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HUMAN RIGHTS QUARTERLY
Diplomatic Asylum as a Human Right:
The Case of the Durban Six
Susanne Riveles
INTRODUCTION
The Durban Six
On the eve of elections in South Africa for the "Coloured" assembly on 21
August 1984, South African security police arrested hundreds of people
throughout the country. The arrests, aimed at political leaders opposed to
the government plan to redistribute power, were made amidst considerable
police brutality.1 Among those detained were leading members of the United
Democratic Front (UDF) and the National Forum (NF), two coalitions formed
in 1983 and comprised of trade unions, community groups, and other political organizations. The coalitions opposed the changes in the constitution
introduced by the government and campaigned for a boycott of the elections.
Seven of the detainees, all of whom were arrested at Durban and held
at the Pietermaritzburg Prison, later challenged their detention before the
Supreme Court on 7 September 1984. In an unprecedented judgment, the
Court ordered their release on the ground that the Minister of Law and Order
had failed to justify their incarceration. The Court found that Minister Louis
Le Grange's claim that the detainees had been trying to "create a revolutionary climate" was insufficient to permit their arrest under Section 28 of
2
the 1982 Security Act.
The seven were released, but within hours the minister signed new
detention orders. The police began searching for the seven former detainees,
but they had already gone into hiding. On 13 September 1984, five surfaced
1. Beresford, Swoop on SA Boycott Leaders, Guardian (London), 22 Aug. 1984. The government's plan transferred a subordinate share of power to people of mixed race and to Indians
while excluding the black African majority.
2. Keatley & Lawrence, Britain is Pressed on Durban Dissidents, Guardian (London), 22 Sept.
1984.
Human Rights Quarterly 11 (1989) 139-159 o 1989 by The Johns Hopkins University Press
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Vol. I11
at the British Consulate in Durban seeking refuge. They were: Archie
Gumede, aged 71, President of UDF; Mewa Ramgobin, aged 50, Treasurer
of the Natal Indian Congress (NIC); George Sawpershad, lawyer, President
of NIC; M.J. Naidoo, lawyer, Vice President of NIC; and Billy Naier, aged
54, leading trade unionist.'
Two of the original seven, Sam Kikine and Kadar Hassim, remained in
hiding until 17 September and did not seek refuge with the others. But a
sixth person, Davades Paul Davids, a lawyer and leading member of the
"Release Mandela" Committee who had escaped arrest in the August election
crackdown, joined the five in the British Consulate. These political leaders,
known as the Durban Six, sought refuge in the Consulate as a last desperate
act. All had been detained several times previously for political activities.
Though all six were permitted to remain in the Consulate, the British government made it clear that it would not intervene on their behalf with South
African authorities. A lawyer representing the Durban Six travelled to London
but was unable to meet with high-ranking British officials. The lawyer instead
was received by lower ranking bureaucrats.
The British government informed the Six that while it would not force
them out of the Consulate, British officials could do nothing more for them.
Further, because their presence was already proving disruptive to the work4
of the Consulate, the Six were told not to count on an indefinite stay.
However, when it became evident that Britain would not evict them, the
South African government revoked a previous promise to extradite to Britain
four South Africans facing arms smuggling charges in Britain.'
The Durban Six then requested sanctuary in the US Embassy in Pretoria
as well as in the embassies of France, the Netherlands, and the Federal
Republic of Germany. The United States, together with these three Western
countries, denied this request.6 The refusal to grant temporary sanctuary and
the unwillingness to intervene with the South African government to work
out a solution agreeable to all parties resulted in the "voluntary" departure
of three of the fugitives. George Sawpershad, M.J. Naidoo, and Mewa Ramgobin left the building on 6 October and were immediately rearrested in
front of the British Consulate in Durban.7 The decision of the remaining
three to give themselves up about three weeks later resulted in the prompt
arrest of Archie Gumede and Davades Paul Davids. Only Billy Naier was
not redetained.
The five rearrested men were charged with high treason and incitement
to overthrow the government under Section 54 of the Internal Security Act,
3. Hornsby & Kennedy, Fugitives Shelter in British Consulate, The Times (London), 14 Sept.
1984.
4. Fugitives Seek Britain's Help, Daily Telegraph (London), 14 Sept. 1984.
5. Leigh & Sparks, South Africans Broke Word, Observer (London), 30 Sept. 1984.
6. Durban Six, Guardian (London), 2 Oct. 1984.
7. Sparks, Three of Durban Six Arrested, Observer (London), 7 Oct. 1984.
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Diplomatic Asylum
which covered terrorism, subversion, and sabotage.8 Ordinarily, in a treason
trial the death penalty accompanies only those offenses that cause loss of
life. In recent years, however, at least five people have been hung in South
Africa for politically motivated offenses. The first such case since the early
1960s was the hanging of Solomon Mahlangu on 6 April 1979. In the 1983
treason trial of three Soweto students, Mosololi, Mogoerane, and Mataung,
the court disregarded the defendants' testimony about their torture during
interrogation and allegations that they were forced to sign confessions. Mataung, who was shot in the hip when arrested, stated that he had been denied
medical treatment for two days during questioning. The court sentenced the
defendants to death despite these abuses and despite international appeals
for clemency. All three were hung on 9 June 1983. A fifth political prisoner
and victim of the death penalty was Malisela Benjamin Moloise, who was
hung in October 1985. 9 It would not have been without precedent, therefore,
had the trial of the Durban Six resulted in the death penalty. In addition,
the lengthy show trial expected to take place would have kept the accused
in incommunicado detention for the duration of the trial.
Almost a year passed before the actual trial of Mewa Ramgobin and
fifteen other UDF and South African Allied Workers Union (SAAWU) leaders
began in the Supreme Court on 21 October 1985. All the accused pled not
guilty to the charge of high treason and to alternative charges of terrorism
and support of the aims of an illegal organization. On 9 December, however,
charges were withdrawn against all the accused except the four SAAWU
leaders, Thozamile Gqweta, Zisa Njikelana, Isaac Ngcobo, and Sam Kikine.
Six months later, on 23 June 1986, these four Union leaders were acquitted
on all charges. 10 While the defendants' acquittal meant that they were no
longer menaced with charges which could carry the death penalty, the
defendants were now vulnerable to detention under the emergency regulations. Since their release, several of the twelve former UDF defendants
have been redetained under the emergency laws."
