Diplomatic asylum: a legal gap or a separate legal institution?

https://doi.org/10.63189/NVIJ9782

Diplomatic asylum: concept and content

"The right of asylum is the privilege whereby persons who have fled to the territory of a state or to certain special places are exempted from persecution by both domestic and foreign authorities",^[1] writes the well-known Pécs law scholar Professor Faluhelyi in his textbook on international law.

The right of diplomatic asylum developed on the basis of customary law from the principle of territorial sovereignty of the envoys' quarters, under which originally "the buildings of the envoys and the districts they occupied were in fact recognised as part of the territory of the sending state."^[2] At that time, territorial sovereignty was still linked to the person of the envoy and based on his relationship with the sovereign, but in the period following the Thirty Years' War (1618-1648), with the generalisation of the concept of sovereign states, the state and its representatives increasingly came to be regarded as the addressee of these rights. In the relations between sovereign states, reciprocity also played an increasingly important role, and territorial sovereignty eventually became a generally accepted rule of diplomacy.

Although diplomatic asylum bears a number of similarities to the ancient practice of ecclesiastical asylum,^[3] it is important to stress that this is a quite modern concept that dates back to the 19th and 20th centuries when it acquired its present form.

It is based on the 1961 Vienna Diplomatic Convention (hereinafter: VDC), which has now been adopted by almost the entire international community. On the one hand, it considers the inviolability of the premises of the representation, which are therefore outside the jurisdiction of the host state, as an immunity. The host state is therefore obliged to refrain from applying its rules to the embassy buildings of the sending state (passive obligation). On the other hand, the host state is obliged to protect the mission of the sending state from any interference (active obligation). According to the text of the 1961 Vienna Convention:  

"Article 22.

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.”

We can see that the VDC sets out the inviolability of the missions as a basic principle, but - in order to ensure diplomacy's room for manoeuvre - it also includes an exception, according to which the head of the mission can grant entry permission.

Abstaining from the procedure is not enough in itself, according to the convention, active protection is required here, namely the highest possible level of protection on the part of the host state - regardless of the state's level of development. The "special duty" and "all appropriate steps" refer to the high level of protection according to this objective standard.

The third point of the Art. 22. covers the concept of extraterritoriality in the broadest possible sense, since the convention also creates a separate definition for “premises of the mission”^[4], and the rest of the sentence does so by naming the different stages of the procedure make it clear that this exemption is comprehensive in relation to embassies.

We needed this lengthy explanation to see what the principle of territorial sovereignty involves. Indeed, diplomatic immunity is based on its rules, and its very existence is made possible by the application of these rules. It is not, therefore, a legal institution in its own right, but a legal gap, the limits of which vary according to international custom and case law and the strength and capacity of the parties concerned to assert their interests.

Diplomacy is the art of possibilities, but in order to fulfil its purpose of facilitating agreement between the parties, it must have sufficiently flexible rules. That is why this area of ​​international law provides even more deviations than the average, and legal gaps are often found in it, and despite the codification, the role of customs and customary law is significant.

Historical background

In the case of diplomatic immunity, the opportunities arising from the application of the principle of territorial sovereignty were already being exploited by the ambassadors of the various states in the 17th and 18th centuries. The right of asylum was initially open to anyone, whether a political refugee or a person persecuted for public offences. From a diplomatic point of view, political refugees were obviously the most valuable, as they usually came from prominent families and had many friends and supporters in the (host) country. But the greatest treasure of that era was also the information with which the refugee could pay for his safety. “As premises of mission thus very often became centres of intrigue and conspiracy ... [and] the thread of conspiracies against the host state ... was often discovered in embassy buildings ..."^[5], the use of diplomatic asylum was banned in the early 19th century - but never abolished.

How can you stop a custom that does not even officially exist?

For example, with a specific a.) prohibition, as the Havana Convention of 1928 did, but this prohibition excluded diplomatic asylum only for public criminals, and had some birth defects when the treaty was adopted: aa.) it applied only to the American states, because it was adopted in the framework of the Organization of American States; ab.) the United States of America, although it signed it, did not ratify it, i.e. it did not undertake to comply with it.

