Julian Assange, David Hicks and Whether Citizens Have Rights to Diplomatic Protection

Abstract

This article examines insufficiently explored questions about whether a citizen has the right to seek diplomatic protection from the Australian government and to have that application determined lawfully. It does so primarily by considering the possible precedent set more than a decade go by the David Hicks case and whether Julian Assange may have been unlawfully denied diplomatic protection.

Australian governments have declined to intervene with the British and United States authorities to protect Assange, an Australian citizen, from being extradited to the United States on charges under the Espionage Act 1917 (US). This is despite evidence that his human rights are being violated. In particular, two United Nations bodies have ruled his detention to be arbitrary and amounting to psychological torture. Moreover, there appear to be defects in the legal proceedings, including violations of lawyer-client confidentiality.

These facts could bring Assange’s case within the precedent set by the Hicks case, which decided that the government had a duty to consider an application by an Australian detained in the US military facility at Guatanamo Bay for diplomatic intervention if his human rights were being violated ‘clearly’, and to consider that application lawfully, that is, without irrelevant considerations or improper purpose.