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Andreina De Leo and Juan Ruiz Ramos

LL.M Candidates in International Migration and Refugee Law,

Vrije Universiteit Amsterdam

From Wikileaks to the San José Court

In 2012, more than 355 thousand individuals applied for asylum in Europe. Yet no other asylum application resonated in the media as much as the one filed by Julian Assange at the embassy of the Republic of Ecuador in London. Faced with a criminal investigation in the United States and an arrest warrant in Sweden, the famous Wikileaks founder was soon granted diplomatic asylum by the Government of Ecuador, who shared Assange’s perception that the United States was “orchestrating” a political persecution against him. Although the risk of his extradition to the United States is more tangible now that he is detained by the British authorities, the debate around whether Assange could be considered a political refugee was served at the time. Be it as it may, after several years hiding in the embassy, the UK Government refused to grant Assange safe passage to go to the hospital for a check-up. The UK asserted that, if he left the diplomatic premises, he would be immediately arrested, thus “forcing him to choose between the human right to asylum and the human right to health”, according to Assange’s lawyers.

It was this situation of impasse which led the Ecuadorian Government to request an Advisory Opinion to the Inter-American Court of Human Rights (IACtHR) in August 2016. In a clear reference to the behaviour of the UK in all but name, Ecuador asked, amongst others, whether a non-party State to the Organisation of American States (OAS) could adopt a conduct which would undermine the right to asylum of a person who had been granted asylum by a State party. The 30th of May 2018 the Advisory Opinion OC-25/18 was issued, and Wikileaks hailed it as a victory. While the Court did not consider itself competent to establish the obligations of non-party States to the OAS (para. 32), it did make several findings which Ecuador could have used to back its position in diplomatic talks with the United Kingdom. Unfortunately for Assange, by that time the Government of Ecuador was not the same that had protected him all those years. New President Lenin Moreno was reticent to prolong the political tensions with the UK, and eventually revoked his asylum status in April 2019.

The 65-pages-long Advisory Opinion, however, could have an impact on the protection of human rights of refugees well beyond the Assange case. Moreover, it proves that a different interpretation of the rights of asylum seekers in embassies is possible, despite the recent decision M.N. and Others v. Belgium, where the ECtHR considered that the Convention does not apply to applications for humanitarian visas in diplomatic premises.

Asylum in the Americas vs. asylum in Europe

The Advisory Opinion of the IACtHR shows the richness of the legal framework governing asylum in Latin America. This framework covers territorial asylum, diplomatic asylum, the prohibition on extradition for political crimes and refugee status in the sense of the Cartagena Declaration, which expands the refugee definition of the 1951 Geneva Convention to include persons fleeing general violence (like the 1969 OAU Refugee Convention). Moreover, both the American Declaration of Rights and Duties in its Article XXVII and the American Convention on Human Rights (ACHR) in its Article 22(7) enshrine a human right to seek and be granted asylum. While this right initially only comprised the right to asylum for political reasons, the case law of the IACtHR (Pacheco Tineo Family v. Bolivia and Advisory Opinion OC-121/14) has lead to the inclusion of refugee status in the definition of such right.

Several aspects of the right to asylum in the Americas might strike the European reader. Firstly, an obvious difference with the ECHR is that the Inter-American system includes a human right to asylum, while the European Convention does not (see Ilias and Ahmed v. Hungary, para. 125). Secondly, according to the IACtHR, the right to be granted asylum obliges States to grant the same refugee recognition to the person who meets the criteria for refugee status and to the members of that person’s family (para. 123 of the Opinion). This differs from EU law, which does protect the rights of family members of the refugee but does not oblige States to formally grant them refugee status (Articles 23 and 24(1) of Directive 2011/95/EU). Thirdly, in the Americas, refugee status has extraterritorial validity (para. 123). This means that, if a holder of refugee status in one State party to the OAS enters another State party and applies for protection there, the authorities of the latter must “guarantee a duty of special care  in the verification of [refugee] status” (Pacheco Tineo, para. 150). On the contrary, recognized refugees in one of the EU Member States will normally have their subsequent application for asylum in another Member State declared inadmissible (see Article 33 of Directive 2013/32/EU and the Ibrahim case).

