Asylum, Diplomatic

Prakash Shah

Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: April 2007

Subject(s):
Diplomatic relations — Refugees — Asylum
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Graduate Institute; date: 21 September 2021
 A.  Notion
1  Diplomatic asylum refers to the idea that a diplomatic mission of a sending State has the
right to offer protection to → refugees present in the premises of the mission (→ Premises of
Diplomatic Missions). It is distinguishable from the concept of → territorial asylum which
entails an exercise of the sovereign right of a State to grant refuge from persecution on its
own territory (→ asylum, territorial). Diplomatic asylum entails a derogation to the
→ sovereignty of the State in which the sending State has its diplomatic mission. With the
possible exception of its being a norm of → regional international law, and except where it is
temporarily granted for humanitarian reasons, there is no general right in international law
to grant diplomatic asylum (see also → General International Law [Principles, Rules and
Standards]). Any right of diplomatic asylum is not subjective to an individual, but a right of
a State as against the sovereignty of another State (→ Individuals in International Law; see
also → Subjects of International Law).

B.  Historical Evolution of Legal Rules

2  The rather denuded concept, which is generally accepted in → international law today,
was not always so formulated. It is not possible to view the development of diplomatic
asylum outside the European experience of earlier centuries, while data on any similar
concept existing outside Europe from late medieval times is sparse. The development of the
concept is also closely linked to the changing understanding of the inviolability of
diplomatic missions in Europe. From the 15th century the practice of granting asylum within
the premises of diplomatic missions was commonly invoked, although it was not always
recognized that, once such asylum had been granted, the local authority could not exercise
jurisdiction over such persons and was unable to bring them to justice.

3  The basis of such claims to grant asylum was that the premises of a diplomatic mission
enjoyed → extraterritoriality, forming part of the home State of the diplomatic envoy. There
was also an understanding that an ambassador could not effectively perform his functions if
his residence could be entered and searched by officials of the receiving State. In the 16th
and 17th centuries, as political and religious dissent increased in Europe, foreign embassies
became places to which dissidents frequently fled, and → heads of diplomatic missions
denied local officials the right to enter and search their premises, even to search for and
arrest traitors and criminals (see also → Criminal Jurisdiction of States under International
Law). The franchise du quartier, that is, the right against local police and other officials
entering the area surrounding the embassy premises, accompanied and reinforced the
diplomatic right to grant asylum.

4  The extensive claims of diplomatic missions did not go unchallenged and officials of the
receiving sovereign frequently entered premises to arrest wanted persons, after which
apologies may be offered or excuses made, even though the persons arrested were seldom
returned. The franchise du quartier was firmly denied in the 17th century, albeit there were
numerous instances in Europe up to the 19th century whereby grants of asylum were made.
The writings of classical publicists—including Grotius and Vattel—show that they viewed
the inviolability of diplomatic premises, and the right to grant asylum thereupon, not in
absolute, but rather in qualified terms.

C.  Current Legal Situation and Evaluation

5  The current position in general international law is thought to have been stated by the
→ International Court of Justice (ICJ) in the Asylum Case ([Colombia/Peru] [‘Asylum Case’]).

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Graduate Institute; date: 21 September 2021
 Columbia had granted asylum in its diplomatic premises to one Haya de la Torre in Peru,
the receiving State. The ICJ stated that:

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. (Asylum Case 274–75)

. Therefore, there was no general rule of international law permitting a grant of asylum and
the existence of such a rule in a particular case needed to be proved by a particular treaty
or custom (→ Customary International Law; → Treaties). In this case, the ICJ found that the
Convention Fixing the Rules to be observed for the Granting of Asylum (‘Havana
Convention’), was applicable and that it did not give the State granting asylum the
competence to characterize by unilateral decision that the person given asylum was
accused of a political and not a common crime. Since Peru disputed that Haya de la Torre
was accused of a political crime, the ICJ found that asylum had not been granted in strict
accord with the Havana Convention.
6  In the subsequent Haya de la Torre Case (Colombia/Peru [‘Haya de la Torre Case’]
[→ Haya de la Torre Cases]) the ICJ considered that while there was no duty on the part of
the diplomatic representative not to intervene in the affairs of the receiving State
(→ Domaine réservé), neither was there a duty to assist in the course of justice of that State.
The Havana Convention did not require the State granting asylum, even if it granted asylum
irregularly, to surrender the refugee (Haya de la Torre Case 81). The Court also found,
however, that → diplomatic protection as contemplated by the Havana Convention was a
provisional measure extended on humanitarian grounds for the protection of the accused
and should terminate as soon as possible, even though surrendering the refugee was not
the only conceivable method of terminating asylum (Haya de la Torre Case 80–82; see also
→ Interim [Provisional] Measures of Protection).

