Asylum (Colombia/Peru) - Judgment of the Court of 20 November 1950

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1,C.J. Communiqué Mo, 50/.43,
(~nof icial)

The .foiLawhg information from the Registry of the International Court
of ~ustice has been communicate td the Press :

To-day, Honday, Bcvember 2Gth,1950, the Courtdelivered Yts judment
ln the Calomb2a.n-Peruvian Asylun Case.

The origin of this case lies in the asylum grlted on January 3rd, 1%9,
by the C~lornbjLaLZfi33assador'nLh to Ir, Victor Rab1 Haya de la,Torre, head
of a political pwty in Peru, the iharican Pecipla~sRevolutionary Alliance,
On October 3rd, 1948, a militaqr.rcbelli brlre out in Peru md proceedings
werelnstituted against Haya de la Torrefor the in~itigaticn and direction of
that rebollion. He was sought out by the Fcruvisr authorities but wi-thout
' success; andartor asylm had bevngranted to the refugec, tho Colornbb

'hbassador in Lima requeated a safc-conduc o cnsble Maya de la Torre,&orn
he gl,Lified aa a plitical. offondor, to lcave ,$hocountry, The Governent
of Perurefused, claiming that Haya ds la Torre had commltted conmioncrimes
and was not rrntitled .t;enjoy the bendits of asylum, Behg unable to reach
an agreement, the two Crovornments submittad ta the Court cortain queetions
concernbg tkeir dispute; thosequestions were set out in an Application
eubmit$ed by Coloinbia and in a Caunter-Clah subiriitted byPeru.
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In to-dayls Judgmont, theCourt, bg fourLeen votes to two, declared that
Colombia was not ontitled to guslify unilatarall p~d in a mannsr bfndbg upon
Peru .thenatura of the offence; by fiftean votes to one, kt --leclarec! ththe
Gaverment of Peruwzs not bound to dolfver a safe-condue t the refugee.' On
the other hmd, the Court re jectedby ffftean votes to onc the Peruvian
contention that Haya de la Torre wasaccuscd of cornon crimes; the Court
noted that the only count against Haya da la Torre was th& of military
rebcllion and milftary rebellion waa not, in itself, a comon crime, Lastly,
by ten votes to ah, the Court, without criticisint ghe attitudc of the
Colombim M~assador in Lima, considere ha.2, therequirernents for
asy1umto be granted in confodty with the relevant treaties were not
fuLfilled at the the den he received Hsya de la Torre, Indeed, according to
the interpretatio whichthcCourt put upon tke Conventio nf Havana, asylm
could not te an obstacle to.proceedings instituted by legal authorities
oparating in accordancc with the law,

The facts followini &ich tlie case was brought before the Court'are set
outfn the Judgent :

bn October 3rd) 1948, a military rebellion brakc out in %ru; itwas
suppressed the same day, On the follor.rhg day, a decrcc was published
chssging a politlcal party, the American Paoplets Rev~lutionar Party, with
having prepared anddirected the rebellion. The head of the Party, Victor
Ra61 Hayade la Torre, was dennunccd as bejng responsible. With other mombers
of the partg, he was prosecuted on a chargo of military rebellion, As he
was still at liberty on Novernber lhth, surmnonses were published ordering h?lm
to appear beforstho Exminhg Magistrats, On January 3rd, 1949, he ms
granted asylumin the Colombim hbassy in LW, Neanwhfle, on Octobar 27th,
1948, a PIUlitary Junta had assmd powerin Pem and had published a decree
praviding for Courts-marti for summary judpsnt in casos of rebellion,
sedition and rioting; but thisdecree was not applied tc the legal proceedings
agalnat Haya de la Torre and others,and Lt ha8 been declared bafora the Court
that this Uecree was not applicablt eo the said proceed5ga. Furthemare,
' during the period from October &th to the beginning of February,l949, Peruwas
in a state of siege.

On January &'ch,1949, the Colombian .hbassador in SJim afomed the
Peruvian Govolriment of the asylum grmted to Haya de la Torre; at tho sme
tLmE he asked that n safe-conduc tc iaauod to onablo the rafugee to leave
the ..,thë%ountry. On Jsnuary 14th, hc furthar stated that the rofugcz had boen
qualified as a political rofugee. The Poruvian Goverment disputed this
qualification and rcfused to gsant a snf e-conduc t A diplomaitc correspondence
ensued r.rhich tcrnlinated in the signaturc, in LLni., on Aupst 31st,1949, of an
Act by which the two Cavernment,~ agreed to submit the cas2 ko the International
Courtof Justice.

