SUNDAY, MARCH 07, 2010

[International Law] Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary.
Full case here. This case summary is done by me. I
will not responsible for any error, mistakes upon the
using of this information. I accept any correction and
criticism.

Facts
Victor Raul Haya de la Torre was a Peruvian national.
In Oct 3rd, 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
convention.

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