Asylum Case

The Colombian-Peruvian Asylum Case and the Doctrine of Human Rights
Authors(s): Manuel R. Garca-Mora

Source: Virginia Law Review, Vol. 37, No. 7 (Nov., 1951), pp. 927-965
Published by: Virginia Law Review
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THE COLOMBIAN-PERUVIAN ASYLUM CASE
AND THE DOCTRINE OF HUMAN RIGHTS*
By MANUEL R. GARCIA-MORAt
A SIDE from the field of recognition, there is perhaps no other
problem of International Law more disputed and more mis-
understood than the doctrine of asylum.' That explains why, when
Colombia and Peru decided to resort to the International Court of
Justice for a decision on their asylum controversy, a hope arose among
some international lawyers to the effect that once and for all the
World Court would put an end to long-standing controversies and
conflicting interpretations on the subject. However, when on No-
vember 20, 1950, the World Court rendered the long-awaited decision,2
a feeling seemed to have prevailed that the original confusion with
respect to asylum had become even more confounded.3 The same
feeling remained after the Court rendered its second decision on June
13, 1951.4 No one will deny that these two judgments of the Court
were momentous ones, which involve important problems of both
inter-American law and general International Law. Yet there is an
inescapable feeling that the World Court's ruling was vague,5 that
the Court perhaps said a great deal without arriving at a clear state-
ment of the law. At any rate, the many facets of the Colombian-
Peruvian Asylum case will be more readily understood if we examine
first the core of underlying fact.
*I wish to acknowledge my great debt to Professor William W. Bishop, Jr. of the
University of Michigan Law School, for his kindness in procuring for me the two
judgments of the International Court of Justice in the Colombian-Peruvian Asylum case
long before copies of these decisions became available in this country.
tLL.B., 1943, University of Panama; LL.M., 1944, A.M., 1946, Harvard University;
J.S.D., 1948, Yale Law School. Assistant Professor of Political Science, University of
Detroit. Contributor to law journals and scientific periodicals.
1. Ulloa, El Asilo Diplomatico, INTER-AMER. JURID. Y.B. 1949, at 40 (1950).
2. I.C.J. REPORTS 266-389 (1950). A review of this decision is given in Hudson, The
Twenty-Ninth Year of the World Court, 45 AM. J. INT'L L. 1, 19-26 (1951). Excerpts
from the decision are found in Bishop, Jr., Judicial Decisions Involving Questions of
International Law, 45 AM. J. INT'L L. 179 (1951).
3. See for instance an editorial published in N.Y. Times, Nov. 23, 1950, p. 34, col. 2.
4. I.C.J. REPoRS 71 (195 1).
5. N.Y. Times, Nov. 20, 1950, p. 14, col. 2.
[ 927 ]
928 Virginia Law Review [Vol. 37
I. THE FACTS AND THE DECISION
On October 3, 1948, a rebellion broke out in Peru. On October
4, the President of the Republic issued a decree placing the responsi-
bility for this rebellion on the American People's Revolutionary Party.6
On October 11, judicial proceedings were instituted against the head
of the Party, Victor Raul Haya de la Torre, and others for the
crime of military rebellion with which they were charged. The
arrest of the persons denounced in the indictment was ordered ac-
cordingly. On January 3, 1949, Haya de la Torre sought and ob-
tained asylum in the Colombian Embassy in Lima, Peru. Immediately
thereafter the Colombian Ambassador requested a safe-conduct from
the Peruvian Government for the departure of Haya de la Torre from
Peruvian territory.7 A note8 sent by the Colombian Ambassador to
the Peruvian Minister for Foreign Affairs and Public Worship def-
initiely stated that the Government of Colombia had qualified Haya
de la Torre as a political offender in accordance with Article 2 of the
Montevideo Convention on Political Asylum signed in 1933.9 As the
Government of Peru refused to grant a safe-conduct for the departure
of Haya de la Torre on the ground that he was a common criminal
not entitled to asylum, a diplomatic controversy arose, which led to
the signing of the "Act of Lima."10 According to this Act, the
Governments of Colombia and Peru agreed to refer the dispute to
the International Court of Justice and to submit their applications
unilaterally to the Court, without this action being regarded as an
unfriendly act toward one another.1"
6. This party is popularly known as the "Aprista Party".
7. Note of the Colombian Ambassador to the Peruvian Minister for Foreign Affairs
and Public Worship, January 3, 1949. I.C.J. REPORTS 273 (1950).
8. Note of the Colombian Ambassador to the Peruvian Minister for Foreign Affairs
and Public Worship, January 14, 1949. I.C.J. REPORTS 273 (1950).
9. Article 2 of the Montevideo Convention on Political Asylum says: "The judg-
ment of political delinquency concerns the State which offers asylum." For the entire
text of the Convention, see THE INTERNATIONAL CONFERENCES OF AMERICAN STATES, FiRsr
Supp. 1933-1940, at 116 (1940); 6 HUDSON, INTERNATIONAL LEGISLATION 607 (1937). It
should be mentioned that although this Convention was signed by 17 American States,
including Colombia and Peru, nevertheless Peru failed to ratify it.
10. A text of the "Act of Lima" is printed in I.C.J. REPORTS 267-268 (1950).
11. I.C.J. REPORTS 225 (1949). Since according to Article 31, paragraph 3 of the
Statute of the Court "if the Court includes upon the Bench no judge of the nationality
of the parties, each of these parties may proceed to choose a judge . . ." both Colombia
and Peru took advantage of this privilege and chose a judge ad hoc each.
1951] Colombian-Peruvian Asylum Case 929
The Colombian Government presented two submissions asking the
Court to adjudge and declare:
I. That the Republic of Colombia, as the country granting asylum,
is competent to qualify the offence for the purpose of said asylum,
within the limits of the obligations resulting in particular from the
Bolivarian Agreement on Extradition of July 18th, 1911,12 and the
Convention on Asylum of February 20th, 1928,13 and of American
International Law in general.
II. That the Republic of Peru, as the territorial State, is bound
in the case now before the Court to give the guarantees necessary
for the departure of M. Victor Rauil Haya de la Torre from the
country, with due respect to the inviolability of his person.14
On the other hand, the Government of Peru asked the Court to
adjudge and declare:
As a counter-claim, under Article 63 of the Rules of the Court,15
and in the same decision, that the grant of asylum by the Colombian
Ambassador at Lima to Victor Raul Haya de la Torre was made in
violation of Article 1, paragraph 1, and Article 2, paragraph 2, item
1 (inciso primers), of the Convention on Asylum signed in 1928,16
and that in any case the maintenance of asylum constitutes at the
present time a violation of that treaty.17
The decision of the Court with respect to the two questions sub-
mitted by Colombia was: 1) that "Colombia, as the State granting
asylum, is not competent to qualify the offence by a unilateral and
12. For the text of this Convention, see 29 AM. J. INT'L L. SUPP. 282 (1935).
13. For the text of the Havana Convention on Asylum, see THE INTERNATIONAL CON-
FERENCES OF AMERICAN STATES 1889-1928, at 434 (1931); 4 HUDSON, INTERNATIONAL LEGIS-
LATION 2412 (1931); and 22 AM. J. INT'L L. Supp. 158 (1928).
14. I.C.J. REPORTS 270 (1950).
15. The Court adopted these rules on May 6, 1946, and they were printed in Court's
Publications, P.C.I.J. Ser. D, No. 1 (1946).
16. Article 1, paragraph 1, of the Havana Convention provides the following: "It is
not permissible for States to grant asylum in legations, warships, military camps or
military aircraft, to persons accused or condemned for common crimes, or to deserters
from the army or navy." Article 2, paragraph 2, item 1, provides as follows: "Asylum
may not be granted except in urgent cases and for the period of time strictly indis-
pensable for the person who has sought asylum to ensure in some other way his
safety." For reference with respect to the full text of the Convention, see note 13 supra.
17. I.C.J. REPORTS 270 (1950). For the decision on this counter-claim of Peru, see
note 170 infra.
definite decision binding on Peru;"18 and 2) that Peru, as the terri-
torial State, is not obliged to grant a safe-conduct for the departure of
Haya de la Torre, since according to the Havana Convention,'9 the
State granting asylum can request a safe-conduct only if the terri-
torial State has exercised the option to require the departure of the
refugee from its territory.20 The Court concluded that inasmuch as
Peru, as the territorial State, did not request the departure of Haya de
la Torre, Colombia, as the State granting asylum, could not legally
request a safe-conduct for his departure. The judgment of June 13,
1951, merely confirmed the results of the first decision, insisting on
the illegality of the asylum granted by Colombia and forcibly sug-
gesting that such asylum must be brought to an end.
This article will attempt to discuss two closely related problems:
first, the important question of the qualification of the offence by
the State granting asylum, in our judgment, a vital problem, since
to deny to the State granting asylum the right to qualify the offence
is tantamount to a refusal to recognize the doctrine of asylum al-
together; secondly, this article will deal with the effect that the
Colombian-Peruvian Asylum decision will have upon the fundamental
doctrine of human rights.
In reading the Court's decisions, one has the feeling that the Court
failed to pay due respect to a regional custom as a source of Inter-
national Law in a matter where human rights and values were vitally
involved. If the intention of the Court was to establish definite and
universal rules by which to regulate the institution of asylum, one
may say, with due respect to the distinguished judges of the Court,
that it has sadly failed.21 Indeed, the two judgments of the Court on
18. The Court reached this decision by a vote of fourteen to two.
19. The pertinent provision of the Havana Convention is Article 2, item 3, which
stipulates that: "The Government of the State may require that the refugee be sent
out of the national territory within the shortest time possible; and the diplomatic agent
of the country who has granted asylum may in turn require the guaranties necessary
for the departure of the refugee with due regard to the inviolability of his person,
from the country." See note 13 supra.
20. The Court reached this decision by a vote of fifteen to one.
21. So confused was the decision that the Colombian Government requested an in-
terpretation of the judgment. The Court declared in a judgment of November 27,
1950, that the request of Colombia for such an interpretation was inadmissible. See
I.C.J. REPORTS 395 (1950). Then another controversy arose with respect to whether
Colombia was obliged to surrender Haya de la Torre to Peruvian authorities. A new
proceeding was instituted in the Court to determine that question. This of course con-
this matter give rise to the intriguing question whether the law has
suddenly changed so as to deny legal validity to those desires and
sentiments of peoples which are deeply rooted in their customs, or
whether we are merely in the presence of a temporary situation which
may eventually be forgotten. In any case, in order to understand the
far-reaching effect of the judgments, a careful examination of the
Court's reasoning appears to be a matter of imperative necessity.
11. NATURE OF ASYLUM AND THE DECISION OF THE COURT
To the question whether Colombia, as the State granting asylum,
could qualify the offence, the Court answered with a categorical no.
The Court put the issue as follows:
If the Colombian Government by this submission22 intended to
allege that Colombia, as the State granting asylum, is competent to
qualify the offence only provisionally and without binding effect for
Peru, the solution would not remain a matter of doubt . . . This is
not, however, the meaning which the Colombian Government has put
on its submission. It has not claimed the right of qualification for
the sole purpose of determining its own conduct . . . Its claim must
be understood in the sense that Colombia, as the State granting
asylum, is competent to qualify the nature of the offence by a
unilateral and definite decision binding on Peru. Colombia has based
this submission partly on rules resulting from agreement, partly on
an alleged custom.23
The opinion proceeds to analyze the several conventions and the
custom on which Colombia based its claim and considers them un-
stituted a new case, which has been referred to as the Second Colombian-Peruvian
Asylum Case. On this, see Hudson, The Twenty-Ninth Year of the World Court, 45
AM. J. INT'L L. 1, 26 (1951). This second case was finally decided on June 13, 1951.
Among other things, the Court declared that Colombia must terminate the asylum
granted to Haya de la Torre. But the Court did not say how this should be done,
and to complicate matters even further, it said that the Colombian Government "is
under no obligation to surrender Haya de la Torre to the Peruvian authorities." See
I.C.J. REPORTS 71 (1951).
22. This is submission number one of the Colombian Government stating that "the
Republic of Colombia, as the country granting asylum, is competent to qualify the
offence for the purpose of said asylum, within the limits of the obligations resulting in
particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the
Convention on Asylum of February 20th, 1928, and of American International Law in
general." See note 14 supra.
23. I.C.J. REPORTS 273-274 (1950).
tenable. Thus, the attention of the Court is focused first on Article
18 of the Bolivarian Agreement on Extradition of 1911, which stipu-
lates that:
Aside from the stipulations of the present Agreement, the signa-
tory States recognize the institution of asylum in conformity with
the principles of International Lawv.24
In connection wtih this particular provision, the Court immediately
finds that "the principles of International Law do not recognize any
rule of unilateral and definite qualification by the State granting
diplomatic asylum."25 It should be observed, however, that this
particular article of the Bolivarian Agreement cannot be dismissed
merely by stating that the rules of International Law do not confer
on the State granting asylum the right to qualify the offence. Or to
put it in another way, the significance of Article 18 of the Bolivarian
Agreement is not quite so obvious as it is made to appear by the
Court. The purpose of this provision apparently was to exempt from
the general rules of extradition the institution of asylum, the latter
being applied only and exclusively to political refugees.26 It is fur-
ther clear from the provision in question that the signatory States
recognized asylum as an institution of International Law. That much
