Colombia v Perú [1950] ICJ 6 (also known as the Asylum Case) is a public international law case, decided by

the International Court of Justice. The ICJ recognised that the scope of Article 38 of the Statute of the

International Court of Justice encompassed bi-lateral and regional international customary norms as well as

general customary norms, in much the same way as it encompasses bilateral and multilateral treaties.[1] The

Court also clarified that for custom to be definitively proven, it must be continuously and uniformly executed.

Contents

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1 Facts 2 Judgment 3 See also 4 References 5 External links

Facts[edit]

The Colombian Ambassador in Lima, Perú allowed Víctor Raúl Haya de la Torre , head of the American

People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1949.

The Colombian government granted him asylum, but the Peruvian government refused to grant him safe

passage out of Peru.

Colombia maintained that according to the Conventions in force - the Bolivian Agreement of 1911 on

Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political

Asylum[2] - and according to American International Law, they were entitled to decide if asylum should be

granted and their unilateral decision on this was binding on Perú.[3]

Judgment[edit]

Both submissions of Colombia were rejected by the Court. It was not found that the custom of Asylum was

uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable

character.

mmary of the Summary of the Judgment of 13 June 1951

HAYA DE LA TORRE CASE

Judgment of 13 June 1951

The Haya de la Torre case between Colombia and Peru with Cuba as intervening Party, was brought before the Court under the following circumstances:In a Judgment delivered on November 20th, 1950, the Court had defined the legal relations between Colombia and Peru in regard to questions which those States had submitted to it, concerning diplomatic asylum in general and, in particular, the asylum granted on January 3rd/4th, 1949 by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre; the Court had found that, in this case, the asylum had not been granted in conformity with the Convention on Asylum signed at Havana in 1928. After the Judgment had been delivered, Peru requested Colombia to execute it, and called upon her to put an end to a protection improperly granted by surrendering the refugee. Colombia replied that to deliver the refugee would be not only to disregard the Judgment of November 20th, but also to violate the Havana Convention and she instituted proceedings before the Court by an Application which was filed on December 13th, 1950.In her Application, and during the procedure, Colombia asked the Court to state in what manner the Judgment of November 20th, 1950, was to be executed, and, furthermore, to declare that, in executing that Judgment, she was not bound to surrender Haya de la Torre. Peru, for her part, also asked the Court to state in what manner Colombia should execute the Judgment. She further asked, first, the rejection of the Colombian Submission requesting the Court to state, solely, that she was not bound to surrender Haya de la Torre, and, secondly, for a declaration that the asylum ought to have ceased immediately after the delivery of the Judgment of November 20th, 1950, and that it must in any case cease forthwith, in order that Peruvian justice might resume its normal course which had been suspended.In its Haya de la Torre judgment the Court declared:by a unanimous vote that it is not part of the Court's judicial functions to make a choice among the different ways in which the asylum may be brought to an end;by thirteen votes against one, that Colombia is under no obligation to surrender Haya de la Torre to the Peruvian authorities;by a unanimous vote that the asylum ought to have ceased after the delivery of the Judgment of November 20th, 1950, and must be brought to an end.In its Judgment, the Court examines, in the first place, the admissibility of the Cuban Government's intervention. That Government, availing itself of the right which the Statute of the Court confers on States parties to a convention, the interpretation of which is in issue, had filed a Declaration of Intervention in which it set forth its views concerning the interpretation of the Havana Convention. The Government of Peru contended that the Intervention was inadmissible: that it was out of time, and was really in the nature of an attempt by a third State to appeal against the Judgment of November 20th. In regard to that point, the Court observes that every intervention is incidental to the proceedings in a case, that, consequently, a declaration filed as an intervention only acquires that character if it actually relates to the subject-matter of the pending proceedings. The subject matter of the present case relates to a new question - the surrender of Haya de la Torre to the Peruvian authorities - which was completely outside the Submissions of the parties and was in consequence not decided by the Judgment of November 20th. In these circumstances, the point which it is necessary to ascertain is whether the object of the intervention is the interpretation of the Havana Convention in regard to the question whether Colombia is under an obligation to surrender the