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Asylum Case (Summary)

Ruwanthika Gunaratne and Public International Law athttps://ruwanthikagunaratn
2008 present. Unauthorized use and/or duplication of this material without
express and written permission from this blogs author and/or owner is strictly
prohibited. Excerpts and links may be used, provided that full and clear credit
is given to Ruwanthika Gunaratne and Public International Law with
appropriate and specic direction to the original content.

Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950;
and Court: ICJ.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military

rebellion in Peru. Was Columbia entitled to make a unilateral and denitive
qualication of the oence (as a political oence) in a manner binding on Peru
and was Peru was under a legal obligation to provide safe passage for the
Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect
of the crime of military rebellion which took place on October 3, 1949, in
Peru. 3 months after the rebellion, Torre ed to the Colombian Embassy in
Lima, Peru. The Colombian Ambassador conrmed that Torre was granted
diplomatic asylum in accordance with Article 2(2) of the Havana Convention
on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualied Torre as a
political refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualication and
refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally
qualify the oence for the purpose of asylum under treaty law and
international law?

(2) In this specic case, was Peru, as the territorial State, bound to give a
guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of
1928 (hereinafter called the Havana Convention) when it granted asylum and
is thecontinued maintenance of asylum a violation of the treaty?

The Courts Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
the oence for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a
diplomatic representative has the competence to make a provisional
qualication of the oence (for example, as a political oence) and the
territorial State has the right to give consent to this qualication. In the Torres
case, Colombia has asserted, as the State granting asylum, that it is competent
to qualify the nature of the oence in a unilateral and denitive manner that is
binding on Peru. The court had to decide if such a decision was binding on
Peru either because of treaty law (in particular the Havana Convention of 1928
and the Montevideo Convention of 1933), other principles of international law
or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and
denitive qualication of the State that grants asylum under the Havana
Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral
qualication, and on which Colombia relied to justify its unilateral
qualication, was not ratied by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratications the
provisions of the latter Convention cannot be said to reect customary
international law (p. 15).

3. Colombia also argued that regional or local customs support the

qualication. The court held that the burden of proof on the existence of an
alleged customary law rests with the party making the allegation:

The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party
(that) it is in accordance with a (1) constant and uniform usage (2) practiced
by the States in question, and that this usage is (3) the expression of a right
appertaining to the State granting asylum (Columbia) and (4) a duty incumbent
on the territorial State (in this case, Peru). This follows from Article 38 of the
Statute of the Court, which refers to international custom as evidence of a
general practice accepted as law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States. The uctuations and contradictions in State practice
did not allow for the uniform usage (see also Mendelson, 1948 and see also
Nicaragua case, p. 98, the legal impact of uctuations of State practice). The
court also reiterated that the fact that a particular State practice was followed
because of political expediency and not because of a belief that the said
practice is binding on the State by way of a legal obligation (opinio juris) is
detrimental to the formation of a customary law (see North Sea Continental
Shelf Cases (https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-
sea-continental-shelf-cases-summary/)and Lotus Case
(https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-
case-summary/) for more on opinio juris
(https://ruwanthikagunaratne.wordpress.com/tag/what-is-opinio-juris/)):

[T]he Colombian Government has referred to a large number of particular cases

in which diplomatic asylum was in fact granted and respected. But it has not
shown that the alleged rule of unilateral and denitive qualication was invoked
or that it was, apart from conventional stipulations, exercised by the States
granting asylum as a right appertaining to them and respected by the territorial
States as a duty incumbent on them and not merely for reasons of political
expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much uctuation and discrepancy in the
exercise of diplomatic asylum and in the ocial views expressed on various
occasions, there has been so much inconsistency in the rapid succession of
conventions on asylum, ratied by some States and rejected by others, and the
practice has been so much inuenced by considerations of political expediency in
the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of
unilateral and denitive qualication of the oence.

5. The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru far from having
by its attitude adhered to it, has, on the contrary, repudiated it by refraining from
ratifying the Montevideo Conventions of 1933 and 1939, which were the rst to
include a rule concerning the qualication of the oence [as political in nature] in
matters of diplomatic asylum. (See in this regard, the lesson on persistent
objectors (http:https://ruwanthikagunaratne.wordpress.com/2011/04
/22/lesson-2-5-eects-of-persistent-objection-to-a-cil-rule///). Similarly in
the North Sea Continental Shelf Cases
(https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-
sea-continental-shelf-cases-summary/)the court heldin any event the . . . rule
would appear to be inapplicable as against Norway in as much as she had
always opposed any attempt to apply it to the Norwegian coast.)

6. The court concluded that Columbia, as the State granting asylum, is not
competent to qualify the oence by a unilateral and denitive decision,
binding on Peru.

(2) In this specic case, was Peru, as the territorial State, bound to give a guarantee
of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe
passage either because of the Havana Convention or customary law. In the case
of the Havana Convention, a plain reading of Article 2 results in an obligation
on the territorial state (Peru) to grant safe passage only after it requests the
asylum granting State (Columbia) to send the person granted asylum outside
its national territory (Peru). In this case the Peruvian government had not
asked that Torre leave Peru. On the contrary, it contested the legality of
asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe
passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a
need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

There exists undoubtedly a practice whereby the diplomatic representative who

grants asylum immediately requests a safe conduct without awaiting a request
from the territorial state for the departure of the refugeebut this practice does
not and cannot mean that the State, to whom such a request for safe-conduct
has been addressed, is legally bound to accede to it.

