国际判例
Asylum Case
Colombia/Peru
Judgment of ICJ
20 November 1950
The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on
January 3rd, 1949, by the Colombian Ambassador in Lima to M. Victor Raúl Haya de la
Torre, head of a political party in Peru, the American People's Revolutionary Alliance. On
October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted
against Haya de la Torre for the instigation and direction of that rebellion. He was sought
out by the Peruvian authorities, but without success, and after asylum had been granted to
the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya
de la Torre, whom he qualified as a political offender, to leave the country. The
Government of Peru refused, claiming that Haya de la Torre had committed common
crimes and was not entitled to enjoy the benefits of asylum. Being unable to reach an
agreement, the two Governments submitted to the Court certain questions concerning their
dispute; these questions were set out in an Application submitted by Colombia and in a
Counter-Claim submitted by Peru.
January 3rd, 1949, by the Colombian Ambassador in Lima to M. Victor Raúl Haya de la
Torre, head of a political party in Peru, the American People's Revolutionary Alliance. On
October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted
against Haya de la Torre for the instigation and direction of that rebellion. He was sought
out by the Peruvian authorities, but without success, and after asylum had been granted to
the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable Haya
de la Torre, whom he qualified as a political offender, to leave the country. The
Government of Peru refused, claiming that Haya de la Torre had committed common
crimes and was not entitled to enjoy the benefits of asylum. Being unable to reach an
agreement, the two Governments submitted to the Court certain questions concerning their
dispute; these questions were set out in an Application submitted by Colombia and in a
Counter-Claim submitted by Peru.
In its Judgment, the Court, by fourteen votes to two, declared that Colombia was not
entitled to qualify unilaterally and in a manner binding upon Peru the nature of the offence;
by fifteen votes to one, it declared that the Government of Peru was not bound to deliver a
safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one
the Peruvian contention that Haya de la Torre was accused of common crimes; the Court
noted that the only count against Haya de la Torre was that of military rebellion and
military rebellion was not, in itself, a common crime. Lastly, by ten votes to six, the Court,
without criticising the attitude of the Colombian Ambassador in Lima, considered that the
requirements for asylum to be granted in conformity with the relevant treaties were not
fulfilled at the time when he received Haya de la Torre. Indeed, according to the
interpretation which the Court put upon the Convention of Havana, asylum could not be an
obstacle to proceedings instituted by legal authorities operating in accordance with the law.
entitled to qualify unilaterally and in a manner binding upon Peru the nature of the offence;
by fifteen votes to one, it declared that the Government of Peru was not bound to deliver a
safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one
the Peruvian contention that Haya de la Torre was accused of common crimes; the Court
noted that the only count against Haya de la Torre was that of military rebellion and
military rebellion was not, in itself, a common crime. Lastly, by ten votes to six, the Court,
without criticising the attitude of the Colombian Ambassador in Lima, considered that the
requirements for asylum to be granted in conformity with the relevant treaties were not
fulfilled at the time when he received Haya de la Torre. Indeed, according to the
interpretation which the Court put upon the Convention of Havana, asylum could not be an
obstacle to proceedings instituted by legal authorities operating in accordance with the law.
*
* *
The facts following which the case was brought before the Court are set out in the
Judgment:
Judgment:
On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same
day. On the following day, a decree was published charging a political party, the American
People's Revolutionary Party, with having prepared and directed the rebellion. The head of
the Party, Victor Raúl Haya de la Torre, was denounced as being responsible. With other
members of the party, he was prosecuted on a charge of military rebellion. As he was still
at liberty on November 16th, summonses were published ordering him to appear before the
Examining Magistrate. On January 3rd, 1949, he was granted asylum in the Colombian
Embassy in Lima. Meanwhile, on October 27th, 1948, a Military Junta had assumed power
in Peru and had published a decree providing for Courts-martial for summary judgment in
cases of rebellion, sedition and rioting; but this decree was not applied to the legal
proceedings against Haya de la Torre and others, and it has been declared before the Court
that this Decree was not applicable to the said proceedings. Furthermore, during the period
from October 4th to the beginning of February, 1949, Peru was in a state of siege.
