Haya de la Torre (Colombia/Peru) - Judgment of the Court of 13 June 1951

I.C.J.

The following information l'rom the Registry of the Tn'cernatioml
Court of Justice has been comnicated to the Presst

To-dsy, Wedne sday,Jwne 13th,1951 $ho International Court of Justice
delivered its Judgment in the Iiaya de la Torrc case betwcon Colornbia and Peru, &th
Cuba as intcrvening Party, The circumstancc sn which this case was
brought bufors the Court were as follows:

In a Judgmnt delivered on Xovember 20th,1450, the Court had
defined thc legal relations between Colalnbia and Peru in regard to
questions tthich those States had submitted to it, concerning diplornatic
asylum in g~ncral and, in particular, the asylumgranted on Jaliuary jr~//icth,
19.49, by the Colombian hbassadar ai Lhm to Victor bu1 Haya do la Torre;
the Cou~t had found that, in this case, the asylm had no-t been granted in
coriformîty with tho Conwnt,ion on Asylumsigned at Hcvana in 1928, After
the Judgm~nt had been dclivcred, Peru i-cqussted Golombia to exzcute it,

and called upon hcr to put an cnd ta a pratcctlon impropesly granted by
surrendering %ka refugee. Galombia replied that to deliver the refugee
would be not onlyto disregard the Judgment of PJovember 2Qth,but also
to violate Gbs Havana Convention; and she instituted proceedings before
the Court by an Application w11kchwas filed on Decer~ber 13tl.1,1950.

In her Application, and during the procedure, Colombia asked the
Court to state inwhatmarner the Judgmznt of iqovember 20tl3, 1950, vfas to
be executcd, and, furthermore, to declars th~t,in executing that Jud@en$,
she was no'c bound to suryender Haya de 1a Torre. Peru, for her part,
also asked the Courtto state in wh2t mmcr Golombia should executc

the Judgment. She further askcd, Zfrst, thc! rejection oî the Color~lbian
Suhnission requesting t;h~Court to'staté, sololy, that ahe was not bound
to surrendcr Haya d.c la Torrc, and, secondlyfor a declaration that thc
asylum ozlght to have ccasedimmediatuly aft~r the delivery of the Judpent
of IoveinScr 20th, 1950, and that it mst in any case ccasc Iorthwrith,
in order that Tcruvian justice might resmlc its normal course >hich nad
been suapendcd.

In its Judgnent delivered $0-day, the Court declares:

by a manimous votethat it is notpart of the Court's judicial

functiom to make a choicz among the different ways in &Tch the asylum
my be brought to an end;

by thirteen votes against one, thatColombia is under .noobligation
to surrender Haxa de la Torre to the Peruvian authorities;

by a unanjmous vote that the asylumought to havz ccased after
the delivery af the Judpn5 of ldovember 2Cith, 1950, and must be brought
to an end.
3E

In its Judgment, the Court cdnos, in the firstplace, the
adinissibility of tbe Cubm Goverment s ilitomrention. Thet Goverment,
axeiling ltsolfof the right wizich the Statutc of thc Court confers on
Statas parties to a convention, the interprctation of whieh is in issue,
had filed a Declaration of 1n"corventfon in wl~ich it sct forthits views
concerning the interprctatioo nf the Bavana Convention. The ~ovarnmcnt
of Pemi contandcd that th¢ Iiitar~ntion wzs inadmissible: that it ms
out of tirne, md was really in the naturc of ea a.ttampt by a thîrd State
to appeal ag,ainst the Judgment of Novcmber 20th. In rcgzrd to that point,the Court observes that every intervention 3s incidental to the procacdings

in n case, that, consequcntly, a declaration filed as an intervcntion
only acquiresthat character if it actually rclatcs tc the subject-matter
of ths pendhg proceedsngs, The subject mtter of the present case
relates to a new question '- the surrendor .of Hayn dc La Torre to the
Peruvian authoritics - which m.s complctcl yutside the Submissions of
the parties and FES in consequence not àecided by tha Judqent of Iqovember
20th. In these circumstanccs the point lcrhicit is necessary ta ascertain
is whather the objcct of the intervantion is the interpretatio nf the
Hnmria Convention in regard to the question whùther Columbia is under
an obligation to surr~nder thc rcfugce: 2s) according to the represcnta-
tive of the Govermnt of Cuba, the intervention ms based un the fact
that it was necessary to interpret a ncw aspect of the WavanaConvcntion,
,the Court dccided to admitit.

The Court gaes on to discuss the merits. It observes that
both partias are secung to obtnin a decision as to the mamcr in which
the Judgment of November20this ta bc exùcuted. Shat Judgment, in
dcclding on the regularity of the nsylum, confined itself to de fining the
legal ref ations which the Hamna Co~vention had established, in regard
to this mtter, betwecn the parties; it did not givc any directions to
the parties, and only enkailcd for thun the obligatia nf cornpliance
thc Judgment. However, thc forrn in which thc parties haveformulatcd "O
thcir submissions shows thak thcy dcsire that the Court should mke a
choice among the vwious coursus by d'nich the nsyluilimi&t bc tcmiinated.
Shesc courses are conditionod by facts and possibilities whicEi, to a

very large extcnt, th2 parties arc slonc in a posikion to zppreciate.
A choice among them could not bc bascd on lcgal cansidcratians, but ofly
on groundsof practicabilit oyr of political expedicizcy. Cansequcntly,
it is not part of the Cowt7s judicial function to mke such a, choicc,
and it is Impossible for it to givc cffoct to thc subnûssions of tho
parties in this respect. .