can be reasonably deduced from Article 18 of the Bolivarian Agree-
ment. If this proposition is accepted, then it is relevant to ascertain
the nature of asylum and the rules that regulate its operation.
Historically speaking, the doctrine of asylum has been founded on
two fundamental principles: one, moral; the other, legal. From the
standpoint of the first principle, asylum is considered as a practice
founded on humanitarian grounds.27 In this respect, asylum is nothing
24. See note 12 supra.
25. I.C.J. REPORTS 274 (1950).
26. There is no problem with respect to this distinction. It is generally accepted that
common criminals are not entitled to asylum, but must be delivered to the State where
they committed the offence. The Havana Convention of 1928 contains such a pro-
vision. See note 31 infra. This principle has been held since the times of Grotius.
See on this, GROTIUS, DE JuRE BELLI AC PACis LIBRI TRES bk. II c. XXI ? ? III, IV
(Kelsey's transl. 1925).
27. For instance, the European nations considered asylum as belonging more to morals
than to law. This question arose in regard to the Spanish Civil War. See on this,
2 ANTOKOLETZ, TRATADO DE DERECHO INTERNACIONAL PUIBLICO 424 (3d ed. 1938). Also
PADELFORD, INTERNATIONAL LAW AND DIPLOMACY IN THE SPANISH CIVIL STRIFE 126-128
(1939).
1951] Colombian-Peruian Asylum Case 933
more than the protection granted by a diplomatic agent to a citizen
against the latter's own government.28 This protection is warranted
when, in the presence of internal political commotions, the institu-
tions of a State do not guarantee human rights and fundamental free-
doms to the person or persons responsible for such political disturb-
ances. Inasmuch as the right of resistance to tyranny has been tacitly
recognized as an inalienable right of man since ancient times, places
of refuge were established for those who unsuccessfully rebelled
against oppression. In addition, revolutions are generally accomplished
through acts of violence and inhumanity, and it is precisely the func-
dion of asylum to protect human beings against such evils-evils which
have been used by both de facto and de jure authorities.29 It is com-
monly agreed, however, that- asylum can only be granted to political
offenders and not to common criminals and fugitives from justice.30
The accepted rule with respect to the latter category of offenders ex-
plicitly provides that the Head of the Mission where such offenders
take refuge must deliver them up to the local authorities.31 It is
pertinent to add that the consensus of opinion with respect to asylum
accorded political offenders reveals another fundamental fact; namely,
that asylum has developed from a practice into a right of the individual
-a right which is respected as an act of humanity.32 This practice,
28. Ulloa, supra note 1, at 40.
29. MONCADA, 0 ASILO INTERNO EM DIREITO INTERNACIONAL PUIBLICO C. I (1946). This
author holds the view that the experience of the Spanish Civil War made it reasonably
clear that asylum must be granted on humanitarian grounds regardless of the offence.
31. This principle obtains in inter-American Law, for according to Article 17 of
the Havana Convention of 1928, "diplomatic officers are obliged to deliver to the com-
petent authority that requests it any person accused or condemned for ordinary crimes,
who may have taken refuge in the mission." See note 13 supra.
32. JESSuP, A MODERN LAW OF NATIONS 82 (1948); PODESTA COSTA, MANUAL DE
DERECHO INTERNACIONAL PU3BLiCo 499 (2d ed. 1947); MONCADA, op. cit. supra note 29; 2
ANTOKOLETZ, Op. cit. supra note 27, at 424; Ulloa, supra note 1, at 42. Cf. ACCIOLY,
MANUAL DE DIREITO INTERNACIONAL P&BJLICO 283, 284 (1948). It must be also mentioned
that the Universal Declaration of Human Rights adopted by the General Assembly of
the United Nations on December 10, 1948, recognizes asylum as a right of the in-
dividual. Article 14 of this Declaration says: "1. Everyone has the right to seek and
to enjoy in other countries asylum from perseucution. 2. This right may not be in-
voked in the case of prosecutions genuinely arising from non-political crimes or from
acts contrary to the purposes and principles of the United Nations". For the full
text of this Declaration, see U.N. Doc. A/811 (Dec. 16, 1948); 43 AM. J. INT'L L. SuPP.
127 (1949). For the record of the discussion of the Declaration in the Third Com-
mittee of the General Assembly, see OFFICIAL RECORDS OF THE THIRD SESSION OF THE GEN-
in the course of its development, has given rise to legal rules whose
validity is disputed in the case under consideration.33
The second fundamental principle on which the institution of
asylum has rested is rather a legal one. The humanitarian purposes
of the institution have been powerfully aided and supported by the
legal fiction of exterritoriality of embassies and legations.34 Accord-
ing to this legal fiction, it was generally maintained that embassies and
legations were immune from local jurisdiction because, legally speak-
ing, they were outside of the territory of the State to which they were
accredited.35 Thus, when an offender entered an embassy or a lega-
tion, technically speaking, he was outside of the jurisdiction of the
State whose laws he had violated.36 This fiction of International Law
was universally accepted until very recently, and served as the funda-
mental basis of diplomatic immunities.37 The latter in turn justified
the practice of asylum.38 However, under conditions of exaggerated
sovereignty, exterritorial rights have been considered as an exemption
to the jurisdiction of the State, and therefore, as an encroachment on
sovereignty. Consequently, the fiction of exterritoriality has lost
ground, and today it has actually fallen into desuetude.39 Diplomatic
ERAL ASSEMBLY, PART I, THIRD COMMITTEE (1948). The American Declaration of the
Rights and Duties of Man adopted at the Ninth International Conference of American
States held in Bogota in 1948, provides in Article 27 that "every person has the right,
in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in
foreign territory, in accordance with the laws of each country and with international
agreements." For the full text of this Declaration, see 43 AM. J. INT'L L. SUPP. 133
(1949).
33. During the Spanish Civil War the Latin American States insisted in the right
of their embassies in Madrid to grant asylum to political refugees. Under the leader-
ship of the Argentine Government, the Latin American States demanded that the
Spanish Government recognize the right of asylum. After a diplomatic controversy
which culminated with the sending of an Argentine warship to Spain, the Spanish Gov-
ernment agreed to respect the practice. See, PADELFORD, op. cit. supra note 27, at 157.
34. Ulloa, s-upra note 1, at 45.
35. Vattel said in this connection that ". . an ambassador's house, at least in all the
ordinary affairs of life, is, equally with his person, considered as being out of the
country". VATTEL, THE LAW OF NATIONS bk. IV c. IX ? 117 (Chitty's transl. 1861).
36. Asylum under this fiction was referred to as "the exterritorial right of asylum."
See, REDLICH, THE LAW OF NATIONS 366-371 (2d ed. 1937).
37. FENWICK, INTERNATIONAL LAW 468 (3d ed. 1948); 1 OPPENHEIM, INTERNATIONAL
LAW 711 (6th ed., Lauterpacht, 1947).
38. REDLICH, op. cit. supra note 36, at 366. See also the Harvard Draft Convention
on Diplonmatic Privileges and Immunities, 26 AM. J. INT'L L. Supp. 66 (1932).
39. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 316 (6th ed. 1915). This au-
thor refers to the fiction of exterritoriality as "a clumsy attempt to account for what
is better explained without it."
immunities, on the other hand, are grounded on the theory that they
are essential to ensure the widest possible independence of the dip-
lomatic agent in representing the interests of his State.40
With this background in mind, it can be readily seen that today
asylum could not possibly be justified on the doctrine of exterritorial
rights of embassies and legations.4' Nor can it be based on the theory
that asylum falls within the purpose of the diplomatic mission.42 To
argue in this vein would be to stand on rather unsafe grounds, at least
under the present law. On the other hand it becomes immediately
clear that asylum can be claimed as a right, initiated as a practice, and
infused with the practical fulfillment of a humanitarian task.43 It is
now well established that asylum has emerged in response to the senti-
ments of peoples who from very remote times have clamored for the
establishment of places of refuge for those persecuted for political
offences." It is indeed an incontestable fact that the right of asylum
has been claimed with much more intensity and tenacity in areas
which have frequently been dominated by the vicissitudes of political
convulsions. In the face of present-day human persecution and denial
of human rights in their most elementary form in many areas of the
world community, the humanitarian purpose of the institution of
asylum thus naturally increases in urgency and vitality.45 It seems,
therefore, rather foolish and dangerous to divest the doctrine of asylum
40. See the Instructions to American Diplomatic Officers, 2 HACKWORTH, DIGEST OF
INTERNATIONAL LAW 623-624 (1941); also 1 OPPENHEIM, op. cit. .nupra note 37, at 713-
714; PODESTA COSTA, op. cit. supra note 32, at 168.
41. Contra: Judge Alvarez in his dissenting opinion in the case under consideration
gives the impression that asylum as practiced in Latin America "is regarded as a con-
sequence of the ex-territoriality of the premises on which it is granted and not as a
diplomatic protection." I.C.J. REPORTS 292 (1950).
43. See the Argentine Note Covering the Submission of the Draft Convention on the
Right of Asylum during the Spanish Civil War. The text of this Note is printed, along
with the Draft Convention, in PADELFORD, op. cit. supra note 27, at 639-645.
44. See for instance the Greek practice, NLTSSBAUM, A CONCISE HISTORY OF THE LAW
OF NATIONS 14-15 (1947). Grotius gives an indirect evidence of the practice of asylum
among ancient peoples when he says that "the Hebrew law permits a relative of a
slain man to kill the slayer outside of places of asylum." GROTIUS, op. cit. supra
note 26, at bk. II c. XX ? VIII (6).
45. In recognition of this fact the Institute of International Law adopted a resolution
in September, 1950, formulating suitable rules in the matter of asylum. For the entire
text of this resolution, see 45 AM. J. INT'L L. Supp. 15 (1951). Also Professors Alfaro,
Scelle and Yepes proposed to the International Law Commission of the United Nations
the inclusion of the right of asylum in the Draft Declaration on Rights and Duties of
of its moral content at a time when human rights have become a mat-
ter of international concern.46
In returning to the opinion, it appears quite evident that the Colom-
bian Government did not invoke asylum as an exterritorial right.
Implicit in the Colombian contention was the idea that asylum is a
protection to be granted on humanitarian grounds in accordance with
a well-established Latin American tradition. This is indeed so much
the heart of the Colombian argument that the Colombian Government
invoked Article 2, paragraph 1 of the Havana Convention of 1928,
which stipulates that:
Asylum granted to political offenders in legations, warships, military
camps or military aircrafts, 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 . . . 47
From this provision, it is safe to contend that the Colombian Gov-
ernment was not invoking the old dogma of exterritoriality of em-
bassies and legations, as the Court seems to imply, but was merely
putting asylum squarely on the ground of humanitarian toleration.
Therefore, it would seem that when the Court established a difference
between territorial asylum (extradition) and diplomatic asylum, the
Court was merely indulging in juristic discussions, which, frankly
speaking, had no significant bearing on the issue under consideration.48
Furthermore, the mere inclusion of the institution of asylum in the
Bolivarian Agreement on Extradition as an exemption to the general
rules of extradition is conclusive evidence that the parties were aware
of the fact that diplomatic asylum is technically different from
extradition. If the purpose of the Court's distinction was to establish
States. This suggestion was not adopted, but Professor Yepes was asked to prepare
a paper on the right of asylum for the Commission to consider. See, 44 AM. J. INT'L
L. Supp. 8 (1950).
46. JESSUP, op. cit. supra note 32, at 87.
48. The Court said: "In the case of extradition, the refugee is within the territory
of the State of refuge. A decision with regard to extradition implies only the normal
exercise of the territorial sovereignty.... In the case of diplomatic asylum, the refugee
is within the territory of the State where the offence was committed. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State."
I.C.J. REPORTS 274-275 (1950).
by a ruling a definite line of demarcation between extradition and
asylum, the authoritative statement of the distinction is welcome. But
if the object of the distinction was to instruct the Colombian Govern-
ment that it confused diplomatic asylum with extradition, then the
Court's distinction is rather superfluous and irrelevant. According to
the Memorial submitted by the Colombian Government, the purpose
in citing Article 18 of the Bolivarian Agreement on Extradition was
to throw, so to speak, the issue of asylum in the realm of Inter-
national Law, since both parties to the agreement clearly recognized
asylum "in conformity with the principles of International Law."
But whether or not the doctrine of asylum implies the right of
the State granting asylum to qualify the offence is another matter
which Colombia argued on the basis of conventional and customary
International Law. Thus, the Colombian Government invoked the
Havana Convention of 1928 4 and the Montevideo Convention on
Political Asylum of 1933. 50 On the basis of these two conventions,
Colombia contended: 1) that the right of the State granting asylum
to qualify the offence is implicit in the Havana Convention, and 2)
that such a right is expressly stipulated in the Montevideo Convention
which provides, inter alia, that "the judgment of political delinquency
concerns the State which offers asylum."51
We stand now at the threshold of the Court's reason for denying
to Colombia the power to qualify the offence. At this point the
opinion discloses that the Court does not regard the Havana Con-
vention as applicable to the right of qualification because the Con-
vention itself was designed as a limitation on asylum. In this regard,
it was the opinion of the Court that "nothing could be deduced from
the Convention in so far as qualification was concerned."52 In addi-
tion, the Court found the Montevideo Convention equally inapplicable
because it was never ratified by Peru and therefore "cannot be in-
