Natasha Mittal* and Raima Singh**
I. Introduction
In the high-stakes arena of international diplomacy, where state sovereignty and human rights frequently intersect, diplomatic asylum raises serious concerns. The matter gained attention in the International Court of Justice (“ICJ”) when the Ecuadorian forces invaded Mexican embassy or the arrest of Mr. Jorge Glas, former Vice President of Ecuador. Diplomatic Asylum, as defined in Article 1 of the Caracas Convention, refers to protection granted by a state within its embassies or other diplomatic premises to individuals fleeing political prosecution. It lacks a universally recognised legal framework and is primarily rooted in regional agreements, such as the 1954 Caracas Convention. When the asylum was granted to Mr. Glas, he was on temporary release from prison, having been convicted in two separate cases for corruption, public embezzlement of funds, and bribery. The asylum, which was being offered by Mexico, had extended over a period of three months. The forced entry into the Mexican premises was considered by Mexico as a violation of international law, leading to initiation of proceedings in the ICJ. Subsequently, Ecuador filed a complaint against Mexico, challenging the legitimacy of the asylum and the violations of principles of international law, as per the Vienna Convention of Diplomatic Relations (“VCDR”).
The fundamental question is whether the alleged charges of corruption and embezzlement of public funds against Glas fall within the purview of ‘political crimes’. At the heart of this dispute lies the principle of ‘inviolability’ of diplomatic premises, which safeguards the premises from entry, search, or interference by the host state. The principle of inviolability states that certain entities (such as diplomatic agents, missions, and sovereign states) must be protected from external interference, coercion, or violation.
This article examines the limitations of the principles of diplomatic inviolability under Article 22(1) of the VCDR, questioning whether such inviolability is absolute when diplomatic premises are used to shield fugitives from lawful prosecution. The grant of protection without due consideration of contextual complexities, such as the nature of the alleged crimes or the potential abuse of diplomatic privileges demonstrates that a rigid interpretation of inviolability remains inadequate for resolving modern diplomatic asylum disputes.
II. Legal Limbo: Discretionary power of the Receiving State in defining Political Offenses
In its judgment, the ICJ observed that the provisional measures ratified by Ecuador should “extend to inviolability, insofar as Article 45 (a) of the Vienna Convention requires.” The provisional measures as mandated by the ICJ ought to preserve the respective rights of both the parties pending the final decision of the court, in accordance with Article 41.1 of the Statute Of the ICJ.
Article 1 of Havana Convention explicitly prohibits granting asylum in embassies or diplomatic legations to individuals accused or convicted of common crimes. This restriction is crucial because it prevents diplomatic missions from becoming safe havens for fugitives. Similarly, Article III of Caracas Convention reinforces this principle by stating that asylum cannot be granted to individuals who are either facing criminal charges before a competent court or have already been convicted. The legislative intent behind Article IV of the 1954 Caracas Convention on Diplomatic Asylum was to establish a safeguard against politically motivated prosecutions by allowing the asylum-granting state, rather than the territorial state to determine whether an offense qualifies as “political” and thus warrants protection. This provision was designed to prevent host governments from arbitrarily labeling dissidents or political opponents as “common criminals” to justify their persecution. By vesting this authority in the diplomatic mission, the drafters sought to uphold humanitarian principles and ensure that individuals facing genuine political repression could seek refuge. However, in practice, Article IV has failed to achieve its intended balance, primarily due to its unrestricted unilateralism and lack of objective criteria. This because such unilateral determination by the receiving state potentially prevents the judicial and administrative authority of the territorial state, effectively denying it the ability to prosecute individuals within its jurisdiction. This interpretation risks rendering diplomatic asylum ineffective and must be weighed in consonance with the established ICJ precedent in Columbia v Peru (“Colombia Asylum Case”), where the Court held that asylum cannot override or substitute due legal process. According to Ecuadorian Comprehensive Organic Penal Code, corruption doesn’t fall under the express category of political crime, thereby excluding it from asylum protections. This creates ambiguity in the definition of what constitutes a political crime versus a common crime like corruption.
The right to seek asylum in another country comes under Article 14(2) of the Universal Declaration of Human Rights which states that the right may not be invoked if the act is contrary to the purposes and principles of the United Nations. The principles of good governance, anti-corruption, and rule of law as reinforced by UNCAC, fall within the broader framework of these UN objectives. Since UNCAC is a UN-adopted treaty that directly addresses corruption, violations of its provisions can be considered as actions contrary to the principles of the United Nations under Article 14(2) of UDHR. The United Nations Convention Against Corruption, 2003 (UNCAC) is a legally binding treaty which was ratified by both Ecuador and Mexico. Since, Glas used the Mexican consular premises in a way that conflicts with UNCAC and consular functions, he cannot legally claim diplomatic immunity.
