Diplomatic Asylum

218

Chapter 5: Diplomatic Asylum

5.1 Introduction

Diplomatic Asylum is the concession of refuge by heads of mission,

commanders of military camps, aircraft, and warships to those accused of or

condemned for political crimes. The diplomatic representative who grants such

asylum within the precincts of his mission purports to remove from the local

jurisdiction nationals of the State to which he has been accredited. The right of

asylum finds its origin, basis, and excuse in a passion coeval with human nature, the

desire for vengeance. From the holy city of refuge of King David's time to the

Hidalgo case in Ecuador, the underlying principle has been the same, not a matter of

legal right, but the conflict on the one side of a frenzied thirst for revenge, and on the

other of the cooler, higher counsel of humanity and self control. Nations have at

tempted to call in certain doctrines of recognized international law in justification, or

to engraft, by means of a fiction or by figures of speech, excrescences upon the body

of international jurisprudence; but it will be found that the so called right" is the

product of circumstances, and that the recurrence of conditions resembling those

wherein it had its birth is to-day the cause of its revival; in other words, that the “right

of asylum” is no right at all, but merely a privilege granted or claimed where its use

finds sanction in the necessities of a mutable condition of society.

This chapter explores the emergence of diplomatic asylum, how it adopted in

response to different needs over time, in particular the needs of states, and the way in

which the diplomatic asylum, described below, receded or came to dominate,

depending on historical and political necessity. It begins with an outline of the origins

of asylum, and then moves chronologically through European history, chronicling the

development of the state and its use of diplomatic asylum.

As a result of this retelling of asylum’s history, certain features emerge,

conditions that are necessary for the granting of diplomatic asylum: separate

jurisdictions; parity of power; and an advantage to the asylum-granting body this

advantage can take varying forms political, economic or demographic depending on

the demands of changing circumstances. Granting diplomatic asylum can be a means

of undermining one’s enemies, gaining skills and labour, augmenting a declining

population or legitimating one regime over another. Where no such advantage is

Diplomatic Asylum

219

evident, or where the costs of granting diplomatic asylum outweigh the benefits,

diplomatic asylum has fallen into disuse. This has happened only occasionally, during

the Roman Empire and church asylum more recently in Europe.

5.2 Meaning of Diplomatic asylum

The general subject of asylum includes a fascinating and well publicized

special form known as diplomatic asylum. On hundreds of occasions, individuals

either guilty of political offences or qualifying as persecutes have been chosen (or

have been forced by a time element) to say in their own country and to seek asylum in

foreign embassies or legations. The passage of time saw the growth of a conviction

on the part of the receiving states that an unlimited grant of asylum on the part of

foreign diplomatic missions represented, in essence, an unwarranted intervention in

the internal affairs of the host state of the mission. As a result, the sphere of

diplomatic asylum was circumscribed little, and many states abandoned the practice

entirely, normally by issuing suitable prohibitory instructions to their diplomatic

agents. Today extensive practice of the grant of diplomatic asylum appears to be

restricted to the Latin American republics and to Spain.

Asylum

The word ‘asylum’ comes from the Greek asylos, that which may not be

seized or violated, usually a place that was sacred or magical, such as a temple.

Those who broke the taboo surrounding such a sacred, magical place had stepped out

of the realm of the profane and into the realm of the Gods, to whom alone the

fugitives must justify themselves and in whose realm secular powers no longer had

any jurisdiction. One was safe because one had reached a place not under the

jurisdiction of earthly powers.1 However, this could only be the case where there was

a division between spiritual and earthly powers separate jurisdictions and where each

recognized and respected the power and jurisdiction of the other where there was

parity of power. But why should the sanctuary is respected? What possible purposes

did it serve for the temporal powers? Certainly, fear of the Gods played a role, but it

was not always sufficient to protect the fugitive. One of the most important functions

of temple asylum was in limiting the damage of blood feuds.

1 Lord Gore-Booth, Satow’s Guide to Diplomatic Practice, (5

th (Ed), Longman: London), 1979, p. 534

Diplomatic Asylum

220

Asylum may refer to either political asylum or diplomatic asylum. In political

asylum an alien seeks permission to be allowed entry to, or permission to remain in, a

state because he would face political persecution if he were forced to return to his

own state. This is also known as ‘territorial asylum’. The state is privileged, not

obligated, to grant political asylum. The term ‘diplomatic asylum’ is different from

‘political asylum’. The diplomatic asylum or extra-territorial asylum is usually

employed to describe those cases in which a state declines to surrender a person

demanded who is not its own physical territory but is upon one of its public ships

lying in foreign territory waters or upon its diplomatic premises (or rarely consular)

within foreign territory. Asylum is a legal concept, it has been deduced from the

thesis that an embassy or a warship is ‘extra-territorial’.2 But the extraterritorial

doctrine has nowadays fallen into disrepute and has been replaced by a more

generally accepted that the immunity of an embassy depends on a waiver of

jurisdiction by the receiving state.

Diplomatic asylum

The premises of a diplomatic mission are, by Article 22 of the Vienna

Convention on Diplomatic Relation 1961 (in short Convention 1961), both immune

and inviolable. These terms overlap in some degree. Immunity mainly conveys

freedom from legal process and duties, while inviolability chiefly suggests freedom

from physical interference. The legal process, if allowed to run its course, could result

in an order that would disturb the possession of the mission. Although the premises

of and the personnel accredited to the mission are secured from interference by the

Convention, it makes no reference to the practice of granting asylum to others who

enter there. Diplomatic asylum is contentious enough that it was purposefully avoided

at the Vienna Conference. Its practice is most common in, but not limited to Latin

America where it is observed by treaties but is not part of customary international

law.

If diplomatic asylum is not condoned by international law nevertheless there is

very little that host states can do about it. If a foreign mission provides asylum to a

political refugee, it immunity and inviolability prevents the host state from interfering.

The wrath of the local government toward the individual in asylum is usually not so

2 D.P.O’ Connell, International Law in Australia, (Stevens & Sons, London), 1965, p. 588.

Diplomatic Asylum

221

great as to risk endangering its foreign policy interests by intervening in the mission

in breach of the law or by breaking diplomatic relations with the protecting state.3

Diplomatic asylum is not the same as territorial asylum, where refuge is taken outside

the jurisdiction and where the relevant procedure to make the refuge amenable to

process is extradition. The legal consequences of this distinction were emphasized by

the International Court of Justice in the Asylum case (Colombia/Peru). Referring to

the submission of the Colombian government, the majority of the Court said: “The

arguments.........reveal confusion between territorial asylum (extradition), on the one

hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is

within the territory of the state of refuge. A decision with regard to extradition implies

only the normal exercise of the territorial sovereignty. The refugee is outside the

territory of the state where the offence was committed, and the decision to grant him

asylum in no way derogates from the sovereignty of that state. In case of diplomatic

asylum, the refugee is within the territory of the state where the offense was

committed. A decision to grant diplomatic asylum involves derogation from the

sovereignty of that state. 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”.4

1. Pan American Conference: The question of diplomatic asylum occupied the

attention of Pan-American conference on several occasions. In 1889, the treaty of

Montevideo, ratified by five South American States, provided that asylum in a

legation is to be respected in the case of political refugees, but imposed upon the

diplomatic agent concerned the duty of informing the government of the country in

which he is stationed of the fact that the refugee has been received, and gave the

government to right to demand that the refugee be sent out of the country

immediately. Another was Havana Convention on Political Asylum, held in 1928. It

was signed by twenty American states. Then again, there was the second Convention

at Montevideo held in 1993. It only added obligation with respect to the exercise of

the right of legation.

2. Latin American Practice: In Latin-American States, a right of diplomatic

asylum exit. Its precise limits are vague and ill-defined. The right depends primarily

3 Huge. M. Kindred, International Law (16

th (Ed), Emond Moutgmerry Publication Ltd.), 2000, p. 318

4 William W. Bishop, Jr., ‘Asylum Case (Colombia/Peru)’, The American Journal of International

Law, Vol. 45, No. 1, Jan., 1951, p. 319.

Diplomatic Asylum

222

upon treaty provisions, and ‘it is doubtful whether there exits any customary rules

elaborating the framework established by Conventional obligation”.5 There is a

famous asylum case, Haya de la Torre (1950-51). In this asylum case, Colombian had

invoked ‘American international law’ to support an alleged regional or local custom

peculiar to Latin-American States. The international Court did not, significantly,

reject out of hand the notion that there could be rules of law of this character, but

rather regarded Colombia as having failed to discharge the burden of proving such a

custom.

In Latin-America countries, there is no customary Latin-American international

law on asylum, but there are certain practices or methods in applying asylum which

are followed by the Latin-American States. These are:

I. Asylum is granted only in cases of political offences and not to common

criminals.

II. Asylum is granted in accordance with the laws and usages of the state of refuge,

and it is for the latter to appreciate whether the offence committed by the refugee

is a political offence or a common crime.

III. The territorial state may request the departure of the refugee from its territory and

the state of refuge may then require the former state to deliver a safe conduct

enabling the refugee to leave the country safely.

IV. The state which granted asylum sometimes, with the same end in view, requests

that a safe-conduct be issued to refugee.6

3. Caracas Convention (1954): The decision of the International Court Haya de

la Torre led to some dissatisfaction among Latin-American countries. As such a

conference was convened at Caracas in 1954, which drew up an Inter-American

Convention on Diplomatic asylum. The Convention established the controlling rights

of the asylum granting state to categorize the nature of offences for which the

fugitive’s arrest is sought, and to decide upon the urgency of the circumstances

required before asylum could be validly granted. The United States did not ratify the

Convention as it refused to recognize any of diplomatic asylums. Nevertheless, the

majority of Latin-American States recognize that the inviolability of diplomatic

5 D.W. Greig, International Law, (London Butterworth’s), 1970, pp. 351-353.

6 D.W. Bowett, The law of International Institutions, (Steven & Sons, London,), 1970, p.257

Diplomatic Asylum

223

premises extends to cover immunity from arrest for a fugitive asylum in such

premises. Once asylum has been granted, it is then for the states involved to reach an

accommodation providing for the termination of the asylum. However, the Caracas

Convention was not widely ratified.

4. Practice outside Latin-America: Outside Latin-America, there is no general

right of asylum. The practice in the matter of asylum varies. The United States does

not recognize a right of asylum. Miss Morgenstern, who investigated the matter

thoroughly, instanced thirty cases where Great Britain had granted asylum in her

embassies, and fifty where the United States had granted it, but pointed out that they

were geographically restricted to non-European countries, and that where asylum was

granted this was accompanied by the some explanation which would exclude rules of

customary law. Modern developments have stimulated the practice of diplomatic

asylum. In 1936, fourteen legations granted asylum in Madrid. In 1956, the U.S.

embassy in Budapest granted asylum to Cardinal Mindszenty. The United States has

denied the right to asylum but has admitted that its foreign mission might give

temporary refuge to person fleeing from a mob in time of unrest or political turmoil.

