convention.
Facts
Victor Raul Haya de la Torre was a Peruvian national. In Oct 3 rd, 1948 one military
rebellion broke out in Peru which is organized and directed by the American People’s
Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The
Peruvian Government issued a warrant for his arrest on criminal charges related to
this political uprising. He fled to the Columbian embassy in Lima seeking for asylum
from them. Columbia the requested permission from Peru for Haya de la Torre’s safe
passage from the Columbian embassy, through Peru, goes to Columbia. Peru
refused to give such permission. Columbia then brought this suit against Peru in the
International Court of Justice, based on the agreement made by both named Act of
Lima.
These are the submissions made by the two parties:
1) The Columbian had pleaded for the court to declare that Columbia had properly
granted asylum based on 2 submissions:-
a. They are competent to qualify the offence for the purpose of the said asylum.
b. That Peru is bound to give the guarantees necessary for the departure of the Haya
de la Torre, from the country, with due regard to the inviolability of his person.
2) Counter-claim by Peru is that for the court to declare that the grant of asylum made
by the Columbian Ambassador to Haya de la Torre was made in violation of the
Convention on Asylum.
Argument
Plaintiff (Columbian) arguments based on the Convention in force which are the
Bolivarian Agreement 1911 on Extradition, the Havana Convention 1928 on Asylum,
the Montevideo Convention 1933 on Political Asylum and American International Law.
The Defendant (Peru) counter-claim relied on the rules of Havana Convention first,
Haya de la Torre was accused, not a political offense but of a common crime and
second, because the urgency which was required under the Havana Convention in
order to justify asylum was absent in that case.
Issue
1. Based on conventions, which in force between both countries, and in general from
American international law, whether Columbia competent, as the country granting
asylum, to qualify the offence for the purpose of said asylum?
2. Was Peru bound to give the guarantees necessary for the departure of the
refugees from the country, with due regard to the inviolability of his person?
Decision
1) Columbia was not competent to qualify the nature of the offence by a unilateral and
definitive decision binding on Peru.
2) Columbia was not entitled to claim that the Peru was bound to gives guarantees
necessary for the departure of Haya de la Torre, with due regard to the inviolability of
his person.
3) Peru counter-claim that Haya de la Torre was an accused of a common crime was
rejected, therefore it was not in accordance with Article I, Paragraph I of the Havana
4) Peru Counter-claim that the grant of asylum by the Columbian government to Haya
de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana
Convention was approved by the court.
Ratio Decidendi
1) The court reject the Columbian argument based on Bolivarian Agreement on the
reason that the principle of International Law did not recognize any rule of unilateral
and definitive qualification by the state granting diplomatic asylum.
On the other hand, the Bolivarian Agreement laid down rules on extradition and it was
not possible to deduce from them conclusions concerning diplomatic asylum as it was
different in the meaning.
The court also rejected the Havana Convention invoke by the Columbian as the
convention did not recognize the right of unilateral qualification.
And the third convention, Convention of Montevideo, had not been ratified by Peru
and could not be invoked against it.
As for the American international law, Columbia had failed to prove that it had
constant and uniform practice of unilateral qualification as a right of the State of
refuge and an obligation upon the territorial state. The fact submitted to the court
disclosed too much contradiction and fluctuation, shows that therein a usage peculiar
to Latin America and accepted as law.
2) The court also rejected the Columbian claim based on Havana Convention that the
Peru was bound to gives guarantees necessary for the departure of Haya de la Torre,
on the reason that the convention only applicable if the territorial State demanded the
departure of the refugee from its territory. It was only after such demand that the
diplomatic Agent who granted asylum could require safe-conduct.
3) Peru counter-claim that Haya de la Torre was an accused of a common crime was
rejected on the reason that the refugee was charged for military rebellion, which was
not a common crime as needed under the Havana Convention.
4) The court came into conclusion on Peru Counter-claim that the grant of asylum by
the Columbian government to Haya de la Torre Torre was made in violation of Article
2, Paragraph 2 of the Havana Convention was on the reason that the absent of
element of urgency needed to justify the asylum, in order to protect the person from
danger.
In this case the danger that only faced by Haya de la Torre is legal preceding that will
be imposed on him, not a deprivation of his right.
The Havana Convention according to the court was not intended to protect a citizen
who had plotted against the institutions of his country from regular legal proceedings.
Asylum could only intervene against the action of justice in cases where arbitrary
action was substituted for the rule of law.
Rationale
1) Before a convention can be accepted to be used as the law under Article 38 of
Statute of International Court of Justice, it must be ratified by the contesting state.
