ASYLUM

CASE (SUMMARY)
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military
rebellion in Peru. Was Columbia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a manner binding on Peru
and was Peru was under a legal obligation to provide safe passage for the
Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect
of the crime of military rebellion which took place on October 3, 1949, in
Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in
Lima, Peru. The Colombian Ambassador confirmed that Torre was granted
diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a
political refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and
international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum and
is the continued maintenance of asylum a violation of the treaty?

The Courts Decision:

Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the offence for the purpose of asylum under treaty law and international
law?
1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic
representative
has
the
competence
to
make
a provisional qualification of the offence (for example, as a political offence)
and the territorial State has the right to give consent to this qualification. In
the Torres case, Colombia has asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a unilateral and definitive
manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana
Convention of 1928 and the Montevideo Convention of 1933), other principles
of international law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral
and definitive qualification of the State that grants asylum under the Havana
Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary
international law (p. 15).
3. Colombia also argued that regional or local customs support the
qualification. The court held that the burden of proof on the existence of an
alleged customary law rests with the party making the allegation:
The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party
(that) it is in accordance with a (1) constant and uniform usage (2) practiced by
the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a duty incumbent

on the territorial State (in this case, Peru). This follows from Article 38 of the
Statute of the Court, which refers to international custom as evidence of a
general practice accepted as law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and contradictions in State
practice did not allow for the uniform usage (see also Mendelson, 1948 and
see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice
was followed because of political expediency and not because of a belief that
the said practice is binding on the State by way of a legal obligation (opinio
juris) is detrimental to the formation of a customary law (see North Sea
Continental Shelf Cases and Lotus Case for more on opinio juris):
[T]he Colombian Government has referred to a large number of particular
cases in which diplomatic asylum was in fact granted and respected. But it has
not shown that the alleged rule of unilateral and definitive qualification was
invoked or that it was, apart from conventional stipulations, exercised by the
States granting asylum as a right appertaining to them and respected by the
territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so
much uncertainty and contradiction, so much fluctuation and discrepancy in the
exercise of diplomatic asylum and in the official views expressed on various
occasions, there has been so much inconsistency in the rapid succession of
conventions on asylum, ratified by some States and rejected by others, and the
practice has been so much influenced by considerations of political expediency in
the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of
unilateral and definitive qualification of the offence.
5. The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru far from
having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939, which
were the first to include a rule concerning the qualification of the offence [as
political in nature] in matters of diplomatic asylum. (See in this regard, the
lesson on persistent objectors. Similarly in the North Sea Continental Shelf

Cases the court held in any event the . . . rule would appear to be inapplicable
as against Norway in as much as she had always opposed any attempt to apply
it to the Norwegian coast.)
6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the
case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it
requests the asylum granting State (Columbia) to send the person granted
asylum outside its national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe
passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a
need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).
There exists undoubtedly a practice whereby the diplomatic representative who
grants asylum immediately requests a safe conduct without awaiting a request
from the territorial state for the departure of the refugeebut this practice does
not and cannot mean that the State, to whom such a request for safe-conduct
has been addressed, is legally bound to accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it
granted asylum and is the continued maintenance of asylum a violation of the
treaty?

9. Article 1 of the Havana Convention states that It is not permissible for

States to grant asylum to persons accused or condemned for common
crimes (such persons) shall be surrendered upon request of the local
government.
10. In other words, the person-seeking asylum must not be accused of a
common crime (for example, murder would constitute a common crime, while
a political offence would not).The accusations that are relevant are those
made before the granting of asylum. Torres accusation related to a military
rebellion, which the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum granted to
political offenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for
the period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety.
12. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of an imminent or persistence of a danger for the
person of the refugee. The court held that the facts of the case, including the 3
months that passed between the rebellion and the time when asylum was
sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:
In principle, it is inconceivable that the Havana Convention could have intended
the term urgent cases to include the danger of regular prosecution to which
the citizens of any country lay themselves open by attacking the institutions of
that country In principle, asylum cannot be opposed to the operation of
justice.
13. In other words, Torre was accused of a crime but he could not be tried in a
court because Colombia granted him asylum. The court held that protection
from the operation of regular legal proceedings was not justified under
diplomatic asylum.

14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State.
A decision to grant diplomatic asylum involves a derogation from the
sovereignty of that State. It withdraws the offender from the jurisdiction of the
territorial State and constitutes an intervention in matters which are exclusively
within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established in each
particular case.
15. As a result, exceptions to this rule are strictly regulated under
international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is
substituted for the rule of law. Such would be the case if the administration of
justice were corrupted by measures clearly prompted by political aims. Asylum
protects the political offender against any measures of a manifestly extra-legal
character which a Government might take or attempt to take against its
political opponents On the other hand, the safety which arises out of asylum
cannot be construed as a protection against the regular application of the laws
and against the jurisdiction of legally constituted tribunals. Protection thus
understood would authorize the diplomatic agent to obstruct the application of
the laws of the country whereas it is his duty to respect them Such a
conception, moreover, would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-intervention [for example,
by Colombia into the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect political
prisoners against the violent and disorderly action of irresponsible sections of
the population. (for example during a mob attack where the territorial State
is unable to protect the offender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment of a refugee to an embassy or a legation. Any
grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the
refugee in the embassy prolongs this protection.
NB: The court also discussed the difference between extradition and granting
of asylum you can read more on this in pp. 12 13 of the judgment. The
discussions on the admissibility of the counter claim of Peru are set out in pp.
18 19.