The British Government recognizes no legal right to grant asylum upon diplomatic or

consular premises or public ships and no legal right to demand it, but on humanitarian

grounds it has frequently authorized its diplomatic and other officers to grant

temporary asylum in cases of emergency.7

5. Australian Practice: No instances are known where requests for diplomatic

asylum have been made at Australian diplomatic or consular premises abroad. Nor,

have any applications for diplomatic asylum in foreign diplomatic or consular

premises within Australia granted or requested. The lack of such incidents may be

explained on the following grounds: the absence of a local usage sanctioning a

general practice of asylum, the uninterrupted functioning in Australia of democratic

processes unaccompanied by civil unrest, and the relatively recent establishment of

foreign diplomatic mission in Canberra and of Australian diplomatic mission abroad.8

6. Asylum on Humanitarian grounds: Asylum in a foreign embassy or legation is

a subject which affords a good illustration of the change and development of the rules

7 Lord Mc Nair, International Law Opinions, (Cambridge University Press, Vol. II), 1956, p.76

8 Supra Note 2, p.590

Diplomatic Asylum

224

of international law.9 In modern times, it is asserted, the right to asylum, if it were

generally recognized, would tend to constitute an abuse. It would interfere with good

government. The practice of asylum is ‘even looked on with a tolerant eye’ and the

personnel of a foreign legation are not very glad to use this right. To the diplomatic

agent concerned the practice is nothing but a burden. But the practice is defended on

humanitarian grounds. Motives of humanity exclude a rigid refusal to receive a man

who may be in peril of his life, but the general rule now is to limit the reception of

such political refugees to cases where the person received is in instant or imminent

personal peril.

5.3 The Origin and Development of Diplomatic Asylum

Linked to the question of extradition is asylum. It involves two elements,

shelter and a degree of active protection. It may be either territorial asylum, granted

by a state on its territory, or extra-territorial asylum, granted in consular premises,

diplomatic missions, etc. The general view is that every state has a right to grant

territorial asylum subject to the provisions of any extradition treaty in force. The

granting of territorial asylum is regarded as an aspect of state territorial sovereignty. A

more important question is whether there ever exists any duty to grant asylum. The

right to grant extra-territorial asylum is more controversial and needs to be established

in each case, since it involves derogation from territorial sovereignty.

Article 14, Universal Declaration of Human Rights 1948 provides that:

1. Everyone has the right to seek and enjoy in other countries asylum from

persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from

non- political crimes or from acts contrary to the purposes and principles of the

United Nations. A resolution of the UN General Assembly, the Declaration on

Territorial Asylum, which was adopted on 14 December 1967, recommended a

number of practices and standards:

� A person seeking asylum from persecution should not be rejected at the frontier

the individual case should be considered properly. This is generally known as the

principle of non-refoulement;

9 Sir Cecil Hurst, International Law, (Stevens & Sons, London), 1950, p. 272

Diplomatic Asylum

225

� If a state finds difficulty in granting asylum, international measures should be

taken to try and alleviate the burden;

� Asylums should be respected by all other states.

The preamble of the Declaration made clear that the grant of asylum to

persons fleeing persecution is a peaceful and humanitarian act that cannot be regarded

as unfriendly by any other state. It now seems to be accepted that the principle of

non-refoulement is part of customary international law and is a fundamental rule of

refugee law. Refugees are defined as those having a well-founded fear of persecution.

What has yet to be settled is how the phrase ‘well-founded fear of persecution’ is to

be construed. In particular it is not clear whether the test is an objective or a

subjective fear; whether it depends solely on the refugee’s own perceptions or

whether the views of the receiving or the alleged persecuting state are significant.

There are a number of treaties dealing with the rights of refugees, in particular the

Refugee Convention 1951 as amended by the Protocol 1967. As far as extra-

territorial asylum is concerned, there exists no general right to grant diplomatic

asylum. This point was confirmed by the ICJ in the (Asylum case 1950).10

Exceptionally extra-territorial asylum may be granted:

(a) As a temporary measure to individuals in physical danger;

(b) Where there is a binding local customary rule that diplomatic asylum is

permissible;

(c) Under special treaty.

There are essentially three different types of asylum: temple/church asylum,

diplomatic asylum and territorial. Each developed in response to different but

connected needs. In each case the need was originally that of the society as a whole,

but as the state itself developed, asylum became a support for, or a tool of, the state.

The history of asylum is examined in order to substantiate the claim that the primary

function of asylum, whether ‘temple’, ‘diplomatic’ or ‘territorial’, as a support for,

and tool of, those in power, has not changed and is therefore, unlikely to change. Each

of the different forms of asylum developed separately over many centuries, providing

different solutions to different problems. However, the problems and the solutions do

have certain common features. Where a form of asylum threatened the sovereignty or 10

[1951] ICJ Rep at p.1, http://www.icj-cij.org/icjwww/idecisions.htm (accessed on 20th may 2009)

Diplomatic Asylum

226

competence of the state, then that form of asylum fell into disuse, as in the cases of

‘diplomatic’ and church asylum in Europe. For many commentators this demise has

not been seen as unjust or problematic. The dominant view of the state has always

been that its primary purpose is to promote and protect the interests of society and its

members, ‘the State, through the system of laws, is the sole legitimate guardian of its

subjects’, so naturally it would not tolerate any usurpation of this role.

Origin of Diplomatic Asylum

Territorial and church asylums were originally used by the asylum granting

body to declare its absolute power not just over a particular geographical area, but

over everyone within that jurisdiction. In other words, both these forms of asylum

were declarations of autonomy. In each case it will become clear that certain

prerequisites were and remain necessary for the granting of asylum in all its forms

distinct jurisdictions, parity of power between different states or powers and, most

importantly, an advantage to the wider society, later the state. Taking this very long-

term perspective on asylum allows us to place developments in the twentieth century

into a wider context. The shift in asylum practice between the Greek city states and

the Roman Empire, for example, has parallels with certain recent developments in the

European Union. The changing functions that asylum has served for the ruling powers

(states in general and liberal democratic states in particular) reveals both the

flexibility of asylum as a tool of states and its endurance. Taking a long view also

shows the different benefits material and ideal that asylum has conferred on the

different asylum granting bodies. With a pedigree stretching back over four thousand

years, it may still outlast the much younger modern state system.

Whether a right of diplomatic asylum exists within general international law is

doubtful and in principle refugees are to be returned to the authorities of the receiving

state in the absence of treaty or customary rules to the contrary. The International

Court in the Asylum case between Colombia and Peru11

emphasised that a decision to

grant asylum involves derogation from the sovereignty of the receiving state ‘and

constitutes an intervention in matters which are exclusively within the competence of

that state. Such derogation from territorial sovereignty cannot be recognised unless its

legal basis is established in each particular case.’ Where treaties exist regarding the

11

ICJ Reports, 1950, pp. 266, 274–5, http://www.icj-cij.org/icjwww/idecisions.htm (accessed on 20th

may 2009)

Diplomatic Asylum

227

grant of asylum, the question will arise as to the respective competences of the

sending and receiving state or the state granting asylum and the territorial state. While

the diplomats of the sending state may provisionally determine whether a refugee

meets any condition laid down for the grant of asylum under an applicable treaty this

would not bind the receiving state, for ‘the principles of international law do not

recognize any rule of unilateral and definitive qualification by immunities from

jurisdiction 759 the state granting asylum’.

It may be that in law a right of asylum will arise for ‘urgent and compelling

reasons of humanity’12

, but the nature and scope of this is unclear. It has sometimes

been suggested that a single precedent is not enough to establish a customary rule, and

that there must be a degree of repetition over a period of time; thus, in the Asylum

case the International Court of Justice suggested that a customary rule must be based

on ‘a constant and uniform usage’.13 However, this statement must be seen in the light

of the facts of the Asylum case, where the Court said: ‘The facts…disclose so much

uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of

diplomatic asylum and in the official views expressed on various occasions…that it is

not possible to discern…any constant and uniform usage, accepted as law’. In this

case, Victor Raúl Haya de la Torre, the leader of an unsuccessful rebellion in Peru in

1948, obtained asylum in the Colombian Embassy in Lima. Peru and Colombia

referred to the ICJ the question of whether Colombia had the right to grant asylum

and whether he should be handed over to the Peruvian authorities or be granted safe-

conduct out of the country. In other words, what prevented the formation of a

customary rule in the Asylum case was not the absence of repetition, but the presence

of major inconsistencies in the practice. In the Nicaragua case, the ICJ held:

“It is not to be expected that in the practice of States the application of the

rules in question should have been perfect, in the sense that States should have

refrained, with complete consistency, from the use of force or from intervention in

each other’s internal affairs. The Court does not consider that, for a rule to be

established as customary, the corresponding practice must be in absolutely rigorous

conformity with the rule. In order to deduce the existence of customary rules, the

Court deems it sufficient that the conduct of States should, in general, be consistent

12

Robert Jennings, Oppenheim’s International Law, (5th

(Ed) Universal Law Publishing Co., Delhi),

1986, p.1084 13

J.A.Barberis, Asylum, Diplomatic, Eourpean Public International Law, 1995, pp. 281– 3, at 282

Diplomatic Asylum

228

with such rules, and that instances of State conduct inconsistent with a given rule

should generally have been treated as breaches of that rule, not as indications of the

recognition of a new rule. In sum, major inconsistencies in the practice (that is, a large

amount of practice which goes against the ‘rule’ in question) prevent the creation of a

customary rule”. 14

Until the Spanish Civil War the opinion generally held among recognized

publicists of international law was that the right of asylum in diplomatic missions had

fallen into desuetude and was no part of international law. There was a tendency to

consider this practice as a custom peculiar to Latin-America and as one which had no

juridical basis save tolerant acquiescence In point of fact, however, there were several

instances during the 19th century in Spain where refuge was afforded to Spanish in

surgents and where the refuge was given under a presumed right of asylum.15

In June 1936 Spain was plunged into Civil War and in the course of three

years, asylum was granted to thousands of political refugees, both Republicans and

Nationalists. In August 1936 the question of asylum was raised at a meeting of the

Diplomatic Corps and various embassies, at first those of Latin- America but later

also European, opened their doors to those seeking asylum.16

The Spanish Minister of

State wrote to the Doyen of the Diplomatic Corps stating that his government

respected the right of asylum even though Spain had not signed the Havana

Convention on Asylum of 1928. In a further Note to the Diplomatic Corps dated 13th

October 1936 the Minister of State protested that those diplomatic representatives

who were giving asylum were not complying with the terms of the Havana

Convention in that none of them had forwarded to the Foreign Ministry the names of

the persons to whom asylum had been extended. It was stated to the Spanish Ministry

for Foreign Affairs that 'protection will be extended only to persons seeking refuge

against attacks on their lives; or who are in danger of reprisals without benefit of the

due processes of law due to every citizen.

