Coletânea de Artigos do XIX Curso de Inverno de Direito Internacional

De Isabela Leão Moreira

O Curso de Inverno de Direito Internacional constitui um programa instituído pelo eminente Professor Doutor Leonardo Nemer Caldeira Brant, Juiz da Corte Internacional de Justiça, e sua perpetuação é zelosamente assegurada pela diligente equipe do Centro de Direito Internacional.

No período compreendido entre os dias 17 e 28 de julho de 2023, foi realizado o XIX Curso de Direito Internacional, organizado pelo Centro de Direito Internacional (CDI) em colaboração com o Centro de Estudo em Direitos e Negócios (CEDIN) com a Fundação Konrad Adenauer Stiftung. O evento contemplou a oportunidade para a submissão e apresentação de trabalhos acadêmicos, e os melhores trabalhos estão presentes nesta obra.

É com satisfação que destacamos que a publicação dos trabalhos, como fruto das apresentações nos anais do XIX Curso de Direito Internacional, foi possível graças à colaboração inestimável de todos os pesquisadores e participantes do curso. A dedicação e o empenho desses acadêmicos contribuíram não apenas para a riqueza do evento, mas também para a consolidação de um espaço de excelência na disseminação do conhecimento jurídico internacional. Expressamos, assim, nosso profundo agradecimento a todos os colaboradores desta edição, cujo comprometimento e contribuição foram fundamentais para o sucesso e prestígio do XIX Curso de Direito Internacional.

• Idioma: Português
• Editora: Editora Dialética
• Data de lançamento: 15 de abr. de 2024
• ISBN: 9786527024118

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EUROPE REFUSES TO LISTEN: DEBATES ON THE EXTRATERRITORIAL JURISDICTION OF ASYLUM IN LIGHT OF A LATIN AMERICAN PERSPECTIVE

Laura Marques de Oliveira¹

Tatiana Cardoso Squeff²

1. INTRODUCTION

The analytical study of the extraterritorial application of the protection of human rights becomes fundamental because of the frequent occurrence of asylum requests in regions of conflict or close to them. And since there are many conflicts in the world today, it seems fare to analyze the granting of such a protection to those who require it before reaching the territory of the state itself. Nevertheless, not all countries grant diplomatic asylum to those who seek protection from them abroad, as it is largely the case of European Countries. Nevertheless, there are constant debates between international and regional courts, as well as among specialists on the subject in the field of International Law on whether it should be characterized as an obligation or not.

Hence, this article aims at showing how the European Systems of Human Rights conceive diplomatic asylum and the international obligations that arise from it concerning extraterritorial protection of asylum seekers, specifically in regard to the principle of non- refoulement. Particularly, we hope to understand how the European Court conditions extraterritorial jurisdiction, in order to compare it to the Inter-American Court view to see if these courts are aligned or if one does not listen to the other.

Therefore, this article will test the hypothesis that, different from Latin American tradition brought forward not only by the International Court of Justice, but also – and most importantly – by the Inter-American Court of Human Rights, the European Court amplifies the discretionary power of European States in order to reject the concession of asylum to non-European asylum-seekers, notably, from the Global South. And, with this confirmation, we also seek to present a theoretical contribution that allows us to understand the reasons why it does so.

Consequently, by relying on a hypothetical-deductive methodology research, the article is divided into three parts, beyond the introduction and conclusion, exploring the Latin American tradition to asylum, the European Court’s view, and the explanation of a theory that could help transcribe the European position. And concerning the research procedures are divided in two categories: documentary, regarding the jurisprudence from the abovementioned tribunals; and bibliographic, chiefly from authors who debate the matter, and also come from an International Critical Law matrix.

2. THE CONSTRUCTION OF THE LATIN AMERICAN TRADITION OF DIPLOMATIC ASYLUM

Diplomatic or extraterritorial asylum was a practice initially born in Europe in the 15th century along with the creation of nation-States as a consequence of consolidating the means for diplomacy between them, e.g. the establishment of embassies and the granting of personal privileges and immunities to ambassadors and their properties. While the inviolability of diplomatic missions was developed into being a customary rule codified in the Vienna Convention of Diplomatic Relations of 1961, diplomatic asylum was not as delimited. It was firstly conceded to both political offenders and common criminals. Hence, once ambassadors commonly received different people in their premises, the practice soon caused major conflicts regarding its operative norms and fell into disuse in the region (IACHR, 2018).

