CHIANG MAI, Thailand — After so much controversy surrounding two recent asylum incidents in Beijing, a change of focus may be in order — from the emotional to the legal dimension. We should begin with the reminder that asylum and inviolability issues, in general, are extremely complicated and can never be analyzed in terms of black and white. We are confronted with an endless variety of circumstances, specific national policies or lack of them, academic bibliographies, ample jurisprudence or litigation with merely the bare fundamentals. Internationally accepted texts provide the necessary legal framework.
Without claiming any wisdom leading to a final verdict in these tricky matters, let’s leave aside for the moment the heavily emotional positions taken by the recent protagonists (China, Japan, South Korea), and concentrate on the nuances of applicable basic legislation, the protagonists’ response to them and their interpretation by analysts.
First, we should bear in mind that when we talk about the guarantees of the “Vienna convention,” we should consider two essential texts, the Vienna Convention on Diplomatic Relations of 1961 (hereafter referred to as A) and the Vienna Convention on Consular Affairs of 1963 (referred to as B).
Whereas A specifically mentions that “the premises of the [diplomatic] mission shall be inviolable” (Article 22.1), B restricts the application in the case of consulates: “The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post . . .” (Article 31.2).
In this writer’s opinion, the differentiation is unfortunate. Indeed, it may be quite difficult to establish in each case the “topographic” element of what constitutes “working area.” In some cases it could be argued that the screening of visitors — “consular work” — takes place even in the open area near the consulate’s gate. It would be wiser to provide the same protection to consular as to embassy buildings as a whole and to align the two parallel clauses. But this was the formulation enshrined in the early 1960s, and we have to abide by it.
In such a reading, the Chinese authorities do not seem to have “violated” foreign territory — at least in the Shenyang incident — as claimed by the other side, as they acted only near the gates.
With regard to “consular consent,” if it cannot be established that consent had been unequivocally granted, Article 31 of B states that it may be “assumed” — “in case of fire or other disaster requiring prompt protective action.” This clause is obviously restrictive and does not apply to cases involving the weak, unprotected asylum-seekers, pregnant women and children. In other words, the argument of Foreign Ministry critics does not hold in this respect, unless they can prove that explicit consent was given.
Some analysts point out that the third clause of Article 31 gives the receiving state “a special duty to . . . protect the premises against any intrusion.” Seen in this light, the Chinese action is vindicated. But clauses must be analyzed in totality, not piecemeal. The clause adds that the receiving state must protect the premises against damage and “prevent any disturbance of the peace of the consular post or impairment of its dignity.”
In both recent incidents, “disturbance of peace” and “impairment of dignity” were not a consequence of the action of desperate and powerless intruders but of the ensuing scuffle between the receiving state’s agents and consular officials.
The framers of the Vienna conventions obviously had in mind distinct cases of violence and forced eviction, etc. (exemplified since by Belarus’ eviction of diplomats in 1998, the occupation of embassies during the Ocalan incident in 1999 and numerous other cases).
Another point, related more to the South Korean incident, is the use of physical force against consular officers. Article 40 of B states: “The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.” It is obvious that these provisions were not heeded.
As a more general observation, I think we should approach the whole issue by respecting the overall spirit of the conventions through a combined reading of their clauses. Along the way, we should note that another provision, Article 5(d) of B, acknowledges the protected consular duty to issue “visas or appropriate documents to [third] persons wishing to travel to the sending State.”
One may legitimately assume, therefore, that families entering consular premises fall under this provision until they formally claim asylum status and that consular officials must be protected while tending to the relevant procedures. The situation is different, of course, if the claimants are physically prevented from approaching the consulate grounds. In that case, whatever handling is meted out by government agents must be respected legally, although there may be reservations ethically.
Having advanced these thoughts, I should qualify my mentioning “Chinese,” “Japanese,” etc. as a means of illustration only following the recent incidents. I am trying to address the asylum and inviolability issues in a larger way, substituting the labels of “players” as cases unfold.
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