012 Icj Rep 266 Asylum Case Brief

P U B L I C I N T E R N AT I O N A L L AW
An introduction to public international law for students
MENU
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 blog’s 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 (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.
Overview:
Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia 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:
Create PDF in your applications with the Pdfcrowd HTML to PDF API PDFCROWD
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 Court’s 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 Torre’s 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 (Colombia) 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 Colombia 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 Colombia, 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 (Colombia) 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 refugee…but 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. Torre’s 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 blog’s 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.
Advertisements
Report this ad Report this ad
Share this:
 Facebook 54  Email  Twitter  Print  More
Like
3 bloggers like this.
Related
Opinio Juris Anglo Norwegian Fisheries Case 2.5. Who is a Persistent Objector?
What is opinio juris? 1. Article 38 (1) (b) (Summary on Customary International (Updated)
of the Statute of the International Court Law) © Ruwanthika Gunaratne and Public
of Justice explains customary International Court of Justice, International Law
international law as comprising of "(1) a Contentious at https://ruwanthikagunaratne.wordpres
general practice (2) accepted as law". Case: Anglo Norwegian Fisheries Case s.com, 2008 – present. Unauthorized use
In "Sources" (UK vs Norway) Year of Decision: 1951. and/or duplication of this material
The Court was asked to decide, amongst In "Sources"
In "Cases"
Posted in Cases, Sources and tagged Asylum Case, Colombia vs Peru, formation of customary international law, local custom on March 2,
2014. 20 Comments
← North Sea Continental Shelf Cases (Summary) ILC issues first report on customary international law →
20 COMMENTS
Pingback: Opinio Juris | Public International law
garang geng
March 9, 2014 at 12:08 AM
thanks teacher but i don´t understand the final judgement and whether Torre was handed to peruvian govt.
REPLY
Dr. Ruwanthika Gunaratne

March 9, 2014 at 1:17 AM
The court did not ask Colombia to hand over Torre to Peru because Peru did not ask the court to make a declaration requesting
Colombia to handover Torre (see page 18 of the case). Parties only requested the Court to answer the questions set out above.
According to this article, Torre stayed in Embassy premises for 5 years. See
http://en.wikipedia.org/wiki/V%C3%ADctor_Ra%C3%BAl_Haya_de_la_Torre
REPLY
Piyumi Jayasundera
March 10, 2014 at 10:34 PM
This is a really great blog. Thank you for all of the information. I am aspiring to begin my own blog about law, and this is great
inspiration.
REPLY
migeto
December 26, 2016 at 7:23 PM
Real great.
REPLY
Pingback: 2.5. Who is a Persistent Objector? (Updated) | Public International law
Pingback: Anglo Norwegian Fisheries Case (Summary on Customary International Law) | Public International law
msemo john
Your summary is effective bt you can generalize hints related to customs as a part of public international law.all in all your material is
fine
REPLY
Leona Lesikito
May 28, 2015 at 6:32 PM
Great legal insights here, i have learnt so much on the application of treaties and principles of customary international law.
REPLY
Anonymous
August 12, 2016 at 2:18 PM
this case is good law
REPLY
Joel Amoako
September 28, 2016 at 1:27 PM
I really love this blog.. Thank you very much!
REPLY
yog mahadeo
October 15, 2016 at 6:11 PM
Enlightening and instructive. Many thanks
REPLY
ditrick
Thank but please I would like to know the principles used by the court in this case, help me.
REPLY
Pingback: Anglo Norwegian Fisheries Case (Summary on Customary International Law) | Public International law
Anonymous
May 2, 2017 at 4:20 AM
awesome thank you!
REPLY
Sanusi Salihu
May 16, 2017 at 2:30 AM
This blog is indeed priceless. I remain appreciative of your effort.
REPLY
Anonymous
November 5, 2017 at 2:24 PM
Great work. thank you
REPLY
Dakshinie Ruwanthika Gunaratne

