Consentia on Multidisciplinary Research

CONCEPT OF DIPLOMATIC ASYLUM UNDER INTERNATIONAL LAW

The term ‘asylum’ means providing shelter and protection, by a country to an individual, who is accused of any crime, and faces a risk of ‘harm’ in the territory of his country. ‘Diplomatic Asylum’, is the species of the term ‘asylum’. It means granting of asylum to an individual, by a country, in its embassies, legations, consulates etc. The concept of asylum is not new for the world and has been there for a long time. There have been many cases in which individuals have been given asylum (including diplomatic asylum) by various nations. The cases of Julian Assange, Chen Guangcheng etc. are examples of diplomatic asylum. The concept has its roots coming from various treaties and conventions that took place from time to time. There have been necessities and requirements, which forced people to take diplomatic asylum.

It can be said that people are free to demand diplomatic asylum from various countries in the world, but it must be noted that this demand is not absolute and can’t be claimed as a matter of right. Countries are free to impose their restrictions and policies, while granting asylum to the refuge. It is a demand which can be welcomed or rejected. However, various articles of different Treaties and Conventions have talked about the rights of the refuge, but at last, it is the ‘consent of the asylum giving country’ that matters. There have been cases when countries have refused to grant asylum to individuals, because of international pressure. Like, India, itself refused to grant asylum to Edward Snowden, who was accused of leaking private information of USA and was charged with the offence of espionage and breach of national security etc.  However, he was granted temporary asylum by Russia.

The concept of diplomatic asylum has positive as well as negative aspects.  Primarily, it helps the refugee in getting shelter, but on the other hand, it risks the diplomatic relations between the two countries. So, it can be said that the concept is somewhat related to a coin, having two sides. So, in light of the above observations let us try to understand this concept by a perusal of various aspects in detail.                                                

INTRODUCTION

 

Asylum, in international law, means the protection granted by a state to a foreign citizen against his own state. The person for whom asylum is established has no legal right to demand it, and the sheltering state has no obligation to grant it.[1]

With reference to ancient India, Nagendra Singh writes: ‘It was the right of every sovereign state who felt strong enough to maintain its position among the community of states to give protection to anyone who had surrendered and taken refuge or shelter for the sake of his life’. Both sacred and secular literature abound in legends which establish that it was the sacred duty of the king, whose shelter any individual took, to protect the refugee or saranagat at all times. The Mahabharata also speaks of the sacred duty of refusing to surrender a fugitive or a refugee to the enemy[2]. On a traditional point of view, it can be said that asylum, basically is a concept of giving shelter to those who are actually, in need of it. But, it must be noted that this right works at a global level.

The right of asylum falls into three basic categories: territorial, extraterritorial, and neutralTerritorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition. It is designed and employed primarily for the protection of persons accused of political offenses such as treason, desertion, sedition, and espionage. It has become a widespread practice, however, to exclude from this category persons accused of the murder of a head of state, certain terrorist acts, collaboration with the enemy in time of war, crimes against peace and against humanity, and war crimesExtraterritorial 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[3]. 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.

WHAT IS DIPLOMACY?

Diplomacy is the application of intelligence and tact to the conduct of official relations between the governments of independent states, extending sometimes also to their relations with dependent territories, and between government and international institutions, or more briefly, the conduct of business between states by peaceful means[4]. Diplomacy is in fact, as the Duc De Broglie remarked, ‘the best means devised by civilization for preventing international relations from being governed by force alone. The field in which it operates lies somewhere between power politics and civilized usage, and its method have varied with the political conventions of each age’. Diplomacy is the art and practice of conducting negotiations between nations[5]. Diplomacy, we can say, reflects the relations between nations at a global level. It is a bond which is present in between the relationship of two nations.

Nearly all states today are represented in the territory of foreign states by diplomatic envoys and their staffs. Such diplomatic missions are of a permanent character, although the actual occupants of the office may change from time to time. Consequent on a development over some hundreds of years, the institution of diplomatic representatives has come to be the principal machinery by which intercourse between states is conducted. The general rise of permanent as distinct from temporary diplomatic missions dates from the seventeenth century. The rights, duties and privileges of diplomatic envoys continued to develop according to custom in the eighteenth century, and by the early nineteenth century the time was ripe for some common understanding on the subject, which took place at the Congress of Vienna in 1815. Developments in diplomatic practice since 1815 rendered necessary a new and more extensive codification and formulation of the laws and usages as to diplomatic envoys, which was achieved in the Vienna Convention on Diplomatic Relations concluded on 18 April 1961[6].

DIPLOMATIC ASYLUM

 

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[7].

