By Prof. Bharat H Desai
On 18 April 2024, the International Court of Justice (ICJ) scheduled ‘oral hearings’ (30 April and 1 May 2024) at Peace Palace (The Hague) to indicate “provisional measures” sought in the case filed by Mexico against Ecuador’s brazen storming (5 April 2024) of the Mexican Embassy in Quito. Mexico invoked the instrumentality of International Law to file the said case (11 April 2024) against Ecuador. The bone of contention has been the arrest by Ecuadorian special forces of Ecuador’s former vice-president Jorge Glas who was holed up inside the Mexican diplomatic mission since December 2023. The raid came within hours of Mexico granting diplomatic asylum to Glas based on the customary practice of diplomatic asylum in Latin America. Ironically, the wheel turned the full circle wherein Ecuador had similarly granted diplomatic asylum (2012-2019) to the WikiLeaks founder Julian Assange in its Embassy in London. “This is not possible. It cannot be. This is crazy,” Roberto Canseco, head of the Mexican consular section in Quito, told local press while standing outside the embassy right after the raid. “I am very worried because they could kill him. There is no basis to do this. This is totally outside the norm,” Canseco said.
Police break into the Mexican embassy in Quito, Ecuador, Friday, April 5, 2024. The raid took place hours after the Mexican government granted former Ecuadorian Vice President Jorge Glas political asylum. (AP Photo/David Bustillos)
Stéphane Dujarric, the spokesperson for the UN Secretary-General Antonio Guterres promptly issued a crisp statement on 6 April 2024 that sought to flag the sanctity of International Law to ensure the raid on the Mexican diplomatic mission does not escalate into any major confrontation between two Latin American countries. “The Secretary-General is alarmed at the forced entry of Ecuadorean security forces into the premises of the Mexican Embassy in Quito. He reaffirms the cardinal principle of the inviolability of diplomatic and consular premises and personnel, emphasizing that this principle must be respected in all cases, in accordance with international law. The Secretary-General stresses that violations of this principle jeopardize the pursuit of normal international relations, which are critical for the advancement of cooperation between States. The Secretary-General calls for moderation and exhorts both Governments to solve their differences through peaceful means”, the statement said.
Police detain Glas in Quito, Ecuador on April 6; National Police of Ecuador/Handout/Anadolu/Getty Images
A military vehicle transports former Ecuadorean Vice President Jorge Glas from the detention center where he was held after police broke into the Mexican Embassy to arrest him in Quito on Saturday (Dolores Ochoa / Associated Press)
Violation of 1961 Vienna Convention
The Ecuadorian action in the storming of the Mexican Embassy in Quito flies in the face of Article 22 of the 1961 Vienna Convention on Diplomatic Relations. Article 22 explicitly states: “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” The 1961 Convention is a classic example of codification of customary International Law grounded on the time-tested practices of the sovereign states. It is based on reciprocity and recognition of a diplomatic legation as an exercise of the sovereignty of states. The Ecuadorian action became one more bizarre incident of blatant violation of the cardinal principle of inviolability of the diplomatic missions. As a corollary, Mexico has claimed breach of obligations by Ecuador under international law, notably Article 2(3) of the 1945 Charter of the United Nations, Article 3(i) of the 1948 Charter of the Organization of American States, and Article 2 of the 1948 Pact of Bogota (American Treaty on Pacific Settlement). In turn, Mexico has urged the ICJ, to begin with, for provisional measures order as well as to adjudicate (judgement) upon the said violations of International Law.
Some previous incidents of storming of the diplomatic missions include the 1979 Iranian Revolutionary Guards taking hostage the US diplomatic and consular staff, the 1989 US action to arrest Manuael Noriega from the Vatican Nunciature (Panama City) and 1996 Taliban’s storming of the UN Mission in Kabul to drag out President Najibullah and execute him publicly.