voked against that State."53
At this stage one begins to wonder whether the opinion has dis-
posed of the matter entirely. One gets the feeling that the reasoning
of the Court is not quite convincing. Of great significance is the fact
51. Article 2.
52. I.C.J. REPORTS 276 (1950).
53. Ibid.
that the Court seemed to have resorted to preconceived notions about
technical doctrine thereby confusing the real issue posed by the
Colombian Government. The crux of the matter in its simplest
terms is whether human rights can be so vitally at stake in the
presence of turbulent political conditions that it is perfectly legal for
a foreign State to interfere in order to protect those rights against
violations by the local authority. A practical and rational approach
to this problem would seem to indicate that authoritative answers
cannot be given in terms of technical doctrines exclusively, but rather
in accordance with a realistic understanding of present world condi-
tions as they affect human rights and fundamental freedoms for all."
It is clearly a matter of meeting adequately the expectations of a world
society where the welfare of human beings occupies a prominent
place.55 It appears, therefore, that to resort to the strict application
and interpretation of traditional rules of International Law, which
have been proved to lag behind the requirements of the time,", would
amount, at least in the case under consideration, to a clear denial of
the legitimate hopes and aspirations of the peoples of the globe with
respect to the enjoyment of civil liberties and the respect for human
dignity in the face of abnormal political conditions. If International
Law is to "be endowed with a moral appeal, both to the minds and
to the hearts of men,"5' the protection of civil liberties and the respect
for human dignity on a global scale must be its paramount concern.
Particularly with respect to the doctrine of asylum, one needs little
effort to realize that in asylum cases civil liberties and human dignity
may be desperately involved. But the Court apparently overlooked
the social implications of the case and instead preferred to follow the
familiar path relying on commonplaces that had no real bearing on
54. McDougal and Leighton, The Rights Of Man In The World Community: Con-
stitutional Illusions Versus Rational Action, 14 LAW & CONTEMP. PROB. 490, 507 (1949);
see also McDougal, The Role Of Law In World Politics, 20 Miss. L.J. 253, 260-263
(1949); DICKINSON, CASES AND MATERIALS ON INTERNATIONAL LAW 5 (1950); CORBETr,
LAW AND SOCIETY IN THE RELATIONS OF STATES 12-13, 59 (1951).
55. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 19 (1950).
56. On this matter, see NIEMEYER, LAW WITHOUT FORCE (1941); Morgenthau,
Positivism, Functionalism and International Law, 34 AM. J. INT'L L. 260 (1940);
LAUTERPACHT, THE FUNCTION OF LAW' IN TIlE INTERNATIONAL COMMUNITY 51-65 (1933).
With respect to one aspect of International Law which has been subject to a severe
criticism, see Kunz, The Chaotic Status of the Laws of War and The Urgent Necessity
for Their Revision, 45 Al. J. INT'L L. 37 (1951).
57. Hudson, International Law at Mid-Century, PROC. AM. SOC'Y INT'L L. 38, 47 (1950).
the case. After a long study of the facts brought to its knowledge,
the Court finally revealed that:
... 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 incon-
sistency 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, accepted as law, with regard to the alleged rule of
unilateral and definite qualification of the offence.58
The mere reading of this paragraph confirms the impression that the
opinion has now taken a familiar turn. This being the case, one
naturally wonders why the Court had to work so hard and to take
so long to arrive at such a simple result. It is a commonplace among
students of the institution of asylum that many contradictions and
discrepancies exist in the application of the institution."" Thus, it has
been widely known that the United States does not recognize asylum
as an institution of International Law, although American embassies
have granted temporary asylum for reasons of humanity.60 It is
equally well-known that asylum has been recognized by the Latin
American countries as a usage, eventually a right, which has given
rise to rules of regional International Law,6' in view of the well-
established theory that considers usage as a source of International
58. I.C.J. REPORTS 277 (1950).
59. See for instance, Ulloa, supra note 1, at 40 passim.
60. In signing the Havana Convention of 1928, the United States Delegation made
the following reservation: "The Delegation of the United States of America, in sign-
ing the present Convention, establishes an explicit reservation, placing on record that
the United States does not recognize or subscribe to as part of international law, the
so called doctrine of asylum." TiH INTERNATIONAL CONFERENCES OF AMERICAN STATES
1889-1928, at 435 (1931). With respect to the Convention on Political Asylum approved
at Montevideo in 1933, the United States Delegation declared: "Since the United States
of America does not recognize or subscribe to, as part of international law, the doctrine
of asylum, the Delegation of the United States of America refrains from signing the
present Convention on Political Asylum." THE INTERNATIONAL CONFERENCES OF AMERI-
CAN STATES, FIRST SUPP. 1933-1940, at 117 (1940). For the practice of the United States
with respect to asylum sought in American Embassies and Legations in other countries,
see 2 HACKWORTH, op. cit. supra note 40, at 621-639.
61. ACCIOLY, op. cit. supra note 32, at 283; 2 ANTOKOLETZ, op. cit. supra note 27, at 423.
Law.62 Because of political upheavals, so frequent in the Latin Amer-
ican countries, the institution of asylum has been maintained and
justified upon humanitarian grounds.63 Finally, abundant literature is
found distinguishing asylum as a Latin American practice from that
of the European countries.64 In view of this generally possessed
knowledge, one is tempted to contend that there was no sufficient
reason for the Court to advance so slowly in the decision to arrive
at a destination which could have been easily reached with a few
short steps. Despite this disquisition into the discrepancies in the
practice of asylum, there still remains the stubborn question why
Colombia, as the State granting asylum, is not competent to qualify
the offence.
In returning to the opinion, it can be readily seen that the Court
provides the apparently elusive answer. The Court said:
The Court cannot therefore find that the Colombian Government
has proved the existence of such a custom.65 But even if it could
be supposed that such a custom existed between certain Latin Amer-
ican States only, it could not be invoked against Peru, which far
from having by its attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the Montevideo Conven-
tions of 1933 and 1939,66 which were the first to include a rule con-
cerning the qualification of the offence in matters of diplomatic
asylum.67
62. Under traditional rules, custom is a source of International Law. See, WHEATON,
ELEMENTS OF INTERNATIONAL LAW 10 (8th ed., Dana, 1866); LAWRENCE, op. cit. supra
note 39, at 97; FENWICK, INTERNATIONAL LAW 72 (3d ed. 1948); FINCH, THE SOURCES OF
MODERN INTERNATIONAL LAW C. IV (1937); 1 OPPENHEIM, op. cit. supra note 37, at 25,
26; BRIGGS, THE LAW OF NATIONS: CASES, DOCUMENTS AND NoTES 26-34 (1938); 1
ANTOKOLETZ, op. cit. supra note 27, at 34-37; BRIERLY, THE LAW OF NATIONS 60-63 (4th
ed. 1949); 1 SCHWARZENBERGER, INTERNATIONAL LAW 16-19 (2d ed. 1949); PODESTA COSTA,
op. cit. supra note 32, at 14-15; Ross, A TEXT-BOOK OF INTERNATIONAL LAW 86-90 (1947);
ACCIOLY, op. cit. supra note 32, at 10.
63. The Harvard Draft Convention on Diplomatic Privileges and Immunities says:
"although no legal right of asylum is held to exist, it is believed, nevertheless, that states
are not yet prepared to assent to the entire abolition of the practice in those parts of
the world in which its maintenance appears still to be justified upon humanitarian
grounds... .", 26 AM. J. INT'L L. Supp. 65 (1932). See also Ulloa, supra note 1, at 43.
64. See on this, MONCADA, op. cit. supra note 29, at c. I; and LISZT, DERECHO INTER-
NACIONAL P&BLICo 183 (Miral's Spanish transl. from 12th German ed. 1929); PADELFORD,
op. cit. supra note 27, at 160-165; LAWRENCE, op. cit. supra note 39, at 317.
65. As will be recalled, the custom referred to here is the unilateral qualification of
the offence by the State that grants asylum.
66. For the text of this Convention, see 37 AM. J. INT'L L. Supp. 99 (1943).
67. I.C.J. REPORTS 277-278 (1950).
This portion of the opinion calls for several comments. To begin
with, the opinion now centered the matter on the question whether
there was a custom that conferred upon the State granting asylum
the power to qualify the offence. As has already been mentioned,
it is a well-established principle that custom is a source of Inter-
national Law,68 and the Court itself is bound to apply, inter alia,
"international custom, as evidence of a general practice accepted as
law."69 The ascertainment of whether a practice is generally accepted
as law involves a scrutiny of municipal laws, a study of the attitude
of the States with respect to the usage, a review of bilateral and multi-
lateral treaties to determine whether the custom has been given a more
permanent and definite expression, a determination of whether the
States recognize themselves as having a duty to observe the practice,
and above all, it is extremely important to determine whether the cus-
tom faithfully reflects the desires and hopes of the community. More-
over, it is not necessary that the usage be accepted by all the States,
but merely "by the united will of several and even of many States.
".71 It has been rightly suggested that:
. . . in the process of the development of a customary rule there
are often moments in time in which the rule, implicitly discernible,
69. The Statute of the International Court of Justice stipulates in Article 38 that:
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting States;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teach-
ing of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide ex
aequo et bono, if the parties agree thereto.
70. See, France and Turkey: The Case of the S.S. "Lotus", FENWICK, CASES ON
INTERNATIONAL LAw 204 (1935); HUDSON, CASES AND OTHER MATERIALS ON INTER-
NATIONAL LAW 372 (3d ed. 1951); DICKINSON, CASES AND MATERIALS ON INTERNATIONAL
LAW 427 (1950). For comments on this case, see Brierly, "The 'Lotus' Case", 44 L.Q.
REV. 154 (1928).
71. Dissenting opinion of Judge Nyholm in the Lotus Case. Cited by HUDSON, THE
PERMANENT COURT OF INTERNATIONAL JUSTICE 1920-1942, at 610 n. 41 (1943). Italics are
the author's.
has not yet taken shape in the eyes of the world, but is so forcibly
suggested by precedents that it would be rendering service to the
cause of justice and law to assist its appearance in a form in which
it will have all the force rightly belonging to rules of positive law
appertaining to that category.72
Furthermore, in deciding an issue which is being supported by a cus-
tom, it is naturally expected that the Court would resort to the
practice of the particular area where that custom is claimed to have
arisen.73 Since it has already been indicated that the institution of
asylum has acquired its strongest foothold in Latin America, it is only
logical that the Court should direct its attention to the practice of the
Latin American States. In this respect, the Colombian Government
offered as direct evidence the incorporation of the practice of unilateral
qualification of the offence into several conventions and agreements,
such as the Montevideo Convention of 1933, which was the first in-
strument to declare explicitly that "the judgment of political delin-
quency concerns the State which offers asylum."74 The answer of
the Court is that this Convention was never ratified by Peru, and
therefore, "cannot be invoked against that State." But from the al-
legations of the Colombian Government, it appears reasonable to
deduce that the citation of the Montevideo Convention of 1933 was
not to argue that Peru was bound by it, but rather to prove that a
practice generally accepted by the majority of the Latin American
countries was finally codified in that convention. It was certainly not
the purpose of the Colombian contention to ask that Peru be bound
by a convention which she (Peru) did not ratify. But it can be
argued that the failure of Peru to ratify the Montevideo Convention
of 1933 is not an overriding consideration in so far as the validity of
the practice is concerned.75 As the Colombian Government aptly
said, the Montevideo Convention is important merely as a "proof of
72. Dissenting opinion of Judge Altamira in the Lotus Case. Cited in HUDSON, THE
PERMANENT COURT OF INTERNATIONAL JUSTICE 1920-1942, at 610 n. 41 (1943). Italics
supplied. See also in this connection, Fenwick, Freedom of Communication Across
National Boundaries, PROC. AM. SOC'Y INT'L L. 107 (1950).
73. FINCH, op. cit. supra note 62, at 53.
75. The American Commission of Jurists approved in 1927 a proposal accepting the
validity of usages "more or less general." See on this, 1 ANTOKOLETZ, op. cit. supra
note 27, at 37.
customary law." It is in this sense that the Montevideo Convention
can be regarded as declaratory of already existing rules. It may be of
some value to mention the fact, which apparently was not brought to
the attention of the Court, that when the Convention of 1933 on
Political Asylum was signed at Montevideo, no reservations were of-
fered by Peru.76 This attitude of Peru could be taken as a prima facie
evidence that the Peruvian Government did accept, as binding, the
practice that the State granting asylum has the right to qualify the
offence.77 It may be correctly argued that this usage has juridical
force "simply because it has grown up and been consistently applied
with the unanimous consent of all the States concerned,"78 including
Peru, which by signing the Montevideo Convention tacitly accepted
the binding character of the practice.79 Again, the fact that Peru
did not ratify the Convention which finally incorporated the usage
is not an argument against the existence of the custom per se. Com-
menting upon the general principle on this point, Mr. George A.
Finch, the Editor-in-Chief of the American Journal of International
Law, observed fourteen years ago that:
76. As will be recalled, the United States was the only State that refused to sign the
Montevideo Convention of 1933. For the reservation of the United States Delegation,
see note 60 supra. It should be mentioned that Peru availed itself of the practice to
qualify the offence during the Spanish Civil War when Peruvian Embassies in Madrid
granted asylum to political refugees. See, PADELFORD, op. cit. supra note 27, at 127.
77. There seems to be enough evidence to the effect that the Peruvian Government