day. On the following day, a decree was published charging a political party, the American
People's Revolutionary Party, with having prepared and directed the rebellion. The head of
the Party, Victor Raúl Haya de la Torre, was denounced as being responsible. With other
members of the party, he was prosecuted on a charge of military rebellion. As he was still
at liberty on November 16th, summonses were published ordering him to appear before the
Examining Magistrate. On January 3rd, 1949, he was granted asylum in the Colombian
Embassy in Lima. Meanwhile, on October 27th, 1948, a Military Junta had assumed power
in Peru and had published a decree providing for Courts-martial for summary judgment in
cases of rebellion, sedition and rioting; but this decree was not applied to the legal
proceedings against Haya de la Torre and others, and it has been declared before the Court
that this Decree was not applicable to the said proceedings. Furthermore, during the period
from October 4th to the beginning of February, 1949, Peru was in a state of siege.
On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian
Government of the asylum granted to Haya de la Torre, at the same time he asked that a
safe-conduct be issued to enable the refugee to leave the country. On January 14th, he
further stated that the refugee had been qualified as a political refugee. The Peruvian
Government disputed this qualification and refused to grant a safe-conduct. A diplomatic
correspondence ensued which terminated in the signature, in Lima, on August 31st, 1949,
of an Act by which the two Governments agreed to submit the case to the International
Court of Justice.
*
* *
Colombia maintained before the Court that, according to the Convention in force - the
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum
the Montevideo Convention of 1933 on Political Asylum - and according to American
International Law, she was entitled to qualify the nature of the offence for the purposes of
the asylum. In this connection, the Court considered that, if the qualification in question
were provisional, there could be no doubt on that point: the diplomatic representative
would consider whether the required conditions had been satisfied, he would pronounce his
opinion and if that opinion were contested, a controversy would then arise which might be
settled according to the methods provided by the Parties.
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum
the Montevideo Convention of 1933 on Political Asylum - and according to American
International Law, she was entitled to qualify the nature of the offence for the purposes of
the asylum. In this connection, the Court considered that, if the qualification in question
were provisional, there could be no doubt on that point: the diplomatic representative
would consider whether the required conditions had been satisfied, he would pronounce his
opinion and if that opinion were contested, a controversy would then arise which might be
settled according to the methods provided by the Parties.
But it resulted from the proceedings in the case that Colombia claimed the right of
unilateral and definitive qualification binding upon Peru. The first of the Treaties which it
invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in
one Article to recognizing the institution of asylum in accordance with the principles of
international law. But these principles do not entail the right of unilateral qualification. On
the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not
possible to deduce from them conclusions concerning diplomatic asylum. In the case of
extradition, the refugee was on the territory of the State of refuge: if asylum were granted
to him, such decision would not derogate from the sovereignty of the States in which the
offence was committed. On the contrary, in the case of diplomatic asylum, the refugee was
on the territory of the State in which he had committed the offence: the decision to grant
asylum derogated from the sovereignty of the territorial State and removed the offender
from the jurisdiction of that State.
unilateral and definitive qualification binding upon Peru. The first of the Treaties which it
invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in
one Article to recognizing the institution of asylum in accordance with the principles of
international law. But these principles do not entail the right of unilateral qualification. On
the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not
possible to deduce from them conclusions concerning diplomatic asylum. In the case of
extradition, the refugee was on the territory of the State of refuge: if asylum were granted
to him, such decision would not derogate from the sovereignty of the States in which the
offence was committed. On the contrary, in the case of diplomatic asylum, the refugee was
on the territory of the State in which he had committed the offence: the decision to grant
asylum derogated from the sovereignty of the territorial State and removed the offender
from the jurisdiction of that State.
As for the second treaty invoked by Colombia - the Havana Convention - it did not
recognize the right of unilateral qualification either explicitly or implicitly. The third
treaty - the Convention of Montevideo - had not been ratified by Peru and could be
invoked against that country.
recognize the right of unilateral qualification either explicitly or implicitly. The third
treaty - the Convention of Montevideo - had not been ratified by Peru and could be
invoked against that country.
