The latest cases relating to diplomatic asylum before the International Court of Justice (Embassy of Mexico in Quito and Glas Espinel cases)
- Anna Szarek-Zwijacz
- 4 days ago
- 10 min read
Factual background
On 5 April 2024, in the middle of the night (around 10:00 p.m.), Ecuadorian law enforcement agents broke into the premises of the Mexico’s Embassy in Quito, pulled Jorge David Glas Espinel out of them and leaved. Just before and during this operation there were also other infringements concerning the embassy and its staff, i.a. the Deputy Chief of Mission was violently assaulted when he tried to stop the storming Ecuadorian agents.
This raid was the culmination of the tension that had been growing for several months between Ecuador and Mexico, starting on 17 December 2023. On that day Mr. Glas, the former Vice-president of the Republic of Ecuador arrived at the Mexican Embassy asking for protection “due to his fear regarding his personal integrity” and stayed in their premises after filling the official request for asylum[1]. At the moment of entering the Embassy Mr. Glas was convicted for illicit association and bribery, temporarily released from prison. In addition, he was subject to ongoing criminal proceedings for suspected embezzlement of public funds[2].
In the following months the meetings between Ecuadorian and Mexico authorities took place concerning Mr. Glas request for asylum, but without any solutions. On 29 February 2024 the Ministry of Foreign Affairs of Ecuador issued a diplomatic note, requesting the consent for the access of Ecuadorian law enforcement agencies into the premises of the Mexican Embassy to execute a new warrant issued upon Mr. Glas, but he received the replay, that the consent would not be granted. The situation between both states had escalated after statements by the President of Mexico calling into question the legitimacy of the presidential elections in Ecuador held in 2023[3]. As a result, on 4 April 2024, Ecuador declared the Ambassador of Mexico in Quito persona non grata. On the very next day, 5 April 2024, the Ministry of Foreign Affairs of Mexico stated in a press release that, after a "thorough analysis", it decided to grant "political asylum" to Mr. Glas and announced that it would request that Mr. Glas be granted safe conduct so that he could be removed from Ecuador's territory[4]. That same day the Ministry of Foreign Affairs of Ecuador, also in a press release, condemned the announced decision. The Embassy of Mexico was requested once more to surrender Mr. Glas or to allow the Ecuadorean police to enter the premises of the mission to arrest him. The Embassy denied this request and the night’s raid of 5 April occurred. The next day Mexico broke off diplomatic relations with Ecuador.
The first step – the application of Mexico (Embassy of Mexico in Quito case)
Not even a week has passed since Mr. Glas was taken by forcible means from the Mexico Embassy, when the ICJ Registrar received Mexico's application instituting proceedings before this Court against Ecuador (containing a request for provisional measures), starting the legal battle between those two Latin American states.
With regard to the premises of Mexico’s Embassy to Ecuador and its diplomatic personnel, Mexico requests the Court: “To adjudge and declare that, by deploying special forces of the police and military personnel outside and inside Mexico’s diplomatic premises in Ecuador, harming the personal integrity and dignity of Mexican diplomatic personnel, intervening and hearing private communication of the Embassy, and forcibly entering to it, Ecuador is in breach of its obligations under international law, notably articles 22, 25, 27(1), and 29 of the Vienna Convention on Diplomatic Relations (VCDR)[5], and its subsequent practice”[6]. The application contains also two other submissions. Mexico claims that by employing the use of force to break into the premises of the Mexican Embassy, Ecuador is in breach of its obligations under international law to settle international disputes by peaceful means, including art. 2 (3) of the UN Charter[7]. Quite surprising is the third submission since Mexico, “in view of all the violations by Ecuador of international obligations owed to Mexico”, requests some acts of the Court regarding UN membership of the Republic of Ecuador, including “to suspend Ecuador as member of the United Nations, until it does not issue a public apology recognizing its violations to the fundamental principles and norms of international law, to guarantee the reparation to the moral harm inflicted upon the United Mexican States and its affected nationals”[8]. It is worth to underline, that in the content of its submissions Mexico did not accuse Ecuador of violating its right to provide shelter to Mr. Glas in the premises of its Embassy.
