The document summarizes the case of the "Durban Six", six political leaders in South Africa who sought refuge at the British Consulate in Durban to escape arrest and persecution by the South African government for opposing its policies. While the consulate provided a temporary safe haven, their requests for asylum were denied by the US, France, Germany and the Netherlands due to diplomatic issues. The case raises questions around whether diplomatic asylum was justified given the illegality of apartheid in South Africa and obligations under international human rights law. It argues that codifying diplomatic asylum could help protect victims of human rights violations in the future.

1. DIPLOMATIC AND CONSULAR LAW
TOPIC:
The Durban Six And The Law of Diplomatic
Relations.
By: Banjo Niyi.
ID: MPD14170
Date: 24/09/15

2. Table of content
● Introduction
● Case study
● The challenging legal question
● The need to grant diplomatic asylum
● Proposed conditions essential to the provisions of a codification
of diplomatic asylum
● Conclusion

3. INTRODUCTION
● On the eve of an elections in South Africa on 21 August 1984, South African
security police arrested hundreds of people throughout the country.
● The arrests, aimed at POLITICAL LEADERS who opposed to the
government plan to redistribute power.
● Among those were detained are Seven leading members of the United
Democratic Front (UDF) and the National Forum (NF). Activist groups
● later challenged their detention before the Supreme Court on 7 September
1984. In an unprecedented judgment, the Court ordered their release on the
ground that the Minister of Law and Order had failed to justify their
incarceration.

4. Case study
● The seven were released, but within hours the minister signed new detention
orders. The police began searching for the seven former detainees, but they
had already gone into hiding. 23 days later, five surfaced at the British
Consulate in Durban seeking ASYLUM, some weeks later another one
joined the five at the British Consulate. These political leaders, known as the
Durban Six, sought refuge in the Consulate as a last desperate act. The
seventh person remained in hiding.

5. Cont...
● The British consulate did not want to interfere into the case, but did not force
the asylum seekers out of the premises.
● The south African government pressurize the British government to give up
the asylum seeks by revoking a promise to extradite four south African
nationals facing arms smuggling charge in Britain.
● The Durban Six then requested sanctuary in the US Embassy in Pretoria as
well as in the embassies of France, the Netherlands, and the Federal
Republic of Germany. However, there request was denied by the four
countries.
● The refusal to grant temporary sanctuary and the unwillingness to intervene
with the South African government to work out a solution agreeable to all
parties resulted in the "voluntary" departure of the fugitives.
● One was freed and five was rearrested and charged to court with; terrorism,
high treason and attempt to overthrown the government.

6. THE CHALLENGING LEGAL QUESTION
● Are they entitled to a diplomatic asylum
● Why were they (Durban six) denied asylum in USA, France and
the Netherlands
● Is this a case of illegality of apartheid

7. Are they entitled to a diplomatic asylum
● Diplomatic asylum can be defined as a grant of refuge by a sending state in
its legation within the territory of the receiving state, which is the asylum
seeker's home state or state of residence.
● The Convention on Diplomatic asylum has only be signed and ratified by
fourteen (14) countries from Latin-America.
● The European countries and the United States decided not to recognize
diplomatic asylum other than on humanitarian grounds and then only on a
case-by-case basis.
● Due to fact that the Britain has not signed the convention diplomatic asylum
is not recognized in the VCDR, the asylum seeks are not entitled to a
diplomatic asylum in the British consulate.
● The only reason they were safe in the consulate was the 'INVIOLABILITY' of
the diplomatic mission PREMISES.

8. Cont….....
● However, if this happened in a country where the convention on diplomatic
asylum have been signed and ratified the refugees (the six Durban) can
have a diplomatic asylum. Example of embassies they can have this type of
immunity are; Argentina, Colombia, Peru, Chile, Brazil, etc.

9. Why did the USA, France, Germany and Netherlands denied them
asylum
● Reciprocity: the practice of exchanging things with others for mutual benefit,
especially privileges granted by one country to another. The countries do not
want to damage the mutual benefits they have with South African.
● The European countries and the United States do not recognize diplomatic
asylum other than on humanitarian grounds and then only on a case-by-case
basis.
● The question of bearing the cost of support and transportation of the
refugees while in the legation.
● The questions of expediency in getting the asylum seeker out of the
receiving state. E.g the Assange case in the Ecuador embassy.

