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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,


liberty, property without due process and equal protection of the laws.
Marcos vs Manglapus They also said that it deprives them of their right to travel which according
G.R. No. 88211, September 15, 1989 to Section 6, Article 3 of the constitution, may only be impaired by a court
order.
Marcos, petitioner
Issue:
VS.
Manglapus, respondent (Part 1) 1. Whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from
Facts:
returning to the Philippines.
Former President Ferdinand E. Marcos was deposed from the presidency 2. Whether or not the President acted arbitrarily or with grave abuse
via the non-violent “people power” revolution and was forced into exile. of discretion amounting to lack or excess of jurisdiction when she
Marcos, in his deathbed, has signified his wish to return to the Philippines determined that the return of the Marcoses to the Philippines
to die. But President Corazon Aquino, considering the dire consequences poses a serious threat to national interest and welfare and
to the nation of his return at a time when the stability of government is decided to bar their return.
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 Decision:
of Marcos and his family.
No to both issues. Petition dismissed.
Aquino barred Marcos from returning due to possible threats & following
supervening events: Ratio:
Separation of power dictates that each department has exclusive powers.
1. failed Manila Hotel coup in 1986 led by Marcos leaders According to Section 1, Article VII of the 1987 Philippine Constitution,
2. channel 7 taken over by rebels & loyalists “the executive power shall be vested in the President of the Philippines.”
3. plan of Marcoses to return w/ mercenaries aboard a chartered However, it does not define what is meant by “executive power” although
plane of a Lebanese arms dealer. This is to prove that they can in the same article it touches on exercise of certain powers by the
stir trouble from afar President, i.e., the power of control over all executive departments,
4. Honasan’s failed coup bureaus and offices, the power to execute the laws, the appointing power
5. Communist insurgency movements to grant reprieves, commutations and pardons… (art VII secfs. 14-23).
6. secessionist movements in Mindanao Although the constitution outlines tasks of the president, this list is not
7. devastated economy because of defined & exclusive. She has residual & discretionary powers not stated
in the Constitution which include the power to protect the general welfare
1. accumulated foreign debt of the people. She is obliged to protect the people, promote their welfare
2. plunder of nation by Marcos & cronies & advance national interest. (Art. II, Sec. 4-5 of the Constitution).
Residual powers, according to Theodore Roosevelt, dictate that the
Marcos filed for a petition of mandamus and prohibition to order the President can do anything which is not forbidden in the Constitution
respondents to issue them their travel documents and prevent the (Corwin, supra at 153), inevitable to vest discretionary powers on the
implementation of President Aquino’s decision to bar Marcos from President (Hyman, American President) and that the president has to
returning in the Philippines. Petitioner questions Aquino’s power to bar maintain peace during times of emergency but also on the day-to-day
his return in the country. He also questioned the claim of the President operation of the State.
that the decision was made in the interest of national security, public The rights Marcoses are invoking are not absolute. They’re flexible
safety and health. Petitioner also claimed that the President acted depending on the circumstances. The request of the Marcoses to be
outside her jurisdiction. allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and (2) In this specific case, was Peru, as the territorial State, bound to give a guarantee
the right to travel, subject to certain exceptions, or of case law which of safe passage?
clearly never contemplated situations even remotely similar to the present (3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
one. It must be treated as a matter that is appropriately addressed to (hereinafter called the Havana Convention) when it granted asylum and is
those residual unstated powers of the President which are implicit in and the continued maintenance of asylum a violation of the treaty?
correlative to the paramount duty residing in that office to safeguard and The Court’s Decision:
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 Relevant Findings of the Court:
to determine whether it must be granted or denied. (1) Is Colombia competent, as the country that grants asylum, to
unilaterally qualify the offence for the purpose of asylum under treaty
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 law and international law?
the national interest to bar the return of the Marcoses in the Philippines. It 1. The court stated that in the normal course of granting diplomatic asylum a
is proven that there are factual bases in her decision. The supervening diplomatic representative has the competence to make a provisional qualification
events that happened before her decision are factual. The President of the offence (for example, as a political offence) and the territorial State has the
must take preemptive measures for the self-preservation of the country & right to give consent to this qualification. In the Torre’s case, Colombia has
protection of the people. She has to uphold the Constitution. 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
Haya De La Torre particular the Havana Convention of 1928 and the Montevideo Convention of
Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and 1933), other principles of international law or by way of regional or local custom.
