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Perez, Ma.

Ila Jeanne International Law Paper Asylum Case

February 8, 2013 Atty. Noche

(Columbia vs. Peru) November 20, 1950-Judgment The Colombian-Peruvian Asylum case lies in the asylum granted by the Colombian Ambassador in Lima to Victor Raul Haya de la Torre, who is the head of a political party in Peru, the American Peoples Revolutionary Alliance. This asylum granted to Haya de la Torre was not recognized by the Peruvian authorities which resulted to the contentions on both governments. Unable to reach an agreement the two governments submitted to the ICJ questions concerning their dispute; these questions were set out in an Application submitted by Colombia and in the counter-claims submitted by Peru. Facts On October 3, 1948 a military rebellion broke out in Peru and was suppressed the same day. The following day, a decree was published charging a political party, which is the American Peoples Revolutionary Party with having prepared and directed the rebellion. The head of this party is Victor Raul Haya de la Torre, he was considered responsible with the rebellion and together with other members of the party, and he was prosecuted on charge of military rebellion. On January 3, 1949, Haya de la Torre was granted asylum in the Colombian Embassy of Lima. Next day, the Colombian Ambassador in Lima informed the Peruvian government of the asylum granted to Haya de la Torre, at the same time the ambassador asked that a safe-conduct be issued to enable the refugee to leave the country. On January 14, the ambassador 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. In August 31, 1949 the two governments agreed to submit the case to the International Court of Justice. Issues There were two submission of application brought about by the Government of Columbia. First is that Columbia asked the court to declare that Colombia had properly granted asylum pursuant to a recognized regional practice of granting asylum in such political cases. Second Colombia stressed that Peru was under the obligation to issue a safe-conduct to enable the refugee to leave the country in safety. On the other hand there were two counter claims brought about by Peru, first is that Peru had asked the Court to declare that the 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 political offense but of common crimes and secondly the urgency which was required under the Havana Convention in order to justify asylum was absent in that case. Generally, these were the four issues raised and were addressed by the court. Resolution (Courts Ruling and Basis) In the first claim of Colombia, they have maintained before the court different conventions to strengthen their argument that they have properly granted the asylum. They cited the Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum and the Montevideo Convention of 1933 on Political Asylum. All of which were considered to be international agreements. However the court by fourteen votes to two, declared that Colombia was not entitled to qualify unilaterally and in manner binding upon Peru the nature of the said offense. The reason behind this ruling is that several conventions cited by Colombia were not enough to justify that there exist a custom which is established as binding to allow Colombia to grant political asylum. Take for example the Bolivarian Agreement which is a treaty on extradition confined itself in one Article to recognize the institution of asylum in accordance with the principles of international law, but these principles do not entail the right of unilateral qualification. Given that the territorial State by which the offender did not give its consent in granting the asylum, therefore it is not recognized. Another treaty cited is the Convention of Montevideo on Political Asylum, however again the court declared that this can not be a custom because Peru is not a party to the said convention which included matters of political asylum. Therefore the evidences provided by Colombia were very weak. For the second issue wherein Colombia declared that the Government of Peru was bounded to deliver a safe-conduct to the refugee, the decision of the court is fifteen votes to one with the ruling that Peru was not bounded to deliver a safe-conduct to the refugee. This ruling was based on the fact that the clause from the Havana Convention which provided guarantees for the refugee was applicable solely to the case where the territorial State demanded the departure of the refugee from its territory; it was only after such demand that the diplomatic agent who granted the asylum could in turn require safe-conduct. However for this case, Peru had not demanded the departure of the refugee and was therefore not bound to deliver a safe conduct. For the third issue pertaining to the first counter claim brought about by Peru that Haya de la Torre was accussed of common crimes, the court rejected this by fifteen votes to one, the

court noted that the only count against Haya de la Torre was that of military rebellion and that itself is not a common crime. Lastly for the fourth issue which was the second counter claim of Peru regarding the urgency which was required under the Havana Convention in order to justify asylum was absent in that case, the court by ten votes to six without criticizing the attitude of Colombian ambassador in Lima considered that the requirements for asylum to be granted in conformity with the relevant treaties were not fulfilled at that time when he received Haya de la Torre. The court observed that three months had elapsed between military rebellion and the grant of asylum, there was no question of protecting Haya de la Torre for humanitarian considerations against that violent and uncontrolled action of the population in general but rather the danger which confronted him was that of having to face legal proceedings. The Havana Convention was not intended however to protect a citizen who had plotted against the institutions of his country from regular legal proceedings. Analysis In this Asylum case we see how the sources of international law such as customs and treaties were used to justify the point of both parties involved. However in invoking customs in international law as discussed in class, it must have been proven to be used fairly often and adopted by many states. Also in the case of treaties, a state is not bounded by it if that state did not ratify such treaty. In the case of Peru the Montevideo Convention of 1933 was an example of a treaty used to justify that Colombia properly granted the asylum, but given that Peru did not ratify such, then it is just reasonable enough that the argument of Colombia is weak and Peru has all the right to contest regarding the issue of granting the asylum. At the same time, Peru has consistently object to the arguments brought about the Colombia as seen in the second issue, that Peru was bounded to deliver the refugee safe-conduct, however as stated in the Havana convention this may only be possible if the territorial State that is Peru where the refugee is, demands and consents that the refugee departs from its territory but in this case Peru did objected to such. Not granting safe-conduct is reasonable during that time given that according to Heinze and Fitzmaurice, (1998) there was a strong view that refugees may continue their political activities abroad and that in effect may cause more conflicts and chaos especially at a time of political crisis and uprisings.

References Heinze, E. and Fitzmaurice, M (1998). Landmark Cases in International Law Retrieved on February 2, 2013 from http://books.google.com.ph/books? id=2uHRcZXMtgoC&lpg=PA63&hl=tl&pg=RA1-PA5#v=twopage&q&f=fals International Court of Justice (1950) Asylum Case. Retrieved on February 1, 2013 from http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f8&case=7&code=cp&p3=4 International Court of Justice (n.d.) Asylum Case: Columbia vs. Peru Retrieved on February 1, 2013 from http://www.tjsl.edu/slomansonb/2.7_ColvPeru.pdf

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