The story of diplomatic asylum is a long and chequered one. Its legal status is controversial, but its political reality long established.
– For example, there is the story of Hungarian Cardinal Jozsef Mindszenty who sought asylum in the US embassy as Soviet Tanks arrived in November 1956. He did not leave for 15 years, until a Vatican, Soviet bloc and US agreement allowed for his departure from the country.
– In 1980 six Cubans crashed a bus through the Peruvian Embassy gates in Havana. Peru refused to turn the asylum seekers over, the Cuban government ordered all security removed from the perimeter whereupon 10,000 Cubans flooded the embassy similarly seeking asylum. Two weeks later they were allowed leave. In 1989, over 20,000 Czechs made it to West Germany by a similar mobbing of an embassy.
– Vatican sufferance of former Panamanian leader Manuel Noriega in their embassy was tested by a musical campaign mounted by US soldiers, who fed a 24 hour a day, relentless diet of the Clash’s I Fought the Law over loudspeakers ringed around the perimeter. Eventually, the punk-adled Vatican officials prevailed upon Noriega to leave.
– An unusual case was that of Dutch anti-apartheid activist Klass de Jonge, who was arrested by South African police in 1985 but escaped to the Dutch embassy. When the Dutch had to move the embassy to another building, the South African government refused to allow him to travel on South African territory, resulting in him being left behind, for two years, in the abandoned building under the protection of Dutch military police.
– The Canadian government granted refuge to six US diplomats during the Tehran hostage crisis and arranged a covert departure from Iran, justifying itself by saying it had ‘upheld rather than violated international law’.
– There is also the infamous example of the Durban Six, which evolved around six prominent members of the anti-apartheid movement, who sought refuge in the British consulate in 1984. The consulate accepted them temporarily, making clear that they would not intervene on their behalf with the South African government and that they were not to stay indefinitely. After four other countries (Germany, France, US and the Netherlands) took a similar position, they voluntarily left the consulate, with five immediately being arrested in front of the building.
Diplomatic asylum where it occurred in the cases above was largely rooted in political reality – while there was no general right to grant political asylum, the inviolable nature of diplomatic premises meant that a receiving state was under no obligation to surrender the fugitive. Diplomatic asylum can be legally justified in extremely exceptional circumstances. This possibility was acknowledged by the International Court of Justice in a case we’ll discuss later:
In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to this rule can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents.
One of the central texts on international law, Oppenheim’s International Law, also mentions that ‘compelling reasons of humanity may justify the grant of asylum’ from an embassy. Rivereles in his article on the Durban Six (Human Rights Quarterly 1989) argued that:
[i]t should be recognized that a State has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries.
To successfully characterise the British and Swedish extradition processes, both overseen by the European Court of Human Rights as manifestly extra-legal is massively problematic. It is interesting that the spokesperson for the Ecuadorian embassy in London has stated their intention is to deliver an asylum decision based on international law. There are many reasons why Mr Assange should not be entitled to refugee status, but in reality, there is enough political freedom for Ecuador to go ahead and grant it. Also, I don’t necessarily believe that, as a matter of law (and not morality), Australia has abandoned him. Under international law, States do have an obligation to espouse claims on behalf of their nationals. This is something I reflected on recently, in examining the possible need for our Department of Foreign Affairs to be more active in supporting our emigrants. However, in practice, this norm is only emerging, and it is very difficult to find this obligation has been breached, and can be discharged with even hollow steps by the government (see the Khadr case in Canada). So while the word ‘asylum’ is used, he may not fit the international law term ‘refugee’ – rather he is really asking not to be sent back on the basis of ‘subsidiary protection’ – that there is a real risk of serious harm to him leaving the embassy despite the legal processes he will be able to avail of.
A Long Stay Ahead?