At first the missions were fully respected and the local authorities posted

guards to prevent the molestation of either the diplomatic personnel or the premises

where the asylees were housed. On 25th November 1936, however, after the German

14

Nicaragua v. US (Merits), ICJ Rep. 1986, at 98, para. 186, http://www.icj-

cij.org/icjwww/idecisions.htm (accessed on 20th may 2009) 15

British & Foreign State Papers, Vol. XXXVIII. (1849), p.70 16

G. Scelle, La Guerre Civile Espagnole et le droit des gens, R.G.D.I.P. 1939, Vol. 46, p. 197.

Diplomatic Asylum

229

mission had withdrawn, the local authorities entered the embassy and, on discovering

that arms had been hidden there, they re- moved several persons who had previously

been accorded asylum. This incident, and one in the Consulate of Peru, where a

transmitting wireless set was found, showed that there was need for tighter control of

the activities of those granted asylum and greater caution on the part of those

conceding it. The procedure adopted on the withdrawal of a diplomatic mission,

which had been sheltering refugees, was for the chief of mission to arrange for other

foreign representatives, who had granted asylum, to safeguard those persons protected

by the departing mission. This was done in the case of the Guatemalan, Salvadorean

and Uruguayan diplomatic representations; and the safety of those previously

safeguarded by them remained unimpaired.

In consequence of this development in the practice of asylum, the following

provision was inserted in the Treaty on Asylum and Political Refugees signed at

Montevideo on the 4th August 1939:

Art. 10. ‘If in the advent of a rupture of diplomatic relations the diplomatic

representative who has granted asylum must leave the country to which he has been

accredited, he shall depart from it with the asylees, and if that is not possible for a

reason independent of the wish of the asylees, or the diplomatic agent himself, he

shall be able to hand over the former to a third State under the guarantees established

by this Treaty:’

A practice frequently employed by foreign missions during the Spanish Civil

War was the acquisition of properties adjacent to the embassy or legation premises in

order to house those refugees for whom there was no available room in the missions.

These acquisitions were treated as annexes to the principal house of the mission and

were held to be entitled to all the privileges usually accorded to the seat of a

diplomatic mission. In fact the Spanish authorities accepted this contention, and the

evidence shows that these annexes were entered by Government forces only when the

occupants had forfeited any claim to protection by their systematic abuse of the right

of asylum.17

The Draft proposals on Internal Asylum published by Saavedra Lamas,

the Argentine Foreign Minister, and which were the basis of the Treaty on Political

Asylum and Refuge (Monte- video 1939), specifically provided for this practice.

17

Art. 2, "Fifth" Conventions on Asylum, Havana, 1928: "while enjoying asylum refugees shall not be

allowed to perform acts contrary to the public peace".

Diplomatic Asylum

230

Art. 8 of the Treaty read as follows:

'When the number of asylees exceeds the normal capacity of those places of

refuge indicated in Article 2 the diplomatic agents or commanders will be able to use

other places, under the shelter of their flag, for their protection and welfare. In such a

case they ought to ask for the consent of the authorities."

The series of resolutions passed at Bath (by the Institute of International Law

in September 1950) and at Madrid (by the First Hispano-Luso-American Congress of

International Law in October 1951) envisage the reception of asylees in places other

than the original seat of the mission. This lead was followed by the Inter-American

Council of Jurists at their meeting in Buenos Aires in May 1953 when they drew up a

draft Convention on Diplomatic Asylum for consideration at the Tenth Inter-

American Conference at Caracas in March 1954.18

Both the draft Convention and the

Convention itself provide in the definition of 'legation' for the housing, in certain

cases, of refugees in adjacent premises.

A factor of the greatest importance in the practice of diplomatic asylum is the

qualification of the nature of the crime com- mitted or alleged to have been committed

by those seeking asylum. This question was fundamental to the dispute in the Asylum

case to which reference will be made later. In those cases, however, where asylum

was conceded in foreign missions in the Spanish Civil War the nature and quality both

of the refugee and his delicts were exclusively determined by the chiefs of mission.

There was no joint consultation with the Spanish Government. The diplomatic

representative who granted asylum forwarded the names of the asylees and requested

safe-conducts or permission to escort them out of the country. Both Latin- American

and European diplomatic agents maintained their right to qualify and declare whether

or not the refugees under their control were entitled to asylum. In support of this

contention representatives of States granting asylum appeared before the Council of

the League of Nations and cited Article 2 of the Convention on Political Asylum

signed at Montevideo in December 1933: ‘the judgment of political delinquency

concerns the State which offers asylum’. It would therefore appear that States which

were not parties to this Convention purported to exercise its provisions against a State

18

Barry Gilbert, ‘The Right of Asylum in the Legations of the United States in Central and South

America’, Harvard Law Review, Vol. 15, No. 2, Jun., 1901, p.23

Diplomatic Asylum

231

that similarly was not bound by it, because, of the nineteen diplomatic missions that

accorded asylum, twelve were representations of States that had either not been

parties to the Convention or else, having signed the Convention, had failed to ratify it.

It is arguable that European States afforded asylum on the general ground of

humanitarian intervention in order to save Spanish nationals from violence at the

hands of lawless mobs; and that therefore in granting refuge they cannot be said to

have recognized the validity of any right of diplomatic asylum. This argument does

not, however, satisfactorily account for the swift co-operation of European missions

in the activities first proposed by Latin-American diplomatic agents. The British and

United States Embassies resolutely refused to accept refugees in accordance with their

declared policies in the matter of asylum.19

If other missions were of the same opinion

they could either have refused to accept any Spanish nationals at all or they could

have afforded merely temporary shelter to those actually in fear of immediate

personal violence. There is no evidence to show that refuge was accorded on the

understanding that it was offered to guilty and innocent alike solely to prevent blood-

shed. On the contrary, asylum was granted when there was not that apparent urgency

which is the only valid reason for the indiscriminate concession of refuge. The

inference to be drawn from the actions of several European States during this period is

that in the guise of humanitarian intervention States were prepared to exercise a

power, if not a right, to grant asylum when social conditions demanded it.

The stability of political society in Europe testified to the rarity of the exercise

of a practice, the frequent use of which in more unsettled States was an established

and recognized fact. The right of diplomatic asylum is but one facet of the right of

political asylum freely acknowledged by all civilized States. Its adoption by Latin-

American States as a living part of their regional law is to be accounted for not only

from the spirit of revolution inherited from Bolivar and San Martin but also from the

difficulties inherent in their geo-physical composition. Until the advent of the aero

plane and the express train a journey from La Paz, Bolivia, to the frontier of Brazil

took weeks; to cross the Andes to reach the safety of Chile or Peru was a voyage of

the greatest hazard. Diplomatic asylum afforded a haven in the capital city itself. That

the raison d'etre of the doctrine is political instability may be further illustrated by the

fact that European missions gave asylum to those accused of political crimes after the

19

Supra Note 1, p. 536

Diplomatic Asylum

232

violent changes that occurred both during and after the Second World War When

German forces occupied Hungary in 1944 the President of the Council of Ministers,

De Kallay, sought refuge in the Turkish legation in Budapest. The Hungarian

collaborationist government respected this situation and clearly demonstrated their

recognition of the fact that foreign legations had a right to concede asylum to political

refugees. Similarly, in Rumania at the end of 1944, General Radescu was granted

asylum in the British legation in Bucharest. The Soviet Union, the occupying power,

recognized this fact and respected the asylum.20

Various legations of neutral powers

in Rome in 1944 gave refuge to as many as five hundred fascist supporters and

sympathizers. There is no evidence that the Allied Powers demanded the surrender of

these persons, who were clearly political delinquents since the Government of

Marshal Badoglio had proscribed the fascist party. It may therefore be presumed that

the Allied Powers in Italy, most of who were European States, were prepared to

accept and recognize the right of asylum for political criminals in the premises of

foreign missions.

Whereas the practice of diplomatic asylum in Europe during the last twenty

years has been infrequent there has been a main, fold instance in Latin-America when

asylum has been freely granted. On the occasion of the serious revolutionary

disturbances in Bolivia in 1946 several Latin-American diplomatic officers in La Paz

opened their missions to persons sought by the local authorities. A leading politician,

Granier, was charged with the crimes of homicide and assassination and orders were

given for his arrest. The Ambassador of Peru, however, conceded asylum to Granier

and declared that it was for the diplomatic agent to qualify the nature of delist, i.e.

whether the crime for which he was charged was by nature common or political. The

Bolivian government, faced with a multitude of requests for safe-conducts, finally

agreed to their being issued on the following terms: first, that they would be given in

the form and in the manner convenient to the Minister of Foreign Relations; secondly,

that the Minister reserved the right to designate the country to which asylees should

be conducted; thirdly that the State that would receive them should undertake to

surrender those of the refugees who, in the opinion of the Bolivian Government, had

committed common crimes; fourthly, that the asylees when they reached their country

20

Supra Note 7, p.76

Diplomatic Asylum

233

of destination should remain at the disposal of the local juridical authorities. These

conditions were more by way of a saving of prestige than an attempt to change the

character of the practice. A claim to qualify the nature of the crime after the refugee

had passed from the physical jurisdiction and control of the territorial state could have

little effectiveness and was made rather as a protest against the united front shown by

the diplomatic corps in defence of the right of diplomatic asylum.

More recently, in 1949, the Embassy of El Salvador in Guatemala City granted

asylum to several Guatemalan nationals who had taken part in one of the frequent

revolutions of that Republic. Safe-conducts were requested in the usual manner but

were refused on the ground that the asylees were not purely political criminals. After

prolonged negotiations between a Com- mission sent from El Salvador and the

territorial authorities, the safe-conducts were granted with the sole proviso that the

refugees would not take up residence in a country limit to Guatemala and in

consequence they were precluded from travel- ling to and residing in El Salvador.

