that leaves the continent instead of being used to finance development.
Such funds may be proceeds from organized crime, smuggling, corruption, money laundering, tax evasion, or international trade manipulations.
While concentrated in a few countries such as Nigeria and Ghana, and essentially stemming from extractive and mining industries, IFFs are a burden for nearly all West African countries. Across the continent, only 3 percent of IFFs are derived from government corruption, while 33 percent comes from organized criminal activity and 64 percent from trade manipulations.
African economies have lost between $597 billion and $1.4 trillion in illicit financial flows in the past three decades. That’s nearly equal to the entire continent’s current gross domestic product. This plunder results in missed development opportunities, increased poverty, and continued injustice.
While many African nations are experiencing unprecedented economic growth, illicit financial flows (IFFs) prevent this growth from translating into better overall living conditions for Africans.
For more on measurements and the impact of IFFs on the human family and specifically sub-Saharan Africa, read the hyperlinked reports.
Equity and Justice form the foundation of enlightened ethical leadership—Solomon Appiah