Inter-American Court of Human Rights

INTER-AMERICAN COURT OF HUMAN RIGHTS ADVISORY OPINION OC-25/18 OF 30 MAY 2018 REQUESTED BY THE REPUBLIC OF ECUADOR THE INSTITUTION OF ASYLUM AND ITS RECOGNITION AS A HUMAN RIGHT IN THE INTER-AMERICAN SYSTEM OF PROTECTION (INTERPRETATION AND SCOPE OF ARTICLES 5, 22.7 AND 22.8 IN RELATION TO ARTICLE 1(1) OF THE AMERICAN CONVENTION ON HUMAN RIGHTS) The Inter-American Court of Human Rights (hereinafter referred to as "the Inter-American Court", "the Court" or “the Tribunal”), composed of the following Judges*: Eduardo Ferrer Mac-Gregor Poisot, Chairman; Eduardo Vio Grossi, Vice President; Humberto Antonio Sierra Porto, Judge; Elizabeth Odio Benito, Judge, and L. Patricio Pazmiño Freire, Judge; Also present: Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, in accordance with Article 64(1) of the American Convention on Human Rights (hereinafter referred to as "the American Convention" or "the Convention") and with Rules 70 to 75 of the Rules of Procedure of the Court (hereinafter "the Regulations"), the Court issues the following Advisory Opinion, which is structured as follows: * Judge Eugenio Raúl Zaffaroni did not attend the 124th Regular Session of the Inter-American Court for reasons of force majeure, which was accepted by the plenary. For this reason, he did not participate in the deliberation and signing of this advisory opinion. 1 Table of Contents I. THE APPLICATION FOR CONSULTATION 3 II. COURT PROCEEDINGS 7 III. JURISDICTION AND ADMISSIBILITY 11 A. General considerations 11 B. The formal requirement to specify the provisions to be interpreted 15 C. Ratione personae competence 16 D. Competence over the regional and international instruments involved 17 E. The merits of the request for an advisory opinion 20 F. The formal requirement to formulate in a precise manner the questions and the underlying legal interpretations of general interest 22 IV. THE RIGHT TO SEEK AND RECEIVE ASYLUM IN ACCORDANCE WITH ARTICLES 22.7 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS AND XXVII OF THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN 24 A. Historical development of asylum 27 A.1 Origins 27 A.2 Emergence and evolution of diplomatic asylum 28 A.3 The so-called "Latin American tradition of asylum" and non-extradition for political or related offences 28 A.4 Refugee status as a universal protection regime 34 B. The nucleus of asylum as a legal concept and its particularities according to modality 36 C. Crystallization of international asylum as a human right in international instruments 40 D. Regulatory incorporation of the various forms of asylum into domestic law 45 E. The human right to seek and receive asylum in the framework of the inter-American system 48 E.1 Rules of Interpretation 48 E.2 Interpretation of the Convention concerning the phrase "in accordance with the law of each State and international conventions" 50 E.3 Interpretation of the Convention concerning the phrase "in foreign territory" 52 V. THE CONTENT AND SCOPE OF STATE OBLIGATIONS IN ACCORDANCE WITH ARTICLES 1.1, 5 AND 22.8 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS 57 A. The general obligations derived from Article 1.1 of the American Convention, in relation to the rights established in that instrument, and their application in legations 58 B. Obligations arising from the principle of non-refoulement in the context of a legation 61 VI. OPINION 68 2 I. THE APPLICATION FOR CONSULTATION 1. On 18 August 2016 the Republic of Ecuador (hereinafter referred to as "Ecuador", "the State of Ecuador" or "Requesting State"), based on Article 64(1)1 of the American Convention, and pursuant to Rules 70(1) and 70(2)2 of the Rules of Procedure, submitted an application for an Advisory Opinion concerning “the institution of asylum in its various forms and the legality of its recognition as a human right of all persons in accordance with the principle of equality and non- discrimination” (hereinafter 'the request' or 'the consultation'). 2. Ecuador outlined the considerations that led to the consultation and noted that: Since their origins as independent republics, the States of Latin America have affirmed their increasing concern for the protection of the basic human rights, such as the rights to life, personal integrity, safety and liberty, of those who have committed politically-motivated offenses or been victims of acts of political persecution or discrimination. In the case of political offenders, these individuals have frequently been accused of ordinary crimes in order to prevent the granting of this protection, or to terminate such protection so that they may be subjected to punitive measures under the appearance of judicial proceedings. Consequently, both Latin American constitutions and the so-called inter-American system have established the