Colornbia has mintained before the Court that, according to the Conventions
in force - the Eolivarian dgrecment of 1911on Extradition t,e Havana Convention
of 1428 on Asylum,the 1.5ontevideo Gonvcntion of 1933 on Political Asylum - and
according to herican International Law, shc was entitled to qualify the nature
of the effence for the purposes of the asglum. In this connection the Court
considered that; if the qualification in question were provisiona,l, there couhd
be no doubt oii that point:
the diplornatic reprcsontativc would consider dBsthor
the required conditions had been satisfied, hû wcluld pronounce his opinion and
if that opinion were contcstcd, c. controvcrsy would then arise which rnight be
settled accordlng to the mcthadsprovidedby tho Parties,

But it resulted from the proceedings Ln thc cesc that Colombia claj_med *
ri@t of unilateral end definitive qq~alification binding upon Peru, The first
of the Troaties which it kaked - the Solivarian Agrcernent - which is the
Treaty on extradition, confined itselfin one Article to recognizing the
institutio of asylum in accordance vdth the principles of international law.
But th$se principles do not cnSaiL the right of unilatersr qualification. On
the othar hend, when the Solivarian Agreement laid dom niles for extradition,
itwas not posslblc to deduce fromthcm conclusions concerntng dipl -astic
asylum. In the case of extradition, the refilgee was on the territoryof the
State of refuge: if rtsylum were granted te him, such deciaion would not
derogate from the sovereignt yf the States Ln &ich the offence was comitted,
On the contrsry, in the case of diplornatic asylm, the rcfugec was on the
territory of the State in rirhichc bsd cc&tted the offence: the decision
to grant asylum derogated fram the sovereign-t;yof the territorial State and

rernoved the offendcs from the jurisdtction of that Ststo.

As for the second treaty invoked by Colombia - the Havma Convention - it
did not rccognize the right of unilateral qualification eitherex$Li=itly or
implicitly. The third treaty - the Convention of l\fontevideo- had not been
ratified by Peru aiidcould be irivoked against that country. m.

Finallg, as refiarded h-crican in-t;ernati.onalaw, Golonbiahad not arovod
the ekstencé, eithér regionally or locally, of'a constant and uniformpractice
of unilateral qualification as a Fight of the State of refuge and an obligation
ïIpon.tho territorial '5ats, The f'acts submitted to the Court dlsclosod t6o
rnuch coniradictio ,ma fluctua~tlon to make it possi.blc to disccem theroin a
usage peculier to Zntin-haric~, and acccpted as 1ri.w.

It thereforc followedthat.Colomb .' as the State grmtbg asylurn, was
not coqetont to qualify the nature o$&fence by a unilatera lnd definitive
dccisionbindingon Peru.

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Colombia also maintained that .Peruwas under the obligation to issue a.
safe-conduct to enablu the roffigoe,to leave the country in safety. The Court,
sattingzside for the time being the quzstion of whcthar asyrlum was raghlLarly
granted md m~intained noted that the. clausa in the Havana Convention which
provided guarmti~6for the re,fuge.rwas ,?pplic~..blcsolely to e c~se where the
tarritorial State demunded the depzrturc of the refugee from its torritory: it
wns only nftcr such 2-dem.nd th,?t'the diplomztic iigsi~t whogrmted asylum could,
in turn, requirc 3 S~~C-CO~~UC~. .Thero was, of ccurso, 2. practice 7.ccordlng to
which the diplornatic Agent immcdiately rcqucstcd .csafe-conduct, which wns
grmted ,.. I.. grmtsd to h*: ,but this przcticc, which w3.s to bc explcinad by rezsons of
oxpcdiency, laidno abligctfon upon the torritorin Sltato.
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-'In thc praeitj-case, Paru had notdomnded the doparture of tho refugee
zni WB? theFgTbFe not bound to delivzr a safo-conduct,
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In a counter-clah, Paru hcd askeà the Courtto declarc that esylum kad
been graiited to Haya de la Torre in violtition of the. Havam Convention,
first, because Hoya de ln Torre was accused, not of 2.political offence but
of a comon crbe and, secondlyb ,eczuse the urgency which m.sraquired under
tha Hri;vmalConyontion in osdar to justifyasylum, was absent irithat czse.

