Report Of Secretary General 1975
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Report Of Secretary General 1975
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Thirtieth session Agenda item 111 [1] *
1. The term "diplomatic asylum" in the broad sense is used to denote asylum granted by a State outside its territory, particularly in its diplomatic missions (diplomatic asylum in the strict sense), in its consulates, on board its ships in the territorial waters of another State (naval asylum), and also on board its aircraft and of its military or para-military installations in foreign territory. The other form of asylum granted to individuals, namely, that which is granted by the State within its borders, is generally given the name "territorial asylum". The terminology employed in this entire field lacks uniformity. The terms "internal asylum", "external asylum"' and "political asylum" are used by some to denote diplomatic asylum and by others to refer to territorial asylum. The State in whose territory diplomatic asylum is sought is know as the "local" or "territorial" State - or even, as will be seen from foot-note 75 below, the "State" of refuge" - while the person granted asylum may be called either a "refugee" or an "asylee". As a general rule, this report respects the terminology employed in the documents studied because the meaning of the different terms referred to above is usually apparent from the context.
2. Diplomatic asylum came into being at the same time as permanent diplomacy. It was unknown as long as ambassadors were assigned only temporary missions. But with the transformation - begun in the fifteenth century in the Italian States and sanctioned at the Congress of Westphalia in 1648 - of temporary embassies into permanent ones, it was felt necessary to add inviolability of the ambassador's dwelling to the personal inviolability that he had traditionally enjoyed in order to remove him from the influence of the receiving State. Their places of residence being thus protected from intrusion, ambassadors acquired the habit of receiving persons sought by the authorities of the territorial State. This practice seems to have grown considerably in Europe in the sixteenth and seventeenth centuries, as is attested to by the fact that the inviolability of embassy premises, at first restricted to the ambassador's dwelling, was in turn claimed in respect of his carriage, the buildings situated in the same quarter of the city, and later the entire quarter (hence the expression franchise des quartiers or freedom of the ward or quarter). It was recognized by law and by custom, as is demonstrated, for example, by a Venetian statute of 1554, which provides that "he who has taken refuge in the house of a diplomat shall not be followed there, and his pursuers are to feign ignorance of his presence ... ", [2] 2 and by a statement of Charles the Fifth couched in the following terms:
"May the houses of ambassadors provide inviolable asylum, as did formerly the temples of the gods, and may no one be permitted to violate this asylum on any pretext whatever." [3] 3
The institution was also to receive approval in the form of an arbitral award delivered by Pope Clement VIII in 1601 on the occasion of a conflict between the King of France and the King of Spain, as will be seen further on. Finally, the principle of diplomatic asylum was almost unanimously recognized by the legal writers. [4] 4 They even strove, as the notion of sovereignty developed, to find for this principle a basis which would make it acceptable to the sovereigns of receiving States, who were growing increasingly jealous of their prerogatives. That is how the fiction of extraterritoriality came about, which was described by Grotius in the following terms:
"I am fully persuaded, therefore, that nations have seen fit, in the case of the person of ambassadors, to make an exception to the universally accepted custom of regarding all foreigners who are present in the territory under the jurisdiction of a State as subject to the laws of the country. Hence, according to the law of nations, since an ambassador represents by some kind of fiction the actual person of his master, he is regarded, by a similar fiction, as being outside the territory of the Power to which he has been assigned to discharge his functions." [5] 5
3. Although firmly established in law and in fact, diplomatic asylum nevertheless gave rise to controversy in Europe in the sixteenth and seventeenth centuries. In the first place, it was barely tolerated in the case of offenders who had acted against the sovereign or the public welfare. The Venetian statute referred to above made exemption from prosecution specifically subject to the condition that the person concerned had committed a common crime, and European diplomatic history of the sixteenth and seventeenth centuries abounds in incidents in which the local authorities disregarded the inviolability of the embassy and seized political offenders. Thus, in 1540 the Republic of Venice used threats to demand the surrender of some magistrates of the Republic who were accused of high treason and who had found refuge in the French Embassy in Venice; it maintained that asylum could not be granted for the crime of treason, and, to the fury of the King of France, Francis I, its demand was met. [6] 6 Invoking this precedent, England in 1609 secured the surrender of a chaplain accused of high treason who had taken refuge with the Venetian Ambassador to London. [7] 7
4. Even in the case of offences which were apparently devoid of any political character, the territorial authorities did, at times, enter embassy premises to seize the offender. Revealing in this regard is the incident which gave rise to the arbitral award delivered by Pope Clement VIII, to which reference was made earlier. [8] 8 Some Frenchmen, considering themselves insulted by a group of Spanish soldiers, killed two of the soldiers and wounded several others. They then fled to the French Embassy in Madrid. As an indignant mob was threatening to set fire to the Embassy, the Spanish authorities arrested the offenders despite the protests of the Ambassador. The Court of Spain apologized for the violation of the Embassy but kept the prisoners. Pope Clement VIII was invited to arbitrate the dispute and found for the King of France, censuring the violation of asylum. The prisoners were handed over to the Pope, who, in turn, surrendered them to the French Ambassador at Rome.
