Mexico and Ecuador at the ICJ: A Plea for Taking the Latin American Experience Seriously

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On 5 April 2024, Ecuadorian special operation agents broke into the Mexican Embassy in Quito, Ecuador. Security footage released by Mexico captures the moment the agents forcefully subdued Deputy Chief of Mission Roberto Canseco Martínez as he attempted to prevent their entry. During the raid, the agents apprehended Jorge David Glas Espinel, the former Vice-President of Ecuador (2013–2018), who had been residing within the Embassy. Previously convicted twice on corruption-related charges and released early from prison, Glas was facing new charges from Ecuadorian prosecutors. After seeking asylum at the Mexican Embassy in December 2023, his request had been granted by the time of his abduction.

This incident quickly captured regional attention, raising considerable concern. Despite the persistent challenges of intra-state violence, Latin America has long been proclaimed a ‘zone of peace’ by its leaders, a claim supported by a notable track record of maintaining inter-state peace. Additionally, Latin American states boast a rich history of deeply engaging with international law. Thus, this textbook violation of international law left regional observers stunned (see, for example, the swift analysis published in this blog). A storm of condemnations of Ecuador’s actions followed, involving sixty-eight states along with regional and international organizations.

Mexico promptly instituted proceedings against Ecuador at the International Court of Justice (ICJ), alleging violations of customary and conventional obligations concerning the inviolability of embassy premises and diplomatic personnel, firmly established in the Vienna Convention of Diplomatic Relations (VCDR), as well as the obligation of states to resolve disputes peacefully, stipulated in the Pact of Bogotá and the charters of the Organization of American States (OAS) and the United Nations (UN). Yesterday and today, the Court conducted public hearings on Mexico’s request for provisional measures.

On Monday, just hours before the hearings were set to commence, Ecuador took a surprising turn by instituting a new case against Mexico. In this post, we focus exclusively on this new case and argue that Ecuador’s claims pose significant risks to the legal foundations of Latin American relations. We identify three main concerns. First, we argue that Ecuador’s arguments rely on the inappropriate precedent set by the Asylum case (1950), the first judgment of the Haya de la Torre trilogy. Second, they misconstrue the relationship between diplomatic asylum and the principle of non-intervention, a cornerstone of Latin American approaches to international law. Third, they present an interpretation of the 1954 Convention on Diplomatic Asylum that risks undermining the very institution of diplomatic asylum at a critical moment in Latin American politics.

Ecuador’s Case in a Nutshell

Ecuador’s application contends that Mexico violated four distinct sets of rules. First, it alleges breaches of the VCDR. Notably, Ecuador claims that Mexico’s decision to shelter Glas constitutes a violation of Article 41, which mandates that diplomatic personnel must adhere to the laws of the receiving state and refrain from interfering in its internal affairs, and that the premises of missions must not be used in any manner incompatible with their functions.

Second, Ecuador claims that Mexico violated inter-American asylum conventions, including the 1954 Convention on Diplomatic Asylum (‘Caracas Convention’). Ecuador stresses that Article III of the Caracas Convention provides that it is not lawful to grant asylum to individuals who are under indictment or on trial for common offenses, or have been convicted by competent regular courts without serving the respective sentence (Application, ¶38–39). Ecuador maintains that Glas is not a victim of political persecution.

Third, Ecuador asserts that Mexico’s granting of asylum to Glas violates the principles of sovereign equality, territorial integrity, and non-intervention (¶40–44).

Fourth, Ecuador contends that Mexico failed to uphold obligations of cooperation under anti-corruption conventions, specifically the Inter-American Convention against Corruption (1997) and the United Nations Convention Against Corruption (2003), by failing to collaborate with Ecuadorian authorities in the ongoing proceedings against Glas (¶45–47).

Alongside these four claims, Ecuador argues that Mexico’s President Andrés Manuel López Obrador has questioned the legitimacy of Ecuador’s elections and that these comments constitute a violation of the principle of non-intervention (¶48).

