Against Diplomatic Asylum--And Against the Supreme Court

By Mike Dorf

When Chen Guangcheng presented himself to U.S. diplomats in China, he sparked a controversy that now threatens to become a crisis in Sino-U.S. relations.  As I write this post, his whereabouts have not been publicly disclosed but he is under American protection in China.  According to the latest news story, Chen is not seeking asylum in the U.S.  However, in the past, individuals have from time to time sought asylum in embassies, consulates and other diplomatic missions.  How should such applications be treated?

The core international law provision at stake is Article 33 of the U.N. Convention Relating to the Status of Refugees, which forbids "refoulement," i.e., the return of a refugee who is fleeing persecution to his country of origin.  In 1993, in Sale v. Haitian Centers Council, Inc., the U.S. Supreme Court gave a narrow reading to Article 33 (which has been codified in federal statutes implementing the Convention).  In that case, the Court upheld the government policy of intercepting Haitians on the high seas and sending them back to Haiti without first providing individualized determinations of refugee status.  The majority reasoned that the Convention and the implementing legislation operated on the assumption that the non-refoulement duty only came into existence once the putative refugee had entered the sovereign territory of the country in which he or she sought asylum.

But might Haitian Centers Council therefore be invoked as authority in support of a right of non-refoulement at embassies and consulates?  After all, a U.S. embassy or consulate in a foreign land is deemed U.S. territory.  Accordingly, if Chen had sought asylum, would the converse of Haitian Centers Council have entitled him to a status determination and asylum if he could show a fear of persecution on treaty grounds?

To my mind, this gets matters quite backwards.  Although there is something to the linguistic argument the Court made in Haitian Centers Council, as a functional matter it runs away from the core of the Convention, which embodies the principle that if someone manages to exit a country in which he alleges he fears persecution on Convention grounds, then he cannot be returned to that country unless his allegations are false.  The filter that the Convention establishes to prevent countries from being overrun with refugees is a distinction between economic migrants--who often find themselves in truly desperate circumstances but are nonetheless unprotected by the Convention--and refugees fleeing persecution.  Thus, I think Justice Blackmun, in his lone dissent in Haitian Centers Council, had the better of the argument: On its face, Article 33 lacks a territorial limit and there is insufficient reason to read one into it with respect to the high seas.

But embassies and consulates are (or should be) a different story.  The basic obligation of Article 33 is an obligation not to return a putative refugee to her country of origin.  However, a national of Country X seeking asylum in the embassy or consulate of Country Y in Country X is still in her country of origin and thus cannot be returned.  To be sure, international law  indulges the fiction that the embassy or consulate is the sovereign territory of sending Country Y, but this is only a fiction--as becomes clear, for example, if Country X expels the Country Y mission.   Ultimate sovereignty remains with receiving Country X, but it facilitates the smooth conduct of diplomacy for both nations to treat the Y mission as though it were an extraterritorial extension of Y.  (The Vienna Convention on Diplomatic Relations speaks of the "inviolability" of the diplomatic mission, rather than its sovereignty.)

It does not make much sense to treat the Y embassy or consulate in X as Y's territory for all purposes.  And there are at least two reasons why it's a particularly bad idea to regard Y's embassy or consulate in X as subject to the non-refoulement obligation with respect to X's nationals.  First, if Y does grant asylum to a national of X, X is under no obligation to grant that national safe conduct out of the country.  Accordingly, asylum in the embassy could lead to a state of permanent limbo, in which the asylum seeker is entitled to stay in the embassy but not to leave the country.

Second, it is easy to see how the possibility of asylum in an embassy or consulate could lead to serious friction between the receiving country and the sending country.  Of course, the grant of asylum to an X refugee who has managed to leave the country and find her way to country Y could also be a source of friction, but that event occurs far away from X.  One could well imagine that the leaders of X would regard the granting of asylum by Y within the borders of X as a more hostile act.  And that, in turn, could lead to a breakdown in diplomatic relations.  If one thinks that rights-respecting nations have good reasons to maintain diplomatic relations with regimes that engage in rights violations, then it may not be possible to grant embassy or consulate asylum to the nationals of the rights-violating regime--at least not in the ordinary course of events.

Finally, I should be clear that nothing I have said here bears directly on the somewhat different circumstance in which a national of country X seeks asylum from country Y in country Y's embassy or consulate located in country Z.