The second step – the application of Ecuador (Glas Espinel case)
Ecuador decided to submit to ICJ its own application instituting proceedings against Mexico concerning the same events of 5 April 2024, which strongly suggest that it won't take advantage of the possibility to entertain a counter-claim according to Art. 80 of the Rules of Court (although it is still a time to do it since a counter-claim shall only be made in the Counter-Memorial)[9]. In its application of 29 April 2024 Ecuador requests ICJ to adjudge and declare, first of all, that Mexico “by, inter alia, allowing the prolonged presence of Mr. Glas in the premises of its diplomatic mission in Quito; refusing to surrender Mr. Glas to the competent Ecuadorean authorities; purporting to grant Mr. Glas "asylum" with a view to removing him from Ecuadorean territory; and obstructing Ecuador's judicial system and criminal law enforcement” has breached several international law obligations: to respect the laws and regulations of the receiving state, not to interfere with the internal affairs of the receiving state, and not to use the premises of the mission in a manner inconsistent with the functions of the mission pursuant to Art. 41 VCDR.
Ecuador's remaining submissions relate to the issue of granting Mr. Glas asylum in violation of the provisions of the Latin–American regional treaties (due the common character of crimes for which Mr. Glas was prosecuted and convicted and pending criminal charges he faces) and also in violation of principles of sovereign equality, territorial integrity, and non-intervention in the internal affairs of other states, under i.a. the UN Charter. Finally, Ecuador accuses Mexico of breaching the international obligations to cooperate in preventing and combating corruption. Of course, as might be expected, Ecuador made no attempt to ask the ICJ to assess whether its operation to arrest Mr. Glas was in accordance with international law.
The Embassy of Mexico in Quito - an easy case for ICJ to adjudge?
The Mexico claims against Ecuador may be assess as “an easy case for the ICJ” - such opinions appeared even before Mexico filled its application to the ICJ (right after Mexico announced its plans)[10]. Particularly the submission regarding violations of inviolability of premises of Mexico Embassy are based on facts that constitute “a straightforward breach” of VCDR provisions[11]. The inviolability of diplomatic premises, as codified in Art. 22 VCDR, has an absolute character – without exceptions. Moreover, “suspicion of abuse of the premises by violation of local laws or by continued shelter of an asylum seeker is clearly not a justification for entry by law enforcement officers in contravention of inviolability”[12]. Regardless of whether the granting of asylum to Mr. Glas was irregular, it is to be expected that ICJ will find the raid on the Mexican Embassy incompatible with the VCDR, in line with its previous judgment in United States Diplomatic and Consular Staff in Tehran case[13], in which the Court underline “the fundamental character of the principle of inviolability” of the persons of diplomatic agents and the premises of the missions[14].
What is even more important in the context of the present case, ICJ recognized the rules of diplomatic law as constituting “a self-contained régime which, on the one hand, lays down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse”[15]. In other words, states may only respond to breaches of diplomatic law by way of mechanisms provided for by diplomatic law: from declaring members of the mission persona non grata to the severance of diplomatic relations[16].
The position of Ecuador in this case is even more difficult because of this country statements made when it was quite recently in the opposite situation: while granting asylum to Julian Assange in its London Embassy in 2012. When the British authorities implied that Assange was not charged with a political, but a common crime and (unofficially) hinted that the police may enter the Ecuadorian Embassy and arrest Assange by force, Ecuador cited this possibility i.a. “a blatant disregard of the VCDR and of the rules of international law of the past four centuries” and a “dangerous precedent because it would open the door to the violation of embassies as a declared sovereign space”[17].
The Glas Espinel case – an opportunity to clarify contemporary diplomatic asylum matters
Although factual background is basically the same for both analyzed cases – and both concerns the problems arising out of granting diplomatic asylum – only in the application filed by Ecuador the legal aspects of this issue constitute the central point of a dispute. Thus, especially with Glas Espinel case, diplomatic asylum returns to ICJ after over seventy years[18], creating an opportunity for the Court to provide clarity and legal certainty in this controversial matter of international law in greatly changed legal and political circumstances compared to the early 1950s when the Asylum and Haya de La Torre cases[19] was decided. It does not in itself make the Court’s previous considerations completely inappropriate for the case at hand, but for sure: the Glas Espinel case may not be treated as a “revisitation of the Haya de la Torre saga”[20]. The changes concerns first of all new treaty law on general and regional level, including VCDR (adopted in 1961) and the Caracas Convention on Diplomatic Asylum (1954), which was adopted partially in response to the Haya de la Torre judgment by the Latin American states, not satisfied with the ICJ’s interpretation of their previous regional conventions regarding asylum[21]. Furthermore, during the last decades a quite extensive use of states practice regarding diplomatic asylum arose, presenting the states attitude to this issue.
Is there a plea for Central-European asylum experiences?
Like the “Haya de la Torre saga”, analyzed cases are legal disputes between only Latin American states. However, both Mexico and Ecuador, by basing their first submissions on the provisions of the VCDR (Art. 22 and Art. 41, respectively), opened the door to assess this issue by ICJ under general international law. The interpretation of norms contained in above mentioned provisions in the context of granting asylum certainly requires taking into account “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (according to art. 31 (3)(b) of the Vienna Convention on the Law of Treaties[22]). Thus, the Court and the parties to the disputes may refer to the practice not only of Latin American states but also from other parts of the world, including Central Europe.
