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What is the difference between diplomatic, territorial and political asylums?
Diplomatic asylum differs from territorial asylum in the place where is it requested. Diplomatic asylum is requested in diplomatic missions, while territorial asylum can be requested within the borders of the state that is asked to grant asylum. A few terms, such as political asylum, are used interchangeably for both diplomatic and territorial asylums.
Is diplomatic asylum recognised by international law?
No, the drafters of the 1961 Vienna Convention refused to introduce diplomatic asylum in spite of a strong request by Latin American countries. The only gesture was made in the Article 41, para 3, which stipulates:
The premises of the mission must not be used in any manner incompatible with the functions of the missions as laid down in the present Convention or by other rules of general international law or by any special agreement in force between the sending and the receiving States.
The last part ‘any special agreement’ is introduced in order to enable use of diplomatic asylum by Latin American countries.
The International Court of Justice (ICJ) did not recognise diplomatic asylum as legal concept in the 1950 Asylum case (Colombia/Peru). It is left to countries to regulate diplomatic asylum on an ad hoc basis. In the Assange asylum case, the UK does not have an international obligation to recognise diplomatic asylum granted by Ecuador.
While it is not globally accepted as a legal concept, diplomatic asylum exists as regional law in Latin America. It has been developed since the nineteenth century with quite consistent practice and a high level of observation regardless of political conflicts among countries. The regional aspect of diplomatic asylum can be seen in the list of countries that signed and ratified the 1954 Caracas Convention on Diplomatic Asylum. As you can see from this table it is only signed/ratified by Latin American countries, while other members of the Organisation of American States are not party to the convention (Caribbean countries, USA, and Canada).
In the Assange case, Ecuador cannot use this legal argument, since the UK does not accept diplomatic asylum. It could be only used in relations among Latin American countries.
Moreover, since it is not protected by international law, the Assange case could be considered as a breach of the VCDR Article 4, para. 3, that specifies that the premises of the diplomatic mission should not be used in any manner incompatible with its functions.
How is Assange protected if diplomatic asylum is not recognised in international law?
He is protected due to the inviolability of the Ecuadorian embassy, not because of his diplomatic asylum. Inviolability of the premises is granted by Article 22 of the VCDR
Diplomatic asylum matters when it comes to his move from the Embassy to the foreign country. If diplomatic asylum was recognised by the UK, Assange could have been provided with free passage from the Embassy in London to Ecuador. For example, Article 12 of the 1954 Caracas Convention specifies free passage:
Once diplomatic asylum has been granted, the state granting asylum may request that the asylee be allowed to depart for foreign territory, and the territorial state is under obligation to immediately grant the necessary guarantees.
How to deal with diplomatic asylum?
Since it is not legally regulated (except in Latin America), diplomatic asylum has to be addressed ad hoc through negotiations. Here are a few principles based on the Latin American asylum practice and current literature that should be used in deciding on diplomatic asylum
- Diplomatic asylum should be granted to persons politically prosecuted. Historically speaking, it has been the most contested part, including the Asylum case between Peru and Colombia. In the Assange case, it is the same dilemma: is he prosecuted for a sexual crime in Sweden (a common crime) or is Sweden used only as stop-over on his legal journey to the USA where he would be prosecuted for a political crime (WikiLeaks)? This is an ambiguity where the Swedish government has not provided a sufficient and explicit guarantee that he won’t be extradited to the USA.
- Diplomatic asylum should be granted in extraordinary situations when human lives are at risk, such as anarchy, outbreak of civil war, a coup d’état. There was a long history of this type of diplomatic asylum during the Spanish Civil War and the Pinochet coup d’état in Chile.
- There is also a humanitarian element. The life of the asylum seeker should be endangered in order to receive asylum.