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Facts

The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre, in its embassy. It
claimed it had a right to do this both under agreements between the states and in a local custom in the
Latin American states.

Issue
Can the Colombian government offer asylum under local custom?
Decision
No such local custom exists sufficient to be binding at international law.

Reasons
The Court held that the party which relies on a custom of this kind has the burden of establishing that
the custom exists in such a way that it has become binding on the other party, through constant and
uniform usage of the states.

On the facts, very few states had ratified the conventions which Colombia relied on and there was
significant discrepancy in the practice of asylum. Because of this, the Court was unable to find a custom
which met the standard in the North Sea Continental Shelf case.

Ratio
A party which claims a custom exists must prove that the custom was established in such a manner that
it has become binding on the other party.

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?

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.”

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.

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)

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