Asylum ordinarily takes place in the territory of the State. Universal legal texts, also contain provisions on territorial asylum and the authority to assess the grounds for the right to asylum is recognized as belonging to the State of the country. However, some practices reveal that asylum has acquired a dimension that transcends national borders and “diplomatic asylum” constitutes a special form of extraterritorial asylum. Diplomatic asylum brings with it multifaceted problems. As a matter of fact, the sending state protects the person who is investigated or prosecuted for allegedly committing a crime by means of “inviolability of premises”. The receiving State, which perceives this obstacle as an interference with its sovereignty and seeks to remove it, forcibly enters the premises, thereby causing another violation to occur. This observation is embodied in a dispute between the Republic of Ecuador and the United Mexican States before the International Court of Justice. The absence of a universal treaty or customary rule on diplomatic asylum makes it necessary to analyze the issue in the context of international law rules governing diplomatic relations. It is also noteworthy that special treaties governing diplomatic asylum are in force between the parties to the dispute. Therefore, it is understood that how the Court will evaluate the issue within the framework of the rules of diplomatic law on the one hand and the treaties in force between the parties on the other, and the conclusions it will reach will be of historical importance in terms of international law.
Diplomatic Asylum Jorge David Glas Espinel Mexico Ecuador Inviolability of Premises.
Asylum normally takes place on the territory of the State. Universal legal texts also contain provisions on territorial asylum and recognize that the competence to assess grounds for asylum belongs to the State of the country. However, some practices reveal that asylum has acquired a dimension that transcends national borders and that “diplomatic asylum” constitutes a special form of extraterritorial asylum.
In the practice of diplomatic asylum, the sovereign powers of the receiving state conflict with the “inviolability of premises” owned by the protecting state. As a matter of fact, the sending state prevents the investigation/prosecution or the execution of the sentence against the person who is alleged to have committed a crime/confirmed to have committed a crime with this immunity. The receiving State, which perceives the aforementioned obstacle as an interference with its sovereignty and seeks to eliminate it, forcibly enters the premises of the representative office, thereby causing another violation to occur. This observation is embodied in the dispute between Ecuador and Mexico, which was submitted to the International Court of Justice.
The process began when Jorge David Glas Espinel, former Vice President of Ecuador, arrived at the Mexican Embassy in Quito on 17 December 2023 and requested protection. On 5 April 2024, Mexico granted diplomatic asylum to Glas, who had two final convictions for forming an illegal organization and bribery. At around 22.00 on the same day, Ecuadorian security forces broke into the Mexican Embassy and forcibly removed Glas from the premises. Thereupon, on April 6, 2024, the Government of Mexico decided to terminate diplomatic and consular relations between the two States with immediate effect. Mexico applied to the International Court of Justice on April 11, 2024 and Ecuador on April 29, 2024.
In its application, Mexico alleged, inter alia, that Ecuador had violated the “inviolability of premises” provided for in the Vienna Convention on Diplomatic Relations,1961 (art. 22), which also had customary value. Ecuador emphasized that the decision to forcibly enter the premises of the Mexican Embassy was taken in the face of a real and imminent risk of Glas’s flight, and that there was no legal basis for granting asylum. Indeed, Ecuador argued that the crimes for which Glas was tried and convicted were ordinary crimes, that under the treaties in force between the parties, persons tried or convicted of ordinary crimes cannot be granted asylum, and that Mexico’s conduct constituted, inter alia, a violation of Articles 41/1 and 41/3 of the Vienna Convention on Diplomatic Relations, 1961.
It should be noted that, at present, there is no universal treaty or customary rule on diplomatic asylum, which makes it necessary to analyze the issue in the context of the rules of international law governing diplomatic relations. However, it is noteworthy that regional treaties regulating diplomatic asylum are in force between the parties to the dispute.
First of all, Mexico’s granting of diplomatic asylum to Glas is contrary to the Vienna Convention, which is largely shaped by the practices of States. Indeed, Mexico’s granting of asylum to Glas is not only not a necessity or an obligation for the effective performance of the duties of a diplomatic mission, but is also incompatible with its core functions as set out in the Vienna Convention (Art. 3/1). Moreover, Mexico’s action appears to violate Articles 41/1 and 41/3 of the Convention, which set out the general obligations of diplomatic representatives and officials. Thus, it is imperative that the Mexican diplomatic mission’s treatment of Glas be characterized as “interference in Ecuador’s internal affairs” and “violation of its sovereign rights”.
It should also be noted that the act of Ecuadorian security forces forcibly entering the Mexican Embassy premises and terminating the asylum is also contrary to the rules of diplomatic law. This is because the inviolability of the premises of the embassy is absolute, even if they are used for off-duty purposes.
Although it is possible to summarize the consequences of the rules of diplomatic law in this way, it should not be overlooked that there are regional treaties in force between Mexico and Ecuador that determine their powers and responsibilities regarding diplomatic asylum. As a matter of fact, it is observed that Mexico and Ecuador refer to the 1933 Convention on Political Asylum and the 1954 Convention on Diplomatic Asylum, to which they are parties, in their claims and demands.
When the relevant provisions of the Conventions are considered as a whole, it is understood that Mexico, the sending State, has a very wide discretionary power in granting diplomatic asylum, that it does not even have to explain the reasons for its decision, that it retains the authority to determine the nature of the crime and the urgency of the situation, and that Ecuador, the receiving State, is under the obligation to respect this decision. However, conditions such as “the political nature of the offense” and “urgency” indicate that the arbitrary exercise of this right is prohibited.
In this framework, it can be foreseen that the International Court of Justice will rely on the 1933 and 1954 Conventions with regard to Mexico’s action, emphasizing that Article 41(3) of the Vienna Convention recognizes the conclusion of special treaties on diplomatic asylum. Thus, the Court will investigate whether the right to grant diplomatic asylum has been abused and determine whether Glas is a victim of political persecution.
In the final analysis, the judgment of the International Court of Jusitce seems to have a strong potential to resolve the uncertainties regarding the right to diplomatic asylum. As a matter of fact, the way in which the Court will evaluate the issue within the framework of the rules of diplomatic law on the one hand and the treaties in force between the parties on the other, and the conclusions it will reach, are understood to be of historic importance in terms of international law.
