20 August, 2012

Asylum ~ Some notes

No legal term in common use is perhaps so lacking in uniformity and accuracy of definition as the 'right of asylum' ~ John Bassett Moore, Digest of International Law - 8 Volumes (1906).

Asylum - Refugees - Diplomatic asylum - Assange

Setting the scene:

Wikileaks founder, Mr Julian Assange was granted "Asylum" by Ecuador.  He is in the Ecuadorean Embassy in London.   The Embassy is inviolable under ~

Article 22 of the Vienna Convention on Diplomatic Relations:

1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3.The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

The grant of asylum to Assange created a problem for the British government which is under a legal obligation under the European Arrest Warrant System to extradite him to Sweden.  Assange fought the extradition case as far as the Supreme Court of the U.K. which, by a majority of 5 to 2, ruled against him - see Julian Assange v Swedish Judicial Authority 2012 - (Lady Hale and Lord Mance dissenting).

This post does not seek to consider in detail the convoluted international law position regarding asylum.  However, in the following notes, some information sources are referenced. A conclusion is reached that there is no basis in international law for the Ecuadorean government to have granted "diplomatic asylum" to Mr. Julian Assange.

Asylum in History:

There is a long history of offering safety to those fellow human beings who are in trouble. Some of the general history is considered by Wikileaks - Right to Asylum.

The Universal Declaration of Human Rights:

Article 14 of the Universal Declaration states:

  • (1) Everyone has the right to seek and to 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.
The Refugee Convention:

Protection offered by a State - on its territory - to genuine refugees is sometimes referred to as "territorial asylum."  Territorial asylum is limited by any extradition treaties in force.

The 1951 Convention relating to the Status of Refugees is the key legal document in defining who is a refugee, their rights and the legal obligations of states. The 1967 Protocol removed geographical and temporal restrictions from the Convention.  Text of the Convention and Protocol.

The United Kingdom Border Agency (UKBA) website has a section dealing with Asylum.  It states:

"The UK has a proud tradition of providing a place of safety for genuine refugees. However, we are determined to refuse protection to those who do not need it, and will take steps to remove those who are found to have made false claims.

Asylum is protection given by a country to someone who is fleeing persecution in their own country. It is given under the 1951 United Nations Convention Relating to the Status of Refugees. To be recognised as a refugee, you must have left your country and be unable to go back because you have a well-founded fear of persecution.

The UK also adheres to the European Convention on Human Rights, which prevents us sending someone to a country where there is a real risk that they will be exposed to torture, or inhuman or degrading treatment or punishment."

The website also indicates that:

"If you do not qualify for asylum but we think there are humanitarian or other reasons why we should allow you to stay in the UK, we may give you temporary permission to stay here."

In recent years, concerns have been raised that the right to seek asylum is, in practice, being eroded.  For example, see the article by Dr Helen O'Nions on Web Journal of Current Legal Issues - [2006] 2 Web JCLI

Diplomatic Asylum:

This a form of "extra-territorial" asylum which is given to an an individual usually in the diplomatic premises of the State granting it.  Thus, it derogates from the territorial sovereignty of the host State. 

a) Overview -

In the course of the rise of the modern state system, diplomats became invested with various privileges and immunities, part and parcel of the convenient but necessary fiction that ambassadors and their entourage occupied within their country of posting (the "territorial" sovereign) an enclave of their own sovereign power.

Thus persons and property of the "sending state" enjoyed within the protected zone customary (so-called extraterritorial) rights and were exempt from the normal reach of the executive and judicial power of the host or "receiving state," to cite the language of the two Vienna conventions of 1961 and 1963 governing diplomatic and consular practice, respectively. Accordingly, an embassy could by custom extend the protection of its premises to fugitives from the summary justice or even lynch law of the host country. (Warships and merchant vessels were treated similarly.)

This tradition of diplomatic asylum became particularly strong in Latin America during the nineteenth century—a reflection of the political violence that frequently accompanied regime changes within the continent. By custom such asylum was not extended to ordinary criminals ("persons accused of or condemned for common crimes") but rather to "political offenders," those refugees whose only offence, it was asserted, lay in their beliefs. To regulate this tradition, in the first half of the twentieth century the Latin American republics negotiated a series of conventions (Havana in 1928, Montevideo in 1933, Caracas in 1954), though not all the countries ratified the results.