- This has been shown by the reluctance of the court to used certain provision in the
convention as had not been ratified by the party country.
- Ie: see rules on Montevideo Convention.
2) The principle of International Law that are not recognizing the rules of unilateral
treaty.
3) This decision also shows us that in order for the custom to be international custom
it must be a general practice.
- Ie: see rules on American International Law
ASYLUM CASE
Judgment of 20 November 1950
The origin of the Colombian-Peruvian Asylum case lies in the asylum
granted on January 3rd, 1949, by the Colombian Ambassador in Lima to M.
Victor Raúl Haya de la Torre, head of a political party in Peru, the American
People's Revolutionary Alliance. On October 3rd, 1948, a military rebellion
broke out in Peru and proceedings were instituted against Haya de la Torre
for the instigation and direction of that rebellion. He was sought out by the
Peruvian authorities, but without success, and after asylum had been
granted to the refugee, the Colombian Ambassador in Lima requested a
safe-conduct to enable Haya de la Torre, whom he qualified as a political
offender, to leave the country. The Government of Peru refused, claiming
that Haya de la Torre had committed common crimes and was not entitled to
enjoy the benefits of asylum. Being unable to reach an agreement, the two
Governments submitted to the Court certain questions concerning their
dispute; these questions were set out in an Application submitted by
Colombia and in a Counter-Claim submitted by Peru.
In its Judgment, the Court, by fourteen votes to two, declared that Colombia
was not entitled to qualify unilaterally and in a manner binding upon Peru the
nature of the offence; by fifteen votes to one, it declared that the
Government of Peru was not bound to deliver a safe-conduct to the refugee.
On the other hand, the Court rejected by fifteen votes to one the Peruvian
contention that Haya de la Torre was accused of common crimes; the Court
noted that the only count against Haya de la Torre was that of military
rebellion and military rebellion was not, in itself, a common crime. Lastly, by
ten votes to six, the Court, without criticising the attitude of the Colombian
Ambassador in Lima, considered that the requirements for asylum to be
granted in conformity with the relevant treaties were not fulfilled at the time
when he received Haya de la Torre. Indeed, according to the interpretation
which the Court put upon the Convention of Havana, asylum could not be an
obstacle to proceedings instituted by legal authorities operating in
accordance with the law.
*
**
The facts following which the case was brought before the Court are set out
in the Judgment:
On October 3rd, 1948, a military rebellion broke out in Peru; it was
suppressed the same day. On the following day, a decree was published
charging a political party, the American People's Revolutionary Party, with
having prepared and directed the rebellion. The head of the Party, Victor
Raúl Haya de la Torre, was denounced as being responsible. With other
members of the party, he was prosecuted on a charge of military rebellion.
As he was still at liberty on November 16th, summonses were published
ordering him to appear before the Examining Magistrate. On January 3rd,
1949, he was granted asylum in the Colombian Embassy in Lima.
Meanwhile, on October 27th, 1948, a Military Junta had assumed power in
Peru and had published a decree providing for Courts-martial for summary
judgment in cases of rebellion, sedition and rioting; but this decree was not
applied to the legal proceedings against Haya de la Torre and others, and it
has been declared before the Court that this Decree was not applicable to
the said proceedings. Furthermore, during the period from October 4th to the
beginning of February, 1949, Peru was in a state of siege.
On January 4th, 1949, the Colombian Ambassador in Lima informed the
Peruvian Government of the asylum granted to Haya de la Torre, at the
same time he asked that a safe-conduct be issued to enable the refugee to
leave the country. On January 14th, he further stated that the refugee had
been qualified as a political refugee. The Peruvian Government disputed this
qualification and refused to grant a safe-conduct. A diplomatic
correspondence ensued which terminated in the signature, in Lima, on
August 31st, 1949, of an Act by which the two Governments agreed to
submit the case to the International Court of Justice.
*
**
Colombia maintained before the Court that, according to the Convention in
force - the Bolivarian Agreement of 1911 on Extradition, the Havana
Convention of 1928 on Asylum the Montevideo Convention of 1933 on
Political Asylum - and according to American International Law, she was
entitled to qualify the nature of the offence for the purposes of the asylum. In
this connection, the Court considered that, if the qualification in question
were provisional, there could be no doubt on that point: the diplomatic
representative would consider whether the required conditions had been
satisfied, he would pronounce his opinion and if that opinion were contested,
a controversy would then arise which might be settled according to the
methods provided by the Parties.
