Ecuador grants asylum to Julian Assange. (Press conference)
SOURCE | here
June 19, 2012 | political asylum sought
August 16, 2012 | political asylum granted
EXTRACTS
"... the indictment for crimes of a political nature is the basis for his asylum request, because in his judgement he is facing a situation involving an imminent danger which he cannot escape. In order to assess his fear of possible political persecution, and that this persecution could end up becoming a situation which curtails and violates his rights, integrity, and could become a risk to his personal safety and freedom .."
These principles, which are set forth in various international instruments are as follows:
a) Asylum in all its forms is a fundamental human right creating obligations erga omnes, ie “for all” states.
b) Diplomatic asylum, refuge (or territorial asylum), and the right not to be extradited, expelled, delivered or transferred, are comparable human rights, since they are based on the same principles of human protection: non-refoulement and non-discrimination without any adverse distinction based on race, color, sex, language, religion or belief, political or other opinion, national or social origin, property, birth or other status or any other similar criteria.
c) All these forms of protection are governed by the principles pro person (i.e. more favourable to the individual), equality, universality, indivisibility, interrelatedness and interdependence.
d) The protection occurs when the State granting asylum, required refuge, or powers of protection, consider that there is a risk or fear that the protected person may be a victim of political persecution, or is charged with political offences.
e) The State granting asylum qualifies the causes of asylum and extradition case, weigh the evidence.
f) No matter which of its forms or modality, asylum always has the same cause and lawful object, i.e. political persecution,which makes it permissible, and to safeguard the life, personal safety and freedom of the protected person, which is its legitimately intended purpose.
g) The right of asylum is a fundamental human right, therefore, belongs to jus cogens, i.e. the system of mandatory rules of law recognized by the international community as a whole, for which no derogation is permitted, making null all treaties and provisions of international law which oppose it.
h) In cases not covered by existing law, the human person remains under the protection of the principles of humanity and the dictates of public conscience, or are under the protection and rules of the principles of jus gentium derived from established customs, the principles of humanity and from dictates of public conscience.
i) The lack of international agreement or domestic legislation of States cannot legitimately be invoked to limit, impair or deny the right to asylum.
j) The rules and principles governing the rights to asylum or refuge, no extradition, no handing over, no expulsion and no transfer are convergent, to the extent necessary to enhance the protection and provide it with maximum efficiency.In this sense, they are complementary to the international human rights law, the right of asylum and refugee law, and humanitarian law.
k) The rights of protection of the human being are based on ethical principles and universally accepted values and therefore have a humanistic, social, solidaric, peaceful and humanitarian character.
l) All States have a duty to promote the progressive development of international human rights through effective national and international action.
Ecuador has judged that the laws applicable to the asylum case of Mr. Julian Assange comprise the entire set of principles, standards, mechanisms and procedures provided for international human rights instruments (whether regional or universal), which include among their provisions the right to seek, receive and enjoy asylum for political reasons, the conventions governing the right of asylum and refugee law, and which recognize the right not to be delivered, returned, or expelled when credible fear of political persecution exists; conventions governing extradition law recognize the right not to be extradited when this measure covers political persecution, and conventions governing humanitarian law, recognize the right not to be transferred when there is a risk of political persecution. All these forms of asylum and international protection are justified by the need to protect this person from possible political persecution, or a possible accusation of political crimes and / or crimes related to the latter, which in the opinion of Ecuador, not only endanger Mr. Assange, but also pose a serious injustice committed against him.
It is undeniable that states, having agreed to numerous and substantive international instruments (many of them legally-binding), have the obligation to provide protection or asylum to persons persecuted for political reasons and have expressed their desire to establish a legal institution to protect human rights and fundamental freedoms based on a general practice accepted as law, which confers on such obligations a mandatory nature, erga omnes, linked to the respect, protection and progressive development of human rights and fundamental freedoms that are part of jus cogens.