An attempt can be made to b) regulate the question, as can be seen in the Bath resolutions (hereinafter: BR) published by the Institute of International Law (IDI) in 1950. This was, however, only a model convention drawn up not by states but by an international law organisation, and therefore had no binding force. The Bath resolutions recognised the existence of diplomatic asylum, but made its application subject to strict conditions. Diplomatic asylum could only be granted ba.) in case of emergency; bb.) for the duration of the emergency; bc.) upon notification to the local authorities. In the light of the practice of 20th century dictatorships, where political opponents could easily be accused of public offences, the BR broke with the criminal/political refugee dichotomy and stated that diplomatic asylum "can be granted to any person whose life, physical integrity or freedom is threatened by violence emanating from the local authorities, or against whom the authorities are clearly unable to protect him or her, and even tolerate it or facilitate its use. These provisions shall be applied under the same conditions if the threat is the result of internal strife."^[6] A further innovation is that the BR allows not only the head of the mission but also the commanders of ships and aircraft to offer asylum.^[7] 

Finally, it can also be regulated (c) by silence, as was done by the states that adopted the VDC. It would have been very difficult to reach an agreement on the scope of diplomatic asylum because of the different customs and interests of the States. Moreover, silence was much more in the interests of the international community, as it could be interpreted as both a ban and a tacit acceptance. For the States that concluded the Vienna Convention of 1961, a 'grey zone', agreed by common consent, was therefore the most appropriate, the limits of which could be widened or narrowed on a case-by-case basis, in accordance with custom and previous case law. In any event, a general prohibition was included in the text of the Vienna Convention, which could be invoked as a limit if a State went beyond the acceptable limits.^[8]

Customary practice has already been mentioned above, since the three agreements (conventions and resolutions) mentioned above are usually cited as cases of diplomatic asylum. But what about the case law that can also be referred to? Only some of the most frequently cited cases have been brought before the courts,^[9] while others have ended without a court decision.   

In 1948, a Peruvian politician, Victor Raul Haya de la Torre, was accused of organising an uprising and sought protection at the Colombian embassy to save his life. In two trials between Peru and Colombia at the International Court of Justice on the issue of diplomatic asylum, the court ruled that the exercise of diplomatic asylum violated the sovereignty of the host state and constituted interference in its internal affairs. Peru therefore has the right to request extradition, but Colombia is not obliged to extradite the politician who fled to its embassy and was eventually granted ‘implicit’ diplomatic asylum.

When the Hungarian Revolution of 1956 was crushed, two Hungarian leaders sought diplomatic asylum in Budapest. Hungarian Prime Minister Imre Nagy and his entourage fled to the Embassy of Yugoslavia in Budapest. Three weeks later, after intensive (Yugoslav-Hungarian-Soviet) negotiations, they left the embassy with a bad feeling. They were subsequently captured by the Soviets and transported to Romania, from where Nagy was brought back only for the show trial which was followed by a death sentence.^[10] While the fate of Prime Minister Nagy and his colleagues highlights the limits of diplomatic asylum and the possibility of its abuse, the settling of Hungarian church leader Cardinal József Mindszenty, Archbishop of Esztergom, in the American embassy showed that in diplomacy, words like ‘temporary instrument’ can sometimes take on a different meaning than the original. Cardinal Mindszenty stayed at the embassy for 14 years between 1956 and 1971, but finally, thanks to Hungarian-American-Vatican negotiations, he was able to leave Hungary unharmed.^[11] His stay at the US Embassy also confirmed that diplomatic asylum could be granted de facto, since “the US government has never officially acknowledged that it has granted diplomatic asylum"^[12] in this case. 

The Tehran hostage case was also judged by the International Court of Justice. It is worth mentioning here because, according to the Court's judgment, when Iranian students seized the US Embassy in Tehran in 1979 and held the diplomats working there hostage for more than a year, they violated several provisions of the 1961 Vienna Convention. The Court also condemned Iran for failing to fulfil its obligation to actively protect the diplomatic mission's inviolability.

Finally, the case of the Australian Julian Assange, who stayed in Embassy of Ecuador in London between 2012 and 2019, should also be mentioned. Assange became known as one of the leaders of WikiLeaks, which published a large amount of US diplomatic documents. In 2010, Assange, then living in Sweden, was arrested on charges of sexual harassment and rape. Assange went to London where he was arrested. He was released on bail. When he saw himself being extradited to Sweden, he sought asylum at the Ecuadorian embassy in London, fearing that Sweden would extradite him to the United States. The case is interesting for several reasons. On the one hand, the condition for the right of asylum would have been to refrain from politics - even in the era before the Internet, this was expected of Cardinal Mindszenty by the Americans who granted him asylum - but Assange not only continued his activities, but - when they tried to prevent this - also started a lawsuit against the Ecuadorian government because of the restriction of his fundamental rights. On the other hand, in connection with the case, it also became clear that although the host state must protect the foreign representation, it can prevent the person receiving diplomatic asylum from being transferred to another country - even in diplomatic status. In 2019, Ecuador finally revoked asylum from Assange, who was taken from the embassy by the British police. In this regard, the case is also considered new, even if it is not currently known what kind of preliminary negotiations between the countries concerned (United Kingdom, USA, Australia, Sweden) preceded the withdrawal of the right to asylum.

