By Virdzhiniya Petrova Georgieva, Professor of International Law at Ibero American University, Mexico City campus

The current diplomatic crisis between Mexico and Ecuador raises important questions on the legality of the granting of diplomatic asylum to Jorge Glas- the former Ecuadorian Vice- President – at the Mexican Embassy in Quito, Ecuador. It will probably be assessed according to the principle of states´ territorial sovereignty and the principle of non-interference in states´ domestic affairs, considering the existence of humanitarian grounds to afford the asylum. In addition, the legality of Glas´ asylum will have to be evaluated under the Latin American treaties on diplomatic asylum.

Glas’ diplomatic asylum vs. the territorial sovereignty of Ecuador

Unlike political asylum, which is based on the principle of territorial sovereignty of the State, diplomatic asylum constitutes an exception or even a violation of this principle.[1] Diplomatic asylum violates the principle of exclusivity of the territorial sovereignty of the State because it allows the sending State (i.e. the State that grants the asylum) to exempt an individual from the jurisdiction of the domestic courts of the receiving State over acts committed by the individual on this same territory.

The International Court of Justice (ICJ) referred to this problem in the “Asylum” case (Colombia vs. Perú). The Court considered that the decision to grant diplomatic asylum constitutes a “derogation” from the territorial sovereignty of the receiving State, as this decision “evades the offender of justice.”[2] In its Advisory Opinion on Diplomatic Asylum, the Inter-American Court of Human Rights (IACHR) also found that diplomatic asylum violates the principle of territorial sovereignty.[3]

In this sense, the official position of Ecuador is that Mexico has violated its territorial sovereignty through “the granting of diplomatic asylum” to Jorge Glas, which “constitutes an illicit act (…), as it supports an evasion of the justice of the Ecuadorian State and promotes impunity”.

The granting of Glas’ diplomatic asylum on “humanitarian grounds” for the protection of his human rights

Mexico would probably argue that the diplomatic asylum granted to Jorge Glas was legal because it was intended to preserve his life and physical integrity and to guarantee his human rights against political persecution and a denial of justice.

The doctrine of international law has suggested that diplomatic asylum may be justified on “humanitarian grounds” where it protects individuals´ human rights against the actions of the territorial State.[4]

In the Asylum case, the ICJ did not address the humanitarian considerations that might provide justification for the granting of a diplomatic asylum. However, the Court noted that: “an exception to this rule (asylum should not be granted by those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice was corrupted by measures clearly prompted by political aims”.[5]

Jorge Glas has been convicted twice for corruption in Ecuador and spent eight years in prison. Shortly after his release, he faced new charges for corruption. His lawyer stated that all the cases for corruption were initiated on clearly political grounds and that the judges that voted against his previous convictions were removed from the bench or left Ecuador. After his arrest at the Mexican Embassy in Quito, he has been isolated and admitted to hospital because of an overdose of medicines.[6] If Mexico is able to prove that the Ecuadorian state used its domestic judicial system to politically persecute Jorge Glas, it could be possible to argue a denial of justice, as a gross violation of his human rights, and sustain that the diplomatic asylum was the only tool for the extraterritorial protection of his human rights.

Glas’ diplomatic asylum and the principle of non-intervention in Ecuadorian domestic affairs

Diplomatic asylum also goes against a general principle of international law: that of non-interference in states´ domestic affairs.  Pursuant to Article 2, paragraph 7, of the UN Charter: “No provision of this Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of States (…).” The principle of non-intervention is recognized in specific provisions of the Vienna Convention on Diplomatic Relations. According to Article 41:

1. Without prejudice to their privileges and immunities, all persons enjoying such privileges and immunities shall respect the laws and regulations of the receiving State. They are also obliged not to interfere in the internal affairs of that State. (…) 3. The premises of the mission must not be used in a manner incompatible with the functions of the mission as they are enunciated in the present Convention, in other norms of general international law or in the agreements that are in force between the sending State and the receiving State.

Therefore, Ecuador is expected to argue that, by granting diplomatic asylum to Jorge Glas, Mexico, the sending State, and the members of its permanent diplomatic mission in Quito committed undue interference in the internal affairs of Ecuador and used the premises of the Mexico´s Embassy in Quito for purposes incompatible with the exercise of their diplomatic functions.

