Question of Diplomatic Asylum : Report of the [UN] Secretary-General [22 September 1975]

[struggle4progress]

Title: Question of Diplomatic Asylum: Report of the Secretary-General
Publisher: UN General Assembly
Publication Date: 22 September 1975
Citation / Document Symbol: A/10139 (Part II)
Reference: Thirtieth session
Agenda item: 111
Cite as: UN General Assembly, Question of Diplomatic Asylum : Report of the Secretary-General, 22 September 1975, A/10139 (Part II), available at: http://www.unhcr.org/refworld/docid/3ae68bf10.html <accessed 7 August 2012>
<hat-tip to Peter Spiro at Opinio Juris: A Return to “Diplomatic Asylum”?>

This is a very long and detailed report, so I merely attempt to indicate some of its contents

The report begins with a historical discussion of the ebbs and flows in the development of the diplomatic asylum concept, which has been related to the inviolability of embassies, but the concept has frequently been limited:

... From the nineteenth century onwards, diplomatic asylum almost ceased to be granted in Europe except during political disturbances ... At a time when diplomatic asylum was on the decline in Europe and elsewhere it was making major advances in Latin America ...

.

But even the Latin American versions have not been not absolute. The section, discussing diplomatic asylum in the 1889 Rules of Montevideo, asserts

... Such persons as may be charged with non-political offences and seek refuge in a legation shall be surrendered to the local authorities ...

A similar provision appears in the 1911 Bolivarian Agreement on Extradition. And the 1928 Havana convention asserts:

... It is not permissible ... to grant asylum ... to persons accused or condemned for common crimes ... Persons accused of or condemned for common crimes ... shall be surrendered upon request of the local government ...

In the 1939 Treaty on Political Asylum and Refuge,

... Article 3 denies the benefit of asylum (1) to persons accused of political offences who have been indicted or condemned for common offences by the ordinary tribunal ...

Likewise, in the 1954 Convention on Diplomatic Asylum, we find:

... Asylum granted … to persons ... sought for political reasons or ... political offences shall be respected ... It is not lawful to grant asylum to persons who, at the time of requesting it, are under indictment or on trial for common offences or have been convicted by competent regular courts and have not served the respective sentence, ... save when the acts giving rise to the request for asylum, whatever the case may be, are clearly of a political nature.

Persons included in the foregoing paragraph who de facto enter a place that is suitable as an asylum shall be invited to leave or, as the case may be, shall be surrendered to the local authorities, who may not try them for political offences committed prior to the time of the surrender ...

A Colombian-Peruvian asylum case, decided by the International Court of Justice on 20 November 1950, concerned a Peruvian citizen who had requested asylum at Colombia's embassy in Lima. The court said:

... In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case ...

There is lengthy discussion of various efforts to address such issues in the League of Nations and in the UN. In particular, Article 14 of the Universal Declaration of Human Rights contains a qualified statement:

... Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes ...

There is much much more here. Because the diplomatic custom evolves only slowly, the fact, that the report was written 35 years ago, may not limit it's usefulness as an introduction to the topic of "diplomatic asylum"