But it resulted from the proceedings in the case that Colombia claimed the
right of unilateral and definitive qualification binding upon Peru. The first of
the Treaties which it invoked - the Bolivarian Agreement, which is the Treaty
on extradition - confined itself in one Article to recognizing the institution of
asylum in accordance with the principles of international law. But these
principles do not entail the right of unilateral qualification. On the other hand,
when the Bolivarian Agreement laid down rules for extradition, it was not
possible to deduce from them conclusions concerning diplomatic asylum. In
the case of extradition, the refugee was on the territory of the State of
refuge: if asylum were granted to him, such decision would not derogate
from the sovereignty of the States in which the offence was committed. On
the contrary, in the case of diplomatic asylum, the refugee was on the
territory of the State in which he had committed the offence: the decision to
grant asylum derogated from the sovereignty of the territorial State and
removed the offender from the jurisdiction of that State.
As for the second treaty invoked by Colombia - the Havana Convention - it
did not recognize the right of unilateral qualification either explicitly or
implicitly. The third treaty - the Convention of Montevideo - had not been
ratified by Peru and could be invoked against that country.
Finally, as regarded American international law, Colombia had not proved
the existence, either regionally or locally, of a constant and uniform practice
of unilateral qualification as a right of the State of refuge and an obligation
upon the territorial State. The facts submitted to the Court disclosed too
much contradiction and fluctuation to make it possible to discern therein a
usage peculiar to Latin America and accepted as law.
It therefore followed that Colombia, as the State granting asylum, was not
competent to qualify the nature of the offence by a unilateral and definitive
decision binding on Peru.
* to be accused of a political offence in order to be entitled to receive asylum;
**
Colombia also maintained that Peru was under the obligation to issue a
safe-conduct to enable the refugee to leave the country in safety. The Court,
setting aside for the time being the question of whether asylum was regularly
granted and maintained, noted that the clause in the Havana Convention
which provided guaranties for the refugee was applicable solely to a case
where the territorial State demanded the departure of the refugee from
its territory: it was only after such a demand that the diplomatic Agent
who granted asylum could, in turn, require a safe-conduct. There was,
of course, a practice according to which the diplomatic Agent immediately
requested a safe-conduct, which was granted to him: but this practice, which
was to be explained by reasons of expediency, laid no obligation upon the
territorial State.
In the present case, Peru had not demanded the departure of the refugee
and was therefore not bound to deliver a safe-conduct.
*
**
In a counter-claim, Peru had asked the Court to declare that asylum had
been granted to Haya de la Torre in violation of the Havana Convention,
first, because Haya de la Torre was accused, not of a political offence but of
a common crime and, secondly, because the urgency which was required
under the Havana Convention in order to justify asylum was absent in that
case.
Having observed that Peru had at no time asked for the surrender of the
refugee, the Court examined the first point. In this connection, the Court
noted that the only charge against the refugee was that of military rebellion,
which was not a common crime. Consequently, the Court rejected the
counter-claim of Peru on that point, declaring it to be ill-founded.
On the question of urgency, the Court, having observed that the essential
justification of asylum lay in the imminence or persistence of a danger to the
person of the refugee, analysed the facts of the case.
Three months had elapsed between the military rebellion and the grant of
asylum. There was no question of protecting Haya de la Torre for
humanitarian considerations against the violent and uncontrolled action of
irresponsible elements of the population, the danger which confronted Haya
de la Torre was that of having to face legal proceedings. The Havana
Convention was not intended to protect a citizen who had plotted against the
institutions of his country from regular legal proceedings. It was not sufficient
asylum could only intervene against the action of justice in cases where
arbitrary action was substituted for the rule of law. It had not been proved
that the situation in Peru at the time implied the subordination of justice to
the executive or the abolition of judicial guarantees.
Besides, the Havana Convention was unable to establish a legal system
which would guarantee to persons accused of political offences the privilege
of evading their national jurisdiction. Such a conception would come into
conflict with one of the oldest traditions of Latin America, that of
 nonintervention. For if the Havana Convention had wished to ensure
general protection to all persons prosecuted for political crimes in the course
of revolutionary events, for the sole reason that it should be presumed that
such events interfere with the administration of justice, this would lead to
foreign interference of a particularly offensive nature in the domestic affairs
of States.
As for the numerous cases cited by Colombia, the Court was of opinion that
considerations of convenience or political expediency seemed to have
prompted the territorial State to recognize asylum without such as decision
being dictated by any feeling of legal obligation. Asylum in Latin America
was an institution which owed its development largely to extra-legal factors.
