Background
On April 5, 2024, Ecuadorian law enforcement agents made a dramatic move by storming the Mexican Embassy in Quito to arrest Jorge David Glas Espinel, the former Vice President of Ecuador. Glas had been sentenced to six years in prison and had sought asylum within the embassy, which was temporarily granted while he awaited territorial asylum in Mexico. Ecuador responded to the situation by claiming that the granting of asylum was an abuse of diplomatic privileges, justifying their actions to apprehend Glas. This incident marked a peak in rising tensions between Ecuador and Mexico, which had begun over the Mexican government’s comments about Ecuador’s elections. The situation escalated when Ecuador declared the Mexican Ambassador persona non grata, resulting in his expulsion. Following the embassy raid, Mexico announced that it was severing diplomatic ties with Ecuador and indicated plans to take the dispute to the International Court of Justice (ICJ)[1].
Jurisdiction
If Mexico follows through on its threat to take legal action, it will likely argue that Ecuador violated the 1961 Vienna Convention on Diplomatic Relations (VCDR) or the 1954 Caracas Convention on Diplomatic Asylum. However, one of Mexico’s first challenges will be establishing jurisdiction, as neither of these conventions includes provisions for bringing disputes to the International Court of Justice (ICJ). While Ecuador is a party to the Optional Protocol of the VCDR, which allows for compulsory dispute settlement, Mexico is not. Additionally, although Mexico has accepted the ICJ’s compulsory jurisdiction under Article 36(2) of its statute, Ecuador has not made such a declaration. Mexico’s strongest avenue for bringing a case could be through the 1948 American Treaty on Pacific Settlement, commonly known as the Pact of Bogotá, which does provide for ICJ jurisdiction in Article XXXI. This article covers disputes related to treaty interpretation and questions of international law, making it relevant to both the VCDR and the Caracas Convention. Both countries ratified the Pact, with Mexico doing so on November 23, 1948, and Ecuador on March 3, 2008[2].
Ecuador could challenge the ICJ’s jurisdiction in a couple of ways. One option would be to invoke its reservation to the Pact of Bogotá, claiming that any provision conflicting with the principles of the UN Charter, the OAS Charter, or Ecuador’s Constitution should not apply. However, this argument is unlikely to succeed, as peaceful dispute resolution aligns with the principles of these international instruments. Another potential argument for Ecuador would be that the dispute falls within its domestic jurisdiction. Article V of the Pact states that its peaceful procedures do not apply to matters considered domestic by nature. However, this argument is also weak. Given that the dispute involves international law and obligations from treaties both countries have engaged with, it would be hard for Ecuador to convince the ICJ that the matter is purely domestic. Furthermore, Article V[3] specifies that any disagreement over whether a matter is domestic or international must be determined by the ICJ itself if requested by either party.
Since Ecuador has a reservation regarding Article VI[4] of the Pact and given that no mutual agreement has been reached about the issues at hand, this provision is not applicable in this case. The severing of diplomatic relations following the embassy raid further solidifies this conclusion. It seems likely that Mexico will successfully establish the ICJ’s jurisdiction over this matter. Ecuador cannot simply withdraw from the Pact of Bogotá to avoid this, as such a withdrawal requires a year’s notice and does not affect ongoing processes.
Breach of Inviolability
Mexico’s main complaint in this situation will likely centre on the raid of its embassy in Quito, especially after Ecuador refused to hand over Jorge Glas. Regardless of any irregularities in Glas’s asylum, it’s probable that the International Court of Justice (ICJ) will deem the raid a violation of the Vienna Convention on Diplomatic Relations (VCDR), drawing parallels to the Tehran Hostages case. Article 22 of the VCDR[5] ensures the inviolability of embassy premises, and any entry by local authorities, even to apprehend a fugitive, requires the embassy’s consent. Additionally, Mexico has raised concerns about the treatment of its embassy staff, which falls under Article 29 of the VCDR[6]. This article mandates that diplomatic agents must be treated with respect, safeguarding their person, freedom, and dignity.
Even if Ecuador could prove that Mexico misused its diplomatic privileges by granting asylum to Glas, such actions would still violate the VCDR. The ICJ’s reasoning in the Tehran Hostages case makes it clear that diplomatic law operates as a self-contained regime; there are no countermeasures that can compromise the inviolability of a diplomatic mission. Ecuador’s only legitimate responses would have been to declare certain agents’ persona non grata (as it did with the Mexican Ambassador) or to sever diplomatic ties entirely. Ecuador’s public statement referencing a supposed armed conflict in Mexico as justification for its actions is also unlikely to hold up. The ICJ has affirmed that the inviolability of diplomatic missions must be respected even during armed conflicts or strained diplomatic relations. The reaction from other Latin American countries adds another layer to the situation. Nicaragua has cut diplomatic ties with Ecuador, citing violations of international law and diplomatic conventions. Guatemala condemned the raid as a blatant breach of the VCDR. Argentina echoed these sentiments, also mentioning a violation of the Caracas Convention[7]. Honduras condemned the raid and called for a meeting of the Troika of the Community of Latin American and Caribbean States (CELAC). Colombia stated that the raid infringed upon both the VCDR and Mexico’s sovereignty in Ecuador. Chile also expressed solidarity with Mexico and condemned the violation of its sovereignty. The Organization of American States (OAS) lamented Ecuador’s actions as incompatible with international law and called for a meeting to discuss the issue.