was in favor of the Argentine Draft Convention on the Right of Asylum, submitted
to the Foreign Diplomatic Representatives in Madrid in 1937 at the time of the Civil
War. This Draft Convention provided in article 3, paragraph 2, that "judgment of
the causes motivating the asylum accrues to the State that grants it . . ." PADELFORD,
op. cit. supra note 27, at 158 n. 54. Also on October 26, 1948, the Peruvian Government
issued a statement stating its position with respect to asylum. Among other things,
the statement said the following: "Under the relevant conventions in force, the state
granting asylum is competent to qualify the act which has motivated asylum, either
to decide that it is a criminal offence, or that it is a political offence . . . This thesis
is accepted and recognized by all American states". Cited by Judge Caicedo Castilla
in his dissenting opinion, I.C.J. REPORTS 367 (1950).
78. With respect to the juridical force of usage, see the advisory opinion of the
Permanent Court of International Justice in the Case of the European Commission of
the Danube. HUDSON, THE WORLD COURT 1921-1938, at 197 (1938). For comments,
see 1 SCHWARZENBERGER, op. cit. supra note 62, at 16.
79. In this respect, Judge Alvarez in his dissenting opinion gave the generally ac-
cepted rule of International Law. He rightly said: "A principle, custom, doctrine,
etc. need not be accepted by all of the States of the New World in order to be con-
sidered as a part of American International Law. The same situation obtains in this
case as in the case of universal International Law." I.C.J. REPORTS 294 (1950).
When a general rule of customary International Law is invoked
against a State, it is not necessary that the State in question shall
have assented to the rule either diplomatically or by having acted on
it. It is enough to show that the general consensus of opinion within
the limits of civilization is in favor of the rule.80
Similarly, it is perfectly possible to find that a State may recognize
a rule of customary law without actually becoming a party to the
convention or conventions which incorporate that rule. It is pertinent
here to quote what Professor Hudson, formerly a Judge of the Perma-
nent Court of International Justice, has to say with respect to inter-
national conventions as a source of law applicable by the Court:
a State may have recognized a rule established by a convention
though it is not a party to the convention. It has frequently oc-
curred that a State has admitted formulations made by other States to
be proper statements of the law and as such as binding for them-
selves. In the course of years the classification of diplomatic agents
embodied in the Protocol of Vienna of March 9, 1815, was accepted
by most States without any formal accession, and the rules thus
established may now be said to have been recognized by many States
not parties to the Protocol.81
Professor Hudson adds that:
The repeated formulation of a principle over a number of years
in numerous international instruments may lead to a conclusion that
the principle forms a part of the common international law.82
We may add in the same connection that, important as the question
of ratification of treaties may be in International Law, there is no suf-
ficiently valid reason to exaggerate its bearing upon the validity of a
practice. The two questions do not necessarily follow. The making
80. FINCH, THE SOURCE OF MODERN INTERNATIONAL LAW 48 (1937).
81. HUDSON, THE PERMANENT COURT OF INTERNATIONAL JUSTICE 1920-1942, at 608-
609 (1943). Judge Azevedo gives further emphasis to this view in his dissenting opinion.
He supplies cases when the Latin American countries have felt bound by a custom
even though they never ratified the treaty which incorporated said custom. I.C.J.
REPORTS 337-338 (1950).
82. HUDSON, THE PERMANENT COURT OF INTERNATIONAL JUSTICE 1920-1942, at 609 n.
33 (1943). It has been contended that the field of diplomacy is largely regulated by
customary law. See on this, 1 ANTOKOLETZ, op. cit. supra note 27, at 36; FINCH, Op. cit.
supra note 62, at 49.
of a modem International Law in which the desires and sentiments
of the peoples of the world are supposed to play a paramount role
will of necessity imply the existence of habits which are not contained
in duly ratified treaties but which are nevertheless valid as expressions
of a common international morality. It will be extremely difficult to
urge, and even to justify, the role of individuals in the shaping of an
effective law of nations without at the same time giving validity to
their legitimate hopes and aspirations as human beings. Yet it may be
possible that these hopes and aspirations are tacitly expressed in prac-
tices. It is in this sense that a practice faithfully reflects the interests
of a community. And it is precisely in this connection that asylum
is one of such practices. This practice of asylum implied as a neces-
sary corollary the qualification of the offence by the State that offers
asylum. Although this usage was codified in the Montevideo Con-
vention of 1933, as has been observed above, this convention was never
ratified by some States. To invoke the lack of ratification as an
excuse to deny validity to the rule of unilateral qualification of the
offence would be tantamount to a resort to a doctrine which obviously
runs counter to the peoples' needs. And yet the Court rightly argued
that it is a rule of International Law that a State cannot be bound
without its consent, which is expressed through individual ratification
of international instruments. No one will attempt to deny that this
rule is the inevitable consequence of the doctrine of the absolute
sovereignty of the State.83 But as the conception of absolute
sovereignty slowly disappears under attacks from all quarters, the
doctrine of consent, as expressed by individual ratification of treaties
and other instruments, is bound to lose ground accordingly. There-
fore, it is submitted that perhaps the only way whereby we can ever
hope to attain a rational approach to the problems of International
Law is by discarding obsolete doctrines whenever they appear to be in
conflict with much more fundamental questions of justice and human
rights. The approach suggested here would properly fall within the
function of the World Court. Under this theory, the World Court
would undoubtedly become an instrument of an expanding inter-
national jurisprudence which keeps abreast of the requirements and
needs of peoples everywhere. But unless this development takes place,
83. MORGENTHAU, Pouncs AMONG NATIONS 244 (1948); CORBETF, op. cit. supra note
54, at c. 4; Po=TER, AN INTRODUCTION TO THE STUDY OF INTERNATIONAL ORGANIZATION 59
(5th ed. 1948); LEONARD, INTERNATIONAL ORGANIZATION C. 1 (1951).
it is safe to predict that the World Court will continue to be a party
to the perpetuation of notions which long ago lost contact with the
demands and needs of man in the world society.84
Finally, it is worth noting that the Court itself admitted that in many
cases the practice of unilateral qualification of the offence was invoked
"for reasons of political expediency." Thus, the Court said:
. . . the 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 definite qualification was invoked or-if in some cases it was in
fact invoked-that it was, apart from conventional stipulations, exer-
cised by the States granting asylum as a right appertaining to them
and respected by the territorial States as a dutv incumbent on them
and not merely for reasons of political expediency.85
There can be little doubt that in this paragraph the Court refused
to accept the rule of unilateral and definitive qualifications of the
offence on the part of the State granting asylum simply because this
rule was invoked and applied "for reasons of political expediency."86
The question immediately arises as to whether political expediency
can give rise to a practice accepted as law. It is not altogether clear
what the Court meant by "political expediency." It so happens that
"political expediency" is one of those elusive concepts which seems to
say a good deal more than it actually does. If by "political expediency"
the Court meant that States have accepted the rule of unilateral and
definite qualification of the offence as binding among themselves
merely because of the fear of retaliation in the event that their own
embassies and legations may be confronted with a similar problem,
then, technically speaking, the custom has a sanction, and as such,
is, and has. been, respected by the territorial States as "a duty incum-
bent upon them." If this proposition is accepted, it logically follows
that this particular practice has met the test required for a custom to
84. For support of this contention, see note 56 supra.
85. I.C.J. REPORTS 277 (1950).
86. Further down, the Court again admits the existence of the custom. Thus, it
said: ". . . asylum as practiced in Latin America is au institution which, to a very
great extent, owes its development to extra-legal factors. The good-neighbor relations
between the Republics, the different political interests of the governments, have favored
the mutual recognition of asylum apart from any clearly defined juridical system."
I.C.J. REPORTS 286 (1950).
be a source of law. In this connection, it has been authoritatively
stated that a practice is a source of International Law when there is
a feeling that the usage is an obligatory one.87 In the words of an
international lawyer, there must be a feeling that "if the usage is
departed from, some sort of evil consequences will probably, or at any
rate ought to, fall on the transgressor. In technical language, there
must be a sanction."88 It is, therefore, difficult to see why the Court,
even applying technical doctrine, refused to accept the so-called
"political expediency" as a foundation of a custom binding in Inter-
national Law.'
If, on the other hand, by resorting to the vague concept of "polit-
ical expediency" the Court merely wished to maintain a dividing line
between the realms of politics and law, then it may be suggested that
the Court is adopting a narrow definition of law and an unrealistic
approach to both national and international problems.90 It has been
expressed time and again that law is "a specific social technique for the
achievement of ends determined by politics.""' Hence, it can scarcely
be suggested that law can be divorced from politics,92 and it would
be precarious to attempt to erect an insurmountable barrier between
the two."
87. See the Lotus Case, note 70 supra.
88. BRIENLY, THE LAW OF NATIONS 60 (4th ed. 1949).
89. Of course, this custom would be binding only among the Latin American States,
and as such, would be a principle of regional law.
90. See the remarks of Professor Myres S. McDougal with respect to the impossibility
of divorcing law from politics, PRoc. AM. Soc'Y INT'L L. 92, 93 (1950).
91. KuLmSN, THE LAW OF To UNITED NATIONS xiii (1950).
92. McDougal, supra note 54, at 253; Garcia-Mora, The Law of the Inter-American
Treaty of Reciprocal Assistance, 20 FoRD. L. REV. 1, 21-22 (1951). See also note 90
supra.
93. This interdependence of law and politics can be seen even more clearly in the
fields of recognition, maritime law, air transportation and rights of States. On these,
see LAtTERPACHT, RECOGNITION IN INTERNATIONAL LAW 33, 71 (1947); POTER, THE Fb-
DOM OF THE SEAS IN HISTORY, LAW AND PoLITics pt. 3 (1924); SMITH, THE LAW AND
CUSTOM OF THE SEA (2d ed. 1950); Burchall, The Politics of International Air Routes,
14 INT. AFFIRs 89 (1935); Rhyne, International Law and Air Transportation, 47 MIC:H.
L. REv. 41 (1948); DICKINSON, THE EQUALITY OF STATES IN INTERNATIONAL LAW (1920);
Weinschel, The Doctrine of the Equality of States and its Recent Modifications, 45
AM. J. INT'L L. 417 (1951). In general, see CARR, THE TwENTY YEARS' CRISIS 1919-1939
pt. 3 (1942); Morgenthau, Positikism, Functionalism and International Law, 34 AM. J.
INT'L L. 260 (1940); Pound, Law and the State-Jurisprudence and Politics, 57 HARv.
L. REv. 1193 (1944); WLD, SANCrIONS AND TREATY ENFORCEMENT 23 (1934); DIcKiNsoN,
CASES AND MATERIALS ON INTERNATIONAL LAW 5-22 (1950); Goodrich, Book Review, 45
AM. POL. Sci. REV. 549 (1951).
For the foregoing reasons, it is submitted that when the World
Court refused to accept the practice of the Latin American States of
allowing the State that grants asylum the power to qualify the of-
fence, the Court was in reality refusing to apply practice as binding
in regional International Law, despite the fact that such a custom or
practice reflected the moral sense of the peoples concerned. One
wonders what evidence was acceptable to the Court, since all the
proofs submitted by the Colombian Government were so readily dis-
missed by the resort to superficial and highly controversial assumptions
and conceptions. What is perhaps more regrettable in the long run
is the fact that the Court attached a narrow interpretation to con-
ventions and customs, completely overlooking the social consequences
that a decision rendered in those terms would have upon the funda-
mental doctrine of human rights.
III. ASYLUM AND HUMAN RIGHTS
Since the adoption of the Charter of the United Nations in 1945,
human rights and fundamental freedoms have been placed under inter-
national guarantee and protection. The Charter is very explicit on
this matter and leaves no doubt with respect to its intention. It
clearly commands the United Nations to promote "respect for human
rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion."94 The binding force of the provi-
sions of the Charter concerning human rights and fundamental free-
doms has been upheld both by judicial authority95 and by qualified
experts on the subject.90 Responsibility for the promotion of human
94. U.N. CHARTER Art. 1, ? 3. See also Arts. 55, ? (c), 62, ? 2 and 76, f (c). In
addition, the Charter declares in its preamble ". . . faith in fundamental rights, in the
dignity and worth of the human person, in the equal rights of men and women and of
nations large and small . . .". Also the Charter of the Organization of American States
signed at Bogota in 1948 states in its preamble that ". . . the historic mission of America
is to offer to man a land of liberty, and a favorable environment for the development
of his personality and the realization of his just aspirations."
95. See the American case, Fujii v. State, 217 P.2d 481, 218 P.2d 595 (Cal. App. 1950),
and the Canadian case, Re Drumond Wren, 4 D.L.R. 674 (1945).
96. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS C. 9 (1950); Wright,
National Courts and Human Rights-The Fujii Case, 45 AM. J. INT'L L. 62, 70 (1951);
McDougal and Leighton, supra note 54, at 512-513; Sayre, Shelly v. Kraemer and United
Nations Law, 34 IOWA L. REV. 1 (1948); Ming, Racial Restrictions and the Fourteenth
Amendment: The Restrictive Covenant Cases, 16 U. OF Cm. L. REV. 203 (1949).
