LJIL Symposium: A Comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

[Gregor Noll is a Professor of International Law at the Faculty of Law at Lund University in Sweden, and is an expert in International, Theory of International, and Refugee and Migration Law.]

With admirable calm and clarity, Maarten den Heijer’s text considers the relationship between territorial sovereignty and diplomatic inviolability played out in diplomatic asylum. Describing both poles as ‘legal trump cards’ in their own right, he argues the insolubility of their conflict in law. He writes ‘that the status quo, although not guaranteeing a uniform of “just” practice of diplomatic asylum, provides a befitting equilibrium between the right of the receiving and sending states’. This equilibrium, befitting or otherwise, ‘puts incentives into place for avoiding and resolving disputes by diplomatic means’. As it were, the international law of diplomatic asylum is incapable to offer more at this historical stage.

I greatly appreciate den Heijer’s ability to keep that conflict alive throughout his eminently readable text. At large, I have no quarrel with his conclusion. Yet I feel a bit hesitant to align myself fully with it yet. This is mainly for two reasons, both related to the way he tells the story of diplomatic asylum.

First, I do not think that the formalist approach that den Heijer employs is fully exploited yet. True, it was a great learning experience to be taken through “A Short History of Diplomatic Asylum” [offered in Section 2 of his text]. That said, certain incidents he recapitulates there somehow slip out of sight at closer inspection. By way of example, den Heijer reminds us of the massive inflows of citizens of the German Democratic Republic (GDR) into the diplomatic missions of the Federal Republic of Germany (FRG) in Prague and Budapest during August 1989. These events, involving thousands of individuals obstructing embassy premises, he describes as “probably the most consequential episode of diplomatic asylum in modern history”. Indeed, consequential it was, pushing towards the end of the GDR emigration regime, and therewith to that of the GDR at large. But is it at all obvious that we should classify it as a case of diplomatic asylum?

Neither the Czechoslovak nor the Hungarian governments requested that the GDR subjects be handed over. As the FRG did not recognize GDR citizenship, it regarded the fugitives as its own citizens. For the FRG government, this added a strong sense of constitutional obligation towards the individuals in question over and above any political or moral sympathy with their cause. The two consecutive Prague embassy crises were resolved as soon as the two German governments had negotiated the train transit of the group of GDR citizens across GDR territory into the FRG. Arguably, this case did not pivot on the conflict between territorial sovereignty of the receiving state and diplomatic immunity of the sending state. It seems related to diplomatic asylum, but only tenuously so.

How about the walk-in of North Koreans at the South Korean embassy in China? There is some analogy to the GDR exodus, save that the demise of the Democratic People’s Republic of North Korea appears to be less imminent than that of the GDR was in August 1989. Yet China, as the receiving state, took the role to energetically prevent further individuals entering the South Korean mission on its territory. To me, the North Korean case appears to be closer to the conceptual core of diplomatic asylum.

As a contrast, let us consider the Chen Guangcheng case, named initially by den Heijer. Again, stark differences appear. Chen seems to be the archetypical diplomatic asylee. He was protected by a sending state (the U.S.) from a receiving state whose national he was (the People’s Republic of China). This provided the sending state with an arena for making a political statement, articulated through the language of human rights. The pattern reproduced here is rather similar to the Latin American practice of diplomatic asylum. The ICJ Asylum case also reflects this archetypical constellation, with a Peruvian revolutionary being sought by Peru and protected at the Colombian embassy in Lima.

Add Assange to the comparison, and further categories appear in sight. Assange is wanted by the receiving state (the U.K.) to honour its legal obligations towards a third state (Sweden). The sending state (Ecuador) is protecting him and motivates this with the risks that accrue in yet another third state (the U.S.). To be sure, Assange holds citizenship in none of these states. The Assange case stands out as fairly complex. And this complexity might be a new normal in the business of diplomatic asylum.

I would suggest that den Heijer’s rich exhibition of examples might lend itself to further formal analysis along those lines. Mapping historical and contemporary cases with legal categories such as the nationality of the protected individual might help to make out and explain patterns of conduct – or not. The immediacy or remoteness of the prosecutorial interest or persecutory risk could provide another useful category – or not. Is it not an advantage for the U.K. that Mr. Assange’s extradition is requested by Sweden? As the U.K. may now argue that it is merely acting upon its obligations to honour a European Arrest Warrant, which makes its insistence on territorial sovereignty to appear much less discretionary. Likewise, does it not offer an advantage for Ecuador that the ultimate threat to Mr. Assange is allegedly localized in the U.S.?

Why am I suggesting this? Perhaps the intensity of the attachment between the beneficiary and either of the opposed states might provide a further angle when sorting and ordering cases of diplomatic asylum. To quite some degree, this intensity can be captured by legal categories as nationality, and the bi- or multilateral setting of the conflict. If anything, den Heijer’s historical exposé shows me that diplomatic asylum has grown into an increasingly multilateral affair. The Snowden case, outside the conceptual penumbra of diplomatic asylum, but intimately related to the competing control claims operating within it, appears to be a stark confirmation with its multiple asylum applications, media games and superpower grandstanding. The categories of international law, and a dose of formalist mapping, might take us a longer way in explaining state conduct. Den Heijer’s text gets us going, but I am surprised that he did not go all the way himself.

And now to my second point. When diplomatic asylum originated in Europe during the fifteenth and sixteenth century, den Heijer suggests, ‘states were quite familiar with sharing jurisdiction with other authorities’ (p. 401). Then followed what seems to be a period of increasingly monopolistic jurisdiction, where diplomatic asylum appeared to be more of an idiosyncrasy, anomaly or abuse. The structure, tone and language of den Heijer’s text divulges him a partisan to this development, and it is unsurprising that he gives the ICJ judges of the 1950 Asylum case the role of summing up the universal law as it stands, and continues to stand today. The individual protection seeker’s claims under international human rights law against a sending state are admitted to den Heijer’s text relatively late (p. 421 and onwards). Too late, perhaps. In a tradition with a pedigree of more than five centuries, the international law of human rights must be doomed to play the role of an exception affirming the historical rule.

My point is not that the inception of multilateral human rights treaties has changed the world so radically since the 1950 Asylum case that almost five centuries of history can be dismissed as marginal. Rather, my point is that the history of diplomatic asylum, and its historical beginnings in particular, have grown extremely important in the past years. In a sense, we are almost back where we began. States presently familiarize themselves with the sharing of jurisdiction in areas such as trade, military intervention, border control, and, indeed, diplomatic asylum. The idioms of universal human rights and of universal growth are as elementary to this process of sharing as was the language of Christianity to the European sharing practices at the time. I think that den Heijer should tackle this rather obvious complication lying latent it the historical narrative he unfolds.

Is it a good thing that jurisdictional sharing comes back in this form, or are we being drawn into an anachronism? This, then, is a different question, beyond the programme of den Heijer’s text as the question to what degree organizations as Wikileaks are structurally catholic.