SECTION C.-REQUEST FOR THE
INTERPRETATION OF THE JUDGMENT
OF NOVEMBER zath, 1950
THE AGENT OF THE GOVERNMENT OF COLOMBIA
BEFORE THE INTERNATIONALCOURT OF JUSTICE
TO THE REGISTRAR OF THE COURT
[Translailio~by the Registry]
No. D.125. C148. The Hague, November zoth, 1950.
Sir,
r. By order of my Governrnent 1have the honour to inform you
of the following :
z. The Governrnent of the Republic of Colombia, faithfulto the
international undertakings which it has signed and ratified and,in
particdar, the obligation which is laid upon it by Article 94,
paragraph r, of the Charter of the United Nations, declares its
intention of cornplying withthe decision ofthe International Court
of Justice in the Colornbian-Penivian asylum case.
3. However, the rnanner in which the Court has ruled in its
Judgment of November zoth, rgy, has led rny Governrnent to
the condusion that this decision, as has been notified, contains
gaps of such a nature as to render its execution impossible. This
conclusion is based on the following grounds :
4. In its Judgrnené the Cour-t makes the following statement :
"It Isevident that the diplomatic representative who has to deter-
mine whether a refugee is to be granted asylum or not must have
the cornpetence to make such a provisional qualification of any
offenceâIleged to have been comrnitted by the refugee. He must in
fact examine the question whether the conditions required for
granting asylum are fulfilled. The territorial State wonot thereby
be deprived of its rightto çontest the qualification.In case of
disagreement between the two States, a dispute wodd anse which
rnight be settled by the methodç provided by the Parties for the
settlement of their disputes" (Judgment ',page 2741.
5.In the present case it isbeyond doubt that the Parties have
in fact proceeded as the Court indicates in the above-mentioned
text : the Coiombian Asnbassador in Lima qualified the offence
attributed to the refugee ; the Government of Peru, for its part,
Ordersrgjo.t's publications: ReporofJudgmenls, Advisu~y Opinwws andconteçted this qualification and the dispute which arose on this
point between the two States was brought before the International
Court of Justice.
6. The Court has confirmed the qualification made by the Colom-
bian Ambassador in a manner which is both clear and emphatic.
It has,in fact, declared: "the Court considers that the Governrnent
of Peru has not proved that the acts of which the refugee was
accused before January 3rd/4th, 1949,constitute cornmon crimes"
(Judgment, page 281). As a consequence of this declaration, the
Court has rejectecl the counter-daim "in so fat as it is foundeon
a violation of ArticleI,paragraph I, of the Convention on Asylurn
signed at Havana in 1928" (Judgment, page 288).
7. The qualificationmade by the Colombian Ambassador of the
political characterof the offence!attributed to the refugee having
tkus been confimed by the Court, the theoretical question of the
right appertaining to the State granting asylum may be left toone
side beçause it ceases to have any practical effect. As is evident
from the diplornatic conespondence between the Parties, if it is
tme that Colornbia, fram the very bepnning of this dispute,has
claimed the rightof qualification, it is equally certain thçhe ha
always affimed that, even if this rightcould be conteçted, fke
qualification was in fact correct and could not be disregarded
because ithad not been proved that M. Haya de la Torre was a
common criminal.
8.In stating that the Gavernrnent of Peru has not proved that
the offence with which the refugee was charged was a common
crime, the Court has admitted that the qualification made by
Colombia was well founded. In the circumstances a question anses:
muçt this qualification, which has been declared correct and
approved by the Court, be çonsidered nevertheless as nuil and
void because a dispute has ansen on the preliminary and theor-
etical question of the right toqualificationin matterç of asylum ?
9. Indeciding on the counter-claim of Pen, theCourt has found,
on the one hand, "that the grant of asylum by the Colornbian
Governrnent to Victor RaUl Haya de la Torre was not made in
conformity with Article 2, paragraph z ('First'),of that Conven-
tion" [Convention of Havana] (Judgment, page 288).
IO. The Court has declared, on the other hand, not only that
"the grant of asylum is not an instantaneous açt which terminates
Mith the admission, at a given moment, of a refugee to anembassy
or a legation", but that asylum "isgranted as long asthe continued
presence of the refugee in the embasçy prolongs this protection". REQUEST FOR INTERPRETRTION JUDGMENT 20 XI 50
468
rz. It would appear, consequently, that the idea of the Court, in
deciding on one of the aspectsof the counter-çlairnisthat Colombia
might violate the provisions of Articl2,paragraph z, of the Havana
Convention if she does not çurrender the refugee to the Penivian
authorities.
12. The Court declares, however, that M. Haya de la Torre isa
politicd refugee and not a cornman criminal. Tt declares at the
çame tirne that the Havana Convention, which içthe only agree-
ment replating the relations between Calombia and Peru in matters
of asylum, contains na clause providing for the surrender of a
political refugee.
13, It foLlowsfrom the foregoing consideration that Colornbia
haç no obligation to surrender the refugee to the Peruvian author-
ities andthat, if she abstains from doing so, she in no way violates
the Havana Convention.
14. Furthemore, the Court expressIy states "that the question
of the possible sumender of the refugee to the territorial authoritieç
isin no way raised in the counter-clairn" and adds that "this ques-
tion was not raised either inthe dipIomatic correspondence submit-
ted by the Parties or at any moment in the proceedings before the
Court, and infact the Government of Pem haç not requested that
the refugee should be surrendered" (Judgment, page 280).
15. On the baçis of the foregoing considerations, it doeç not seem
possible to suppose that the Court, in deciding that the grant of
asylum was not made in conforrnlty with Article z, paragraph 2,
of the Havana Convention, intended to order, even in an indirect
manner, that the refugee should be surrendered, or even less that
itintended to deciare that Colombia would violate an international
undertaking if she abstained from making the surrender which has
not been ordered by the Court.
III
16.Consequently, the Governrnent of the Republic ofColombia
haç the honour to make a requeçt far an Enterpretation of the
Judgment of Novernber zoth, 1950, as follows :
In accordance with Articles 60 ofthe Statute and 79 and 80 of
the Rules of Court, to answer the follewing questions :
Fa'rst.-Must the Judgment of November zoth, 1950, be inter-
preted in the çense that the qualification made by the CoIombian
Ambassador of the offence attributed to M.Haya de la Torre, was correct, and that, consequently, it isnecessary to recognize that
the above-mentioned qualification, iço far asithas been confirmed
by the Court, haç Iegal effect?
I Second.-Must the Judgment of November zoth, 1950 b,e inter-
preted in thesense that the Government of Pem is not entitledto
demand the smender of the political refugeM. Haya de la Torre,
and that, consequently, the Government of Colornbia isnot bound
to surrender him evenin the eventof this surrender being requeçted 7
Thzrd.-Or, on the contrary, does the Court's decision on the
counter-daim of Peru imply that Colornbia is bound to surrender
the sefugee Victor Raiil Haya de la Torre to the Pemvian author-
itieseven ifthe latter do not ço dernand, in spite ofthefact that
he is a politicaoffender and not a cornmon criminal, and that the
only convention appIicable to the present case does not order the
mirender of politicaloffenden ?
1
! 1 have, etc.
i
(Sig~ed) prof. J. M. YEPES,
Agent of the Government of Colornbia
hefore the International Court of Justice,
Legal Adviser to the Ministry
for Foreign Affairs.
Request for the Interpretation of the Judgment of November 20th, 1950