The Asylum Judgment as an Inappropriate Precedent

Diplomatic asylum, a practice notably prevalent among Latin American states, involves a state offering refuge within its diplomatic premises in a foreign state to an individual seeking protection. The Court has already dealt with the practice of diplomatic asylum in Latin America: in the Asylum (1950) and Haya de la Torre (1951) cases. Both concerned the diplomatic asylum granted by Colombia to Peruvian politician Víctor Raúl Haya de la Torre, founder of the American Popular Revolutionary Alliance (APRA), who was accused of inciting rebellion and took refuge in the Colombian Embassy in Lima. This historical parallel has led many to view the current case as a revisitation of the Haya de la Torre saga, with Ecuador particularly drawing on the Court’s judgment in the Asylum case. Ecuador’s application cites the following excerpt:

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. (Application, ¶43)

At first glance, Ecuador has a compelling reason to invoke the Asylum judgment. In that case, Colombia requested the Court to determine that Colombia was competent to qualify, unilaterally and definitively, the offense committed by an individual for the purpose of granting them diplomatic asylum. Essentially, Colombia sought to establish its exclusive competence to decide whether Haya de la Torre had committed a political offense, which would warrant asylum, or a common crime, which would not. Colombia contended that this competence was inherent to the institution of diplomatic asylum and thus implicitly recognized in the 1928 Convention on Asylum (Havana Convention), to which both Colombia and Peru were parties. Additionally, Colombia argued that this authority was based on the existence of a regional or local custom specific to Latin American states.

The Court rejected Colombia’s claim, noting that while exclusive competence to qualify the offense might enhance the effectiveness of diplomatic asylum, its absence did not render the practice ineffective. Therefore, the Court determined that this competence was not implicitly recognized under the 1928 Havana Convention (275). Furthermore, the Court concluded that Colombia had failed to demonstrate the existence of a regional custom establishing its competence to unilaterally and definitively qualify the relevant offence (277–278).

However, invoking the Asylum judgment is inappropriate for the case at hand, for two reasons. The first one is straightforward: the relevant legal framework to assess Mexico’s actions today is the 1954 Caracas Convention, which has been ratified by both Mexico and Ecuador. The second one is subtler: the Caracas Convention was partly prompted by dissatisfaction with the ICJ’s decision in the Asylum Case. As a result, Article IV provides that ‘it shall rest with the State granting asylum to determine the nature of the offense or the motives for the persecution’.

There is more to this second aspect. The ICJ issued three judgments in the Haya de la Torre saga and yet did not contribute to solving the controversy. Beyond the apparently technical question of whether there is a regional custom on asylum, a certain perception has remained among Latin American international lawyers that the Court failed to acknowledge what could at least be characterized as a longstanding practice of diplomatic asylum (see, for example, Marcelo Kohen’s recent comments). Consider the dissenting vote cast by Judge Alejandro Álvarez, arguably the most influential Latin American international lawyer of the first half of the twentieth century, in the Asylum case:

The institution of asylum is a part of Latin-American international law because that institution is applied in the Latin countries of the New World in a special manner … In view of the fact that asylum is utilized when the political order within a country is disturbed, and inasmuch as the situation resulting from this disorder may vary considerably, there is no customary American international law of asylum properly speaking; the existence of such a law would suppose that the action taken by the Latin States of the New World was uniform, which is not at all the case: governments change their attitude according to circumstances and political convenience. But if there is no customary Latin-American international law on asylum, there are certain practices or methods in applying asylum which are followed by the States of Latin America. (Emphasis added).

In sum, Ecuador is relying on a precedent that is not only, to a large extent, doctrinally irrelevant but that also overlooked the historical and practical dimensions of diplomatic asylum as recognized by Latin American international lawyers. Indeed, Judge Philadelpho Azevedo, from Brazil, also appended a dissenting opinion to the Asylum judgment; while Judge Isidro Fabela from Mexico was compelled to excuse himself due to health reasons, but reportedly wrote a letter to Haya de la Torre expressing his disagreement with the judgment. Even more strikingly, the invocation of the Asylum precedent starkly contradicts Ecuador’s recent practice; this is, the previous government’s decision to grant asylum to Julian Assange for seven years in the Ecuadorian Embassy in London.

