for the purpose of asylum under treaty law and

international law?
Name of the Case: Asylum Case
(Colombia/Peru);
(2) In this specific case, was Peru, as the
territorial State, bound to give a guarantee of
Court: International Court of Justice safe passage?

Year of the decision: 1950 (3) Did Colombia violate Article 1 and 2 (2) of
the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted
Overview:
asylum and is the continued maintenance of
asylum a violation of the treaty?
Colombia granted asylum to a Peruvian, accused
of taking part in a military rebellion in Peru.
The Court’s Decision:
Was Colombia entitled to make a unilateral and
definitive qualification of the offence (as a
political offence) in a manner binding on Peru Relevant Findings of the Court:
and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave
Peru? (1) Is Colombia competent, as the
country that grants asylum, to
unilaterally qualify the offence for the
Facts of the Case: purpose of asylum under treaty law and
international law?
Peru issued an arrest warrant against Victor
Raul Haya de la Torre “in respect of the crime of 1. The Court stated that in the normal course of
military rebellion” which took place on October granting diplomatic asylum a diplomatic
3, 1949, in Peru. 3 months after the rebellion, representative has the competence to make
Torre fled to the Colombian Embassy in Lima, a provisional qualification of the offence (for
Peru. The Colombian Ambassador confirmed example, as a political offence) and the
that Torre was granted diplomatic asylum in territorial State has the right to give consent to
accordance with Article 2(2) of the Havana this qualification. In the Torre’s case, Colombia
Convention on Asylum of 1928 and requested has asserted, as the State granting asylum, that
safe passage for Torre to leave Peru. it is competent to qualify the nature of the
Subsequently, the Ambassador also stated offence in a unilateral and definitive manner
Colombia had qualified Torre as a political that is binding on Peru. The court had to decide
refugee in accordance with Article 2 Montevideo if such a decision was binding on Peru either
Convention on Political Asylum of 1933 (note because of treaty law (in particular the Havana
the term refugee is not the same as the Refugee Convention of 1928 and the Montevideo
Convention of 1951). Peru refused to accept the Convention of 1933), other principles of
unilateral qualification and refused to grant safe international law or by way of regional or local
passage. custom.

Questions before the Court: 2. The Court held that there was no expressed or
implied right of unilateral and definitive
qualification of the State that grants asylum
(1) Is Colombia competent, as the country that
under the Havana Convention or relevant
grants asylum, to unilaterally qualify the offence
principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts
the right of unilateral qualification, and on diplomatic asylum was in fact granted and
which Colombia relied to justify its unilateral respected. But it has not shown that the alleged
qualification, was not ratified by Peru. The rule of unilateral and definitive qualification
Convention, per say, was not binding on Peru was invoked or … that it was, apart from
and considering the low numbers of ratifications conventional stipulations, exercised by the
the provisions of the latter Convention cannot States granting asylum as a right appertaining to
be said to reflect customary international law (p. them and respected by the territorial States as a
15). duty incumbent on them and not merely for
reasons of political expediency. The facts
brought to the knowledge of the Court disclose
3. Colombia also argued that regional or local so much uncertainty and contradiction, so much
customs support the qualification. The court fluctuation and discrepancy in the exercise of
held that the burden of proof on the existence of diplomatic asylum and in the official views
an alleged customary law rests with the party expressed on various occasions, there has been
making the allegation: so much inconsistency in the rapid succession of
conventions on asylum, ratified by some States
and rejected by others, and the practice has been
“The Party which relies on a custom of this kind
so much influenced by considerations of
must prove that this custom is established in
political expediency in the various cases, that it
such a manner that it has become binding on the
is not possible to discern in all this any constant
other Party… (that) it is in accordance with a (1)
and uniform usage, mutually accepted as law,
constant and uniform usage (2) practiced by the
with regard to the alleged rule of unilateral and
States in question, and that this usage is (3) the
definitive qualification of the offence.”
expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, 5. The Court held that even if Colombia could
Peru). This follows from Article 38 of the Statute prove that such a regional custom existed, it
of the Court, which refers to international would not be binding on Peru, because Peru “far
custom “as evidence of a general practice from having by its attitude adhered to it, has,
accepted as law(text in brackets added).” on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of
1933 and 1939, which were the first to include a
4. The Court held that Colombia did not
rule concerning the qualification of the offence
establish the existence of a regional custom
[as “political” in nature] in matters of
because it failed to prove consistent and
diplomatic asylum.” (See in this regard, the
uniform usage of the alleged custom by relevant
lesson on persistent objectors. Similarly in
States. The fluctuations and contradictions in
the North Sea Continental Shelf Cases the court
State practice did not allow for the uniform
held ‘in any event the . . . rule would appear to
usage (see also Mendelson, 1948 and see also
be inapplicable as against Norway in as much as
Nicaragua case, p. 98, the legal impact of
she had always opposed any attempt to apply it
fluctuations of State practice). The court also
to the Norwegian coast’.)
reiterated that the fact that a particular State
practice was followed because of political
expediency and not because of a belief that the 6. The Court concluded that Colombia, as the
said practice is binding on the State by way of a State granting asylum, is not competent to
legal obligation (opinio juris) is detrimental to qualify the offence by a unilateral and definitive
the formation of a customary law (see North Sea decision, binding on Peru.
Continental Shelf Cases and Lotus Case for
more on opinio juris):
(2) In this specific case, was Peru, as the
territorial State, bound to give a
“[T]he Colombian Government has referred to a guarantee of safe passage?
large number of particular cases in which
7. The Court held that there was no legal 10. In other words, the person-seeking asylum
obligation on Peru to grant safe passage either must not be accused of a common crime (for
because of the Havana Convention or customary example, murder would constitute a common
law. In the case of the Havana Convention, a crime, while a political offence would not).The
plain reading of Article 2 results in an obligation accusations that are relevant are those made
on the territorial state (Peru) to grant safe before the granting of asylum. Torre’s
passage only after it requests the asylum accusation related to a military rebellion, which
granting State (Colombia) to send the person the court concluded was not a common crime
granted asylum outside its national territory and as such the granting of asylum complied
(Peru). In this case the Peruvian government with Article 1 of the Convention.
had not asked that Torre leave Peru. On the
contrary, it contested the legality of asylum
granted to him and refused to grant safe 11. Article 2 (2) of the Havana Convention
conduct. states that “Asylum granted to political
offenders in legations, warships, military
camps or military aircraft, shall be respected to
8. The Court looked at the possibility of a the extent in which allowed, as a right or
customary law emerging from State practice through humanitarian toleration, by the
where diplomatic agents have requested and usages, the conventions or the laws of the
been granted safe passage for asylum seekers, country in which granted and in accordance
before the territorial State could request for his with the following provisions: First: Asylum
departure. Once more, the court held that these may not be granted except in urgent cases and
practices were a result of a need for expediency for the period of time strictly indispensable for
and other practice considerations over an the person who has sought asylum to ensure in
existence of a belief that the act amounts to a some other way his safety.”
legal obligation (see paragraph 4 above).

