[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.
