On October 3rd, 1948 a military rebellion broke out in the South American state of Peru. However, the rebellion was quelled within a day and the accused were arrested and charged. A day after the rebellion was quashed; proceedings were instituted against Victor Raul Haye De La Torre, a leader of an opposition party known as the American Citizens’ Revolutionary Alliance on the charges of instigating and directing the rebellion. Absconding arrest, Haye De La Torre dodged Peruvian authorities who were keen to bring him on trial. This was actively pursued by the Military junta government that had come up after the siege on Lima, the capital of Peru.
However, on January 4th, 1949 it was brought to the attention of the Peruvian authorities that Victor Raul Haye De La Torre had been granted asylum by the Colombian Mission in Lima and the Colombian ambassador accordingly, requested that De La Torre be granted a right of passage or a safe-conduct so that he may leave the country. Peru solemnly refused, stating that De La Torre was accused of common crimes, not entitling him to the protection of political asylum. In other words, Peru refuted Columbia’s claim that De La Torre was a political refugee.
Soon, a diplomatic and political stalemate ensued between the two South American nation-states and after talks broke down in July, they finally agreed to let the International Court of Justice be the judge. 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
Issues –
Whether a state was entitled under international and relevant treaty law to make a unilateral and binding determination as to whether an individual qualified for asylum, which could be enforced against the state from which such individual seeks protection.
Whether a state was required to allow safe passage out of its territory to an individual that had been granted diplomatic asylum in another state.
Whether Colombia acted in violation of the Havana Convention on Asylum by granting asylum to Víctor Raúl Haya de la Torre subsequent to his involvement in a military rebellion in Peru
Decision –
The International Court of Justice in its contemplation of the first submission of the Republic of Colombia rejected its submission by fourteen votes to two (Judge Azevedo and M. Caicedo). Herein, the Republic of Colombia had duly submitted that owing to the general principle inferred from the Bolivarian agreement, Havana Convention of 1928 and Montevideo Convention of 1933 i.e. “institution of asylum in accordance with principles of International law,” it was within its powers to grant unqualified asylum to the Peruvian dissident, Victor Raul Haye De La Torre.
However, the Hon’ble court held that firstly, the Bolivarian Agreement invoked by Colombia is primarily on the treaty on extradition and is confined to the concept of asylum in one single article, 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 offense was committed. A decision with regard to extradition implies only the normal existence and exercise of territorial sovereignty. On the contrary, in the case of diplomatic asylum, the refugee was on the territory of the State in which he had committed the offense: the decision to grant asylum derogated from the sovereignty of the territorial State and removed the offender from the jurisdiction of that State.
In other words, a diplomatic asylum withdraws offenders from the territorial jurisdiction of the state and involves a direct contravention or intervention in the exercise of the State’s sovereign power, it is exclusively competent to exercise. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established without a doubt in any particular case.
As for the second treaty invoked by Colombia that is, the Havana Convention on Asylum of 1928, the Hon’ble bench of the International Court of Justice held the same that neither treaty entails or gives any nation-state the authority or power to unilaterally recognize and grant asylum to any individual, whether implicitly or explicitly. As regarding the Montevideo Convention of 1933, the Court held that the Convention cannot be used to further the argument as Peru had not ratified the agreement and any decision based on such an agreement cannot be made binding on a country which has not ratified the agreement.
Finally, as regarded American international law, Colombia had submitted that there existed a general practice or custom in Pan-America of the right of a state to grant asylum, uninhibited of any qualifications and unilateral if need be. She further claimed that therein arises the obligation of other states to respect such qualification of asylum as the very basis of granting asylum in rooted in the traditional practice of American law. This argument, they based on the fact that International and local customs constitute as a local custom as put forth in the Statute of International Court of Justice.[iv]
However, it could not prove the existence, either regionally or locally, of 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. Colombia’s evidence of the existence of such a custom was riddled with inconsistencies and lack of uniformity which reduced the credibility of such a custom as a source of International law.
It, therefore, followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offense by a unilateral and definitive decision binding on Peru. The submission was therefore rejected by fifteen votes to one (Judge Caicedo).
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 guarantees 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, 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.
In its counter-claim, Peru had firstly Peru had asked the Court to declare that asylum had been granted to Haya de la Tom in violation of the Havana Convention, first, because Haya de la Torre was accused, not of a political offense 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 no time asked for the surrender of the refugee, the Court examined the first point.
In this connection, the Court noted Article 1 of the Havana Convention on Asylum of 1928 which the State of Colombia had advanced stated out rightly that asylum cannot be granted to those accused of ordinary, common crimes. However, the only charge against the refugee was that of military rebellion, which not a common crime was as it had gravely political elements, which makes Haye De La Torre a political offender and not a common criminal. Consequently, the Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded by a vote of fifteen votes to one.
The International Court of Justice in its contemplation of Peru’s second submission in its counter-claim observed that the essential justification of asylum lay in the imminence or persistence of a danger to the person of the refugee, analyzed 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 offense 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 International 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 offenses 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 non-intervention.
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.
Simply stated, the second submission of Peru was accepted by a vote of ten votes to six as the three month period between the indictment and grant of asylum predicates any notion of immediate danger to the refugee, Victor Raul Haye De La Torre.
The International Court of Justice in conclusion and summarily held that “to infer…. an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rule of the extra-legal factors involved in the development of asylum in Latin America and the spirit of the Havana Convention.”
