written by Stefan Andjelkovic
On April 11th, 2024, Mexico instituted proceedings before the International Court of Justice (hereinafter: Court) and filed a request for provisional measures. This case deals with legal issues about diplomatic relations, the peaceful resolution of international conflicts, and the inviolability of diplomatic missions and their personnel.
On April 5th, 2024, at approximately 10 p.m., the Government of Mexico observed concerning actions by the Government of Ecuador regarding the premises of the Mexican Embassy in Quito. It has been reported that around 15 special operations agents, accompanied by two vehicles, entered the Embassy grounds using forceful means and without prior authorization. During this incident, the Deputy Chief of Mission, Mr. Roberto Canseco Martínez, made efforts to address the situation upon witnessing the presence of these agents within the Embassy. Unfortunately, his attempts to intervene were met with violence in the Embassy library. Subsequently, the agents took Mr. Jorge David Glas Espinel, former Vice-President of the Republic of Ecuador, into custody, placing him in one of the vehicles before departing the premises. Mexico expresses its deep concern regarding these events and reiterates the importance of diplomatic norms and the inviolability of diplomatic missions. (Embassy of Mexico in Quito (Mexico v. Ecuador), Application No. 2024/30, International Court of Justice, p. 1)
Mexico stated that the recent assault was not an isolated incident but rather part of a pattern of ongoing intimidation and harassment. This series of events began on December 17, 2023, as Mr. Jorge David Glas Espinel, the former Vice-President of Ecuador, arrived at the Mexican Embassy in Quito seeking protection, citing concerns for his safety. Following this, Mr. Glas Espinel remained at the Embassy and formally requested asylum from Mexican authorities. Since that date, there has been a persistent police presence surrounding the Mexican Embassy.
The circumstances surrounding Mr. Glas and his asylum request were discussed during a meeting between the foreign ministers of Ecuador, Mrs. Gabriela Sommerfeld, and Mexico, on January 16, 2024. On February 8, 2024, Mrs. Gabriela Sommerfeld and Laura Elena Carrillo, Mexico’s Undersecretary for Latin America, had a follow-up meeting where they talked about the subject. This indicates Mexico’s willingness to work with Equator to resolve any potential disputes through diplomatic channels (Ibid.).
The Ministry of Foreign Affairs of Ecuador sent a diplomatic note on February 17th, 2024, inquiring about the location of Mr. Glas at the Mexican Embassy. Moreover, on February 29th, the Ministry of Foreign Affairs of Ecuador issued a second diplomatic note asking for permission from the Mexican diplomatic mission for Ecuadorian law enforcement agencies to enter the Mexican Embassy and arrest Mr. Glas. That consent could only have been granted by the Head of Mission (Ibid. p. 2).
On April 4, 2024, Ecuador declared persona non grata the Ambassador of Mexico in Ecuador, citing the President of Mexico’s comments on Ecuador’s presidential elections as the reason for their decision. Mexico regretted declaring its Ambassador persona non grata and decided to offer political asylum to Mr. Glas Espinel. Mexico also stated its intention to seek safe passage for Mr. Glas Espinel and insisted that Ecuador ensure the protection of its diplomatic mission. Ecuador quickly replied on that same day, stating that they considered the diplomatic asylum granted to Mr. Glas Espinel as illegal and that they would not provide him with safe passage. Ecuador stated that it would keep protecting the Mexican Embassy in Quito under the Vienna Convention on Diplomatic Relations (hereinafter: Vienna Convention). Around 10 p.m. on 5 April 2024, armed Ecuadorian security forces entered the Mexican Embassy without permission from the Head of Mission, restrained the Deputy Chief of Mission, and forcefully took Mr Glas Espinel from the premises.
On April 6, 2024, the Mexican Government informed Ecuador through a Note Verbale of its immediate termination of diplomatic and consular relations between the two countries. Ecuador reiterated on that day that Mexico’s act of granting diplomatic asylum to Mr. Glas Espinel was against the law. The decision of Ecuador’s President to allow entry into the Mexican Embassy was made due to Mr. Glas Espinel facing a genuine and immediate risk of fleeing (Ibid.).