5. At the end of the seventeenth century the practice of asylum began to fall into disrepute. This was because the franchise des quartiers referred to above was being grossly abused. When an ambassador raised his sovereign's flag over the houses of a quarter of the city, the entire quarter became exempt from local jurisdiction and the representatives of the territorial authorities were denied access until they had received the ambassador's permission to enter. As a result, the quarter quite naturally became the haunt of criminals and the threat that this posed to public safety was bound to induce the territorial State to react. It is also possible that, as the modern conception of the State developed, the local authorities found it increasingly difficult to tolerate a practice which they probably regarded as threatening their sovereignty.
6. The first blow at the franchise des quartiers was dealt by the King of Spain, who, at the end of the seventeenth century, prevailed upon most of the ambassadors resident in Madrid to agree that exclusion from Spanish jurisdiction should henceforth be restricted to their dwellings. Likewise, Pope Innocent XI, following up the unavailing efforts of his predecessors, succeeded in persuading England, the Republic of Venice, Poland, Spain and Austria to agree to the abolition of the franchise des quartiers which their ambassadors had hitherto enjoyed at Rome. The less conciliatory attitude of the Court of France gave rise to a dispute. At the height of the quarrel, King Louis XIV seized the Comtat Venaissin, and the Pope countered by excommunicating the Parliament of Paris, which had sided with the King. After the death of Innocent XI, the conflict died down, and in 1693 the Court of France finally abandoned the principle of franchise des quartiers at Rome. [9] 9
7. Throughout the eighteenth century, however, ambassadors continued to grant asylum in their dwellings, as is demonstrated by two famous episodes in diplomatic history. One concerns the Duke of Ripperda, Minister for Finance and Foreign Affairs to Philip V of Spain, who, accused of betraying the trust of his office, was apprehended in 1726 at the residence of the British Ambassador at Madrid. The other, which dates from 1747, involves one Christopher Springer, a merchant born in Russia and domiciled at Stockholm, who, having been found guilty of complicity in an act of high treason, took refuge with the British Ambassador at Stockholm, but was finally handed over by the Ambassador to the Swedish authorities. [10] 10
8. At least some of the legal writers of the period disputed the principle of asylum. In his treatise De foro legatorum tam in causa civili quam in criminali, Cornelius van Bynkershoek wrote:
"Certainly, if reason be the arbiter, I doubt whether anything more preposterous than this right of asylum attached. to ambassadors' houses has ever been invented. Few institutions are so absurd as not to have been created for one or two ostensibly sound reasons at least; but, in this instance, can any such reason be advanced? ... All the privileges of ambassadors, which they enjoy by virtue of the tacit consent of nations, have the sole aim of ensuring that they may discharge the functions of their office in full security without restraint or impediment on the part of any person. But nothing prevents them from so doing even if they are not permitted to shelter or hide criminals, thus exempting them from the jurisdiction of the sovereign in whose territory they reside, and this not on account of themselves or their peoples, but to help a third party who has no connexion with them. All that is so obvious that there is hardly any point in demonstrating it seriously." [11] 11
Likewise, Wicquefort stated that "an ambassador cannot shield subjects from the justice of their sovereign or prevent the sovereign from imposing his Justice upon them without wronging him and interfering with the rights of the crown". [12] 12
9. Vattel's position is less categorical. While proclaiming the inviolability of the ambassador's dwelling, he considers that "a sovereign is not obliged to permit a foreign ambassador to turn his house into an asylum to which he admits the enemies of the Prince and the State and all manner of criminals and shields them from the punishment they deserve ... In case of Certain common crimes committed by persons who are often more unfortunate than guilty or whose - punishment is not of great importance to the tranquillity of society, an ambassador's dwelling may well serve as asylum, and it is better to permit this kind of offender to escape than to expose ministers to frequent molestations on the ground that a search must be made ... But in the case of an offender whose detention or punishment is of great importance to the State, the Prince must not be deterred by respect for a privilege which was never meant to be used to harm and destroy States ... Accordingly, it is the who must decide in each case, to what extent the right of asylum attributed by an ambassador to his dwelling should be respected." [13] 13
