Professional Documents
Culture Documents
Chapter 5
Chapter 5
5.1 Introduction
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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.
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, (5th (Ed), Longman: London), 1979, p. 534
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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
2
D.P.O’ Connell, International Law in Australia, (Stevens & Sons, London), 1965, p. 588.
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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
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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.
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
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
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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.
7
Lord Mc Nair, International Law Opinions, (Cambridge University Press, Vol. II), 1956, p.76
8
Supra Note 2, p.590
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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.
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
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If a state finds difficulty in granting asylum, international measures should be
taken to try and alleviate the burden;
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:
(b) Where there is a binding local customary rule that diplomatic asylum is
permissible;
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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.
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.
11
ICJ Reports, 1950, pp. 266, 274–5, http://www.icj-cij.org/icjwww/idecisions.htm (accessed on 20th
may 2009)
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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
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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.
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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.
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:’
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".
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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.
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
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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.
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
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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
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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.
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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
“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.
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
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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.
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.
23
Supra Note 1, p.219
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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.
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.
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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.
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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:
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
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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.
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.
239
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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
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.
240
Diplomatic Asylum
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.
33
William .R. Slomanson, Fundamental Perspectives on International Law, (Thomson West
Publication, USA), 2003, p. 104
241
Diplomatic Asylum
1. In no case is a minister to offer his dwelling as a resort for refugees.
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.
242
Diplomatic Asylum
5.6 Asylum Case34
34
Asylum case (Columbia v Peru) [1950] ICJ Rep, p.266, http://www.icj-
cij.org/icjwww/idecisions.htm (accessed on 20th may 2009)
243
Diplomatic Asylum
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.
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.
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;
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;
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Diplomatic Asylum
6) States are under no obligation to defray expenses incurred by one granting
asylum.35
“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.”
35
Tim Hillier, Sourcebook on Public International Law, Cavendish Publishing Limited, 1999, p.222.
245
Diplomatic Asylum
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.
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
246
Diplomatic Asylum
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.
39
In the case of the Santissima Trinidad, 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.
247
Diplomatic Asylum
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
40
neutrality.” 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
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.
248
Diplomatic Asylum
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
249
Diplomatic Asylum
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.
250
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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:
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.
251
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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.
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.
252
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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.
253
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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.
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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.
“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
51
Ibid. p. 130
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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
52
Leslie Shirin Farhangi, ‘Insuring against Abuse of Diplomatic Immunity’, Stanford Law Review,
Vol. 38, No. 6, Jul., 1986, p. 141.
256
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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
257
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America which were cited by Colombia in support of its position in the Colombian
Peruvian Asylum case.
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
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Diplomatic Asylum
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
259