Court: ICJ. 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
Overview:
Convention or relevant principles of international law (p. 12, 13). The Montevideo
Colombia granted asylum to a Peruvian, accused of taking part in a military
Convention of 1933, which accepts the right of unilateral qualification, and on
rebellion in Peru. Was Colombia entitled to make a unilateral and definitive
which Colombia relied to justify its unilateral qualification, was not ratified by Peru.
qualification of the offence (as a political offence) in a manner binding on Peru and
The Convention, per say, was not binding on Peru and considering the low numbers
was Peru was under a legal obligation to provide safe passage for the Peruvian to
of ratifications the provisions of the latter Convention cannot be said to reflect
leave Peru?
customary international law (p. 15).
Facts of the Case: 3. Colombia also argued that regional or local customs support the qualification.
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the The court held that the burden of proof on the existence of an alleged customary
crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months law rests with the party making the allegation:
after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The “The Party which relies on a custom of this kind must prove that this custom is
Colombian Ambassador confirmed that Torre was granted diplomatic asylum in established in such a manner that it has become binding on the other Party… (that)
accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and it is in accordance with a (1) constant and uniform usage (2) practiced by the States
requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also in question, and that this usage is (3) the expression of a right appertaining to the
stated Colombia had qualified Torre as a political refugee in accordance with Article State granting asylum (Colombia) and (4) a duty incumbent on the territorial State
2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not (in this case, Peru). This follows from Article 38 of the Statute of the Court, which
the same as the Refugee Convention of 1951). Peru refused to accept the unilateral refers to international custom “as evidence of a general practice accepted as
qualification and refused to grant safe passage. law(text in brackets added).”
Questions before the Court: 4. The court held that Colombia did not establish the existence of a regional custom
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify because it failed to prove consistent and uniform usage of the alleged custom by
the offence for the purpose of asylum under treaty law and international law? 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 leave Peru. On the contrary, it contested the legality of asylum granted to him and
fact that a particular State practice was followed because of political expediency refused to grant safe conduct.
and not because of a belief that the said practice is binding on the State by way of a 8. The court looked at the possibility of a customary law emerging from State
legal obligation (opinio juris) is detrimental to the formation of a customary law practice where diplomatic agents have requested and been granted safe passage
(see North Sea Continental Shelf Cases and Lotus Case for more on opinio 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
juris):
expediency and other practice considerations over an existence of a belief that the
“[T]he Colombian Government has referred to a large number of particular cases in
act amounts to a legal obligation (see paragraph 4 above).
which diplomatic asylum was in fact granted and respected. But it has not shown
“There exists undoubtedly a practice whereby the diplomatic representative who
that the alleged rule of unilateral and definitive qualification was invoked or … that
grants asylum immediately requests a safe conduct without awaiting a request from
it was, apart from conventional stipulations, exercised by the States granting asylum
the territorial state for the departure of the refugee…but this practice does not and
as a right appertaining to them and respected by the territorial States as a duty
cannot mean that the State, to whom such a request for safe-conduct has been
incumbent on them and not merely for reasons of political expediency. The facts
addressed, is legally bound to accede to it.”
brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic (3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention
asylum and in the official views expressed on various occasions, there has been so when it granted asylum and is the continued maintenance of asylum a
much inconsistency in the rapid succession of conventions on asylum, ratified by violation of the treaty?
some States and rejected by others, and the practice has been so much influenced 9. Article 1 of the Havana Convention states that “It is not permissible for States to
by considerations of political expediency in the various cases, that it is not possible grant asylum… to persons accused or condemned for common crimes… (such
to discern in all this any constant and uniform usage, mutually accepted as law, with persons) shall be surrendered upon request of the local government.”
regard to the alleged rule of unilateral and definitive qualification of the offence.” 10. In other words, the person-seeking asylum must not be accused of a common
5. The court held that even if Colombia could prove that such a regional custom crime (for example, murder would constitute a common crime, while a political
existed, it would not be binding on Peru, because Peru “far from having by its offence would not).The accusations that are relevant are those made before the
attitude adhered to it, has, on the contrary, repudiated it by refraining 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
from ratifying the Montevideo Conventions of 1933 and 1939, which
complied with Article 1 of the Convention.
were the first to include a rule concerning the qualification of the 11. Article 2 (2) of the Havana Convention states that “Asylum granted to political
offence [as “political” in nature] in matters of diplomatic asylum.” (See offenders in legations, warships, military camps or military aircraft, shall be
in this regard, the lesson on persistent objectors. Similarly in the North Sea 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
Continental Shelf Cases the court held ‘in any event the . . . rule would appear
granted and in accordance with the following provisions: First: Asylum may not be
to be inapplicable as against Norway in as much as she had always opposed any
granted except in urgent cases and for the period of time strictly indispensable for
attempt to apply it to the Norwegian coast’.)
the person who has sought asylum to ensure in some other way his safety.”