Ecuador is likely to find itself in a challenging position, especially when considering its past experience with Julian Assange. In 2012, the UK warned Ecuador that harbouring Assange in its embassy could lead to legal action against him, based on its Diplomatic and Consular Premises Act. Ecuador reacted with alarm, viewing the potential for unauthorized entry as an “attack on our sovereignty.” The country characterized the threat of non-consensual entry as unacceptable for a democratic nation and a dangerous precedent that could undermine the sanctity of embassies. This historical context complicates Ecuador’s current stance in light of its own principles on diplomatic inviolability.
Granting of Diplomatic Asylum
Throughout this process, Ecuador could counter Mexico’s claims by alleging a breach of international law related to the granting of diplomatic asylum to Jorge Glas. According to Article 80(1) of the ICJ Rules of Court[8], this counterclaim falls under Article XXXI of the Pact of Bogotá[9], as the asylum granted to Glas is directly linked to the events surrounding the embassy raid. The legality of granting asylum isn’t a new issue for the ICJ, which has addressed similar questions in past cases, such as the Asylum and Haya de la Torre cases. In those instances, the ICJ noted that granting diplomatic asylum is a significant action that impacts the sovereignty of the host state, effectively removing the individual from its jurisdiction. Any justification for this action must be clearly established for each case.
Fortunately, we don’t need to explore the complex question of whether customary international law provides a right to grant diplomatic asylum, as the relevant legal basis here is the Caracas Convention, which both Mexico and Ecuador ratified without reservations. The main issue is whether Glas’s asylum was granted according to that treaty and what implications that has. Under Article I of the Caracas Convention[10], asylum granted in embassies must be respected by the host state, in this case Ecuador, if it was conferred in compliance with the treaty. Glas sought protection from Mexico, citing political persecution by Ecuador’s attorney general, although the specifics of that persecution remain unclear. If these claims were not adequately substantiated, Mexico would have had to either ask Glas to leave the embassy or turn him over to Ecuadorian authorities as per Article III[11].
Ecuador’s position prior to the raid was that the asylum was improper, asserting that Glas had been charged with common crimes following due legal processes. In a public statement, Ecuador argued that the embassy’s protection of Glas contradicted Mexico’s obligations under various international conventions, including the Caracas Convention and the VCDR. Consequently, Ecuador refused Mexico’s request for safe conduct. The ICJ will need to address two main questions: (a) whether the documentation supporting Glas’s asylum claim justifies its granting, and (b) the extent to which Mexico’s right to determine the nature of the offense under Article IV[12] of the Caracas Convention can be reviewed by the ICJ. Following the reasoning in the Djibouti v. France case, this right must be exercised in good faith, ensuring that the reasons for granting asylum align with the stipulations of the Caracas Convention.
The Court would likely analyse whether Glas’s asylum was based on a credible fear of arbitrary action by Ecuador or if it undermined the normal functioning of the criminal justice system. Relevant factors might include past asylum cases under the Caracas Convention, such as the María de los Ángeles Duarte incident with Argentina, the various legal proceedings involving Glas and other former Ecuadorian officials, and the fact that Ecuador unlawfully raided the Mexican Embassy to enforce its laws. If the ICJ finds that Glas was lawfully prosecuted for a common offense, it could determine that the asylum was improper, potentially requiring Mexico to hand him over to Ecuador. Conversely, if the asylum is deemed valid, Mexico could argue that Ecuador was obligated to let Glas leave its territory and provide the necessary safe conduct and guarantees, as outlined in Article XII of the Caracas Convention[13].
Conclusion
The protection of diplomatic mission premises is a cornerstone of international law, integral not only to the functioning of diplomacy but also to the maintenance of peaceful relations between states. This principle is enshrined in various treaties, notably the Vienna Convention State in accordance with the provisions of this Convention. For the purposes of this Convention, a legation is any seat of a regular diplomatic mission, the residence of chiefs of mission, and the premises provided by them for the dwelling places of asylees when the number of the latter exceeds the normal capacity of the buildings. War vessels or military aircraft that may be temporarily in shipyards, arsenals, or shops for repair may not constitute a place of asylum.