Notwithstanding this, diplomatic asylum granted specifically to political criminals was incorporated and consolidated in Latin America by the end of the 19th century given the political crisis engendered by the decolonization process of those States. Therefore, it derived from the coexistence of law and politics: the first one concerning the respect for individual liberties and for democratic principles, and the second one based on the unusual occurrence of social revolutions and civil wars which endangered the lives of the losing political party. The 20th century also faced this scenario since many Latin American countries went through periods of regime’s transition from democracies to dictatorships and vice-versa (IACHR, 2018).

The development of diplomatic asylum in International Law cannot be analyzed without acknowledging the contribution of the Inter-American Court of Justice (IACHR) Advisory Opinion OC-25/18 (2018) requested by Ecuador, named as "La Institución del Asilo y su Reconocimiento como Derecho Humano en el Sistema Interamericano de Protección". The IACHR presented an unprecedented collection of the historical background and the normative acceptance of asylum and of its different forms, e.g. territorial asylum, refuge, and diplomatic asylum, in Latin American countries. Besides deliberating over several international treaties and the national laws of States-members, the IACHR paid special attention to the International Court of Justice’s (ICJ) jurisprudence issued in the middle of the 20th century (IACHR, 2018).

It was on 15 October 1949 when the ICJ was called by Colombia against Peru to adjudge and declare upon the legality of such practice. Such case concerned the diplomatic asylum granted by the Colombian ambassador located in Lima, capital of Peru, to Mr. Victor Raúl Haya de la Torre on January 3rd 1949, after a military coup d’etat that broke out in the country in October, which instituted a state of siege and suspended certain constitutional rights. Thus, Mr. Haya de la Torre, founder and leader at the time of the political party American Popular Revolutionary Alliance in opposition to the military dictatorship of incumbent President Manuel Odría (1948-1950), was sought and judicially charged with encouraging and commanding the movement (ICJ, 1950).

The 1949 Asylum Case made historical remarks on the differences of territorial and diplomatic asylum at the time. As long as the person is territorially located in the State that protects him, the protection handed over falls into the institution of territorial asylum and arises from an action within the sovereignty of the State. On the other hand, when the action takes place, for example, in diplomatic legations of the protecting State situated in the territory of the State from which the person wishes to be protected from, it is defined as diplomatic asylum (ICJ, 1950).

Therefore, according to the ICJ, even if the person is under the jurisdiction of the protecting State, each case must be legally justified in terms of the law (ICJ, 1950). If the legal basis is not proven, the diplomatic asylum granted becomes unlawful because it opposes and interferes with the operation of justice of the territorial State, being contrary to the application of domestic laws and the jurisdiction of domestic courts, thus, violating its sovereignty (ICJ, 1950).

After receiving Mr. Haya de la Torre in the embassy premises, the Colombian Embassy requested Peru to initiate the safe-conduct process according to the usual mechanisms associated with diplomatic asylum rights to ensure the inviolability of the person found in the 1928 Havana Convention, ratified by both countries. Under such provision, Colombia requested the Court to adjudge and declare the Colombian competence to qualify the offense Mr. Haya de la Torre was accused of. To Colombia, it had a political nature whereas, to Peru, it was categorized as a common crime; thus, Colombia would not be entitled to request safe-conduct in order to move de la Torre from the embassy to the Colombian territory, transforming the diplomatic asylum into a territorial one (ICJ, 1950).

In order to sustain the argumentation, Colombian representatives relied upon a series of diplomatic asylum cases to prove the existence of a regional or local custom peculiar to States of Latin America concerning a unilateral and definitive right of the protecting State to qualify the nature of the offense. Nevertheless, pursuant to the ICJ, those facts disclosed so much uncertainty and contradiction, so much fluctuation and discrepancy (ICJ, 1950, p. 277) and the rapid succession of conventions on asylum exposed so much inconsistency, once some States ratified them and others rejected them, that it considered not possible to recognize a constant and uniform practice, accepted as law, of the existence of a binding rule regarding the unilateral and definitive qualification of the offense (ICJ, 1950).

Although the Court rejected, by 14 votes to one, the Colombian demand, Chilean Judge Manuel Alvarez and Colombian Judge Ad Hoc Caicedo Castilla, both Latin Americans, went against this position in their dissenting opinions. According to Judge Alvarez, "if it [the competence] belonged to the territorial State, the institution of asylum would become useless, because it would be sufficient for that State to assert that the refugee (sic) was guilty of an ordinary crime and he would then have to be handed over" (ICJ, 1950 – Dissenting Opinion by Judge Alvarez, p. 297).

