M. den Heijer

Diplomatic asylum and the Assange case

This article traces the place and development of diplomatic asylum in international law in close connection with the more specific questions raised by the case of Julian Assange, who was granted asylum in the Ecuador embassy in London on 16 August 2012. After discussing the historical rise and decline of diplomatic asylum, the article reviews the current status of diplomatic asylum in international law and its implications for the triangular legal relationship between the United Kingdom, Ecuador, and Mr Assange. The article submits that, although there would not seem to be a title in general international law or human rights law for Ecuador to grant asylum to Assange, there is no obvious legal route for the United Kingdom to terminate the asylum. The fate of Assange resembles that of a long series of historical precedents where diplomatic asylum resulted in protracted stays. Although this may seem an unsatisfactory result from the perspective of international law, the uneasy balance between territorial sovereignty and diplomatic inviolability also engenders incentives to avoid disputes or to resolve them through diplomatic channels.

Life after M.S.S.: unfinished business

It is now two and a half years aft er the European Court of Human Rights passed its landmark judgment in M.S.S. v Belgium and Greece (M.S.S.).1 Th e judgment was widely hailed as placing human rights squarely in the European Union (EU) asylum system. It suspended transfers of asylum seekers pursuant to the Dublin regulation to Greece where the asylum system was overwhelmed and where it was systematically impossible for asylum seekers to receive a fair hearing or minimum standards of treatment. Th e judgment made clear that fundamental rights must be duly respected when EU Member States implement EU law. It also vividly uncovered how the common EU standards on asylum adopted since the entry into force of the Treaty of Amsterdam failed to take root in at least one Member State. Th e judgment’s import was cemented when the Court of Justice of the EU took over its essential reasoning in the case of N.S. and M.E.2 On refl ection, however, M.S.S. raised more questions than it answered. What about other Member States where asylum seekers are reportedly ill-treated? And how should EU law ensure the fair distribution and equal treatment of asylum seekers? Soon aft er M.S.S. was issued, attention shift ed to other Member States with a questionable record in the sphere of treatment of asylum seekers. Courts in Germany, the Netherlands, Belgium and Finland halted, in individual cases, transfers of asylum seekers to Malta and Italy.3 Th e Austrian asylum court halted transfers to Hungary.4 Statistics released by the European Court of Human Rights (ECtHR) reveal that, from January 2012 to 30 June 2013, the Court issued 24 interim measures with the eff ect of suspending transfers to Italy.5 In the same period, it also refused 88 such requests for