LJIL Symposium: Roger O’Keefe’s comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

[Dr. Roger O’Keefe is a University Senior Lecturer at the University of Cambridge and the Deputy Director of the Lauterpacht Centre for International Law]

Maarten Den Heijer’s excellent and enjoyable article ‘Diplomatic Asylum and the Assange Case’ provides a welcome account of an area of international law in which vagueness and uncertainty have too long been the order of the day. On its own terms, which accept as read the International Court of Justice’s statements in the Asylum case, it is coherent and by no means unpersuasive. Whatever one might say as to the merely subsidiary role of international judicial decisions in the determination of rules of international law, it takes a certain doctrinaire obduracy or plain arrogance to dismiss out of hand what the ICJ has declared. All the same, the Court is not beyond unreflective restatement of the received wisdom, and it is not impertinent to engage in the heuristic exercise of proceeding from first principles on any point pronounced upon by the Court. One point that might profit from just such an exercise is the question of the lawfulness of the grant of diplomatic asylum by a sending state, by which is meant that state’s grant of harbour within its inviolable diplomatic premises to a fugitive from the competent authorities of the receiving state.

The starting point of any such analysis from first principles must be the Lotus presumption. A state is at liberty to do what it is not prohibited by a positive rule of international law from doing. In this light, there is no need to identify a positive right on the part of the sending state to accord diplomatic asylum. Rather, one needs to point to a positive prohibition on the practice. The two most likely sources of any such prohibition are, first, diplomatic law and, secondly, the prohibition on intervention in the affairs of another state. But it is not self-evident that either prohibits a sending state from according diplomatic asylum, at least as a general rule.

It is difficult to identify in diplomatic law a positive prohibition on the use by the sending state of the inviolability of its diplomatic premises to prevent the authorities of the receiving state from securing custody of a wanted individual. The VCDR contains no specific prohibition on the practice. Nor do the inconsistency of state practice and the ambivalence of its accompanying opinio juris suggest any such rule. Any prohibition on the practice of diplomatic asylum, insofar as it derives from diplomatic law, must be deduced from other rules of this body of international law.

The rule regularly highlighted in this regard, as it is by Maarten [at 413-4], is article 41(3) VCDR, which provides in relevant part that the premises of the mission ‘must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law’. In this regard, pace Maarten [at 413], ‘incompatible with’ plainly means ‘inconsistent with’ or, synonymously, ‘contrary to’: incompatibility is not a question simply of whether the impugned conduct ‘falls outside the scope of ordinary diplomatic functions’, whatever ‘ordinary’ may mean. In turn, the functions of a diplomatic mission within the meaning of article 41(3) VCDR are the subject of article 3(1) VCDR, which states that these functions ‘consist inter alia in’ the activities specified in subparagraphs (a) to (e). As indicated by the words ‘inter alia’, the list given in subparagraphs (a) to (e) is not exhaustive, and it is not utterly inconceivable that one of the functions of a diplomatic mission may, in appropriate cases, be the furnishing of diplomatic asylum. But be that as it may. More to the point is that the only one of the five functions of a diplomatic mission specified in article 3(1) with which the grant of diplomatic asylum could be considered incompatible is that mentioned in article 3(1)(e), namely ‘promoting friendly relations between the sending State and the receiving State’. But, contrary to what Maarten considers arguable [at 413-4], it is evident from the consistent practice of states that not every act on the part of a foreign diplomatic mission of which the receiving state disapproves is to be characterised as incompatible with the promotion of friendly relations between sending and receiving states. Something positively inimical to the interests of the receiving state is seemingly required. To this end, it is of course perfectly plausible that harbouring a fugitive from the criminal justice system or other authorities of the receiving state is to be considered an inimical act. Yet it is hard to admit that this is so unless such harbouring is itself contrary to international law. In other words, it is not easy to accept that an act in itself internationally lawful is incompatible with the promotion of friendly relations between the sending and receiving states.

