This article is by Natalie Klein, a professor and dean of Macquarie Law School at Macquarie University. It was first published on The Conversation and is re-published here with permission.

analysis The drama surrounding Julian Assange continues to grow following Ecuador’s decision to grant him asylum.

He faces the threat of being seized in a raid by British authorities on the Ecuadorian Embassy in London, or the moment he steps out the Embassy door. The United Kingdom is compelled to act to fulfil its obligations to Sweden and extradite Assange to face possible charges of sexual assault. Assange doesn’t want to go to Sweden as he fears that he will be taken from there to the United States because of his involvement in the release of classified documents on Wikileaks. Ecuador, Britain, Sweden, the United States – all have an interest, and all have legal rights and obligations, in the treatment of Assange. And this all arises irrespective of the fact that he is an Australian national.

The international jostling around Assange may well raise questions as to the relevance of nationality in a globalised world. Instead, the fact that different countries have legal rights and obligations in relation to Assange has underlined the importance of territorial boundaries and state sovereignty.

Ecuador is insisting on the inviolability of its embassy, as its sovereign representation within the United Kingdom. Sweden is concerned with the prosecution of offences allegedly committed on its soil. The United Kingdom is seeking to adhere to its international obligations when an alleged offender is found within its territory. The United States is concerned about the potential violation of its laws with the release of government documents onto Wikileaks.

Nationality remains important in some respects, but there is a limit to what actions Australia can take because Australian nationality doesn’t mean we can disregard the laws of another country when travelling overseas. Indeed, the Attorney General Nicola Roxon has stated, “What I like to remind the community though is being an Australian citizen doesn’t give your country legal rights to interfere in other processes.” Her comment highlights a fundamental mismatch between community expectations and the legal reality when it comes to the treatment of nationals abroad.

Australia has a right to take up the claim of its nationals when they are injured or mistreated abroad, but it does not have an obligation to do so.

In Hicks v Ruddock, Justice Tamberlin of the Federal Court indicated that Australia may have a duty to consider taking up the claim of one of its nationals. But having to consider whether to do something is still quite different to being required to do something.

It could even be argued under international law that Australia is not yet entitled to take up any claim on behalf of Julian Assange. This right arises when obligations owed to a national abroad have been breached, and it is not clear what rights Assange has had violated at this point in time.

Even if there had been a violation of rights, then Australia’s right to take up that claim may only be exercised when all national remedies have been exhausted. This requirement anticipates that an individual would pursue his or her rights through a country’s judicial system, providing that country with the opportunity to redress any wrong suffered by the foreign national. Assange did not wait for the final verdict before the British courts, or to pursue his rights further before the European Court of Human Rights.

Both Australia and Assange have some legal rights at present, which are based on consular assistance. Consular rights allow for communications between a national and his or her government. The government can take steps to assist a national detained overseas by, for example, providing advice on gaining legal assistance and serving as a conduit of information to the individual’s family. The Foreign Minister, Senator Bob Carr, has indicated that Assange is receiving the same assistance that any other Australian would receive.

What Australia could do politically is quite a different question from what Australia must do legally to assist a national abroad. These points seem to be conflated when criticisms are directed at the government for perceived inaction. Jennifer Robinson, one of Assange’s legal advisors, clearly understands the difference, and has argued that Australia could do more diplomatically and should seek assurances from the United States about any actions it might take against Assange.

These diplomatic interventions are ultimately what might count the most for an Australian who is detained abroad. They appear to have made a difference for people like the “Bali Boy” and Harry Nicolaides who was convicted of insulting the Thai monarchy and, eventually, David Hicks.

But Assange is not the only national in trouble abroad. Members of the Bali Nine, Andrew Chan and Myuran Sukumaran are now dependent on clemency appeals to the Indonesian President to avoid death sentences for drug trafficking; Jock Palfreeman continues to languish in a Bulgarian prison on a conviction of murder with hooliganism despite glaring issues of due process in his trial.