Regarding the grounds of the claim, Mexico claimed that Ecuador violated Mexico’s rights under customary and conventional international law, as well as fundamental principles upon which the international legal system is based. Mexico referred to article 2 of the Charter of the United Nations (hereinafter: Charter) which regulates the main principles of the United Nations, for this case the most important principle “to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Article 2 of the Charter), and to article 4 of the Charter which stipulates that “membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations” (Article 4 of the Charter).
Furthermore, Mexico claimed “that Ecuador has openly disregarded its obligations vis-à-vis Mexico under the Vienna Convention, the Pact of Bogota, and the Charter of the Organization of American States” (Embassy of Mexico in Quito (Mexico v. Ecuador), Application No. 2024/30, International Court of Justice, p. 5).
Regarding the Vienna Convention, certainly the most applicable article, in this case, is Article 22 (1), which stipulates that the premises of the mission shall be inviolable and that the agents of the receiving State may not enter them, except with the consent of the head of the mission, and article 29 which guarantees the inviolability of the person of a diplomatic agent and prohibits any form of arrest or detention. The receiving State shall treat the diplomatic agent with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.
Mexico requested the Court to adjudge and declare as follows:
a) Concerning the obligation to settle international disputes by peaceful means,
i. To adjudge and declare that, by employing the use of force to break into the premises of the Mexican Embassy, Ecuador is in breach of its obligations under international law, notably article 2(3) of the Charter, article 3(i) of the Charter of the Organization of American States, and article 2 of the Pact of Bogota;
ii. To adjudge and declare that Ecuador has persistently violated the principles contained in the Charter;
b) About the premises of Mexico’s Embassy to Ecuador and its diplomatic personnel,
- To determine and declare that Ecuador, by deploying special police and military forces both outside and inside Mexico’s diplomatic premises, thereby compromising the personal integrity and dignity of Mexican diplomatic personnel, interfering with private communications of the Embassy, and forcibly entering the premises, violates its obligations under international law;
- . To order Ecuador to undertake all appropriate and immediate measures to respect and protect the premises of the mission, together with its property and archives, in conformity with the Vienna Convention; and
- To order Ecuador to make full reparation to Mexico for the harm suffered.
c) Given all the violations by Ecuador of international obligations owed to Mexico,
i. To adjudge and declare that Ecuador is responsible for the harm that the violations of its international obligations have caused and are still causing to Mexico;
ii. To suspend Ecuador as a member of the United Nations, until it issues a public apology recognizing its violations of the fundamental principles and norms of international law, to guarantee reparation for the moral harm inflicted upon the United Mexican States and its affected nationals;
iii. To adjudge and declare that, in case of a violation of the principles established in the Charter similar to the ones committed by Ecuador in the present case, the Court is the appropriate judicial body to determine the responsibility of a State, to initiate the process of expulsion under article 6 of the United Nations Charter; and iv. To set a precedent stating that a State or nation that acts as Ecuador did in the present case will ultimately be expelled from the United Nations under the procedure foreseen under Article 6 of the Charter (Embassy of Mexico in Quito (Mexico v. Ecuador), Application No. 2024/30, International Court of Justice, p. 9 – 10).
Moreover, concerning the Vienna Convention, Mexico requested provisional measures to safeguard the enjoyment of its rights, which are as follows: the inviolability of its diplomatic mission premises in Quito; the entirety of its property and archives; and the private residence of diplomatic agents, including in the event of a break in diplomatic relations (Ibid. p. 11).
