Ecuador – a permanent exception

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By JULIO DA SILVEIRA MOREIRA*

The invasion of the Mexican embassy in Ecuador highlights a very serious and worrying deviation from the fundamental principles that have guided international and diplomatic relations in Latin America

“War is merely the continuation of politics by other means” (Claude von Clausewitz).

The phrase used in this epigraph illustrates the deplorable attitude of the president of Ecuador, Daniel Noboa, of ordering the invasion of the Mexican Embassy in Quito, on April 5th. The action, flagrantly violating International Law, is justified by the idea that there are no limits to combating crime, a speech and practice similar to that of the Central American neighbor, Nayib Bukele, president of El Salvador.

Both materialize the contemporary version of the permanent state of exception in Latin America. The rape of the Mexican embassy and the attacks on diplomatic agent Roberto Canseco is a horrific chapter in the history of Latin American diplomacy, in which we are still only on the first page.

Before analyzing recent facts, I must contextualize the famous phrase by the Prussian general Clausewitz. She is part of the book Of war, a compilation of manuscripts published in 1832, a year after his death. A classic of military theory, as well as ancient The art of war, by the Chinese Sun Tzu.

Clausewitz argues that all military action must be understood and conducted within the context of the political objectives it seeks to achieve. But he is not saying that the converse is true, that is, that every political act is inherently a war. A lot happened after the publication of this text, especially the two great world wars, which bequeathed to the world the primacy of the peaceful solution of international controversies, summarized in article 33 of the Charter of the United Nations:

The parties to a dispute, which may constitute a threat to international peace and security, will seek, first of all, to reach a solution through negotiation, inquiry, mediation, conciliation, arbitration, judicial solution, recourse to regional bodies or agreements , or any other peaceful means of your choice.

More than this, we are talking about the Latin American context, which developed advanced principles and mechanisms of diplomacy and dispute resolution, long before the wars of the 1826th century, at the Panama Congress in XNUMX. While Clausewitz's Europe was torn apart in Napoleonic wars and the restoration of monarchies, Latin America formed alliances for the common defense of the territory, mutual respect for sovereignty, the republican system, the abolition of slavery and commercial integration.

Par in parem non habet imperium

Theories about equality and mutual respect between States date back to Saint Augustine, who witnessed the fall of the Roman Empire and established principles of peace and justice in relations between peoples. Later, Hugo Grotius, who is considered by many to be the founder of modern International Law, established the concept of sovereign equality by directly advising the Peace Treaty of Westphalia (1648) and with his work “On the Law of War and Peace”. This results in the principle of immunity from jurisdiction, which ensures that a sovereign entity cannot subject its internal order to another sovereign entity – this is the basis of contemporary diplomatic relations.

Already mentioned previously, it was the Charter of the United Nations, in 1945, which renewed and systematized the bases of International Law and diplomatic relations, stimulated by an international geopolitical arrangement that advocated international peace and security, friendly relations between nations and international cooperation for development and human rights.

Although the establishment of diplomatic missions and the principles of immunity from jurisdiction and reciprocity already came from international custom over the centuries, it was the 1961 Vienna Conventions, one on diplomatic relations and the other on consular relations, that established and systematized the functioning of embassies, consulates and international delegations. The Vienna Convention on Diplomatic Relations ensures that “the purpose of such privileges and immunities is not to benefit individuals, but rather to guarantee the effective performance of the functions of diplomatic Missions, in their capacity as representatives of States”.

And in article 22, it establishes: (i) The mission locations are inviolable. Agents of the accredited State will not be able to enter them without the consent of the head of the mission. (ii) The receiving State has a special obligation to adopt all appropriate measures to protect the mission sites against any intrusion or damage and to avoid disturbances to the tranquility of the mission or offenses to its dignity. (iii) The mission locations, their furniture and other assets located there, as well as the mission's means of transport, cannot be subject to search, requisition, embargo or enforcement measure.

The Convention also highlights that, even in the event of armed conflict, the embassy facilities must be protected, according to article 45, (a): “the accredited State is obliged to respect and protect, even in the case of armed conflict, the places of the Mission as well as its assets and archives”.

The diplomatic asylum: Latin American institute

The granting of asylum, by a State, to a foreigner who requests protection due to political persecution, is an integral practice of International Law and regulated by several international treaties and documents, as part of the right to human mobility. It is worth remembering the Universal Declaration of Human Rights, from 1948, which states that “every human being, a victim of persecution, has the right to seek and enjoy asylum in other countries” (art. 14, 1), and the Brazilian Constitution, which includes the granting of political asylum among the principles that govern the country in international relations (art. 4, X).

