LJIL Symposium: A Response to Professor Gregor Noll and Professor Roger O’Keefe

[Maarten den Heijer is assistant professor of international law at the Amsterdam Center of International Law and member of the editorial board of the European Human Rights Cases (EHRC) and contributor to the Dutch Journal for Human Rights]

Praise is due to the collaboration between Leiden Journal of International Law and Opinio Juris in providing this platform for reflection and discussion – in this instance on my paper on diplomatic asylum and Julian Assange. I much enjoyed reading the responses of Gregor Noll and Roger O’Keefe and am greatly appreciative for their genuine and refreshing engagement with my arguments. I take the liberty to just briefly reflect on what I consider their most provocative points.

Although threading on different paths of reasoning, both Gregor and Roger caution against presenting the 1950 Asylum Case as still reflecting the international law on diplomatic asylum as it stands today. The primacy accorded to territorial sovereignty by the ICJ judges at that time and their framing of a grant of asylum to a fugitive from the authorities of the receiving state as necessarily constituting an intervention in the domestic affairs of that state, so they argue, beg further reflection at the least.

I readily accept Gregor’s argument that, not dissimilar to the historical beginnings of diplomatic asylum, the idea of exclusive territorial sovereignty is contested in current times. As much is arguably true for his observation that diplomatic asylum has grown into an increasingly multilateral affair, thus challenging the default scenario of two States bickering over a national of one of them. This may indeed complicate the allocation of international obligations and imply divergent degrees of persecutory risk. Although Gregor steers clear of indicating precisely how the contestation of exclusive territorial sovereignty and the diversification of diplomatic asylum should change our current perceptions of diplomatic asylum, he apparently questions whether the insolubility between territorial sovereignty and diplomatic inviolability – as he so aptly summarizes my key argument – is the appropriate paradigm for understanding such developments.

I fully endorse Gregor’s view that further categorisations along the lines he proposes may well increase our understanding of diplomatic asylum. Yet, I have difficulty accepting that they would render obsolete the insolubility between territorial sovereignty and diplomatic inviolability as the prevailing analytical framework for diplomatic asylum. The paradox that I propose is that precisely this insolubility is much better able to capture and resolve the multitude manifestations of diplomatic asylum and their dynamic interests, including those cogently identified by Gregor, than attempts at recognising or even regulating the exercise of diplomatic asylum. The elementary issue I allude to is that the history of diplomatic asylum, including instances in the recent past, shows that diplomatic asylum is often granted for a mix of quite divergent political and humanitarian reasons and, moreover, reflective of power imbalances between states. This displays not merely a fundamental disagreement over the conditions that might render grants of diplomatic asylum legal, but also and more pointedly, a deeply rooted aversion on the part of states to be bereft of such an obscure – and yet for that reason flexible – instrument of intervention.

In direct response to Gregor’s questions whether the facts that diplomatic asylum is granted to a national of a third State (eg Julian Assange) or that asylum is granted in order to protect against alleged ill-treatment in a third State (eg Julian Assange) would not necessitate a different legal mapping, I would suggest that, however insightful such further categorisation might be, these factors would seem to primarily inform the existent underlying legal parameters in the context of diplomatic asylum, namely the degree to which a receiving State might wish to insist on its territorial sovereignty and the degree to which a sending State may wish to insist on its duty to grant protection and to that purpose invoke its diplomatic privileges. I haste to note however, that Gregor merely suggests that a further dose of formalist mapping might take us a longer way in explaining state conduct – a point which I can only subscribe.

In so far as Gregor means to suggest, more fundamentally, that territorial sovereignty should no longer serve as the prime or sole determinant of diplomatic asylum´s legal status in international law, his reasoning approximates Roger’s pungent challenge of the very idea that diplomatic asylum to a fugitive of the receiving state necessarily constitutes a prohibited intervention in the domestic affairs of that state. Roger makes the points that grants of diplomatic asylum do not always conflict the diplomatic law principle of promoting friendly relations and that state practice might just as well be taken as evidence of a general freedom to accord diplomatic asylum.

Although I will stop short of revisiting the discussion on a possible customary law status of diplomatic asylum, I do take the point that the lawfulness of diplomatic asylum is intrinsically bound with what are considered acceptable inroads in the receiving state’s prerogative to control all the people and property within its territory. This discussion also plays out in respect of another thorny issue in diplomatic law, namely the extent to which diplomatic officers have the liberty to promote human rights in the receiving state, to comment on domestic developments or to enthusiastically endorse or repudiate the policies of the receiving state. The boundaries of what is acceptable may certainly be shifting, but as Denza concludes in her latest edition of Diplomatic Law, the views on what should, or should not, be regarded as inadmissible interference in internal affairs vary from place to place and from time to time [p. 467].

I would not rule out, and might indeed even welcome, that such shifts breathe new life in diplomatic asylum as an institution of international politics. Yet, this needs not fundamentally alter our legal understanding of diplomatic asylum. Firstly, since the control over people remains one of the core elements of state sovereignty, harbouring a fugitive necessarily lays open the charge of transgressing the rule of non-intervention – even though receiving states may for political reasons be reluctant to bring it. And secondly, although shifting thoughts on what constitutes an intervention and what not may prompt a broadening of legally accepted categories of diplomatic asylum, they do not in themselves defeat the axiom that if in a specific situation diplomatic asylum amounts to an incursion, its grant is unlawful.