The Questions Raised
The refusal by the embassies of France, the Federal Republic of Germany,
the United States, and the Netherlands to grant sanctuary to the Durban Six
8. Treason Charges Against Durban Pair, The Times (London), 14 Dec. 1984.
9. Amnesty International, Amnesty International Report 1986 88-93 (1986); Amnesty International, Amnesty International Report 1985 90-94 (1985); Amnesty International, Amnesty
International Report 1984 92-96 (1984).
10. International Aid and Defense Fund, Political Trials Completed, 66 Focus (Sept1Oct. 1986).
11. South Africa has experienced three states of emergency. Under renewed emergency measures, in effect since 21 July 1986, arrests and shootings of people, including children in
their early teens, are daily features in South Africa. The number of detained people in
1986 reached an unprecedented level. The International Defense and Aid Fund (IDAF)
estimated that there were 20,000 detainees in South Africa during October 1986. International Defense and Aid Fund, Detentions, 68 Focus (Jan./Feb. 1986).
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raises a number of current, complex, and challenging legal questions which
this paper seeks to address. 2 This paper will first examine the history of
diplomatic asylum and asylum practice as it has developed in Latin America.
The paper will then address the key issue in this controversy, i.e., the international law obligations of the sending state, e.g., Britain or France, and
the receiving state, e.g., South Africa, in relation to the person seeking refuge.
In addressing the legality of diplomatic asylum under current international
law this paper will consider three sets of laws necessary to establish a legal
obligation to grant asylum: first, the relationship between the sending states
and the receiving states as governed by the 1961 Vienna Convention on
Diplomatic Relations; 13 second, the question of the status of a political asylee
under the 1951 Convention Relating to the Status of Refugees and its 1967
update, the Protocol Relating to the Status of Refugees;'" and third, international human rights law governing the illegality of apartheid as derived
from the provisions of the UN Charter,' s applicable treaties and customary
6
law evolved from the Universal Declaration of Human Rights,' the human
18
rights covenants,17 certain aspects of international conventions, the deci-
12. That these issues are current is illustrated by the fact that the United States now finds itself
in a situation similar to that faced by Britain in the case of the Durban Six. On 13 September
1988, three antiapartheid leaders being held under emergency detention laws escaped
from a hospital where they were receiving physical therapy and took refuge in the US
Consulate in Johannesburg. The United States, according to its policy, did not offer the
escapees, Murphy Morobe, UDF acting publicity secretary; Mohammed Valli Moosa, UDF
acting national general secretary; and Vusumuzi Philip Khanyile, chairman of the National
Education Crisis Committee; asylum, but an embassy official stated that the men would
not be asked to leave against their will. Pretoria, meanwhile, stated that it would not
redetain the men should they decide to leave. See Battersby, 3 Apartheid Foes Escape to
U.S. Site in Johannesburg, New York Times, 14 Sept. 1988; Pretoria Will Not Arrest 3 at
U.S. Consulate, New York Times, 15 Sept. 1988. On 22 September 1988, a fourth escapee
from the hospital, Clifford Ngcobo, a member of the Soweto Civic Association, joined the
three in the US Consulate in Johannesburg. The four have stated that they intend to remain
in the US Consulate until all other South African detainees are freed. See Battersby, 22
Held in New Pretoria Crackdown, New York Times, 23 Sept. 1988.
13. Vienna Convention on Diplomatic Relations, adopted 18 Apr. 1961, entered into force 13
Dec. 1972, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95.
14. Convention Relating to the Status of Refugees, adopted 28 July 1951, entered into force
21 Apr. 1954, 189 U.N.T.S. 137, amended Protocol Relating to the Status of Refugees,
opened for signature 31 Jan. 1967, entered into force 4 Oct. 1967, 606 U.N.T.S. 268. The
Convention of 1951 was created to address the refugee situation deriving from the events
occurring in Europe before January 1951; the 1967 Protocol abolished time and geographic
limitations, but otherwise adopted the Convention almost verbatim.
15. United Nations Charter, adopted 26 June 1945, entered into force 24 Oct. 1945, 59 Stat.
1031, T.T. No. 933, reprinted in 1946-47 United Nations Yearbook 1181.
16. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217, 3 U.N.
GAOR at 71, U.N. Doc. A/810 (1948).
17. International Covenant on Civil and Political Rights, opened for signature 19 Dec. 1966,
entered into force 23 Mar. 1976, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 52,
U.N. Doc. A/6316 (1966); International Covenant on Economic, Social and Cultural Rights,
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Diplomatic Asylum
sions of the International Court of Justice in the Hague, and some specific
UN resolutions. Finally, this paper will consider previous customary practices
in international or regional law, specifically grants of asylum outside of Latin
America, where sending states have granted temporary asylum in cases of
extreme emergency.
If the existence of a duty to grant asylum could be established, it would
indeed represent a far more direct involvement of human rights law in the
decision-making process of sending states. Human rights would become a
major consideration in foreign policy decisions.
DIPLOMATIC ASYLUM-LEGALITY UNDER CURRENT LAW
Definition-History of an Evolving Concept
Diplomatic asylum can be defined as a grant of refuge by a sending state
in its legation within the territory of the receiving state, which is the asylum
seeker's home state or state of residence. The concept of giving shelter to a
persecuted person goes back to ancient times. 19 The notion of a "sacred
place" where a refugee could not be apprehended was well established and
based on the belief that the wrath of God would fall upon the violator of
sanctuary. Provision of asylum can also be found in the ancient civilizations
of Egypt, Greece, Rome, and India. The institution of asylum was later wellembedded in the biblical law of early Jewish kingdoms. After the reign of
Solomon, "cities of refuge" were established where temporary asylum was
granted until safe conduct for the refugee was worked out.
The notion of temporary shelter for the "fugitive from vengeance" until
he could receive a fair judgment was also recognized throughout the early
centuries of the Christian era. For example, in 681 A.D. the Council of Toledo
for the first time set spacial limits, thirty-five steps around the church, in
which the asylum seeker would be safe.
The use of sanctuary by churches was as frequent and as powerful as
the church institutions of the time. With the beginning of secularization,
religious asylum lost its meaning. The basis of asylum was then found in
the sovereignty of the city or state. The notion of refuge and territorial asylum
opened for signature 19 Dec. 1966, entered into force 3 Jan. 1976, G.A. Res. 2200A, 21
U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A16316 (1966).