Finally, as regarded American international law, Colombia had not proved the existence,
either regionally or locally, of a constant and uniform practice of unilateral qualification as
a right of the State of refuge and an obligation upon the territorial State. The facts
submitted to the Court disclosed too much contradiction and fluctuation to make it possible
to discern therein a usage peculiar to Latin America and accepted as law.
either regionally or locally, of a constant and uniform practice of unilateral qualification as
a right of the State of refuge and an obligation upon the territorial State. The facts
submitted to the Court disclosed too much contradiction and fluctuation to make it possible
to discern therein a usage peculiar to Latin America and accepted as law.
It therefore followed that Colombia, as the State granting asylum, was not competent to
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
*
* *
Colombia also maintained that Peru was under the obligation to issue a safe-conduct to
enable the refugee to leave the country in safety. The Court, setting aside for the time being
the question of whether asylum was regularly granted and maintained, noted that the clause
in the Havana Convention which provided guaranties for the refugee was applicable solely
to a case where the territorial State demanded the departure of the refugee from its
territory: it was only after such a demand that the diplomatic Agent who granted asylum
could, in turn, require a safe-conduct. There was, of course, a practice according to which
the diplomatic Agent immediately requested a safe-conduct, which was granted to him: but
this practice, which was to be explained by reasons of expediency, laid no obligation upon
the territorial State.
enable the refugee to leave the country in safety. The Court, setting aside for the time being
the question of whether asylum was regularly granted and maintained, noted that the clause
in the Havana Convention which provided guaranties for the refugee was applicable solely
to a case where the territorial State demanded the departure of the refugee from its
territory: it was only after such a demand that the diplomatic Agent who granted asylum
could, in turn, require a safe-conduct. There was, of course, a practice according to which
the diplomatic Agent immediately requested a safe-conduct, which was granted to him: but
this practice, which was to be explained by reasons of expediency, laid no obligation upon
the territorial State.
In the present case, Peru had not demanded the departure of the refugee and was therefore
not bound to deliver a safe-conduct.
not bound to deliver a safe-conduct.
*
* *
In a counter-claim, Peru had asked the Court to declare that asylum had been granted to
Haya de la Torre in violation of the Havana Convention, first, because Haya de la Torre
was accused, not of a political offence but of a common crime and, secondly, because the
urgency which was required under the Havana Convention in order to justify asylum was
absent in that case.
Haya de la Torre in violation of the Havana Convention, first, because Haya de la Torre
was accused, not of a political offence but of a common crime and, secondly, because the
urgency which was required under the Havana Convention in order to justify asylum was
absent in that case.
Having observed that Peru had at no time asked for the surrender of the refugee, the Court
examined the first point. In this connection, the Court noted that the only charge against
the refugee was that of military rebellion, which was not a common crime. Consequently,
the Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded.
examined the first point. In this connection, the Court noted that the only charge against
the refugee was that of military rebellion, which was not a common crime. Consequently,
the Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded.
On the question of urgency, the Court, having observed that the essential justification of
asylum lay in the imminence or persistence of a danger to the person of the refugee,
analysed the facts of the case.
asylum lay in the imminence or persistence of a danger to the person of the refugee,
analysed the facts of the case.
Three months had elapsed between the military rebellion and the grant of asylum. There
was no question of protecting Haya de la Torre for humanitarian considerations against the
violent and uncontrolled action of irresponsible elements of the population, the danger
which confronted Haya de la Torre was that of having to face legal proceedings. The
Havana Convention was not intended to protect a citizen who had plotted against the
institutions of his country from regular legal proceedings. It was not sufficient to be
accused of a political offence in order to be entitled to receive asylum; asylum could only
intervene against the action of justice in cases where arbitrary action was substituted for
the rule of law. It had not been proved that the situation in Peru at the time implied the
subordination of justice to the executive or the abolition of judicial guarantees.
was no question of protecting Haya de la Torre for humanitarian considerations against the
violent and uncontrolled action of irresponsible elements of the population, the danger
which confronted Haya de la Torre was that of having to face legal proceedings. The
Havana Convention was not intended to protect a citizen who had plotted against the
institutions of his country from regular legal proceedings. It was not sufficient to be
accused of a political offence in order to be entitled to receive asylum; asylum could only
intervene against the action of justice in cases where arbitrary action was substituted for
the rule of law. It had not been proved that the situation in Peru at the time implied the
subordination of justice to the executive or the abolition of judicial guarantees.