Historical development on diplomatic asylum:

The idea of asylum goes back deep into history and across different cultures and religions. In Medieval England, a person seeking asylum in a church was expected to confess sins, handover weapon and accept the authority of the church concerned. A choice then had to be, made: surrender to the authorities and face justice, or publicly confess guilt and go into exile. These days, embassies have replaced churches as the setting for confrontations between rival legal orders and conceptions of fairness. Dull, even shabby, though they make look to passers – by embassies are in fact Shrines of otherness, magical places like the old wardrobe in The Lion, The Witch and The Wardrobe where one walks through the door and enters a new world run to different rules[8].

Diplomatic asylum is not established in any international law. It derives its existence from Article 14 of the Universal Declaration of Human Rights[9], The European Convention on Human Rights and the International Covenant on Civil and Political Rights also enshrine this law. The International Court of Justice has emphasised that in the absence of treaty or customary rules to the contrary, a decision by a mission to grant asylum involves derogation from the sovereignty of the receiving state. The Organization of American States agreed a convention in 1954. In a broad sense, according to the UN, it is protection which is granted by a country outside its own borders, and particularly through its diplomatic missions[10].

Diplomatic asylum is about providing sanctuary to individuals in the premises of diplomatic missions. But, less conventionally, sanctuary has been offered also in military facilities and on board military vessels and aircrafts. Diplomatic asylum is problematic because, unlike in case of territorial asylum, the protected individual is still in the territory of his/her own country and therefore the protective state interferes with the sovereignty of another state. Nowadays, one cannot take seriously the argument that the premises of diplomatic mission form a part of the territory of the sending state, not the receiving state, and diplomatic asylum is still provided in the ‘territory’ of the state granting asylum. The theory of extraterritoriality was formulated by Hugo Grotius in the 17th century, in order to explain why diplomatic missions do not fall under the jurisdiction of the receiving state in a similar manner as everything else. According to a fundamental rule of International law, States may not exercise their jurisdiction outside their territory i.e. abroad, and because diplomatic missions are also ‘abroad’, states must refrain from exercising their jurisdiction in the premises of diplomatic missions[11]. However, the International Law Commission, while drafting of the Vienna Convention on Diplomatic Relations (1961), rejected the theory of extraterritoriality because it is based on a legal fiction and does not reflect factual reality or modern understanding of diplomatic relations.

The issue of diplomatic asylum is controversial in public international law. On the one hand, it is common regional practice and legal institute regulated by regional conventions among Latin American countries. On the other hand, the majority of the states do not recognise it as a part of public international law. Despite expressed positions, many examples can be found when diplomatic asylum was granted in order to protect people’s lives or safety. An incompatibility between attitudes and practice makes the issue of diplomatic asylum a vague one. Every new instance when protection is sought in the embassy or consulate brings doubts and raises questions regarding diplomatic asylum: what is the current position of diplomatic asylum in public international law, especially in the context with Vienna Conventions on Diplomatic and Consular Relations, with human right instruments or in the context of relevant case law; on what basis it could be granted and what could be possible consequences of such a protection; should it be considered as a historical relic or, in contrary, it has potential to enrich public international law[12].

Diplomatic asylum may be classified under the following heads:

Asylum in foreign Embassies: International Law does not recognise a general right of a head of mission to grant asylum in the premises of the legation for the obvious reason that such a step would prevent territorial law taking its own course and would involve a derogation from the sovereignty of that State where the legislation or mission is situated[13]. 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.  Under International Law, a general right of states to grant asylum in foreign legations is not conceded. Asylum may be granted in legation premises in the three exceptional cases – 1) Asylum may be granted, for a temporary period to individuals who are physically in the danger from mob violence or in case of a fugitive who is in danger because of political corruption in the local state; 2) Asylum may also be granted where there is a well established long recognised and binding local custom; and 3) Asylum may also be granted if there is a special treaty between the territorial state and the state of the legation concerned.

Asylum in Consular Premises: The general principles relating to legation premises are also applicable to the grant of asylum in Consular premises.

Asylum in the premises of International Institutions: International Law does not recognise any rule regarding the grant of asylum in the premises of International institutions. Temporary asylum, may, however be granted in case of danger of imminent violence. There is no general right to International institutions “to grant asylum or even refuse asylum in their premises to offenders as against the territorial state, and semble not even a right of protection on humanitarian grounds”. It is difficult to conceive, however, that a right to grant temporary refuge in an extreme case of danger from mob rule would not be asserted or conceded.

Asylum in warships:Fenwick has remarked: “While asylum is no longer granted to ordinary criminals, it is still granted quite frequently to political refugees[14] .

