CHR Finals case digests Manglapus-Haya Dela Torre According to the Marcoses, such act deprives them of their
ch act deprives them of their right to life,
Marcos vs Manglapus
G.R. No. 88211, September 15, 1989
Marcos, petitioner
VS.
Manglapus, respondent (Part 1)
Facts:
Former President Ferdinand E. Marcos was deposed from the presidency
via the non-violent “people power” revolution and was forced into exile.
Marcos, in his deathbed, has signified his wish to return to the Philippines
to die. But President Corazon Aquino, considering the dire consequences
to the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to
rise and move forward, has stood firmly on the decision to bar the return
of Marcos and his family.
Aquino barred Marcos from returning due to possible threats & following
supervening events:
1. failed Manila Hotel coup in 1986 led by Marcos leaders
2. channel 7 taken over by rebels & loyalists
3. plan of Marcoses to return w/ mercenaries aboard a chartered
plane of a Lebanese arms dealer. This is to prove that they can
stir trouble from afar
4. Honasan’s failed coup
5. Communist insurgency movements
6. secessionist movements in Mindanao
7. devastated economy because of
1. accumulated foreign debt
2. plunder of nation by Marcos & cronies
Marcos filed for a petition of mandamus and prohibition to order the
respondents to issue them their travel documents and prevent the
implementation of President Aquino’s decision to bar Marcos from
returning in the Philippines. Petitioner questions Aquino’s power to bar
his return in the country. He also questioned the claim of the President
that the decision was made in the interest of national security, public
safety and health. Petitioner also claimed that the President acted
outside her jurisdiction.
liberty, property without due process and equal protection of the laws.
They also said that it deprives them of their right to travel which according
to Section 6, Article 3 of the constitution, may only be impaired by a court
order.
Issue:
1. Whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from
returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave abuse
of discretion amounting to lack or excess of jurisdiction when she
determined that the return of the Marcoses to the Philippines
poses a serious threat to national interest and welfare and
decided to bar their return.
Decision:
No to both issues. Petition dismissed.
Ratio:
Separation of power dictates that each department has exclusive powers.
According to Section 1, Article VII of the 1987 Philippine Constitution,
“the executive power shall be vested in the President of the Philippines.”
However, it does not define what is meant by “executive power” although
in the same article it touches on exercise of certain powers by the
President, i.e., the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power
to grant reprieves, commutations and pardons… (art VII secfs. 14-23).
Although the constitution outlines tasks of the president, this list is not
defined & exclusive. She has residual & discretionary powers not stated
in the Constitution which include the power to protect the general welfare
of the people. She is obliged to protect the people, promote their welfare
& advance national interest. (Art. II, Sec. 4-5 of the Constitution).
Residual powers, according to Theodore Roosevelt, dictate that the
President can do anything which is not forbidden in the Constitution
(Corwin, supra at 153), inevitable to vest discretionary powers on the
President (Hyman, American President) and that the president has to
maintain peace during times of emergency but also on the day-to-day
operation of the State.
The rights Marcoses are invoking are not absolute. They’re flexible
depending on the circumstances. The request of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and
the right to travel, subject to certain exceptions, or of case law which
clearly never contemplated situations even remotely similar to the present
one. It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and
protect general welfare. In that context, such request or demand should
submit to the exercise of a broader discretion on the part of the President
to determine whether it must be granted or denied.
For issue number 2, the question for the court to determine is whether or
not there exist factual basis for the President to conclude that it was in
the national interest to bar the return of the Marcoses in the Philippines. It
is proven that there are factual bases in her decision. The supervening
events that happened before her decision are factual. The President
must take preemptive measures for the self-preservation of the country &
protection of the people. She has to uphold the Constitution.
Haya De La Torre
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.
Asylum case
Colombia v Peru [1950] ICJ 6 (also known as the Asylum Case) is
a public international law case, decided by the International Court of
Justice. The ICJ recognised that the scope of Article 38 of the Statute of
the International Court of Justice encompassed bi-lateral and regional
international customary norms as well as general customary norms, in
much the same way as it encompasses bilateral and multilateral
treaties.[1] The Court also clarified that for custom to be definitively
proven, it must be continuously and uniformly executed.
Facts
The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de
la Torre, head of the American People's Revolutionary Alliance sanctuary
after his faction lost a one-day civil war in Peru on 3 October 1949. The
Colombian government granted him asylum, but the Peruvian
government refused to grant him safe passage out of Peru.
Colombia maintained that according to the Conventions in force -
the Bolivian Agreement of 1911 on Extradition, the Havana Convention of
1928 on Asylum, the Montevideo Convention of 1933 on Political
Asylum[2] - and according to American International Law, they were
entitled to decide if asylum should be granted and their unilateral decision
on this was binding on Peru.[3]
Judgment[edit]
Both submissions of Colombia were rejected by the Court. The relevant
treaties cited by Colombia were not ratified by Peru, and it was not found
that the custom of Asylum was uniformly or continuously executed
sufficiently to demonstrate that the custom was of a generally applicable
character.
in:
International law, International Court of Justice cases, Customary law, Sources of
international law
Asylum Case (Colombia v Peru)
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Asylum Case (Colombia v Peru)
 Can the Colombian government offer asylum under local custom?

Decision Edit
No such local custom exists sufficient to be binding at international law.

Reasons Edit
The Court held that the party which relies on a custom of this kind has the
burden of establishing that the custom exists in such a way that it has become
binding on the other party, through constant and uniform usage of the states.
On the facts, very few states had ratified the conventions which Colombia relied
on and there was significant discrepancy in the practice of asylum. Because of
this, the Court was unable to find a custom which met the standard in the North
Sea Continental Shelf case.

Citation
Asylum Case (Colombia v Peru), [1950] ICJ Rep 266 at 276-78
Plaintiff
Columbia
Defendant
Peru
Year
1950
Court
International Court of Justice
Judges
President Basdevant, Vice-President Guerro, Judges Alvarez, Hackworth, Wixiarski, Zorieic, de
Visscher, Klaestad, Badawi Pacha, Mrylov, Read, Hsu Mo, Azevedo, and Sir Arnold McNair,
and Judges ad hoc Alayza y Paz Soldan, Caicedo Castilla, and Garnier-Coign
Area of law
Customary law, Sources of international law
Issue
What constitutes sufficient state practice for the establishment of local custom?

Contents
[show]

Facts Edit
The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre,
in its embassy. It claimed it had a right to do this both under agreements
between the states and in a local custom in the Latin American states.

Issue Edit