ASYLUM CASE (SUMMARY)

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

Overview:

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

Peru. Was Colombia entitled to make a unilateral and definitive qualification of the offence
(as a political offence) in a manner binding on Peru and was Peru was under a legal
obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

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

Questions before the Court:

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

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

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

The Court’s Decision:

Relevant Findings of the Court:

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

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

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

3. Colombia also argued that regional or local customs support the qualification. The court
held that the burden of proof on the existence of an alleged customary law rests with the
party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established
in such a manner that it has become binding on the other Party… (that) it is in accordance
with a (1) constant and uniform usage (2) practiced by the States in question, and that this
usage is (3) the expression of a right appertaining to the State granting asylum (Colombia)
and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article
38 of the Statute of the Court, which refers to international custom “as evidence of a general
practice accepted as law(text in brackets added).”

4. The court held that Colombia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by relevant
States. The fluctuations and contradictions in State practice did not allow for the uniform
usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of
fluctuations of State practice). The court also reiterated that the fact that a particular State
practice was followed because of political expediency and not because of a belief that the
said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental
to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus
Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged
rule of unilateral and definitive qualification was invoked or … that it was, apart from
conventional stipulations, exercised by the States granting asylum as a right appertaining to
them and respected by the territorial States as a duty incumbent on them and not merely for
reasons of political expediency. The facts brought to the knowledge of the Court disclose so
much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and in the official views expressed on various occasions, there has been
so much inconsistency in the rapid succession of conventions on asylum, ratified by some
States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern
in all this any constant and uniform usage, mutually accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru “far from having by its attitude adhered to it,
has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions
of 1933 and 1939, which were the first to include a rule concerning the qualification of the
offence [as “political” in nature] in matters of diplomatic asylum.” ( See in this regard, the
lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court
held ‘in any event the . . . rule would appear to be inapplicable as against Norway in as
much as she had always opposed any attempt to apply it to the Norwegian coast’.)

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

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

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

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

“There exists undoubtedly a practice whereby the diplomatic representative who grants
asylum immediately requests a safe conduct without awaiting a request from the territorial
state for the departure of the refugee…but this practice does not and cannot mean that the
State, to whom such a request for safe-conduct has been addressed, is legally bound to
accede to it.”

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

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant
asylum… to persons accused or condemned for common crimes… (such persons) shall be
surrendered upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torre’s
accusation related to a military rebellion, which the court concluded was not a common
crime and as such the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders
in legations, warships, military camps or military aircraft, shall be respected to the extent in
which allowed, as a right or through humanitarian toleration, by the usages, the conventions
or the laws of the country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for the period of
time strictly indispensable for the person who has sought asylum to ensure in some other
way his safety.”

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

“In principle, it is inconceivable that the Havana Convention could have intended the term
“urgent cases” to include the danger of regular prosecution to which the citizens of any
country lay themselves open by attacking the institutions of that country… In principle,
asylum cannot be opposed to the operation of justice.”

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

14. The court held:

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

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

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

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against
the violent and disorderly action of irresponsible sections of the population.” (for example
during a mob attack where the territorial State is unable to protect the offender). Torre was
not in such a situation at the time when he sought refuge in the Colombian Embassy at
Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not
in conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and
in consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”

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

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

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

 F. Morgenstern, ‘‘Extra-Territorial’ Asylum’, 25 BYIL (1948)
 F. Morgenstern, ‘Diplomatic Asylum’, 67 The Law Quarterly Review (1951