18. See, e.g., European Convention for the Protection of Human Rights and Fundamental
Freedoms, signed4 Nov. 1950, entered into force 3 Sept. 1953, 213 U.N.T.S. 22; Butcher,
Legal Consequences for States of the Illegality of Apartheid, 8 Hum. Rts. Q. 404, 406
(1986).
19. For further details of the fascinating early history of the grant of asylum, see S. Prakash
Sinha, Asylum and International Law (1971) and A. Grahl-Madsen, The Status of Refugees
in International Law (1972).
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took various forms over the centuries. While the history of this evolution is
fascinating, this paper will address only major conceptual changes over the
centuries.
Following the religious wars of the Reformation era, large religious
groups found territorial asylum in countries where their religious beliefs were
represented by a large minority. Well known in this saga is the resettlement
of thousands of French Huguenots in Prussia following the repeal of the
Edict of Nantes, which ended all semblance of legal protection for Protestants
in France. With the issuance of the Edict of Potsdam the Prussian king
encouraged the Huguenots to settle in Prussia; the Netherlands, England,
and other European countries followed, accommodating over 400,000 Protestants.
In the late seventeenth century, the emphasis in the practice of asylum
shifted toward the extradition of "common criminals." The right of states to
grant asylum became linked to the notion of extradition. As S.Prakash Sinha
points out, it was a novel idea in penal law that states should, in their own
interest, punish the crime left unpunished and reciprocally exchange criminals for the purpose of bringing them to trial. 20 The practice of extradition
for common criminals replaced the sanctity of asylum.
The emphasis by states in the seventeenth century on the suppression
of crime later shifted, however, toward attention to the victims of religious
and political intolerance. In the eighteenth century contemporary thinking
shifted back to affirming asylum, though solely for these victims of intolerance. This sense of justice was expressed in the idea that those oppressed
by arbitrary power or tyranny had rights. When the French Revolution proclaimed the right of insurrection against acorrupt government, political exiles
came to be regarded as inviolable.
Nevertheless, the extradition of common criminals was considered
unobjectionable. Itwas the political refugee to whom safety from oppression
was granted. The French Constitution provided asylum to foreigners banished
from their homelands for the cause of liberty. Laws and treaties began to
distinguish sharply between common criminals and political offenders. In
the nineteenth century nonextradition for political crimes became a customary practice and was recognized in government circulars and declarations
from France, Britain, and other countries. Bythe end of the nineteenth century
the exemption of political offenders from extradition was rarely contested.
The origin of diplomatic asylum coincides with the organization of
permanent diplomacy, which did not occur until the fifteenth century, when
the Venetian Republic first sent permanent ambassadors to foreign courts.
Like political asylum, diplomatic asylum in its early stage was granted to
criminal offenders as well as to persons persecuted for political or religious
20. See Sinha, supra note 19, at 18.
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reasons. Over the years, however, the granting of diplomatic asylum for
political offenders prevailed to the exclusion of criminal offenders. In nineteenth century Europe the granting of diplomatic asylum to political offenders
was generally observed. Then, in the twentieth century, the practice disappeared in Europe with a few exceptions, such as Spain and Portugal.
From this brief overview of the evolving concept of the proper recipient
of safe refuge, two issues emerge as crucial to the modern understanding of
political asylum and its subcategory of diplomatic asylum. These issues are
the distinction between common criminal offenders and political offenders,
and the concept of nonrefoulement. 21 Closely attached to the first issue of
who is eligible for asylum is the question of who determines whether the
asylee is a political refugee or a common criminal.
It is important to remember that the approach of this paper is not based
on the fiction of the extraterritoriality of the mission. Rather, the approach
derives from the concept of diplomatic immunity, particularly the immunity
of the ambassador as a person and the immunity of the premises, and from
the rights and duties which flow from the historic principle that temporary
safe haven should be granted to a fugitive suffering from political persecution
and an immediate threat to life and limb.
Asylum Practice in Latin America
In Latin American countries, the granting of asylum, territorial and extraterritorial, has a long tradition. Frequent political upheavals and government
turnovers have been accompanied by a general respect for the granting of
asylum. 22 Often, a government official who had granted asylum to a persecuted political leader of a neighboring country later found himself in a
similar position and needed to call on the neighboring state for protection.
This common recognition of a principle of granting political asylum not only
has evolved as a general practice in Latin America, but also has been recognized in conventions and treaties dated as early as 1889, when the Treaty
on International Penal Law was signed in Montevideo. 23 The Treaty's Title
II expressed for the first time the principles involved in the practice of asylum,
and specifically mentioned diplomatic asylum.
Successive agreements have developed and refined the concepts of
territorial and diplomatic asylum, extending the latter to embassies, legations,
21. See text and accompanying notes 53-54 infra for a discussion of the concept of nonrefoulement.
22. See Grahl-Madsen, supra note 19, at 57.
23. Montevideo Treaty on International Penal Law, 23 Jan. 1889, 34 Inter-American Treaties
and Conventions on Asylum and Extradition, OAS Official Records OEA/Sre.X/1 (English).
Relevant provisions are quoted in 6 Whiteman, Digest of International Law, at 431 (1968).
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warships, military camps, and military aircraft. While the early conventions
and treaties made allowance for flexible interpretation, subsequent developments must be seen as attempts to narrow the interpretation.
Five conditions have been central to the granting of diplomatic asylum
in Latin America:
1. Asylum is inviolable only for those accused of political crimes.
2. A person who has committed a criminal act will not be granted asylum, but
will be turned over to the territorial state in accordance with the rules of extradition.
3. The chief of the legation in which political asylum is sought is obliged to
notify the ministry of the pursuing state and to request safe conduct beyond the
national territorial limits.
4. The offering state decides the offense.
5. The asylee is not allowed to perform acts contrary to the public peace.
The crucial distinction between the treatment of political offenses and
common crimes was made in Title II of the 1889 Montevideo Treaty:
Article XV. No criminal taking refuge within the territory of a State may be turned
over to the authorities of another except in accordance with the rules covering
extradition.
Article XVI. Asylum is inviolable for those sought for political crimes, but the
nation giving refuge shall have the duty of prohibiting exiles from carrying out
within its territory acts which may put in danger the public peace of the nation
against which they have committed an offense.
