Asylum Case

Asylum Case (Summary)

Name of the Case: Asylum Case (Colombia/Peru);
Court: International Court of Justice
Year of the decision: 1950
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?

1
Asylum Case

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).”

2
Asylum Case

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?

3
Asylum Case

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

4
Asylum Case

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

5
 Asylum Case

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.”

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

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

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

• F. Morgenstern, ‘‘Extra-Territorial’ Asylum’, 25 BYIL (1948)
• F. Morgenstern, ‘Diplomatic Asylum’, 67 The Law Quarterly Review (1951)
© Ruwanthika Gunaratne and Public International Law
at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use
and/or duplication of this material without express and written permission from this
blog’s author and/or owner is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika Gunaratne and Public
International Law with appropriate and specific direction to the original content.