Contra: Hudson, Charter Provisions on Human Rights in American Law, 44 AM. J.
INT'L L. 543 (Editorial Comment 1950).
rights has been vested specifically in the General Assembly, and "under
the authority of the General Assembly, in the Economic and Social
Council."97 Thus, in discharging its responsibilities, the General As-
sembly adopted on December 10, 1948, a Universal Declaration of
Human Rights.8 The substantive articles of this Declaration include
the right to life, liberty and the security of the person;99 prohibition of
slavery or servitude, torture and inhuman treatment;'00 the right to be
recognized everywhere as a person before the law;10' equality before
the law and equal protection of the law;102 the right to effective
remedies by competent tribunals for violations of civil rights guar-
anteed by the national constitution;'03 freedom from arbitrary arrest,
detention or exile;'04 the right to a fair and public hearing, and pro-
hibition of ex post facto laws;'05 the inviolability of the home and cor-
respondence, and protection against attacks upon the honor and the
reputation of indiivduals;'06 freedom of movement within the State and
the right to leave it and return to it;107 the right of asylum from
persecution;'08 the right to a nationality;'09 the right to own property
and not to be deprived of it arbitrarily;"0 freedom of thought and
freedom of conscience and of religion;"'1 freedom of opinion and of
expression, and freedom of peaceful assembly and association;1"2 the
right to participate in the government of the State;"3 the right to social
security and the right to work and to rest and leisure;1"4 the right to a
97. U.N. CAmRTER Art. 60.
98. For references with respect to the text of the Declaration, see note 32 supra.
For comments, see LAUTERPACHT, INTERNATIONAL LAW AND HumsAN RIGHTS c. 17 (1950);
Kunz, The United Nations Declaration of Human Rights, 43 AM. J. INT'L L. 316 (Edi-
torial Comment 1949); McDougal and Leighton, supra note 54.
99. UNIVERSAL DECLARATION OF HUMAN RIGHTS Art. 3.
100. Id. Arts. 4 and 5.
101. Id. Art. 6.
102. Id. Art. 7.
103. Id. Art. 8.
104. Id. Art. 9.
105. Id. Arts. 10 and 11.
106. Id. Art. 12.
107. Id. Art. 13.
108. Id. Art. 14.
109. Id. Art. 15.
110. Id. Art. 17.
111. Id. Art. 18.
112. Id. Arts. 19 and 20.
113. Id. Art. 21.
114. Id. Arts. 22-24.
standard of living adequate for the health and well-being of the
individual and his family;"l5 protection of motherhood and child-
hood;"16 and the right to education.'17
From the foregoing list, it can be readily seen that the Universal
Declaration of Human Rights guarantees in unmistakable terms the
right of "asylum from persecution." Although the Declaration seemed
to have referred specifically to territorial asylum, nevertheless it can
be argued with much force that the decision of the Court in the
Colombian-Peruvian Asylum case affects both territorial and political
asylum. Furthermore, political asylum may be a means to enjoy ter-
ritorial asylum provided the right to qualify the offence and the right
to demand a safe-conduct for the departure of the refugee are recog-
nized as appertaining to the State that grants asylum. In such a case,
it would be extremely difficult to establish a practical difference be-
tween the two. At any rate, since we are here primarily concerned
with the right of asylum, we will proceed to discuss the prominent
position which it occupies within the entire system of human rights
and the effect of the Court's decision on its practical application.
In the matter of asylum, the Declaration explicitly asserts that
"everyone has the right to seek and to enjoy in other countries
asylum from persecution," and that "this right may not be invoked
in the case of prosecutions genuinely arising from non-political crimes
or from acts contrary to the purposes and principles of the United
Nations.'"118 Although the binding character of the Declaration as
a whole can be questioned on technical grounds, it can at least be
asserted that embedded in the Declaration is the theory that man has
certain inalienable rights that cannot be taken away by the sheer fiat
of the State."9 It is also a recognition of the fact that International
Law can no longer remain passive with respect to violations of in-
115. Id. Art. 25.
116. Ibid.
117. Id. Art. 26.
118. For the record concerning the discussion of Article 14 which deals with the
right of asylum, see OFFICIAL RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY,
PART I, THIRD COMMITTEE 327-348 (1948). See also Article 27 of the American Declara-
tion of the Rights and Duties of Man adopted by the Ninth International Conference
of American States held in Bogota' in 1948. For the text of this article, see note 32
suPra.
119. Mrs. Roosevelt, Importance of the Covenant, 7 U.N. BULL. 3, 6 (1949); LAUTER-
PACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN 31 (1945).
dividual rights on either the internal or international level.'20 And
finally, it can be reasonably assumed that the United Nations sanctions
a person's resort to foreign States in the event that any of the rights
mentioned in the Declaration should be the object of aggressions from
local authorities.'21 These implications are self-evident and need not
be the object of further explanations.
From the above exposition, it becomes immediately clear that under
present International Law, as evidenced by the Charter and by the
Universal Declaration of Human Rights, the institution of asylum has
become a matter of international concern, protected and guaranteed
by international instruments of the utmost consequence and sig-
nificance.'22 It has been argued, however, that regardless of its
humanitarian function, in practice asylum amounts to an intervention
in the internal jurisdiction of a State.'23 It must be said in this con-
nection that only a distorted interpretation of the United Nations
Charter and a gross misunderstanding of the facts of international life
can lead anyone to believe that asylum intervenes in matters which
120. McDougal and Leighton, supra note 54, at 512.
121. It has been said that Article 14 of the Universal Declaration of Human Rights
does not guarantee asylum but merely the right "to seek and to enjoy asylum." Ac-
cording to this interpretation, States do not have any obligation to grant asylum to
a person who is seeking it. See on this, LAUTERPACHT, INTERNATIONAL LAW AND HUMAN
RIGHTS 421 (1950). It appears from the record that originally Article 14 provided that
"everyone has the right to seek and be granted, in other countries asylum from perse-
cution." (Italics supplied). However, the British Delegation, Mrs. Corbet, argued
that Article 14 as drafted "might actually lead to persecution by encouraging States
to take action against an undesirable minority and then to invite it to make use of
the right of asylum." The Delegate of Saudi Arabia proposed the deletion of the
words "be granted" from the original text. After considerable discussion this proposal
was adopted. See, OFFICIAL REcoRDs OF THE THIRD SESSION OF THE GENERAL ASSEMBLY,
PART I, THIRD COMMITTEE 331-344 (1948). We may add that the view represented by
Mrs. Corbet seems untenable since Article 9 of the Declaration guarantees the freedom
from arbitrary arrest, detention or exile. It should be also remembered that Article 27
of the American Declaration of the Rights and Duties of Man guarantees not only the
right to seek asylum, but also the right to receive it. For full text of this article, see
note 32 supra.
122. Reference should be also made to the resolution of the Institute of International
Law adopted in September, 1950 with respect to the right of asylum. See note 45
supra.
123. The Court itself put forth this argument. I.C.J. REPORTS 285 (1950). During the
discussion of Article 14 of the Universal Declaration of Human Rights the Soviet Dele-
gate expressed the view that diplomatic asylum amounts to intervention in matters
within the domestic jurisdiction of States. This view was strongly opposed by the
Latin American Delegations. See OFFICIAL RECORDS OF THE THIRD SESSION OF THE GEN-
ERAL ASSEMBLY, PART I, THIRD COMMITTEE 342 (1948).
have been left to the reserved domain of the States.'24 It should be
clearly understood that in questions of human rights and in the face
of present-day world problems, the traditional distinction between
domestic and international matters loses all its legal force and there-
fore cannot be accepted.'25 This interpretation counts today on the
endorsement of many commentators and writers on the subject.126 It
is then difficult to see how the Court arrived at the conclusion that
the granting of asylum "would come into conflict with one of the
most firmly established traditions of Latin America, namely, non-
intervention, "127 There is no doubt that by resorting to the doctrine
of non-intervention, the Court injected a new element into the deci-
sion. Obviously, the Court is trying to justify its position, and in
doing so, it neglected the much more fundamental issue of the intimate
connection between asylum and human rights. Since the American
Republics have been for quite sometime irrevocably committed to the
doctrine of non-intervention, and since this doctrine has a direct bear-
ing on the protection of human rights within the territory of all States,
it would be extremely useful to consider it in more detail.
The Court invoked this doctrine in the following way:
The Court cannot admit that the States signatory to the Havana
Convention intended to substitute for the practice of the Latin Amer-
ican Republics, in which considerations of courtesy, good-neighbor-
liness and political expediency have always held a prominent place, a
legal system which would guarantee to their own nationals accused of
political offences the privilege of evading national jurisdiction. Such
a conception, moreover, would come into conflict with one of the
most firmly established traditions of Latin America, namely, non-
intervention. It was at the Sixth Pan-American Conference of 1928,
124. This theory seems to have stemmed from U.N. CHARTER Art. 2, ? 7, which
forbids the United Nations to interfere "in matters which are essentially within the
domestic jurisdiction of any State. . .
125. Wright, supra note 96, at 74.
126. For instance, Wright, supra note 96, at 74; McDougal and Arens, The Genocide
Convention and the Constitution, 3 VAND. L. REV. 683, 687-688 (1950); LAUTTERPACHT,
INTERNATIONAL LAW AND HUMAN RIGHTS C. 10 (1950); KELSEN, THE LAW OF TM UNITED
NATIONS 769-791 (1950). It should be noted that these authors refer to the interven-
tion of the United Nations. We contend that the same theory can be applied to the
granting of asylum, inasmuch as the State that grants asylum is actually enforcing the
human rights provisions of the Charter and the Universal Declaration of Human
Rights whenever they are violated in the course of domestic political disturbances.
127. I.C.J. REPORTS 285 (1950) passim.
during which the Convention on Asylum was signed, that the States
of Latin America declared their resolute opposition to any foreign
political intervention. It would be difficult to conceive that these
same States had consented, at the very same moment, to submit to
intervention in its least acceptable form, one which implies foreign
interference in the administration of domestic justice and which could
not manifest itself without casting some doubt on the impartiality of
that justice.'28
It is regrettable that at this point, when the Court would have
been justified in weighing the facts carefully, it preferred to take a
short cut reaching thereby what can be regarded as a harsh decision
on the controversy. If there had been an investigation of the type of
intervention to which the Latin American States are opposed, of the
context in which intervention had been used and of the policies which
prompted the American Republics to adopt a resolution condemning
intervention, the Court undoubtedly would have realized that the
analogy between asylum and intervention is not at all well taken.
Everyone who is familiar with the history of intervention in the
Americas will agree that the type of intervention opposed by the Latin
American countries has been characterized by the use of armed forces
within the territory of another State without the acquiescence of the
latter, the use of diplomatic pressure to secure decisive advantages for
the nationals of a particular State at the expense of the nationals of
other States,129 and other forms of dictatorial interference in the in-
ternal affairs of the State. There is sufficient evidence to contend that
the granting of asylum in times of political disturbances has never
been regarded as one of those dictatorial interferences in the domestic
matters of a State. Thus, when the American Republics adopted the
Montevideo Convention on Asylum in 1933 giving the State which
grants asylum the power to qualify the offence, at the same time a
definition of intervention was adopted which did not include the grant-
ing of asylum as a possible violation of the definition.130 Hence, if
128. Ibid.
129. Garcia-Amador, El Reconocimiento de Gobiernos de Facto y la Proteccidn
Internacional de los Derechos del Hombre, INTER-AMER. JURID. Y.B. 1949, 47, 53-57
(1950).
130. The following definition of intervention was adopted by a Sub-Committee of
the Conference: "Any act of a State, through diplomatic representation, by armed
force, with a view to making the State's will dominate the will of another State, and
in general, any maneuver, interference or interposition of any sort, employing such
the Court attached so much importance to the fact that the Latin
American States have adhered to the doctrine of non-intervention,
it would have been equally accurate to stress that the Latin American
countries have also adhered to the doctrine of asylum as a right
grounded on decency and humanity. It is quite evident that the Court
completely overlooked Article 27 of the American Declaration of the
Rights and Duties of Man, adopted at Bogota in 1948, that guarantees
to every person not only the right to seek asylum but the right to
receive it as well.131 In fact, in the question of asylum, the American
Declaration of the Rights and Duties of Man goes further than the
Universal Declaration of Human Rights, since the former guarantees
that the seeking of asylum will meet with success.132 This is in
itself irrefutable evidence that the American Republics have never
regarded the well-established doctrine of asylum as a violation of the
equally well-established doctrine of non-intervention.
means, either directly or indirectly in matters of the obligations of another State, what-
ever its motive, shall be considered as intervention, and likewise a violation of inter-
national law. It would seem quite unnecessary to state that the Sub-Committee was,
and is, in perfect accord that any friendly act to offer good offices and mediation in
the foreign relations of States in order to maintain peace is, by its very nature, outside
