The Glas Case: Diplomatic Asylum Returns to the ICJ?

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All opinions expressed in this blog post are the author’s own and do not necessarily reflect the views of any organization.

On 5 April 2024, in the middle of the night, law enforcement agents of the Republic of Ecuador broke into the Mexican Embassy in Quito and apprehended Jorge David Glas Espinel, former Vice President of Ecuador. Glas had been sentenced to six years imprisonment and, when faced with new criminal proceedings, sought asylum in the Mexican diplomatic mission, which was granted pending the conferral of territorial asylum in Mexico. In its public statement following the raid, Ecuador described the granting of diplomatic asylum to Glas as an abuse of privileges and immunities, entitling it to proceed to the apprehension of the asylee.

The raid on the Embassy is the culmination of escalating tensions between Ecuador and Mexico, which started over comments made by the Mexican Government regarding Ecuador’s elections, leading to the Mexican Ambassador in Quito being declared persona non grata and expelled. In response to the Embassy raid, Mexico has announced the breaking off of diplomatic relations with Ecuador and signalled its intention to bring the dispute to the International Court of Justice (ICJ). The purpose of this blog post is to identify possible legal issues arising from such proceedings.

Jurisdiction

Should Mexico’s threat of litigation materialize, it will likely claim violation of the 1961 Vienna Convention on Diplomatic Relations (VCDR) or the 1954 Caracas Convention on Diplomatic Asylum (Caracas Convention). The first hurdle that Mexico will face in bringing such claims will be the establishment of jurisdiction. Indeed, neither the Caracas Convention or the VCDR contain compromissory clauses providing for ICJ jurisdiction. While Ecuador is party to the Optional Protocol to the VCDR on Compulsory Settlement of Disputes, Mexico is not. Moreover, while Mexico has lodged a declaration accepting the ICJ’s compulsory jurisdiction under Article 36(2) of the ICJ Statute, Ecuador has not.

Mexico’s best option for bringing such an international claim is the 1948 American Treaty on Pacific Settlement, also called the Pact of Bogotá, which contains a compromissory clause in favor of ICJ jurisdiction in Article XXXI. This provision covers both the VCDR and the Caracas Convention, since it encompasses disputes concerning “the interpretation of a treaty”, “any question of international law”, and “the existence of any fact which, if established, would constitute the breach of an international obligation”. Both Mexico and Ecuador are parties to the Pact (ratifications made on 23 November 1948 and 3 March 2008, respectively).

To challenge the ICJ’s jurisdiction over the incident, Ecuador could theoretically object in two ways. First, it could invoke its reservation to the Pact of Bogotá in respect of “every provision that contradicts or is not in harmony with the principles proclaimed by or the stipulations contained in the Charter of the United Nations, the Charter of the Organization of American States, or the Constitution of the Republic of Ecuador.” This argument is unlikely to have any effect on Mexico’s claim, since the peaceful settlement of disputes before the ICJ would be compatible with all three instruments (cf. Articles 33, 92 of the UN Charter, Article 3(i) of the OAS Charter and Article 416(2) of the Ecuadorian Constitution).

Second, Ecuador could argue that the dispute in question falls within its domestic jurisdiction. This exception is foreseen in Article V of the Pact of Bogotá, which provides that the peaceful procedures regulated therein “may not be applied to matters which, by their nature, are within the domestic jurisdiction of the State”. (This would be unrelated to Mexico’s own domestic jurisdiction reservation to its Optional Clause declaration, which unlike Article V of the Pact of Bogotá, appears to be self-judging). This argument is likely to fail for two reasons. Firstly, since the dispute involves questions of international law, including the performance of at least one international treaty (on which both parties have relied), it will be difficult for Ecuador to convince the ICJ that this is a domestic issue (see Interhandel, p. 25; Nationality Decrees Advisory Opinion (PCIJ), p. 24). Secondly, under Article V of the Pact of Bogotá, any dispute regarding whether a matter is domestic or international is to be resolved by the ICJ itself “at the request of any of the parties”.

The other exception to the Pact’s procedures (Article VI) is manifestly inapplicable in this case. Not only does Ecuador have a reservation regarding this provision, but no agreement has been reached by the parties regarding the merits. The breaking off of diplomatic relations between the two countries, resulting from the Embassy raid, further confirms the inapplicability of this provision.

Thus, it is possible to conclude that Mexico will be able to establish the ICJ’s jurisdiction in this case. Ecuador cannot prevent this by withdrawing from the Pact of Bogotá, since such action would require advance notice of one year and it would not prejudice pending processes, as per Article LVI.

