• 問得莫要太隨便!|戴啟思
  • 2020-11-07    

  • 問得莫要太隨便!|戴啟思

 

“Please Do Not Ask for Asylum-a Refusal Often Offends”

This week saw reports that at least one person had attempted to claim political asylum at the premises of the U.S. Consul General on Garden Road in Central.

It would be wrong to speculate whether these reports are entirely accurate. As yet, there is no official account of what transpired at the Consulate. However, the story has thrown light on an interesting legal issue. That issue is whether diplomats may, acting consistently with international law, give refuge to foreign nationals in diplomatic premises in the country to which they are accredited.

This kind of protection is called “diplomatic asylum”. It stands in contrast to the legal concept of “territorial asylum” which is the right of counties to offer asylum when a claim is made by a foreign national in a foreign country.

The right of countries to grant territorial asylum to foreign nationals is universally accepted, even though the grant of asylum may be a source of irritation to the refugee’s country, as has been the case with the reaction to Germany recently granting asylum to some Hong Kong permanent residents.

The answer to the question whether diplomatic asylum is universally recognized is a clear ‘No’. Only a few countries accept that foreign governments have the right to extend protection to persons entering their diplomatic premises who seek asylum.

The objection to diplomatic asylum is that the foreign government is interfering in the domestic affairs of the host country by removing the person seeking asylum from the effective jurisdiction of the host nation.

Although international law imposes obligations on states to recognize that diplomatic premises are out of bounds to the host state, that immunity does not turn the embassy or consulate into foreign territory. The foreign state occupying diplomatic premises remains the guest of the host state for as long as diplomatic relations continue.

However, if a foreign national is admitted to stay on diplomatic premises, the host foreign government will not usually try to enter the embassy or consulate, as the case may be, to remove the individual. The ‘guest’ will remain until a solution is found to their awkward stay or until they leave voluntarily or the foreign government terminates the permission to remain inside.

The reason for this forbearance is that, although diplomatic asylum is a fragile concept in international law, the requirement of a host state to respect the physical integrity of an embassy or consulate is deeply rooted in international law.

The Julian Assange saga comes to mind. In 2012 Mr Assange, an Australian, was living in London. The Swedish Government wanted him for alleged sexual offences committed in that country, and his extradition was sought. Mr Assange believed that, if extradited to Sweden, there was a good chance he would be extradited again to the USA where he would face charges connected with national security offences arising from the ‘Wikileaks’ disclosure of secret documents in 2010.

Mr Assange jumped bail and entered the Ecuadorean Embassy In London in June 2012 and sought refuge there. It was not a random choice. Along with many other countries in Latin and Central America, Ecuador claims the right to offer protection to foreign nationals in its embassies. The Ecuadorean Government granted Mr Assange diplomatic asylum.

The United Kingdom, along with most other countries, does not recognize diplomatic asylum. However, it respected the physical integrity of the embassy premises and, for the next seven years, contented itself wait to see if Mr Assange tried to leave it surreptitiously.

That expensive police surveillance on the Ecuadorean embassy ended when, in April 2019, after a serious falling-out with Mr Assange, the Government of Ecuador withdrew its diplomatic protection and invited the police to enter the embassy and remove him. Mr Assange is now in custody in a British prison awaiting the result of extradition proceedings brought by the USA.

However, even countries that do not recognize diplomatic asylum, sometimes claim the right to offer protection to embassy ‘guests’ on purely humanitarian grounds. They admit foreign nationals to their diplomatic premises in a foreign state because the individual faces death, torture or other inhumane treatment at the hands of the foreign state.

The last century’s most famous case of diplomatic asylum was the case of the Hungarian Cardinal of the Catholic Church, Josef Mindszenty.

Cardinal Mindszenty urged opposition to the ruling fascist party in wartime Hungary and was detained in 1944 until the end of the war in 1945. The Cardinal then directed his attention to the new Communist Government which was atheistic and banned religious orders. He was a thorn in the side of the Communists who put him on trial in 1949 for alleged support of anti-Government foreign bodies.

The trial was, rightly, denounced as a show trial by some Western governments. A court sent the Cardinal to prison for life. He was only released in October 1956 when a popular rebellion overthrew the Communist Government.

During a few short days before Russian troops arrived to restore the status quo the Cardinal gave his unqualified support to the anti-Communist insurgent forces and broadcast this message.

When the Russians arrived in early November, the Cardinal was not able to leave the country. He sought refuge in the US Embassy in. Budapest. The US Government granted him refuge inside the embassy on extreme humanitarian grounds. Politicians who, like the Cardinal, supported the short-lived revolution paid for that support with their lives. The Cardinal would have likely met the same fate after another show trial. The US State Department would have factored this likely end of the Cardinal into its decision to grant him refuge.

Cardinal Mindszenty’s stay in the US Embassy was long one. He left the US Embassy 15 years later in September 1971 only after Pope Paul VI negotiated a settlement acceptable to the Hungarian Government. The Cardinal died in exile in 1975. He had spent just over 23 years of his 83 years of life in confinement in prison, under house arrest and in the US Embassy in Budapest.

Cases like that of Cardinal Mindszenty are rare. International law still remains that there is no right to claim diplomatic asylum and there is no obligation on foreign states to entertain asylum claims except in their own territory. No one should plan on obtaining diplomatic asylum in Hong Kong by pleading for asylum at consular premises.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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