Diplomatic Asylum: A Critical Analysis

The concept of diplomatic asylum is quite old as it came into existence when the Republic of Venice began sending permanent Ambassadors to foreign states in the 15th century. In 1648 the Congress of Westphalia included the “inviolability” of ambassadorial residences which provided the diplomats with the privilege of extraterritoriality and they began to give shelter to persons falling foul of their States. The practice continued until the late 17th century when the States hosting the missions started to question this practice and by the 19th century, it had vanished across Europe. Yet by this time, it had picked up in the South American States. A case reached the newly established International Court of Justice in 1950 when Colombia granted political asylum to a Peruvian opposition leader, Víctor Raúl de la Torre, in its Lima embassy and asked for his safe passage out of Peru. The ICJ held that the parties should reach a negotiated settlement. The court’s opinion suggests that diplomatic asylum can only be given under bilateral laws and treaties and no customary international law exists in this field. The Organisation of American States (OAS) involved itself in enacting asylum laws and developed the 1954 Convention on Diplomatic Asylum. This treaty mandates that, though the states have a right to grant asylum they are not obligated to do it or to give the reasons for denying it. As a result, no widely recognised treaty came into being for establishing this practice; so much so that the 1961 Vienna Convention on Diplomatic Relations (VCDR) failed to recognise diplomatic asylum explicitly. The 1963 Vienna Convention on Consular Relations (VCCR) restricted the use of consular premises for purposes other than consular functions but failed to overtly question asylum rights. The chequered history of the practice has thus created many incidents in the modern world and though the practice is not as widely prevalent today, yet, on occasion asylum is granted to high-profile individuals and politically persecuted persons for humanitarian purposes and sometimes purely for political reasons although the decision is controversial.

The controversy about diplomatic asylum has two aspects (i) it constitutes a derogation of the sovereignty of the host country and thus an abuse of ambassadorial privilege (ii) it is an interference in the receiving country’s domestic affairs by the sending State. Both these concerns provide a scholarly and practical basis for its criticism under the UN Charter that States are all equal in Sovereignty and must not interfere in each other’s domestic affairs.

We will discuss the following two cases illustrating the implementation of the asylum provision and the criticism it has generated.

Chen Guangcheng’s Asylum Case: He was a blind Chinese activist lawyer who sued the government for committing sterilisation and forced abortions under the one-child policy. The local officials put him under house arrest when after a daring escape (in a second attempt) assisted by dissidents and supported the by American Embassy, he was pursued by Police in a hot car chase on Beijing streets until he entered US Embassy and took shelter there. Americans held that he had come there temporarily for medical treatment and negotiated his and his family’s transfer to the USA. At no point did American officials issue an apology, maintaining all along that its action was “extraordinary” in the given circumstances. The US believes it acted within the law for humanitarian purposes. However, on their part, the Chinese authorities never questioned the inviolability of the American embassy, keeping silent about it.

Julian Assange’s Case: In this case, the diplomatic asylum was provided by Ecuadorian President Rafel Correa for Assange to evade extradition to the US. However, after about 7 years Ecuador revoked his asylum and allowed the British Police to enter the embassy and arrest Julian Assange. Apparently, the Ecuadorian officials at the embassy had received communication from British authorities that diplomatic immunity might be revoked if the premises was misused even though the British Foreign Minister had immediately issued a statement that the UK is committed to a negotiated settlement. Westminster indicated that the UK government is under no obligation to provide safe passage to Assange from the country. In this case, the principle of inviolability was always maintained by British Police, and only entered the Embassy when Ecuadorian Authorities permitted them to. On the other hand, the UK Police never agreed nor allowed Assange to leave British territory and kept the embassy under watch for almost 7 years, spending a lot of public money which was questioned by opposition parties also.

The above two cases, clearly show that a country is entitled to accept requests at its embassies abroad and can determine the nature of the alleged offence, the extended purpose and rationale and the urgency of the situation in granting the asylum request. At the same time, the incidents above show that the host countries are under no obligation to provide safe passage to the asylee outside the foreign Embassy. In the case of Chen, although China insisted on an apology, it also entered into a negotiated settlement and never questioned the inviolability of the embassy and the US consistently maintained that its action was lawful. Such controversies in the application of the diplomatic asylum provision will continue; however, since the ICJ struck it down decades ago, it can never have a legal standing on its own. So, a negotiated settlement is the only way out as the ICJ had suggested way back in 1950 in Colombia vs Peru case.