Open Access Research Article
ASYLUM CASE (PERU V. COLUMBIA)
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Article Details
ASYLUM CASE (PERU V. COLUMBIA)
AUTHORED BY - MS. MAARIA LAKDAWALA (A017)
YEAR: BBA-LLB
3rd YEAR, SEMESTER-VI
RESEARCH PAPER SUBMITTED
TO THE SVKM’S
NMIMS, NAVI MUMBAI
KIRIT P. MEHTA
SCHOOL OF LAW
FOR BBA LLB
[HONS.]
FACTS OF THE CASE:
The origin of
the Colombian-Peruvian Asylum case lies in the asylum granted on January3rd. 1949,
by the Colombian Ambassador in Lima to Mr. Victor Raul 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 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 Raul 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. He was sought out by the Peruvian
authorities, but without success and after asylum had been granted to the refugee,
he qualified as a political offender, to leave the country. The Peruvian
Government refused, claiming that Haya de la Torres had committed common crimes
and was not entitled to enjoy the benefits of asylum.
On January3rd.
1949, he was granted asylum in the Colombian Embassy in Lima. 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. 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 war; 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 state of siege.
A
diplomatic correspondence ensued which terminated in the signature, in Lima, on
August 31 1949, of an Act by which the two Governments agreed to submit the case to
the International Court of Justice.
ISSUES RAISED
BEFORE THE COURT:
·
Is it legal for Colombia, as the country that grants asylum,
to qualify an offence for asylum purposes unilaterally under treaty law and international
law?
·
Was Peru, as the territorial state, obligated to provide
an assurance of safe passage in this case?
·
Did Colombia breach Articles 1 and 2 (2) of the 1928 Havana Convention on Asylum when it provided asylum,
and is the asylum a violation of the treaty?
RULES APPLICABLE AND CONTENTIONS
OF BOTH PARTIES:
Is it legal for Colombia, as the country that grants
asylum, to qualify an offence for asylum purposes unilaterally under treaty law
and international law.
Colombia maintained before the Court that, according to the Convention in force
·
The Bolivian 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. 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[1],
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 established extradition rules,
it was impossible to draw inferences about diplomatic asylum from them. If the
refugee were given asylum, he would be on the territory of the State of refuge,
and such a decision would not infringe on the sovereignty of the States where
the crime was committed. In the case of diplomatic asylum, on the other hand,
the refugee was on the territory of the State in which he had committed the crime:
the decision to grant asylum overruled the territorial State's sovereignty and removed
the offender from its jurisdiction.
As for the second
treaty invoked by Colombia-The Havana Convention[2]-it did not recognize
the right of unilateral qualification either explicitly or implicitly.
The third
treaty-The Convention of Montevideo[3]-had not been ratified by Peru and could be invoked against that country. 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.
Colombia failed to prove the
existence of a regional custom because it failed to show persistent and
uniform adoption of the alleged custom by relevant States, according to the
Court. The court further stated that
following a particular State custom for political reasons rather than because of a perception that the practise
is binding on the State by way of a legal obligation (opinio juris) is harmful to the establishment of customary law. 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.”
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 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.
Was Peru, as the territorial state, obligated to
provide an assurance of safe passage in this
case.
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 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 passage 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-passage
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.
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.
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.
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 consideration against 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.
Did Colombia breach Articles
1 and 2 (2) of the 1928
Havana Convention on Asylum when it provided
asylum, and is the asylum a violation of the treaty
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.”
Article 2 (2) of
the Havana Convention states “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.” “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 Havana Convention was not
designed to shield a person who planned against his country's institutions from normal legal proceedings. It was not enough to be accused of
a political crime to qualify for
refuge; asylum could only intervene against the action of justice in
circumstances where arbitrary action had replaced
the rule of law. It had not been proven that the circumstances in Peru at the time suggested that justice would be subordinated to the government or that judicial safeguards
would be removed. For example, if the Havana Convention had wished to provide general
protection to all persons prosecuted for political crimes during revolutionary events solely because such events
are presumed to interfere with the administration of justice, this would result in particularly offensive foreign interference in the domestic
affairs of States.
