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CASE (SUMMARY)
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 the continued maintenance of asylum a violation of the treaty?
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 (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 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 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?
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.