As regards thc surrcndcr of the rcfugce, this is a ncv quos'cion,
whichms only brought beforc the Court by the Applicatioo nr"Decernbor
15th, 1950, and which w.s not dacidcd by the Judgmenlt of Novcmber 20th,
According to the Havanri.Convcntion, diplomtic asylum, thicn is a
provisional measure for the tcmpormy protection of poljtical offcndcrs,
rnustbe terminatod as soon as possible. Howcver, the Convention does

not givc a completeanswer to thc questionof the mmor in which zn
asylm mus% bc terdnated, As to pcrsons guilty of common crir:ics,
expressly requiresthet thcy bc surrendcred to the lacal authoritics, it @
For political offenders it prescribcsthe grant of a safe-conduct for
the depzrture from the country, But a safc-conduct cm only be clajmed
if the asylumhas been rsgularly grantod and mainta5nedand if the
territorial State has requircd that the refugsc sheuid be sent out of
the country. For cases in which the asyh hcs not been regularly
granted and where the territorial Statc has mde no such demand, the
Convation mzkesno provision. To interyiret this silence as impsing
an obligation to surrender the rcfugco vsuld bc rcpug~iant to the s-irit
which animated the Convention in canformity wit'n the Latin kmerlcan
tradition in regard to asylwn, a tradition in accordance with wl-iicha
political refugee aught not to bc surrendsrcd. Thoro is nothing in
that tradition to indicate that an axçeption should bc +mdc in case of

an irrcgular asylum. If it had bacn intcnded to abandon that tradition,
an express provision to thateffeck muld have bcen nceded, The silence
of the Convention imyliea that it vas intended to lmve the adjustment
of the consequenees of such situations to decisiens inspired by con-
siderations of convenienc¢ or simple -oLitic~.l e~gedicncy,

Zt iz truc that, in principle, asylwn cannot be opp~sed to th&
operati .onof the national justice, and ti-isnfcty which arises from
asylumcannot be coristrued as a jrotcction againstille laws and the jurisdictio onf tho Lcgally constituted tribunal3 , Tke Court declarod
this in its Judgment of November 20th. But it would bo an entirely
differ~nt thing to say that there is an obligation to surrender a person
accused of a political oÎfence bccs~zsc the asylm was irregdar. That
müid amouni ta rendering positive assistance tclthe local authorities
in their prosecution of a political refuges, and wauld bc grcatly
exceeding the findings of the Court in its Judgnlcnt of Noverher 20th;such

assistance could no% be aWtted without an cxpress?rov-ision £0 thab
effect in the Convention, As cuncmns Haya do la Torrc, the Court
declared in its Judperrt; of Noverabcr 20th,on thc one hcmd, that it had
not been praved that, before asylu;ivrzs grantcd, he had been accused of
cormon crimes; on the othcr hand, it found that the asylum had not been
' granted to him in conTormitg with the Convention, Consequentlg ,nd in
view of the foregoing cansiderations, Colorrbia is not oSliged to surrender
him,to th2 Peruvian authoritics.

Finally,' the Court oxainirrcsthe Peruvian submisslons which
Colombia asked it to dismiss,concerning th2 tormination of the asylum.
The Court states that thc Judgqent of iTovember 20th, declaring that the

asylum was irregulnrlg grmted cntails s Icgal consequence narneQ that of
putting an end to this irrcgularity by torminating the asylum. Puru is.
thereforc legally entitled to clah that thc asylwn. should cease?
However, Feru has added that the asylm should ceaso Ilin ordcr that
Peruvian Justice may rasume its normal courso rvhich has becn suspended tT
This additiori, which appears to Inwilvc an indircct claim for the
surender of tho refugce, cannot be acceptcd by thc Court,

The Court thus arrivas at thc conclusio hat th2 asylum
must cease, but that Colombia is not baud to discharge her oblig~~tion
by surrendering the rcfugcc. mer¢ is no contrsdict5o bct-ricen tbcse
ttm findings, sinco surrendcr is not the on& munnarin uhich asylm
may bc terminatecl.

Having thus dof inzd, in accordance with thc HavanaCon-
vention, thc legalrelstions bctwecn ths parties with regard to the
nattcrs referred to it, the Court dcclarcs thatit hcs com~lctzd its task.
Zt is unsblc to give zny practiczl advice as to the various courses ivhich
might be followd ~5th a vriow to torminnting th2 asylum, since, by
so doing, it ~muld depert fron its judicial function. But it can be
assumcid th& the parties, now that thoir mutual l~gal relations have 0
a been mzde clear, will be ablo ta find n pxctiçal and satisfactory solution,
seekingguidance from thaseconsidcrations of courtesy .and good neigh-
bourlinesw shich, in mattersof asylurr~, havc alwajrs held a prominent
place in the relations betwcen the Latin shilc~icanRepubJics.

The Hague, Juns 13th, 1951,