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Nature and Scope of the Problem

  • C. Neale Ronning

Abstract

The term “asylum” is used to identify such a variety of phenomena that the following distinctions must be made before the problem can be properly discussed
  1. 1

    Between diplomatic and territorial asylum. The importance of this distinction was pointed out by the International Court of Justice in the Colombian-Perúvian Asylum Case,1 often referred to as the Haya de la Torre Case.

     

Keywords

Territorial State Draft Convention British Policy Diplomatic Agent High Treason 
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References

  1. 1.
    Colombian-Perúvian Asylum Case, Judgment of November 20th, 1950: I.C.J. Reports 1950, p.Google Scholar
  2. 2.
    Ibid., pp. 274-275.Google Scholar
  3. 1.
    Veras, Minister of Foreign Relations of Chile, to the Minister from the U. S., May 15 1851, Chile, Ministerio de Relaciones Exteriores, Jurisprudencia de la cancilleria chilena, hasta 1865, año de la muerte de Don Andrés Bello, por Alberto Cuchaga Ossa (Santiago de Chile; Imprenta Chile, 1935), p. 260. (My translation). Hereafter cited as Chile, Jurisprudencia de la cancillería chilena. This view is widely held among publicists. “It is almost unnecessary to point out the difference between protection afforded by a state to a refugee by granting him an asylum in or upon its diplomatic or consular buildings or public ships within the territory of the State that ‘wants’ him, and the protection which a refugee obtains by escaping to, or, running upon, the territory of a State other than the State that ‘wants’ him …” Lord McNair, International Law Opinions: Selected and Annotated (Cambridge: the University Press, 1956), p. 67.Google Scholar
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    L. Oppenheim, International Law: A Treatise (7th ed. by H. Lauterpacht; New York: Longmans, Green and Co., 1955), p. 793n. For similar expressions of policy in numerous diplomatic exchanges see Felice Morgenstern, “Extra-Territorial Asylum,” The British Yearbook of International Law, XXV (1948), pp. 236-240. For decisions to this effect by French, German, and Afghan courts see Herbert W. Briggs, The Law of Nations (2d ed.; New York: Appleton-Century-Crofts, 1952), pp. 790-791.Google Scholar
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    Doc. C. 196. M. 70 (1927), V, p. 79. The report of the full committee stated that it did not consider that the conception of ex-territoriality, whether regarded as a fiction or given as a literal interpretation, furnishes a satisfactory basis for practical conclusions.” Thus, so far as asylum was concerned, the Sub-Committee on Diplomatic Immunities said there was no need to pronounce upon the question since “all that is not connected at any rate directly, with diplomatic prerogatives.” Ibid., pp. 76, 80, The comment on Article 6, of the Draft Convention on Diplomatic Immunities of the Research in International Law, Harvard Law School, says: “With the rejection of exterritoriality as an explanation for the ‘inviolability’ of the premises of the mission, it becomes apparent that this inviolability can have no influence upon the personal status of the individuals upon the premises, or upon the law applicable to an offense occurring there.” American Journal of International Law, Supplement, XXVI (1932), p. 64.Google Scholar
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    Diplomatic Serial 998, Oct. 2, 1930, MS. Dept. of State, file 311.0022/10, quoted in Green H. Hackworth, Digest of International Law, II (Washington: U.S. Govt. Printing Office, 1941), p. 623.Google Scholar
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    Quoted in Herbert W. Briggs, The Law of Nations (2d. ed.; New York: Appleton-Century-Crofts, 1952), p. 768.Google Scholar
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    Ibid., p. 762. This is Moore’s translation of franchise des quartiers. While it will be observed below that franchise des quartiers is not the same as diplomatic asylum, the principle remains the same, i.e., both practices were largely the result of the imperfect establishment of state authority.Google Scholar
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    Sir Ernest Satow, A Guide to Diplomatic Practice (2d ed., revised; New York: Longmans, Green and Co., 1922), I, p. 310. The account in M. de Flassan, Histoire générale et raisonnée de la diplomatie française … (Paris: Treuttel et Wiirtz, 1811), II, pp. 6-8 suggests that this was a denial of a right of asylum generally, i.e., it was not a question whether or not this particular refugee could be granted asylum under a generally recognized practice. But this, like most accounts is very sketchy. See also Abraham de Wicquefort, L’ambassadeur et ses fonctions (Amsterdam, 1730), p. 414.Google Scholar
