Gimme Shelter

The whereabouts of Chinese human rights lawyer Chen Guangcheng is currently the subject of intense speculation. Some believe that the prominent blind dissident, who escaped from 19 months of house arrest last week, has taken refuge in the U.S. embassy in Beijing, while others say he may be hiding out in the residence of U.S. ambassador Gary Locke or another American diplomat. The New York Times even quoted one anonymous diplomat in China as suggesting that Chen might have queued up in a long line at the U.S. embassy’s visa section and then sought asylum once inside the compound (it’s difficult to imagine Chen, with his iconic dark glasses, blending in with the crowd). Now, on the eve of Secretary of State Hillary Clinton’s trip to Beijing, U.S. and Chinese officials are reportedly engaged in tense negotiations over Chen’s fate. 

If the reports are true, Chen’s gambit is hardly unprecedented. Broadly speaking, of course, the idea of seeking refuge can be traced all the way back to the biblical notion of special cities for those who killed people accidentally. In the Middle Ages — beginning as early as the 4th century A.D. — the Catholic Church began butting heads with civil authorities over the practice of offering criminals various forms of sanctuary in and around churches (the monarchs eventually proved victorious, as church sanctuaries became, in the words of scholar Hilary Cunningham, "holding pens for criminals pursued by the royal courts" before vanishing altogether). These practices, however, generally applied to those suspected of committing crimes — not political refugees.

The act of seeking sanctuary in foreign embassies gained traction in the 20th century, but fleeing to a diplomatic mission wasn’t always a safe bet. In 1927, for example, the anti-Communist Manchurian warlord Zhang Zuolin ordered a raid on the Soviet embassy in Beijing, arresting and executing 20 Communist activists who had sought refuge there including Li Dazhao, co-founder of the Chinese Communist Party.

But, for the most part, the recognition of embassies as off-limits to the host-country authorities gradually became a fundamental principal of customary international law over the course of the 19th and early 20th centuries, though the seeds were planted earlier (a Venetian statute in 1554 declared that "he who has taken refuge in the house of a diplomat shall not be followed there, and his pursuers are to feign ignorance of his presence").

In 1956, for instance, when the Soviet Union sent troops into Hungary to reassert control over the country, reformist Communist leader Imre Nagy took refuge at the embassy of non-aligned Yugoslavia. Yuri Andropov, the Soviet ambassador to Hungary and future Communist Party general secretary, promised Nagy safe passage out of the country but then arrested him as soon as he left the compound. He was executed after a secret trial the next year.

Another leader of the Hungarian uprising, Cardinal Joseph Mindszenty, took refuge at the U.S. embassy after the Soviet invasion and ended up spending the next 15 years inside the embassy compound, with local police keeping a 24-hour watch to prevent him from escaping. He was eventually permitted to leave Hungary in 1971.

In 1961, the Vienna Convention on Diplomatic Relations codified prevailing customary law by declaring the "premises" of diplomatic missions "inviolable" — effectively barring security agents in a host country from entering embassy grounds without the embassy’s permission. The treaty added that "premises" included the head of the diplomatic mission’s residence and that the private residences of diplomats also enjoyed "inviolability," though it’s unclear whether this clause applies to all diplomats. The New York Times points out that if Chen is indeed holed up in an American diplomat’s apartment, it "could leave him open to an attempt by security forces to seize him," according to unnamed diplomats interviewed by the paper.

This inviolability explains why embassies are our modern-day sovereign sanctuaries. But, importantly, the Vienna Convention says nothing about a diplomatic mission granting asylum to a person fleeing authorities in the host country — what the U.N. High Commissioner for Refugees and others have called "diplomatic asylum" (Latin America, for its part, has enshrined the concept of "diplomatic asylum" in regional treaties.) Asylum seekers typically leave their country before applying for help either in the country where they want to resettle or in a third country.

What this means in practice is that once someone seeks refuge in an embassy, the foreign government often enters into negotiations with the host government about the fugitive’s fate. In February, when the Chinese official Wang Lijun turned up at the American consulate in Chengdu seeking asylum and accusing Chinese leader Bo Xilai of corruption, he was eventually transferred to Chinese custody and has not been heard from since. This time around, it’s unclear whether Chen Guangcheng, if he is indeed with American diplomats, is seeking asylum in the United States or simply a temporary safe haven from which to condemn his captors and pressure Beijing to guarantee his safety. Neither goal is assured and, either way, the episode will be a critical test for U.S.-Chinese relations.

During the Cold War, embassy defections played a critical role in diplomacy. Some of the defectors were spies such as KGB Maj. Vasili Mitrokhin, who walked into the U.S. embassy in Riga as the Soviet Union was collapsing in 1992, bringing with him a treasure trove of intelligence secrets. In 1953, when the leftist government of Guatemalan President Jacobo Arbenz was overthrown in a CIA-backed coup, Ernesto "Che" Guevara, who had ties to the regime, took refuge in the Argentine embassy before securing passage to Mexico, where he would eventually meet up with Fidel Castro.

On April 5, 1980, 750 Cubans gathered at the Peruvian embassy in Havana demanding political asylum. The next day, their numbers had swelled to 10,000. Recognizing the scale of the political crisis, the Castro regime authorized a boatlift of thousands of asylum seekers to the United States and other Latin American countries. And 1989 saw what became known as the "Prague Embassy Crisis," as hundreds of East Germans began jumping the walls into the West German embassy in Prague, demanding asylum. A tent city was set up in the embassy’s courtyard to accommodate the asylum seekers, and eventually more than 20,000 people are thought to have made it to West Germany this way. Just 40 days after the West German government granted the Prague refugees asylum, the Berlin Wall fell.

For the last 50 years, foreign embassies in Beijing have been the most popular destination for North Korean refugees seeking to flee to South Korea or the west. In one of the largest defections, 25 asylum-seekers stormed their way into the Spanish embassy in 2002.

While governments have generally abided by the terms of the Vienna Convention, they have found ways to bend the rules at times. When ousted Panamanian leader Manuel Noriega took refuge from U.S. troops at the Vatican embassy in Managua in 1990, the Americans blasted rock music — including Guns’n’Roses — at the compound in an effort to force him out. Perhaps sick of the racket themselves, Vatican officials eventually gave Noriega his marching orders.

Thanks to Peter Spiro, professor of law at Temple University and blogger at Opinio Juris.