On Diplomatic Relations (VCDR), which affirms that diplomatic missions should be inviolable and free from interference by the host state. Mexico’s outrage over the recent raid on its embassy in Quito highlights the seriousness of this violation. Such actions undermine trust between nations and challenge the foundational norms that govern international relations. Given the gravity of the situation, it seems unlikely that Mexico will withdraw its intent to pursue legal action in the International Court of Justice (ICJ). This move underscores the importance of addressing not only the specific incident but also the broader implications for diplomatic conduct.
The ICJ’s consideration of this case will allow it to explore critical questions surrounding the granting of diplomatic asylum. Historically, the court has addressed issues of asylum in past cases, establishing that while states have the right to grant asylum, this right comes with responsibilities and limitations, particularly concerning the host state’s sovereignty. In this context, the court may need to revisit its precedents and clarify the legal standards governing diplomatic asylum, especially when allegations of abuse of diplomatic privileges arise. This case is significant because it may help define the boundaries of diplomatic privileges and immunities. The ICJ will have the opportunity to evaluate whether the asylum granted to Jorge Glas by Mexico was in line with the stipulations of the Caracas Convention and whether Ecuador’s actions were justified under international law. The court’s ruling could set important precedents, influencing how similar disputes are resolved in the future and reinforcing the principle that embassies are sanctuaries for those seeking protection.
Moreover, the outcome could ripple through the international community, shaping diplomatic practices and norms across various regions. If the ICJ finds in favor of Mexico, it could reaffirm the inviolability of diplomatic missions and emphasize that no state can unilaterally disregard international law in favor of domestic interests. Conversely, if it sides with Ecuador, it might lead to a re-evaluation of the conditions under which diplomatic asylum is granted, potentially enabling states to act more freely in similar circumstances. Ultimately, this case is not just about the specific actions of Ecuador and Mexico; it touches on the fundamental principles of international relations, sovereignty, and the rule of law. The ICJ’s decision could resonate well beyond this dispute, reminding all states of the importance of adhering to established international norms and fostering respectful diplomatic relations.
[1] Völkerrechtliche Tagesthemen, Lancaster University’ (research.lancs.ac.uk <https://www.research.lancs.ac.uk/portal/en/publications/mexico-v-ecuadorecuador-v-mexico-with-diplomaticasylum-back-before-the-icj-can-legal-certainty-on-this-divisive-issue-finally-be-won(aae4169c-7b4a-460f-b4a9ce4be7ba6bd7).html> accessed 24 September 2024
[2] ‘Current Issues in International Law’ (Uni Kiel) <https://www.uni-kiel.de/en/law/research/wsi/events/currentissues#> accessed 24 September 2024
[3] Article V of the Pact of Bogotá states that “The aforesaid procedures may not be applied to matters which, by their nature, are within the domestic jurisdiction of the state. If the parties are not in agreement as to whether the controversy concerns a matter of domestic jurisdiction, this preliminary question shall be submitted to decision by the International Court of Justice, at the request of any of the parties.”
[4] Article IV of the Pact of Bogota stated that “Once any pacific procedure has been initiated, whether by agreement between the parties or in fulfillment of the present Treaty or a previous pact, no other procedure may be commenced until that procedure is concluded”.
[5] Article 22 of the VCDR states that “The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”
[6] Article 29 of the VCDR states that “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”.
[7] Convention on Diplomatic Asylum, 1958.
[8] Article 80(1) of the ICJ Rules of Court states that “The Court may entertain a counterclaim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party”.
[9] Article 31 of the Pact of Bogotá states that “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.
[10] Article 1 of the Caracas Convention states that “Asylum granted in legations, war vessels, and military camps or aircraft, to persons being sought for political reasons or for political offenses shall be respected by the territorial
[11] Article III of the Caracas Convention states that “Asylum granted in legations, war vessels, and military camps or aircraft, to persons being sought for political reasons or for political offenses shall be respected by the territorial State in accordance with the provisions of this Convention. For the purposes of this Convention, a legation is any seat of a regular diplomatic mission, the residence of chiefs of mission, and the premises provided by them for the dwelling places of asylees when the number of the latter exceeds the normal capacity of the buildings. War vessels or military aircraft that may be temporarily in shipyards, arsenals, or shops for repair may not constitute a place of asylum”.
[12] Article IV of the Caracas Convention states that “It shall rest with the State granting asylum to determine the nature of the offense or the motives for the persecution”.
[13] Article XII of the Caracas Convention states that “Once asylum has been granted, the State granting asylum may request that the asylee be allowed to depart for foreign territory, and the territorial State is under obligation to grant immediately, except in case of force majeure, the necessary guarantees, referred to in Article V, as well as the corresponding safe conduct”.