In the following year in Ciudad Trujillo (D.R.) eleven Dominicans sought

refuge in the Mexican Embassy and eight in the Embassy of Venezuela. The

discussions that ensued between the Mexican and Dominican governments

occasioned the intervention of the President of the Council of the Organization of

American States, and in consequence the safe-conducts necessary for the departure of

the refugees were forthcoming. This case is exceptional in that the Procurator-General

in announcing the concession of the safe-conducts declared ‘without doubt the local

authorities maintained jurisdiction over their nationals, and it would be necessary for

the asylees to leave the Embassy and obtain their safe-conducts personally from the

office of the local police.’ The Dominican authorities promised, however, to respect

the persons of the refugees during the time that they were out- side the precincts of the

Embassy. This incident was rather an act of discourtesy towards the Mexican mission

than a declaration of State policy against diplomatic asylum. On the contrary, the

history of the practice of this doctrine in the Dominican Republic shows the Republic

to be a stalwart champion of the right to concede asylum to political criminals both

within and without the territorial domain. Many other cases could be given to

illustrate the point that the practice of diplomatic asylum in Latin-America is intrinsic

to the political and social welfare of the States that form this region: the concession of

asylum to the Colombian Silva by the Guatemalan Embassy in Bogata in 1951; of that

Diplomatic Asylum

234

to Socarras by the Mexican Embassy in Havana in 1952; and to Arbenz by the

Mexican Embassy in Guatemala City in 1954.21

But of all the cases that have occurred in recent years by far the most

important was that of Haya de la Torre who took refuge in the Colombian Embassy in

Lima for five years. It was important both because it was the subject matter of two

Judgments of the International Court of Justice and because, as a direct result of those

decisions, a Convention on Diplomatic Asylum was drawn up and signed-a

Convention which purports to establish with finality the procedure and substantive

rights embodied in the doctrine. The facts in this case were briefly as follows: On

October 3rd 1948 a military rebellion broke out in Peru, and on the following day a

State of siege was declared-certain constitutional rights were suspended, the

revolutionary party was outlawed and its leaders were charged with the crime of

military rebellion. On January 3rd 1949 Haya de la Torre sought asylum in the

Colombian Embassy in Lima. The Colombian Ambassador at once informed the

Peruvian Minister for Foreign Affairs that he had granted asylum to Haya de la Torre

and requested the usual safe- conduct to enable the Peruvian politician to leave the

country.22

This safe-conduct was not given, and in consequence of a lengthy diplomatic

correspondence the two countries signed the Act of Lima on August 31st 1949

whereby the dispute was referred to the International Court of Justice. The

International Court of Justice might have found no difficulty in declaring that the

asylum had been granted in conformity with Article 2 Para. 2 'First' of the Convention

of Asylum signed at Havana (20th February 1928). This Article provides:

“Asylum may not be granted except in urgent cases and for the period of time

strictly indispensable for the person who has sought asylum to ensure in some other

way his safety.” The time-element convinced the majority of the World Court that

there was no case of urgency.

5.4 Right of Diplomatic Asylum

The right of granting refuge and shelter to political refugees in the premises of

diplomatic agents is called “the right of asylum”. This right generally seems to be

21

Philip C. Jessup, A Modern Law of Nations, (The Ma cmillian Co. New York), 1958, p. 82. 22

Note of January 4th, 1949. (Documents relative to the Asylum of Haya de la Torre, No. 2/1) Ministry

of Foreign Affairs of Colombia, 1950

Diplomatic Asylum

235

exercised in times of insurgency and revolution in the receiving state whereby the

politically persecuted seek refuge in any friendly diplomat’s residence. The practice

of granting asylum was exercised in the 19th

century and even now we find instances

like that of Imrey Nagy, a former Hungarian Prime Minister who was granted asylum

when revolution and insurgence broke out in Hungary in 1956. In the history of Latin

American nations, we find innumerable instances where the belligerent activities of

revolutionaries resulted in the over-throw of the stable governments. As such,

instances of Prime Ministers, Presidents of some of those States, seeking asylum at

the residence of some ambassador have not been infrequent.

One or two interesting incidents may be quoted here to illustrate this point.

The Duke de Ripperda, a Minister of the States General at Madrid, was accused of

treason in the year 1726 and in consequence sought refuge of the British ambassador

in Madrid. After refuge was given in the embassy premises he was forcibly arrested

by the Spanish Government. A protest was launched by the British Ambassador to the

Spanish Government stating it to be gross violation of international law and

diplomatic privileges. On this incident, the correspondence between Spanish

Government and British Government assumed a hostile tone and cordial relations

could be established only after the treaty of Seville in 1729 which expressly states that

there should be an “oblivion of all that is past.”23

Certain rules for the grant of asylum were agreed to by the contracting States

the Pan-American Conference held at Havana in 1928. Article 1 and 2 of the Havana

Convention, 1928, expressly, deal with the various aspects of the asylum, as an

international diplomatic practice.

North Koreans Seeking Asylum at Diplomatic Compounds in China

On May 8, 2002, two North Koreans entered the U.S. consulate in Shenyang,

China, seeking asylum. On May 9, a third North Korean entered the U.S. consulate

seeking asylum, and five North Koreans tried to enter the nearby Japanese consulate

but were forcibly removed detained by Chinese authorities. The incidents were part of

a spate of North Korean defections to diplomatic compounds in China.

On May 9, senior members of the House International Relations Committee

sent a letter to China's ambassador to the United States. The letter referred to the

23

Supra Note 1, p.219

Diplomatic Asylum

236

above incidents (and also to one other) and provided, in part: We fully recognize

China's right to secure its borders and the sensitivity posed by mi- grant issues in the

northeast of your country. But those issues must be differentiated from the obligation

not to repatriate people who face a well-founded fear of persecution, an obligation

that both of our countries share as parties to the 1951 UN Convention Relating to the

Status of Refugees and the 1967 Protocol.24

In the above instance, the forcibly returning to North Korea any of the family

members listed above would be a human tragedy and a violation of the Refugee

Convention. Although North Korea's treatment of mere food migrants may have eased

since the mid-1990s, its treatment of North Koreans attempting to escape to third

countries remains severe and is usually fatal. Notwithstanding North Korean

assurances, such returnees are usually executed or sent to camps for political

prisoners. The appeal to the Government of China to allow some form of

humanitarian accommodation for these people, and urge you not to contravene the

treaty obligations that both of our nations share as prominent members of the

international community. On May 14, the three North Koreans who entered the U.S.

consulate were allowed by Chinese authorities to travel to South Korea. On May 23,

the five North Koreans who were removed from the Japanese consulate were also

allowed to travel to South Korea.

5.5 Diplomatic Asylum in International Law

It is universally admitted that the right and immunities of a public minister are

intended to secure his independence in the discharge of his functions as the

representative of a foreign government. In order that he may act with perfect freedom,

he and his suite are exempt from the local law. This exemption is called

extraterritoriality, as if the minister and his suite were in contemplation of law to be

regarded as being outside of the territory in which they reside. In order further to

insure the freedom and independence of the diplomatic agent, it is that his domicile is

not subject to the visitation of the ordinary of the revenue and the police. This

exemption constitutes what is called the inviolability of the diplomatic residence. By a

confusion of ideas, this inviolability is often referred to as extraterritoriality, and in

consequence writers have frequently been led to state that a minister’s domicile is

24

Alona E. Evans, ‘International Law and Asylum as a Human Right by Manuel R. Garcia-Mora’,

Michigan Law Review, Vol. 55, No. 4, Feb., 1957, p. 63.

Diplomatic Asylum

237

foreign territory and in no wise subject to the local law. Among publicists of modern

authority Lorimer stands pre-eminent for the positiveness with which he which he

asserts this theory. “An English ambassador,” he declares, “with his family and his

suite, whilst abroad in the public in the public service, is domiciled in England and his

English ground.” This statement would carry great weight, if the learned author did

not reject its consequences by declaring that a legation cannot be used as an asylum,

unless for the minister and his family and suite. This, however, can scarcely be called

asylum, since the individual themselves are personally exempt from arrest. But if an

English legation be English ground, why is it that it cannot be used as an asylum to

the same extent as any other British territory? In reality, when writers have referred to

the extraterritoriality of a minister’s domicile, they have employed the term loosely

and figuratively, and have either expressly or impliedly rejected the theory that such

domicile is actually extraterritorial, or that it is a part of the territory of the state which

the minister represents.

Foelix says that the house of a public minister “enjoys an entire freedom, in

that it is not accessible to the officers of justice of the country: it is considered as

being outside of the justice of the country: it is considered as being outside of the

territory, as well as the person of the minister.” Nevertheless he states that nations do

not recognize “the right of asylum in the hotel of a foreign minister” or the “freedom

of the quarter of the city in which his hotel is” or “the exemption of the latter from

taxes which apply to immovable property.”25

Vattel regards “the house of an

ambassador” simply as “independent of the ordinary jurisdiction,” since no

magistrate, justice of the peace or other subordinate officer is in any case entitled to

enter it by his own authority, or to send any of his people to enter it, unless on

occasions of urgent necessity, when the public welfare is threatened with imminent

danger which admits of no delay.

The case should, he maintains, rather be submitted to the sovereign of the

country, to whom it pertains to decide how far the claims of the ambassador are to be

respected. As has been, Vattel entirely approved the action of the Spanish

government in the case of Ripperda.26

The same opinion is expressed by the Spanish

jurisconsult, Riquelme, and by Phillimore. Bell also states that if the minister abuses 25

Supra Note 5, p.350 26

Alfred L. P. Dennis, ‘Diplomatic Affairs and International Law’, the American Political Science

Review, Vol. 8, No. 1, Feb., 1914. p.13.

Diplomatic Asylum

238

his immunity by affording asylum to the enemies of the government, the sovereign

may have the house of the minister surrounded, and may even take the accused by

force. Twiss refers to the “fiction of extraterritoriality,” and says that an

ambassador’s house cannot be converted into an asylum. He approves Bynkershoek’s

statement “that all the privileges of ambassadors have one and the same object in

view, namely, to enable them to discharge the duties office without impediment or

restraint.” Of the same opinion is Manning, who also speaks of the “fiction” of

extraterritoriality.27

Pradier Fodere holds the same view as C.F. de Martens, though he

states that the question of asylum is still agitated in South America.28 Bar maintains

that the right of extraterritoriality which ambassadors enjoy do not import that their

houses are to be treated as if they were really beyond the territory, but merely as

protecting the person of the ambassador from the jurisdiction of the state and its

criminal law.

