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On 11 April 2024, Mexico instituted proceedings before the International Court of Justice (ICJ) in relation to Ecuador’s storming of the Mexican Embassy in Quito to retrieve former Ecuadorian Vice President Jorge David Glas Espinel, who had sought asylum there to avoid domestic criminal proceedings against him. Ecuador responded on 29 April 2024 by instituting proceedings of its own, alleging, inter alia, that the asylum granted to Mr. Glas constituted an abuse of Mexico’s diplomatic privileges and conventions against corruption (why it did not file this claim as a counter-claim to Mexico’s claims remains a mystery). With remarkable foresight, an Assistant Professor of Law at Universidad Francisco Marroquín, Mr. Páez, has discussed on EJIL:Talk! the main legal issues arising from the two cases before they were instituted, including how Mexico could establish the jurisdiction of the ICJ through the broad compromissory clause in the Bogotá Pact; the reasons why Mexico should focus on claiming violations of the 1961 Vienna Convention on Diplomatic Relations (VCDR) and/or the 1954 Caracas Convention on Diplomatic Asylum (Caracas Convention) without relying on customary international law; and the standard of review the ICJ should apply in examining whether Mexico had granted Mr. Glas asylum in conformity with its right to do so under Articles IV and VII of the Caracas Convention.
Undoubtedly, Mr. Páez has performed an exemplary task in attempting to cover such an extensive topic in a rather condensed space. However, I believe in the broadness of the task Mr. Páez has sought to undertake, three points have been glossed over that would benefit from further examination: (1) the extent of diplomatic law as a self-contained regime; (2) why Mexico should argue for the customary right to diplomatic asylum; and (3) the appropriate standard of review for the self-judging clauses under the Caracas Convention. These points will be elaborated upon below.
The extent of diplomatic law as a self-contained regime
Mr. Páez notes in passing, as most of us do in any discussion of a breach of international diplomatic law, “the law of diplomacy is a self-contained regime; it admits of no countermeasures that could affect the inviolability of the diplomatic mission” (citing Tehran Hostages, para. 86). In his view, this means that “even if it could be established that Mexico abused the privileges and immunities of the mission by granting asylum to Jorge Glas…”, the diplomatic mission was still entitled to total inviolability. Accordingly, Ecuador had no right to storm the mission and should have instead relied on possible remedies within the VCDR regime.
This assertion is somewhat difficult to sustain. While the Court assigned great importance to the inviolability accorded diplomatic agents and mission premises in paragraph 86 of Tehran Hostages, in the very same paragraph, the Court acknowledged that the observance of this inviolability does not preclude authorities of a host State from briefly arresting a diplomatic agent caught in medias crimen. Seeing as arrest of a diplomatic agent is not a remedy found in the VCDR (in fact, “any form of arrest” is prohibited by Article 29 VCDR), it becomes clear that the VCDR is not an exhaustive self-contained regime. But why would the Court acknowledge the possibility of invoking a remedy outside the VCDR, and even possibly breaching it? The purpose of invoking remedies under the VCDR is to pursue “efficacious” means to “counter any… abuse” (Tehran Hostages, para. 86). In the case of the diplomatic agent caught red-handed, relying on remedies within the VCDR, such as declaring her persona non grata, would be tantamount to allowing her to continue the offense while warning her that she may eventually be “sent packing”. This does not directly counter the abuse; in other words, it is simply not efficacious. Of course, it goes without saying that efficacy does not determine legality. But it does tell us that there are certain abuses that are not foreseen by the VCDR and that such abuses can only be remedied by extrinsic means.
The relationship between general international law (including rules on countermeasures) and self-contained regimes has been discussed at greater length by the ILC Study Group on Fragmentation of International Law here, on pages 12-13. There, the Study Group stated that general international law covers gaps in special regimes and may even step in where “special laws have no reasonable prospect of appropriately addressing the objectives for which they were enacted”. In the specific context of the supposed self-contained regime of diplomatic law, Arangio-Ruiz, writing in his capacity as Special Rapporteur on State Responsibility, noted in his Fourth Report on State Responsibility, para. 87, that countermeasures bypassing inviolability were not untenable, but that they should not defeat the ratio of diplomatic privileges, namely “unhindered international communication” (citing Röling, page 147).