Besides, the Havana Convention was unable to establish a legal system which would
guarantee to persons accused of political offences the privilege of evading their national
jurisdiction. Such a conception would come into conflict with one of the oldest traditions
of Latin America, that of nonintervention. For if the Havana Convention had wished to
ensure general protection to all persons prosecuted for political crimes in the course of
revolutionary events, for the sole reason that it should be presumed that such events
guarantee to persons accused of political offences the privilege of evading their national
jurisdiction. Such a conception would come into conflict with one of the oldest traditions
of Latin America, that of nonintervention. For if the Havana Convention had wished to
ensure general protection to all persons prosecuted for political crimes in the course of
revolutionary events, for the sole reason that it should be presumed that such events
interfere with the administration of justice, this would lead to foreign interference of a
particularly offensive nature in the domestic affairs of States.
As for the numerous cases cited by Colombia, the Court was of opinion that considerations
of convenience or political expediency seemed to have prompted the territorial State to
recognize asylum without such as decision being dictated by any feeling of legal
obligation. Asylum in Latin America was an institution which owed its development
largely to extra-legal factors.
of convenience or political expediency seemed to have prompted the territorial State to
recognize asylum without such as decision being dictated by any feeling of legal
obligation. Asylum in Latin America was an institution which owed its development
largely to extra-legal factors.
Whilst declaring that at the time at which asylum was granted, on January 3rd, 1949, there
was no case of urgency within the meaning of the Havana Convention, the Judgment
declared that this in no way constituted a criticism of the Colombian Ambassador. His
appreciation of the case was not a relevant factor to the question of the validity of the
asylum: only the objective reality of the facts was of importance.
was no case of urgency within the meaning of the Havana Convention, the Judgment
declared that this in no way constituted a criticism of the Colombian Ambassador. His
appreciation of the case was not a relevant factor to the question of the validity of the
asylum: only the objective reality of the facts was of importance.
The Court therefore came to the conclusion that the grant of asylum was not in conformity
with Article 2, paragraph 2, of the Havana Convention.
with Article 2, paragraph 2, of the Havana Convention.
The two submissions of Colombia were rejected, the first by fourteen votes to two
(Judge Azevedo and M. Caicedo, Judge ad hoc), the second by fifteen votes to one (Judge
Caicedo). As for the counter-claim of the Government of Peru, it was rejected by fifteen
votes to one in so far as it was founded on a violation of the Article of the Havana
Convention providing that asylum shall not be granted to persons accused of common
crimes. But on the second point, the counter-claim was allowed by ten votes to six. (Judges
Alvarez, Zoricic, Badawi Pasha, Read and Azevedo and M. Caicedo, Judge ad hoc.)
(Judge Azevedo and M. Caicedo, Judge ad hoc), the second by fifteen votes to one (Judge
Caicedo). As for the counter-claim of the Government of Peru, it was rejected by fifteen
votes to one in so far as it was founded on a violation of the Article of the Havana
Convention providing that asylum shall not be granted to persons accused of common
crimes. But on the second point, the counter-claim was allowed by ten votes to six. (Judges
Alvarez, Zoricic, Badawi Pasha, Read and Azevedo and M. Caicedo, Judge ad hoc.)
The dissenting opinions of Judges Alvarez, Badawi Pasha, Read, Azevedo, and M.
Caicedo, Judge ad hoc, were appended to the Judgment. In respect of the second point of
the counter-claim, Judge Zoricic subscribed to the opinion of Judge Read.
Caicedo, Judge ad hoc, were appended to the Judgment. In respect of the second point of
the counter-claim, Judge Zoricic subscribed to the opinion of Judge Read.