Australia's diplomatic asylum initiative at the United Nations: comparing international law rhetoric with foreign policy practice

ABSTRACT

In 1974, Australia took the initiative to have an item on diplomatic asylum inscribed on the UN General Assembly's agenda for that year. Its original ambition was to procure an international treaty on the subject. This article traces the history of that initiative from its inception to the acknowledgement seven years later that it had come to nothing. It also investigates the impact that Australia's initiative at the UN had on its foreign policy practice in relation to diplomatic asylum through two administrations: the Whitlam government (5 December 1972–11 November 1975) and the Fraser government (11 November 1975–11 March 1983). It demonstrates that, while the initiative generated a great deal of bureaucratic work, it wrought no real change in Australia's practice on the ground.

KEYWORDS:

• Diplomatic asylum
• Australian foreign policy history
• United Nations history

Acknowledgement

The author gratefully acknowledges the research assistance of Dr Jodie Boyd and helpful feedback from Professor Klaus Neumann. All errors are, of course, attributable to the author alone.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Draft article 40(3) provided:

The premises of a diplomatic mission must not be used in any manner incompatible with the functions of the mission as laid down in the present draft articles, or by other rules of general international law, or by any special agreements in force between the sending and the receiving State.

2 At its 14th session in 1959, the UNGA had asked the ILC to undertake at its convenience the codification of the principles of international law relating to the right of asylum, including diplomatic asylum (Den Heijer 2013, 408).

3 This was the colloquial name for a policy of preventing non-white immigration to Australia which was in place from federation to 1973 when it was formally abolished by the Whitlam government.

4 This was because the Cabinet decision only covered diplomatic asylum requests made by Asian leaders and defectors from communist countries. Fancony and Meneses fell into neither category.

5 The ICCS had been set up under the Paris Agreement on Ending the War and Restoring Peace in Vietnam of 27 January 1973.

6 The Department of External Affairs had its name changed to the Department of Foreign Affairs from 6 November 1970.

7 Although the man was described in media reporting as an East European diplomat, the Minister was advised on 22 October 1974 that he could answer any further question in Parliament by saying that ‘[n]o application to come to Australia has been received in the recent past from a member of an East European diplomatic mission’ but that ‘[o]ne East European national, who had been working in a third country on a construction project’ had applied recently to an Australian mission for permission to settle in Australia giving ‘reasons of essentially a political kind’. This application had been refused by the Minister for Labor and Immigration, Clyde Cameron, because the applicant ‘was not in any category eligible for migration to Australia’. (Gilchrist 1974c). From an examination of the archival record, it seems very likely that the man in question was Mr Manea, a Romanian national. Mr Manea had been working as an engineer in Libya before travelling to Malta with his family and seeking asylum from the Australian embassy in Malta (Embassy Malta 1974).

8 According to the press and Opposition at the time, the 18-year-old Russian violinist, Georgi Ermolenko, who came to Australia on a concert tour in August 1974, had sought asylum but been pressured to change his mind. According to the Australian government, Ermolenko had simply sought to stay in Australia as a resident but had changed his mind of his own volition a day later (Albinski 1977, 154 & 157).

9 Lajos Miko, a member of the Hungarian delegation to the ICCS approached the Australian embassy in Saigon on 24 April 1974 and expressed a desire to quit the ICCS, renounce his membership of the Hungarian communist party and defect. Upon applying to Canberra for instructions, the embassy received instructions to fly Miko to Canberra. This was accomplished on 26 April 1974 (Price 1974). When Hungary protested this ‘unfriendly behaviour’, Canberra instructed the embassy to respond by saying that Miko had applied to migrate to Australia and been ‘accepted by the Australian authorities as a normal permanent migrant’ (DFA 1974a).

10 In 1975, Willesee withdrew his candidacy for the General Assembly presidency in favour of Mr Gaston Thorn of Luxembourg.

11 The Treaty on International Penal Law signed at Montevideo in 1889 OAS, Official Records (OEA/Ser.X/7), Treaty Series 34; The Convention on Asylum signed at Havana in 1928 OAS, Official Records (OEA/Ser.X/1), Treaty Series No. 34; The Convention on Political Asylum signed at Montevideo in 1933 OAS, Official Records (OEA/Ser.X/7), Treaty Series No. 34; The Treaty on Political Asylum and Refuge, signed at Montevideo in 1939 OAS, Official Records (OEA/Ser.X/1), Treaty Series No. 34; The Convention on Diplomatic Asylum signed at Caracas in 1954 OAS, Official Records (OEA/Ser.X/1), Treaty Series No. 34.

12 The other abstentions were from Burma, Ethiopia, France, Nepal, Oman and Zaire (Australian Delegation to the UN 1974).

13 Argentina, Bolivia, Ecuador and Uruguay. The two other States were Afghanistan and Liberia.

14 Austria, Jamaica, Madagascar, Oman, Pakistan and Turkey.

15 Bahrain, Belgium, Canada, Czechoslovakia, Denmark, France, Iraq, Norway, Poland, Singapore and Sweden.

16 The Minister for Foreign Affairs from 3 November 1980 to 11 March 1983, when the ALP took office, was Tony Street.

17 In 1980, while her ballet troupe was touring Australia, East German dancer Heidrun Giersch sought and received political asylum from the Australian authorities (Neumann and Taylor 2018).

18 With Canberra's permission, the Australian embassy had, in fact, raised the case with the West German mission and been informed that Gottschalk had applied to migrate to West Germany in 1976. The embassy was informed that Gottschalk was one of very many they were interested in helping (Embassy Berlin 1980c).

19 As the Australian embassy in Warsaw pointed out to DFA, the case of Cardinal Jozsef Mindszenty provided a salutary lesson in this regard (Embassy Warsaw 1975). The Cardinal was granted ‘temporary refuge’ by the US embassy in Budapest in 1956 but ended up living in the embassy for 15 years.

20 The main example is, of course, the grants of asylum by 25 embassies in Chile at the time of the 1973 coup. As another example, in 1978, the US granted asylum to seven Siberian Pentacostalists in its Moscow embassy where they remained for five years before being granted safe conduct to the US (Riveles 1989, 157).

Additional information

Funding

This work was supported by the Australian Research Council's Discovery Projects funding scheme under grant DP160101434.

Notes on contributors

Savitri Taylor

Savitri Taylor is an Associate Professor in the Law School at La Trobe University. She holds an LLB (Hons), BComm and PhD from the University of Melbourne. Her primary research focus is on refugee law and asylum policy at the national, regional and international level.