H3vin.gob~arvod thnt Pcru had ct no tima askcd for the susrendx of the
refugee, theCourt oxd~~ed the first point. In this connection, the Court
noted thct the ody chmgc sgahst the refugce ms th~tof military robellion,
hich was not a,cornmoncrime, Conseqyently, tho Court rojocted the ccunter-
daim of Pen on that point, daclaring it to be fila-founded,

C, justificationquoftiasylum lay iny,thehimminenceh orvipersistencc ofaa dangersstotial

the person of the refugee, annlysed the fccts of tho casa.

Threo months had elepsad betwen the mijitary rebcllion and tho grcuit
of asylum, Thcre vas no question of protecthg Iic?yc?..Pc Torre for
hwnitari,m consideration agninst the violent and uncontrolled action of
irresponsible elemnts of the popdation; the d~nger which confrontod
Hnya de le Torre was that of having to face legal proceudhgs. The Havana
Conventio wnas not intendeci to protect a citizen who had plotted against the
institutions of hiscountry from regular legal proccedings. It rqas not
sufficient to be accused of a politicn1,offenc 531orderto be entitled to
receive asylm; asylum cauld only intervenc agakat the action of justice
in ceses where arbitrnry action na.8 substituted for the rule of 1a.w. Lt had
not been provedthat the situation in Peru at the time Fmplicd the
subordinatio nf justice to the ~3xecutive or the abolition of judicial
guarmtees .

Basides, the Havana Conventio nas unable to establish a lagal system
a wi-~ichvould guarmtoe "co persons accused of political offences the ~rivilege
of evading their national juris diction. Such a conception wou?xicorne hto
conflict with me of th8oldosttraditions of Latin-h.ericn, tF..itof non-
intervention. For if the I3avma Convention had wishcd ta enauro genernl
protection to al1 persans prasecuted for political crimes in the course of
nievolutioncry evonts, for the &le rosson thstit should be presumad thnt
such evente interfere with the administratio of justice, thiswould lezdto
forci@ intcrforence of a particularly offensivanature in the domestic
affairs of States.

As for tha nurnerous cases cited by Colombia, the Court was of opinion
khat considoration of convcnianctj or political expediency s3emad to have
promptedthe territoria ltate to rccognize asylum without auch a dacision
beingdictated by any feeling of lagal obligation. AsyluminLatin-Umorica
was an institution ~ich ou~d its development hrgely to oxLra-legal factors,

ldkilst declaring thatat the the at which asylm wos gr,mted, on
Janunry 3rd, 194.9, there vins no case of urgency within the meming of the
Havana Convention the Judpent doclared that this in no way constitutod
a criticis mf the Colombinn ihbassador, Hisappraciatioo nf the case wz,s
only
nat a relevant factor ta the question of the vslidity of th2 asylum:
the objective reslity of the facts ms of hportcmce.

The Court therefore came to the conclusSon that the grCrnt of asylum
m.* ru2.s yot .,n co8- ormî,ty with .'irticla 2, pmagaph 2, of the Ilavann Conv~ntion,
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The two 6ubmi's~ioks. of ColomEi a erc rejactcd,the first by fourtcen
vcites to two (Judçe Azevcdo and ii, Cxicedo, Judge ad hoc), the second by

fiftcen votes to one (~ud~~e2aiccdo). A3 for the counter-clah of the
Govern~ent of Ferni, it %$asrejected by fifteen votes to one ln so fer as St
wasfoundedon a ~olation of the :krticlc of the Havc,na Convention providhg
that asylum shall hot bc 1;/2,nted to persons cccused of comon crimes. But on
the second point; the 'countcr-clairri rras illowcd by ken 'votes ta six.(~ud~e~

Jlvarez, Zoricic, BScia~rliPasha, Red ad Aae~redo nrid 1.. Caicedo, LTudge ad hoc ,)

The dissentine opintons of Judges21var¢z, Bada1.n.Pasha, %ad, Azevedo,
li, Caicedo,Jud.ye ad hoc, were a~psndzd to thc Judgment . In respect of

the second point of the Zqunter-&Lm, Judgo Zoricic subucrYmd to the opinion
of ~ud~e' Z;ler?d.

The Hague, Novamber Mth, 1950,

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