The European states (just like the United States) have for long been skeptical about diplomatic asylum, but have exceptionally offered sanctuary for humanitarian reasons[23]. The historical examples from Hungary from the two tragic periods: the German occupation and the pro-Nazi coup in 1944 and the uprising of 1956 (i.a. Prime Minister Imre Nagy and his fellows at the Yugoslav Embassy in Budapest in 1956) are from the times before VCDR was adopted. However, the famous example of Cardinal Mindszenty at the United States Embassy in Budapest asylum, which also started in 1956 (on 4 November) but ended only on 28 September 1971, might be taken into account. The list of Central European states practice (as receiving or sending state) includes also cases of, i.a.: Romanian Citizens belonging to the Hungarian Minority in the Hungarian Embassy in Sofia (1988–1989), the East Germans at the Central European Embassies in 1989, Albanians in the Embassies in Tirana 1989 and the sons of Moldavian politician Sergiu Mocanu in the Romanian Embassy in Chişinău in 2008[24].
Whether any references to these (or other European) cases will be made during the procedures in Embassy of Mexico in Quito and/or Glas Espinel it will not be known until April 2025 at the earliest, when the first written pleadings in both cases should be filled. Final rulings on the cases, as usually in the ICJ, could take years, but taking into account also European perspective would have contributed to clarify asylum rules in a way that could make their effectiveness more likely.
[1] Embassy of Mexico in Quito case (Mexico v. Ecuador), Application of Mexico, par. 3, https://www.icj-cij.org/case/194.
[2] Glas Espinel case (Ecuador v. Mexico), Application of Ecuador, par. 2, https://www.icj-cij.org/case/195.
[3] Application of Ecuador, par. 27.
[4] Ibid., par. 28.
[5] Vienna Convention on Diplomatic Relations, done at Vienna on 18 April 1961, UNTS vol. 500, p. 95.
[6] Application of Mexico, par. 52 (b)(i).
[7] Ibid. par. 52 (a)(i).
[8] Ibid. par. 52 (c)(ii).
[9] International Court of Justice, RULES OF COURT (1978) (with further amendments), https://www.icj-cij.org/rules.
[10] E. Guapizaca, Ecuador’s Embassy Raid, https://verfassungsblog.de/ecuadors-embassy-raid/.
[11] A. Jain, Reassuring the Inviolability of Diplomatic Premises: Worrying Trends from Ecuador to Syria, https://opiniojuris.org/2024/05/07/reassuring-the-inviolability-of-diplomatic-premises-worrying-trends-from-ecuador-to-syria/.
[12] E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th Edition), Oxford 2016, p. 123.
[13] J. P. Hernández Páez, The Glas Case: Diplomatic Asylum Returns to the ICJ? https://www.ejiltalk.org/the-glas-case-diplomatic-asylum-returns-to-the-icj/
[14] United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 40, par. 86.
[15] Ibid.
[16] L. Hughes – Gerber, Diplomatic Asylum Exploring a Legal Basis for the Practice Under General International Law, Springer 2021, p. 201-202.
[17] J. P. Hernández Páez, op. cit.
[18] To be precise, in 2009 Honduras instituted proceedings against Brazil before ICJ because of the asylum granted by the later to the Honduran President Zelaya, but the case was discontinued and removed from the list.
[19] Asylum (Colombia v Peru), Judgment, ICJ Reports (1950), p. 266, Haya de la Torre (Columbia/Peru), Judgment, ICJ Reports (1951), p. 71. Both cases, combined with the Request for interpretation case, concerns granting asylum to Victor Raul Haya de la Torre, therefore it is called in the literature “Haya de la Torre saga”.
[20] F.-J. Quintana, J. Uriburu, Mexico and Ecuador at the ICJ: A Plea for Taking the Latin American Experience Seriously, https://www.ejiltalk.org/mexico-and-ecuador-at-the-icj-a-plea-for-taking-the-latin-american-experience-seriously/.
[21] Ibid.
[22] Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, UNTS vol. 1155, p. 331.
[23] R. Värk, Diplomatic asylum: Theory, Practice and the Case of Julian Assange, Sisekaitseakadeemia Toimetised 2012, p. 249.
[24] P. Kovács, T.V. Ádány, Admission into Diplomatic Buildings As an Alternative or Substitute to Diplomatic Asylum?, Nigerian Yearbook of International Law 2017, p. 93-98.