The Caracas convention followed a bitterly fought dispute between Peru and Colombia before the International Court of Justice at The Hague. In two connected decisions, the Asylum and Haya de la Torre cases, 1950–1951, the court held that the right of diplomatic asylum did not exist through customary international law but, if at all, only by virtue of explicit bilateral or multilateral treaties, or through the established and reciprocal action of both countries.

Surveying the history and jurisprudence of diplomatic asylum, the late Ian Brownlie wrote that, despite the examples drawn from Latin American regional custom it was "very doubtful if a right of asylum for either political or other offenders is recognised by general international law." 

Interestingly, the United States, like other major powers, generally disapproved of the invocation of diplomatic immunity for fugitives.  However, not long after the eventual resolution of the Colombian-Peruvian case, the U.S. embassy in Budapest granted diplomatic asylum to the Roman Catholic primate of Hungary, Joseph Cardinal Mindszenty.  The US was very opposed to the Soviet repression of the Hungarian uprising in October–November 1956. This episode—an exception to normal U.S. policy—was a deliberate Cold War tactic and has to be seen as part of a larger pattern of American diplomatic and legal responses to the political and ideological challenges of communism. At the end of the Korean War (1950–1953), for example, the U.S.–led United Nations negotiators offered asylum en masse to North Korean and mainland Chinese prisoners of war who did not wish to be repatriated to their home countries.

b) Summary -

The position regarding diplomatic asylum thus appears to be that there is no general right to grant it but, exceptionally, it may be possible to grant it (a) as a temporary measure to individuals in physical danger; (b) where there is a binding local customary rule that diplomatic asylum is permissible and (c) under a treaty providing specifically for it.

c) UK view regarding Assange

In relation to the Assange matter, the Foreign Secretary (Mr William Hague) said - "The UK does not accept the principle of diplomatic asylum.  It is far from a universally accepted concept:  the United Kingdom is not a party to any legal instruments which require us to recognise the grant of diplomatic asylum by a foreign embassy in this country.  Moreover, it is well established that, even for those countries which do recognise diplomatic asylum, it should not be used for the purposes of escaping the regular processes of the courts." 

Mr Hague' statement is here.  

d) UK position more generally

The United Kingdom has adopted that position for many years.  This is well discussed in the book Asylum and International Law by S. Prakash Sinha.  In particular, Chapter X Section C 2 looks at the United Kingdom's practice and offers some very interesting examples such as the case of the Duke of Riperda who, in 1726, was given refuge in the house of the British Ambassador's house in Madrid.   The book also notes that, in the 19th century, British Legations granted diplomatic asylum to individuals in South and Central American Republics.  It was claimed that this was done on grounds of humanity.  Prakash Sinha concluded that the evidence showed that the UK neither claims nor recognises a legal right to grant diplomatic asylum although, on occasions, it has done so on humanitarian grounds.

Organisation of American States ~ Treaties:

Was Ecuador within its legal rights to grant diplomatic asylum to Assange in the UK? 

The Assage case is not a matter of whether he is a refugee.  He has not claimed asylum from the U.K. on that basis.  Also, he has not claimed it from Ecuador.

Within the UK itself, Mr Assange was not in any physical danger from the UK authorities.  They are obligated to extradite him to Sweden which is a respected democratic nation with a system of independent courts.  Sweden is also bound by the European Convention on Human Rights.  It is worth noting here that European Convention law would prevent extradition of an individual to any State which might apply the death penalty to that individual or subject him to cruel or inhumane treatment.

There is no local customary rule enabling Ecuador to grant diplomatic asylum to anyone who is in the United Kingdom.

There is no treaty between the UK and Ecuador providing for diplomatic asylum.

The conclusion must be that, in these circumstances, the grant of asylum to Mr. Assange is not justifiable in international law.


These notes hopefully show some of the complexity involved in this area.  In conclusion, one cannot help but think that, 106 years after John Bassett Moore wrote his "Digest", the term "asylum" still lacks uniformity and accuracy of definition.  What clarity there is regarding diplomatic asylum suggests that Ecuador had no basis in international law to grant diplomatic asylum to Mr Assange in the UK.


Ref: 1 - Encyclopedia of the New American Nation

1 comment:

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