Public International law An introduction to public international law for students
Asylum Case (Summary) © Ruwanthika Gunaratne and Public International Lawat https://ruwanthikagu https://ruwanthika gu 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 prohibited. Excerpts and links may be used, provided that full and clear credit is gi giv ven to Ru Ruwa wan nthik thikaa Gu Guna nara ratn tnee and and Pub Public lic Inte Intern rnat atio ion nal Law Law wi with th appropriate and speci�c direction to the original content. Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ. Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled to make a unilateral and de�nitive quali�cation of the oence (as a political oence) 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 ed to the Colombian Embassy in Lima, Peru. The Colombian Ambassador con�rmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asyl Asylum um of 19 1928 28 and and requ reques este ted d safe safe pass passag agee for for Torr Torree to leav leavee Peru Peru.. Subsequently, the Ambassador also stated Colombia had quali�ed Torre as a polit politic ical al refu refuge geee in acco accord rdan ance ce with with Artic Article le 2 Mont Montev evid ideo eo Conv Conven entio tion n 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 quali�cation and refused to grant safe passage. Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the oence for the purpose of asylum under treaty law and international law? (2) In this speci�c 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 o�ence 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 quali�cation of the oence (for example, as a political oence) and the territorial State has the right to give consent to this quali�cation. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the oence in a unilateral and de�nitive 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 de�nitive quali�cation 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 quali�cation, and on which Colombia relied to justify its unilateral quali�cation, was not rati�ed by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of rati�cations the provisions of the latter Convention cannot be said to reect customary international law (p. 15). 3. Colombia also argued that regional or local customs support the quali�cation. 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 (Columbia) 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 Columbia 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 uctuations 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 uctuations 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 (https://ruwanthikagunaratne.wordpress.com/2014/02/28/northsea-continental-shelf-cases-summary/)and Lotus Case (https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotuscase-summary/) for more on opinio juris (https://ruwanthikagunaratne.wordpress.com/tag/what-is-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 denitive qualication 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 uctuation and discrepancy in the exercise of diplomatic asylum and in the ocial views expressed on various occasions, there has been so much inconsistency in the rapid succession o conventions on asylum, ratied by some States and rejected by others, and the practice has been so much inuenced 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 o unilateral and denitive qualication of the o�ence.”
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 rst to include a rule concerning the qualication of the o�ence [as “political” in nature] in matters of diplomatic asylum.” ( See in this regard, the lesson on persistent
objectors (http:https://ruwanthikagunaratne.wordpress.com/2011/04 /22/lesson-2-5-eects-of-persistent-objection-to-a-cil-rule///). Similarly in the North Sea Continental Shelf Cases (https://ruwanthikagunaratne.wordpress.com/2014/02/28/northsea-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 attempt to apply it to the Norwegian coast’.) 6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the oence by a unilateral and de�nitive decision, binding on Peru. (2) In this specic 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 (Columbia) 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 ranted 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 oence 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 oenders 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 justi�ed 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 o�ender 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 o justice were corrupted by measures clearly prompted by political aims. Asylum protects the political o�ender 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 conict with one of the most rmly established traditions o Latin-America, namely, non-intervention [for example, by Colombia into the internal a�airs 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 oender). 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).
1. Pingback: Opinio Juris | Public International law 2. garang geng says: March 9, 2014 at 12:08 AM thanks teacher but i don´t understand the �nal judgement and whether Torre was handed to peruvian govt. REPLY 1. Dr. Ruwanthika Gunaratne says: March 9, 2014 at 1:17 AM 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 3. Piyumi Jayasundera says: March 10, 2014 at 10:34 PM 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 4. Pingback: 2.5. Who is a Persistent Objector? (Updated) | Public International law 5. Pingback: Anglo Norwegian Fisheries Case (Summary on Customary International Law) | Public International law 6. msemo john says: December 8, 2014 at 1:44 PM Your summary is eective bt you can generalize hints related to customs as a part of public international law.all in all your material is �ne REPLY 7. Leona Lesikito says: May 28, 2015 at 6:32 PM Great legal insights here, i have learnt so much on the application of treaties and principles of customary international law. REPLY
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