[This is a guest post by Mr. Raag Yadava, a B.A. LL.B. (Hons.) candidate (2013) at the National Law School of India University (Bangalore). Welcome to ILCurry, Raag!]
A year on from the coup, former President of the Maldives Mohamed Nasheed walked into the Indian Embassy in Male on Wednesday last week requesting temporary refuge in the face of an arrest warrant on charges of illegally detaining the Chief Criminal Court Judge Abdulla Mohamed.
Perhaps a belated reaction to the current regime’s cancellation of GMR’s $500 million investment into Male (discussed previously here), or to ensure Nasheed’s participation in the democratic elections scheduled for September, the former President’s presence in the Indian diplomatic mission comes at an important time for the Maldives.
This trend of offering ‘diplomatic asylum’ (or temporary refuge, which is more apt in this case) seems to be catching on, with WikiLeaks founder Julian Assange now closing in on 8 months in the Ecuadorian embassy in London, Chinese police chief Wang Lijun receiving ‘vacation-style treatment’ in the US Consulate in Chengdu and Chinese dissident Chen Guangcheng receiving protection in the US Embassy in Beijing. Can states, then, offer refuge to individuals in their diplomatic missions at the cost of “impeding the due process of law” of the host state? (that being the charge levelled by the Maldives’ Judicial Services Commission.). To be clear, Nasheed’s case is unlike most others – he is not fearful of long-term persecution, thus requiring resettlement or residence abroad. He has neither requested nor has India considered granting ‘asylum’.
The question here is more limited. Is India obligated to transfer Nasheed to the Maldives police? Simple answer: Yes. In 1950, the ICJ considered the legality of the residence of Peruvian politician Raúl Haya de la Torre in the Colombian embassy in Lima. In concluding that Colombia was under an obligation to return de la Torre absent a clear legal basis between the states, it stands to reason today (with five decades of supporting state practice) that while states are free to grant asylum to those on their territory, the provision of protection to a fugitive in another state’s territory (‘diplomatic asylum’) finds no basis in general international law. In fact, this tradition – rooted in the Latin America – finds legal support in the 1954 Convention on Diplomatic Asylum, a regional instrument.
Given recent instances, we could perhaps be witnessing the formation of a customary norm, but opposition by the host states (Britain, Maldives, China) makes this conclusion unappealing. Any exceptions that are to be drawn come from instances of immediate threat to life in civil war and the like; instances that could hardly appeal to this case. (here and here). Lastly, and perhaps I am reading into political statements beyond their worth, but Dr. Samad Abdulla, the Maldives foreign minister, seems to be stressing on the fact that India has not granted asylum to Nasheed. Political symbolism aside (and I don’t see much of that, given Nasheed is in safe custody beyond Maldivian control, irrespective of the label), I do not see the legal difference that would make.
The legality of India’s conduct apart, since such rigid insistence on international law is not entirely realistic, what options are open to the Maldives? Very few, really. Indian and Maldives are both parties to the Vienna Convention on Diplomatic Relations, Article 22 of which poses many problems for the Maldives: “1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.” The illegality of India’s conduct apart, the Indian diplomatic mission comes under that seemingly absolute protective umbrella. While the Convention requires diplomats (who, just like states, are not obliged to assist in criminal or civil matters absent a treaty obligation to that effect) to obverse local laws and regulations, and imposes a duty “not to interfere in the internal affairs of that State”, the self-contained regime of the Vienna Convention (see Tehran Hostages) does not permit the abrogation of that rule. As long as the premises is used for the purposes of the mission (and the Indian embassy in Male is), state practice does not support exceptions to Article 22 on account of mere violations of municipal law; the consequences of such an approach being disastrous to the conduct of business between governments. To the contrary, the Vienna Convention provides remedies –declarations of persona non grata or cessation of diplomatic relations, which I doubt are of much interest to the Maldives.
As the issuance of a second arrest warrant infuses urgency into talks, the western and India support for “inclusive” elections seems to tip the balance towards Nasheed, leaving an ad-hoc political settlement permitting Nasheed to contest the elections the most likely outcome.