As for the right to seek asylum, a novelty when compared to the European protection system is that the Inter-American Court makes clear that “States [party to the OAS] may not take action to prevent persons in need of international protection from seeking protection in other territories” (para. 122 of the Opinion). If one applies this prohibition to the European context, it springs to mind that the EU provides financial assistance to Libya through the EU Trust Fund for Africa to strengthen its border management capacities with the purpose of preventing persons from reaching the EU –a practice that has recently been challenged before the Court of Auditors. If one were to use the same ratio as the San Jose Court, such a collaboration could be deemed to be in breach of the EU Charter, as it prevents asylum seekers in Libya from entering the EU in search of protection. This argument would build upon Article 18 of the EU Charter if that provision is interpreted as including a right to seek asylum, like the ACHR.

No human right to diplomatic asylum…

After extensively reviewing the institution of asylum in the Inter-American system, the Court proceeds to answer the central question posed by Ecuador: Which obligations are incumbent upon States towards individuals who apply for asylum in diplomatic missions? As a starting point, the Court finds that Article 22(7) ACHR, following which “every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions (…)”, does not enshrine a human right to diplomatic asylum, due to three main sets of reasons: (1) it is not possible to assimilate legations to a “foreign territory”, (2) it is clear that the will of the States party to the ACHR was to exclude asylum at embassies from the protection of the human right to asylum and (3) the lack of uniform practice and opinio iuris prevents the human right to diplomatic asylum from becoming a regional custom (paras. 144-163). Moreover, the 1954 Convention on Diplomatic Asylum regards diplomatic asylum as a prerogative of the States and not as an obligation imposed on them (para. 87).

… but positive obligations follow from non-refoulement

The main contribution of the Advisory Opinion appears in Section V, when the Court affirms that, although States are not required under Article 22(7) ACHR to grant asylum in diplomatic offices, there is an obligation under Article 22(8) ACHR to respect the principle of non-refoulement in such places (para. 194). How does the Court come to such a conclusion, and what does this obligation entail?

Firstly, the IACtHR appears to assume that a person who enters the embassy of a foreign State to seek protection automatically falls under the jurisdiction of that State. The concept of “jurisdiction” for the IACtHR does not differ from from the approach of the ECtHR: outside the territory of the State, jurisdiction is established when the individual is subjected to the State’s authority or effective control, de iure or de facto (para. 188). However, it seems that, contrary to the Strasbourg Court (as will be explained below), the Inter-American Court does not require particularly strong actions of the diplomatic agents in order to find that they exercise authority or effective control over individuals (see paras. 188, 192 and 194).

Secondly, the Court lays great weight on the ius cogens nature of the principle of non-refoulement. While at the international level, only the principle of non-refoulement which derives from the prohibition of torture has been clearly recognised as attaining the status of ius cogens, the Advisory Opinion (paras. 98 and 181) shows that, at the Inter-American level, the ius cogens character of this norm has been declared for both the non-refoulement principle based on human rights (Article 5 ACHR) and for the principle derived from refugee law (Article 22(8) ACHR and Section III, Para. 5 of the Cartagena Declaration).

As for the content of non-refoulement, the Court derives from it positive and negative obligations for the State within whose diplomatic mission an application is made: (1) the obligation to interview the person and carry out a preliminary assessment of whether there is a real risk of (direct or indirect) refoulement if the person were to leave the embassy; (2) if such a risk is determined, the obligation for the State not to return the individual to the country where that risk exists; and (3) the obligation to adopt diplomatic measures, including requesting the State on whose territory the diplomatic mission is located to arrange safe passage for the person (paras. 194-198). Therefore, the State ought to use “all the necessary means” to protect that individual, even if those means do not necessarily have to take the form of diplomatic asylum (paras. 197-198). It has been argued that, in practice, the measures which the Court requires States to take are the same that States adopt when they decide to grant diplomatic asylum to an individual. States party to the OAS may thus face an obligation to grant diplomatic asylum de facto.