Breach of inviolability

Mexico’s principal complaint will likely be the raid on its Embassy in Quito, after it refused to deliver Jorge Glas to Ecuador. Regardless of whether the granting of asylum to Jorge Glas was irregular, it is to be expected that the ICJ will find this raid incompatible with the VCDR, in line with its Tehran Hostages precedent. Indeed, Article 22 of the VCDR guarantees the inviolability of Mexico’s Embassy premises. This obligation is not qualified by any exceptions applicable in this case, as any entry by the territorial authorities, even to pursue a fugitive, would require the consent of the diplomatic mission (cf. Denza, p. 123). Moreover, Mexico has protested the mistreatment of its Embassy personnel, relevant under Article 29 of the VCDR, which obligates Ecuador to treat diplomatic agents with due respect, preventing “any attack on [their] person, freedom or dignity”.

Another relevant consideration is that these actions would still be unlawful under the VCDR even if it could be established that Mexico abused the privileges and immunities of the mission by granting asylum to Jorge Glas. Following the ICJ’s reasoning in the Tehran Hostages case (para. 86), the law of diplomacy is a self-contained regime; it admits of no countermeasures that could affect the inviolability of the diplomatic mission. The only remedies available to Ecuador would have been declaring the relevant agents personae non gratae (which it did in respect of the Mexican Ambassador) or breaking off diplomatic relations with Mexico (Tehran Hostages, para. 85). The arguments raised by Ecuador in its public statement following the raid, in which it relied upon the alleged non-international armed conflict ongoing in that country, are also untenable. As highlighted by the ICJ in the same case, the rules of inviolability are so fundamental that “even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State” (para. 86).

The reactions in Latin America are also relevant. Inter alia, Nicaragua broke off its diplomatic relations with Ecuador citing a breach of international law and the “conventions that govern the civilized relations between the States and Governments of the world”. Guatemala denounced a flagrant violation of the VCDR. Argentina expressed the same view and also denounced a breach of the Caracas Convention. Honduras condemned the raid and called to a meeting of the Troika of the Community of Latin American and Caribbean States (CELAC). Colombia claimed that “the Vienna Convention [on Diplomatic Relations] and Mexico’s sovereignty in Ecuador have been breached as a result of the raid”. Chile also declared a violation of Mexico’s sovereignty and expressed its solidarity. The Organization of American States (OAS) also lamented Ecuador’s actions as incompatible with international law, including the VCDR and the conventions regulating asylum, and called for a meeting of the Permanent Council to address the matter.

Ecuador is likely to find itself in a rather complicated position here. Its arguments in this regard are contradicted by its own experience when granting asylum to Julian Assange in its London Embassy. Famously, in 2012, the United Kingdom authorities warned Ecuador that the use of its mission premises to harbor Assange were incompatible with international law and that it could take action to apprehend Assange while still at the Ecuadorian Embassy based on its Diplomatic and Consular Premises Act of 1987. Ecuador responded with “deep shock”, describing the possibility of non-consensual incursion as an “attack on our sovereignty”. Crucially, Ecuador cited the threat of entry without consent as “unbecoming of a democratic, civilized and law-abiding State”, “a hostile and untolerable act”, “a blatant disregard of the Vienna Convention on Diplomatic Relations and of the rules of international law of the past four centuries”, and a “dangerous precedent because it would open the door to the violation of embassies as a declared sovereign space”.

Granting of diplomatic asylum

Over the course of this process, Ecuador could bring a counterclaim against Mexico alleging a breach of international law due to the granting of diplomatic asylum to Jorge Glas. As far as the requirements under Article 80(1) of the Rules of Court go, the claim clearly falls within Article XXXI of the Pact of Bogotá and, since the granting of asylum was the reason for the Embassy raid, the counterclaim would be directly connected to the substance of Mexico’s allegation.

The question of the regularity of the granting of asylum is not new for the ICJ, which dealt with the issue in the Asylum and Haya de la Torre cases. As found by the ICJ in the first case, “[a] decision to grant diplomatic asylum involves a derogation from the sovereignty of [the territorial 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 individual case” (p. 275). Thankfully, it will not be necessary here to delve into the complex question whether customary international law confers on States a right to grant diplomatic asylum. Rather, the proper legal basis is the Caracas Convention, applicable between Mexico and Ecuador (ratifications made on 25 January 1957 and 20 March 1955, respectively, with no reservations). The key question is then whether the asylum was in accordance with that treaty, and what consequences arise from it.