Additionally, the Ad Hoc Judge Caicedo Castilla affirmed the protecting State must possess the right to unilaterally and definitively qualify the offense in conformity not only with the obligations derived from the Latin American diplomatic asylum custom, but also with the very nature of the institute in the region. To prove the argument, he submitted a declaration of the Peruvian government from October 1948, in which it admitted that all the countries of America accept and recognize that the right of qualification belongs to the protecting State (ICJ, 1950 – Dissenting Opinion by Judge Caicedo Castilla, p. 367).

On top of the judges’ opinions, the ICJ’s Asylum Case of 1949 was heavily criticized by scholars on diplomatic asylum from around the world and specifically from Latin America for not providing a proper solution to the case, but only specific answers to the parties’ questions, leaving interpretative gaps on the protective scope of diplomatic asylum and the de jure recognition of this practice as a Latin American regional custom. By focusing on the obligations raised only by the treaties invoked, the Court disregarded the relevance of American International Law and the need for a less formal approach (GOODWIN-GILL, 2017, p. 172). It was solely a year later, in the Haya de la Torre Case of 1950, that the ICJ made reference to a common practice of diplomatic asylum in Latin America.

This case continued the debates of the 1949 situation³, in which Colombia instituted an Application after refusing to return Mr. Haya de la Torre upon Peru’s request by claiming it had no obligation to surrender a political offender, since the ICJ had agreed with Colombia that de la Torre was not accused of a common crime, but rather a political one, as Peru had not proven the opposite in the November 20th 1950 judgment. This subsequent decision, delivered on June 13th 1951, acknowledged the existence of a Latin American tradition of asylum, despite not explicitly describing the norms that governed it.

Although it ruled that Peru was entitled to demand the termination of the asylum granted due to its illegality, the Court ruled in favor of Colombia by pointing out that to interpret the imposition of an obligation to surrender an asylee, even if such status has been irregularly granted, would be against the Latin American tradition’s spirit which animated the Havana Convention (particularly art. 2[2]), and whose development was deeply underpinned by extra-legal factors, e.g. considerations of convenience or of simple political expediency of States. In other words, it found that no State is obliged to return a political offender to the territorial State (but only common criminals), not even when the asylum is irregularly granted, for there are alternative (political) ways to terminate it (ICJ, 1951).

The 1950 and 1951 decisions were crucial to expose the lack of a normative consolidation of the institution of diplomatic asylum in Latin America, specially concerning the three aforementioned discussions: the difference between territorial and diplomatic asylum; the right to qualify the offense of the person requesting protection; and the non- obligation to surrender such person to the territorial State. Consequently, months after the decision’s publication in 1950, the Organization of the American States (OAS) recommended to the Inter-American Juridical Committee to deepen research on the subject, which led to the adoption of the Caracas Convention of Diplomatic Asylum (1954) today ratified by 14 States (one of them being Peru; Colombia is only a signataire), and the Caracas Convention of Territorial Asylum (1954), currently with 12 State-Parties (one of them being Colombia; Peru is only a signataire) (IACH, 2018).

Hence, although diplomatic asylum was already embodied in a number of multilateral treaties of the region, both conventions are known, as per IACHR, for being the most thorough instruments on the subject (IACHR, 2018). The 1954 Convention regulates diplomatic asylum as a right of States, despite highlighting they are not obliged to grant it, and sets the competence to qualify the nature of the offense to the protecting State. In addition, the Convention establishes the obligation of the territorial State to grant safe- conduct whenever required by the protecting State (OAS, 1954).

In matters of surrendering the person upon the request of the territorial State, this ratio decidendi in ICJ’s jurisprudence set parameters that were followed by other bilateral and multilateral treaties and declarations created in the second half of the 20th century. When addressing extradition, i.e. to return an accused to be judged by the State where the offense was committed, Latin American and international treaties normally incorporate an exception to those accused of political crimes, or crimes connected to them or common crimes prosecuted for political reasons. Nevertheless, there is no uniform concept of what constitutes a political crime in terms of the law. Thus, it is up to each State to determine it domestically (IACHR, 2018).

