Flat 3B, 3 Hans Crescent, Knightsbridge, London SW1X 0LS
The situation of Julian Assange, one of London’s most googled residents, has so many angles and twists that it is just as likely to feature on prominent legal blogs as it does on the Daily Mail. This post will not speculate on why Pamela Anderson visits the little flat where Ecuador’s Embassy is located in central London; instead, it focuses on an international law-related matter which has thus far managed to stay below the radar: Ecuador’s filing of an advisory opinion request before the Inter-American Court of Human Rights (IACtHR) on the institution of Asylum in international law. The purpose of the request is, indirectly, to obtain a ruling by that regional human rights tribunal on the Assange issue and, consequently, on the obligations of the United Kingdom vis-à-vis the Australian founder of Wikileaks. More concretely, Ecuador is likely to seek to use the eventual opinion of the IACtHR, if helpful to it, to strengthen its argument that the UK should provide safe passage to Assange so that he can be transported to Ecuador, due to his status as a political refugee.
He has been secluded in the tiny flat which lends the title to this blog post for almost five years
By way of background, Swedish authorities issued an arrest warrant against Assange in the context of proceedings related to sexual offences which allegedly took place in that country in 2010. Assange has not been formally charged but is wanted for questioning purposes in those proceedings. In 2012, Assange filed and was successful in obtaining an asylum request at Ecuador’s embassy in London. He has been secluded in the tiny flat which lends the title to this blog post for almost five years, during which he has managed to continue with his Wikileaks-related activities and even disrupt the United States’ presidential election. This post explores the whats and whys of Ecuador’s advisory request before the IACtHR and exposes the request’s flaws from an international law perspective. Further, this post argues that the IACtHR should seize the opportunity to reaffirm the scope of its advisory jurisdiction, particularly in a manner which expressly rejects any construction of its opinion as engaging non-American states, and issue an opinion regarding the more pressing issue of asylum seekers’ rights in the Americas.
The Advisory Request
On 18 August 2016, Ecuador filed an advisory opinion request before the IACtHR, which sits in San Jose, Costa Rica. The petition concerns “the scope and purpose of the right of asylum in light of international human rights law, inter-American law and international law.” The request consists of seven (badly drafted) questions (question “F” is over 500 words long!), the legal basis for which Ecuador presents in a lengthy section covering matters of human rights law, refugee law, and public international law (paras 1-57). Ecuador’s arguments and construction of the questions submitted to the Court can be summed up as follows.
- Ecuador submits that diplomatic asylum, territorial asylum and refuge share a core content.
- Ecuador maintains that this core content is articulated in concrete human rights obligations such as non-refoulment, due process obligations like the duty to individually process each asylum application, etc.
- Ecuador suggests that non-compliance with these core content duties may also constitute breaches of the right to life, personal integrity, and non-discrimination.
- In an effort to underline their general character, Ecuador characterises these obligations either as erga omnes or as jus cogens. This characterisation allows Ecuador to articulate its real argument, which is two-fold: (a) that all states have an interest in those obligations and are thus engaged by them, and (b) that precluding another state from fulfilling these obligations is therefore prohibited as a matter of international law.
The operative argument of Ecuador presents itself quite clearly in several passages of the request. For instance, in question “B” Ecuador asks “whether [it is] admissible that a State, which is not a party to a specific convention on asylum, obstructs, prevents or restricts the action of another State that is a party to that convention, so that the latter is unable to fulfil [its treaty] obligations and commitments, and what should be the legal consequences of this conduct for the person who has been granted asylum?”
Ecuador considers that the so-called shared core content of asylum, as articulated in concrete human rights obligations, imposes particular duties on states that are not parties to a specific conventional legal framework. Thus, a state which does not allow for another state to comply fully with its international obligations would incur international responsibility, although nowhere in the request are there arguments which support such a position from the perspective of the law on state responsibility.
The arguments summarised above somewhat echo the conclusions on the Assange issue reached by the UN Working Group on Arbitrary Detention. The Working Group’s opinion found that Assange’s deprivation of liberty (his seclusion at Ecuador’s embassy) amounted to arbitrary detention, as well as to a violation of his rights to liberty and due process under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The Working Group held that, although not illegal, Assange’s continued deprivation of liberty was disproportionate.