Calvo holds that “in the midst of civil disturbance” a minister’s dwelling can

and ought to offer an assured refuge “to political persons whom danger to life forces

on the moment to take refuge there.” To this extent he maintains that asylum has been

respected in Europe as well as in America, but he does not advocate the theory of

extraterritoriality, and he lays down the following limitations of the inviolability of a

minister’s domicile:

“The dwelling of a public minister is inviolable in so far as it affects things

indispensable to his official service and to the free and regular exercise of his

functions; but whenever the conduct or the imprudent attitude of a diplomatic agent

puts in peril the peace of the state, violates or tends to elude the laws of the country,

by converting, for example, the legation into a refuge for criminals or into a habitation

of conspiracy against the established government, the privileges of inviolability of

domicile disappears, and the offended state is fully warranted in refusing to the

dwelling of the agent the benefit of an immunity which reason and justice cease to

sustain”.29

27

Ernest Angell, ‘Sovereign Immunity the Modern Trend’, The Yale Law Journal, Vol. 35, No. 2),

Dec., 1925, p. 218. 28

Emmanuel Voyiakis, ‘Access to Court v State Immunity’, The International and Comparative Law

Quarterly, Vol. 52, No. 2, Apr., 2003, pp.70-76 29

David .S. McLellan, The Theory and Practice of International Relations, (4th

(Ed), Prentice Hall of

India Pvt., Ltd, New Delhi), 1977, p.1521

Diplomatic Asylum

239

As affecting the question of extraterritoriality, it may be observed that it is

sometimes stated that a diplomatic agent possesses the power to administer justice

upon those attached to his legation or belonging to his suite. Felice thought that an

ambassador might exercise such jurisdiction, but not to the extent of executing

infamous or capital punishments, which was an attribute of “territorial supremacy.”30

Wheatson and Twiss cite Vattel and the older writers, who state that a minister may

exercise criminal as well as civil jurisdiction over those attachment to his embassy,

but they also say that the modern usage is to send such persons home for trial. Heffter

states the law as it exists at the present day, when he says that it is only in Turkey and

other non-Christian states that foreign ministers are invested with the right to decide

upon disputes among their countrymen or even among the members of their suites.

This view is entirely accepted by Lawrence, who, his invaluable edition of Wheatson,

says that the proposition in the latter’s text “seems to have been transferred from one

elementary treatise to another without due examination.”31

The inadmissibility of the

theory of the extraterritoriality of a diplomatic residence is further shown by the state

of the law touching marriages celebrated in such a habitation. The general rule is that

the validity of a marriage ceremony is determined by the law of the place at which the

ceremony is celebrated – the lex loci celebrationis.

Since it is often difficult for persons temporarily sojourning in a country to

comply with the forms imposed by the law, foreigners have often betaken themselves

to their respective legations and procured the performance of the ceremony there in

accordance with the forms prevalent in their own country, without observance of the

requirements of the law of the country in which they may happen to be. How far such

a ceremony may be valid in the country, to which the parties belong, is a question

determinable by the law of that country. But it is conceded that the international

validity of such a ceremony is at least doubtful, and it has been decided in France that

foreigners cannot evade the law of that country by such an expedient. When Mr. Cass

was Secretary of State of the United States he issued instructions, which have been

revoked, inhibiting the performance of marriage ceremonies in legations of the United

States. He doubtless was led to take this step by an investigation he made of the

30

Leo Gross, ‘The Case Concerning United States Diplomatic and Consular Staff in Tehran: Phase of Provisional Measures’, The American Journal of International Law, Vol. 74, No. 2, Apr., 1980 pp.

555-556. 31

Lawrence B. Evans, A Guide to Diplomatic Practice by Ernest Satow’, The American Political

Science Review, Vol. 11, No. 4, Nov., 1917, p. 133.

Diplomatic Asylum

240

subject on the occasion of the marriage of his daughter, while he was minister to

France, to the American secretary of legation. After consulting the most eminent

French lawyers, Mr. Cass obliged the parties, notwithstanding their personal

immunities, to be married at the mayoralty and to fulfill all the requirements of the

Code Napoleon.32

The unsoundness of the idea of extraterritoriality is further shown by the

enforcement of the local in respect to criminal offences committed by non-diplomatic

persons in the hotel of a public minister. When Nitchencoff, a Russian subject,

committed a murderous assault on M. de Balsh in the house of the Russian

ambassador in Paris, he was tried by the French courts and sentenced to imprisonment

for life. The Russian government having claimed that he should be given up for trial

in Russia; the Court of Cassation decided on appeal that the fiction of the law of

nations, according to which the house of an ambassador is reputed to be continuation

of the territory of his sovereign, only protects diplomatic agents and their servants,

and does not exclude the jurisdiction of French courts in case of a crime committed in

such a locality by a person not belonging to embassy, even although he is a subject of

the nation from which the ambassador is accredited.

Had Nitchencoff been given up, he could have been tried under the laws of

Russian subject, without reference to the particular place in which the offence was

committed. Let us suppose, however, that the crime had been committed by a citizen

of the United States in the British legation in Washington. If that legation be “English

ground,” the laws of the United States do not extend over it and, with a few

exceptions they do not provide for the punishment of offence committed by our

citizens on foreign territory. Nor could the culprit have been sent to England for trial,

since there is no law or treaty to warrant it. He would therefore have been exempt

from punishment. Since the practice of asylum is not sanctioned by international law,

it can be defended only on the ground of the consent of the state within whose

jurisdiction it is sought to be maintained. This view has been accepted by the

government of the United States in its Printed Personal Instructions to Diplomatic

Agents, which read as follows:

32

Leo Gross and Alona E. Evans, ‘Diplomatic Asylum. Legal Norms and Political Reality in Latin

American Relations’, The American Journal of International Law, Vol. 60, No. 4, Oct., 1966, p.34.

Diplomatic Asylum

241

Para: 46. Immunity from local jurisdiction extends to the diplomatic agent’s

dwelling-house and goods and the archives of the legation. These cannot be entered,

searched or detained under process of local law or by the local authorities.

Para: 47. This privilege, however, does not embrace the right of asylum for

persons outside of the agent’s diplomatic or personal household.

Para.48. In some countries, where frequent insurrections occur and consequent

instability of government exists, the practice of extraterritorial asylum has become so

firmly established, that it is often invoked by unsuccessful insurgents, and is

practically recognized by the local government, to the extent even of respecting the

premises of a consulate in which such fugitives may take refuge. This government

does not sanction the usage, and enjoins upon its representatives in such countries the

avoidance of all pretexts for its exercise. While indisposed to direct its agents to deny,

temporary shelter to any person whose life may be threatened by mob violence. It

deems it proper to instruct its representatives that it will not countenance them in any

attempt to knowingly harbor offenders against the laws from the pursuit of the

legitimate agents of justice.33

The statement that in certain countries the granting of asylum is “practically

recognized,” is significant. It means that the practice has existed, not as a right

derived from positive law or from custom, but as a privilege resting on sufferance.

Nowhere has it received the sanction of positive law. It is impossible, in view of the

results of our investigations, to maintain that it has acquired even in America the force

of a legal custom, or of a usage so certain and undisputed as to possess legal validity.

The concession of temporary shelter to a fugitive hunted by a mob can scarcely be

regarded as the exercise of a right of asylum. An unlawful assembly cannot claim any

right to have possession of its intended victim, nor would it be justifiable without

cogent reasons to hurl a fugitive into the power of his lawless pursuers. Nevertheless,

a public minister is bound to keep aloof from the domestic controversies of the

country in which he resides and to refrain from making his residence a place of resort

for political leaders who believe themselves to be in danger. His conduct should be

guided by the following rules:

33

William .R. Slomanson, Fundamental Perspectives on International Law, (Thomson West

Publication, USA), 2003, p. 104

Diplomatic Asylum

242

1. In no case is a minister to offer his dwelling as a resort for refugees.

2. If a fugitive, uninvited, applies for protection, it is to be accorded only when his

life is in imminent danger from mob violence, and only so long as such imminent

danger continues.

3. A minister is bound to refuge asylum to persons fleeing from the pursuit of the

legitimate agents of the government, and, in case such persons have been

admitted, he must either surrender or dismiss them.

4. A minister is obliged strictly to abstain, except under the conditions and

limitations prescribed by rule 2, from receiving or retaining persons who are

engaged in political agitation, or who, though not formally accused, and inspire

the government with distrust.

In the foregoing rules no exception is made in favor of political offenders, nor

can such an exception be supported on legal principles. Assuming that a state is not,

by reason of the irresponsibility of its government or the character of its legal system,

denied the rights of sovereignty, it possesses exclusive jurisdiction over its territory

and inhabitants. This jurisdiction is as absolute in the case of political as of common

offenders. Indeed there was logic in the old rule which tolerate asylum for common

but not for political offenders, since the exercise of sovereignty is peculiarly involved

in the protection by each state of its own political institutions. As has been shown, the

granting of asylum to political offenders was simply the transformation of a decaying

abuse, which sprang up in times when the principle of territorial sovereignty was not

fully established and when the privileges of ambassadors were greatly exaggerated. It

is because of the failure to consider asylum in its true legal aspect as a derogation

from the sovereignty of the state, that writers have sometimes seemed to suppose that

an exception might be made in favor of one class of offenders as against another; and

it is in consequence of the attempt to make such an exception that we have constantly

witnessed, in the course of our investigations, the intervention of diplomatic and even

consular officers in the affairs of the country in which they reside, by making their

houses a base of operations for those engaged in political strife.

Diplomatic Asylum

243

5.6 Asylum Case34

The Colombian government has finally invoked ‘American international law

in general’. In addition to the rules arising from agreements which have already been

considered, it has relied on an alleged regional or local custom peculiar to Latin-

American states. The Party which relies on a custom of this kind must prove that this

custom is established in such a manner that it has become binding on the other Party.

The Colombian government must prove that the rule invoked by it is in accordance

with a constant and uniform usage practised by the states in questions, and that this

usage is the expression of a right appertaining to the state granting asylum and a duty

incumbent on the territorial state. This follows from Article 38 of the Statute of the

Court, which refers to international custom ‘as evidence of a general practice accepted

as law’. In support of its contention concerning the existence of such a custom, the

Colombian government has referred to a large number of ... treaties.

Finally, the Colombian government has referred to a large number of

particular cases in which diplomatic asylum was in fact granted and respected. But it

has not shown that the alleged rule ... was invoked or if in some cases it was in fact

invoked that it was, apart from Conventional stipulations, exercised by the states

granting asylum as a right appertaining to them and respected by territorial states as a

duty incumbent on them and not merely for reasons of political expediency. The facts

brought to the knowledge of the Court disclose so much uncertainty and

contradiction, so much fluctuation and discrepancy in the exercise of diplomatic

asylum and in the official views expressed on various occasions, there has been so

much inconsistency in the rapid succession of Conventions on asylum, ratified by

some states and rejected by others, and the practice has been so much influenced by

considerations of political expediency in the various cases, that it is not possible to

discern in all this any constant and uniform usage, accepted as law, with regard to the

alleged rule of unilateral and definitive qualification of the offence. The Court cannot

therefore, find that the Colombian government has proved the existence of such a

custom. But even if it could be supposed that such a custom existed between certain

Latin-American states only, it could not be invoked against Peru which, far from

having by its attitude adhered to, has, on the contrary, repudiated it by refraining from

34

Asylum case (Columbia v Peru) [1950] ICJ Rep, p.266, http://www.icj-

cij.org/icjwww/idecisions.htm (accessed on 20th may 2009)

Diplomatic Asylum

244

ratifying the Montevideo Conventions of 1933 and 1939, which were the first to

include a rule concerning the qualification of the offence in matters of diplomatic

asylum.