In the Application, Mexico stated that the Republic of Ecuador’s actions seriously harmed Mexico, its diplomatic post, and its employees there. They also seriously jeopardize Mexico’s rights under the Vienna Convention from future violations. Therefore, the recent acts of Ecuador’s security forces amply reinforce the urgency of the provisional measures, and thus, Mexico requested the Court to indicate the following provisional measures:
- That the Government of Ecuador takes appropriate and immediate steps to provide full protection and security of diplomatic premises, their property, and archives, preventing any form of intrusion against them;
- That the Government of Ecuador allows the Mexican Government to clear diplomatic premises and the private residence of diplomatic agents;
- The Government of Ecuador ensures that no action is taken which might prejudice the rights of Mexico in respect of any decision which the Court may render on the merits;
- That the Government of Ecuador refrains from any act or conduct likely to aggravate or widen the dispute of which the Court is seized (Ibid. p. 12 – 13).
During a public hearing held on Wednesday 1 May 2024 at the Peace Palace, the agent of Ecuador, stated that Ecuador has already provided assurances, of its own volition, both to Mexico and to the Court, that it will respect and protect the premises of Mexico’s diplomatic mission in Quito, together with its property and archives, in full accordance with international law. He reiterated unequivocally that, following the Vienna Convention and other relevant rules of international law, Ecuador will:
- (1) provide full protection and security to the premises, property, and archives of the diplomatic mission of Mexico in Quito, to prevent any form of intrusion against them;
- (2) allow Mexico to clear the premises of its diplomatic mission and the private residences of its diplomatic agents; and
- (3) refrain from any action that is likely to aggravate or widen the dispute of which the Court is seised, and instead pursue the peaceful settlement of disputes (Public sitting in the case concerning the Embassy of Mexico in Quito (Mexico v. Ecuador), CR 2024/26, International Court of Justice, p. 8-9).
Additionally, an agent from Ecuador stated that they provided written assurances to Mexico as early as April 9, 2024, shortly after Mexico abruptly severed diplomatic relations in response to the unusual incident on April 5, 2024. Mexico did not reply to this communication. Instead, just two days later, it submitted an application to the Court to initiate proceedings and requested provisional measures. Ecuador subsequently submitted its assurances to the Court in a letter dated April 19, 2024. It is important to note that these assurances were crafted in a manner and language that directly addressed the specific terms of Mexico’s request for provisional measures (Ibid. p. 9).
According to Ecuador, at the time of his arrival at the Mexican Embassy, Mr Glas Espinel was on temporary release from prison on health-related grounds, following two final convictions against him for illicit association and bribery. He was also subject to ongoing criminal proceedings in Ecuador for alleged embezzlement of public funds (for which a pre-trial detention order was issued on 5 January 2024) and under investigation for alleged intimidation and psychological violence. In the view of Ecuador, the case also concerns, among other things, the violations by Mexico of the Vienna Convention, the need to prevent abuse of the institution of asylum as known to Latin America, Mexico’s complete disregard of its obligations to cooperate under the inter-American and the UN anti-corruption conventions, and the blatant interference by Mexico in Ecuador’s internal affairs. Ecuador emphasized that it was determined to fight the corruption that had engulfed the whole continent and was determined to fight the impunity that has been harmful to peace and prosperity not only in Ecuador but also far beyond (Ibid. p. 10).
Regarding the jurisdiction of the Court, Ecuador emphasized that the Court does not have prima facie jurisdiction over Mexico’s claims in this case. The first point is Article II of the Pact of Bogota which requires the existence of a dispute “which, in the opinion of the parties, cannot be settled by direct negotiations through the usual diplomatic channels”. Ecuador pointed out in the case of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea in which the Court decided that “[t]he critical date at which ‘the opinion of the parties’ has to be ascertained for the application of Article II of the Pact is the date on which proceedings are instituted”. For this case, according to Ecuador, that date marks the moment Mexico filed its application. They claimed as well that Mexico did not provide evidence that “the two parties previously attempted to resolve their differences by direct negotiations through the usual diplomatic channels” since there were no negotiations and that at this stage in the proceedings, prima facie Article II of the Pact of Bogota is not satisfied (Ibid. p. 24).