The appreciation of the respect for the principle of non-interference in state´s domestic affairs will have to take into consideration the impact of the granting of diplomatic asylum to Glas in the deep political crisis that Ecuador faces since 2023. In a classic understanding, the principle of non-intervention means that Mexico should have refrained from: organizing, supporting, encouraging, financing, instigating, or tolerating armed, subversive, or terrorist groups, aimed at changing the regime in Ecuador through violence, and of intervening in the internal struggles and political conflicts in Ecuador. President Daniel Noboa has argued that Ecuador is facing a non-international armed conflict after the extraordinary presidential elections which brought him to the Government for a provisional 18-month period. The political division of the society and the new presidential elections create a context of political crisis vulnerable to foreign interventions. However, it is crucial to consider the extent to which the diplomatic asylum of Glas is a direct and illicit intervention in the political conflict and/or the non-international armed conflict in Ecuador. According to the ICJ’s findings in the Nicaragua case, the non-coercible nature of the diplomatic asylum would be the decisive factor in appreciating Mexico´s respect for the principle of non-intervention.[7]

The legality of Glas’ diplomatic asylum according to Latin American Treaties

There are no binding conventional rules on diplomatic asylum at the universal level. In addition, as the ICJ stated in the Asylum case, there are no universal or regional (Latin American) customary norms of international law on diplomatic asylum.

The only binding norms on diplomatic asylum are those established in two Latin American Treaties: the Havana Convention of 1928 and the Caracas Convention on Diplomatic Asylum of 1954. Both treaties are ratified by Mexico and Ecuador and the legality of the granting of diplomatic asylum to Jorge Glas will have to be appreciated under their provisions.

Most probably, Ecuador and Mexico´s arguments regarding these treaties will be based on the articles that recognize States right to afford asylum only to individuals accused or convicted for political and not common crimes.

Pursuant to article 1 of the Havana Convention: “It is not lawful for States to give asylum in legations (…) to persons accused or convicted of common crimes (…).” Article I of the Caracas Convention states: “Asylum granted in legations (…) to persons persecuted for political reasons or crimes, will be respected by the territorial State in accordance with the provisions of this Convention.” According to Article III of the Caracas Convention: “It is not legal to grant asylum to people who (…) are accused or properly processed before competent ordinary courts for common crimes or are convicted of such crimes (…) unless the facts that motivate the application for asylum, whatever the case, are clearly political in nature (…)”. Article IV of the Caracas Convention establishes: “It is up to the asylum State to classify the nature of the crime or the reasons for the persecution.”

In the present case, Ecuador will try to demonstrate that Jorge Glas is accused of corruption, which according to Ecuadorian law, is a common and not a political crime. Pursuant to the Ecuadorian Comprehensive Organic Penal Code, political crimes are “crimes against the structure of the Constitutional State”, which, amongst others, include sabotage, terrorism, rebellion, usurpation and illegal retention of command, destruction of records or incitement to discord between citizens. Corruption is not included in this list, in consequence, it should be considered a common crime.

Mexico will probably not argue that corruption is a political crime, as, even under Mexican domestic law, it is a common crime. However, Mexico will insist that, according to article IV of the Caracas Convention, the state that grants the asylum can classify the nature of the crime. Mexico could also allege that Jorge Glas is persecuted for a common crime – corruption – but on political grounds. As mentioned above, article II of the Caracas Convention clearly states that asylum can be granted “to persons persecuted for political reasons or crimes”. The accusation of a former Vice-President for corruption by a new Government ascending to power in midst of a deep political crisis, might represent political persecution. Article III of the Caracas Convention would clearly reinforce this Mexican Argument. As stated above, this article permits the granting of diplomatic asylum to persons who have committed common crimes, if “the facts that motivate the application for asylum (…) are clearly political in nature.” The Advisory Opinion of the ICAHR could also be used by Mexico, as it defines diplomatic asylum in the following terms: “the protection that a State provides in its legations, warships, military aircraft and camps, to nationals or habitual residents of another State where they are persecuted for political reasons, for their beliefs, opinions or political affiliation or for acts that may be considered political or related common crimes.”[8]

Concluding remarks

On 11 of April 2024, Mexico filed a complaint against Ecuador before the ICJ, arguing violations of the Vienna Convention on Diplomatic Relations and the main counterclaim of Ecuador will probably be based on the illegality of the granting of diplomatic asylum to Glas. This brings a new opportunity to the Court to clarify the rules governing the legality and permissibility of diplomatic asylum in Latin American treaties and in general international law.

[1] Dupuy, Pierre-Marie, La position francaise en matière d´asile diplomatique, Annuaire Francais de Droit International, vol. 22, p. 744)

[2] ICJ, Asylum, Colombia vs. Perú, 20 November 1950, 007-19501120-JUD-01-00-EN.pdf (icj-cij.org), pp. 274-275

[3] CIDH, Opinión consultativa OC-25/18, La institución del asilo y su reconocimiento como derecho humano en el sistema interamericano de protección, http://www.corteidh.or.cr/docs/opiniones/seriea_25_esp.pdf, para. 105 et seq.

[4]  Riveles, Susanne, Diplomatic Asylum As a Human Right: The Case of the Durban Six, Human Rights Quarterly, vol. 11, 1989, p. 143

[5] Asylum case, p. 274

[6] El exvicepresidente ecuatoriano Glas “ha sido secuestrado”, dice su abogada – SWI swissinfo.ch

[7] ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America, para 202.

[8] CIDH, Opinión consultativa OC-25/18, para. 67