The Relationship Between the Principle of Non-Intervention and Asylum in Latin American Perspective

Ecuador’s portrayal of diplomatic asylum as fundamentally opposed to the principle of non-intervention represents a misunderstanding of their relationship. This portrayal overlooks the historical context in which both principles were codified in Latin America. Notably, many Latin American states and jurists did not view the principles of non-intervention and the practice of diplomatic asylum as conflicting. Instead, they promoted the parallel codification of both institutions, often under the name of ‘American international law’ or ‘Latin American international law’. Arguably no one understood the workings of this project better than Judge Álvarez, who had long been its leading proponent. Unsurprisingly, then, Álvarez’s dissenting opinion in Asylum explained very clearly the importance of diplomatic asylum in the Latin American context:

The aim of the revolutionary movements which occur in certain Latin-American countries is either to change the existing political order, or to enable a ‘caudillo’ to assume power. The leaders of such movements consider that they will be able, in the event of failure, to seek refuge in foreign embassies or legations and asylum is readily granted to them; it has sometimes even been granted to leaders of barrack mutinies which had been quickly suppressed. (292)

Judge Álvarez illustrated how Latin American states sought to shield individuals victimized by political persecution following their efforts to effect political change. This perspective aligns with Arnulf Becker Lorca’s account of ‘American international law’ as ‘the regionalist, at times anti-imperialist, and mostly left-wing project of Latin American solidarity’.

Furthermore, Judge Álvarez clarified the harmonious jurisprudential relationship between the principle of non-intervention and diplomatic asylum, stating that:

Asylum, in these countries, is regarded as a consequence of the ex-territoriality of the premises on which it is granted and not as a diplomatic protection; it is consequently considered that such asylum in no way constitutes an intervention or a limitation of the sovereignty of the territorial State, but rather that it is the legitimate exercise of a prerogative. (292)

This interpretation suggests that diplomatic asylum, as practiced by Latin American states, arguably demonstrated deference rather than disregard for sovereignty, which Latin American states had staunchly upheld. Significantly, Álvarez mentioned almost casually, ‘the United States has never admitted asylum’, hinting to discerning observers, whether in 1951 or 2024, that, unlike in many other inter-American legal debates, intervention was not the underlying issue here. 

Misreading the Caracas Convention

Finally, Ecuador misconstrues the obligations of the 1954 Caracas Convention by failing to mention a key provision of the treaty in its application. Ecuador cites Article III, which provides that it is not lawful to grant asylum to individuals who are under indictment or on trial for common offenses, or have not served their sentences for these crimes (Application, ¶38). However, Ecuador disingenuously avoids referencing Article IV, which recognizes the state granting asylum the authority to determine the nature of the offence or the motives for persecution.

As mentioned above, the Caracas Convention was adopted partially in response to the Haya de la Torre saga. The account of the drafting debates by Charles Fenwick, who was then Director of the Department of International Law at the OAS, illustrates the strong commitment of the majority of Latin American states to recognizing and strengthening the authority of the asylum-granting state:

The principal question raised … was that of determining who should be competent to decide with respect to the political character of the offense of the fugitive who had sought asylum …The Brazilian delegate sought to find a via media in accordance with which, in cases of offenses having a dual character, being political in motive and yet having the substantive character of a common crime, the state offering asylum would have the primary right to determine the nature of the offense, but the territorial state would have the right to question the decision and request that it be referred to an arbitral tribunal. The proposal, however, was defeated …, making the decision of the asylum-granting state definitive. (Charles Fenwick, The Organization of American States: The inter-American Regional System (Kaufman 1963), 328-329; emphasis added).

If Ecuador’s interpretation of the Caracas Convention is legally untenable, it is no less problematic in practice. According to Ecuador’s reasoning, any individual who has been formally charged with a common offense is, by definition, not a victim of political persecution for the purposes of diplomatic asylum. This interpretation risks rendering the institution of diplomatic asylum effectively futile. 

Conclusion: The End of Diplomatic Asylum?

The stakes in this case are high. Current trends in Latin America reveal a recurring pattern of criminal charges – most often, corruption charges – being levelled against both outgoing executive officials and opposition leaders. These charges, marked by significant variation in both political affiliations and the legitimacy of the accusations, are often classified as common crimes. If Ecuador’s interpretation prevails, it could effectively deny many opposition leaders the protection they might require, which a third state might be willing to offer. This issue transcends partisan lines: while Mexico has granted asylum to Glas, a former leader of the left-wing ‘pink tide’; the current far right-wing government of Javier Milei in Argentina has recently extended diplomatic asylum to Venezuelan opposition leaders in the Argentine Embassy in Caracas. The current geopolitical climate makes it a particularly inopportune time to weaken the institution of diplomatic asylum.