Article XVII. A person who has committed an ordinary crime and who obtains
asylum in a legation shall be delivered by the chief thereof to the local authorities,
upon request of the Ministry of Foreign Relations, when it has not been done
spontaneously.
Such asylum shall be respected in cases of persons sought for political crimes,
but the chief of the legation is obliged to give notice of the fact immediately to
the government of the State to which he is accredited, [and] the latter may
require that the person sought be transported beyond the national territorial
limits within the shortest possible time.
The chief of the legation, in turn, may demand the necessary guarantees in order
may leave the national territory, his personal inviolability being
that the refugee
24
respected .
The concept of a political offense was at the core of the agreement. This
was expressed in the title of a conference on international law fifty years
24. Montevideo Treaty on International Penal Law, supra note 23, title II.
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Diplomatic Asylum
later in Montevideo, called "On Political Asylum." 2 During this fifty-year
period, the basic conditions originally set at Montevideo had become more
specific. For example, the Convention on Asylum signed at Havana in 1928
changed the language from "asylum shall be granted..." to a more assuming
tone. The language of the Havana Convention treats the granting of asylum
to political offenders as a fact and details specific provisions:
Article 2. Asylum granted to political offenders in legations, warships, military
camps, or military aircraft, shall be respected to the extent in which allowed,
as a right or through humanitarian toleration, by the usages, the conventions,
or the laws of the country in which granted and in accordance with the following
provisions:
1. Asylum may not be granted except in urgent cases and for the period of time
strictly indispensable26for the person who has sought asylum to ensure in some
other way his safety.
The 1933 Montevideo Convention clarified the roles of the receiving
and the sending states.27 Article 2 provides, "The judgement of political
delinquency concerns the state which offers asylum." 28 The state offering
asylum, i.e., the sending state, must take this judgment, since it is the authority
of the pursuing, i.e., receiving, state which the asylee seeks to escape.
Article 3 of the 1933 Montevideo Convention provides for political
consistency in the legal obligations of the states:
Political asylum as an institution of humanitarian character, is not subject to
reciprocity. Any man may resort to its protection, whatever his nationality,
without prejudice to the obligations accepted by the State to which he belongs;
however the States that do not recognize political asylum, except with limitations
only in the manner and
and peculiarities can exercise it in foreign countries
29
within the limits recognized by said countries.
The US delegation to this convention did not sign the 1933 document,
because the United States did not recognize the doctrine of asylum as part
30
of international law.
Grahl-Madsen describes these conventions following the first Montevideo Article II of the Treaty on International Penal Law as an elaboration
25. Montevideo Treaty on Political Asylum and Refuge, 4 Aug. 1939, reprinted in VIII Hudson,
InternationalLegislation 404 (1949); 6 Whiteman, supra note 23, at 432-34.
26. Havana Convention on Asylum, 20 Feb. 1928, 132 L.N.T.S. 323,reprinted in 6 Whiteman,
supra note 23, at 434-35.
27. Montevideo Convention on Political Asylum, 26 Dec. 1933, 37 Pan-Am. T.S. 48, reprinted
in VI Hudson, supra note 25, at 607; 6 Whiteman, supra note 23, at 435-36.
28. Id. at art. 2.
29. Id. at art. 3.
30. See 6 Whiteman, supra note 23, at 436. The US delegation to the 1928 Havana Convention
signed the Convention, but entered an explicit reservation refusing to recognize the doctrine
of asylum. Id. at 435.
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on the notion of diplomatic asylum." Numerous diplomatic incidents occurring in those years broadened the notion of what was actually involved
in the granting of asylum. 3 2 The complications in the relationships between
the receiving and sending states were manifold and included questions of
third party involvement; questions of expediency in getting the asylum seeker
out of the receiving state; the question of a political asylum seeker who had
formerly committed a criminal offense; the question of bearing the cost of
support and transportation of the asylee while in the legation; and the question of what freedoms the asylee was entitled to while in the legation of the
sending country.
New problems evolved with the practical experience of many different
cases and circumstances. The Latin American countries tried to grapple with
evolving problems byfurther codifying conditions and provisions. In contrast,
there were not a large number of incidents in Europe and North America.
The European countries and the United States decided not to recognize
diplomatic asylum 33
other than on humanitarian grounds and then only on a
case-by-case basis.
One celebrated incident in Latin America resulted in a series of three
cases brought before the International Court of Justice.3 4 The three separate
judgments of the Court caused much confusion and created the need for
another convention.
The series of cases involved Colombia and Peru. 3 - On 3 October 1948,
Peru experienced a military rebellion which was suppressed the same day.
The next day the Peruvian president held the "American People's Revolutionary Alliance" and its leader, Dr. Victor Haya de la Torre, responsible for
the rebellion, charging them with the crime of military rebellion and arresting
members of the Alliance. On 4 November the military junta in power issued
a decree for court martial of the accused without appeal.
On 3 January 1949, Haya de la Torre sought asylum in the Colombian
Embassy in Lima. The next day the Colombian ambassador informed the
Peruvian minister of foreign affairs that Haya de la Torre had been given
asylum at the Colombian mission. The ambassador expressed the desire that
the asylee leave Peru as soon as possible and made a request for safe conduct.
The ambassador referred to the Asylum Convention signed by both countries
See Grahl-Madsen, supra note 19, at 57.
See Sinha, supra note 19, at 222-44 for a survey of incidents in Latin American states.
Id. at 211-17; see also 6 Whiteman, supra note 23, at 458.
The three cases are: Asylum (Colom. v. Peru) 1950 I.C.J. 266, reprinted in 6 Whiteman,
supra note 23, at 473-84; Request for Interpretation of the Judgment of November 20th,
1950, in the Asylum Case, 1950 I.CJ. 395, reprinted in 6 Whiteman, supra note 23, at
484; Haya de la Torre Case (Colom. v. Peru), 1951 I.C.J. 71, reprinted in 6 Whiteman,
supra note 23, at 485-86.
35. For a discussion of the circumstances of the cases and the judgments see 6 Whiteman,
supra note 23, at 473-88; Grahl-Madsen, supra note 19, at 66-68.
31.
32.
33.
34.
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in Havana in 1928. A few days later the Colombian ambassador sent the
Peruvian minister a note referring to the Montevideo Convention on Political
Asylum of 1933. He stated that according to the Montevideo Convention
Haya de la Torre was recognized as a "political refugee." The two countries
could not resolve the matter and decided to take the dispute before the
International Court of Justice.