Australians are constantly finding themselves in trouble overseas and turning to their government for assistance. But there is a limit to what Australia is legally required to do.

Ultimately, the diplomatic negotiations that assist Australian nationals happen outside of the media glare, and it cannot always be clear what steps the government takes or what it is prepared to do – until the details are released on Wikileaks.

Natalie Klein has received funding from an ARC Discovery grant, which has looked at Australia’s decisions to litigate in international law disputes concerning the protection of nationals abroad. This article was originally published at The Conversation. Read the original article. Image credit: Jose Mesa, Creative Commons

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1. Tezz
   Posted 17/08/2012 at 12:41 pm | Permalink | Reply

   Doing anything more than what we are currently doing would mean no more of the political comedy act that is going on, I thing we should sit back, drink a beer, and enjoy how it plays out.

   • Duke
     Posted 18/08/2012 at 4:11 pm | Permalink | Reply

     Yes, that will fix things, the beer garden policy is always a fine one…

2. Marcus
   Posted 17/08/2012 at 2:15 pm | Permalink | Reply

   We need to guarantee that he wont be extradited to a country that allows for execution.
   that is a the minimum, absolute minimum we should be doing.

   • Paul Maynard
     Posted 17/08/2012 at 2:48 pm | Permalink | Reply

     +1

   • Simon Reidy
     Posted 20/08/2012 at 3:07 pm | Permalink | Reply

     Exactly. That’s the most worrying aspect to all of this.

3. midspace
   Posted 17/08/2012 at 4:11 pm | Permalink | Reply

   “Sweden is concerned with the prosecution of offences allegedly committed on its soil”

   But Sweden have not charged him with anything. All they “claim” they want to do is question him.
   Which is why this case has been going on for so long.
   There is no precent to any country putting out an Interpol warrant for arrest, or extradition, simply for questioning.

   • Fenixius
     Posted 17/08/2012 at 5:29 pm | Permalink | Reply

     From what I have read, both Mr Assange personally and Ecuador have both made offers to conduct questioning in other ways; such as teleconference, telephone, meeting people at the Ecuadorian embassy in London… So it’s obviously about more than answering the questions.

   • PeterA
     Posted 20/08/2012 at 7:52 am | Permalink | Reply

     Just like to add another piece of hearsay, the Swedish can’t charge in absentia (for this crime? for all crime?). The extradition is not just for an interview. (I believe the extradition request uses words to the effect of “with intention to charge”).

4. Karl
   Posted 18/08/2012 at 4:16 am | Permalink | Reply

   Politics, secrecy and lobby groups are currently destroying society, I’m convinced of it.

5. Muso1
   Posted 18/08/2012 at 10:11 am | Permalink | Reply

   I think it’s reasonable and proper for Australia to demand Assange is protected against possible capital punishment. I also think Australia should lobby the UK and Sweden to conclude this matter in some alternative way, by sending a prosecution team from Stockholm to London for example.
   I don’t think anyone is whiter than white in this sage though, not Assange, not Equador or the USA.

6. Trevor
   Posted 18/08/2012 at 12:12 pm | Permalink | Reply

   I think that’s a fundamental point about all this – many people dismiss Assange as a ‘rapist’, or at the very least someone who has taken advantage of numerous women. Many people also believe he is trying to deliberately cause international instability with his ‘trouble-making’ wikileaks – I’ve spoken to several people who said ‘he bit off more than he could chew taking on the US government, now he’s having to pay’.

   But such arguments obscure the fundamental fact that regardless of what he has been accused of and may or may not have done, nations and governments must adhere to the law. Otherwise our entire legal structure is undermined by the very powers that have been entrusted to protect it and the very structure of society it supports.

   Julian Assange’s rights are at risk, and it is because of this, because we all want and expect our rights to be respected and due legal process to be followed, that this is such an important case. It is for these reasons the Australian government must pull out all stops in throwing the full weight of their support behind Assange.

