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ASYLUM CASE (SUMMARY)

Ruwanthika

Gunaratne

and

Public

International

Law

at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized use


and/or duplication of this material without express and written permission from this
blogs author and/or owner is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika Gunaratne and Public
International Law with appropriate and specific direction to the original content.
Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and
Court: ICJ.
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

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.
Additional reading (on diplomatic asylum/ also called extra territorial asylum):

Extraterritorial asylum under international law, pp. 115 129.

F. Morgenstern, Extra-Territorial Asylum, 25 BYIL (1948)

F. Morgenstern, Diplomatic Asylum, 67 The Law Quarterly Review (1951)

Ruwanthika

Gunaratne

and

Public

International

Law

at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized use


and/or duplication of this material without express and written permission from this
blogs author and/or owner is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika Gunaratne and Public
International Law with appropriate and specific direction to the original content.