Whilst declaring that at the time at which asylum was granted, on January
3rd, 1949, there was no case of urgency within the meaning of the Havana
Convention, the Judgment declared that this in no way constituted a criticism
of the Colombian Ambassador. His appreciation of the case was not a
relevant factor to the question of the validity of the asylum: only the objective
reality of the facts was of importance.
The Court therefore came to the conclusion that the grant of asylum was not
in conformity with Article 2, paragraph 2, of the Havana Convention.
The two submissions of Colombia were rejected, the first by fourteen votes
to two (Judge Azevedo and M. Caicedo, Judge ad hoc), the second by
fifteen votes to one (Judge Caicedo). As for the counter-claim of the
Government of Peru, it was rejected by fifteen votes to one in so far as it
was founded on a violation of the Article of the Havana Convention providing
that asylum shall not be granted to persons accused of common crimes. But
on the second point, the counter-claim was allowed by ten votes to six.
(Judges Alvarez, Zoricic, Badawi Pasha, Read and Azevedo and M.
Caicedo, Judge ad hoc.)
The dissenting opinions of Judges Alvarez, Badawi Pasha, Read, Azevedo, and M.
Caicedo, Judge ad hoc, were appended to the Judgment. In respect of the second
point of the counter-claim, Judge Zoricic subscribed to the opinion of Judge Read.
HAYA DE LA TORRE CASE
Judgment of 13 June 1951
The Haya de la Torre case between Colombia and Peru with Cuba as
intervening Party, was brought before the Court under the following
circumstances:
In a Judgment delivered on November 20th, 1950, the Court had defined the
legal relations between Colombia and Peru in regard to questions which
those States had submitted to it, concerning diplomatic asylum in general
and, in particular, the asylum granted on January 3rd/4th, 1949 by the
Colombian Ambassador at Lima to Victor Raul Haya de la Torre; the Court
had found that, in this case, the asylum had not been granted in conformity
with the Convention on Asylum signed at Havana in 1928. After the
Judgment had been delivered, Peru requested Colombia to execute it, and
called upon her to put an end to a protection improperly granted by
surrendering the refugee. Colombia replied that to deliver the refugee would
be not only to disregard the Judgment of November 20th, but also to violate
the Havana Convention and she instituted proceedings before the Court by
an Application which was filed on December 13th, 1950.
In her Application, and during the procedure, Colombia asked the Court to
state in what manner the Judgment of November 20th, 1950, was to be
executed, and, furthermore, to declare that, in executing that Judgment, she
was not bound to surrender Haya de la Torre. Peru, for her part, also asked
the Court to state in what manner Colombia should execute the Judgment.
She further asked, first, the rejection of the Colombian Submission
requesting the Court to state, solely, that she was not bound to surrender
Haya de la Torre, and, secondly, for a declaration that the asylum ought to
have ceased immediately after the delivery of the Judgment of November
20th, 1950, and that it must in any case cease forthwith, in order that
Peruvian justice might resume its normal course which had been
suspended.
In its Haya de la Torre judgment the Court declared:
by a unanimous vote that it is not part of the Court's judicial functions to
make a choice among the different ways in which the asylum may be
brought to an end;
by thirteen votes against one, that Colombia is under no obligation to
surrender Haya de la Torre to the Peruvian authorities;
by a unanimous vote that the asylum ought to have ceased after the delivery
of the Judgment of November 20th, 1950, and must be brought to an end.
In its Judgment, the Court examines, in the first place, the admissibility of the
Cuban Government's intervention. That Government, availing itself of the
right which the Statute of the Court confers on States parties to a
convention, the interpretation of which is in issue, had filed a Declaration of
Intervention in which it set forth its views concerning the interpretation of the
Havana Convention. The Government of Peru contended that the
Intervention was inadmissible: that it was out of time, and was really in the
nature of an attempt by a third State to appeal against the Judgment of
November 20th. In regard to that point, the Court observes that every
intervention is incidental to the proceedings in a case, that, consequently, a
declaration filed as an intervention only acquires that character if it actually
relates to the subject-matter of the pending proceedings. The subject matter
of the present case relates to a new question - the surrender of Haya de la
Torre to the Peruvian authorities - which was completely outside the
Submissions of the parties and was in consequence not decided by the
Judgment of November 20th. In these circumstances, the point which it is
necessary to ascertain is whether the object of the intervention is the
interpretation of the Havana Convention in regard to the question whether
Colombia is under an obligation to surrender the refugee: as according to
the representative of the Government of Cuba the intervention was based on
the fact that it was necessary to interpret a new aspect of the Havana
Convention, the Court decided to admit it.