The doctrine of positive obligations: the duty to prevent harm and to cooperate

The reasoning of the IACtHR regarding the interpretation of the principle of non-refoulement is based on the doctrine of positive obligations, which requires States to prevent violations of human rights, even when the harm would be caused by a conduct which is not attributable to them. Although this doctrine is not a new concept in international human rights law, the Advisory Opinion develops the notion by explicitly substantiating its requirements with regard to the protection from refoulement. Prior to this, it had used a similar ratio in another Advisory Opinion where it was asked to clarify the scope of State responsibility for environmental harm (for a discussion see here). Using an analogous line of argument (existence of a fundamental right, assessment of jurisdiction, interpretation of the duty to prevent), the Court clarifies that the duty to ensure the rights to life and personal integrity implies a duty to act with due diligence (para. 123). Thus, States must act in accordance with the precautionary principle, and take “effective” measures to prevent serious or irreversible damage to –in that case– the environment (para. 180). Equally, in both Opinions, the Court has recalled the importance of a general duty to cooperate to ensure the respect for international obligations. If in the case of the environment, that implies the obligation to cooperate to protect against environmental damage through notification, consultation, and information-sharing measures (para. 210), in the case of ensuring the protection from refoulement, the obligation to cooperate requires, inter alia, the use of diplomatic channels to ensure a safe passage for the individual concerned.

Comparison between the Advisory Opinion an M.N. and Others v. Belgium

The 5th of May, the Grand Chamber of the ECtHR delivered a decision (M.N. and Others v. Belgium) concerning whether filing an application for a humanitarian visa (Article 25(1) of the Visa Code) in a consulate of one of the Contracting States of the ECHR establishes a jurisdictional link between the State in question (Belgium) and the applicants (a Syrian family in Lebanon) for the purposes of Article 1. With regard to the factual background, the applicants had argued that the principle of non-refoulement enshrined in Article 3 ECHR imposed a positive obligation to grant them humanitarian visas allowing them to apply later for asylum in Belgium. In their view, this would constitute the only mean to avoid any risk of being subjected to inhuman or degrading treatments. Their opinion was not shared by the Belgian Aliens Office, according to which issuing a visa to enable them to lodge an asylum application in Belgium would be equivalent to allowing them to lodge an asylum application at a diplomatic mission, which falls outside the scope of application of the Asylum Procedures Directive, in accordance with Article 3(2). The applicants appealed the decision and exhausted all domestic remedies. One of the national courts which dismissed the case based its decision on the previous CJEU judgment X. and X., where the Luxembourg Court found the inapplicability of the EU Charter insofar as the Visa Code applied only to visits of less than 90 days, and that it could not therefore be applied in the context of an asylum request, which necessarily implied a longer stay. Similarly, the ECtHR declared the M.N. case to be inadmissible for lack of jurisdiction on the part of the Belgian State.

In reaching this outcome, the Court relied on its settled case law on establishing that extraterritorial jurisdiction is only justified in exceptional circumstances (para. 102). Such exceptional circumstances are only recognised in cases of “effective control over an area outside its national territory” (para. 104) or effective control over an individual when the State is exercising “power and physical control over persons”, usually in the form of use of force or physical custody (para. 105). In relation to the specific conduct of diplomatic officers, the Court recalled that extraterritorial jurisdiction can be established only when they exercise authority over their nationals or properties (para. 106). One may thus wonder why in the W.M. v. Denmark case, the (former) Commission for Human Rights accepted that the diplomatic agents were exercising jurisdiction over individuals (who were not Danish nationals) asking for protection within the premises of the embassy. The answer seems to be based on the existence of “other criteria of attachment” (M.N., para. 25).  In W.M., indeed, when the applicant refused to leave, the diplomatic agents called the DDR police and had them forcibly removed from its premises. Thus, “by their acts or omissions” (para. 1) they actively facilitated a violation of the Convention. Therefore, it appears that, unlike for the Inter-American Court, the mere presence in a diplomatic mission to ask for protection does not trigger jurisdiction, nor impose positive obligations of prevention on the part of the State.