institutions of territorial asylum, comparable to refuge, and diplomatic asylum in diplomatic missions among other places legally designated for this purpose. The institution of diplomatic asylum [was] Initially conceived as a power of the State that grants asylum, and was transformed into a human right following its enshrinement in various human rights instruments such as the American Convention on Human Rights (Article 22(7)), and the American Declaration of the Rights and Duties of Man (Article XXVII). [This is] an institution that has been specifically codified by regional treaties, the first of these being the 1889 Montevideo Treaty on International Penal Law, and the most recent the 1954 Caracas Conventions on Diplomatic Asylum and on Territorial Asylum. These instruments on diplomatic and territorial asylum, combined with the mechanism of non-extradition on political grounds, are now known as the Latin American asylum tradition. Ecuador considers that, when a State grants asylum or refuge, it places the protected person under its jurisdiction, either by granting him asylum in application of Article 22(7) of the 1 Article 64 of the American Convention: “1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court. 2. The Court, at the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.” 2 The relevant parts of Article 70 of the Rules of Procedure of the Court state that: "1. Requests for an advisory opinion under Article 64(1) of the Convention shall state with precision the specific questions on which the opinion of the Court is being sought. 2. Requests for an advisory opinion submitted by a Member State or by the Commission shall, in addition, identify the provisions to be interpreted, the considerations giving rise to the request, and the names and addresses of the Agent or the Delegates". ** Translator’s note: The Court has not issued an official English translation at the time of publication (13 September 2018). The original Advisory Opinion can be found at: http://www.corteidh.or.cr/docs/opiniones/seriea_25_esp.pdf 3 American Convention on Human Rights, or by according him refugee status under the 1951 Geneva Convention. Consequently, Ecuador understands that these international instruments have expressed the will of the international community as a whole to recognize asylum as a right that is exercised universally and by any method or form that it takes under the laws of the State granting asylum and/or the provisions of international conventions. In the opinion of Ecuador, all the provisions [such as Article 5 of the 1951 Convention] confer unity and continuity on the right to asylum or refuge so that the recognition of this right is materialized to the extent that the principle of equality and non-discrimination is strictly complied with, and the protection granted is the same in all circumstances and without any distinctions of an unfavorable nature. Therefore, no adverse distinction between asylum and refuge is admissible because, from a legal point of view, the important element is that the person concerned is prot ected by the jurisdiction of the host State. Articles 22(7) of the American Convention on Human Rights and 14(1) of the Universal Declaration of Human Rights establish the right of asylum without distinguishing or differentiating between the different methods, forms or categories of asylum[,...] granting of this right is a prerogative of the host State, supported by the right inherent in its sovereignty to evaluate the situation. Consequently, in ultimate instance, it is the State granting asylum that has the capacity to decide to accord this right to those who have well-founded fears of being real or potential victims of acts of politically-motivated persecution, or of any type of discrimination that they perceive to be a real or potential threat to their life or personal integrity, liberty and safety; [...] In this situation, the host State plays an important political and social role by providing protection to political offenders and victims of discrimination, and it protects them by means of its laws and institutions, because such persons are under its jurisdiction. [Accordingly, for Ecuador] all forms of asylum are, of necessity, universally valid, and this condition is the inevitable consequence of the universality of the legal principle of non-refoulement, the absolute nature of which covers asylum granted under a universal [1951] convention, but also asylum provided under a regional agreement or the domestic law of a State. [The State of Ecuador stressed that, in accordance with] Article 41 of its Constitution, recognizes both rights: that is, the right to seek asylum and the right to seek refuge and this includes, in each case, diplomatic asylum and territorial asylum.

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