In the Case Concerning US Diplomatic & Consular Staff in Tehran (1980), the ICJ emphasized, in the face of Iran’s violation of US mission’s immunity, that “The obligation to respect the rules of diplomatic immunity is an absolute obligation which must be obeyed in all circumstances”. The Court held that the inviolability of diplomatic envoys and embassies was one of the fundamental prerequisites for peaceful relations between States. The ICJ called for immediate restoration to the United States of the Embassy premises and the release of the hostages. In its decision on the merits of the case, at a time when the situation complained of still persisted, the Court, in its Judgment of 24 May 1980, held (page 44, paragraph 95) that: “the Islamic Republic of Iran, by the conduct which the Court has set out in this Judgment, has violated in several respects, and is still violating, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law…is under an obligation to make reparation to the Government of the United States of America for the injury caused to the latter by the events of 4 November 1979 and what followed from these events”. The ratio of the ICJ’s legal reasoning in the 1980 case, emphatically laid down the crux of the institution of diplomatic relations, sanctity of diplomatic missions and any asylum granted therein.
Practice of Legation/ Diplomatic Mission
The practice of granting ‘asylum’ connotes, generally, providing shelter to an individual who faces dire situation including threat to life. It can take place in a consulate, on board naval ships in foreign waters or even an aircraft. However, what constitutes a diplomatic mission would depend upon circumstances especially under license in a host country. The UN General Assembly, vide resolution 3321 (XXIX) of 14 December 1974 took cognizance that “States have granted diplomatic asylum and that several conventions on this subject have been concluded in Latin America.” Hence, in order to understand humanitarian and other aspects of diplomatic asylum, the UNGA asked the UNSG to prepare “a report containing an analysis of the question of diplomatic asylum.” As a corollary, the UNSG did provide a comprehensive report on Question of Diplomatic Asylum. (A/10139 dated 22 September 1975). In the past, the Indian civilization has witnessed numerous instances of diplomatic asylum (कूटनीतिक शरण; राजनयिक शरण; राज्याश्रय) given to the dissenters (e.g. Vibhishan in the Court of King Ravan) and the rulers who were dethroned (e.g. the Mughal Emperor Humayun). In Europe, the practice crystallized especially in 16th century, as can be seen in instruments such as the Venetian Statute of 1554 (“he who has taken shelter in a house of a diplomat shall not be followed there”) and the edict of the Roman Emperor Charles V (1519-1556; “May the houses of ambassadors may provide inviolable asylum, as did formerly the temples of the gods”). It was also asserted by Grotius in his 1625 treatise: De jure belli ac pacis (Book II, Chapter XVIII, para 8).
The practice of providing diplomatic asylum to various categories of persons ranging from political dissenters to those facing religious persecution to fugitives from law taking shelter in the nearest diplomatic post has been one of the escape routes that comes into conflict with the sovereignty of states. Still, it serves as a savior for many when they cannot flee from the territory. There is no right of legation per se in International Law. It means after recognition of an entity as a state, there is no automatic establishment of diplomatic relations. The diplomatic mission or legation is located on the territory of another country under ‘license’ and the practice is based on ‘reciprocity’. It is a classic example wherein sovereignty respects sovereignty. In essence, a diplomatic mission possesses attributes of a sovereign territory wherein the agents of the host country cannot enter without explicit permission of the head of the mission.
Asylum (1950) Case to Assange (2012-2019) Case
The current diplomatic stand off between Mexico and Ecuador is reminiscent of the 1950 Asylum (Columbia v Peru) case wherein asylum was granted on 3 January 1949 by the Colombian Ambassador in Lima to M. Victor Raul Haya de la Torre (head of a Peruvian political party, the American People's Revolutionary Alliance). Following a military rebellion in Peru, proceedings were instituted against Haya de la Torre for the instigation and direction of that rebellion. He was sought out by the Peruvian authorities, but without success; and after asylum had been granted to the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya de la Torre (whom he qualified as a political offender), to leave the country. The Government of Peru refused. Hence, the two Governments submitted to the Court certain questions concerning the dispute. Though it did not involve actual storming of the Columbia Embassy in Lima, the ICJ held on 20 November 1950 that “the grant of asylum by the Colombian Government to Victor Raul Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that Convention (1928 Havana Convention on Asylum).” However, the Court did not spell out as to what happens to Haya de la Torre? As a result, he was holed up in the diplomatic mission for a long time.