There remains, admittedly, a question about the extent to which Mexico’s authority under Article IV of the Caracas Convention to determine the nature of the offense is open to ICJ scrutiny. As our analysis underscores, any debate must include consideration of the preparatory works, where Latin American states aimed to ensure the definitive nature of the decisions made by the asylum-granting state.

We feel compelled to conclude by echoing one final observation made by Judge Álvarez in his dissent in the Asylum case: ‘The Latin American environment is very different, in matters of asylum, from the European environment’. It is therefore crucial that the non-Latin American lawyers and judges who are shaping and will decide this case strive to understand the historical and present role of diplomatic asylum in the region.

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José Alves says

May 1, 2024

Excellent post! On diplomatic asylum, I would just add AO-25/18 of the Inter-American Court, requested by Ecuador, on the recognition of asylum as a human right (including when granted in legations).

Nicolas Boeglin says

May 1, 2024

Dear Professors Quintana and Uriburu

Many thanks for your very complete post.

It is interesting to not that in 2012, with Julian Assange in its Embassy in London, Ecuador obtained from an Extraordinary meeting of MFA at OAS, a resolution adopted on August 24 at OAS by consensus:

https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-67

It must be noted that, for reasons hard to understand, Canada and US delegates decided no to support fully the text (Note 1 and 2 at the very end of the link).

May I refer you to an old note of 2012 in which (Document 1), I included the draft proposed by Ecuador itself to OAS Extraordinary Meeting of MFA of August 2012.

https://derechointernacionalcr.blogspot.com/2012/08/julian-assange-y-el-asilo-diplomatico.html

All the legal arguments of México to be found since April 5, 2024 correspond exactly to Ecuador´s legal position in July/August 2012.

"Cosas que a veces pasan en la vida".

In particular when Ecuador included in August 2012 a reference to jus cogens:

""Es innegable que los Estados, al haber contraído en tan numerosos y sustantivos instrumentos internacionales -muchos de ellos jurídicamente vinculantes- la obligación de brindar protección o asilo a las personas perseguidas por motivos políticos, han expresado su voluntad de establecer una institución jurídica de protección de los derechos humanos y de las libertades fundamentales, fundada en una práctica generalmente aceptada como derecho, lo que atribuye a dichas obligaciones un carácter imperativo, erga omnes que, por estar vinculadas al respeto, protección y desarrollo progresivo de los derechos humanos y libertades fundamentales, forman parte del ius cogens"

Source:

https://www.iade.org.ar/noticias/declaracion-de-ecuador-sobre-la-solicitud-de-asilo-de-julian-assange

Yours sincerely

Nicolas Boeglin

Dylan Jesse Andrian says

May 1, 2024

Thank you for the enlightening Latin American perspective you have provided on this case! If you don’t mind, I was wondering if you could clarify the following points?

Firstly, on the relationship between diplomatic asylum and the principle of non-intervention: are you suggesting that diplomatic asylum is deferential to the principle of sovereignty because of the extraterritorial character of the diplomatic mission in which asylum is granted?
My understanding of the current state of international law is that diplomatic missions are still fully considered the territory of the host State over which sending States enjoy certain privileges but only with the consent of the host State. (The idea that a diplomatic mission constitutes extraterritorial territory was a long-held misconception likely dispelled by the Asylum and Tehran Hostages judgment. I am uncertain however if this understanding has been reversed in any way.)

Secondly, I hope I do not misrepresent your arguments, but you seem to cite Judge Alvarez to suggest that “the aim of revolutionary movements” should have an influence on the the customary rules on intervention and asylum. I wonder if this is tenable, given that the actions of revolutionary movements are probably the antithesis of State practice. Even if it could be suggested that a revolutionary-movement-turned-government found a policy of diplomatic asylum to be desirable during its rise to power, would it really maintain that view once it had seized power and subsequently had to fight off its own onslaught of political insurgents? And even if this were the case, why didn’t Judge Alvarez directly cite that State practice?

Thirdly, on the issue of Article IV of the Caracas Convention: In the practice of international tribunals, the implementation of self-judging clauses are usually still subject to a good faith review. Is it your view that the unique circumstances surrounding the drafting of the Caracas Convention would still make any determination adopted under Article IV “definitive” (to use Fenwick’s language) and therefore exempt from review? And if you believe it should still be subject to a good faith review, what would “definitive” mean?

Thanks in advance!