5.7 Provisions of Havana Convention on Asylum

Article 1: “It is not permissible for State to grant asylum in legations, warship,

military camps or military aircraft, to persons accused or condemned for common

crimes or to deserters from the army or navy.

“Persons accused of or condemned for common crimes taking refuge in any of

the places mentioned in the preceding paragraph shall be surrendered upon the request

of local government……”

Article 2: “Asylum granted to political offenders in legations, warships,

military camps or military aircraft, shall be respected to extent to which allowed, as a

right, or through humanitarian toleration, by the usages, the Conventions or the laws

of the country in which granted, and in accordance with the following provisions:

1) Asylum may not be granted except in urgent cases and for the period of time

strictly indispensable for the person who has sought asylum to ensure in some

other way his safety;

2) Immediately upon granting asylum, the diplomatic agent, commander of a

warship or military camp or aircraft, shall report the fact to Minister of foreign

relations of the state of the local administrative authority, if the act occurred

outside the capital;

3) The government of the state may require that the refugee be sent out of the

national territory within the shortest time possible ; and the diplomatic agent of

the country who has granted asylum may in turn require the guarantees

necessary for the departure of the refugee, with due regard to the inviolability of

his person, from the country;

4) Refugees shall not be landed in any point of the national territory nor in any

point of the national territory nor in any place too near thereto;

5) While enjoying asylum, refugees shall not be allowed to perform acts contrary

to the public peace;

Diplomatic Asylum

245

6) States are under no obligation to defray expenses incurred by one granting

asylum.35

Concept of Diplomatic Asylum analyzed

Asylum consists of two important concepts: first, that it should be a temporary

shelter and a refuge. Secondly, active protection by the diplomat of the rights of the

person seeking asylum, in fact, the right of asylum was first innovated during the time

of French Revolution in 1789 and many European States subsequently had adopted

this measure either by international agreement or by virtue of national legislation. In

an attempt to define the ‘asylum’ an eminent jurist stated:

“Consenting to the grant of entry and stay for a foreign subject who seeks

refuge either by virtue of persecution of his own country or as a result of political and

insurgent activity in case of national liberation or any other ancillary reason.”

Asylum further can be of two kinds in nature. First, it may be territorial;

secondly, it may be extra-territorial. Granting of territorial or extra-territorial asylum

is an admitted manifestation of a State’s sovereignty. A sovereign thus can exercise

the right of granting asylum to political, social and religious refugees and to criminals

also subject to certain rules and regulations. The International Court of Justice in the

case of Haya dela Torre held that if asylum is granted irregularly and without

justification, the Head of the Mission cannot be compelled to surrender the fugitive.

In case where immediate and immense danger is threatened by mob violence and riot,

to the body of a person where diplomatic asylum is permitted by custom, usage,

mutual consent and agreement, asylum can be granted to political offenders. The right

to grant asylum also extends to consular agents and to consulate premises.

5.8 Vienna Convention Provision on Waiver

These immunities and privileges may be waived by the diplomatic agents.

Article 32 of the Vienna Convention on Diplomatic Relations in 1961 provides

expressly for such waiver.

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying

immunity under Article 37 may be waived by the Sending State.

2. Waiver must always be express.

35

Tim Hillier, Sourcebook on Public International Law, Cavendish Publishing Limited, 1999, p.222.

Diplomatic Asylum

246

3. The initiation of proceeding by a diplomatic agent or by a person enjoying

immunity from jurisdiction in under Article 37 shall preclude him from invoking

immunity from jurisdiction in respect of any counter claim directly connected

with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative

proceedings shall not be held to imply waiver of immunity in respect of the

execution of the judgment, for which a separate waiver shall be necessary.

Similar to this provision, Article 45 of the Vienna Convention on Consular

Relations in 1963 also provide for the waiver to consular agents.

5.9 Asylum in State Owned Vessels.

5.9.1 War Ship:

It is generally stated that a ship of war is not subject to the local jurisdiction in

a foreign port.36

This exemption is by some writers maintained to be absolute as to

amount to extraterritoriality. Ortolan, Maine and Testa treat the surrender of refugees

on a man-of-war as an act of extradition. Calvo, while saying that such a vessel is

exempt from the civil and criminal jurisdiction, declares that the privilege cannot be

invoked to cover acts contrary to the law of nations, such as attacks against the safety

of the state or violence against individuals.37

Sir Travel Twiss and Bar, both of whom

deny the extraterritoriality of a diplomatic residence, hold that if fugitives be admitted

on board of a man-of-war, they cannot be taken out by the local authorities by force,

against the will of the commander. In the case of a man-of-war, Bar maintains that

extraterritoriality is inherent in the thing itself, and the same view is expressed by

Twiss. This contention has been supported, by the opinion of Chief Justice Marshall

in the case of the schooner Exchange,38

and an American vessel which was seized and

condemned by the French government under the unlawful Rambouillet decree, and

converted into a man-of-war called the Balaou. The vessel having subsequently come

within the jurisdiction of the United States, the original owner brought suit to recover

possession of his property. Marshall, delivering the opinion of the court, held that the

action could be maintained. He said that a public armed ship constituted a part of the

36

John A. Scanlan and G. D. Loescher, ‘Mass Asylum and Human Rights in American Foreign

Policy’, Political Science Quarterly, Vol. 97, No. 1, Spring, 1982, p. 95. 37

Kenneth W. Thompson, The Ethical Dimensions of Diplomacy, The Review of Politics, Vol. 46, No. 3, Jul., 1984, p.156. 38 Supra Note 29, p.1521

Diplomatic Asylum

247

military force of her nation, acted under the immediate command of her sovereign and

was employed by him in national objects.

That sovereign had many and powerful motives for preventing those from

being defeated by the interference of a foreign state, and such interference could not

take place without affecting his power and dignity. The implied license, therefore,

under which a man-for-war entered a friendly port, might be constructed as containing

an exemption from the jurisdiction of the sovereign within whose territory she

claimed the rights of hospitality ; and nations had not in practice asserted their

jurisdiction over the public armed ships of a foreign sovereign entering a port open for

their reception. These statements seem to be most cogent as applied to the attempt to

determine the title of the French government to man-of-war in a civil action, but they

do not import the absolute extraterritoriality of a public vessel.

In the case of the Santissima Trinidad, 39

Mr. Justice Story cited the case of

the Exchange as authority for the proposition that the exemption of public ships from

the local jurisdiction was not an absolute right, but a rule of comity and convenience,

arising from the presumed consent or license of nations, “that foreign ships coming

into their ports and demeaning themselves according to law in a friendly manner shall

be exempt from the local jurisdiction.” Attorney General Bradford in 1794 advised

that a writ of habeas corpus might be awarded to bring up an American citizen

unlawfully detained on a foreign ship of war. In 1779 Attorney General Lee held that

criminal and civil process might be served on a British man-of-war, though he laid

special stress on a treaty stipulation then in force between the United States and Great

Britain, “that the ships of war of each of the contracting parties shall at all times be

hospitably received in the ports of the other, their officers and crews paying due

respect to the laws and government of the country.” General Cushing accepted the

doctrine of extraterritoriality.

On the other hand, Sir William Scott advised the British government that the

authorities of a foreign country would not be chargeable with illegal violence if they

employed force to take a fugitive out of a British man-of-war; and it was held by the

Geneva Tribunal in 1872 that as the privilege of extraterritoriality accorded to vessels

of war had been admitted into the law of nations, not as an absolute right, “but solely

39

Supra Note 9, p. 272.

Diplomatic Asylum

248

as a proceeding founded on the principle of mutual deference between different

nations.” It could “never be appealed to for the protection of acts done in violation of

neutrality.” 40

But, whatever may be said as to be the extraterritoriality of ships of

war, it is doubtless a universal custom to accord them a general exemption from the

local jurisdiction, and for the reason that such an exemption is accorded, it is held that

considerations of propriety and good faith require the commanders of such ships to

abstain from abusing the hospitality of the port in which they may be by making their

vessels an asylum for offenders against the law.

The question whether this rule should be applied to slaves has given rise to

much discussion. On December 5, 1875, the British admiralty issued to the

commanders of Her Majesty’s ships of war the following instructions:

“Within the territorial waters of a foreign state, you are bound by the comity

of nation, while maintaining the proper exemption of your ship from local

jurisdiction, not to allow her to become a shelter for those who would be chargeable

with a violation of the law of the peace. If, therefore, while your ship is within the

territorial waters of a state where slavery exists, a person professing or appearing to

be a fugitive slave seeks admission into your ship, you will not admit him unless his

life would be manifest danger if he were not received on board. Should you, in order

to save him from this danger, receive him, you ought not, after the danger is past, to

permit him to continue on board; but you will not entertain any demand for his

surrender or enter into any examination as to his status.”41

The issuance of these instructions led to the appointment of a royal

commission to consider whether the rules laid down abridged the rights of men-of-

war. The commission differed as to the theory of extraterritoriality, which was

maintained by Sir R. Phillimore, Mr. M. Bernard and Sir Henry Maine, and denied by

Lord Chief Justice Cockburn, Mr. Justice Archibald, Mr. Thesiger, Q.C., Sir H. T.

Holland, Mr. Fitz-James Stephen and Mr. Rothery. They all, however, concurred in a

report that, whichever view prevailed, the fugitive should not be given up where the

result of surrendering him would be to expose him to cruel usage. By the treaty

between the United States and Algiers of September 5, 1795, it was provided that if

40

Harold Nicolson, ‘Modern Diplomacy and British Public Opinion', International Affairs (Royal

Institute of International Affairs 1931-1939), (Vol. 14, No. 5), Sep. - Oct., 1935, p.176 41

Michael Howard, ‘The World According to Henry: From Metternich to Me’, Foreign Affairs, Vol.

73, No. 3, May - Jun., 1994, p.892.

Diplomatic Asylum

249

slaves of the Regency should make their escape to ships of war the United States, they

should immediately be returned. By the treaty between those countries of 1816 it was

provided that if Christians, captives in Algiers, should escape or take refuge on such

ships, they should not be required back again. The treaty between the United States

and Tunis, of 1797, provided for the return of fugitive slaves by American men-of-

war, but the treaty of 1824 stipulated that slaves escaping or taking refuge on such

vessels should be free. On the other hand, Article 7 Para 2 in the treaty with

Madagascar of 1881, it is provided that Malagasy subjects shall not be permitted to

embark on United States vessels without a passport from the native government and

the institution of slavery in that country is explicitly recognized (Article 3).