12. An essential pre-requisite for the granting of

“There exists undoubtedly a practice whereby asylum is the urgency or, in other words, the
the diplomatic representative who grants presence of “an imminent or persistence of a
asylum immediately requests a safe conduct danger for the person of the refugee”. The court
without awaiting a request from the territorial held that the facts of the case, including the 3
state for the departure of the refugee…but this months that passed between the rebellion and
practice does not and cannot mean that the the time when asylum was sought, did not
State, to whom such a request for safe-conduct establish the urgency criteria in this case (pp. 20
has been addressed, is legally bound to accede -23). The court held:
to it.”
“In principle, it is inconceivable that the Havana
(3) Did Colombia violate Article 1 and 2 Convention could have intended the term
(2) of the Havana Convention when it “urgent cases” to include the danger of regular
granted asylum and is the continued prosecution to which the citizens of any country
maintenance of asylum a violation of the lay themselves open by attacking the
treaty? institutions of that country… In principle,
asylum cannot be opposed to the operation of
justice.”
9. Article 1 of the Havana Convention states that
“It is not permissible for States to grant
asylum… to persons accused or condemned for 13. In other words, Torre was accused of a crime
common crimes… (such persons) shall be but he could not be tried in a court because
surrendered upon request of the local Colombia granted him asylum. The court held
government.” that “protection from the operation of regular
legal proceedings” was not justified under example during a mob attack where the
diplomatic asylum. territorial State is unable to protect the
offender). Torre was not in such a situation at
the time when he sought refuge in the
14. The Court held: Colombian Embassy at Lima.

“In the case of diplomatic asylum the refugee is 17. The Court concluded that the grant of asylum
within the territory of the State. A decision to and reasons for its prolongation were not in
grant diplomatic asylum involves a derogation conformity with Article 2(2) of the Havana
from the sovereignty of that State. It withdraws Convention (p. 25).
the offender from the jurisdiction of the
territorial State and constitutes an intervention
in matters which are exclusively within the “The grant of asylum is not an instantaneous
competence of that State. Such a derogation act which terminates with the admission, at a
from territorial sovereignty cannot be given moment of a refugee to an embassy or a
recognised unless its legal basis is established in legation. Any grant of asylum results in, and in
each particular case.” consequence, logically implies, a state of
protection, the asylum is granted as long as the
continued presence of the refugee in the
15. As a result, exceptions to this rule are strictly embassy prolongs this protection.”
regulated under international law.

Note: The ICJ also discussed the difference

An exception to this rule (asylum should not be between extradition and granting of asylum –
granted to those facing regular prosecutions) you can read more on this in pp. 12 – 13 of the
can occur only if, in the guise of justice, arbitrary judgment. The discussions on the admissibility
action is substituted for the rule of law. Such of the counter claim of Peru are set out in pp. 18
would be the case if the administration of justice – 19.
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