Asylum in Merchant Vessels: Merchant vessels do not enjoy immunity from the local jurisdiction and consequently asylum cannot be granted to local offenders in merchant vessels[15].

Among Latin American countries, a right of diplomatic asylum has as a matter of local usage been generally accepted, and international agreements were concluded between those countries establishing rules for the exercise of the right.For example, in 1889, a convention regarding international criminal law between Argentina, Bolivia, Paraguay, Peru and Uruguay provided that asylum in a legation should be respected in the case of persons prosecuted political offences but that the government of the receiving state must be notified and could demand that the refugee should be sent out of its territory as soon as possible but under assurances of safe passage. A Convention on Asylum, drawn up in Havana in 1928 by the Sixth American International Conference, established as between the parties a right to accord asylum to political offenders, persons accused or condemned for ordinary crimes and deserters being expressly excluded. Grant of asylum was limited to urgent cases, there was an obligation to notify the authorities, and the receiving state could require that the refugee be expelled under safe conduct[16].

Five conditions have been central to the granting of diplomatic asylum in Latin America:

1. Asylum is inviolable only for those accused of political crimes.

2. A person who has committed a criminal act will not be granted asylum, but will be turned over to the territorial state in accordance with the rules of extradition.

3. The chief of the legislation in which political asylum is sought is obliged to notify the ministry of the pursuing state and to request safe conduct beyond the national territorial limits.

4. The offering state decides the offence.

5. The asylee is not allowed to perform acts contrary to the public peace.

Even though grant of diplomatic asylum in other parts of the world is a rare case, in the XX century, before and after the Second World War, there were several cases in Europe when diplomatic asylum was granted to thousands of people. Among those cases the majority of law writers mention 1936 – 1939 Spanish Civil War, application of diplomatic asylum in 1956 by the United States of America and Yugoslavia in Hungary for Cardinal Mindszenty, events of 1989 when thousands of East German citizens sought asylum in the Western German embassies and events of 1990 when Albians sought asylum in Western embassies. In most of the cases, diplomatic asylum was granted on humanitarian reasons[17]. So, it can easily be ascertained that ‘humanitarian ground’ has been a reason to grant diplomatic asylum.

In diplomatic asylum, the person is not under the jurisdiction of the State granting asylum and by granting asylum, protection is granted to the person concerned and he is brought under the jurisdiction of the granting State. It, therefore involves derogation, from the sovereignty of the territorial State or through the institution of asylum the person concerned is withdrawn from the jurisdiction of territorial State[18].

JULIAN ASSANGE’S CASE

 

On June 19, 2012, Julian Assange, the founder of Wiki leaks, walked into Ecuador’s embassy in London and requested diplomatic asylum from the Ecuadorian government. Assange’s aim in seeking asylum was to prevent the U.K. from extraditing him to Sweden, where he is wanted by the prosecution authority for questioning in relation to allegations of sexual molestation and rape. The decision to seek asylum followed a protracted court battle in the U.K., ending with the decision of the U.K. Supreme Court in Assange vs. Swedish Prosecution Authority, wherein the majority upheld the European Arrest Warrant issued pursuant to the Extradition Act, 2003 (U.K.), seeking the arrest and surrender of Assange. While Assange’s immediate concern was to prevent extradition to Sweden, it is reported that his underlying fear is extradition from Sweden to the United States on charges relating to activities of Wiki leaks. Nearly two months after Assange, an Australian national, entered the embassy, the Ecuadorian government announced that it would grant him asylum, citing concerns that if he was extradited to the United States he could face trial by a military court, cruel and degrading treatment, and life imprisonment and capital punishment. In response, U.K. Foreign Secretary, William Hague stated that the U.K. was “determined to carry out its legal obligation to see Julian Assange extradited to Sweden, resulting in a diplomatic standoff”[19].

Ecuador’s decision to grant asylum diplomatic asylum resulted in speculation as to whether Assange will eventually be able to find his way from London to Ecuador. This speculation has arisen because Assange is now effectively under Ecuador’s protection; and just as in the case of persons who are granted asylum because their claims to refugee status are recognised under the Refugee Convention, there is something of an expectation that Ecuador will seek to transfer him to territory. However, there is every indication that Assange will remain in the Ecuadorian Embassy for many months until such time as some resolution is reached over his situation[20].

