Honduras has recently filed an application instituting proceedings against Brazil in the International Court of Justice claiming that Brazil, by granting asylum to deposed president José Manuel Zelaya Rosales and an “indeterminate number of Honduran citizens”, is allowing the use of its embassy “as a platform for political propaganda and [is] thereby threatening the peace and internal public order of Honduras.”1 Specifically, Honduras claims Brazil is in breach of its obligations under Article 2 (7) of the U.N. Charter and those under the 1961 Vienna Convention on Diplomatic Relations. In all, the claim argues that Brazil’s granting of asylum is in direct violation the principle of non-intervention. In order to get a better understanding of the substance of this claim, a brief study of both the principle of non-intervention and the institution of asylum is warranted.
Non-Intervention
Latin American states have had a great part in defining and shaping the principle of non-intervention2, and have understood it as logical consequence of state sovereignty3 and equality.4 The principle of non-intervention was contained in the Convention on Rights and Duties of States (an inter-American convention) and later in the Charter of the Organization of American States. Article 19 of the Charter (which Brazil and Honduras have ratified) stipulates that:
“No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.”
Despite this attempt to define the principle, difficulties still arise as to its implementation since every state in the execution of its foreign policy has a legal margin to assert its influence5. Thus, the principle problem lies in determining when influence has become intervention. The International Court of Justice, in the Nicaragua v United States case, stated that:
“A prohibited intervention must […] be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices.”
It can therefore be understood that coercion is the defining element which differentiates between wrongful intervention and influence.
Asylum
The International Court of Justice studied the institution of asylum in the Haya de La Torre Case between Colombia and Peru, which bears a number of similarities with the present Honduras v Brazil Case. In October 1948, after a failed coup d’état, the Peruvian authorities issued a warrant charging Víctor Raúl Haya de La Torre with military rebellion. Mr. Haya de La Torre sought and was granted asylum in the Colombian Embassy in Lima. After failing to come to a conclusion as to how to proceed in the case both parties decided to submit it to the ICJ. Although the issue of non-intervention was not raised, the Court pronounced itself on several issues regarding asylum which could have bearing in the Zelaya Case. First, the Court stated that “[a] decision to grant diplomatic asylum involves a derogation from the sovereignty of [the] State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.”6 Thus, if a legal basis can be established for the granting of asylum, it cannot be considered a wrongful intervention. Secondly, the Court was of the view that the practice of immediately requesting a safe-conduct without awaiting a request from the territorial State for the departure of the refugee “does not and cannot mean that the State, to whom such a request for a safe-conduct has been addressed, is legally bound to accede to it.”7 In other words, the territorial State must make a request to the State granting asylum that the refugee be removed; otherwise it is not legally bound to grant safe-conduct for the refugee. Lastly, the Court concluded that Colombia acted wrongfully when it granted asylum. Since no further instructions were given, a second case was brought to the Court to resolve whether or not Mr. Haya de La Torre should be surrendered to Peruvian authorities. The Court stated that “the asylum must cease, but that the Government of Colombia is under no obligation to bring this about by surrendering the refugee to the Peruvian authorities. There is no contradiction between these two findings, since surrender is not the only way of terminating asylum.”8 Thus, even in the case of unlawful asylum, it is not an obligation to surrender the person who sought asylum.
Honduras – Brazil Case
Honduras’ claims do not center on an unlawful granting of asylum but on the violation of the principle of non-intervention. It claims that Brazil breached its obligations under Article 2 (7) of the U.N. Charter, which states:
“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”
This prohibition is applied to the United Nations as whole, not to its member states. It is therefore and odd choice unless Honduras’ position is that Brazil was obligated to submit the matter to settlement. However, even this argument is weak as asylum, due to its very nature, demands that decision to grant it or not be undertaken with haste. It would be absurd to consider that matters concerning the granting of asylum had to be brought before the United Nation prior to a decision.
The claim brought by Honduras also centers on the 1961 Vienna Convention on Diplomatic Relations. Article 41 (1) of this Convention states:
“Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”
This article would, indeed, be applicable to Brazil as it prohibits intervention in internal affairs on behalf of the diplomatic staff. This means that there is an inherit tension between this prohibition and the institution of asylum.
In this regard, it is important to note that both Honduras and Brazil have ratified the 1933 inter-American Convention on Political Asylum, which modified the 1928 Havana Convention on Asylum, instruments which were used in the Colombia – Peru Asylum Case. Despite ICJ cases creating no precedent9, they are still helpful in determining how the Court might decide a future case as they do constitute “subsidiary means for the determination of rules of law.”10 The Court determined that asylum does indeed constitute an intervention, albeit a legal one if it is granted with a legal basis. In the 1950 Case, Colombia was found to not have legal standing for the granting of asylum due to the fact that Peru had not ratified the 1933 Convention11 which would have allowed Colombia to decide unilaterally if Mr. Haya de La Cruz was wanted for political reasons.12 This limitation, however, is not applicable to Honduras and as such, Brazil can indeed decide the judgment of political delinquency of Mr. Zelaya. As such, and in accordance with Article 1 of the 1933 Convention which prohibits granting asylum “to those accused of common offenses”, if Brazil judges Mr. Zelaya’s offenses to be of a political nature, the asylum is granted on a legal basis.
Honduras could still claim intervention on the grounds of Mr. Zelaya’s prolonged stay in the Brazilian mission. This, they could argue, could be interpreted as a form of coercion which constitutes a beach of non-intervention. However, as was stated by the Court, it is Honduras who must request the removal of Mr. Zelaya from its territory, only then can Brazil request a safe-conduct which is legally binding on Honduras. Unless Honduras has made this request and has guaranteed safe-conduct, Brazil is not in breach of its obligations. Furthermore, there is no stipulation in the 1928 or 1933 Conventions regarding the surrendering of refugees, which is why, even if the Court found Brazil to be in breach of the 1961 Vienna Convention on Diplomatic Relations, Brazil would not be obligated to hand Mr. Zelaya over to Honduran authorities.
Conclusion
Honduras has presented a weak application against Brazil. It cites a breach or Article 2 (7) of the U.N. Charter, which prohibits intervention on the part of the United Nations itself. Unless there is some creative interpretation, it is hard to see this claim prospering. Secondly, it cites a breach on the 1961 VCDR, which, when analyzed in the light of the inter-American Conventions on Asylum of 1928 and 1933 seems dubious at best. However, ICJ cases create no precedent and, as such, it is not impossible that Brazil could somehow be found liable. Even if that were the case, however, Brazil would not be obligated to surrender Mr. Zelaya, as no such regulation exists. In all likelihood, Mr. Zelaya would be allowed to leave Honduras due to international pressure, much like the case of Mr. Haya de La Torre.