REPLY
kevin harryson
November 6, 2017 at 2:16 AM
Wow!this site is real useful
REPLY
Dakshinie Ruwanthika Gunaratne
I am glad it was useful Kevin.
REPLY
LEAVE A REPLY
Enter your comment here...
COPYRIGHT NOTICE
© 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 blog’s 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.
FOLLOW ME ON TWITTER
RT @OUPIntLaw: Are you an expert on international organizations? Put your knowledge to the test with our quiz:
bit.ly/2mkjwLw 6 days ago
RT @OUPIntLaw: To celebrate the success of #MPECCoL, we’ve made the top 10 articles freely available for a limited time only –
learn more h… 6 days ago
RT @ejiltalk: New post: Supreme Court of Spain: UN Treaty Body individual decisions are legally binding ejiltalk.org/?p=16382
6 days ago
RT @OUPIntLaw: READ | Wars of national liberation: The story of one unusual rule bit.ly/2OjbOvz 6 days ago
Follow @RuwanthikaG
Public Int…
4.1K likes
Like Page
FOLLOW BLOG VIA EMAIL

Enter your email address to follow this blog and receive notifications of new posts by email.
Enter your email address
FOLLOW
Follow Public International law
RECENT POSTS
When Did the Conflict in Yemen Begin? July 6, 2018
Starvation as a Method of Warfare: Resolution 2417 (2018) July 5, 2018
Armed Activities Case: DRC vs Uganda (use of force and non-State actors) April 2, 2018
Armed Activities Case: DRC vs Uganda (Issues relating to Occupation) March 29, 2018
Armed Activities Case: DRC vs Uganda (Consent for Military Operations in Foreign Territory) March 28, 2018
VII. ICJ cases where ICJ refused to proceed to merits of the case or to provide an advisory opinion (1984 – 2017) August 20,
2017
VI. ICJ cases where Parties Resolved the Dispute or Withdrew Applications Before the ICJ could make a Final Determination
(1984 – 2017) August 20, 2017
V. ICJ Cases relating to the Law of the Sea, Maritime and Territorial Disputes, and Freedom of Navigation (1984 – 2017) August
19, 2017
IV. ICJ Cases Relating to Sovereignty, Sovereign Equality, Non-Intervention, Statehood, and Consular and Diplomatic Relations
(1984 – 2017) August 19, 2017
III. ICJ Cases Relating to Treaty Interpretation (1984 – 2017) August 19, 2017
II. ICJ Cases relating to Self-Defense and other matters related to the Use of Force (1984 – 2017) August 17, 2017
I. ICJ Cases Relating to Violations of Human Rights and International Humanitarian Law, including Genocide, War Crimes and
Crimes against Humanity August 15, 2017
Questions to International Law Students… July 27, 2017
Nicaragua vs The United States: Background material (3 of 3) April 9, 2017
The Nuclear Weapons Advisory Opinion (General Assembly Request) April 4, 2017
Universal Jurisdiction: Notable Developments in 2015 April 22, 2015
Content Attribution Policy of ‘Public International Law’ April 14, 2015
International Law on the Saudi-Led Military Operations in Yemen April 12, 2015
Anglo Norwegian Fisheries Case (Summary on Customary International Law) April 11, 2014
Simma on the Lotus Dictum: An Outdated Principle April 4, 2014
Nicaragua vs United States: An Analysis of the Jurisprudence Relating to Customary International Law (2 of 2) March 19, 2014
Debate Map: Ukraine/ Crimea March 14, 2014
ILC issues first report on customary international law March 3, 2014
Asylum Case (Summary) March 2, 2014
North Sea Continental Shelf Cases (Summary) February 28, 2014
Rendition to Libya an “act of state” and therefore non-justiciable January 27, 2014
Resources: Syria and International Law October 16, 2013
Immunity claim of Norway dismissed in Sri Lankan Court June 4, 2013
The History behind a Declaration of Independence: Kosovo and its impact on the World June 2, 2013
Law of Treaties 1: What is a treaty? May 26, 2013
Jurisdictional Immunities of the State (Germany vs Italy) (Summary) January 3, 2013
Pinochet Case (Extracts) January 2, 2013
Nicaragua vs the United States: Use of Force and Self-Defense (1 of 3) November 15, 2012
Julian Assange and Law of Diplomatic Immunities October 14, 2012
Case: Arrest Warrant Case: Separate Opinion of Judge Higgins, Kooijmans and Buergenthal July 27, 2012
Belgian Arrest Warrant Case (Summary) July 27, 2012
Lotus Case (Summary) July 27, 2012
Documents: Palestine Bid for Statehood: Report of the Committee on the Admission of New Members (Palestine) May 21, 2012
Cases SL: Supreme Court Case on Nallaratnam Singharasa (Full Judgement) April 13, 2012
Hierachy between Jus Cogens Norms and State Immunity January 5, 2012
Discussion 1: Debate on Palestine’s Statehood and possible UN Membership (added 09/2011 and updated 11/2012) September
19, 2011
2.5. Who is a Persistent Objector? (Updated) April 22, 2011
Opinio Juris April 22, 2011
2.1. Customary International Law as a Source of Law April 21, 2011
Lesson 6.3. Universal Jurisdiction April 13, 2011
Lesson 6.2. Types of Extra-Territorial Criminal Jurisdiction April 13, 2011
6.1. Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial Application April 13, 2011
Lesson 5.5. What is this CIL right of SD? April 12, 2011
Lesson 5.4. Second exception to the Prohibition on the Use of Force: Right of Self Defence April 12, 2011
Lesson 5.3. First exception to the Prohibition on the Use of Force: Security Council Authorization to Use Force April 12, 2011
CATEGORIES
Advisory Opinion (5)
Cases (23)
human-rights (5)
Humanitarian law (5)
Introduction (2)
Jurisdiction & immunity (12)
National & international law (1)
Sources (8)
Statehood (3)
Uncategorized (11)
Use of force (14)
Search …
Advertisements
Report this ad
Public International Law by Ruwanthika Gunaratne is licensed under a Creative Commons Attribution-NonCommercial 4.0
International License.
Based on a work at https://ruwanthikagunaratne.wordpress.com.
Permissions beyond the scope of this license may be available at
https://ruwanthikagunaratne.wordpress.com/2015/04/14/content-attribution-policy-of-public-international-law/.
C R E AT E A F R E E W E B S I T E O R B L O G AT W O R D P R E S S . C O M .