Similarly, in Ecuador’s advisory request, the human rights obligations at play would be compromised, if at all, by the conduct of third states, not of the state with jurisdiction over the individual concerned. It is in this context that Ecuador’s request has to be assessed, and this is why it is reasonable to conclude that it intends to use an eventual opinion by the IACtHR, if issued on Ecuador’s terms, so as to portray the UK as a violator of individual human rights.
This, of course, begs the question of why Ecuador chose the IACtHR as the venue for the advancement of this strategy. There are two reasons for this, namely the particularly broad scope of the IACtHR’s advisory jurisdiction and the inadequacy of other human rights forums to which the UK is a party.
Why an advisory request before the IACtHR?
As it has stated since its first advisory opinion (‘Other Treaties’), the IACtHR’s advisory jurisdiction is the most extensive of its kind when compared with the advisory jurisdiction of other international courts and tribunals. In construing Article 64 of the American Convention on Human Rights (ACHR), the IACtHR held that its jurisdiction comprised all treaties, multilateral or bilateral, insofar as these concerned the human rights obligations of any American state, regardless of whether the state or states in question were parties to the ACHR. Thus, although the IACtHR is an organ of the ACHR and not of the Charter of the Organization of American States (OAS), it has been understood that its advisory jurisdiction, unlike its contentious one, extends to all OAS member states.
the IACtHR’s advisory jurisdiction is the most extensive of its kind
The broad scope of the Court’s jurisdiction has allowed it to opine on the obligations of states such as the United States and Canada which, albeit full members of the OAS, have not signed and ratified the ACHR. This broad jurisdiction ratione personae is complemented by an equally broad jurisdiction ratione materiae. This is why Advisory Opinion 16 on the right of consular assistance and due process rights is largely based on the Vienna Convention on the Law of Treaties, and why that Opinion is considered to be primarily, although not exclusively, concerned with the situation of Mexican nationals in the United States.
The reasons why this is so have to do with the nature of the IACtHR as an inter-American institution, as well as with the non-binding character of advisory opinions. The United States is a full OAS member state, the organisation is based in Washington DC, and the Court is a creature of a treaty of the OAS, which reflects inter alia the fact that judges at the IACtHR may be nationals of any American state. Incidentally, the composition of the IACtHR at the time when the “Other Treaties” advisory opinion was issued included the influential American judge Thomas Buergenthal.
To the extent that the particular reasoning invoked by Ecuador seeks to have the IACtHR pronounce on the obligations of the UK (and perhaps of Sweden), the IACtHR lacks jurisdiction to issue an advisory opinion with that scope. The IACtHR has interpreted the purpose of its advisory jurisdiction to be that of assisting American states in complying with their human rights obligations (‘Other Treaties’ para 25). Also, an opinion which engages the obligations of non-American states would violate the customary rule, stated in article 34 of the Vienna Convention on the Law of Treaties, that treaties cannot create obligations and rights vis-à-vis third states without their consent.
If the IACtHR were to issue an opinion in purely abstract terms, i.e. to respond to Ecuador’s questions as posed, it runs the risk of leaving the door open for Ecuador to use the opinion politically against the UK. This would, in turn, expose the IACtHR to the valid criticism of having exercised its advisory jurisdiction in a manner inconsistent with judicial propriety. Thus, the IACtHR should expressly state that its opinion only regards the human rights obligations of American states.
Why not an application before the Strasbourg Court or the UN Human Rights Committee?