Although territorial asylum is the best known modality, when the individual is present in the territory of the State to which he or she requests asylum, there is also diplomatic asylum, when the individual requests protection from a country through its diplomatic facilities or residences, in the country itself. territory of the persecuting State. As Paulo Portela emphasizes (p. 381), “the asylum is an institution of an eminently humanitarian nature”.

It is worth remembering here, the principle of hospitality, already defined by Francisco de Vitória in 1532, and reinforced by Immanuel Kant in 1795, when listing the definitive articles for perpetual peace between States: “cosmopolitan law must be limited to the conditions of universal hospitality ”, highlighting that this is not a question of philanthropy, but of “the right of a foreigner, upon arrival on another's soil, not to be treated in a hostile manner”. Contemporaneously, the right to hospitality is recovered by the Italian jurist Luigi Ferrajoli, in his writings on universal citizenship.

There is a great debate about whether the requested State can refuse to receive the foreigner who alleges persecution, and the consensus is that this is a discretionary institute. Resolution no. 3.212 of the United Nations General Assembly, in 1967, reaffirmed that asylum is a right (and not a duty) of the State based on its sovereignty, and must be respected by other States. To grant it, it is necessary to characterize the political nature of the acts that led to the persecution and that it is current or imminent.

People who find themselves in this situation should not be denied entry by the country of asylum nor be expelled to a state where they may be subject to persecution or forced repatriation to their country of origin. In the following years, the notion of political persecution was expanded to include persecution for reasons of race, ethnic or national origin, for political conviction or for fighting against colonialism or the apartheid.

Asylum, often called exile, has a special place in the history of international relations in Latin America. It is worth remembering the decision of the then president of Mexico, Lázaro Cárdenas, to grant asylum to those persecuted by the fascist dictatorship of Francisco Franco, during the Spanish Civil War, in the 1930s. This act made the tradition of asylum and the welcoming attitude notable in Mexico. of the country in relation to individuals and groups persecuted for political ideas or actions.

This was marked in the following decades, in several episodes, such as the reception of Fidel Castro and other Cuban members of the 26th of July Movement, in 1955, who were previously imprisoned in Cuba after the defeat in the assault on the Moncada barracks, in 1953. In the following years, the granting of asylum was significant in welcoming individuals persecuted by the military dictatorships that followed in several countries, such as Paraguay, Brazil, Argentina, Uruguay and Chile.

Like territorial asylum, diplomatic asylum has a tradition in Latin America. In fact, it is considered a typically Latin American institute, as its practice, legitimization and regulation over the decades has advanced more there than in other parts of the world. Within the scope of the Organization of American States, three inter-American conventions were signed on this topic: Havana (1928), Montevideo (1933) and Caracas (1954).

In the jurisprudence of the International Court of Justice, a famous case is that of the Peruvian revolutionary Haya de la Torre, who sought asylum at the Colombian Embassy. In the 1951 ruling, “although considering the act illegal, the Court decided that Colombia was not obliged to hand him over, but that the parties, based on the principles of courtesy and good neighborliness, should reach a practical solution” (Mazzuoli, 2010, p. 739). Haya de la Torre remained at the Colombian Embassy in Lima for five years, until a cooperation agreement was concluded allowing her to leave Peruvian territory.

It is worth remembering the most recent case of the then president of Honduras, Manuel Zelaya, who suffered a coup d'état in 2009, with the invasion of his presidential residence, and sought asylum at the Brazilian Embassy in the capital, Tegucigalpa, staying there for 4 months, until an agreement brokered by the president of the Dominican Republic allowed him to leave Honduras safely for that country.

permanent state of exception

Prior to the invasion of the Mexican embassy, ​​in the same week, President Daniel Noboa had declared persona non grata to the Mexican ambassador to Ecuador, Raquel Serur, as a reaction to a comment made by Mexican President Andrés Manuel López Obrador. Speaking in the current context of elections in Mexico and concerns about political violence, the president gave the example of the recent elections in Ecuador, about how the assassination of candidate Fernando Villavicencio defined the results.

The following day, former vice president Jorge Glas, who was in diplomatic asylum at the Mexican embassy, ​​requested safe conduct to leave the country, which was denied by President Daniel Noboa, who then ordered the invasion of the diplomatic headquarters with its national police and military vehicles. The person in charge of the embassy, ​​Roberto Canseco, tried in every possible way, with his own body, to defend the diplomatic mission, as was his institutional duty, until he was thrown to the ground and handcuffed by the Ecuadorian police.