the definition of intervention." Cited by STRAusz-HuPk AND POSSONY, INTERNATIONAL
RELATIONS 344 (1950). It should be added that article 15 of the Bogota Charter de-
scribes intervention in the following fashion: "No State or group of States has the
right to intervene, directly or indirectly, for any reason whatever, in the internal or
external affairs of any other State. The foregoing principle prohibits not only armed
force but also any other form of interference or attempted threat against the personality
of the State or against its political, economic, and cultural elements." For a discussion
of intervention in general, see LAUTERPACHT, INTERNATIONAL LAW AND HuMAN RIGHTh
167-173 (1950). Professor Kelsen says that under existing International Law inter-
vention "means dictatorial intervention, that is, intervention by the threat or use of
force." See Kelsen, The Draft Declaration of Rights and Duties of States, 44 AM. J.
INT'L L. 259, 268 (1950). It seems that the same conception is maintained by many
Latin American jurists. See for instance, PODESTA COSTA, Op. Cit. supra note 32, at 50-54;
ACCIOLY, op. cit. supra note 32, at 66-73; Garcia-Amador, supra note 129, at 53-57; 2
ANTOKOLETZ, op. cit. supra note 27, at 53-60. See also the note which Dr. Rodriguez
Larreta, Uruguayan Foreign Minister, sent to Secretary of State James F. Byrnes, where
he proposed the joint intervention of the American Republics in the presence of "notori-
ous and repeated violation by any Republic of the elementary rights of man and of
the citizen." For the full text of this note, see N.Y. Times, Nov. 29, 1945, p. 14, col. 3.
131. For the text of Article 27, see note 32 supra. Compare Article 27 of the Ameri-
can Declaration of the Rights and Duties of Man with Article 14 of the Universal Decla-
ration of Human Rights.
132. It has been already mentioned that originally Article 14 of the Universal Decla-
ration of Human Rights assured to everyone the right to seek and to be granted asylum.
For the record of the discussion of this article, see note 121 supra.
It is submitted, therefore, that it was erroneous for the Court to
assume that the Latin American States oppose asylum as a practice
which intervenes in the domestic jurisdiction of the State, merely be-
cause they have shown strong opposition to the doctrine of inter-
vention. Such a contention is the product of a facile generalization
and is not warranted by the available evidence on the matter. It is
unfortunate that the Court had to resort to the doctrine of non-inter-
vention, because such a doctrine cannot answer adequately urgent
matters regarding human rights in the world today and is not in itself
satisfying.133 It would have been much more in accordance with the
role of the Court to take notice of the fact that international conflagra-
dions may originate, and indeed have originated, in civil wars and
internal political dislocations, matters which until very recently were
considered to fall essentially within the domestic jurisdiction of the
State.134 Similarly, the Court could have taken notice of the indis-
putable fact that human rights and fundamental freedoms may be
vitally at stake in the presence of domestic political upheavals. It is
also accurate to assert that the flagrant violation of human rights by
dictatorial and revolutionary governments may endanger the peace
of the world much more than the well-intentioned intervention of
foreign governments in an effort to protect the inviolability of the
human personality.135 Therefore, it would seem to be a bad precedent
to deny the right of asylum and its corollary, the right of the State
granting asylum to qualify the offence, on the ground that it is in
conflict with the doctrine of non-intervention. The truth of the
matter is that, in the presence of violations of human rights, the
doctrine of non-intervention becomes meaningless and devoid of any
juridical force.136
Although there is no explicit provision to this effect, it can be
rightly presumed that if a person is "to seek and to enjoy in other
countries asylum from persecution," it must be under the protection
of the foreign State to which such person resorts.137 Under this
133. McDougal and Leighton, supra note 54, at 507-508.
134. GOODRICH AND HAMBRO, CHARTER OF THE UNITED NATIONS: COMMENTARY AND
DOCUMENTS 76 (1946).
135. LAUTERPAcHT, INTERNATIONAL LAW AND HUMAN RIGHTS 32 (1950).
136. Yuen-Li Liang, Notes on Legal Questions Concerning the United Nations 44
AM. J. INTL L. 100, 106 (1950).
137. The majority of the Delegates in the Third Committee of the General Assembly
of the United Nations seemed to agree that this protection of a foreign State was
voluntary. See, OFFICIAL RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY
PART I, THIRD COMMITTEE 330 (1948).
logical assumption, it would not make any difference whether reference
is made to territorial or to political asylum. The inevitable fact re-
mains that neither territorial nor political asylum can be effectively
maintained unless the State requested to grant it agrees to protect the
political refugee against the arbitrary actions of his own government.'38
It is in this connection that the distinction made by the Court be-
tween territorial and diplomatic asylum breaks down altogether and
loses all its useful meaning.'39
If, on the other hand, we accept the reasoning of the Court that the
granting of asylum amounts to intervention, then the provisions of the
Charter dealing with human rights are reduced to pious hopes without
much practical value. Furthermore, if among these human rights asylum
is to be guaranteed in order to protect other fundamental rights in the
event of invasions from the local authority, it is a conditio sine qua non
for the effective operation of the institution that the State granting
asylum be guaranteed the right to qualify the offence. Otherwise,
asylum is reduced to naught.140 Of course, if there were an inter-
national court of human rights where individuals could take their
claims directly even against their own governments for the adequate
protection of their rights,'41 then the institution of asylum would not
138. As mentioned before, according to the American Declaration of the Rights and
Duties of Man, the States to which the political refugee resorts must grant him asylum.
140. Judge ad hoc Caicedo Castilla expressed in his dissenting opinion that "the right
to qualify the nature of the offence must necessarily lie with the State granting asylum,
otherwise the very institution of asylum could no longer exist." I.C.J. REPORTS 364
(1950). Judge Alvarez also maintained that the State granting asylum is competent to
qualify the offence; however, he adds that this qualification may be contested by the
territorial State. Id. at 297.
141. The Ninth International Conference of American States held at Bogota' in 1948
approved a resolution urging the formation of an Inter-American Court to protect the
rights of man. For the text of this resolution, see INTER-AMER. JURID. Y.B. 1949, 298-300
(1950). It cannot be denied that in the international legal thinking the trend seems to
be moving toward making individual responsibility effective in the event that in-
dividuals violate rules of International Law. The assumption seems to be that by
making individuals responsible under International Law, the rights of man would be
protected accordingly. See this tendency in Pella, Towards an International Criminal
Court, 44 AM. J. INT'L L. 37 (1950). Also see the report presented by Dr. R. J. Alfaro
to the United Nations International Law Commission on "the desirability and possibility
of establishing an international judicial organ for the trial of persons charged with
genocide or other crimes over which jurisdiction will be conferred upon that organ by
international conventions." U.N. Doc. A/CN.4/15, A/CN.4/15 corr. (March 3, 1950).
Reference has already been made to this tendency in Garcia-Mora, The Calvo Clause
in Latin American Constitutions and International Law, 33 MARQ. L. REV. 205, 216
(1950).
have any reason to exist. Perhaps the Court would have been justified
in denying the right of asylum altogether if at the same time it fur-
nished ways and means of guaranteeing respect for individual rights
and freedoms within the internal jurisdiction of all States.142 It can
hardly be disputed that the rise of present-day totalitarian govern-
ments is a menace to the peace of the world, not only because of
their inherent political aggressiveness, but also because their underlying
philosophy is largely built on the persecution of the ethnic, linguistic,
religious or political minorities that live within their midst. It is for
people thus persecuted that asylum appears as the only hope and the
only way of enforcing their rights, especially when the Charter of
the United Nations does not give individuals the right to appeal di-
rectly to the Security Council or to the International Court of Justice
when any of the rights mentioned in the Charter are violated.'43 In the
absence of such a procedure, International Law has no alternative but
to accept and recognize as legal the protection which, through asylum,
foreign States give to individuals when confronted with revolutionary
upheavals and dictatorial governments. So long as International Law
does not supply effective remedies to which individuals can resort
directly for the adequate protection of human rights and values, asylum
will be filling a gap in the international legal order. It makes no sense
indeed to champion individual rights in the Charter and in the Uni-
versal Declaration of Human Rights and at the same time to destroy
by a judicial decision the institution of asylum, which has been de-
signed to uphold those very same rights against possible aggressions
from a person's own government. If we realistically admit that respect
for human rights is painfully lacking in times of abnormal political
142. It should be mentioned that the French Delegate in the Third Committee of the
General Assembly suggested an addition to Article 14 of the Universal Declaration of
Human Rights specifically providing that the United Nations itself was required to
secure asylum to persons seeking refuge. As the French note explained, "there is no
point in proclaiming a right without at the same time stating whose duty it is to give
effect to that right." The French proposal, however, was not accepted. See OFFICIAL
RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY, PART I, THIRD COMMITTEE 328
(1948).
143. KELSEN, TiE LAW OF THE UNITED NATIONS 484 (1950). Article 34, paragraph
1, of the Statute of the Court provides that "only States may be parties in cases be-
fore the Court." Commenting on Article 34 Professor Hudson says that there is "no
imperative need for a permanent international tribunal to which individuals may bring
their claims against States." See HUDSON, THE PERMANENT COURT OF INTERNATIONAL
JUSTICE 1920-1942, at 396 (1943). See also CORBETr, op. cit. supra, note 54, at 57.
conditions and if we go further and frankly realize that revolutionary
regimes have been known to resort to acts of cruelty and violence
which have shocked the consciences of the peoples of the world, then
we must inevitably conclude that the institution of asylum is under
present conditions an effective and adequate method of protecting
human beings against such evils without having to resort to more
drastic measures, as, for instance, actual military intervention.144 Un-
less asylum is given a prominent place within the law of nations,145
it is difficult to conceive how the United Nations purports to guarantee
to everyone "the right to seek and to enjoy in other countries asylum
from persecution" as well as the other rights mentioned in the Decla-
ration. It is even more difficult to conceive how the American Decla-
ration of the Rights and Duties of Man intends to guarantee to every-
one the right to seek and receive asylum, in view of the fact that
the Court said in the Colombian-Peruvian Asylum case that any asylum
granted to political offenders may be terminated by the territorial
State simply by contesting the qualification made by the State that
granted refuge. It appears clear; therefore, that without the right
of asylum with its corollary, the right to qualify the offence on the
part of the State that grants it, the Charter of the United Nations,
the Universal Declaration of Human Rights, and the American Decla-
ration of the Rights and Duties of Man cannot be regarded as guaran-
tees of humanity. At best, they might be considered as noble pledges
of somewhat doubtful value. On the other hand, making asylum a
right of the individual under International Law "would be a contribu-
tion to restoring active faith in the worth and dignity of man."''46
But to avoid misconceptions it is important to emphasize that the
right of asylum is not, and can never be, an end in itself.147 Asylum
is a means-which has been designed to protect the fundamental rights of
man whenever they are violated by a person's own government. If
144. CORBE-I, op. cit. supra note 54, at 207.
145. Professor Jessup suggests that under a modern Law of Nations "precedent and
humanity would suggest that every State should be under an obligation to grant tempo-
rary refuge to persons fleeing from persecution." See JESSUP, op. cit. supra note 32,
at 55.
146. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 346 (1950).
147. Commenting upon the right of petition, Professor Lauterpacht states that peti-
tions "are not an end in themselves". Wve believe that the same contention may be
made with respect to the right of asylum. On the right of petition, see LAUTERPACHT,
INTERNATIONAL LAW AND HUMAN RIGHTS 249 (1950).
nationals are deprived of this right of protection made effective through
asylum simply because they have no redress against their own govern-
ment, then it would seem that the aliens residents of the same State
are in a much more advantageous position. since according to the
traditional doctrine of International Law. aliens can be protected by
the State of which they are nationals through the means of diplo-
matic intervention.148 Such a protection would not exist for nationals
against their government unless the right of asylum is accepted and
recognized as an institution of the law of nations. But asylum being
a means only, it necessarily follows that it has a temporary existence
in the sense that it may slowly disappear in proportion as the United
Nations and International Law in general find more effective means
of enforcing human rights and values all over the world. As has
already been mentioned. if there were an international court of human
rights to which individuals could resort directly to protect their
fundamental rights and freedoms against invasions coming from all
sources, the raison d'etre of the doctrine of asylum would cease to
exist accordingly. But since no such development has yet taken place,