This reading of the “criteria of attachment” could also explain why in certain circumstances the Court found that “even in the absence of effective control […]” a “State still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to applicants the rights guaranteed by the Convention” (Ilascu para. 331, cited in M.N, at 101). In that case, even if Moldova was not exercising authority or effective control over the region of Transnistria, the Moldovan Government still retained positive obligations under Article 1 insofar as it was the legitimate government and it had title over the territory. It thus seems that the Court accepts to lower the threshold of effective control to establish extraterritorial jurisdiction when there are factual circumstances proving a particular link between the applicants and the contracting State. In the view of the Court, the mere decision of a private individual to file a visa application at a diplomatic post does not establish such a link (para. 115).

It would be interesting to know, however, whether an “attachment” would be accepted if a contracting State voluntary decided to allow asylum seekers to submit applications at their diplomatic posts. This question was explicitly avoided in the recent case N.D. and N.T. v. Spain (para. 222). However, it has been argued that, since in that judgment the Court encouraged the applicants to use the embassy procedures to access protection, this entails that those procedures must be governed by the Convention guarantees. Although this issue remains unclear, it is apparent that, if an asylum seeker enters an embassy and refuses to leave the premises, the diplomatic agents will have no choice but to forcibly take that person out either by themselves or by requesting the authorities of the receiving State to do so. Following what has been said regarding W.M. v. Denmark, it appears that such a situation would trigger the jurisdiction of the State.

In practice, the joint reading of the Court’s and the former Commission’s case law could lead to an outcome which is, in fact, undesirable for States: asylum seekers might be encouraged to ask for asylum in diplomatic premises and, if their application is not processed, to refuse to leave the embassy with the aim of triggering the State’s jurisdiction. Once again, this ruling shows the schizophrenic dimension of the European asylum policy, which forces asylum seekers to engage in dangerous conducts to reach the EU external borders in order to submit an application for international protection, and it indirectly legitimises the increasingly common strategies of externalisation of border controls, aimed at preventing exactly that.

Had the Court followed the Inter-American approach, it would have paved the way to ending the often traumatic experiences that asylum seekers face in their long journeys to Europe. This interpretation would have been in line with the alternative approach to jurisdiction encouraged by some academics examining the difficulties of legally challenging the externalisation practices (see, for instance, Moreno-Lax’s most recent article). Indeed, a shift from a sharp division between territorial and extraterritorial conducts to a conception of jurisdiction based on assessing whether a Contracting State has “the capacity to determine a change in the real and/or legal position of those concerned with human rights-relevant implications” (at page 414) would help to create a more principled interpretation of jurisdiction. In this approach, territorial considerations are thus not relevant, and a Contracting State triggers jurisdiction every times it exercises “public powers” (in the form of judicial, executive or legislative activities) capable of having effects outside its territory (for a similar approach, see Gammeltoft-Hansen, at 384) –such as when it takes a decision on a visa application. Interestingly, Advocate General Mengozzi’s findings regarding jurisdiction in X and X were based exactly on the assumption that a Member State exercises jurisdiction every time it executes EU law, regardless of any territorial consideration or the future intentions of the applicants (para. 88). As a consequence, the positive obligations arising from the EU Charter need to be complied with, including taking all the necessary measures to avoid the risk of refoulement. Unfortunately for asylum seekers, both the CJEU and the ECtHR –which explicitly rejected this approach (M.N., para. 112)– have a different view.