Asylum: Territorial, Diplomatic and the Asylum Case

Asylum is the protection a state gives to a person who seeks refuge from another state's authorities. Within its own territory, a state's power to grant asylum follows from its sovereignty. Asylum in an embassy abroad is different, because it intrudes on the sovereignty of the state where the embassy is located. This note covers both forms, the ICJ's Asylum and Haya de la Torre cases, recent practice and India's approach.

1. Two Forms of Asylum

Figure 1: Territorial and diplomatic asylum

2. Territorial Asylum

• Right of the state. A state may admit and protect any person on its territory; asylum is a right of the state to grant, not a right of the individual to receive.
• Article 14, UDHR. Everyone has the right to seek and to enjoy in other countries asylum from persecution; the right may not be invoked for prosecutions genuinely arising from non-political crimes or acts contrary to the purposes of the UN.
• Declaration on Territorial Asylum, 1967. General Assembly resolution 2312 provides that asylum granted by a state is a peaceful and humanitarian act to be respected by other states, and that no person entitled to invoke Article 14 shall be rejected at the frontier or returned to a state where he may be persecuted.
• Asylum and extradition. Refusing extradition for a political offence is a form of territorial asylum; refugee law adds the bar on refoulement (Topic 40)

3. Diplomatic Asylum

• Nature. Asylum granted in a mission, legation or warship within the territorial state; it withdraws the person from the territorial state's jurisdiction and so derogates from its sovereignty.
• Vienna Convention, 1961. Does not recognise a right of diplomatic asylum, though the inviolability of premises (Article 22) means the territorial state cannot enter to seize the person.
• Latin American practice. The Havana Convention on Asylum, 1928, the Montevideo Convention on Political Asylum, 1933 and the Caracas Convention on Diplomatic Asylum, 1954 recognise diplomatic asylum for political offenders in urgent cases; the Caracas Convention lets the state granting asylum determine the nature of the offence.
• Temporary refuge. Outside such treaties, states accept that a mission may give temporary refuge to a person in imminent danger to life, on humanitarian grounds.

4. The Asylum Case (Colombia v Peru), 1950

Figure 2: Course of the dispute

• Facts. Víctor Raúl Haya de la Torre, a Peruvian political leader, was accused of instigating a military rebellion in October 1948; in January 1949, he was granted asylum in the Colombian embassy in Lima; Colombia qualified his offence as political and demanded a safe conduct for him to leave Peru.
• No unilateral qualification. Colombia was not entitled, under the Havana Convention or any regional custom, to qualify the offence unilaterally in a manner binding on Peru; the practice relied on showed too much uncertainty and contradiction.
• No safe conduct. Peru was not bound to give a safe conduct, which the Havana Convention requires only when the territorial state asks the refugee to leave.
• Grant not justified. The asylum, granted three months after the rebellion, did not meet the requirement of urgency under the Havana Convention; diplomatic asylum, as a derogation from sovereignty, must be established in each case.
• Haya de la Torre case, 1951. The Court held that the asylum ought to have ended, but Colombia was not obliged to surrender him to Peru, since the Havana Convention did not prescribe how asylum should end; the parties had to reach a practical settlement, and he left in 1954.

5. Practice

Figure 3: Notable instances of asylum

• Cardinal Mindszenty. Sheltered in the US embassy in Budapest from 1956 to 1971 after the Hungarian uprising.
• Julian Assange. Given asylum in Ecuador's embassy in London in 2012; the UK did not enter, but Ecuador withdrew asylum in 2019 and invited police in to arrest him.
• Embassy of Mexico in Quito, 2024. In April 2024, Ecuadorian police entered Mexico's embassy to arrest a former Vice-President who had been granted asylum; Mexico broke off relations and brought proceedings before the ICJ, and the raid was widely condemned as a breach of inviolability.
• India. India has no asylum statute; it gave refuge to the Dalai Lama and Tibetan refugees in 1959 and has sheltered others through executive decisions.

6. Frequently Asked Questions

Does an individual have a right to be granted asylum?

No. Article 14 of the UDHR recognises a right to seek and enjoy asylum, not a right to be granted it. Granting asylum is within the discretion of the state, subject to the obligation of non-refoulement.

Can the territorial state enter an embassy to arrest a person given asylum?

No. Even though diplomatic asylum is not generally recognised, the premises of a mission are inviolable under Article 22 of the Vienna Convention, so entry without consent, as in Quito in 2024, violates international law.

Why did the ICJ reject Colombia's claim to qualify the offence unilaterally?

Because neither the Havana Convention, 1928 nor any proven regional custom gave the state granting asylum a right to decide, in a manner binding on the territorial state, that the offence was political. The practice Colombia relied on was too uncertain and contradictory to establish such a custom.

What is the difference between asylum and refugee status?

Asylum is the protection a state chooses to grant, an exercise of its sovereignty. Refugee status is a legal status under the 1951 Convention, defined by objective criteria, which brings rights and the protection of non-refoulement in states party to the Convention.

7. Related Topics

• Topic 8: International Custom. Regional custom in the Asylum case.
• Topic 36: Diplomatic Immunity. Inviolability of premises.
• Topic 40: Refugees and Statelessness. Non-refoulement.