Colombia filed an application with the Court in October 1949 affirming
its right to grant political asylum and asserting that Peru was obliged to
provide the necessary safeguards for the departure of the refugee. The Court
interpreted the provisions of the Havana Convention of 1928, which was
the only treaty Peru had signed. The Court's judgment of 20 November 1950
ruled that Colombia had no right to determine the nature of the offense the
refugee was accused of i.e., whether Haya de la Torre was a political refugee.
The Court also rejected the claim that the Peruvian3 6government was bound
to give Haya de la Torre free departure from Peru.
After the Court described in great detail its arguments not to affirm the
Colombia request, it also addressed its concern about the general uncertainty
of the law of diplomatic asylum. The Court's decision stated:
The facts brought to the knowledge of the Court disclose so much uncertainty
and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there
has been so much inconsistency in the rapid succession of conventions on
asylum, ratified by some States and rejected by others, and the practice has
been so much influenced by considerations of political expediency in the various
cases, that it is not possible to discern in all this any constant and uniform usage,
accepted as law, with regard to the alleged rule of unilateral and definitive
qualification of the offense.
The Court cannot therefore find that the Colombian Government has proved
the existence of such a custom. 7
Peru raised a counterclaim, but the Court could not find the Colombian
ambassador at fault in granting the asylum. The practical implications of this
judgment were difficult to ascertain and Colombia filed a second request
in the asylum
asking the Court to interpret the judgment of 20 November
38
case. The Court declared this request to be inadmissible.
A third case filed with the International Court of Justice concerned the
question of whether Colombia had to surrender Haya de la Torre to Peru,
and resulted in a final judgment in June 1951.39 The Court arrived at the
36. 6 Whiteman, supra note 23, at 476.
37. Asylum (Colum. v. Peru), 1950 IC.J. at 277, reprinted in 6 Whiteman, supra note 23, at
479.
38. Request for Interpretationof the Judgment of November 20th, 1950, in the Asylum Case,
reprintedin 6 Whiteman, supra note 23, at 484.
39. Haya de la Torre Case (Colom. v. Peru), 1951 I.Cj. 71, reprintedin 6 Whiteman, supra
note 23, at 485-86.
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opinion that the asylum must end but that Colombia was under no obligation
to surrender the refugee. The Court continued that it could not provide any
practical advice as to the various courses that might be followed with a view
to terminating the asylum "since by doing so it would depart from its judicial
functions."4 °
The Peruvian and Colombian governments, however, did reach an agreement after two years. Haya de la Torre was permitted to leave the Colombian
Embassy on 6 April 1954 to go to Mexico where he was granted political
41
asylum.
The Haya de la Torre case and the three International Court of Justice
decisions illustrate the extent of disagreement as to the meaning of diplomatic
asylum even among countries that recognize the doctrine. Its legality under
current international law is still not accepted. Nevertheless, there have been
incidents where countries that do not recognize diplomatic asylum have
granted it when it seemed politically appropriate.
In the aftermath of the Haya de la Torre case the desire to regulate basic
provisions for diplomatic asylum among the Latin American states gave birth
to the 1954 Convention on Diplomatic Asylum in Caracas. 42 Five years later,
the Inter-American Council of Jurists in Santiago revised the Caracas Con43
vention in the Draft of Protocol to the Convention on Diplomatic Asylum.
These two documents form the latest and most comprehensive international
instrument on diplomatic asylum.
CURRENT INTERNATIONAL LAW AND THE RESULTING OBLIGATIONS
The 1961 Vienna Convention is the principal instrument by which states
have agreed on the meaning of essential terms such as head of mission, the
functions of a diplomatic mission, the rules guiding accreditation, and the
principles of diplomatic immunity.44 The purpose of the Convention was to
define mutually binding criteria that would guide diplomatic relations between states and establish consent about criteria for permanent diplomatic
missions.
The articles of the Convention that are most important to diplomatic
asylum are those which limit the privileges of the inviolability of the mission
premises4- and the immunity of the mission representatives. 46 These privi40.
41.
42.
43.
Haya de /a Torre Case (Colom. v. Peru), reprinted in 6 Whiteman, supra note 23, at 486.
6 Whiteman, supra note 23, at 488.
Caracas Convention on Diplomatic Asylum, 28 Mar. 1954, 18 Pan-Am. T.S.
Santiago Draft of Protocol to the Convention on Diplomatic Asylum, 7 Sept. 1959, reprinted
in 1 Whiteman, at 163-65.
44. Vienna Convention on Diplomatic Relations, supra note 13.
45. Id. at art. 22, art. 30.
46. Id. at art. 29, art. 31.
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leges are limited by the laws of the receiving state, which the sending state
must recognize since it operates in foreign territory, and by the functions of
the mission as recognized by the Convention.4 7 International law, as codified
in the Vienna Convention, provides a common language for sending and
such as diplomatic immunity, that are
receiving states regarding concepts,
48
essential to diplomatic asylum.
International law addresses the question of the identity of a political
asylee under the 1951 Convention Relating to the Status of Refugees signed
at Geneva.49 Article A(2) accords refugee status to a person who:
[Oiwing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former national residence as
a result of such events is unable or, owning to such fear, is unwilling to return
to it.20
The definition clearly specifies that the reasons for according refugee status
are based on the asylee's well-founded fears of persecution in the country
of his nationality.
Three articles of the Geneva Convention offer substantial protection to
the asylum seeker. Article 31 provides that states "shall not impose penalties,
on account of their illegal entry or presence, on refugees, who come in
directly from a territory where their life or freedom was threatened . . .
provided they show good reason for their illegal entry or presence."-" Article
32 provides that the sending state "shall not expel a refugee lawfully in their
47. Id. Articles 41 and 43, as well as Article 31, address some of these limitations. Article
41(3) states, "The premises of the mission must not be used in any manner incompatible
with the functions of the mission as laid down in the present Convention or by other rules
of general international law or by any special agreements in force between the sending
and the receiving State."
48. South Africa is only a signatory to the 1961 Vienna Convention and has not, as of January
1986, ratified the document. The Vienna Convention on Diplomatic Relations can be
regarded as a codification of customary law and most countries adhere to its provisions,
including South Africa. The cases described further on in this article provide evidence of
such adherence to customary practice. In the case of the Durban Six, the government of
South Africa respected most of the rules regarding diplomatic relations. The ambiguity of
Britain in its response to the situation provided South Africa with the upper hand in the
situation.