We see here an escalation of conflict between the two countries, culminating in the rupture of diplomatic relations and the return to Mexico of the entire diplomatic mission in the South American country. A series of countries repudiated the serious violation committed by the Ecuadorian State, and some, such as Nicaragua, accompanied Mexico in breaking diplomatic relations with Ecuador. The Secretary-General of the United Nations, Antonio Guterres, declared his alarm.

The newspaper editorial The Journey, on Sunday, April 7, entitled “Ecuador: oligarchic barbarism”, highlighting that historically, only in Guatemala, during a regime that aimed to eliminate indigenous peoples opposed to the expropriation of land encouraged by the CIA, did a similar situation occur. In contrast, neither the dictatorships of Augusto Pinochet in Chile nor the Argentine Military Junta violated Mexican embassies, which served as refuges against state terrorism.

This disastrous action only confirms López Obrador's previous speech, about how violence is used as a political weapon. This time, the explicit violence does not come from a hidden fraction of organized crime, but from the country's president himself, in front of the whole world, when he ordered the invasion of the embassy and kidnapping of his political rival.

By deliberately violating such an elementary norm of International Law, Daniel Noboa advocates that his politics find no limit in the law, or rather, that the law bends and adjusts itself to the interests of politics, accomplishing what Giorgio Agamben, based on Walter Benjamin, Carl Schmitt and Hannah Arendt defined it as a permanent state of exception.

Giorgio Agamben refers to the condition in which government powers operate continuously under norms that should only be applied in extraordinary circumstances. It explores how the state of exception, originally conceived as a temporary response to acute crises, can become a constant government practice where civil liberties are systematically curtailed or suspended under the pretext of necessity or national security.

It is not a historical and conceptual coincidence that the president of El Salvador, Nayib Bukele, managed to get congress to approve an exception regime in March 2022, which has been repeatedly extended to date, restricting individual guarantees and making thousands of massive arrests without due process and trial, including maneuvers to obtain a majority in congress and obtain his re-election. The Ecuadorian president, in turn, announced in January 2024 that his country had entered a “state of war”, after three days of attacks by drug trafficking groups.

The invasion of the Mexican embassy in Ecuador highlights a very serious and worrying deviation from the fundamental principles that have guided international and diplomatic relations in Latin America. This act not only transgresses diplomatic immunity, enshrined in both custom and the Vienna Convention on Diplomatic Relations, but also contravenes the legacy of solidarity and hospitality that defines the region.

Latin America, with its rich history of sheltering the politically persecuted, from Spanish Civil War exiles welcomed by Mexico to the asylum granted to Manuel Zelaya at the Brazilian Embassy, ​​has been noted for asylum practices rooted in a deep sense of humanity and justice. This episode calls into question values ​​such as sovereignty, integration and the peaceful resolution of disputes, evidenced since the Panama Congress in 1826, principles that should guide the actions of States in the international community.

The breach of the Mexican embassy, ​​therefore, not only represents an isolated act of transgression, but rather a threat to the ideals of cooperation, mutual respect and humanitarian support that have been pillars of diplomatic relations and the right to asylum in Latin America.

*Julio da Silveira Moreira is a professor at the Federal University of Latin American Integration (UNILA).

References


AGAMBEN, Giorgio. Homo sacer: sovereign power and bare life. Belo Horizonte: UFMG Publisher, 2002.

Clausewitz, Carl Von. Of war. Translated by Maria Teresa Ramos. São Paulo: WMF Martins Fontes, 2023.

FERRAJOLI, Luigi. Rights and guarantees. The law of the weakest. 4th ed. Madrid: Editorial Trotta, 2004.

GROTIUS, Hugo. The law of war and peace. 2nd ed. Ijuí: Unijuí, 2005.

KANT, Imamnuel. For perpetual peace. Rianxo: Galician Institute for International Security and Peace Studies, 2006.

MAZZUOLI, Valério de Oliveira. Public international law course. 4th ed. São Paulo: Revista dos Tribunais, 2010.

Moreira, Júlio da Silveira. International law: towards a Marxist critique. Toledo, PR: Instituto Quero Saber, 2022.

Moreira, Júlio da Silveira. “Political participation of foreigners in Brazilian legislation”. Emporium of Law. 11 Jun. 2016. Available at: https://emporiododireito.com.br/leitura/participacao-politica-de-estrangeiros-na-legislacao-brasileira

Portela, Paulo Henrique Gonçalves. Public and Private International Law – Including Notions of Human Rights and Community Law. 15. ed. rev., current. and ampl. São Paulo: Editora JusPodivm, 2023.

VITORIA, Francisco de. About civil power. About the Indians. About the right of war. Madrid: Tecnos, 1998.


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