Furthermore, Ecuador emphasized the implausibility of the rights for which Mexico sought protection at this stage of provisional measures, as well as the absence of a connection between the requested measures and those rights. Ecuador asserted that it initially provided assurances to Mexico in a Note dated April 9, 2024, stating that it would act in accordance with the specific measures requested by Mexico (Ibid. p. 35). Given that, according to the Court’s case law, it is insufficient to merely reference rights under a treaty, the Court also examines the “facts and circumstances” to make its determination. Ecuador stressed that the current “facts and circumstances” are inadequate to establish that these rights are relevant to the case at hand. Consequently, the rights Mexico seeks to protect through its Request are not “plausible” enough to warrant the indication of provisional measures (Ibid. p. 37).
Therefore, the Republic of Ecuador requested the Court to reject the request for the indication of provisional measures submitted by the United Mexican States (Ibid. p. 43).
On 23 May 2024, the Court delivered its Order on the request for the indication of provisional measures.
It was noted by the Court that the Ministry of Foreign Affairs of Ecuador informed the Ministry of Foreign Affairs of Mexico in a Note Verbale dated April 9, 2024, that “the respect and protection of the premises, property, and archives of the Mexican Embassy in Quito will be guaranteed in accordance with Article 45 (a) of the Vienna Convention on Diplomatic Relations (Order on the indication of provisional measures, International Court of Justice, p. 8).
The Ecuadorian Agent’s guarantees, in the Court’s opinion, addressed the worries that Mexico raised in its Request. They include, among other things, pledges to guarantee complete safety and security for the premises, property, and archives of the diplomatic mission of Mexico in Quito and to permit the clearing of both the mission and the private homes of Mexican diplomats. Furthermore, as the Respondent made clear during the hearing, these guarantees were meant to cover “the same ground as Article 45 (a) of the Vienna Convention” and to encompass inviolability to the extent that Article 45 necessitates it (Ibid. p. 9).
In its Order, the Court recalled the fundamental importance of the principles enshrined in the Vienna Convention. As the Court has previously noted, “there is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose” (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 19, para. 38). In particular, “the institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means” (Ibid. p. 10).
Thus, the Court unanimously decided “that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures” (Ibid. p. 11).
Conclusion
The case of Mexico v. Ecuador involves a conflict between the institution of diplomatic asylum and the inviolability of diplomatic missions, their personnel, and archives on one hand, and the principle of non-interference in the internal affairs of the receiving state, as outlined by the Vienna Convention on Diplomatic Relations and the Charter of the United Nations, on the other.
In its application, Mexico alleged that Ecuador violated the Vienna Convention’s provisions concerning the inviolability of diplomatic missions, archives, and personnel. Additionally, Mexico claimed that Ecuador failed to respect the granted diplomatic asylum and requested that the Court impose provisional measures. The term “diplomatic asylum,” broadly defined, refers to asylum granted by a state outside its territory, typically within its diplomatic missions (strictly speaking, diplomatic asylum) or consulates. While diplomatic asylum is a well-established practice in Latin American countries, it is not recognized in European international law. The Court’s interpretation of diplomatic asylum will be pivotal in this case.
Conversely, Ecuador contended that Mexico’s provision of diplomatic asylum to Jorge David Glas Espinel (Mr. Glas), Ecuador’s former Vice President, constituted a breach of the Vienna Convention’s articles related to non-interference in the internal affairs of the receiving state and the principle of peaceful resolution of international disputes. Ecuador argued that the entry into the diplomatic premises was a temporary action indicating its willingness to negotiate with Mexico to restore diplomatic relations and safeguard Mexico’s diplomatic missions, archives, and personnel.
The key issue for the Court will be the interpretation of diplomatic asylum in this context, considering that this practice is not acknowledged in Europe or other regions outside Latin America. The Court will also need to determine whether diplomatic asylum should take precedence over the Vienna Convention and the principles of non-interference in the internal affairs of the receiving state and the peaceful resolution of international conflicts.