CHEN GUANGCHENG’S CASE IN BEIJING

 

On May, 19, 2012, Chinese dissident Chen Guangcheng, his wife and two children arrived at Newark, NJ Airport after being granted asylum by the US Government. They were accompanied from Beijing by two US state department officials. Guangcheng is a blind self- taught lawyer from a Chinese village several hundred miles from Beijing. He exposed forced sterilization and abortions of thousands of women by the Chinese government. He was prosecuted by the Chinese government and served a four year prison sentence for damaging property and “organizing a mob to disturb traffic”. After he completed his prison term in 2010, Guangcheng was placed under house arrest; he escaped in April 2012 and sought refuge in the US Embassy in Beijing. This was only a second case of a foreign diplomatic mission granting protective custody to a dissident in China. Guangcheng left the US Embassy after six days, repeatedly following threats against his wife. Several days later, in May 2012, he and his family were granted political asylum in the US following negotiations between the White House and the Chinese Government. However, Guangcheng’s nephew was arrested on April 27, shortly after Guangcheng escaped house arrest and he was convicted in November. He was sentenced to 39 months in prison in a case that was seen as retribution against Guangcheng. As the Washington post reported on November 30 – Chen Kejui, the nephew of blind legal activist Chen Guangcheng, was sentenced on Friday to 39 months in prison for injuring government officials who stormed into his home after searching for his uncle who had fled house arrest. The Obama administration swiftly condemned the sentence, calling it the result of a ‘deeply flawed legal process that lacked basic guarantee of due process.’ The Obama administration eagerly argued that Chen Kejui was convicted in a summary trial at which he was not fully represented by legal counsel. State department spokesperson, Victoria Nuland stated to the post- ‘Our concern is that this case did not meet the standard of International law’[21].

Both these cases throw light upon the fact that the US Government has failed to promote government accountability and human rights ‘domestically’.

CASE OF B and OTHERS

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 staffs 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[22].

WHAT INDIA SAYS ON DIPLOMATIC ASYLUM

 

India has made its position clear regarding the diplomatic asylum by issuing a circular on December 30, 1967 to all foreign diplomatic missions in India wherein it was stated that the Government of India does not recognize the right of such missions to give asylum to any person or persons within their premises. In the statement, missions were requested that if they receive a request for asylum or temporary shelter, or refuge such request should not be granted. The above view was further clarified by the Indian delegate Dr. Seyid Muhammad on November 3, 1975 in the Sixth Committee on the item concerning Diplomatic Asylum. He stated that the ‘diplomatic asylum involves a derogation from the sovereignty of the territorial State and an intervention in matters which are exclusively within the competence of that State. He further stated that ‘diplomatic missions are accorded privileges and immunities for functional reasons as is clearly brought out in the Vienna Convention on Diplomatic Relations. This Convention spells out clearly the functions of diplomatic agents. Any unilateral expansion of these functions by a diplomatic mission would be considered as an encroachment on its authority by a territorial State. State practice, however permits a diplomatic mission to give within its premises temporary refuge to a person who is in imminent danger of his life until the cessation of such danger. The practice of temporary refuge is clearly justified on grounds of humanitarian considerations. What is important is that this practice does not in any way involve withdrawal of the persons concerned from the jurisdiction of the territorial State. In fact, it helps the territorial State in as much as the refugee is returned to it after the cessation of the imminent danger to his life’. It is to be noted that the Indian view conforms with the rules of International Law regarding diplomatic asylum[23].

CONCLUSION

 

