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)