The choice of the IACtHR as a venue for Ecuador’s strategy in the Assange case is, in and of itself, an indication of how weak the human rights argument against the UK is. If it were the case that asylum and refuge are institutions whose core content is articulated in human rights obligations shared by all states, and that these obligations engage third states which allegedly prevent Ecuador from fulfilling its obligations vis-à-vis Assange, the natural venue to pursue such an argument would be the European Court of Human Rights (ECtHR) or the UN Human Rights Committee (UNHRC), since these bodies have jurisdiction over the UK.
an argument that Assange is under the ‘jurisdiction’ of the UK seems an impossible one
Taking into account that embassies are considered to be territorial extensions of the state, any claim that the UK is violating Assange’s rights would have to be construed on an extra-territorial basis. In the international human rights law context, the triggering of human rights obligations on an extra-territorial basis hinges on whether an individual is under the ‘jurisdiction’ of the state in question (art. 1 ECHR, art. 1 ACHR, art. 2 ICCPR). That determination is one of attribution, and runs along a spectrum of cases within the ‘effective control’ conceptual framework (inter alia ECtHR: Loizidou para 62; ICJ: South West Africa Advisory Opinion, Palestinian Wall Advisory Opinion), to the ‘control over the individual’ basis (inter alia UNHRC: Lopez Burgos, General Comment 31; Inter-American Commission HR: Coard et al v. US).
Due to the complexities of European military intervention abroad, chiefly in Iraq and Afghanistan, the ECtHR has refined its case law on the extra-territorial application of the ECHR. Thus, in cases like Al-Skeini and Jaloud, the ECtHR has created a conceptual framework where elements of both exercise of governmental control and/or authority over a particular territory on the one hand, and elements of authority and control over the individual, on the other, are balanced for the purposes of determining whether ECHR obligations are triggered on an extra-territorial basis.
Thus, an argument that Assange is under the ‘jurisdiction’ of the UK seems an impossible one, not least because it would require the relativisation of the customary rules upon which the law on consular and diplomatic relations has been construed over centuries. Unless Ecuador shows that the UK is illegally interfering with Ecuador’s sovereign rights within its embassy – an argument not yet advanced by Ecuador – the implication of Ecuador’s argument is that both Ecuador and the UK exercise jurisdiction over Assange, a statement which is inconsistent with the protections inherent in the institution of diplomatic asylum. Flat 3B is Ecuadorian territory as a matter of international law, and only a violation of that principle would place Assange under UK jurisdiction.
An opportunity for the IACtHR
Besides sending a message that its advisory jurisdiction ratione personae has clearly defined limits, the IACtHR should seize the opportunity to address a far more important and pressing concern: the rights and obligations of American states vis-à-vis asylum seekers under their jurisdiction. The Court can do this by rejecting certain questions posed by Ecuador on the basis of lack of jurisdiction, by reformulating them on the basis of the discretionary character of its authority to issue advisory opinions, or simply by addressing them in a manner compatible with the purpose of the tribunal’s advisory jurisdiction. As the IACtHR stated in its Rights and Guarantees of Children Advisory Opinion, the proper exercise of its advisory function is connected to the “specific usefulness [of the opinion] in the context of a regional reality” (para 27).
Ecuador’s advisory opinion request presents itself as an opportunity to address the rights of asylum seekers under other instruments like the 1951 Refugee Convention
Such an approach would complement the IACtHR’s historic focus on the rights of migrants, which it has addressed in its Right to Consular Assistance Advisory Opinion (1999), Rights of Undocumented Migrants Advisory Opinion (2003), and Rights of Children in the Context of Migration Advisory Opinion (2014). Asylum seekers, a concrete category of migrants with specific rights under international law, have only received the Court’s attention in the contentious Pacheco Tineo & Family case. Given that the Pacheco case originated in an individual application, the IACtHR only adjudicated on matters related to the rights of asylum seekers under the ACHR as related to the facts of that case. The end result was a very limited decision in terms of developing the law related to the rights of asylum seekers in the Americas.
Ecuador’s advisory opinion request presents an opportunity to address the rights of asylum seekers under other instruments like the 1951 Refugee Convention, and to consider how the customary rules there enshrined impact the interpretation of inter-American law. Moreover, the IACtHR could address pressing concerns like the limits of regulatory government authority when that authority is exercised to the detriment of asylum seekers who are otherwise protected by customary and treaty law. Seizing the opportunity to address the matter in this way might not be as fashionable as reporting on why celebrities visit Flat 3B, but would significantly contribute to the legal characterisation of what is perhaps the most important humanitarian issue of our time. It would also be the first time that an international court or tribunal issues a comprehensive opinion on the rights of asylum seekers; perhaps others might follow suit.