Summary

We have looked at the development and regulation of diplomatic asylum from its origins to the present day. We have seen that, although similar rules (ecclesiastical asylum) existed much earlier, they became general after the emergence of sovereign states. Although attempts were made from the 19th century onwards to limit it, it was never abolished, as the maintenance of the 'grey zone' in this case benefited all international players. Thus, regulation came to the fore in the 20th century, and eventually, through conventions, drafts and case-law, the scope and limits of diplomatic asylum can be well defined by the early 21st century. All of this makes it possible for the legal gap, which is currently clearly a regulatory grey zone, to slowly become an independent legal institution, which, even if there are no clear written rules in the foreseeable future, can become a predictable tool in diplomacy through a kind of tacit international consensus.

^[1] Ferenc Faluhelyi (1886-1944) was one of the most influential law professors at the Faculty of Law in Pécs. It was partly thanks to him that the international lawyers of the University of Pécs, which was based in a multi-ethnic city in southern Hungary, paid special attention to the study of minority issues. It was at his suggestion that the first institute for minority law was founded in Hungary, and its objectives included research not only on Hungarians living abroad but also on all domestic minorities of Hungary. Professor Faluhelyi argued that international law was in fact a body of law governing relations between states, and therefore his textbook on international law was entitled Interstate Law. Source of the quoted text: Faluhelyi, Ferenc: Államközi jog [Interstate Law] (Pécs, 1936. p. 134.).

^[2] Faluhelyi, Ferenc: Államközi jog [Interstate Law] (Pécs, 1936. p. 156.). 

^[3] It is noteworthy, however, that even in ancient cultures, the scope of ecclesiastical asylum was limited. There are several examples for this in the Bible (see Book of Numbers 35:10-35:28 and 1 Kings 2:28-2:34). As an example of early regulation from Central Europe, it is worth mentioning Stephen I of Hungary’s (reign: 997-1038) so-called Second Law Code, which on the one hand confirms the right for ecclesiastical asylum, but on the other hand also removes its limits when it states that the perpetrator of a crime against the state (i.e. one who plots against the king or the country) is not exempt from punishment he takes refuge in a temple (St Stephen’s Law Code No. 2., Art. 51).   

^[4] VDC Art. 1, Point (i)

^[5] Nándori, Pál: A diplomáciai képviselet kialakulása, szervezete és tevékenysége [The development, organization and activity of diplomatic representation] (Történelem 1964. Vol. 2.,  p. 160.) See also: Politikai bűnösök ki nem adására vonatkozó elv történeti fejlődése [Historical development of the principle of non-extradition of political criminals] In Szondy, Viktor – Jónás, Endre: Diplomáciai Lexikon [Lexicon of Diplomacy] (Bp., Kulcsár, 1947. p. 777-779.).

^[6] Bath resolutions, Art. 3, Point 2.

^[7] In the past, the Institute of International Law took the position that only political refugees could be granted asylum on ships, not public criminals or military deserters (See IDI Stockholm resolutions of 1928. Règlement sur le régime des navires de mer et de leurs équipages dans les ports étrangers en temps de paix  [On the Rules of Order for Seagoing Ships and their Crews in Foreign Ports in Time of Peace], Art. 21) www.idi-iil.org/en/sessions (31.08.2024). 

^[8] See: VDC, Art. 41.

^[9] See the two judgments (1950, 1951) related to the diplomatic asylum granted to the Peruvian politician Victor Haya de la Torre (1895-1979) by Colombia, and the judgment rendered in the Tehran hostage case (1980) (www.icj-cij.org/case, 31.08.2024).

^[10] For the diplomatic asylum offered by the Yugoslav ambassador, see: Varga, László: Nagy Imre a jugoszláv követségen [Imre Nagy at the Yugoslav Embassy] (Budapesti Negyed 1993/1., https://epa.oszk.hu/00000/00003/00001/fej07.htm (31.08.2024.), for a comprehensive overview of the trap set for Prime Minister Imre Nagy, see www.origo.hu/tudomany/2016/11/nagy-imre-elrablasa-diplomaciai-feszultsegforrassa-valt-jugoszlavia-es-a-szovjetunio-kozott (31.08.2024.). 

^[11] For a detailed and historically accurate account of Cardinal Mindszenty's stay at the American Embassy in Budapest, see: Balogh, Margit: József Mindszenty (Bp., MTA BTK, 2015. Vol. 2. p. 1049-1280.).

^[12] Bruhács, János - Kis-Kelemen, Bence – Mohay, Ágoston: Nemzetközi jog [International law] Vol. 1. (Bp., Dialog Campus, 2023. p. 234.).