it seems imperative that asylum remain as a vital part of a developing
International Law deeply concerned with the rights of human beings.
From the standpoint of the decision in the Colombian-Peruvian Asy-
lum case, however, it can hardly be denied that when the Court estab-
lished that Colombia, as the State granting asylum, did not have the
right to qualify the offence, the Court was simply saying that the
doctrine of asylum had, for all practical purposes, come to an end.
Assuming that the decision implies that in all cases the territorial
State has the right to qualify the offence. then it requires no special
effort to predict that the territorial State will always consider political
refugees as common criminals. If, on the other hand, the Court
merely said that the territorial State can question the qualification
made by the State that grants asylum, then it can be readily seen
that each grant of asylum will give rise to endless litigations and to a
corresponding hardship on the part of the person or persons seeking
refuge. No one can deny that if each grant of asylum takes from
two to three years to decide. as the present case has proved.149 the
148. Id. at 121. Cf. Garcia-Mora. The Calvo Clause in Latin American Constitu-
tions and International Law. 33 MARQ. L. REv. 205 (1950).
149. It will be recalled that despite the fact that the Court took so long in deciding
this case. the litigation between Colombia and Peru continues just as vehement and
bitter as it was before the case went to the Court. See note 21 supra.
person or persons involved would be deprived of the opportunity to
enjoy their fundamental rights in the State which is willing to protect
them. Whatever the meaning of the decision might be, one thing at
least appears certain: the violence which quite often accompanies the
establishment of revolutionary and dictatorial regimes will be con-
summated apparently within the framework of the doctrine laid down
by the Court. This in turn will give an apparent legality to all the
acts, no matter how inhuman and ruthless, of revolutionary and
tyrannical governments. It will also deprive other States of their
right to intercede on behalf of persons persecuted by revolutionary and
dictatorial authorities. It should be clear that in an interdependent
world'50 the responsibilities of a government are not necessarily con-
fined within the physical boundaries of the State, but must of neces-
sity transcend these artificially erected barriers in an effort to suppress
offences against humanity everywhere.'5' The rationale of this doc-
trine can be found in the community of interests which underlies the
conduct of States in the world society. Indeed, that fundamental doc-
trine was already expressed by Grotius more than three hundred years
ago when he said:
. . . kings, and those who possess rights equal to those kings, have the
right of demanding punishment not only on account of injuries com-
mitted against themselves or their subjects, but also on account of
injuries which do not directly affect them but excessively violate the
law of nature or of nations in regard to any person whatsoever.'52
And further down, speaking of tyrants, Grotius clearly stated that
if a tyrant
. . . should inflict upon his subjects such treatment as no one is war-
ranted in inflicting, the exercise of the right vested in human society
is not precluded . . . In conformity with this principle Constantine
took up arms against Maxentius and Licinius, and other Roman em-
perors either took up arms against the Persians, or threatened to do
so, unless these should check their persecutions of the Christians on
account of religion . . . If, further, it should be granted that even in
150. This interdependence is developed in McDougal, supra note 54.
151. Garcia-Amador, supra note 129, at 49, 55-57. See also the note which the
Uruguayan Foreign Minister sent to the American Secretary of State in 1945, note 130
supra.
152. GROTIUS, op. cit. supra note 26, at bk. II c. XX ? XL (1).
extreme need subjects cannot justifiably take up arms . . neverthe-
less it will not follow that others may not take up arms on their be-
half . . . Hence . .. I may make war upon one who is not one of my
people but oppresses his own, as we said when dealing with the in-
fliction of punishment; a procedure which is often connected with
the protection of innocent persons.153
Thus said the man who has been commonly regarded as "the father
of International Law." Although perhaps the course of action sug-
gested by Grotius is of a more drastic character in that he advocated
the waging of war against a tyrant that oppresses his subjects, never-
theless it is a clear indication of the responsibilities of governments
in the interdependent world community of nations. In answer to
this view the Court would probably say that the intercession of for-
eign States amounts to a flagrant violation of the "firmly established
tradition of non-intervention."'54 It is indeed no irony that at a time
when human rights and fundamental freedoms are the target of at-
tacks in many parts of the world, the International Court of Justice
would reach a decision which literally means that aggressions upon
human rights by revolutionary and dictatorial governments are of no
concern whatever to foreign States. It is quite possible that a doc-
trine stated in such absolute terms would be "a stimulus to rather than
a check upon barbarity."'55
Finally, it is relevant and perhaps safe to contend that the Court
seems to have maintained a misconception with respect to the real
nature of the doctrine of asylum. This misapprehension of the Court
is best expressed in the paragraph of the decision that said:
In principle, therefore, asylum cannot be opposed to the operation
of justice. An exception to this rule 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
153. Id. at bk. II c. XXV ? VIII (2, 4). This humanitarian intervention has also
been suggested by WHEATON, op. cit. supra note 62, at ?? 69, 70. However, Vattel in
answering Grotius' views argued against taking up arms to protect other peoples from
oppression. See, VATTEL, op. cit. supra note 35, at bk. II c. I ? 7.
154. I.C.J. REPORTS 285 (1950) passim.
155. Borrowed from LAuTERPACHT, RECOGNITION IN INTERNATIONAL LAW 107 (1947).
Professor Lauterpacht uses this phrase in another connection.
character which a government might take or attempt to take against
its political opponents . .. .[T]he 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 . . . 156
The entire paragraph is built upon a subtle fallacy. If it is ad-
mitted as a fundamental premise that asylum may be granted on human-
itarian grounds, that asylum protects the individual when the admin-
istration of justice of a particular country is colored by political pas-
sion, then it must be logically concluded that asylum upholds the
principles of justice precisely by preventing arbitrary action from
substituting the rule of law.'57 It has already been mentioned that
the Universal Declaration of Human Rights guarantees to everyone
the right to a fair and public hearing, and imposes restrictions on
arbitrary arrest, detention or exile.'58 These guarantees and others
would be utterly nil unless the individual can count on means of
enforcement other than those provided by his own government.
Therefore, when a diplomatic representative grants asylum to a polit-
ical offender, the diplomatic representative is not obstructing the ap-
plication of the laws of the country to which he is accredited, as the
Court implied, but he is merely offering the political offender the
protection of International Law, since the national law has failed to
provide adequate safeguards for the enjoyment of basic individual
rights. For this reason, asylum can be properly characterized as a
moral reaction of foreign governments against the ruthless suppression
of political opponents and the lack of respect for human dignity on
the part of revolutionary and dictatorial regimes. When in the
present case the World Court refused to give validity to the asylum
granted by the Colombian Government to a national of Peru, the
Court actually failed to take into account the sense of humanity and
decency which underlies the institution of asylum. There is no doubt
that from the standpoint of the individual, asylum is the onlv check
upon the ruthless use of force quite common whenever there is a
156. I.C.J. REPORTS 284 (1950).
157. In this case, as noted previously, the diplomatic agent is actually enforcing
human rights and fundamental freedoms for all.
158. UNIVERSAL DECLARATION OF HUMAN RIGHTS Arts. 9 and 10.
violent change of political authority. We are often told that under a
"new look"',159 International Law is applicable to individuals and that
the latter can find protection under a modem law of nations that
recognizes them as its paramount subjects.'" But if the establish-
ment of protections for the individual directly under International
Law is considered as the most important achievement of the modern
law of nations,161 one would be justified in taking issue with this view
on the ground that the decision of the World Court in the Colombian-
Peruvian Asylum case cannot be regarded as a satisfactory evidence of
that alleged development in the international jurisprudence. If the
decision is a statement of a definite rule of law which says that the
State granting asylum cannot qualify the offence, one can imagine
what would happen to the Russian citizens, who, seeking protection
against the arbitrary actions of the Soviet Government, ask for asylum
to foreign embassies in Moscow.162 One may carefully examine fur-
ther the practical operation of the Court's decision solely in the light
of that simple hypothetical case.
IV. CONCLUSION
The inadequacy of the Court's decision becomes even more evident
when one realizes that, after nearly three years of arguments before
the Court, the asylum controversy between Colombia and Peru still
continues.163 It seems as if the Court labored on the theory that dif-
ficulties in answering questions may serve as an excuse for the failure to
give a clear-cut answer. And yet the true function of the 'World
Court is to decide disputes between States,164 if one is to adhere to
159. Borrowed from Hudson, Book Review, 42 AM. J. INT'L L. 513 (1948).
160. JESSUP, op. cit. supra note 32, at 17; LAUTERPACHT, INTERNATIONAL LAW AND
HUMAN RIGHTS 71 (1950); DICKINSON, CASES AND OTHER MATERIALS ON INTERNATIONAL
LAW 717-729 (1950); McDougal and Leighton, supra note 54, at 509-510.
161. JESSUP, op. cit. supra note 32, at c. II; AmERIcANo, THE NEW FOUNDATION OF
INTERNATIONAL LAW 13 (1947).
162. As the Colombian Ambassador suggested, "Can you imagine what would have
happened if Trotsky had sought refuge in the French Embassy in Moscow?". Cited in
N.Y. Times, Nov. 21, 1950, p. 1, col. 6.
164. Case of Serbian Loans, HUDSON, THE WORLD COURT 1921-1938, at 120 (1938); 1
SCHWARZENBERGER, Op. cit. supra note 62, at 389. Also the Statute of the Court pro-
vides in Article 38 that the function of the Court is "to decide in accordance with
international law such disputes as are submitted to it." For full text of Article 38 of
the Statute of the Court, see note 69 supra.
the traditional doctrine. Strangely enough, for an opinion which was
designed to clarify contradictory issues, the Court left these issues
worse confounded.165 From the content of the opinion it would
seem that had the case arisen between Colombia and a party to the
Montevideo Convention of 1933, a different decision would have been
reached, simply because the Court based the question of qualification
of the offence entirely on the fact that Peru, though a signatory to
that Convention, never ratified it. The fact that the Convention in
reality codified the existing Latin American practice in accordance with
the moral sense of the peoples concerned was of no consequence
whatsoever to the Court. Indeed, this case affords a practical illustra-
tion of the proposition that legal ideas alone are not sufficient to
solve controversies between States,166 especially when fundamental
questions of human rights and values are deeply involved. In addi-
tion, it has become indubitably clear that the many difficulties con-
cerning the protection of human rights cannot be adequately solved by
resorting to specious arguments which are likely to convey the im-
pression that the Court was purposely avoiding a decision on the
issues thereby neglecting to discharge properly its function within
the United Nations system.167
The practical result of the decision is glaringly obvious. The
Colombian-Peruvian Asylum decision has actually aggravated the
existing plight of Latin American political offenders,'68 or for that
matter, of all the political refugees who at the present time are
desperately seeking asylum from the ruthless persecution of their
government.'69 The World Court has in reality served notice that
to such refugees, asylum can be legally granted only if certain re-
166. For another controversy which is said to illustrate the same proposition, see
CORuBErT, op. cit. supra 54, at 128.
167. Cf. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 237 (1950).
168. For a similar case which arose recently in Latin America, see 1 ANNALS OF TE
ORGANIZATION OF AMERICAN STATES 216-217 (1949). For comments on this case, see
Garclia-Mora, The Law of the Inter-American Treaty of Reciprocal Assistance, 20 FoRD.
L. REV. 1, 21 (1951).
169. Almost every day one can see reports in the newspapers with respect to people
who leave the countries behind the Iron Curtain and seek asylum in other countries.
Although this is a matter of territorial asylum, it can be contended that under the
Court's ruling the States of which these refugees are nationals can qualify them as
common criminals thereby putting an end to the asylum granted. This is only one
of the repercussions of the Court's ruling.
quirements are met, above all, if the territorial State considers them as
political offenders.'70 From this standpoint, the language of the de-
cision unmistakably pronounced a death sentence upon the institution
of asylum. Enough has already been said to prove the proposition that
the institution of asylum is essential in times of revolution and in the
presence of dictatorial governments in order to protect vital rights
of man. For this reason, it is hoped that the World Court will find
a new opportunity to reconsider its judgment thereby restoring to
the institution of asylum the highly moral function for which it was
originally designed. In so doing, the Court will simply give practical
application to the hopes and aspirations of the peoples of the world.
170. Strangely enough, the Court ruled that Haya de la Torre was not a common
criminal as Peru had contended. The Court based this ruling on the fact that the
Government of Peru did not establish that military rebellion in itself constituted a
common crime. I.C.J. REPORTS 282 (1950).