The plight of refugees in the world is not a problem any one state or a group of states should bear alone. The refugee plight is a phenomenon of our modern world community and must be addressed by all states as a global issue. Refusing admissions to prevent aliens from seeking asylum is not a just solution of this issue. Borders closed to arriving aliens do not stem the refugee flight; they merely direct the flow of refugees elsewhere. This creates hardship for states and asylum seekers alike. The states with the least prophylactic admission and asylum policies are forced to bear the burden of refugee care while the refugees are forced to “orbit” among states seeking the one that will offer them refuge. Closed borders, rejections, push offs, and the like are not solutions that the world community should tolerate. First, these tactics should be rejected because they unjustly burden some members of the world community, upset relationship among states, and internally destabilise those states still admitting refugees. Second, closed borders, rejections, and push offs should not be tolerated because they are not a humane answer to a call for refuge. At the same time, it must be recognized that in the exercise of their sovereignty and their police powers, states have a legitimate interest in the control of their borders and in the maintenance of internal safety, two areas affected by the arrivals of aliens. Moreover, the abuse of the institution of asylum for immigration purposes coupled with the widespread perception of such abuse has given thus be based on the balance of interests of the world community of states, individuals in need of refuge, and individual states. States should admit into their territories aliens who seek asylum from persecution for the specific and limited purpose of determining the merits of the request for asylum. By admitting into their territories those seeking refuge for the purpose of assessing their risk of persecution, individual states would answer both the needs of the individuals and of the world community. On the other hand, states should not feel compelled to offer to asylum seekers anything more than what is necessary to protect them from persecution. This means that those not legitimately needing protection from persecution should be, in the discretion of the state either directed to the proper channels for immigration or repatriated. Moreover, the concept of a safe third country, postulating that asylum seekers are ineligible to apply for asylum in states other than the first safe country where they could have obtained protection, should continue to be applied to prevent “country shopping”. Finally, individuals legitimately needing refuge should receive such only for as long as necessary to ensure that they will not be exposed to the risk of persecution in their home countries. Furthermore, all states in the world community should share equally in the care of those in need of refuge. To this end, it may be appropriate to institute a global fund to which each state would contribute proportionally and out of which each state incurring the costs of care of those in need of protection would receive compensation. In sum, the system of protection of those fearing persecution at home could be improved by better balancing the interests of the world community, the individuals in need of protection, and the individual states. In recognising that closed borders, rejections and push offs are not a solution to the global issue of refugee flight, we can focus on making the admission policies of individual states more open: (I) to minimize the risk of harm to those in risk of persecution: (II) to avoid the problem of “refugees in orbit, (III) to spread the responsibility of care for individuals in need of protection from persecution throughout the world community of states; and (IV) to avoid the destabilization of those states that still admit asylum – seekers by forcing upon them disproportionately large group of aliens. Recognizing that some states find themselves with more asylum – seekers at their frontiers, than others, a global system of burden sharing should be devised and implemented[24].

[1] George J. Andreopoulos,Asylum (Jan.20,2014),http:/www.britannica.com/EBchecked/topic/40220/asylum

[2] B.S.CHIMNI, INTERNATIONAL REFUGEE LAW : A READER 82  (1st  ed. 2000)

[3]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

[4] ERNEST SATOW & IVOR ROBERTS, SATOW’S DIPLOMATIC PRACTICE 3 (6th ed. 2009)

[5]http://www.merriam-webster.com/dictionary/diplomacy (last updated Jan.21, 2014)

[6] IA SHEARER, STARKE’S INTERNATIONAL LAW 383 (11th ed.1994)

[7]UN General Assembly, Question of Diplomatic Asylum: Report of the Secretary General, 22 September 1975, A/10139 (Part II), available at: http://www.refworld.org/docid/3ae68bf10.html [accessed 22 January 2014]

[8]Charles Crawford, Embassy Confrontations and Diplomatic Asylum (Jan.22, 2014):// www.diplomatmagazine.com/component/content/article.html?id = 161: embassy-confrontations-and-diplomatic-asylum-v 15-161

[9]“Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

[10]Diplomatic Immunity & Diplomatic Asylum, GENERAL KNOWLEDGE TODAY, http://www.gktoday.in/diplomatic-immunity-diplomatic-asylum (last updated March 8,2013)

[11] Rene Vark, Diplomatic Asylum: Theory, Practice and the Case of Julian Assange , 243-244 (2012) http:// www.academia.edu/2384450/Diplomatic Asylum_Theory_Practice_and_the_Case_of_Julian_Assange

[12] Simona Leonaviciute, Diplomatic Asylum In The Context of Public International Law, 3 http://vddb.library.It

[13] International Court of Justice observed this in Asylum case

[14] Convention adopted at the Sixth International Conference of American states held at Havana in 1928 which forbids the grant of asylum on warships to persons accused of or condemned for crime

[15] SK KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS 360 -362 (17th ed. 2009)

[16] supra note 5, at 109

[17] supra note 13, at 12

[18] supra note 16, at 363

[19]Alison Duxbury, Assange and the Law of Diplomatic Relations (Oct.11,2012), http://www.asil.org/sites/default/files/insight121011.pdf

[20] Donald Rothwell,The International Law Dimensions of the Plight of Julian Assange  (Oct. 9, 2012), http://law.anu.edu.au/sites/all/files/allfiles/the_international_law_dimensions_of_the_plight_of_julian_assange.pdf

[21] Danny Weil, A tale of two Diplomatic Asylums: Julian Assange and Chen Guangcheng  (Jan 2, 2013) http://truth-out.org/opinion/item

[22] Darren O Donovan, Human Rights in Ireland Stalemate: Chen and Assange, Diplomatic Asylum and International Law (June 20,2012) http:// humanrights.ie/international-lawinter-national-human-rights

[23] H.O.AGARWAL INTERNATIONAL LAW AND HUMAN RIGHTS 289 -90 (16th ed. 2009)

[24] Roman Boed, The State of the Right of Asylum In International Law, 31-33.http://scholarship.law.duke.edu

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