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it
granted asylum and is the continued maintenance of asylum a violation of the
treaty?

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

States to grant asylum to persons accused or condemned for common
crimes (such persons) shall be surrendered upon request of the local
government.

10. In other words, the person-seeking asylum must not be accused of a

common crime (for example, murder would constitute a common crime, while
a political oence would not).The accusations that are relevant are those made
before the granting of asylum. Torres accusation related to a military
rebellion, which the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states thatAsylum granted to

political oenders in legations, warships, military camps or military aircraft,
shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the
country in which granted and in accordance with the following
provisions:First: Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought asylum to
ensure in some other way his safety.

12. An essential pre-requisite for the granting of asylum is the urgency or, in
other words, the presence of an imminent or persistence of a danger for the
person of the refugee. The court held that the facts of the case, including the 3
months that passed between the rebellion and the time when asylum was
sought, did not establish the urgency criteria in this case (pp. 20 -23). The
court held:

In principle, it is inconceivable that the Havana Convention could have intended

the term urgent cases to include the danger of regular prosecution to which the
citizens of any country lay themselves open by attacking the institutions of that
country In principle, asylum cannot be opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a
court because Colombia grantedhim asylum. The court held that protection
from the operation of regular legal proceedings was not justied under
diplomatic asylum.

14. The court held:

In the case of diplomatic asylum the refugee is within the territory of the State.
A decision to grant diplomatic asylum involves a derogation from the sovereignty
of that State. It withdraws the oender from the jurisdiction of the territorial
State and constitutes an intervention in matters which are exclusively within the
competence of that State. Such a derogation from territorial sovereignty cannot
be recognised unless its legal basis is established in each particular case.

15. As a result, exceptions to this rule are strictly regulated under international
law.

An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is
substituted for the rule of law. Such would be the case if the administration of
justice were corrupted by measures clearly prompted by political aims. Asylum
protects the political oender against any measures of a manifestly extra-legal
character which a Government might take or attempt to take against its political
opponents On the other hand, the safety which arises out of asylum cannot be
construed as a protection against the regular application of the laws and against
the jurisdiction of legally constituted tribunals. Protection thus understood would
authorize the diplomatic agent to obstruct the application of the laws of the
country whereas it is his duty to respect them Such a conception, moreover,
would come into conict with one of the most rmly established traditions of
Latin-America, namely, non-intervention [for example, by Colombia into the
internal aairs of another State like Peru].

16. Asylum may be granted on humanitarian grounds to protect political

prisoners against the violent and disorderly action of irresponsible sections of
the population. (for example during a mob attack where the territorial State is
unable to protect the oender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).
 The grant of asylum is not an instantaneous act which terminates with the
admission, at a given moment of a refugee to an embassy or a legation. Any
grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the refugee
in the embassy prolongs this protection.

NB: The court also discussed the dierence between extradition and granting
of asylum you can read more on this in pp. 12 13 of the judgment. The
discussions on the admissibility of the counter claim of Peru are set out in pp.
18 19.

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

Extraterritorial asylum under internationallaw(https://openaccess.leidenuniv.nl

/bitstream/handle/1887/16699/04.pdf?sequence=12), pp. 115 129.
F. Morgenstern, Extra-Territorial Asylum, 25 BYIL (1948)
F. Morgenstern, Diplomatic Asylum, 67 The Law Quarterly Review (1951)

Ruwanthika Gunaratne and Public International Law athttps://ruwanthikagunaratn

2008 present. Unauthorized use and/or duplication of this material without
express and written permission from this blogs author and/or owner is strictly
prohibited. Excerpts and links may be used, provided that full and clear credit
is given to Ruwanthika Gunaratne and Public International Law with
appropriate and specic direction to the original content.

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Posted in Cases, Sources and tagged Asylum Case, Colombia vs Peru, formation
of customary international law, local custom on March 2, 2014 by Ruwanthika
Gunaratne. 8 Comments

8 comments
1. Pingback: Opinio Juris | Public International law
2. garang geng says:
March 9, 2014 at 12:08 AM
thanks teacher but i dont understand the nal judgement and whether
Torre was handed to peruvian govt.

REPLY
1. Dr. Ruwanthika Gunaratne says:
March 9, 2014 at 1:17 AM
The court did not ask Colombia to hand over Torre to Peru because Peru
did not ask the court to make a declaration requesting Colombia to
handover Torre (see page 18 of the case). Parties only requested the
Court to answer the questions set out above. According to this article,
Torre stayed in Embassy premises for 5 years. See
http://en.wikipedia.org/wiki/V%C3%ADctor_Ra
%C3%BAl_Haya_de_la_Torre

REPLY
3. Piyumi Jayasundera says:
March 10, 2014 at 10:34 PM
This is a really great blog. Thank you for all of the information. I am
aspiring to begin my own blog about law, and this is great inspiration.

REPLY
4. Pingback: 2.5. Who is a Persistent Objector? (Updated) | Public
International law
5. Pingback: Anglo Norwegian Fisheries Case (Summary on Customary
International Law) | Public International law
6. msemo john says:
December 8, 2014 at 1:44 PM
Your summary is eective bt you can generalize hints related to customs as
a part of public international law.all in all your material is ne

REPLY
7. Leona Lesikito says:
May 28, 2015 at 6:32 PM
Great legal insights here, i have learnt so much on the application of
treaties and principles of customary international law.

REPLY

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