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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 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 thecontinued maintenance of asylum a violation of the treaty?

The Courts Decision:

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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
aprovisionalqualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In
the Torres 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 (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 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 (seeNorth Sea Continental Shelf CasesandLotus Case for more onopinio
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 Perufar 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 Columbia, 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 (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 refugeebut this practice does not and cannot mean that the State, to
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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 thecontinued 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.Torres 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 thatAsylum 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:

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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.

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