III. Rethinking the Boundaries of Diplomatic Inviolability under Article 22(1) of the VCDR
Although the forced entry in Mexico’s embassy is an inherent violation of diplomatic immunity, it also depicts the limitations of absolute inviolability of the diplomatic premises when it is utilised as a shield for individuals evading legitimate legal proceedings. This is asserted as the protection was extended to Mr. Glas for criminal activities which were beyond the purview of mere political crimes. The shortfalls of this absolute protection are twofold; firstly, the inherent misuse of protection against search and seizure of the diplomatic premises and bag; and secondly, the lack of effective remedies against any such violation which was a necessary course of action as per the circumstances. Following similar cases, on 4 April 2024, Ecuador declared the Ambassador of Mexico persona non grata or ‘unwelcome’ in Ecuador even in such cases of blatant misuse of public funds. Therefore, the lack of effective remedies raises major concerns, since mere declaration of an individual as ‘persona non grata’ is not an effective recourse as it doesn’t have any substantial punitive value. For instance, in the Act of Lima which arose out of the Columbia case, it was held that police officials can break into the diplomatic premises to effect a lawful arrest by a proper civil authority. Such exceptions may allow for individual consideration of each case, and take appropriate action.
IV. Recommendations and Way Forward
a) Deriving from the ‘Living Instrument of Law’
The doctrine of Margin of Appreciation (“MOA”) accounts for judicial deference while acknowledging the diversity of laws across nations. Incorporating the principle of normative flexibility, the doctrine specifies a ‘zone of legality’, within which the courts may make independent decisions. A mere overview of the aftermath of violations of inviolability determines that the VCDR largely remains impervious to the facts and circumstances of each case. Similarly, due reliance can also be placed on legislations which clearly lay out the limitations to diplomatic status such as the Diplomatic and Consular Premises Act 1987 (“DCPA”). The DCPA provides the Secretary of State due powers to withdraw the diplomatic status of a land subject to certain considerations. Such a provision is contrary to the absolute immunity provided under the VCDR. Article 1(5) of the DCPA clearly provides that, “In determining whether to do so he shall have regard to……. (a)to the safety of the public; (b)to national security; and (c)to town and country planning.” The legislative intent of DCPA enables the decision makers to reconsider whether the violation of the principle of inviolability was essential as per the facts of the case. Incorporating such a provision may bring some clarity, since the scope of the exceptions can be clearly defined. This encourages taking on record the realities of each violation while granting national courts the discretion in keeping these crimes at abeyance.
b) Revising Self-Judging clause of Article IV of the Caracas Convention
It is evident that the standard of review is unclear due to the lack of an objective criterion and self-judging clause of Article IV of the Caracas Convention. In General Assembly Resolution 3321, member states were not in agreement, basing diplomatic asylum rights only on the grounds of humanitarian aspect. Albeit diplomatic asylum and political refuge share a common humanitarian basis, the requisite criteria for granting such asylum or refuge differ substantially. Therefore, while Mexico has invoked ‘humanitarian considerations’ as justification, this reasoning may not be entirely justified under the applicable legal framework and remains open to scrutiny.
Further, Article 2 of the Havana Convention states that asylum may not be granted except “for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.” For instance, in the Columbia case, the court held that diplomatic asylum has to provide ‘sanctuary’ in urgent or exceptional circumstances, limited to the duration strictly necessary to guarantee the protection of the asylum seeker. With ongoing criminal proceedings and a pre-trial detention order issued on 5 January 2024, his continued presence in the embassy raises doubts about whether the period of ‘indispensability’ under Article 2 had lapsed. To ensure adherence to established diplomatic asylum norms, the duration of asylum should be strictly confined to a defined period of ‘indispensability’, as mandated under Article 2 of the Havana Convention.
In the light of this judgment, the intersection of diplomatic asylum and state sovereignty highlights how legal uncertainties create jurisdictional anomalies in transnational governance. Mexico’s broad discretionary power under the Caracas Convention brings to light the tensions between asylum as a humanitarian safeguard and its potential use as a tool to evade prosecution. Ecuador’s intervention raises critical questions about the limits of diplomatic inviolability when embassies function as extraterritorial spaces. If Ecuador’s stance prevails, it could reshape the legal landscape by curbing asylum-granting states’ discretion, thereby redefining the boundaries of protection in cases involving political and criminal allegations. The evolving nature of such disputes underscores the urgent need to revisit diplomatic law, ensuring that asylum does not become a mechanism for circumventing legal accountability while still upholding fundamental protections in politically charged cases.
*This article was originally published in https://moderndiplomacy.eu/2025/05/17/diplomatic-asylum-as-safe-havens-analysing-the-political-crime-exception-in-mexico-v-ecuador/
*Natasha Mittal
Second-year law student from Rajiv Gandhi National University of Law, Punjab. Her research interests include public international law and human rights law.
**Raima Singh
Second-year law student from Rajiv Gandhi National University of Law, Punjab. Her research interests include public international law and human rights law.