Some of these instruments are mentioned below:
a) United Nations Charter of 1945, Purposes and Principles of the United Nations: the obligation of all members to cooperate in the promotion and protection of human rights;
b) Universal Declaration of Human Rights 1948: right to seek and enjoy asylum in any country, for political reasons (Article 14);
c) Declaration of the Rights and Duties of Man, 1948: right to seek and enjoy asylum for political reasons (Article 27);
d) Geneva Convention of August 12, 1949, relative to the Protection of Civilian Persons in Time of War: the protected person should in no case be transferred to a country where they fear persecution for his political views ( Article 45);
e) Convention on the Status of Refugees 1951 and Protocol of New York, 1967: prohibits returning or expelling refugees to countries where their lives and freedom would be threatened (Art. 33.1);
f) Convention on Diplomatic Asylum, 1954: The State has the right to grant asylum and classify the nature of the offense or the motives of persecution (Article 4);
g) Convention on Territorial Asylum of 1954: the State is entitled to admit to its territory such persons as it considers necessary (Article 1), when they are persecuted for their beliefs, political opinions or affiliation, or acts that may be considered political offenses ( Article 2), the State granting asylum may not return or expel a refugee who is persecuted for political reasons or offenses (Article 3); also, extradition is not appropriate when dealing with people who, according to the requested State, be prosecuted for political crimes, or common crimes committed for political purposes, or when extradition is requested obeying political motives (Article 4);
h) European Convention on Extradition of 1957, prohibits extradition if the requested Party considers that the offense is a political charge (Article 3.1);
i) 2312 Declaration on Territorial Asylum of 1967 provides for the granting of asylum to persons who have that right under Article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism (Article 1.1). It prohibits the refusal of admission, expulsion and return to any State where he may be subject to persecution (Article 3.1);
j) Vienna Convention on the Law of Treaties of 1969, provides that the rules and principles of general international law imperatives do not support a contrary agreement, the treaty is void upon conflicts with one of these rules (Article 53), and if there arises a new peremptory norm of this nature, any existing treaty which conflicts with that provision is void and is terminated (Article 64). As regards the application of these Articles, the Convention allows States to claim compliance with the International Court of Justice, without requiring the agreement of the respondent State, accepting the court’s jurisdiction (Article 66.b). Human rights are norms of jus cogens.
k) American Convention on Human Rights, 1969: right to seek and enjoy asylum for political reasons (Article 22.7);
l) European Convention for the Suppression of Terrorism of 1977, the requested State is entitled to refuse extradition when there is a danger that the person is prosecuted or punished for their political opinions (Article 5);
m) Inter-American Convention on Extradition of 1981, the extradition is not applicable when the person has been tried or convicted, or is to be tried in a court of special or ad hoc in the requesting State (Article 4.3), when, under the classification of the requested State, whether political crimes or related crimes or crimes with a political aim pursued, and when, the circumstances of the case, can be inferred that persecution for reasons of race, religion or nationality; that the situation of the person sought may be prejudiced for any of these reasons (Article 4.5). Article 6 provides, in reference to the right of asylum, that “nothing in this Convention shall be construed as limiting the right of asylum, when appropriate.”
n) African Charter on Human and Peoples of 1981, pursued individual’s right to seek and obtain asylum in other countries (Article 12.3);
o) Cartagena Declaration of 1984, recognizes the right to seek refuge, not to be rejected at the border and not to be returned.
p) Charter of Fundamental Rights of the European Union 2000: establishes the right of diplomatic and consular protection. Every citizen of the Union shall, in the territory of a third country not represented by the Member State of nationality, have the protection of diplomatic and consular authorities of any Member State, under the same conditions as nationals of that State (Article 46).
The Government of Ecuador believes it is important to note that the rules and principles recognized in the international instruments mentioned above and in other multilateral agreements take precedence over domestic law of States, because these treaties are based on universal rules guided by intangible principles, whereof deriving greater respect, protection and fulfilment of human rights against unilateral attitudes of such States. This would compromise international law, which should instead be strengthened in order to consolidate the respect of fundamental rights in terms of integration and ecumenical character.
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