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 Judgement 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 Article1 &
2, of the Havana Convention 1928.
JUDGEMENT
The court held that the Government of
Columbia proclaimed its intention of protecting Hay de la Torres in
spite of existence of proceedings instituted against him for military
rebellion. It has maintained this
attitude and protection by continuing to insist on the grant of safe conduct
even when the Minister of foreign
affairs of Peru referred to the existence of a “judicial prosecution, instituted by the sovereign power of the state”[4]
The two submissions of Colombia i.e.
claims to justify its unilateral qualification of the refuge and demand for safe conduct with a view to
permitting departure of refugee based
on international obligation binding on Columbian government. These claims were rejected,
The
first- insofar the right of Columbia, as the country granting asylum to qualify the nature of the
offence by a unilateral and definitive decision binding on Peruby fourteen
votes to two (Judge Azevedo and M.
Caicedo, Judge ad hoc), As for the counter-claim of the Government of Peru “that in any case the maintenance of the asylum constitutes at the present time violation of the treaty” it was rejected by fifteen
votes to one (Judge Caicedo). In so
far as it was founded on a violation of the Article 1 of the Havana
Convention providing that asylum shall not be
granted to persons accused of common crimes.
The counter-claim
was allowed by ten votes to six- the grant of Mr. Victor Raul Haya De La Torres
was not made in conformity with the Article
2, paragraph 2 of the Havana
Convention 1928. (Judges Alvarez,
Zoricic, Badawi Pasha, Read and Azevedo and M. Caicedo. Judge ad hoc.)
CONCLUSION
Asylum is
an essential form of protection granted through states in international law that helps a person grant solace from a
place where he/she fear persecution. The asylum case of Peru v Columbia 1950 deals with international
laws relating to diplomatic asylum, pre-requites of such asylum, safe passage for the asylum seeker to leave the
territory they fear persecution residing in the state through a different state embassy. Extradition and asylum are two parallel
concepts and cannot exist
together.
Various
extradition treaties signed between the parties i.e. The Bolivian Agreement of 1911 on Extradition, The Havana
Convention of 1928 on Asylum, The Montevideo Convention of 1933 on Political
Asylum are also interpreted to examine if safe
passage can be granted or whether there is breach of such treaties. The International Court of
Justice held a key point in this
case i.e. No individual can
seek asylum from legal proceedings of
the state without imminent threat to life. The asylum seeker Mr. Victor Raul Hayo de la Torres was a political refuge
and did not fall under common crimes such as (theft, forgery etc) under Article 1 of the Havana Convention 1928 and
was granted asylum by Columbian
Government 3 months after uprising caused by his political party, The American People's Revolutionary Alliance. Here it
was held that Havana Convention was breached as there was no urgency nor danger to life in relation to article 2
paragraph 2 of the Havana Convention,
1928 the only threat was legal
proceeding by the state, the defence of being a political refuge does not suffice and under such pretence cannot
interfere in a states domestic affairs.
The Court held that Colombia 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. This principle of legal fluctuations in
state policy was laid down much later in the Nicaragua Case[5]. 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. The concept
of opinion juris is cleared and elaborated much later in the case of North Sea Continental Shelf Case[6].
BIBLIOGRAPHY
·
The Bolivian Agreement of 1911 on Extradition.
·
The Havana Convention of 1928 on Asylum.
·
The Montevideo Convention of 1933 on Political Asylum.
·
William W. Bishop, Jr, The American Journal of International
Law Vol 45, No.1 Asylum Case (Columbia/ Peru).
·
Notes of Foreign Minister of Peru Correspondence 1949.
·
North Sea Continental Shelf Case, Germany v. Denmark, ICGJ
149 (ICJ 1986).
·
Nicaragua v. United States, ICJ GL No 70, 1984.
Article Information
ASYLUM CASE (PERU V. COLUMBIA)
Authors: MS. MAARIA LAKDAWALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/26
- Issue 7
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International Journal for Legal Research and Analysis
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