49. Convention Relating to the Status of Refugees, supra note 14.
50. Id. at art. A(2). The 1951 Convention conferred its refugee status on those involved in
events occurring in Europe or elsewhere before January 1951. But it soon became clear
that this historically limited concept needed to be broadened to include large numbers of
displaced people and migration in other continents, particularly Africa and Asia. The 1967
Protocol Relating to the Status of Refugees did away with these historic and continental
limitations.
51. Convention Relating to the Status of Refugees, supra note 14, at art. 31.
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territory save on grounds of national security or public order."5 2 Most importantly, Article 33 stresses the principle of nonrefoulement s3 It prohibits
states from expelling or returning refugees to territories or frontiers where
their life or freedom would be endangered on account of race, religion,
nationality, membership in a particular social group, or political opinion.
Many refugees have been given effective protection under these provisions.
The nonrefoulement provision in particular has prevented the return of refugees to places where their persecution, torture, and imprisonment were
to be feared.
While these provisions were conceived with frontier-crossing refugees
in mind, nonrefoulement should also apply to the asylum seeker fleeing
from political persecution within his own country onto the premises of a
foreign mission. Similarly, such persons should be awarded at least a temporary stay to guarantee their safety. The principle of nonrefoulement can
now be considered a conventional international practice.
Inherent in nonrefoulement is the idea of a temporary stay until safe
conduct to a third country can be worked out. This idea is crucial to diplomatic asylum. There are numerous examples of missions having granted
such temporary haven on their premises to persons persecuted for political,
54
religious, racial, and other reasons.
Therefore, the source of an obligation upon states to offer safe haven
in their diplomatic mission to persons fleeing persecution in the receiving
country arguably flows from international law on refugees codified in the
Geneva Convention and Protocol.
Human rights law is the third variety of international law involved in
securing an obligation to afford diplomatic asylum. International law is
concerned both with protecting the rights of individuals in concrete cases
and with establishing a range of permissible responses by states engaged in
protecting the individual.
In deciding which international legal obligations are relevant beyond
the ones already discussed, consideration must be given to existing human
rights law. In particular, it must be determined whether human rights have
been violated according to the standards of international human rights law.
Thus, the safety of the fugitive is an essential consideration. Whether the
person seeking asylum faces torture, incommunicado detention, or the deprivation of due process and a fair trial on his return must be questioned. The
sending state must weigh whether equality before the law is likely in an
apartheid system where race is the primary determining factor in legislation.
The illegality of apartheid places the issues of the obligations and per52. Id. at art. 32.
53. Id. at art. 33.
54. See text and accompanying notes 80-82 infra for a discussion of several cases where
missions have granted such asylum.
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missible responses of states in a new perspective. s The obligations of the
sending sate under human rights law will depend on whether the human
rights violations occurring in the receiving state are recognized as violations
under international law. It must be determined whether there are violations
of the articles of the Universal Declaration of Human Rights recognizing the
right not to be subjected to torture or cruel, inhuman, or degrading treatment
or punishment, or of the right to equality before the law and protection from
discrimination."6 Article 1(3) of the UN Charter premises the entire set of
rights and duties of member states under the charter regarding the maintenance of peace, and the promotion and respect of human rights and fundamental freedoms on their provision to all without distinction as to race,
paramount respect for the
sex, language, or religion.5 7 The Charter demands
58
principle of equal rights and self-determination.
These principles of the Universal Declaration and of the UN Charter
are contradicted by the practice of apartheid, which is based on the notions
of inequality and the superiority of one race over another, and is enforced
through violence directed to perpetuate superiority for those in power. Although apartheid has been condemned in many international and national
forums, the establishment of its illegality has not yet gone beyond rhetorical
condemnation.
A landmark case in the human rights field is the International Court of
59
Justice's advisory opinion on the illegality of South Africa's stay in Namibia.
The Court called the establishment of apartheid "a flagrant violation of the
purposes and principles of the Charter," and characterized the policy of
apartheid as constituting "distinctions, exclusions, restrictions and limitations
exclusively based on grounds of race, color, descent or national or ethnic
origin and amounting to the denial of fundamental rights." 0 The Court's
decision established that states which are members of the United Nations
are under an obligation to recognize the illegality of South Africa's presence
in Namibia and the invalidity of its acts on behalf of or concerning Namibia.
In addition, UN member states were to refrain from any acts, particularly
those involving the government of South Africa, implying recognition of the
legality of this presence or lending support or assistance to it.
55. The questions raised here are addressed in Butcher, supra note 18.
56. Universal Declaration of Human Rights, supra note 16, at arts. 4-6.
57. Article 1(3) of the UN Charter states that it is the purpose of the United Nations to "achieve
international cooperation ... and to encourage respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion."
58. Article 1(2) of the UN Charter states another purpose of the United Nations: "To develop
friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, and to take other appropriate measures to strengthen universal
peace......
59. Advisory Opinion Concerning the Legal Consequences for States of the Continued Presence
ofSouth Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution
276 (1970) 1971 I.C.J. 16 (18 July 1966).
60. Id.
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The opinion recognized that with regard to Namibia, South Africa had
continuously refused to fulfill its obligations under the mandate. The Court
emphasized that the continuation of apartheid despite its condemnation was
a violation of South Africa's obligations.61 In the opinion, the Court did not
directly address apartheid as practiced in South Africa, since the decision
dealtwith South African dealings in Namibia. In an earlier decision, however,
the Court explicitly addressed the issue of obligations under contemporary
international law derived from "the principles and rules concerning the basic
rights of the human person, including protection from slavery and racial
discrimination under contemporary international law." 62 And the Namibia
Advisory Opinion clearly indicated that apartheid is contrary to the purposes
and principles of the Charter in that it violates Articles 55 and 56 of the
63
human rights provisions of that instrument.
Before and after the International Court of Justice advisory opinion on
Namibia, the United Nations passed a multitude of resolutions condemning
apartheid as a violation of the Charter's human rights provisions.- These
resolutions issued from the General Assembly, the Security Council, and
specific subcommittees, including the Human Rights Subcommittee. In a
1966 judgment, The South West Africa Cases, Judge Tanaka concluded that
the norm against racial discrimination had risen to the level of customary
international law. 64 The United Nations established a Center Against Apartheid to monitor all aspects of apartheid and track the proliferating number
of UN resolutions and declarations.