6. The court concluded that Colombia, as the State granting asylum, is not
12. An essential pre-requisite for the granting of asylum is the urgency or, in other
competent to qualify the offence by a unilateral and definitive decision, binding on
words, the presence of “an imminent or persistence of a danger for the person of
Peru.
the refugee”. The court held that the facts of the case, including the 3 months that
(2) In this specific case, was Peru, as the territorial State, bound to passed between the rebellion and the time when asylum was sought, did not
give a guarantee of safe passage? establish the urgency criteria in this case (pp. 20 -23). The court held:
7. The court held that there was no legal obligation on Peru to grant safe passage “In principle, it is inconceivable that the Havana Convention could have intended the
either because of the Havana Convention or customary law. In the case of the term “urgent cases” to include the danger of regular prosecution to which the
Havana Convention, a plain reading of Article 2 results in an obligation on the citizens of any country lay themselves open by attacking the institutions of that
territorial state (Peru) to grant safe passage only after it requests the asylum country… In principle, asylum cannot be opposed to the operation of justice.”
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
13. In other words, Torre was accused of a crime but he could not be tried in a court Justice. The ICJ recognised that the scope of Article 38 of the Statute of
because Colombia granted him asylum. The court held that “protection from the the International Court of Justice encompassed bi-lateral and regional
operation of regular legal proceedings” was not justified under diplomatic asylum. international customary norms as well as general customary norms, in
14. The court held: much the same way as it encompasses bilateral and multilateral
“In the case of diplomatic asylum the refugee is within the territory of the State. A treaties.[1] The Court also clarified that for custom to be definitively
decision to grant diplomatic asylum involves a derogation from the sovereignty of proven, it must be continuously and uniformly executed.
that State. It withdraws the offender from the jurisdiction of the territorial State and Facts
constitutes an intervention in matters which are exclusively within the competence The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de
of that State. Such a derogation from territorial sovereignty cannot be recognised la Torre, head of the American People's Revolutionary Alliance sanctuary
unless its legal basis is established in each particular case.” after his faction lost a one-day civil war in Peru on 3 October 1949. The
15. As a result, exceptions to this rule are strictly regulated under international law. Colombian government granted him asylum, but the Peruvian
An exception to this rule (asylum should not be granted to those facing regular government refused to grant him safe passage out of Peru.
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted Colombia maintained that according to the Conventions in force -
for the rule of law. Such would be the case if the administration of justice were the Bolivian Agreement of 1911 on Extradition, the Havana Convention of
corrupted by measures clearly prompted by political aims. Asylum protects the 1928 on Asylum, the Montevideo Convention of 1933 on Political
political offender against any measures of a manifestly extra-legal character which Asylum[2] - and according to American International Law, they were
a Government might take or attempt to take against its political opponents… On the entitled to decide if asylum should be granted and their unilateral decision
other hand, the safety which arises out of asylum cannot be construed as a on this was binding on Peru.[3]
protection against the regular application of the laws and against the jurisdiction of Judgment[edit]
legally constituted tribunals. Protection thus understood would authorize the Both submissions of Colombia were rejected by the Court. The relevant
diplomatic agent to obstruct the application of the laws of the country whereas it is treaties cited by Colombia were not ratified by Peru, and it was not found
his duty to respect them… Such a conception, moreover, would come into conflict that the custom of Asylum was uniformly or continuously executed
with one of the most firmly established traditions of Latin-America, namely, non- sufficiently to demonstrate that the custom was of a generally applicable
intervention [for example, by Colombia into the internal affairs of another State like character.
Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political prisoners in:
against the violent and disorderly action of irresponsible sections of the International law, International Court of Justice cases, Customary law, Sources of
international law
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. Asylum Case (Colombia v Peru)
17. The court concluded that the grant of asylum and reasons for its prolongation EDIT
were not in conformity with Article 2(2) of the Havana Convention (p. 25). COMMENTS SHARE
“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 Asylum Case (Colombia v Peru)
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
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