ASYLUM CASE (SUMMARY)

Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.
Overview:
Columbia granted asylum (protection granted by a nation to someone who has left their native

country as a political refugee) to a Peruvian, accused of taking part in a military rebellion in

Peru.
1. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as
a political offence) in a manner binding on Peru and
2. 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. 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 Courts 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. a diplomatic representative has the competence to make a provisional qualification of the
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. Then was it
binding to Peru? 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
3. Colombia also argued that regional or local customs support the qualification but 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. 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
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.

6. The court concluded that Columbia, is not competent to qualify the offence by a unilateral
and definitive decision

(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).

(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. 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.