7  It is significant that these two cases before the ICJ arose between two Latin American
States. It has been claimed that the right of diplomatic asylum exists as a norm of regional
international law among Latin American States—see eg the dissenting opinion of Judge
Alvarez in the Asylum Case (Asylum Case [Dissenting Opinion of Judge Alvarez] 292)—
although practice among these States has been inconsistent in its observance (see also
→ International Law, Regional Developments: Latin America). On the other hand, it is also
notable that out of dissatisfaction with the judgment of the ICJ in the Asylum Case, the
Convention on Diplomatic Asylum was adopted at Caracas at the Inter-American
Conference in 1954. That Convention henceforth permitted the unilateral characterization
of a crime as political. The United States of America, as a party to the Havana Convention,
did not recognize the right of asylum as part of international law, nor the provisions of the
Havana Convention which relate to the granting of asylum.

8  The present state of international law mostly exists in the interstices of the norms
contained in Art. 22 → Vienna Convention on Diplomatic Relations (1961) (‘VCDR’), which
expresses in absolute terms the inviolability of the premises of a diplomatic mission, and
Art. 41 VCDR, which requires respect for the laws and regulations of the receiving State,
and non-interference in its internal affairs, as well as prohibiting the use of such premises
in any manner incompatible with the functions of the mission, as laid down in that
Convention, by other rules of international law, or by any special arrangement in force
between the sending and receiving States. Thus, the present tendency appears to favour the
position that if a person takes refuge within diplomatic premises, he should be handed over

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Graduate Institute; date: 21 September 2021
 to the authorities if he is accused of a criminal charge and if a warrant for his arrest has
been issued by the competent authorities of the receiving State. However, there does not
appear to be any duty upon the head of a diplomatic mission to refuse entry to persons who
wish to take refuge in the embassy. It is also thought that temporary refuge may be granted
in a diplomatic mission in order to save human life, and for similar humanitarian reasons
especially during times of civil and political unrest. The refuge and safe passage granted to
thousands of East Germans through the 1980s in the diplomatic missions of Western
countries located in the East Bloc States may be viewed in this light.

9  Besides the use of diplomatic missions for the purpose of providing shelter, the question
of using consular premises for similar reasons can also arise. While the inviolability of
diplomatic premises, upon which the right to diplomatic asylum depends, finds stronger
expression in international law, consular premises are not generally thought to be
appropriate places for people seeking asylum, and in the few modern instances where
consulates were involved, the tendency has been to remove such people or to turn them
over to the local authorities. However, exceptions may be made on humanitarian grounds or
on the ground that deeply felt principles of human rights would be compromised.

10  At the present state of development of international law, a subjective right of diplomatic
asylum does not appear to exist. The rising magnitude in global movements of refugees and
the inability of individual refugees to secure territorial asylum in many States is
increasingly leading to claims by such persons that protection be offered to them at
diplomatic premises and, thereby, the State of mission on the basis of a subjective right to
protection. Such claims are increasingly likely to be based on norms of individual → human
rights but have not yet led to their acceptance by States.

Select Bibliography
CN Ronning, Diplomatic Asylum: Legal Norms and Political Reality in Latin American
Relations (Nijhoff The Hague 1965).
B Sen, A Diplomat’s Handbook of International Law and Practice (3rd ed Nijhoff
Dordrecht 1988) 408–14.
BS Murty, The International Law of Diplomacy: The Diplomatic Instrument and World
Public Order (New Haven Press New Haven 1989) 372–77.
R Hofmann ‘Völkerrechtliche Aspekte der Übersiedlung von Bürgern der Deutschen
Demokratischen Republik über Drittländer in die Bundesrepublik Deutschland’ (1990)
50 ZaöRV 1–38.
LT Lee, Consular Law and Practice (2nd ed Clarendon Oxford 1991) 397–400.
E Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic
Relations (2nd ed Clarendon Oxford 2004) 117–19.
G Noll ‘Seeking Asylum at Embassies: A Right to Entry under International
Law?’ (2005) 17 IJRL 542–73.
GS Goodwin-Gill and J McAdam, The Refugee in International Law (3rd ed OUP Oxford
2007).
LO Johannsen, Die rechtliche Behandlung ausreisewilliger Staatsbürger in der DDR
(Peter Lang Frankfurt am Main 2007).

Select Documents
Asylum Case (Colombia/Peru) [1950] ICJ Rep 266.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Graduate Institute; date: 21 September 2021
 Convention Fixing the Rules to be Observed for the Granting of Asylum, adopted by
the VIth International Conference of American States (signed 20 February 1928) 132
LNTS 323.
Convention on Diplomatic Asylum (concluded 28 March 1954, entered into force 29
December 1954) 1438 UNTS 104.
Haya de la Torre Case (Colombia/Peru) (Merits) [1951] ICJ Rep 71.
R (B and others) v Secretary of State for Foreign and Commonwealth Affairs Court of
Appeal (London 18 October 2005) [2005] QB 643 (CA).

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: Graduate Institute; date: 21 September 2021