This brings us to the prohibition on a state’s intervention or interference in the internal or external affairs of another state. Were the grant of diplomatic asylum to violate this prohibition, it would not only have to be considered an act incompatible with the specific function of the mission referred to in article 3(1)(e) VCDR, and as such a violation of article 41(3) VCDR, but it would also constitute in its own right a violation of a rule of general international law. Now, as Maarten notes [at 406], it was the briskly-stated view of the ICJ in the Asylum case that, absent some permissive rule to the contrary, the practice of diplomatic asylum is indeed a violation of the prohibition on ‘intervention in matters which are exclusively within the competence of [the receiving state]’. But one might wonder whether this is really so, at least as a general rule. As the ICJ observed, a state does not violate the prohibition on intervention by declining to surrender to a state in which that person is wanted a suspect, fugitive accused, fugitive convict or simple fugitive present in the first state’s territory. The sole relevant distinction between this practice of ‘territorial asylum’ and the practice of diplomatic asylum is that a sending state’s diplomatic premises are not its sovereign territory; rather, the inviolability of diplomatic premises is no more than a privilege conceded to the sending state by the receiving state. It is not clear, however, why this alone should make a difference. Insofar as they are not implied by general international law (which simply begs the question) or explicit in any specific agreement between the states concerned, any limitations placed on the sending state’s privileges by the terms of the receiving state’s concession must be found in the rules of diplomatic law, which brings us full circle: it has already been seen that diplomatic law appears not to impose any specific limitation on the grant of diplomatic asylum.

Vague appeal is often had to the purpose of the inviolability of diplomatic premises, the accusation commonly being of an ‘abuse’ of inviolability. To the extent that such talk is anything more than an argument going to the functions of the mission or a sleight of hand to disguise the charge’s tenuous basis in diplomatic law, it amounts to an invocation of the doctrine of abuse of right. But the applicability of this doctrine to international law appears to be determined on a right-by-right basis. There seems no general rule that a state may not abuse an international legal right. (The same goes for the more specific doctrine, perhaps more apt in the present context, of détournement de pouvoir.) As to whether the notion of abuse of right is indeed applicable to the inviolability of diplomatic premises, state practice is inconsistent and opportunistic. States appear happy to invoke the argument when it suits them and equally happy to dismiss it when it does not.

In sum, it is not easy to see why, as a general rule, the grant of diplomatic asylum should be contrary to international law. Moreover, it is arguable that the liberty to accord diplomatic asylum is borne out in twentieth and twenty-first century state practice, as much as states may have sought to avoid unambiguous statements to this effect. It seems just as convincing to characterise the many instances of the grant of diplomatic asylum over the past hundred years, along with the largely half-hearted protests at them by receiving states and the apparent lack of widespread concern on the part of third states, as evidence of a general freedom to accord diplomatic asylum as it is to see in all of this proof only of a vague humanitarian exception to a general prohibition on the practice. It is certainly not clear on what basis Maarten claims that diplomatic asylum is still ‘perceived as a lamentable practice in … legal terms’ [at 405].

None of this is to say that the receiving state is under any obligation to afford a beneficiary of diplomatic asylum safe conduct out of its territory. It most certainly is not.

There is at least one situation, however, in which it is arguable that the continuing according of diplomatic asylum, as distinct from its initial grant, is contrary to international law, namely where a beneficiary of such asylum is known to the sending state to be using its diplomatic premises as a base from which to plot the violent overthrow of the government of the receiving state. In accordance with paragraph 2 of the Declaration on the Inadmissibility of Intervention, UNGA resolution 2131 (XX), considered consonant with customary international law, the prohibition on intervention demands that no state shall tolerate subversive activities directed towards the violent overthrow of another state’s government. Should the sending state become aware of any such activities on the part of a beneficiary of the inviolability of its diplomatic premises, it would be obliged, in the event that the beneficiary refuses to cease these activities when instructed to do so, to revoke the grant of asylum and to ensure that the person quits the premises.