Outstanding among the ratified instruments is the International Convention on the Elimination of All Forms of Racial Discrimination.6 1 In Article
1(1), the Convention provided a definition of "racial discrimination," 66 and
in Article 2(1) called on the signatories of the document "to pursue by all
appropriate means and without delay a policy of eliminating racial discrim67
ination in all its forms and promoting understanding among all races."
Article 2 also called on signatories to "take effective measures to review
61. Id.
62. Barcelona Traction, Light and Power Company, Ltd. (Beig. v. Spain) 1970 I.C.J. 3, 32
(5 Feb. 1970).
63. Namibia Advisory Opinion, supra note 59.
64. South West Case, Second Phase (Ethiopia v. S. Africa) 1966 I.C.J. 4, 293 (21 July 1971)
(Tanaka, J., dissenting). See Butcher, supra note 18, at 410 n.30 for a discussion of the
case.
65. International Convention on the Elimination of All Forms of Racial Discrimination, adopted
21 Dec. 1965, entered into force 4 Jan. 1969, 66 U.N.T.S. 195; G.A. Res. 2106 A (XX),
20 U.N. GAOR Supp. U.N. Doc. A16014 (1965).
66. Id. at art. 1(1): "In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms
in the political, economic, social, cultural or any other field of public life."
67. Id. at art. 2(I)(a).
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governmental, national, and local policies and to amend, rescind, or nullify
any laws and regulations which have the effect of breaking or perpetuating
racial discrimination whenever it exists. '68 In addition, Article 3 seeks the
condemnation of apartheid.69
The question of the binding force of customary international law on UN
member states and the international community is important. The Charter
specifically calls on member states to "take joint and separate action in
cooperation with the Organization ' 70 to achieve the Charter purposes set
forth in Article 55.71 Despite the fact that all UN members are signatories
to the UN Charter, no legal action has yet been taken under these provisions
against the South African practice of apartheid. Member states have not gone
further than joining in its condemnation.
The self-interest of member states also plays a role in the absence of
legal action. The obligations which flow from the violations of the principles
of the Charter and the recognition of the illegality of apartheid often conflict
with the political and economic interests of member states. The provisions
of the Charter for the partial interruption of economic relations and means
of communication, and for the severance of diplomatic relations if the Security Council determines that there has been a breach or threat to the
peace,72 may have influenced the passing of sanctions bills in the United
States and Britain. This was only an indirect influence; in terms of realpolitik
the international legal instruments have not been properly enforced.
One further attempt to entice action beyond condemnation was the
creation of yet another international instrument, the International Convention
on the Suppression and Punishment of the Crime of Apartheid, adopted by
the UN General Assembly in 1976.13 The Convention was adopted over the
objections of the United States, Portugal, South Africa, and Britain.
68. Id. at art. 2(1)(c).
69. Id. at art. 3. The text reads: "States parties particularly condemn racial segregation and
apartheid and undertake to prevent, prohibit, and eradicate all practices of this nature in
territories under their jurisdiction." Article 5 names a list of specific rights, including Article
5(b), the right to "protection by the State against violence or bodily harm, whether inflicted
by government officials or by any individual, group or institution." Article 5(d)(ii) refers to
"the right to leave any country, including one's own ......
70. UN Charter, supra note 15, at preamble.
71. Article 55 of the UN Charter, supra note 15, calls for the "creation of conditions of stability
and well-being which are necessary for peaceful and friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples. .. ."
72. UN Charter, supra note 15, at art. 41. The full text reads: "The Security Council may
decide what measures not involving the use of armed forces are to be employed to give
effect to its decisions, and it may call upon the members of the United Nations to apply
such measures. These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and
the severance of diplomatic relations."
73. International Convention on the Suppression and Punishment of the Crime of Apartheid,
adopted 30 Nov. 1972, entered into force 18 July 1976, G.A. Res. 3068 (XXVIII), 28 U.N.
GAOR, Supp. (No. 30) 166, U.N. Doc. A/9030 (1974).
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The Convention establishes that "apartheid is a crime against humanity"
and that inhuman acts resulting from apartheid policies are crimes violating
the principles of international law, in particular the purposes of the UN
Charter.7 4 Such acts also constitute a serious threat to international peace
and security. The Convention provided a working definition of the term "the
crime of apartheid" by listing specific acts to which the term will apply,
such as where one racial group of persons systematically oppresses any other
racial group for the purpose of maintaining domination.7 - At this time, the
Convention is the only international document that calls for the punishment
of persons found guilty of the crime of apartheid.7 6 State parties are called
upon to submit periodic reports aboutthe measures their states have adopted
to give effect to the provisions of the Convention. 7 The Convention excluded
"crimes of apartheid" from the category of political offenses in order to make
the offenders available for extradition.7 8 Under this provision, the sending
state would not be called upon to grant diplomatic asylum to persons guilty
of the "crime of apartheid." The Latin American conventions described
earlier also exclude crimes of genocide and crimes against humanity from
79
the grant of diplomatic asylum.
The international instruments described in this paper are the most significant legislation related to asylum. They convey a sense of the cumulative
effect of customary international law. All the instruments are in agreement
about the illegality of apartheid. This consensus can in itself be regarded as
binding on countries dealing with South Africa. The weight of this international consensus has influenced political decisions in numerous states.
Whether bills introducing economic sanctions toward South Africa have
been shaped more by national political pressures rather than by considerations of legal obligations deriving from international instruments is not easy
to trace. The UN member states certainly are obligated to accept and carry
out the obligations set forth in the principles of the Charter. The Charter
assigns specific roles to the General Assembly and the Security Council in
the administration of these obligations.8 0
GRANTS OF ASYLUM OUTSIDE LATIN AMERICA
Despite the many reservations the United States has had recognizing the
doctrine of diplomatic asylum, recent history has witnessed several incidents
74.
75.
76.
77.
78.
79.
Id. at art. 1.
Id. at art. 2.
Id. at art. 4(a).
Id. at art. 7(1).
Id. at art. 11.
See text and accompanying notes 23-43 supra for a discussion of several Latin American
conventions.
80. UN Charter, supra note 15.
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where a US embassy has granted political asylum or prolonged stay to asylum
seekers.