Under Article I of the Caracas Convention, asylum granted in Embassies (as a kind of legation) must be respected by the territorial State, here Ecuador, if conferred in accordance with the Convention. When seeking Mexico’s protection, Glas cited political persecution by Ecuador’s attorney general. The reasons for the claims of persecution are not quite clear from the public reporting on the case. If these reasons were not forthcoming, Mexico would have been under the obligation to ask Glas to leave the Embassy or turn him over to the territorial authorities, pursuant to Article III.

This was precisely Ecuador’s position before the raid, as declared by its foreign ministry in a social media statement. Ecuador described the granting of asylum in this case as wrongful, since Glas had been accused of common crimes after following the due process of law. It declared that the protection provided by the Embassy was at odds with Mexico’s obligations with, inter alia, the Caracas Convention, the 1933 Montevideo Convention on Political Asylum, the United Nations Convention against Corruption, the Inter-American Convention against Corruption and the VCDR. Thus, it refused Mexico’s demand for safeconduct.

The two central questions for the ICJ to resolve in this instance will be (a) whether the documentation substantiating Glas’s asylum claim justifies its conferral, or (b) to what extent Mexico’s right to determine the nature of the offense under Article IV of the Caracas Convention is subject to ICJ review. Following the ICJ’s reasoning in Djibouti v. France (para. 145), this unilateral right must be exercised in good faith, which requires that the reasons for the granting of asylum do not contradict Articles II-VII of the Caracas Convention. The ICJ would be well within its powers to review whether this is the case, as it did in the Asylum case (pp. 284-287). Indeed the substance of the Court’s analysis would need to be focused on whether the conferral of asylum to Jorge Glas was based on a credible fear of arbitrary action on the part of Ecuador or if it opposed the regular operation of criminal justice. Some factors to take into account would be prior practice under the Caracas Convention on conferring asylum to persons subject to prosecution by the Ecuadorian justice system, such as the María de los Ángeles Duarte incident involving Argentina; the interplay between the various proceedings (convictions and arrest warrants) against Glas and other former Ecuadorian civil servants; and the fact that Ecuador unlawfully raided the Mexican Embassy to enforce its criminal laws.

If the Court were to find that Glas had been lawfully prosecuted for a common offense and convicted by a regular tribunal, the asylum would be wrongful under Article III of the Convention, and the ICJ could declare that Mexico was under a duty to deliver Glas to Ecuador, as the latter requested. Conversely, if the asylum is found to be lawful, Mexico can argue that Ecuador was obligated to allow Jorge Glas to depart its territory, including by granting the necessary safeconduct and guarantees (Article XII of the Caracas Convention).  

Conclusion

It goes without saying that the protection of mission premises is a cornerstone rule of international law and an essential requirement for friendly relations between States. The actions complained of by Mexico are of utmost concern and it is improbable that Mexico will decide to walk back its public announcement of imminent ICJ proceedings. Thus, this case will provide the ICJ with an interesting opportunity to revisit its precedent on the granting of diplomatic asylum and the limits of the privileges and immunities of diplomatic missions.

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Comments

Nicolas Boeglin says

April 8, 2024

Dear Professor Hernández

Many thanks for your very complete post.

When you refer to OAS statement, it is in fact the OAS General Secretary´statement.

It is interesting to note that Mexico - for the moment - has not asked for an urgent Extraordinary Meeting of Ministry of Foreign Affairs at OAS.

In 2012, with Julian Assange in its Embassy in London, Ecuador obtained from such 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 Ecaudor 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 to Ecuador´s legal position in July/August 2012.

"Cosas que a veces pasan en la vida".

Yours sincerely

Nicolas Boeglin

Juan Antonio Yanez-Barnuevo Garcia says

April 12, 2024

The author merits commendation for a thorough and careful analysis of the issues involved in the Mexico-Ecuador diplomatic dispute and the prospects for ICJ litigation an this matter, in cirumstances that recall the old diplomatic asylum cases of the early 1950s between Colombia and Peru-
Of course, the post was written before Mexico submitted its application to the ICJ. Now that this application has been filed (see the ICJ website),including a request for provisional measures, it would be interesting to learn from Juan Pablo Hernández about his views on the matter.

Dylan Jesse Andrian says

May 17, 2024

A truly excellent and timely post. However, given the broadness of the topic, perhaps a few points can be elaborated upon further, such as the oft-touted supposed self-contained nature of diplomatic law, the utility of pleading a customary right to diplomatic asylum, and the standard of review for the self-judging clause in the Caracas Convention. In a companion piece to this one, I elaborate on these three points:

https://www.maastrichtstudentlawreview.com/post/throwing-stones-at-glas-houses-observations-on-the-law-of-diplomatic-missions-and-asylum-applicab