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    Satow, op. cit., p. 323.Google Scholar
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    See also Moore, op. cit., p. 759; Raoul Genet, Traité de diplomatie et de droit diplomatique (Paris: Libraire de la Cour d’Appel et de l’Ordre des Avocats, 1931), p. 557; P. Pradier-Fo-déré, Cours de droit diplomatique (Paris: Libraire de la Cour d’Appel et de l’Ordre des Avocats, 1899), II, p. 107.Google Scholar
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  22. 5.
    Note addressed to Count de Chamilli (no date), quoted in M. de Flassan, op. cit., IV, p. 234. (Translation by Charles Ruas).Google Scholar
  23. 1.
    Note of July 1, 1702, ibid., p. 236. (Translation by Charles Ruas).Google Scholar
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    Ibid., p. 238. See also Abraham de Wicquefort, op. cit., p. 414.Google Scholar
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    Op. cit., p. 195. (Translation by Charles Ruas).Google Scholar
  30. 2.
    The Duke of Newcastle, Secretary of State to His Britannic Majesty, to the Marquis de Pozzo Bueno [Spanish Ambassador to Britain], June 20, 1726, ibid., p. 199.Google Scholar
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    Ibid., p. 557.Google Scholar
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    The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, trans. J. Chitty (Philadelphia: T. & J. W. Johnson & Co., 1861), p. 469. But Moore, op. cit., p. 760 quotes Wicquefort, with approval: “all the advantage was on the ambassador’s side since the Pope, by surrendering the prisoners, tacitly owned he had done better not to have arrested them, and that he had made a noise for nothing.”Google Scholar
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    Satow, op. cit., p. 302; Moore, op. cit., p. 768.Google Scholar
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    Op. cit., p. 769.Google Scholar
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    Ibid., pp. 769-770: Pradier-Fodéré, op. cit., pp. 92-93, cites several cases which took place toward the end of the 19th century. With the exception of one in Spain (for which no date is given) all of them took place in the Middle East. They are of interest here primarily because they show the extent to which some writers have gone in trying to show that the practice of asylum is widely “recognized.” At the 1895 session of the institute of International Law held at Cambridge, an eminent member obseived that the cases of asylum were very rare and that “a diplomatic agent will never admit a refugee into his house.” On this matter Pradier-Fodéré observes that this affirmation was from several viewpoints inexact and offers some cases as evidence. He is forced to recognize that these cases were confined to the Middle East but observes that “one makes exceptions for the countries of the Orient; but Constantinople is in Europe and Turkey has been for a long time in the Concert of European States.” (My translation.) In 1862 asylum was granted in the British consulates in Greece, and in 1867 in Moldavia and Wallachia but the fact that both Greece and the Danubian principalities were at this time more or less under foreign tutelage leaves their relevance open to question. See Moore, op. cit., pp. 767-768.Google Scholar
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    DeLesseps, [French Chargé d’Affaires], to Pacheco, Perúvian Secretary of Foreign Relations, April 24, 1866, Perú, Secretaría de Relaciones Exteriores, Correspondencia diplomática relativa a la cuestión sobre asilo, publicado por orden de S. E. el Jefe Supremo Provisorio para ser presentada al Congreso Constituyente (Lima: Imprenta del Estado por J. Enrique del Campo, 1867), p. 19. (My translation.) Hereafter cited as Correspondencia diplomática relativa a la cuestión sobre asilo.Google Scholar
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    Rivero, Perúvian Minister to France and England, to Osori, Perúvian Minister of Foreign Relations, May 30, 1867, translation (enclosure in Hovey, U. S. Minister to Perú, to Seward, U. S. Secretary of State, July 14, 1867), For. Rel. of the U. S. 1876, I, p. 773.Google Scholar
