Diplomats and ‘immunity’ from the sending state

We often discuss the issue of immunity of diplomats and consular officers from the jurisdiction of the receiving state. Rarely is the reverse considered; diplomats may sometimes require protection from their sending state.(1)

An article by the Canadian Broadcasting Corporation (CBC), dated 24 June 2018, reported that 104 people with diplomatic status in Canada made refugee or asylum (the two terms are used interchangeably in this article) claims in Canada during the two year period commencing March 2016. Most of the applicants feared repercussions in their home countries after returning from their posting in Canada.

According to the article, ‘Members of persecuted minorities are sometimes given positions abroad in order to give a government a positive image on the world stage. They may choose to leave [the Sending State] when they have the chance while on foreign soil.’ In addition, the article suggested that ‘an LGBT person who has not come out publicly for fear of persecution might claim refugee status in order to live freely in Canada.’

Other reasons for refugee claims can be political. The article quotes former Canadian diplomat Paul Heinbecker, who says that ‘most of these refugee claims likely stem from a change in the political conditions in the claimants’ home countries — such as a change in government or a coup d’état. Individuals might try to make asylum claims to avoid being called back home and thrown in jail.’ Heinbecker says ‘The diplomat, or diplomatic family or members of the embassy, may decide that they would rather claim asylum status in Canada than go home and hope for the best.’

In addition to the 104 claims referred to above, 21 diplomats in Canada claimed refugee status for themselves and another 30 family members over the 18-month period ending June 2012.  There is no information available regarding claims made between June 2012 and March 2016.

In some cases, diplomats who were declared persona non grata then made refugee claims in Canada. According to the CBC article, three Libyan diplomats who were declared persona non grata by Canada in 2011, allegedly for intimidating anti-Gaddafi students from Libya, made asylum claims in Canada because they feared to return to Libya after Gaddafi was deposed.

These examples highlight an interesting conflict between Article 9 of the 1961 Vienna Convention on Diplomatic Relations, which allows the receiving state to declare a diplomat as persona non grata, and the 1951 United Nations Convention Relating to the Status of Refugees and related protocols:

1. The Vienna Convention provides for the declaration of persona non grata and, if the person does not leave the receiving state within a reasonable time, they are no longer protected by immunity. However, the Convention does not provide for expulsion of the diplomat if they don’t leave the country. The reason for this is that expulsion is a domestic, not an international, legal issue. Thus, if the receiving state permits refugee/asylum claims, its domestic law will generally not allow a claimant to be expelled or deported until the claim is decided. Adding expulsion rights to the Vienna Convention would result in conflict with both the 1951 Refugee Convention and the domestic law of a receiving state.

2. Article 33 (a) of the 1951 Refugee Convention prohibits any state that is a contracting party (including in its capacity as a receiving state) from returning that person to the sending state if doing so would put the person at serious risk of persecution on a Convention Ground (non-refoulement). There is no specific reference to diplomats in the Refugee Convention; the protections afforded by that Convention apply regardless of whether the person is a diplomat or not.

Other examples outside of the Canadian experience include:

1. The USA provides for protection of diplomats through an asylum claim, but also pursuant to Section 13 of the Immigration and Nationality Act. A diplomat can obtain US Permanent Residence Status if there is a compelling reason why they, or their immediate family, cannot return to the country which accredited them as a diplomat.

2. According to a Reuters article, 151 Turkish diplomats made asylum claims in Germany in 2017, following the attempted coup in Turkey,.

3. A BBC article reports that also following the attempted coup, a number of Turkish diplomats, including the deputy ambassador, made refugee claims in Switzerland.

The case of persons with diplomatic status making asylum or refugee claims in their receiving states is often overlooked. This situation deserves greater attention in order to get a fuller understanding of diplomatic immunity, including from the sending state.

Alan Franklin obtained an LLB and JD from the University of Toronto and an LLM in international law from the London School of Economics.  He is currently living in Vancouver, Canada, teaching courses on international legal business risk to MBA students at Athabasca University, international and constitutional law at Royal Roads University, as well as courses on international law for the University of London international LLM program. Alan created and chairs an association of former United Nations Ambassadors in the USA.

(1) We are not discussing diplomatic asylum, which is the concept of a non-diplomat claiming asylum in the embassy or consulate of another country in a receiving state.