   • Duke
     Posted 18/08/2012 at 4:13 pm | Permalink | Reply

     ‘nations and governments must adhere to the law’

     Since when has this applied? Carthage v Rome?

     grow up…

     • Tezz
       Posted 18/08/2012 at 4:23 pm | Permalink | Reply

       The better question should be, which law?

       We’ve got an Australian in Ecuadorian embassy in the UK facing extradition to Sweden and clearly wanted by the USA. That’s 5 different countries plus there is also international law.

     • Trevor
       Posted 19/08/2012 at 11:33 pm | Permalink | Reply

       Grow up? Talk about an unprovoked personal attack. Pull your head in, my son.

       As for the application, of course you’re right insofar as history demonstrates, but that makes the ‘rule’ no less valid.

       To answer your question (“since when has this applied?”) , since the European enlightenment. Indeed, modern Western civilisation is fundamentally based on the idea of fair, impartial legal systems. Without widespread trust and belief in this system, the very foundation of government power collapses. You’ve heard of riots and civil war, right? What do you think predicates such uprising? A general consensus that the sitting government is trustworthy and doing a great job? No, it’s often corruption of one form or another, which is nothing but circumvention of the legal system. You can’t have legal corruption within a fair and impartial legal system.

7. Mark
   Posted 18/08/2012 at 1:02 pm | Permalink | Reply

   What Australia should do, and what they will do are two very different ideals. They should be doing what they can to assist as he is a national, however as our illustrious has recently proclaimed how the US can do anything, they will not do anything to upset the US.

   The release of documents not only showed what the US thought of Australia, but also the fact that a high ranking member of the current government was quite happy to sell out not only his party but this nation to the them. The more the government intervenes the more likely they will be dragged into another debacle further possibly eroding what little support they have. Besides our PM had already proclaimed him guilty despite having no evidence whatsoever to substantiate this.

   Whichever way the US decides is the way Australia will go.

   The UK in the mean time has an unbelievable track record of NOT extraditing people convicted (and that’s the key word) of atrocious crimes such as rape, murder and kidnapping, yet they will risk an international incident all for someone who despite having made numerous offers to Sweden to interview him in the UK and within the embassy are intent on shipping him off for ‘questioning’.

   • Dylan
     Posted 18/08/2012 at 1:39 pm | Permalink | Reply

     good post

   • muso1
     Posted 18/08/2012 at 2:44 pm | Permalink | Reply

     “The UK in the mean time has an unbelievable track record of NOT extraditing people convicted (and that’s the key word) of atrocious crimes such as rape, murder and kidnapping, yet they will risk an international incident all for someone who despite having made numerous offers to Sweden to interview him in the UK and within the embassy are intent on shipping him off for ‘questioning’.”

     What is your evidence on both claims?
     The UK routinely extradites criminals.
     I’ve seen nothing from Sweden suggesting they visit the UK to question Assange.
     The Swedish insist he returns, and the UK is exactly following their laws.

     • Mark
       Posted 18/08/2012 at 6:20 pm | Permalink | Reply

       The UK denied an extradition request for an American who sexually assaulted two 12 year old girls as it would represent a ”flagrant denial” of his human rights.

       Read more: http://newsfeed.time.com/2012/06/29/britain-refuses-to-extradite-u-s-sex-crimes-suspect-on-human-rights-grounds/#ixzz23sohdS9M

       Now how does this make sense in comparison to what is going on now considering this animal was an American!!

       The Swedish authorities have refused to travel to the UK to question Assange. This all came out prior to this, also the Ecuadorian envoy has approached Sweden inviting them to interview Assange within their embassy. This offer was also made by his defence team with no reply from the Swedes.

       I’ve read this on numerous news web sites so I’m not going to trawl looking for links.

       • muso1
         Posted 19/08/2012 at 9:51 am | Permalink | Reply

         One example!
         You made it sound like it happened all the time.

         • Mark
           Posted 20/08/2012 at 9:04 am | Permalink | Reply

           I’m not going to go trawling through the internet looking for dozens of cases I had read about as I didn’t expect to need to recall them all. I found this recent one as an example.