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    1896, pp. 8-11, ibid.; McNair, op. cit., p. 76. (My italics).Google Scholar
  48. 1.
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  50. 3.
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  52. 1.
    “Proceedings of the Diplomatic Corps, In Assembly, Session of October 28, 1936, Chilean Embassy,” in Henry Helfant, The Trujillo Doctrine of Humanitarian Diplomatic Asylum (Mexico, D. F., 1947), pp. 197-200. The author of this treatise was secretary to the Diplomatic Corps in Madrid at this time. His record is in agreement with dispatches from the U. S. envoy to Madrid: Wendlin, Third Secretary of the U. S. Embassy in Spain to the Secretary of State, October 29, 1936, For. Rel. of the U. S., 1936, V, p. 749.Google Scholar
  53. 2.
    Giral, for the Spanish Ministry of State, to Lynch, Chilean Chargé d’Affaires, July 7, 1937, Chile, Memoria, p. 263. (My translation.)Google Scholar
  54. 1.
  55. 2.
    International Law and Diplomacy in the Spanish Civil Strife (New York: Macmillan, 1939), p. 68.Google Scholar
  56. 3.
    P. 436. (My translation.)Google Scholar
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    League of Nations, Council, Official Journal, 96th sess., 3rd Meeting, Jan 25, 1937, p. 97.Google Scholar
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  61. 1.
    Ibid. The French delegate urged that “no attempt should be made to render universal what was specifically a Latin American tradition. That tradition had on certain conditions not received a purely humanitarian interpretation.” The Indian delegate “could not accept the principle of extending the right of asylum to embassies and legations of foreign powers as that would give rise to serious disorders in non-American countries.”Google Scholar
  62. 2.
    Ibid., pp. 345-346.Google Scholar
  63. 3.
    Reprinted in A.J.I.L., Special Supplement, XXII (January, 1928) p. 108. (My italics.) These conclusions were amended and the final report simply said “Consuls do not possess this prerogative.” Ibid., p. 110.Google Scholar
  64. 4.
    A.J.I.L., Supplement, XXVI (1932), p. 62.Google Scholar
  65. 5.
    Ibid., p. 65. Arthur Kuhn, commenting on the 1948 Brussels sessions of the Institute of International Law, reported that “wide divergence of opinion was manifested concerning the article treating of asylum accorded in buildings of diplomatic missions and upon battleships and other war constructions. It was found impossible to reconcile differences and accordingly it was determined to postpone further consideration of the subject to the next session of the institute.” A.J.I.L., XIII (1948), p. 878.Google Scholar
  66. 1.
    Hugo Cabrai de Moncada, O asilo interno em direito international público (Coimbra, Brazil: Edição do Autor, 1946), pp. 58–62.Google Scholar
  67. 2.
    Op. cit., p. 242.Google Scholar
  68. 3.
  69. 4.
    P. 2. On Nov. 13, 1956, the New York Times, p. 21, reported that the White House had confirmed the receipt of a letter from Joseph Cardinal Mindszenty, reportedly carried from Hungary by a correspondent of the North American Newspaper Alliance. The letter said, in part: “as a shipwreck of Hungarian liberty I have been taken abroad by your generosity in a refuge of my own country as a guest of your legation. Your hospitality surely saved me from immediate death.”Google Scholar
  70. 1.
    The comment on the Draft Convention on Diplomatic Privileges and Immunities of the Harvard Research in International Law says: “ In event of the abuse of diplomatic privileges through the granting of asylum, the authorities of the receiving state are nevertheless obliged to respect the immunity of the mission. The sanction of the present article [Article 6, forbidding the grant of asylum to fugitives from justice] can be made effective only through the diplomatic channel.” A.J.I.L., Supplement, XXVI (January and April, 1932), p. 65. Thus, in United States v. Jeffers, 4 Cranch, Circ. Ct. Rep. 704, the court held that it was a violation of international law for a constable to enter the house of the secretary of the British legation and remove a fugitive slave.Google Scholar
  71. 2.
    Morgenstern, op. cit., p. 242.Google Scholar
  72. 3.
    See dissenting opinion of Judge Alvarez in Colombian-Perúvian Asylum Case, Judgment of November 20th, 1950: International Court of Justice Reports 1950, p. 292.Google Scholar

Copyright information

© Martinus Nijhoff, The Hague, Netherlands 1965

Authors and Affiliations

  • C. Neale Ronning
    • 1
  1. 1.Tulane UniversityNew OrleansUSA

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