Asylum Case (Colombia v Peru) Colombia v Per [1950] ICJ 6 (also known as the Asylum

Case) is a public international law case, decided by the International Court of Justice. The ICJ
recognised that the scope of Article 38 of the Statute of the International Court of
Justice encompassed bi-lateral and regional international customary norms as well as general
customary norms, in much the same way as it encompasses bilateral and multilateral treaties. [1] The
Court also clarified that for custom to be definitively proven, it must be continuously and uniformly
executed.

Citation

Asylum Case (Colombia v Peru),

[1950] ICJ Rep 266 at 276-78

Plaintiff

Columbia

Defendant Peru
Year

1950

Court

International Court of Justice

Judges

President Basdevant, VicePresident Guerro, Judges Alvarez,

Hackworth, Wixiarski, Zorieic, de
Visscher, Klaestad, Badawi Pacha,
Mrylov, Read, Hsu Mo, Azevedo,
and Sir Arnold McNair, and
Judges ad hoc Alayza y Paz
Soldan, Caicedo Castilla, and
Garnier-Coign

Facts

The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre,

in its embassy. It claimed it had a right to do this both under agreements between
Issue
1.Can the Colombian government offer asylum under local custom?
the states and in a local custom in the Latin American states
Decision
No such local custom exists sufficient to be binding at international law.
Reasons
The Court held that the party which relies on a custom of this kind has the burden
of establishing that the custom exists in such a way that it has become binding on
the other party, through constant and uniform usage of the states.
On the facts, very few states had ratified the conventions which Colombia relied on
and there was significant discrepancy in the practice of asylum. Because of this,
the Court was unable to find a custom which met the standard in the North Sea
Continental Shelf case.
Ratio
A party which claims a custom exists must prove that the custom was established
in such a manner that it has become binding on the other party.

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: Judgment[edit]
Both submissions of Colombia were rejected by the Court. It was not found that
the custom of Asylum was uniformly or continuously executed sufficiently to
demonstrate that the custom was of a generally applicable character.

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, nonintervention [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):
FULL CASE
Facts
Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military rebellion broke out in
Peru which is organized and directed by the American Peoples Revolutionary Alliance led by Haya de la
Torre. The rebellion was unsuccessful. The Peruvian Government issued a warrant for his arrest on
criminal charges related to this political uprising. He fled to the Columbian embassy in Lima seeking for
asylum from them. Columbia the requested permission from Peru for Haya de la Torres safe passage
from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give such permission.
Columbia then brought this suit against Peru in the International Court of Justice, based on the agreement
made by both named Act of Lima.
These are the submissions made by the two parties:
1) The Columbian had pleaded for the court to declare that Columbia had properly granted asylum based
on 2 submissions:a. They are competent to qualify the offence for the purpose of the said asylum.
b. That Peru is bound to give the guarantees necessary for the departure of the Haya de la Torre, from
the country, with due regard to the inviolability of his person.
2) Counter-claim by Peru is that for the court to declare that the grant of asylum made by the Columbian
Ambassador to Haya de la Torre was made in violation of the Convention on Asylum.
Argument
Plaintiff (Columbian) arguments based on the Convention in force which are the Bolivarian Agreement
1911 on Extradition, the Havana Convention 1928 on Asylum, the Montevideo Convention 1933 on
Political Asylum and American International Law.
The Defendant (Peru) counter-claim relied on the rules of Havana Convention first, Haya de la Torre was
accused, not a political offense but of a common crime and second, because the urgency which was
required under the Havana Convention in order to justify asylum was absent in that case.

Issue
1. Based on conventions, which in force between both countries, and in general from American
international law, whether Columbia competent, as the country granting asylum, to qualify the offence for
the purpose of said asylum?
2. Was Peru bound to give the guarantees necessary for the departure of the refugees from the country,
with due regard to the inviolability of his person?
Decision
1) Columbia was not competent to qualify the nature of the offence by a unilateral and definitive decision
binding on Peru.
2) Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for the
departure of Haya de la Torre, with due regard to the inviolability of his person.
3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected, therefore it
was not in accordance with Article I, Paragraph I of the Havana convention.
4) Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre Torre
was made in violation of Article 2, Paragraph 2 of the Havana Convention was approved by the court.
Ratio Decidendi
1) The court reject the Columbian argument based on Bolivarian Agreement on the reason that the
principle of International Law did not recognize any rule of unilateral and definitive qualification by the
state granting diplomatic asylum.
On the other hand, the Bolivarian Agreement laid down rules on extradition and it was not possible to
deduce from them conclusions concerning diplomatic asylum as it was different in the meaning.
The court also rejected the Havana Convention invoke by the Columbian as the convention did not
recognize the right of unilateral qualification.
And the third convention, Convention of Montevideo, had not been ratified by Peru and could not be
invoked against it.
As for the American international law, Columbia had failed to prove that it had constant and uniform
practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial
state. The fact submitted to the court disclosed too much contradiction and fluctuation, shows that therein
a usage peculiar to Latin America and accepted as law.
2) The court also rejected the Columbian claim based on Havana Convention that the Peru was bound to
gives guarantees necessary for the departure of Haya de la Torre, on the reason that the convention only
applicable if the territorial State demanded the departure of the refugee from its territory. It was only after
such demand that the diplomatic Agent who granted asylum could require safe-conduct.
3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected on the
reason that the refugee was charged for military rebellion, which was not a common crime as needed
under the Havana Convention.
4) The court came into conclusion on Peru Counter-claim that the grant of asylum by the Columbian

government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana
Convention was on the reason that the absent of element of urgency needed to justify the asylum, in
order to protect the person from danger.
In this case the danger that only faced by Haya de la Torre is legal preceding that will be imposed on him,
not a deprivation of his right.
The Havana Convention according to the court was not intended to protect a citizen who had plotted
against the institutions of his country from regular legal proceedings. Asylum could only intervene against
the action of justice in cases where arbitrary action was substituted for the rule of law.
Rationale
1) Before a convention can be accepted to be used as the law under Article 38 of Statute of International
Court of Justice, it must be ratified by the contesting state.
- This has been shown by the reluctance of the court to used certain provision in the convention as had
not been ratified by the party country.
- Ie: see rules on Montevideo Convention.
2) The principle of International Law that are not recognizing the rules of unilateral treaty.
3) This decision also shows us that in order for the custom to be international custom it must be a general
practice.
- Ie: see rules on American International Law