012 Icj Rep 266 Asylum Case Brief

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

012 Icj Rep 266 Asylum Case Brief

Uploaded by

Copyright:

Available Formats

P U B L I C I N T E R N AT I O N A L L AW

An introduction to public international law for students

ASYLUM CASE (SUMMARY)

Facts of the Case:

Questions before the Court:

The Court’s Decision:

Relevant Findings of the Court:

14. The court held:

Extraterritorial asylum under international law, pp. 115 – 129.

Report this ad Report this ad

 Facebook 54  Email  Twitter  Print  More

3 bloggers like this.

Pingback: Opinio Juris | Public International law

Dr. Ruwanthika Gunaratne

Pingback: 2.5. Who is a Persistent Objector? (Updated) | Public International law

this case is good law

I really love this blog.. Thank you very much!

Enlightening and instructive. Many thanks

awesome thank you!

This blog is indeed priceless. I remain appreciative of your effort.

Great work. thank you

Dakshinie Ruwanthika Gunaratne

Wow!this site is real useful

I am glad it was useful Kevin.

Enter your comment here...

FOLLOW BLOG VIA EMAIL

Enter your email address

Starvation as a Method of Warfare: Resolution 2417 (2018) July 5, 2018

Questions to International Law Students… July 27, 2017

Universal Jurisdiction: Notable Developments in 2015 April 22, 2015

Content Attribution Policy of ‘Public International Law’ April 14, 2015

Simma on the Lotus Dictum: An Outdated Principle April 4, 2014

Debate Map: Ukraine/ Crimea March 14, 2014

ILC issues first report on customary international law March 3, 2014

Asylum Case (Summary) March 2, 2014

North Sea Continental Shelf Cases (Summary) February 28, 2014

Resources: Syria and International Law October 16, 2013

Immunity claim of Norway dismissed in Sri Lankan Court June 4, 2013

Law of Treaties 1: What is a treaty? May 26, 2013

Jurisdictional Immunities of the State (Germany vs Italy) (Summary) January 3, 2013

Pinochet Case (Extracts) January 2, 2013

Belgian Arrest Warrant Case (Summary) July 27, 2012

Lotus Case (Summary) July 27, 2012

2.5. Who is a Persistent Objector? (Updated) April 22, 2011

Opinio Juris April 22, 2011

2.1. Customary International Law as a Source of Law April 21, 2011

Lesson 6.3. Universal Jurisdiction April 13, 2011

Lesson 6.2. Types of Extra-Territorial Criminal Jurisdiction April 13, 2011

Humanitarian law (5)

Jurisdiction & immunity (12)

National & international law (1)

Use of force (14)

You might also like