           • muso1
             Posted 20/08/2012 at 8:52 pm | Permalink | Reply

             If you want to say ‘the UK has an unbelievable record of NOT extraditing people’ you really need to prove it. Got any stats?

             • Marcus
               Posted 20/08/2012 at 10:47 pm | Permalink | Reply

               a good example is Pinochet:
               http://www.thecrimson.com/article/2007/2/7/torture-under-pinochet-we-were-peeling/

8. Duke
   Posted 18/08/2012 at 4:10 pm | Permalink | Reply

   How far? WE haven’t gone anywhere, as the next state of the US of A we will take their orders and like it… TPP anyone?

9. Glenn
   Posted 18/08/2012 at 6:27 pm | Permalink | Reply

   Appoint Bob Carr as Foreign minister was smart politically, appointing an outsider helped cool things down after the last leadership drama. But i cant help wondering what Kevin Rudd would be doing, or what questions he would be asking, he wasnt especially suited to be PM, but i doubt anyone could be FM as good as him.

   Bob Carr seems to be just going along with the crowd, not willing to consider any non-mainstream opinions or ask any hard questions fo other nations.

   Has Australia done enough, i think not, if we had im sure Julian would have gone to the Australian Embassy for protection, why couldnt Australia provide the same protection Ecuador has ?

   There was a comment on the 7pm project (2nd story on it) where it was mentioned a high up Australian diplomat (who it was said wasnt some crazy nut) believed the US “has something” on senior UK politicians. Unfortunately, i dont think the US would need to have any dirt on Australian MP’s to get them to bow.

   I do think Australia could have done more to help Julian Assange, specifically, i think our government could have grown a backbone as stiff as Ecuador.

10. Assange Quagmire
    Posted 18/08/2012 at 9:57 pm | Permalink | Reply

    I reckon the US is hedging its bets..until they can positively get Assange they will state they havent any interest in him. I say that because I reason that if they said they wanted him and went after him and lost him they would be embarrassed bigtime. So, they say, “Assange? oh him? nah, no interest” But go through the motions (investigate, look at their options, have a senate committee discuss it, even get a grand jury to look at it in secret) and if they can get him they will to save face.
    Ecuador – 10 out of 10 for taking a big decision. They have obviously looked at the whole situation, pushed, poked and prodded the parties involved to see the responses and those responses have proven to them what direction they should move in. I am not agreeing with Ecuador here in whether they are in the right or wrong, what I give them 10 out of 10 for is they believe they are doing the right thing and have probably jeopardised trade agreements with the US thay employ thousands of Ecuadorians. Ethics above money. In my book they have probably risen above the US on this one and perhaps the status quo of all of us.

    • muso1
      Posted 19/08/2012 at 9:53 am | Permalink | Reply

      Equador are having a pop at the USA. This is common in South America and actually populist.
      If you are cynical about the UK and Sweden, you have to be equally cynical about Equador (and Russia).

11. Annoying Old Fart
    Posted 19/08/2012 at 9:55 am | Permalink | Reply

    “The Foreign Minister, Senator Bob Carr, has indicated that Assange is receiving the same assistance that any other Australian would receive.”

    …except Melinda Taylor. Carr will regain a little credibility when I see him walk into the Ecuadorian embassy (or No.10).

12. Annoying Old Fart
    Posted 19/08/2012 at 10:22 am | Permalink | Reply

    Interview with Christine Assange on ABC24 now.

13. Markie Linhart
    Posted 19/08/2012 at 3:07 pm | Permalink | Reply

    Australia still has a policy of not allowing extradition to countries that practice capital punishment does it not?

    So why aren’t the gubment doing all they can – whether above or below the table – to ensure the safe passage of one of our citizens to a safe haven?

    Quite frankly that sickening footage of the US gunship mowing down those unarmed men – including a Reuters cameraman – in Iraq alone justifies everything Julian Assange has done…

    • PeterA
      Posted 20/08/2012 at 8:05 am | Permalink | Reply

      Typically we allow extradition; as long as the receiving country will guarantee that the death penalty will not be applied. Obviously; we only extradite if the receiving country is trustworthy in this regard.

