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
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unilateral qualification and refused to grant safe passage.
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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.”

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
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Dakshinie Ruwanthika Gunaratne March 2, 2014 Cases, Sources

Asylum Case, Colombia vs Peru, formation of customary international law, local custom
Pingback:

thanks teacher but i don´t understand the final judgement and whether Torre was handed to peruvian govt.

Reply

The court did not ask Colombia to hand over Torre to Peru because Peru did not ask the court to make a
declaration requesting Colombia to handover Torre (see page 18 of the case). Parties only requested the Court
to answer the questions set out above. According to this article, Torre stayed in Embassy premises for 5 years.
See http://en.wikipedia.org/wiki/V%C3%ADctor_Ra%C3%BAl_Haya_de_la_Torre

Reply

do you think the judgment of the case was the right one

Reply
This is a really great blog. Thank you for all of the information. I am aspiring to begin my own blog about law,
and this is great inspiration.

Reply

Real great.

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Your summary is effective bt you can generalize hints related to customs as a part of public international law.all in
all your material is fine

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Great legal insights here, i have learnt so much on the application of treaties and principles of customary
international law.

Reply

this case is good law

Reply

I really love this blog.. Thank you very much!

Reply

Enlightening and instructive. Many thanks

Reply
Thank but please I would like to know the principles used by the court in this case, help me.

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awesome thank you!

Reply

This blog is indeed priceless. I remain appreciative of your effort.

Reply
Great work. thank you

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Reply

Wow!this site is real useful

Reply

I am glad it was useful Kevin.

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