During the disorders at Naples in 1849, Lord Palmerston said that while it “

would not be right to receive and harbor on board of a British ship of war any person

flying from justice on a criminal charge or who was escaping from the sentence of a

court of law, “yet a British man-of-war had always been regarded as a safe place of

refuge for persons fleeing “from persecution on account of their conduct or opinions,”

whether the refugee “was escaping from the arbitrary acts of a monarchical

government or from the lawless violence of a revolutionary committee.”42

In August

of the preceding year the Duke of Parma, whose life was threatened, was embarked at

Civita Vecchia on the British man-of-war Hecte, and in the same month the British

admiral ordered H. M. S. Bulldog to the same port to receive the Pope, should

commotions render it desirable for His Holiness to seek refuge on board. During the

revolution in Greece in 1862, King Otho and his queen were afforded protection on

the British frigate Scylla, while a member of the cabinet and his families were

received on the Queen, and several persons were sheltered on the French man-of-war

Zenobie. The instructions given by Vice-Admiral Sir William Martin on that occasion

to the commanders of British ships of war declared that their duty was “limited to the

protection of the lives and property of British subjects and to affording protection to

any refugees whom you may be informed by Her Majesty’s minister would be in

danger of their lives without such protection.”43

Under these instructions, the

reception of refugees by the British commanders was carefully restricted.

42

Michael Brandon, ‘Diplomatic Intercourse and Immunities as a Priority Topic for Codification by the

International Law Commission’, The International and Comparative Law Quarterly, Vol. 2, No. 2,

Apr., 1953, p. 803. 43

Ibid. p.1057

Diplomatic Asylum

250

In April, 1831, Captain Sloat, of the United States man-of-war St. Louis,

afforded temporary shelter from mob violence to the Vice-President of Peru and

General Miller, with the concurrence of the government of Peru and with the

understanding that they should not remain on board longer than was necessary for

their protection from such violence.44 In 1862, while the city of New Orleasns was

occupied by the forces of the United States, three Spanish men-of-war then in that

port received on board a large number of passengers for Cuba, among whom were

many citizens of the United States who, under the orders then in force, were not

permitted to leave the city without passes. General Butler, the officers in command,

claimed the right to search the vessels “for criminals other than rebels,” and after

much difficulty he obtained the privileges of searching two of the ships. In

consequence of this occurrence, he prohibited the entry of Spanish men-of-war above

the forts, till further orders from the War Department. Mr. Seward, while

recommending to the Secretary of War the suspension of the prohibition pending

explanation from the Spanish government, made urgent representation to the Spanish

minister. The Spanish government, after considered the subject, defended the action

of its naval officers, on the ground that asylum at least for political offenders might be

granted on men-of-war. Mr. Seward to concede this claim, saying that the United

States adhered to its former declaration that no ship of war of any nation would be

expected to carry into or out from any port of the United States which was either

occupied by their forces or in the possession of the insurgents, any person who did not

actually belong to civil, military or naval service of the country whose flag the vessel

carried, and especially that ships of war should not, without express leave of the

military authorities, carry into or out of such ports any citizen of the United States. It

was only, said Mr. Seward, on an expected compliance with these terms that any

foreign ship of war could enter a port in military occupation during the civil war.

During the war in Paraguay in 1886, Mr. Washburn, minister of the United

States at Asuncion, suggested to Commander Crosby of the United States man-of-war

Shamokin, then in Paraguavan waters, that peace might sooner take place if “a certain

distinguished person in Paraguay,” meaning President Lopez, could find a safe means

of escape from the country on that vessel. Commander Crosby replied that he could

44

Richard Garnett, State Immunity in Employment Matters, The International and Comparative Law

Quarterly, Vol. 46, No. 1, Jan., 1997, p.37.

Diplomatic Asylum

251

exercise no direction in the matter, since the admiral had given him positive orders

not to bring away President Lopez or any other Paraguayan. When Mr. Washburn

brought the subject to the attention of his government, with intimation that he himself

should be invested with discretion in the case, Mr. Seward answered as follows:

“The President sanctions the direction given by Admiral Godon to

Commander Crosby….. This government owes it to the belligerents, as well as to its

own dignity, to abstain from everything which could be or even appear to be a

departure from neutrality in the unhappy contest which is now going on between

Paraguay and her allied enemies. You will be expected to conform your proceedings

rigidly to the principle of non-interference.”45

During the civil war in Chili in 1891, the Secretary of the Navy of the United

States gave, in respect to the reception of refugees, the following instructions:

In inference to the granting of asylum, your ships will not, of course, be made

a refuge for criminals. In the case of persons other than criminals, they will afford

shelter wherever it may be needed, to Americans first of all, and to others, including

political refugees, as far as the claims of humanity may require and the service upon

which you are engaged will permit.

The obligation to receive political refugees and to afford them an asylum is, in

general, one of pure humanity. It should not be continued beyond the urgent

necessities of the situation, and should in no case become the means whereby the

plans of contending factions or their leaders are facilitated. You are not to invite or

encourage such refugees to come on board your ship, but, should they apply to you,

your action will be governed by considerations of humanity and the exigencies of the

service upon which you are engaged. When, however, a political refugee has

embarked, in the territory of a third power, on board an American ship as a passenger

for purposes of innocent transit, and it appears upon the entry of such ship into the

territorial waters that his life is in danger, it is your duty to extend to him an offer of

asylum.46

45

Smith Simpson, The Nature and Dimensions of Diplomacy’, ‘Annals of the American Academy of

Political and Social Science, Vol. 380, Nov., 1968, p. 912-915. 46

R. B. Lillich, ‘The Diplomatic Protection of Nationals Abroad: An Elementary Principle of

International Law Under Attack’, The American Journal of International Law, Vol. 69, No. 2, Apr.,

1975, p.245.

Diplomatic Asylum

252

These instructions seem to have been very liberally construed. During the

disorders immediately following the downfall of Balmaceda, the British ships refused

to receive any refugees. The French ships, which lay far out from the shore, did not

receive any. The Balmacedist President- elect, Vicuna, and Admiral Viel, found

refuge on the German man-of-war Leipzig. On September 4 the United States man-

of-war Baltimore sailed for Peru with nineteen refugees, part of who had been

sheltered by her and the rest by the flagship San Francisco. The latter ship, just before

her departure from Valparaiso on September 14, when, as Admiral Brown, the

admiral in command has said, “both at Santigo and Valparaiso perfect order existed,”

received other refugees. When he arrived at Callao on the 20th, he wrote that he had

brought two prominent “refugees,” but their names were not given. The report was

subsequently published that the two “mysterious refugees” were Senor Ovalle Vicuna

and Colonel Vidaurre, members of a Balmacedist military court Vidaurre being its

president- which on August 19 condemned to death on a charge of conspiracy a

number of youths whose ages ranged from sixteen to eighteen years. The boys were

subsequently shot in cold blood and their bodies mutilated.47 On October 4 the Herald

correspondent telegraphed from Valparaiso that the expected return of the San

Fransisco was regarded in Chili “with undisguised disfavor.” Admiral Brown

telegraphed from Callao on the 11th

of that month, “taking into account the strong

feeling in Chili against the American squadron,” he doubted “if an increased naval

force at Valparaiso would improve the state of affairs.” That the extensive deportation

of refugees by the American men-of-war partly accounted for that feeling is obvious.

5.9.2 Merchant Vessels:

Apart from acts affecting their internal order and discipline and not disturbing

the peace of the port, merchant vessels as a rule enjoy no exemption from the local

jurisdiction and therefore, cannot assert a claim to grant asylum. It has been

suggested that fugitive offender who comes on a vessel within the territorial limits of

a nation, as a passenger in transit from one foreign country to another, should not be

seized. Such an exception, however, cannot be said to be sanctioned by publicists,

nor it has been admitted in practice unless in particular places where a wide

exemption from the local jurisdiction has been accorded to merchant vessels, or to a

47

N.Y. Herald, September 25, 1891.

Diplomatic Asylum

253

special class of such vessels. In Cuba merchant vessels have enjoyed very

considerable immunities.

In 1880 one Leopoldo Olivella, who was accused of murder at Matanzas, took

passage on an American streamer in the city of New York for Vera Cruz in Mexico,

Havana being a regular port of call. When the steamer arrived at Havana, the consul

general of the United States, to whom the authorities had applied for the surrender of

the fugitive, went aboard, followed by the chiefs of police of Havana and Matanzas,

who were armed with a warrant of arrest and accompanied by witness to the fugitive’s

identity. Olivella consented, however, to go ashore, stipulating that legal steps should

be taken by the superior authorities of the island “to demand his extradition from the

government of the United States.” A certificate of the proceeding, embracing this

stipulation, was drawn up, and was signed by the accused and the several officers

present; and the Spanish minister subsequently presented it to the Department of

State, with the evidence in the case, as well as the indictment and warrant of arrest, in

order that the United States might be “fully satisfied with the formalities which have

been observed in the matter of the arrest of Olivella.”48

In 1884 one Nunez, who had

taken part in an insurrection near Sagua, escaped to the United States, where he

declared his intention to become a citizen. Soon thereafter he returned to Sagua as one

of the crew of an American vessel, remaining on board while in port. The chief of

police having applied to the acting of the United States for authority to take Nunez

from the vessel, the acting consul sought the instructions of the consul general at

Havana, who directed him to authorize the arrest, if the offence was not political. On

the presentation of evidence by the authorities that Nunez was accused as an assassin,

a robber and a bandit, the acting consul gave his written consent to the arrest. Nunez

was accordingly arrested, but he was afterward released on the discovery that he had

been amnestied by the governor of the province and permitted to leave the island after

the proceedings on the various charges against him were begun. In July, 1889, one

Peter Lynch, a sailor on the British steamer Charles Morand, killed the first officer

while the steamer was lying in the port of Manzanillo. The Cuban authorities declined

to take jurisdiction of the offence. After leaving Manzanillo, the steamer entered the

48

Otto Kirchheimer, ‘Asylum’, The American Political Science Review, Vol. 53, No. 4, Dec., 1959,

p.304.