In terms of the right to demand safe passage out of the United Kingdom or the opposite scenario of compelling surrender, the International Court of Justice in the 1950 case of Colombia v Peru is a central precedent. Here Haya de la Torre had led a failed uprising in Peru and fled to the Colombian embassy with a warrant issued for his arrest on criminal charges. He was granted diplomatic asylum, but Peru refused safe passage out of the country. The Court found that it could not order the surrender of de la Torre to Columbian authorities. The Court noted that ‘in principle, asylum cannot be opposed to the operation of national justice, and the safety which arises form asylum cannot be construed as a protection against the laws and the jurisdiction of the legally constituted tribunals’. However, despite the fact that the grant of refugee status was not in accordance with international law at the time, the court refused to place Colombia under an obligation to surrender a person accused of a political offence because the asylum was irregular, this was a political matter requiring non-legal resolution. In handing down this decision, the court stressed that if Latin America were to develop consistent practice in relation to diplomatic asylum and unilateral recognition of political refugees, this would render the grant of such asylum legal.
This local custom has since been established between Latin American states, with Conventions providing that diplomatic asylum may only be granted in urgent situations and for the period indispensable to ensure safety of the person seeking asylum and that states may only grant diplomatic asylum to persons who are sought for political reasons as opposed to common criminals. An implied reference to these agreements is seen in Article 41 (3) Vienna Convention on Diplomatic Relations (VCDR), which includes as recognized functions of the mission those functions laid down in special agreements concluded between the sending and receiving State. So Latin America has traditionally had an open approach to diplomatic asylum, suggesting political willingness may be present.
Outside of the Latin American region, receiving states obligation are under an obligation not to interfere with domestic affairs of the host State and to not use diplomatic and consular premises in any manner incompatible with recognised diplomatic functions. This is, however, counterbalanced by the inviolability of diplomatic premises. Ironically, if Assange had sought asylum in a consulate, where inviolability is less strong, he could have been vulnerable to re-arrest – as inviolability only extends to those areas of consulates used exclusively for recognised consular work. The embassy is nevertheless pretty undisturbable, as the ICJ in the Tehran Hostage case made clear that the rules of diplomatic law represent a self-contained regime which foresees the possible abuse of diplomatic privileges and immunities and expressly provides for the only allowable steps to counter such abuses. The only steps available are extreme; the closure of the offending Ecuadorian mission or possibly the withdrawal of diplomatic status from the premises – but that is only possible if it can be proved that the building’s sole purpose is to shelter refugees, which is not the case here. It appears entirely unlikely that an arrest operation can be undertaken in the Embassy therefore. Mr Assange, however, has no entitlement to passage to Heathrow airport or to receive permission to travel by helicopter through British airspace.
Human Rights Obligations and A Right to Stay in an Embassy
I do think it is important to highlight Ireland’s obligations should someone seek asylum in our embassies around the world. The area of diplomatic asylum received a more modern treatment in the UK Court of Appeal case of B and others in 2005. Here two minor Afghan brothers lodged requests for asylum in the British consulate in Melbourne, Australia, arguing that to return them to Australian authorities would subject them to treatment of an inhuman and degrading nature. This was due to Australia’s compulsory detention of aliens – at the time, including minors – which had been strongly condemned by bodies such as the United Nations Committee Against Torture. Australian authorities requested the earliest possible return of the two brothers. The Court had to consider the legality of surrender under the European Convention on Human Rights/UK Human Rights Act. They found that the consular staff were in a position of sufficient authority over the brothers to be subject to the jurisdiction of the Act and the Convention. It recognised that in certain circumstances, countries under the ECHR could have obligations not to comply with surrender requests under Article 3 ECHR (which prevents refoulement or return to torture or inhuman treatment). The Court described the exceptional circumstances as ill-defined and unclear, identifying only one ground which was where the territorial state intends to subject the fugitive to treatment amounting to a crime against humanity. In the case before it, the Court of Appeal held that the type and degree of the threat to the brothers was not sufficiently serious to trigger this, and the UK authorities were free to surrender. Regardless of Mr Assange’s unlikely claim, it is important that our diplomatic authorities are aware of the B and others scenario.
In covering this issue, I would hastily note that other types of extraterritorial applications for refugee status must be accepted as a matter of international law. In 1993, in Sale v Haitian Centres Council, the US Supreme Court gave an illegitimately narrow reading to the UN Convention on Refugees (Article 33), in upholding the government policy of intercepting Haitians on the High Seas and forcing them back to Haiti. This blog in no way endorses such positions – which happily are coming under increased pressure due to the recent ECHR finding in Hirsi v Italy and the consistent position of international legal institutions.