The IACHR recognized some particularities of the Latin American tradition of asylum, for instance, that the right to search and enjoy ("buscar y recibir") asylum in the form of refuge and territorial asylum constitutes a human right under both the American Convention (ACHR) and the American Declaration of Human Rights (ADHR). For diplomatic asylum specifically, it affirmed that it was neither encompassed as a human right by these instruments nor as a customary international law. Not all State-members of the OAS are part of the Caracas’ treaty on the subject, therefore, not providing a uniform understanding and terminology on how to proceed. Consequently, the institute shall be governed as a system by these conventions of interstate character and national laws (IACHR, 2018).

Nonetheless, many international obligations derived from the ACHR and the ADHR are enshrined in certain fundamental duties of erga omnes character, e.g for States to respect and guarantee the protection and the effectiveness of human rights of those under their jurisdiction/control/authority, particularly, since the principle of non-discrimination has raised to the status of a jus cogens rule (SQUEFF; ROSA, 2018, p. 130). Therefore, States have the obligation to not return in any way a person to a territory in which it is at risk of persecution (IACHR, 2013, para. 151). Such rule, known as non-refoulement principle, is the cornerstone of the international protection of refugees and asylum seekers (IACHR, 2014, para. 210). It is not, however, exclusive to this regime for it is essential to not solely the right to asylum, but also to preserve the right to life, to dignity and to freedom of any foreign person that is within the jurisdiction/control/authority of a State (IACHR, 2018, p. 58).

In other words, the conclusion one may draw is that diplomatic asylum does exist although not openly accepted by every state. Nevertheless, human rights standards, which include the non-refoulment principle, are not only applicable within the territory of a State, but under any place it has jurisdiction/control/authority, which could also be abroad within an embassy or a consulate. And it cannot be derogated by a State under the contention that it does not recognize the institute of diplomatic asylum due not only to the open scope of its application (any non-national), but also due to the jus cogens character of such rule. This view, however, does not seem to have reached Europe.

3. THE EUROPEAN COURT OF HUMAN RIGHTS’ PERSPECTIVE ON DIPLOMATIC ASYLUM

In the 21st century, the European Court of Human Rights (ECHR) has been called several times to deliberate upon cases of European States refusing to grant asylum or to allow the entrance of non-nationals through their borders, consequently, engendering possible violations under the European Convention of Human Rights. It has also been pleaded to judge upon cases regarding extraterritorial protection, whether in diplomatic legations or ships in international waters. The article in question focuses on two specific cases where the alleged victims were located in the embassy of the accused State: one as the victims were detained by authorities and contained in the premises, whereas the other, they were requesting for a humanitarian visa to enter the country. Notwithstanding, both cases led to discussions over the scope and extent of diplomatic asylum and extraterritorial non-refoulement under the European Convention.

Under the jurisprudence of the ECHR, the notion of jurisdiction is essentially tied to the territory, meaning that to issue it in an extraterritorial manner involves proving the existence of an exceptional basis for it (ECHR, 2001; ECHR, 2012). Hence, European States must exercise effective control over non-nationals for them to be under their jurisdiction. Such control solely arises when it is done over the territory and its inhabitants as a consequence of military occupation or with the consent, invitation or acquiescence of the government of the territory, thus, being able to exercise all or some of the public powers the government normally had (ECHR, 2001). The ECHR also extended this view to diplomatic and consular officials when they exercise abroad their authority over non-nationals of the territorial State and their property (ECHR, 2011).

This restrictive perspective heavily impacted on the European jurisprudence concerning asylees. The first case to be analyzed concerns the proceedings of Al-Saadoon and Mufdhi v. The United Kingdom of 2010 in the context of the American invasion, along with British and Australian troops, to Iraq in 2003. In it, two Iraqis were imprisoned by British authorities in the British embassy to be later surrendered to Iraq where they would be sentenced to death penalty, without any British attempts to negotiate their fate. The ECHR did not categorize the case as a request for diplomatic asylum because the applicants did not appeal for it in the premises.

When addressing the issue of diplomatic asylum, the ECHR highlighted the requirement for the asylee to be tried for a ‘political’ offence in a judicial system subordinated by political dictatorship, which disregarded judicial individual guarantees. It referred to the ICJ’s Asylum Case and corroborated with its opinion that this specific type of asylum required legal basis on a case-by-case analysis, once it did not configure a customary international law norm, and, as a result, States were not even obliged to grant it.

The Court acknowledged that,