refugee: as according to the representative of the Government of Cuba the intervention was based on the fact that it was necessary to interpret a new aspect of the Havana Convention, the Court decided to admit it.The Court goes on to discuss the merits. It observes that both parties are seeking to obtain a decision as to the manner in which the Judgment of November 20th is to be executed. That Judgment, in deciding on the regularity of the asylum, confined itself to defining the legal relations which the Havana Convention had established, in regard to this matter between the parties; it did not give any directions to the parties, and only entailed for them the obligation of compliance with the Judgment. However, the form in which the parties have formulated their submissions shows that they desire that the Court should make a choice among the various courses by which the asylum might be terminated. These courses are conditioned by facts and possibilities which, to a very large extent, the parties are alone in a position to appreciate. A choice among them could not be based on legal considerations, but only on grounds of practicability or of political expediency. Consequently, it is not part of the Court's judicial function to make such a choice, and it is impossible for it to give effect to the submissions of the parties in this respect.As regards the surrender of the refugee, this is a new question, which was only brought before the Court by the Application of December 13th, 1950, and which was not decided by the Judgment of November 20th. According to the Havana Convention, diplomatic asylum, which is a provisional measure for the temporary protection of political offenders, must be terminated as soon as possible. However, the Convention does not give a complete answer to the question of the manner in which an asylum must be terminated. As to persons guilty of common crimes, it expressly requires that they be surrendered to the local authorities. For political offenders it prescribes the grant of a safe-conduct for the departure from the country. But a safe-conduct can only be claimed if the asylum has been regularly granted and maintained and if the territorial State has required that the refugee should be sent out of the country. For cases in which the asylum has not been regularly granted and where the territorial State has made no such demand, the Convention makes no provision. To interpret this silence as imposing an obligation to surrender the refugee would be repugnant to the spirit which animated the Convention in conformity with the Latin American tradition in regard to asylum, a tradition in accordance with which a political refugee ought not to be surrendered. There is nothing in that tradition to indicate that an exception should be made in case of an irregular asylum. If it had been intended to abandon that tradition, an express provision to that effect would have been needed. The silence of the Convention implies that it was intended to leave the adjustment of the consequences of such situations to decisions inspired by considerations of convenience or simple political expediency.It is true that, in principle, asylum cannot be opposed to the operation of the national justice, and the safety which arises from asylum cannot be construed as a protection against the laws and the jurisdiction of the legally constituted tribunals. The Court declared this in its Judgment of November 20th. But it would be an entirely different thing to say that there is an obligation to surrender a person accused of a political offence because the asylum was irregular. That would amount to rendering positive assistance to the local authorities in their prosecution of a political refugee, and would be greatly exceeding the findings of the Court in its Judgment of November 20th; such assistance could not be admitted without an express provision to that effect in the Convention. As concerns Haya de la Torre, the Court declared in its Judgment of November 20th, on the one hand, that it had not been proved that, before asylum was granted, he had been accused of common crimes; on the other hand, it found that the asylum had not been granted to him in conformity with the Convention. Consequently, and in view of the foregoing considerations, Colombia is not obliged to surrender him to the Peruvian authorities.Finally the Court examines the Peruvian submissions which Colombia asked it to dismiss, concerning the termination of the asylum. The Court states that the Judgment of November 20th, declaring that the asylum was irregularly granted entails a legal consequence, namely, that of putting an end to this irregularity by terminating the asylum. Peru is therefore legally entitled to claim that the asylum should cease. However, Peru has added that the asylum should cease "in order that Peruvian justice may resume its normal course which has been suspended". This addition, which appears to involve the indirect claim for the surrender of the refugee, cannot be accepted by the Court.The Court thus arrives at the conclusion that the asylum must cease, but that Colombia is not bound to discharge her obligation by surrendering the refugee. There is no contradiction between these two findings, since surrender is not the only manner in which asylum may be terminated.