Returning to the example of the detained diplomat, we have already established that the remedies under the VCDR are not efficacious in her particular case, thereby granting us access to remedies under general international law. Her arrest can therefore be construed as a countermeasure which would be lawful only insofar as it does not hinder international communication and conforms to the customary rules governing countermeasures, such as the principle of proportionality (See ARSIWA, Articles 22, 49-54).
The same may hold true in Ecuador’s case. Mexico’s “abuse” of its diplomatic premises is one that cannot be fixed by declaring a diplomatic agent persona non grata or by breaking off diplomatic relations. (In the event of the latter, the sending State may entrust the custody of the mission and its interests to a third State deemed acceptable by the host State, consistent with Article 45(b) and (c) VCDR. However, the most likely outcome following the invocation of this remedy is that no third State will be agreed upon, and Mr. Glas will be thrown into legal limbo, enjoying de facto asylum as he will remain free from Ecuador’s jurisdiction.) Thus, Ecuador may find that it is not constrained by the outer limits of the VCDR regime in seeking remedies for Mexico’s “abuse”, although it will still have to prove its actions conformed to the customary rules governing circumstances precluding wrongfulness.
Why Mexico should argue for the customary right to diplomatic asylum
I am always surprised whenever international lawyers point to the 1950 Asylum judgment as evidence that a right to grant diplomatic asylum has not attained customary status. After all, the issue under review there was not whether a customary rule had emerged conferring upon States a right to grant diplomatic asylum, but rather whether States have the right to unilaterally qualify, in the territory of another State, a person as having committed an offense for which diplomatic asylum could be granted (see 1950 Asylum judgment, p. 282-283 as well as the first prayer decided in the dispositif).
(Oddly enough, while the Court held that Colombia had no right to unilaterally qualify Mr. Haya de la Torre’s alleged offenses as being non-common crimes, it went on to find that the offenses charged were indeed non-common crimes, effectively ratifying Colombia’s violation of Article I of the Havana Convention. This implies diplomatic asylum may be granted, but only for non-common, political offenses that can be qualified as such objectively.)
The Court ended up deciding against the existence of this right, with a major factor motivating its decision being Peru’s non-ratification of the Montevideo Conventions, which provided for Colombia’s putative right of unilateral qualification (1950 Asylum judgment, p. 278).
That was in 1950.
But the situation is different today. Following the Asylum judgment, the Latin American States created the Caracas Convention precisely to address the Court’s issues with the concept of unilateral qualification. This time, Peru not only signed, but also ratified that Convention. Moreover, attitudes towards diplomatic asylum have shifted, beginning with the UN Secretary-General’s Question of Diplomatic Asylum report taking the temperature on customary law in 1975, followed in subsequent years by multiple instances of diplomatic asylum being granted worldwide, the most famous, of course, being Ecuador’s own granting of diplomatic asylum to Julian Assange.
Still, even if the argument for a customary right to diplomatic asylum can be made, why argue it when there are easier treaty violations to claim? Well, as the ICJ has acknowledged on multiple occasions, the material of customary international law may be found in pleadings before international courts (see 2012 Jurisdictional Immunities, para. 55; 2023 200 Nautical Miles, para. 67). While Mexico today may benefit from the Caracas Convention, other countries around the world may only have the customary rule upon which they may rely. It would be a shame if those countries were to grant diplomatic asylum to a person fully deserving of it, only for another State or court to rule such asylum unlawful because no rule of customary law had been asserted in the “Glas” proceedings.
I would also briefly note that Mr. Páez suggests the classification of the asylum granted to Mr. Glas as diplomatic asylum could be raised by Ecuador as a counter-claim, but I do not follow why Ecuador would do this. After all, it is not the grant of diplomatic asylum that might violate international law, but the fact of withdrawing the asylee from the criminal jurisdiction of the host State that violates the prohibition of non-intervention (see 1950 Asylum judgment, p. 275). Thus, if it can be demonstrated that the asylee was withdrawn from the criminal jurisdiction of the host State, any further analysis into whether such withdrawal took place under the heading of diplomatic asylum would be superfluous, unless it had been established that diplomatic asylum was a customarily accepted exception to the non-intervention principle. But even in that case, the classification of the asylum granted would be an argument for Mexico to make, not Ecuador.
