[International Law] Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary.

Facts
Victor Raul Haya de la Torre was a Peruvian national. In Oct 3 rd, 1948 one military rebellion broke out
in Peru which is organized and directed by the American Peoples Revolutionary Alliance led by Haya
de la Torre. The rebellion was unsuccessful. The Peruvian Government issued a warrant for his arrest
on criminal charges related to this political uprising. He fled to the Columbian embassy in Lima
seeking for asylum from them. Columbia the requested permission from Peru for Haya de la Torres
safe passage from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give
such permission. Columbia then brought this suit against Peru in the International Court of Justice,
based on the agreement made by both named Act of Lima.
These are the submissions made by the two parties:

1) The Columbian had pleaded for the court to declare that Columbia had properly granted asylum
based on 2 submissions:-
a. They are competent to qualify the offence for the purpose of the said asylum.
b. That Peru is bound to give the guarantees necessary for the departure of the Haya de la Torre,
from the country, with due regard to the inviolability of his person.

2) Counter-claim by Peru is that for the court to declare that the grant of asylum made by the
Columbian Ambassador to Haya de la Torre was made in violation of the Convention on Asylum.

Argument
Plaintiff (Columbian) arguments based on the Convention in force which are the Bolivarian
Agreement 1911 on Extradition, the Havana Convention 1928 on Asylum, the Montevideo Convention
1933 on Political Asylum and American International Law.

The Defendant (Peru) counter-claim relied on the rules of Havana Convention first, Haya de la Torre
was accused, not a political offense but of a common crime and second, because the urgency which
was required under the Havana Convention in order to justify asylum was absent in that case.

Issue
1. Based on conventions, which in force between both countries, and in general from American
international law, whether Columbia competent, as the country granting asylum, to qualify the offence
for the purpose of said asylum?

2. Was Peru bound to give the guarantees necessary for the departure of the refugees from the
country, with due regard to the inviolability of his person?

Decision
1) Columbia was not competent to qualify the nature of the offence by a unilateral and definitive
decision binding on Peru.

2) Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for the
departure of Haya de la Torre, with due regard to the inviolability of his person.

3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected,
therefore it was not in accordance with Article I, Paragraph I of the Havana convention.

4) Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre
Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was approved by the
court.

Ratio Decidendi
1) The court reject the Columbian argument based on Bolivarian Agreement on the reason that the
principle of International Law did not recognize any rule of unilateral and definitive qualification by the
state granting diplomatic asylum.

On the other hand, the Bolivarian Agreement laid down rules on extradition and it was not possible to
deduce from them conclusions concerning diplomatic asylum as it was different in the meaning.
The court also rejected the Havana Convention invoke by the Columbian as the convention did not
recognize the right of unilateral qualification.

And the third convention, Convention of Montevideo, had not been ratified by Peru and could not be
invoked against it.

As for the American international law, Columbia had failed to prove that it had constant and uniform
practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial
state. The fact submitted to the court disclosed too much contradiction and fluctuation, shows that
therein a usage peculiar to Latin America and accepted as law.

2) The court also rejected the Columbian claim based on Havana Convention that the Peru was
bound to gives guarantees necessary for the departure of Haya de la Torre, on the reason that the
convention only applicable if the territorial State demanded the departure of the refugee from its
territory. It was only after such demand that the diplomatic Agent who granted asylum could require
safe-conduct.

3) Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected on the
reason that the refugee was charged for military rebellion, which was not a common crime as needed
under the Havana Convention.

4) The court came into conclusion on Peru Counter-claim that the grant of asylum by the Columbian
government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana
Convention was on the reason that the absent of element of urgency needed to justify the asylum, in
order to protect the person from danger.

In this case the danger that only faced by Haya de la Torre is legal preceding that will be imposed on
him, not a deprivation of his right.

The Havana Convention according to the court was not intended to protect a citizen who had plotted
against the institutions of his country from regular legal proceedings. Asylum could only intervene
against the action of justice in cases where arbitrary action was substituted for the rule of law.

Rationale
1) Before a convention can be accepted to be used as the law under Article 38 of Statute of
International Court of Justice, it must be ratified by the contesting state.

- This has been shown by the reluctance of the court to used certain provision in the convention as
had not been ratified by the party country.

- Ie: see rules on Montevideo Convention.

2) The principle of International Law that are not recognizing the rules of unilateral treaty.

3) This decision also shows us that in order for the custom to be international custom it must be a
general practice.