Ironically, Ecuador that chose to merrily storm the Mexican Embassy in Quito on 5 April 2024, was on the other side of the fence when a WikiLeaks Founder and Australian national, Julian Assange, was subjected to extradition proceeding in London for alleged commission of some offences in Sweden. Apprehending arrest after rejection of his plea against extradition, Assange took shelter on 19 June 2012 in the Ecuadorian Embassy in London. Credit goes to the British Government for respecting the sanctity of the Ecuadorian Embassy during 2012-2019. The prolonger incarceration of Assange invited opprobrium from the United Nations Working Group on Arbitrary Detention (UN-WGAD). “It is time that Mr. Assange, who has already paid a high price for peacefully exercising his rights to freedom of opinion, expression and information, and to promote the right to truth in the public interest, recovers his freedom,” said the UN-WGAD. The Group called upon the British authorities (on 21 December 2018) to allow Julian Assange to safely leave the Ecuadorian Embassy in London without being arrested and extradited to the United States. UNWGAD reiterated its request after more than three years wherein it had upheld through a formal process (Opinion 54/2015) that continuous forcible stay of Assange was violation of his basic human right guaranteed under International Law. The 7-year long confinement of Assange led to piquant spectacle of Assange remaining safe within the Ecuador Embassy but faced arrest if he stepped out of it.
The scene of Assange addressing the Press Conference while standing in the balcony of the Ecuador Embassy reflected actual working of the institution of diplomatic asylum in International Law.
Interestingly, Ecuador decided to confer citizenship on Assange on 12 December 2017. Subsequent efforts of Ecuador to confer diplomatic status upon Assange were, however, turned down by the UK. Ironically, change in government in Quito created problems for Assange as Ecuador declared its intention (October 2018) not to intervene with the British government on behalf of Assange in talks over his situation as an asylee it its London embassy. In apparent change of political position, Ecuador’s Foreign Minister José Valencia asserted that Ecuador’s only responsibility was looking after Assange’s wellbeing. “Ecuador has no responsibility to take any further steps,” Valencia unashamedly said. Finally, Assange ran out of his protective diplomatic shield when Ecuador Embassy called the British Police. On 11 April 2019, Assange was dragged out of the mission and taken into custody.
Majesty of International Law
In view of the highly fractious nature of the issue of diplomatic asylum that countries view from their own narrow national perspectives, the ICJ has a role cut for itself. It matters most that instead of taking recourse to use of force or military action, the Mexican foreign minister promptly asserted that violation of the diplomatic immunity of the Mexican Embassy in Quito by the Ecuadorian special forces will be challenged before the ICJ. It vindicates an abiding faith in the majesty of the institution of International Law as well as the ICJ, as the principal judicial organ of the UN. Mexico’s case rests on the customary International Law and 1961 Vienna Convention, the UN Charter, the Pact of Bogota and the Charter of the Organization of American States. For redressal of the Ecuador’s storming of the Mexican Embassy on April 5, 2024, Mexico has invoked the ICJ jurisdiction on Article XXXI of the Pact of Bogota. Mexico has raised the principles enshrined for protection its rights (Articles 22, 24, 30, 44 and 45) under the 1961 Vienna Convention. Since the diplomatic relations are broken off, essentially, Mexico would primarily seek ICJ legal view in upholding the cardinal principle of inviolability of diplomatic mission and resultant reparations. Interestingly, no remedy per se has been sought concerning the bone of contention, the Ecuadorian national Jorge Glas, who was dragged away by the local police. Mexico seems to be alive to the reality that once a foreign national is dragged away even by unauthorized and illegal way, the Court would not be inclined to restore the status quo ante. Notwithstanding this, the invocation of the remedy of International Law before the world court, itself underscores majesty of the instrumentality in our troubled world. Therefore, in all probability, the ICJ would rise to the occasion, as it did in 1980 US Hostages case, to uphold the majesty of International Law by reiterating the cardinal principle of inviolability of the (Mexican) diplomatic mission.
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Prof. (Dr.) Bharat H. Desai is Professor of International Law and Chairperson of the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated three knowledge initiatives for SIS Faculty Wall of Honor (2023), Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam)