The Hypothesis of Bolsonaro’s Diplomatic Asylum Granted by the Hungarian Embassy in Brazil.
The study of Diplomatic Asylum is not merely a retrospective on past inter-state conflicts; it is a highly relevant topic, especially considering the two active cases of diplomatic asylum in Venezuela.[1] and Mexico[2].
In this scenario, former President Jair Bolsonaro is said to have sought asylum in the Hungarian Embassy in Brazil. Technically, it would be more logical for him to seek asylum in the Argentine Embassy, given the existing conventions on diplomatic asylum between Brazil and Argentina, unlike with Hungary.
Diplomatic Asylum is a particularly delicate issue in Public International Law. It involves the application and interpretation of the Vienna Convention on Diplomatic Relations (1961) on one hand, and on the other, the fundamental principle of respect for self-determination enshrined in the UN Charter, which leads to the prohibition of a State’s interference in the internal affairs of another. Amidst these tensions, the overarching concept of human rights emerges, permeating the constitutional framework of international society.
Discussing diplomatic asylum highlights the distinctions between asylum and refuge within international law. It is crucial to recognize that these terms pertain to distinct concepts of an individual’s international status, all of which are subcategories of those requiring international protection; this encompasses the status of stateless persons [3], refugees, asylees, and migrants. The definition of each status depends on the particular international law that regulates it, delineating the rights that come with it and setting the criteria for individuals to qualify.
The widely recognized de facto status of Mr. Bolsonaro in Brazil precludes him from being classified as a refugee. His circumstances do not meet the criteria set by the 1951 Convention and 1967 Protocol for the Status of Refugees [4], as he is not outside Brazilian territory.
In this sense, the following scholarship opinion:
“Article 1A, paragraph 1, of the 1951 Convention applies the term “refugee”, first, to any person considered a refugee under earlier international arrangements. Article 1A, paragraph 2, read now together with the 1967 Protocol and without the time limit, then offers a general definition of the refugee as including any person who is outside their country of origin and unable or unwilling to return there or to avail themselves of its protection, on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group, or political opinion. Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as “country of former habitual residence”. Those who possess more than one nationality will only be considered as refugees within the Convention if such other nationality or nationalities are ineffective (that is, do not provide protection).”
Guy S. Goodwin-Gill
From the information provided, it is clear that Bolsonaro’s circumstances should be strictly considered from the perspective of an asylum seeker scenario.
Asylum is enshrined in the 1948 Universal Declaration of Human Rights, Article 14 (1):
“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
UNDHR
Nevertheless, asylum is not a human being´s right; it is an unfolding of the State´s sovereignty, as Guy S. Goodwin-Gill [5] explains:
“Article 14, paragraph 1, of the 1948 Universal Declaration on Human Rights proclaims the right of everyone, “to seek and to enjoy in other countries asylum from persecution”. Its final, equivocal wording – there is no reference to the right to be granted asylum – was a compromise between States which saw this form of protection as but one aspect of their territorial sovereignty, and those which urged that an individual entitlement to asylum be recognized, as well as the involvement or responsibility of the United Nations.”
As a result, Bolsonaro would not be entitled to asylum from the Hungarian Government, although it possesses the authority to grant it. When asylum is provided outside the territory of the granting state, in this case, Hungary, it is referred to as diplomatic asylum in the strict sense.
By the way, it is worth noticing that there is also a classification for asylum, which is divided into some types; however, “the terminology employed in this entire field lacks uniformity. The terms “internal asylum”, “external asylum”‘ and “political asylum” are used by some to denote diplomatic asylum and by others to refer to territorial asylum.”[6]
Considering the possibility that the Hungarian Embassy in Brazil, as the receiving or territorial state, might grant diplomatic asylum to Mr Bolsonaro as an exercise of its sovereignty, would the Brazilian government be obligated to respect that decision?
Merrills notes that international law was established to ensure that disputes are pursued solely through peaceful means, with self-help being prohibited. Therefore, rather than using force against the Hungarian Diplomatic Embassy, storming the building with police, and seizing Mr Bolsonaro—which would constitute a grave violation of the 1961 Vienna Convention on Diplomatic Relations—the correct course of action under international law would be to emulate the procedures adopted by Colombia and Peru.[7]
In fact, following the Colombian Embassy in Lima’s grant of diplomatic asylum to a Peruvian national, Victor Raúl, on January 3, 1949—a political leader accused of instigating a military rebellion—Colombia and Peru, unable to agree on the matter, submitted the dispute to the International Court of Justice through a special agreement known as the Act of Lima.y means of a special agreement (Act of Lima), submitted the dispute to the International Court of Justice[8].
In conclusion, Mr Bolsonaro could apply for diplomatic asylum at the Hungarian Embassy, although he would not have the right to be granted such asylum. Conversely, the Hungarian Embassy would have the authority to offer him protection. Should they choose to do so, the Brazilian government would not be able to storm the embassy (as Ecuador did with the Mexican Embassy in Quito), but would need to resolve the matter through diplomatic channels or, if those fail, via legal or judicial routes.
Ultimately, the case would not rest on a specific international law provision but rather on a broad interpretation of international law principles. The Regional Instruments on Asylum would not come into play, provided that Hungary is not a signatory to these instruments.
Certainly, the hypothetical case would surmount initial objections concerning admissibility and jurisdiction.
Considering the merits, it seems highly probable that the Brazilian government would prevail in the case.
Recommended reading on Asylum:
Diplomatic Asylum as a Human Right: The Case of the Durban Six
Author(s): Susanne Riveles
Source: Human Rights Quarterly, Feb. 1989, Vol. 11, No. 1 (Feb. 1989), pp. 139-159
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/761937
[1] Power outages hit Argentine Embassy in Caracas after granting asylum to opposition leaders — MercoPress
[2] Mexico Upholds Asylum Rights for Ecuador’s Glas, Defying Diplomatic Pressure – The Rio Times (riotimesonline.com)
[3] The 1954 United Nations Convention on Statelessness states that a stateless person is “not recognized as a national by any state under the operation of its law.”
[4] Guy S. Goodwin-Gill, Convention Relating to the Status of Refugees, Protocol Relating to the Status of Refugees (U.N. Audiovisual Library of International Law), accessed April, 7, 2024, Introductory Note – Guy S. Goodwin-Gill, Senior Research Fellow, All Souls College, Oxford – English (un.org).
[5] Guy Goodwin-Gill, Declaration on Territorial Asylum (UN Audiovisual Library of International Law, New York, 14/12/1967), accessed April 7, 2024, Declaration on Territorial Asylum (un.org). Nevertheless, a human rights movement in the opposite direction is increasingly gaining momentum. Within the United Nations Assembly, there is a prevailing opinion that asylum, particularly territorial asylum, constitutes a form of political interference. Historical perspectives appear to affirm this view, as diplomatic or territorial asylum has often been granted amidst a stark political and radical opposition between the granting state and the territorial state. This is exemplified by the recent cases involving Argentina and Venezuela, as well as Mexico and Ecuador. Contrariwise, when there is no direct conflict between the governments involved, diplomatic asylum tends not to be granted, as seen in the Durban Six case.
[6] Question of Diplomatic Asylum. Report of the Secretary-General A/10139 (Part II), UNHCR, accessed April 7, 2024. In Latin America, where International Law on Asylum has led to several regional agreements, these include: The Treaty on International Penal Law (Montevideo, 1889), the Agreement on Extradition (Caracas, 1911), the Convention on Asylum (Honduras, 1928), the Convention on Political Asylum (Montevideo, 1933), the Convention on Diplomatic Asylum (Caracas, 1954), and the Convention on Territorial Asylum (Caracas, 1954).. Here, you can download those Agreements.
[7] J.G. Merrills, International Dispute Settlement (Cambridge University Press, 2011), 1.