10. From the nineteenth century onwards, diplomatic asylum almost ceased to be granted in Europe except during political disturbances. In Greece, for example, during the Revolution of 1862, refuge was given in legations and consulates to persons whose lives were in danger. In Spain, in 1841 and again in 1843, Chevalier d'Alborgo, chargé d'affaires of Denmark, received into his dwelling a number of Spaniards who were being sought for political reasons, including the Marquis of Casa-Irujo, who later became the Duke of Sotomayor. This led to the Chevalier becoming a grandee of Spain, with the title of Barón del Asilo, but did not prevent the Duke of Sotomayor, then Minister for Foreign Affairs, from ordering the authorities to enter the house of his former benefactor during the insurrection of 26 March 1848 in order to seize some political opponents. [14] 14 In Portugal during the Revolution of 1910, which brought down the monarchy, a few legations granted asylum to supporters of the ancien régime. Various instances of asylum in China, Persia, Morocco and Turkey could also be cited. [15] 15
11. At a time when diplomatic asylum was on the decline in Europe and elsewhere it was making major advances in Latin America. [16] 16 The reasons for this have been summarized as follows in the pleading submitted by the Government of Colombia, to the International Court of Justice in the asylum case:
"The American institution of asylum, with the special characteristics which it assumes on the continent, is, in short, the result of two coexisting phenomena deriving from law and politics respectively and in evidence throughout the history of this group of States: on the one hand, the power of democratic principles, respect for the individual and for freedom of thought; on the other hand, the unusual frequency of revolutions and armed struggles which, after each internal conflict, have often endangered the safety and life of persons on the losing side." [17] 17
12. The following are some instances of the application of the principle of asylum in Latin America:
- In 1850, the former President of the Republic of Ecuador took refuge in the Consulate of Colombia (then called New Grenada) in Quito and then in that of the United States. [18] 18
- In 1865, the President of the Republic of Peru and his ministers took refuge in the Legation of France in Lima. [19] 19
- In May 1870, the Minister of Great Britain to Guatemala granted asylum to a Guatemalan politician.
- In 1874, the Minister of the United States in Bolivia granted asylum to two persons sought by the Bolivian Government. [20] 20
- On a number of occasions, including one case in 1875, political refugees found asylum in the Legation of the United in Haiti. [21] 21
- In 1885, the President of the Republic of Ecuador and his Minister of the Interior were granted asylum in the Legation of Colombia.
- In 1891, the conflict between the President and Congress of Chile led to the granting of asylum to two persons in the Legation of the United States in Santiago. On 21 August of the same year, two other groups of persons, respectively 5 and 19 in number, took refuge in the legations of Spain and the United States. [22] 22
Of course this list is purely illustrative. Many other examples are mentioned in the records in the asylum case [23] 23 and in various publications. [24] 24
13. The development of the doctrine of diplomatic asylum in the nineteenth century will be dealt with only briefly here because the same trends recur in twentieth-century doctrine, which will be analysed in detail in chapter IV (Studies by non-governmental organizations concerned with international law) and in chapter V (Qualified authorities on international law). Nineteenth-century authors are unanimous in denying the right of diplomatic asylum to criminal law offenders, but such unanimity does not exist with regard to perpetrators of political crimes. Certain writers reject the fiction of extraterritoriality and hold that diplomatic asylum, which is thus deprived of any juridical basis, is - whatever the nature of the crime underlying the request for asylum - simply an infringement of the sovereignty of the territorial State. Faustin-Hélie writes:
"There would be no more sovereignty if within each State there was an independent territory which could serve as a refuge for all criminals and a hotbed for all kinds of conspiracies, and which could oppose its own law to the law of the country. The independent authority of ambassadors would completely absorb that of Governments." [25] 25
G. F. de Martens observes that the universal l
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