Diplomatic Asylum

254

port of New York, where Lynch was held in extradition proceedings which resulted in

an order for his surrender for trial in England.49

The vessels of the Pacific Mail Steamship Company, an American line plying

between San Francisco and Panama as terminal point, and calling at various Central

American ports, have generally been free from molestation in those ports in respect of

passengers concerned in political agitations in the Central American states. In 1884

Senor Cruz, then minister for foreign affairs of Guatemala, made an oral application

to Mr. H. Remsen Whitehouse, the consul general of the United States, with a view to

his concurrence in the detention of two men, named Huerte and Sandoval, who were

alleged to have participated in a then recent insurrection on the Mexican from tier,

and who were passengers in transit on the Pacific Mail steamer Clude, then in the port

of San Jose. Mr. Whitehouse replied in writing that he did not considered himself

authorized to act in the matter, and the men were not detained.50 In 1890, however,

Mr. Mizner, then minister of the United States to Central American states, authorized

the seizure of General Barrundia, who was a passenger on the Pacific Mail steamer

Acapulco, from Acapulco, in Mexico, to Panama, and who had been engaged in an

attempt to stir up an insurrection in Guatemala. The seizure was attempted at San

Jose, Guatemala, and Barrundia, while resisting arrest, was killed. Mr.Mizner’s

conduct was disavowed, and he was recalled. The President, in his annual message to

Congress, 1890, stated the grounds of Mr. Mizner’s recall as follows:

It being evident that the minister, Mr. Mizner, had exceeded the bounds of his

authority in intervening, in compliance with the demands of the Guatemalan

authorities, to authorize and effect, in violation of precedent, the seizer on a vessel of

the United States of a passenger in transit charged with political offences, in order that

he might be tried for such offences under what was described as martial law. This

statement is in line with the telegraphic dispatch sent to Mr.Mizner when he first

reported the case. That dispatch was to the effect that, as General Barrundia entered

the jurisdiction of Guatemala at his own risk, the assumption of jurisdiction by the

Guatemalan authorities was at their risk and responsibility, and that it was regretted

you have advised or consented to the surrender, as no specific charge of violation of

the ordinary law of Guatemala appeared and the treatment of General Barrundia as an

49

Ibid, p.304 50

John H. Latane, International Law and Diplomacy, The American Political Science Review, Vol. 1,

No. 1, Nov., 1906, p.139.

Diplomatic Asylum

255

enemy under marital law was alone alleged. These statements seem to be far from

containing an assertion of a right of asylum. It appears that when the Guatemalan

authorities went on board of the Acapulco to seize Barrundia, they read Mr.Mizner’s

letter authorizing that step, as their warrant ; and it was for “intervening” “to authorize

and effect” the seizure, that Mr. Mizner was recalled.

In 1885 a Haytian insurrectionist, named Laroche, secretly went on board of a

French barque, the Panama, at Cape Haytian. The local authorities asked permission

of the French vice-consul to go board and arrest him. The vice-consul applied for

instructions to the French minister, who refused to grant such permission, and the

Panama was allowed to sail with Laroche on board. When this case was reported to

the government of the United States, Mr. Bayard, then Secretary of State, though not

asserting any claim of asylum, said:

“As we understand the case of the Panama, the local authorities applied to

consul for permission to go on board and take the fugitive. In a case which recently

arose in Cuba, where application was made to a consul to order the delivery of a

person then on board an American vessel in port, who was accused of common

crimes, and where the consul, after examining the charge against the person, ordered

the captain to deliver him up, the department held that the consul no authority to order

such surrender”.51

On December 10, 1873, the Brazilian main steamer Cuyaba, commanded by

an honorary lieutenant in the Brazilian navy, and subsidized by the imperial

government for the transportation of its correspondence from the province of Matto

Grosso and its legation in Paraguay, arrived at Buenos Ayres, in the Argentine

Republic, on a voyage Asuncion to Rio. On board was one Rivarola, a native the

Argentine Republic and formerly in its military service, who had afterwards entered

the army of Paraguay. He had embarked on the Cuyaba at Asuncion with his

Paraguayan commission and a permit to leave the country, and his passage was paid

to Montevideo by the Paraguayan government. Shortly after the arrival of the steamer

at Buenos Ayres, an officer of the port went on board and demanded that he be

allowed to arrest Rivarola as a political offender. In consequence of the refusal of the

captain to acquiesce, the steamer was detained, and the Brazilian minister was

51

Ibid. p. 130

Diplomatic Asylum

256

informed that the Cuyaba could not leave the port unless Rivarola was surrendered.

The Brazilian minister protested against the detention of the steamer, and the

Argentine authorities “as a matter of courtesy” permitted her to proceed, lying special

stress, just as the Brazilian minister had done, on the fact that Rivarola was in the

service of the Paraguayan government and that the statement was transporting

correspondence of the Brazilian government. The latter government subsequently

proposed that the treatment of vessels in transit should be regulated by agreement, in

order to avoid the possibility of conflicts a proposition in which the Argentine

government concurred.52 A precedent for such a negotiation might have been in the

postal Convention between France and Great Britain of September 24, 1856, by which

it is provided that “vessels chartered or subsidized by government,” when employed

in the service regulated by the treaty, shall be “considered and treated as vessels of

war,” and that passengers admitted on board such vessels, who do not think fit to land,

shall not under any pretext be removed from on board, be liable to any search or be

subjected to the formality of a visa of their passports. These stipulations illustrate the

possibility as well as the expediency of endeavoring to provide for exceptional cases

by positive agreement, in order that vexed questions may be avoided.

5.10 Conclusion

Controversy is characteristic of the practice of diplomatic asylum, whatever

form it may take. A grant of diplomatic asylum involves a political judgment by the

asylum state upon the state from which the soi-disant refugee has fled. In a particular

situation, as in the massive post-World-War-II European refugee programs, in which

the United States has been a major participant, or in the massive instances of

diplomatic asylum in the Guatemalan crisis of 1954, this political factor may be

heavily outweighed by the factor of humane necessity; even so, the political element

will not be wholly discounted by the policy-makers of the states concerned.

Political or humanitarian considerations may provide the rationale for a

particular grant of asylum, but the question remains as to whether the general practice

has any legal foundation, that is, whether it is a practice recognized within the

international legal system and whether it is governed by legal rules. Disregarding

territorial asylum, which presents its own problem, legal and otherwise for the asylum

52

Leslie Shirin Farhangi, ‘Insuring against Abuse of Diplomatic Immunity’, Stanford Law Review,

Vol. 38, No. 6, Jul., 1986, p. 141.

Diplomatic Asylum

257

state, diplomatic asylum as a “legal practice” is particularly vulnerable to criticism.

Although the Latin American states are by no means the only practitioners of this

form of asylum (instances can be cited from the contemporary practice of states

around the world), Latin America has the dubious advantage of the greatest frequency

of practice whether exercised by Latin American or non-Latin American diplomatic

missions, whereas diplomatic asylum is sporadic in other areas. For this reason

diplomatic asylum is often described by Latin American publicists as a regional

practice which is regularized by customary and Conventional rules of international

law peculiar to this area. That some publicists, Planas-Suarez and Coreno V among

others, can argue vigorously the opposite view, and that some states, such as Peru,

Haiti, and Venezuela, can manage to espouse both points of view depending upon the

circumstances of the case, only serve to keep diplomatic asylum in the vanguard of

disputations topics. Most writing on the subject emanates from Latin American and

Iberian publicists; some French and German publicists have been interested in it; but

only Garcia Mora has done much with it in English. In seeking to determine whether

there is a discernible legal foundation for the practice in Latin America, the author has

made a worth-while contribution to the literature in English on diplomatic asylum.

Two approaches are taken to the subject matter of this thesis, first, assuming

that diplomatic asylum is granted only to political offenders, the authors endeavor to

determine whether the practice is supported by customary or Conventional law; they

consider how the political offense is defined in customary and Conventional law for

the purpose of this kind of asylum and whether the characterization of the offense as

“political” is the prerogative of the territorial state or the asylum state. The first part

of the thesis treats the historical background of the practice in Latin America, the

importance of opinion juris necessitates to the existence of a presumed rule of

customary law, the limited recognition of a general right of diplomatic asylum in the

multilateral Conventional law of Latin America, example from the practice of selected

Latin American states and the United States, and “qualification” of an offense as

political as revealed in Latin American treaties and practice. Three appendices show

the status as to signature and ratification of the 1928 Havana Convention on Asylum,

the 1933 Monte video Convention on Political Asylum and the 1954 Caracas

Convention on Diplomatic Asylum; the fourth and fifth appendices list the instances

of grants of diplomatic asylum by Latin American States and United States in Latin

Diplomatic Asylum

258

America which were cited by Colombia in support of its position in the Colombian

Peruvian Asylum case.

Observing that no right of asylum as such is established in international law, it

was found that a regional “institution” of diplomatic asylum has developed in

response to conditions commonly found in Latin America. It is argued effectively that

no feelings of right or obligation can be shown to underlie the practice of diplomatic

asylum so as to warrant it’s being described as rule of customary international law in

this area, and that the several inter-American Conventions dealing with asylum are

not helpful in establishing its legal basis. He concludes that this regional institution is

extra-legal in character, and deliberately so, for the susceptibility of diplomatic

asylum to abuse as a form of intervention by a foreign state in domestic politics

makes Latin American states cautions in committing themselves to precise definition

of any of the terms of reference of practice. Despite its extra-legal character,

however, “the institution of diplomatic asylum is in fact respected”53

because it serves

a useful purpose where unstable political conditions warrant this safety valve.

It has advanced knowledge of the realities of Latin American practice

appreciably. The need continues, however, for a different type of approach, the is, for

studies of individual state practice regarding all aspects of asylum based upon

diplomatic correspondence, statutes, judicial opinions, and the works of publicists. In

such instances of asylum should be presented in the political context in which they

occurred, for the answer to the question as to whether an offense is political is often

implicit in the circumstances of the case but cannot be made explicit in diplomatic

correspondence for obvious reasons of international policy. Until such studies are

available, our knowledge of the practice of diplomatic asylum in its several forms in

Latin America, and in other parts of the world, will continue to be inadequate for the

purpose of evaluating this practice with a view to developing acceptable rules of law

to govern it.

Thus once a crime is qualified as political and a demand for a safe-conduct is

made, that safe-conduct must be conceded and, if the State granting asylum requires

53

C. Neale Ronning, ‘Diplomatic Asylum. Legal Norms and Political Reality in Latin American

Relations’, The American Journal of International Law, Vol. 60, No. 4 Oct., 1966, pp. 876-878

Diplomatic Asylum

259

it, the safe-conduct must be in writing.54

These recent provisions, inter alia,55

place

considerable power in the hands of diplomatic representatives, and they should,

therefore, now more than ever before, exercise their responsibilities with regard to the

right of asylum with forethought and prudence.

54

Article 13 ". . . the State granting asylum may require that the guarantees be given in writing, and

may take into account, in determining the rapidity of the journey, the actual conditions of danger

involved in the departure of the asylee . . " 55

Articles 14, 15, 19