One prominent case involved Jozsef Cardinal Mindszenty, who sought
refuge in the US Embassy in Budapest. After the collapse of the Hungarian
people's revolution against the Soviet-backed government, the outspoken
anticommunist Mindszenty, who had been freed after eight years of incarceration, was threatened with rearrest and detention when the Soviet Union
gained military control over the Hungarian situation. The US government
made the decision to grant refuge to Mindszenty "under highly exceptional
and most unusual circumstances and on urgent humanitarian grounds at a
time of foreign aggression against Hungary." 8' The US mission was instructed
to afford the Cardinal the refuge he had requested. Mindszenty stayed fifteen
years. He left only after Pope Paul VI ordered him to come to Rome, and
after he received from Hungarian President Kadar a written document guaranteeing his safe departure. One of the reasons why Mindszenty refused to
give up the safety of asylum was the fate of Imre Nagy. Nagy, a government
leader in Hungary during the 1956 rebellion, had been apprehended by
Soviet soldiers despite oral guarantees of free passage when he left the
Yugoslavian Embassy. After appearing before a secret tribunal, Nagy was
executed.
The Soviet Union is among those states that flatly deny a right to diplomatic asylum, citing the right as an interference with domestic affairs.
Thus, the Soviet Union has guarded the embassies of Western sending states
in order to prevent such incidents. In 1978, however, seven members of the
Siberian Pentecostalist community were able to flee onto the premises of
the US mission in Moscow. After five years of hunger strikes and worldwide
diplomatic intervention, the Pentecostalists were granted free departure to
the United States.
In both cases, it is important to recognize that while the United States
granted a stay in an Eastern European mission and did not expel the fugitives,
the United States did not throw its full force behind achieving safe passage
to another territory out of the receiving state. In comparison to the refusal
to grant refuge to the Durban Six, it is not difficult to see the political
advantages accruing to the United States in keeping the Cardinal and the
Pentecostal ists.
A more recent incident occurred in Prague. The mission of the Federal
Republic of Germany found itself in a most serious dilemma when over fifty
citizens of the German Democratic Republic called for diplomatic asylum
in the mission residence in February 1984. Since 1984, over 200 German
Democratic Republic citizens have been granted asylum in the Federal Republic of Germany's mission in Prague. The two German states have devised
81. See Whiteman, supra note 23, at 464.
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a formula to deal with this recurring problem in their relations. The German
Democratic Republic citizens were assured that if they would return to the
German Democratic Republic and apply for permission to leave the German
Democratic Republic and enter the Federal Republic of Germany, such
permission would be granted. This formula has provided a face-saving device
for both countries.
The German arrangement and the US ad hoc handling of "diplomatic
asylum" demonstrate that under the right political circumstances, a nonLatin American sending mission can find the means to grant diplomatic
asylum.
CONCLUSION: THE NEED TO GRANT DIPLOMATIC ASYLUM
There exists no universally accepted international agreement to assure a
uniform response by states to grant refuge in a mission in an emergency.
Most countries, with the exception of those in Latin America, deny outright
the claim to diplomatic asylum because it encroaches upon the state's sovereignty.
Some countries give limited recognition to the practice, allowing "temporary safe stay" on a case-by-case basis to persons under threat of life and
limb. It should be recognized that a state has the permissible response of
granting temporary sanctuary to individuals or groups in utter desperation
who face repressive measures in their home countries. Moreover, this should
be considered a basic human right, to be invoked by those fleeing from
persecution for reasons of race, religion, or nationality, or for holding a
political opinion in an emergency situation involving the threat of violence.
In the case of South Africa, the argument for asylum rests on even stronger
grounds. There, the sending state has not only a permissible response but
an obligation to grant diplomatic asylum. The obligation of the sending state
flows from the basic provisions of the UN Charter, particularly Articles 55
and 56. The obligation also stems from the international consensus that
apartheid represents a crime against humanity and that political offenders
in South Africa may face torture and an absence of due process.
The South African situation provides a clear mandate for the duty of
states holding missions in South Africa to grant diplomatic asylum in these
circumstances. Existing international instruments oblige states that transact
business with South Africa to take even stronger steps than granting diplomatic asylum. According to international law these states are obliged to act
in dismantling apartheid.8 2 The grant of diplomatic asylum to the Durban
Six, who were threatened with the death penalty for alleged acts of high
82. See Butcher, supra note 18, for a discussion of this argument.
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treason, would have been a token gesture in this direction by the countries
from whom asylum was sought. Any practice of granting asylum to groups
like the Durban Six would be part of an overall policy aimed at ending
apartheid.
Quite apart from the pressing urgency of the South African situation,
there is a need for codification of a generally accepted doctrine for the
protection of human rights and the safeguard of human lives under emergency circumstances. There is a need for the international community to
begin a process of codification of diplomatic asylum. Providing for such a
permissible response to an asylum seeker would also enable two sovereignties to deal with one another, which in turn would diminish antagonism.
The following conditions would be essential to the provisions of a codification of diplomatic asylum:
1.The sending state determines the eligibility of the asylee by requiring:
that there is beyond a reasonable doubt an immediate threat to the life, liberty, and
limb of the asylum seeker;
that the asylee is fleeing from a situation where he cannot receive justice, a fair trial,
or due process;
that the offense the asylee is accused of is a political offense, e.g., fleeing from
persecution on account of race, belief, political opinion, etc.
2. Asylum is inviolable under the conditions outlined above.
3. The chief of the legation in which political asylum is sought is to notify the
ministry of the receiving state promptly.
4. Safe conduct beyond territorial limits is to be provided.
Such internationally recognized obligations or permissible responses of
granting diplomatic asylum should set parameters for negotiations between
the two states involved in order to achieve safe conduct for the asylee as
the ultimate goal. Besides the positive effect of forcing states to negotiate
over such delicate matters, these considerations could mean a direct influence of the foreign policy decision-making process of the sending states on
the domestic policy of the receiving state which is directly violating international law.
The codification of diplomatic asylum would provide the mission country, anxious to alleviate the fate of victims of human rights violations, with
the opportunity of rescuing them through an internationally recognized procedure.
Asylum in the Greek language means "freedom from seizure." Reviving
this idea in international law in the second half of the twentieth century
should create no conceptual difficulties beside a right to grant protection
from illegal seizure or beside the notion that in certain circumstances the
right of the sovereign state may have to yield to the protection of the rights
of the unjustly oppressed and persecuted.
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