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The Colombian-Peruvian Asylum Case and the Doctrine of Human Rights

Authors(s): Manuel R. Garca-Mora

AND THE DOCTRINE OF HUMAN RIGHTS*

A SIDE from the field of recognition, there is perhaps no other

problem of International Law more disputed and more mis-

understood than the doctrine of asylum.' That explains why, when

Colombia and Peru decided to resort to the International Court of

Justice for a decision on their asylum controversy, a hope arose among

World Court would put an end to long-standing controversies and

conflicting interpretations on the subject. However, when on No-

a feeling seemed to have prevailed that the original confusion with

respect to asylum had become even more confounded.3 The same

were momentous ones, which involve important problems of both

inter-American law and general International Law. Yet there is an

Peruvian Asylum case will be more readily understood if we examine

first the core of underlying fact.

*I wish to acknowledge my great debt to Professor William W. Bishop, Jr. of the

judgments of the International Court of Justice in the Colombian-Peruvian Asylum case

long before copies of these decisions became available in this country.

Detroit. Contributor to law journals and scientific periodicals.

1. Ulloa, El Asilo Diplomatico, INTER-AMER. JURID. Y.B. 1949, at 40 (1950).

International Law, 45 AM. J. INT'L L. 179 (1951).

4. I.C.J. REPoRS 71 (195 1).

5. N.Y. Times, Nov. 20, 1950, p. 14, col. 2.

I. THE FACTS AND THE DECISION

On October 3, 1948, a rebellion broke out in Peru. On October

4, the President of the Republic issued a decree placing the responsi-

bility for this rebellion on the American People's Revolutionary Party.6

On October 11, judicial proceedings were instituted against the head

crime of military rebellion with which they were charged. The

arrest of the persons denounced in the indictment was ordered ac-

cordingly. On January 3, 1949, Haya de la Torre sought and ob-

tained asylum in the Colombian Embassy in Lima, Peru. Immediately

thereafter the Colombian Ambassador requested a safe-conduct from

the Peruvian Government for the departure of Haya de la Torre from

Peruvian territory.7 A note8 sent by the Colombian Ambassador to

initiely stated that the Government of Colombia had qualified Haya

de la Torre as a political offender in accordance with Article 2 of the

Montevideo Convention on Political Asylum signed in 1933.9 As the

Government of Peru refused to grant a safe-conduct for the departure

of Haya de la Torre on the ground that he was a common criminal

not entitled to asylum, a diplomatic controversy arose, which led to

the signing of the "Act of Lima."10 According to this Act, the

Governments of Colombia and Peru agreed to refer the dispute to

the International Court of Justice and to submit their applications

unilaterally to the Court, without this action being regarded as an

unfriendly act toward one another.1"

6. This party is popularly known as the "Aprista Party".

and Public Worship, January 3, 1949. I.C.J. REPORTS 273 (1950).

9. Article 2 of the Montevideo Convention on Political Asylum says: "The judg-

Supp. 1933-1940, at 116 (1940); 6 HUDSON, INTERNATIONAL LEGISLATION 607 (1937). It

including Colombia and Peru, nevertheless Peru failed to ratify it.

The Colombian Government presented two submissions asking the

Court to adjudge and declare:

I. That the Republic of Colombia, as the country granting asylum,

is competent to qualify the offence for the purpose of said asylum,

within the limits of the obligations resulting in particular from the

Bolivarian Agreement on Extradition of July 18th, 1911,12 and the

Convention on Asylum of February 20th, 1928,13 and of American

International Law in general.

II. That the Republic of Peru, as the territorial State, is bound

for the departure of M. Victor Rauil Haya de la Torre from the

country, with due respect to the inviolability of his person.14

On the other hand, the Government of Peru asked the Court to