The standard of review for the self-judging clauses under the Caracas Convention
As Mr. Páez writes in his piece, a large chunk of the “Glas” case will turn on whether Mexico had conferred diplomatic asylum in conformity with the Caracas Convention. Here, it should be noted that Articles IV and VII of the Caracas Convention contain self-judging language: both clauses state that “it rests with the State granting asylum [Mexico, in this case,] to determine” whether the conditions to lawfully grant asylum had been met.
In Mr. Páez’s view, the language of the aforementioned articles does not exempt Mexico’s determination from review. However, it is unclear what standard of review he proposes the ICJ should apply. First, he argues that the appropriate standard is one of “good faith, which requires that the reasons for the granting of asylum do not contradict Articles II-VII of the Caracas Convention”. But in the next sentence, Mr. Páez proposes a de novo review, namely “whether the conferral of asylum to Jorge Glas was based on a credible fear of arbitrary action on the part of Ecuador or if it opposed the regular operation of criminal justice”. Then, he seems to refer to a standard of objective reasonableness (such as the one supposedly employed by the ICJ in Whaling in the Antarctic, paras. 67-68), which involves a consideration of other practice under the Caracas Convention and the concrete facts on the ground.
This is not brought up to be pedantic, but rather because standards of review have been a bit of a stumbling block for the ICJ, with Whaling in the Antarctic obscuring this exercise by imprecisely importing the objective reasonableness standard from the WTO (a fact Judge Owada lamented in his Dissenting Opinion to the Whaling case here, in paras. 37-38). In respect of self-judging clauses, international jurisprudence seems to widely concur that the appropriate standard of review for conduct adopted thereunder is one of “good faith” (see Mutual Assistance, para. 145 and the practice of WTO Panels and investment arbitral tribunals as discussed by Schill and Briese here, in pages 107-113). This follows from the basic logic that a self-judging clause would be deprived of its effect if the substantive correctness of a State’s decision adopted thereunder could be subject to “appeal” by a third party like the ICJ. Accordingly, the de novo and objective reasonableness standards proposed by Mr. Páez are too far-reaching and should be excluded.
(I would briefly add that I do not consider “good faith” to be a standard of review, but simply a separate obligation with which States invoking self-judging clauses must comply; indeed, States are always under an obligation to implement their treaties in good faith.)
But does a good faith review entail, as Mr. Páez puts it, an examination of whether “the reasons for the granting of asylum do not contradict Articles II-VII of the Caracas Convention”? Indubitably, Mexico’s exercise of discretion cannot contradict Articles II-VII of the Caracas Convention. But the obligation to comply with these articles arises from the articles themselves, not the good faith obligation attached to the implementation of Articles IV and VII of the Caracas Convention. Instead, the more appropriate test is whether an international judge, without examining the substantive correctness of the decision taken by the State endowed with discretion, would be satisfied that the State had assessed, with sufficient rigor, the compatibility of its actions with the aims of the Convention concerned (see Declaration of Judge Keith in Mutual Assistance, para. 10). In my opinion, only this method of review simultaneously honors the broad discretion enjoyed by States when invoking self-judging clauses, while still imposing appropriately fettered international control.
Conclusion
In conclusion, the legal battle between Mexico and Ecuador over the storming of the Mexican Embassy in Quito and the asylum granted to former Ecuadorian Vice President Jorge David Glas Espinel presents a complex interplay of international diplomatic law and the principles governing diplomatic asylum. While Mr. Páez has laid a robust foundation in his EJIL:Talk! article by examining the jurisdiction of the ICJ under the Bogotá Pact and the application of the 1961 Vienna Convention on Diplomatic Relations and the 1954 Caracas Convention on Diplomatic Asylum, three critical areas require deeper scrutiny.
First, the characterization of diplomatic law as a self-contained regime needs a nuanced understanding of how general international law interacts with specific regimes like the VCDR, especially in scenarios where the regime’s remedies are ineffective. Second, Mexico's strategic decision to invoke a customary right to diplomatic asylum could have broader implications for international law, potentially aiding other nations facing similar situations in the future. Finally, the standard of review for self-judging clauses under the Caracas Convention is pivotal. A review grounded in good faith, ensuring Mexico's assessment aligns with the Convention’s objectives, strikes a balance between state discretion and international oversight.
As the ICJ navigates these intricate legal questions, its rulings will not only resolve the immediate conflict but also contribute to the evolving jurisprudence on diplomatic immunity and asylum. This case underscores the delicate balance between respecting diplomatic privileges and addressing potential abuses within the international legal framework.
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