8/22/2019 Asylum Case (Summary) | Public International law

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Asylum Case (Summary)

© Ruwanthika Gunaratne and Public International Law at h ps://ruwanthikagunaratne.wordpress.com,

2008 – present. Unauthorized use and/or duplication of this material without express and wri en
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
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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?

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(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
la er 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
(h ps://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-
summary/)and Lotus Case (h ps://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-
summary/) for more on opinio juris (h ps://ruwanthikagunaratne.wordpress.com/tag/what-is-opinio-
juris/)):

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“[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 a itude 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 ma ers of diplomatic asylum.” (See in this
regard, the lesson on persistent objectors
(h p:h ps://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-5-effects-of-persistent-objection-
to-a-cil-rule///). Similarly in the North Sea Continental Shelf Cases
(h ps://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-
summary/) 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 a empt 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?

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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 a acking
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 ma ers 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
a empt 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]….

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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 a ack
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

(h ps://openaccess.leidenuniv.nl/bitstream/handle/1887/16699/04.pdf?sequence=12), 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 h ps://ruwanthikagunaratne.wordpress.com,

2008 – present. Unauthorized use and/or duplication of this material without express and wri en
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.

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