By Tobias Thienel

The International Court of Justice has announced today that the Republic of Honduras has filed an application against the Federative Republic of Brazil. The application states, as quoted in the Court’s Press Release:

"[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens", who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, "are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009."

Honduras therefore requests the Court to adjudge and declare that

Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so. Just as Brazil rightly demands that the Honduran authorities guarantee the security and inviolability of the Mission premises, Honduras demands that Brazil’s diplomatic staff stationed in Tegucigalpa devote themselves exclusively to the proper functions of the Mission and not to actions constituting interference in the domestic affairs of another State.

While this is not strictly appropriate language for a request (it being bad form to put argument in the formal request, which ought to mirror the dispositif of the desired judgment), the heart of the case is clear: Honduras wants a declaration from the ICJ to the effect that Brazil has committed and is committing a wrong in allowing Mr Zelaya to stay in the embassy (i.e. in granting him diplomatic asylum) and in permitting his ongoing political activities (or ‘propaganda’, as the application calls it).

In substantive international law, Honduras may well have a good case, though the law would seem to be far from clear. International law has certainly treated diplomatic and consular asylum as prima facie dubious. As the ICJ itself has explained in 1950, in language now echoed in Honduras’ application:

A decision to grant diplomatic asylum involves a derogation from the sovereignty of that 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 the State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case (Asylum Case (Colombia/Peru), ICJ Reports (1950) 266 at 274-5).

More recently, the English Court of Appeal has similarly accepted that consular and diplomatic asylum are only permissible if the person granted asylum has to fear treatment at the hands of the host State that rises to the level of a crime against humanity, no less (R (B.) v. Secretary of State for Foreign & Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643, para 88). I find it very difficult to understand why the Court of Appeal opted for this very narrow exception (see comments towards the end of my post here), but the court’s choice of phrase is, for now, English law (it was applied as such in R (Al-Saadoon) v. Secretary of State for Defence [2008] EWHC 3098 (Admin), paras 89 et seq, and followed obiter in R (Al-Saadoon) v. Secretary of State for Defence [2009] EWCA Civ 7, para 50).

Among international law sources, Oppenheim’s International Law is somewhat more generous in allowing exceptions from the illegality of diplomatic asylum:

It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity, usually involving the refugee’s life being in imminent jeopardy from arbitrary action. The practice of states has afforded instances of the grant of asylum in such circumstances. The grant of asylum ‘against the violent and disorderly action of irresponsible sections of the population’ is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court’s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims’. However, the Court went on to emphasise that ‘the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals’. Thus it would seem not to be enough to show that a refugee is to be tried for a ‘political’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded (para 495 of Oppenheim’s International Law, quoted in B. at para 85).

This is still a fairly demanding test; a lot has to happen before diplomatic asylum will become permissible. But Brazil may find it easier to meet the much more authoritative test from the Asylum case than the absurdly high standard in the recent English case.

Moreover, there is an aspect to the case that is not a common feature of diplomatic asylum cases: Brazil may have an argument along the lines that the current government of Honduras is illegitimate, and that Brazil is simply doing its bit to restore the legitimate government. It may even be possible to argue, as James Harrison appears to do at the International Law Observer, that the current government at Tegucigalpa cannot act on behalf of Honduras, and therefore has no right to bring this case. Both lines of argument are, of course, fraught with difficulty: the former would open supposedly illegitimate governments – and hence States – to prima facie unlawful interference. The latter argument, for its part, would tend to deny all powers of an illegitimate government to bind its State, whether by treaty (cf. Article 7 VCLT) or otherwise, and whether or not the result is to its or another State’s advantage.

All of this, of course, only serves to make the case more interesting.

But the more important question, for now, is one of procedural law: will Brazil actually be held to any standard at all, viz. does the ICJ even have jurisdiction to deal with the case?

The short answer is that, not having read the full application by Honduras, I don’t know.

The longer answer is that Brazil has not submitted to the ‘compulsory’ jurisdiction of the ICJ under Article 36 (2) of the ICJ Statute (see the list of declarations under Article 36 (2) here), and neither Brazil nor Honduras is a party to the Optional Protocol to the Vienna Convention on Diplomatic Relations, which establishes the ICJ’s ‘compulsory’ jurisdiction for cases under that Convention (see the list of parties here). I therefore don’t see on what Honduras might conceivably found the Court’s jurisdiction, other than Brazil’s ad hoc consent, which looks unlikely (cf. Article 38 (5) of the Rules of Court). But, of course, there may be a treaty that has as yet eluded me.

For now, it seems to me that this application is little more than a way for Honduras to show that they are serious in their legal dispute with Brazil. They are, of course, utterly serious on the political plane already.

Of course, the application may yet prove me wrong, if it refers to a good jurisdictional basis. I’ll check as soon as it becomes available on the ICJ website. Watch this space.

UPDATE: I have been proved wrong. The application is still unavailable on the ICJ website, but who needs that when there are better-informed international lawyers out there? Dapo Akande reports at EJIL:Talk that Honduras and Brazil are parties to the American Treaty on Pacific Settlement (Pact of Bogotá) of 1948, Article 31 of which establishes the Court’s jurisdiction (see Border and Transborder Armed Actions, ICJ Reports (1988) 69 at 83-88, for a rejection by the Court of certain – as it happens, Honduran – objections to that effect of Article 31). That should take care of the jurisdiction issue, and leave over the procedural and substantive aspects of the legitimacy of the sitting government, as well as the other substantive issues pertaining to Brazil’s alleged intervention in Honduras’ domaine reservé.

Dapo’s post also addresses the legitimacy issue; indeed, he reports that Brazil has come on record doing exactly that and denying the current government’s power to bring the case on behalf of Honduras. I must admit I’m still not entirely attracted by this argument. Issues of the legitimacy of a government are always liable to lead one down a very slippery slope. Certainly, reliance on a broad body of opinion among States may help, but it only lessens and does not remove the problem. I therefore doubt if the Court is prepared to spend any length of time on the power of the sitting government to act for Honduras. True it is, as Dapo points out, that the Court has previously had to answer a very similar question, and has there adverted to the international recognition of the head of State in question (see his quote). Still, that was only a rather short passage, and there was a good measure of international recognition. I’m not sure the Court would be prepared to go down that route if things were more problematic. It might as well, in this case, leave the selection of the head of State, who in turn may represent his State (Article 7 (2) VCLT), to domestic law, and take the Honduran Supreme Court’s word for it (see the discussion of such deference at Opinio Juris).

That is not to say, of course, that the existing body of international opinion supporting Mr Zelaya’s cause could not have an effect at the level of substantive law, by in effect allowing Brazil’s actions in support of that cause.

But, jurisdiction, procedure and even substantive international law may now be out of the picture: as Dapo Akande reports in an update to his post, the rival leaders in Honduras have reached an agreement. The case may therefore soon be discontinued – but I’m not going to predict anything…