The Court goes on to discuss the merits. It observes that both parties are
seeking to obtain a decision as to the manner in which the Judgment of
November 20th is to be executed. That Judgment, in deciding on the
regularity of the asylum, confined itself to defining the legal relations which
the Havana Convention had established, in regard to this matter between
the parties; it did not give any directions to the parties, and only entailed for
them the obligation of compliance with the Judgment. However, the form in
which the parties have formulated their submissions shows that they desire
that the Court should make a choice among the various courses by which
the asylum might be terminated. These courses are conditioned by facts and
possibilities which, to a very large extent, the parties are alone in a position
to appreciate. A choice among them could not be based on legal
considerations, but only on grounds of practicability or of political
expediency. Consequently, it is not part of the Court's judicial function to
make such a choice, and it is impossible for it to give effect to the
submissions of the parties in this respect.
As regards the surrender of the refugee, this is a new question, which was
only brought before the Court by the Application of December 13th, 1950,
and which was not decided by the Judgment of November 20th. According
to the Havana Convention, diplomatic asylum, which is a provisional
measure for the temporary protection of political offenders, must be
terminated as soon as possible. However, the Convention does not give a
complete answer to the question of the manner in which an asylum must be
terminated. As to persons guilty of common crimes, it expressly requires that
they be surrendered to the local authorities. For political offenders it
prescribes the grant of a safe-conduct for the departure from the country.
But a safe-conduct can only be claimed if the asylum has been
regularly granted and maintained and if the territorial State has
required that the refugee should be sent out of the country. For cases in
which the asylum has not been regularly granted and where the territorial
State has made no such demand, the Convention makes no provision. To
interpret this silence as imposing an obligation to surrender the refugee
would be repugnant to the spirit which animated the Convention in
conformity with the Latin American tradition in regard to asylum, a tradition in
accordance with which a political refugee ought not to be surrendered.
There is nothing in that tradition to indicate that an exception should
be made in case of an irregular asylum. If it had been intended to
abandon that tradition, an express provision to that effect would have been
needed. The silence of the Convention implies that it was intended to leave
the adjustment of the consequences of such situations to decisions inspired
by considerations of convenience or simple political expediency.
It is true that, in principle, asylum cannot be opposed to the operation of the
national justice, and the safety which arises from asylum cannot be
construed as a protection against the laws and the jurisdiction of the legally
constituted tribunals. The Court declared this in its Judgment of
November 20th. But it would be an entirely different thing to say that there is
an obligation to surrender a person accused of a political offence because
the asylum was irregular. That would amount to rendering positive
assistance to the local authorities in their prosecution of a political refugee,
and would be greatly exceeding the findings of the Court in its Judgment of
November 20th; such assistance could not be admitted without an express
provision to that effect in the Convention. As concerns Haya de la Torre, the
Court declared in its Judgment of November 20th, on the one hand, that it
had not been proved that, before asylum was granted, he had been accused
of common crimes; on the other hand, it found that the asylum had not been
granted to him in conformity with the Convention. Consequently, and in view
of the foregoing considerations, Colombia is not obliged to surrender him to
the Peruvian authorities.
Finally the Court examines the Peruvian submissions which Colombia asked
it to dismiss, concerning the termination of the asylum. The Court states that
the Judgment of November 20th, declaring that the asylum was irregularly
granted entails a legal consequence, namely, that of putting an end to this
irregularity by terminating the asylum. Peru is therefore legally entitled to
claim that the asylum should cease. However, Peru has added that the
asylum should cease "in order that Peruvian justice may resume its normal
course which has been suspended". This addition, which appears to involve
the indirect claim for the surrender of the refugee, cannot be accepted by the
Court.
The Court thus arrives at the conclusion that the asylum must cease, but
that Colombia is not bound to discharge her obligation by surrendering the
refugee. There is no contradiction between these two findings, since
surrender is not the only manner in which asylum may be terminated.
Having thus defined, in accordance with the Havana Convention, the legal
relations between the parties with regard to the matters referred to it, the
Court declares that it has completed its task. It is unable to give any practical
advice as to the various courses which might be followed with a view to
terminating the asylum, since, by so doing, it would depart from its judicial
function. But it can be assumed that the parties, now that their mutual legal
relations have been made clear, will be able to find a practical and
satisfactory solution seeking guidance from those considerations of courtesy
and good neighbourliness which, in matters of asylum, have always held a
prominent place in the relations between the Latin American Republics.