14. bob
    Posted 20/08/2012 at 9:39 am | Permalink | Reply

    He broke the law (against several countries) and did it against countries known to have the death penalty. People from Australia get the death penalty for all sorts of crimes, just because he’s a celebrity doesn’t make him immune from the consequences of his actions.

    His thoughtless pursuit of fame and money along with his flawed ideology (he claims to be ‘independent’ and ‘hands off’ yet he doctored the original helicopter insurgent attack video that put his group on the map) has put thousands of lives at risk, and his actions could easily have contributed to people being killed.

    He is not a refugee. He should not be given asylum and he is abusing the system to avoid being investigated for rape.

    He is a coward who will not stand up to his accusers, and a traitor to this country and it’s allies and he deserves to be tied to a post and shot for spying and treason after spending 20 years in prison if his rape allegations are proven true.

    • Bob.H
      Posted 20/08/2012 at 12:33 pm | Permalink | Reply

      Nice to know that you adhere to the principle of “Innocent until proven guilty”

      • Simon Reidy
        Posted 20/08/2012 at 3:21 pm | Permalink | Reply

        Its scary how many people can devalue a human life to the point that they don’t care whether they are executed or not. I’m glad I have some level of empathy; whether it be for an Australian drug dealer in Bali or someone like Julian Assange, capital punishment is archaic, barbaric and unjust under any circumstances.

    • Mark
      Posted 20/08/2012 at 1:00 pm | Permalink | Reply

      Ooops, Sorry Bob, see my post below.

    • Annoying Old Fart
      Posted 20/08/2012 at 3:10 pm | Permalink | Reply

      Bob, your comment is the very definition of “prejudice”. You don’t sound like the sort of person who would agree with Julia Gillard all that often!

15. Mark
    Posted 20/08/2012 at 12:58 pm | Permalink | Reply

    What laws did he break?

    He’s only wanted for questioning in Sweden, and the Aus Federal Police have publicly stated he hasn’t broken any laws here. There is no indication he has broken any laws anywhere.

    You noted he doctored the helicopter video. Did HE doctor it or did someone else do it? I mean its highly likely people doctor images, videos letters etc to get what they want every day of the week in all manner of offline and online ‘news’ providers. You can’t point that stick at one particular person without doing it to thousands upon thousands of other organisations.

    Whether we like it or not he is a refugee due to his political opinion. He’s not a refugee in the typical way the word is used, however he is someone who is seeking refuge in another country to avoid prosecution due to his political opinions. In other words he made what is regarded as the most powerful nation on the planet look like a bunch of backstabbing control freaks who will do what they can to undermine sovereign nations to achieve their own goals.

    To label the man as ‘a coward who will not stand up to his accusers’ and “a traitor to this country” is pretty strong as it’s a matter of public record that he attended both the Swedish and UK police to be questioned, and the federal police have publicly stated he has broken no laws in Australia.

    Please let me know where your condemnation is for the Labor minister who gladly fed the US information about our country including it’s politicians. That is a correct definition of treason.

    • Marcus
      Posted 20/08/2012 at 1:01 pm | Permalink | Reply

      +1 this many times over.

16. Randy Andy Pandy Bolt
    Posted 20/08/2012 at 4:06 pm | Permalink | Reply

    Attorney General Nicola Roxon has stated, “What I like to remind the community though is being an Australian citizen doesn’t give your country legal rights to interfere in other processes.”

    Roxon is full of shit.

    Legally Schmegally – ETHICALLY we have an obligation to stand up for Assange, and LEGALLY we are required to stop this fraulend CIA orchestrated show trial from proceeding.

    Of I forgot – Corporation USA roams the planet with it’s NAZI death sqads, killing everyone who gets in their way.

    While John Howard is a scumbag, he was frightened to death of George Bush – and the rest of them are all playing kiss arse to the Rosthchild bank…

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