10. Is this a case of illegality of apartheid
● Human rights law is the third variety of international law involved in securing
an obligation to afford asylum. International law is concerned both with
protecting the rights of individuals in concrete cases and with establishing a
range of permissible responses by states engaged in protecting the
individual.
● It must be determined whether human rights have been violated according to
the standards of international human rights law. Thus, the safety of the
fugitive is an essential consideration. Whether the person seeking asylum
faces torture, incommunicado detention, or the deprivation of due process
and a fair trial on his return must be questioned.

11. CONT......
● The sending state must weigh whether equality before the law is likely in an
apartheid system where race is the primary determining factor in legislation.
● The obligations of the sending state under human rights law will depend on
whether the human rights violations occurring in the receiving state are
recognized as violations under international law.
● It must be determined whether there are violations of the articles of the
Universal Declaration of Human Rights recognizing the right not to be
subjected to torture or cruel, inhuman, or degrading treatment or punishment,
or of the right to equality before the law and protection from discrimination.
● The case was not a case illegality of apartheid because the political
offenders were trialed in court and was later acquainted. Although illegal of
apartheid was synonymous to South Africa. Many face torture and an
absence of due process when against the government.

12. The need to grant Diplomatic
Asylum
● This should be considered a basic human right, to be invoked by those
fleeing from persecution for reasons of race, religion, or nationality, or for
holding a political opinion in an emergency situation involving the threat of
violence.
● In this case, the argument for asylum rests on even stronger grounds. There,
the sending state has not only a permissible response but an obligation to
grant diplomatic asylum. The obligation of the sending state flows from the
basic provisions of the UN Charter, particularly Articles 55 and 56. The
obligation also stems from the international consensus that apartheid
represents a crime against humanity and that political offenders in South
Africa may face torture and an absence of due process.
● The Durban six situation provides a clear mandate for the duty of states
holding missions in South Africa to grant diplomatic asylum in these
circumstances. Existing international instruments oblige states that transact
business with South Africa to take even stronger steps than granting
diplomatic asylum. According to international law these states are obliged to
act in dismantling apartheid

13. Proposed conditions essential to the provisions of a codification
of diplomatic asylum:
1. The sending state determines the eligibility of the asylum seeker by requiring:
● that there is beyond a reasonable doubt an immediate threat to the life,
liberty, and limb of the asylum seeker;
● that the asylum seeker is fleeing from a situation where he cannot receive
justice, a fair trial,or due process;
● that the offense the asylum seeker is accused of is a political offense, e.g.,
fleeing from persecution on account of race, belief, political opinion, etc.
2. Asylum is inviolable under the conditions outlined above.
3. The chief of the legation in which political asylum is sought is to notify the
ministry of the receiving state promptly.
4. Safe conduct beyond territorial limits is to be provided.

14. Cont...
● Such internationally recognized obligations or permissible responses of
granting diplomatic asylum should set parameters for negotiations between
the two states involved in order to achieve safe conduct for the asylum
seeker as the ultimate goal.
● The codification of diplomatic asylum would provide the mission country,
anxious to alleviate the fate of victims of human rights violations, with the
opportunity of rescuing them through an internationally recognized
procedure.
● Asylum in the Greek language means "FREEDOM FROM SEIZURE."
Reviving this idea in international law in the second half of the twentieth
century should create no conceptual difficulties beside a right to grant
protection from illegal seizure or beside the notion that in certain
circumstances the right of the sovereign state may have to yield to the
protection of the rights of the unjustly oppressed and persecuted.

15. CONCLUSION
● There exists no universally accepted international agreement to assure a
uniform response by states to grant refuge in a mission in an emergency.
Most countries, with the exception of those in Latin America, deny outright
the claim to diplomatic asylum because it encroaches upon the state's
sovereignty. Some countries give limited recognition to the practice, allowing
"temporary safe stay" on a case-by-case basis to persons under threat of life
and limb.

16. ACIU!!!