Having thus defined, in accordance with the Havana Convention, the legal relations between the parties with regard to the matters referred to it, the Court declares that it has completed its task. It is unable to give any practical advice as to the various courses which might be followed with a view to terminating the asylum, since, by so doing, it would depart from its judicial function. But it can be assumed that the parties, now that their mutual legal relations have been made clear, will be able to find a practical and satisfactory solution seeking guidance from those considerations of courtesy and good neighbourliness which, in matters of asylum, have always held a prominent place in the relations between the Latin American Republics.

Facts Edit

The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre, in its embassy. It claimed it

had a right to do this both under agreements between the states and in a local custom in the Latin American

states.

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Issue Edit

1. Can the Colombian government offer asylum under local custom?

Decision Edit

No such local custom exists sufficient to be binding at international law.

Reasons Edit

The Court held that the party which relies on a custom of this kind has the burden of establishing that the

custom exists in such a way that it has become binding on the other party, through constant and uniform usage

of the states.

On the facts, very few states had ratified the conventions which Colombia relied on and there was significant

discrepancy in the practice of asylum. Because of this, the Court was unable to find a custom which met the

standard in the North Sea Continental Shelf case.

Ratio Edit

A party which claims a custom exists must prove that the custom was established in such a manner that it has

become binding on the other party.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was

Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence)

in a manner binding on Peru and 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 (note the term refugee is not the same as the Refugee Convention of 1951).

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 Court’s 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. The court stated that in the normal course of granting diplomatic asylum a diplomatic

representative has the competence to make a provisional qualification of the offence (for example, as

a political offence) and the territorial State has the right to give consent to this qualification. In the

Torre’s 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. The court had to

decide if such a decision was binding on Peru either 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 (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held that

the burden of proof on the existence of an alleged customary law rests with the party making the

allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in such a

manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant

and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of

a right appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the

territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers

to international custom “as evidence of a general practice accepted as law(text in brackets added).”

4. The court held that 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, 1948 and see

also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). 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 (see North Sea Continental Shelf

Cases   and  Lotus Case  for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic

asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and

definitive qualification was invoked or … that it was, apart from conventional stipulations, exercised by

the States granting asylum as a right appertaining to them and respected by the territorial States as a

duty incumbent on them and not merely for reasons of political expediency. The facts brought to the

knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and

discrepancy in the exercise of diplomatic asylum and in the official views expressed on various

occasions, there has been so much inconsistency in the rapid succession of conventions on asylum,

ratified by some States and rejected by others, and the practice has been so much influenced by

considerations of political expediency in the various cases, that it is not possible to discern in all this

any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral

and definitive qualification of the offence.”

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.” (See in this regard, the lesson on persistent objectors. Similarly in the North Sea

Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be inapplicable as

against Norway in as much as she had always opposed any attempt to apply it to the Norwegian

coast’.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the

offence by a unilateral and definitive decision, binding on Peru.

(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).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum

immediately requests a safe conduct without awaiting a request from the territorial state for the

departure of the refugee…but this practice does not and cannot mean that the State, to whom such a

request for safe-conduct has been addressed, is legally bound to accede to it.”

(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. In other words, the person-seeking asylum must not be accused of a common crime (for example,

murder would constitute a common crime, while a political offence would not).The accusations that are

relevant are those made before the granting of asylum. Torre’s accusation related to a military

rebellion, which the court concluded was not a common crime and as such the granting of asylum

complied with Article 1 of the Convention.

11. 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.”

NB: The court also discussed the difference between extradition and granting of asylum – you can read

more on this in pp. 12 – 13 of the judgment. The discussions on the admissibility of the counter claim

of Peru are set out in pp. 18 – 19.