DISSENTING OPINION BY M.

CAICEDO CASTILLA
[Translation]
I. Diplomatic asylum is an institution which is characteristic of
Latin America. As a result of the frequency with which political
upheavals occur (civil wars, coz~psd'état, etc.), and of the intensity
of the struggle between the various parties or groups, the aim of
asylum in that part of the world is twofold. Firstly, t o protect the
life, liberty and safety of perçons prosecuted for political offences
by the local authorities, taking this expression in its wider meaning
to include the various organs of the government. I n accordance
with this aim, diplomatic asylum has rendered great services, for,
generally speaking, it is statesmen, politicians, intelfectuals and
outstanding personalities who request asylum. Asylum protects the
persecuted individual, whose merits may be recognized later on,
thus enabling him to render outstanding services t o his country
and to the American continent. I n Latin America we have not
such an abundance of men of ability and culture that we can afford
t o contemplate with an indifferent eye their sacrifice on the altar
of unbridled political passion. One glance a t the list of persons
to whom asylum has been granted will show no less than twenty
heads of States. The list of writers, journalists, parliamentarians
and jurists who have a t one time or another sought refuge could be
prolonged indefinitely, which goes to show that by protecting this
category of persons the State granting asylum is rendering a valii-
able service to the territorial State in that it prevents biased legal
proceedings, unjust persecution or a decision based on the result
of a triumphant revolution from creating irreparable situations and
sowing the seeds of future discord and implacable hatred between
the nationals of the same State.
The second aim of asylum is in keeping with the ideal which
has always inspired Latin America, that of ensuring respect for
fundamental human rights.
I n spite of governments which have, on more than one occasion,
violated these rights, the ideal aspiration has always been the
establishment of a democratic and republican régime in al1 American
States. For this reason, asylum has always been accepted on the
international plane as a means of guaranteeing political liberty.
2. An obvious conclusion may be drawn from the preceding
considerations : in studying the problems of diplomatic asylum
and in reaching a decision, account must be taken of the Latin-
American spirit and environment, as well as of the special inter-
pretation of American international law regarding asylum, which
is very different from the European interpretation.
3. The Judgment of the Court refrains from considering the
institution of asylum as it appears in Latin America. Basing itself
 DISSENTING OPINION BY M. CAICEDO CASTILLA 360
on such grounds, the Judgment of the Court was necessarily bound
to arrive at very debatable conclusions with which 1 cannot agree.

Indeed, the Judgment imposes such limitations on the institution

of asylum that its practice becomes difficult, if not impossible.
Thus, for instance, the recognized right of the territorial State to
question the qualification made by the State granting asylum
implies a legal insecurity concerning the grant of asylum as well
as the possibility .of lengthy litigation. With the theory of urgency,
it would be impossible to justify asylum ; with such an interpre-
tation, none of the hundreds of cases of asylum which occurred
in America during the last few years would be justified. IVith an
iilterpretation that the State of refuge may request the necessary
guarantees enabling the refugee to leave the country only if the
local government has requested his departure, asylum may be
indefinitely prolonged and this would obviously be prejudicial to
both countries.
4. The Court rejects the contention of Colon-ibia that the State
granting asylum has the unilateral and definitive right to qualify
the nature of the offence of which the r e f u ~ e eis accused. At the
sarne time, the Court agrees that Colombia w%s entirely right in her
qualification of M. Haya de la Torre as a politïcal offender.

This last point is of great importance, for the whole dispute

between the two Governments, as will be seen from a mere reading
of the diplomatic correspondence between the Ambassador of
Colombia in Lima and the Minister for Foreign Affairs of Peru,
referred to the insistence of the Peruvian Government in consider-
ing that well-known intellectual and eminent political leader,
81. Victor Rahl Haya de la Torre, as a vulgar common criminal. I n
spite of the fact that, during this case, the Peruvian Government
broaght new and abundant eGidence in an attempt to prove its
views, the Court unanimously decided that it has not been estab-
lished that M. Haya de la Torre was a common criminal.

It is thus evident that the attitude of Colornbia \vas unimpehch-

able, since she gave asylum to a political refugee. In accordance
with the legal principles and the jurisprudence in force in America,
the Colombian Ambassador could not act otherwise.

5. In iny opinion, the State which grants asylum must have the
right to qualify unilaterally and definitively the nature of the offence
of the refugee. 1 base this view on :
(1) the Havana Convention of 1928 and the Bolivarian Agree-
ment of 1911, both in force and binding upon Coloinbia and
Peru ;
 DISSENTING OPIKIOh: BY M. CAICEDO CASTILLA 361
f2) the very nature of the American institution of asylum ;
(3) the obligations deriving from the international custom
esisting in the American coritinent.
6. The Havana Convention provided that asylum was t o be
determined by the laws of the country of refuge. This is clearly
stated in Article 2 of the Convention, and may be also deduced
from the history of that Convention.
The draft was prepared at the 1927 meeting of jurists in Rio de
Janeiro and submitted as a basis of discussion a t the Havana
Conference. Article 2, however, was modified with the definite aim
of referring to the customs, conventions and laws of the country
granting asylum.
The documents of the Havana Conference and of its Second
Committee enable us to follow the various steps in the elaboration
of the Convention. As the United States delegation opposed the
right of asylum, the Mexican delegate, Dr. Gonzalez Roa, undertook
t o find a formula which would enable al1 American States, including
the United States of America, to sign the proposed Convention in
spite of their different viems regarding the right of asylum and the
extent of its application. In this formula of the Mexican delegate,
which became Article 2 of the Havana Convention, two main points
stand out

(1) No effort is made to find a definite basis for asvlum from the
legal point of view, so that some contracting States may consider
asylum as an institution based strictly on law, whilst others may
consider it as a custom or merely a humanitarian toleration. Within
the framework of the Havana Convention, this point is of no interest.

(2) Apart from the provisions laid down in this Convention, the
conditions of asylum are also determined by the law of the country
of refuge.
The United States, nevertheless, did not accept the Havana
Convention, which did not achieve the desired unanimity. Article 2,
however, retained the definiiive form proposed by the Mexican
delegate with the scope and extent already mentioned. By virtue
of this article, according to the explanation given by the Mexican
delegate in his report to the Mexican Government, "contracting
States remain free to pursue their own policy in matters of asylum".
I t is for this reason that the Argentinian writer, 1LI. Bollini Shaw,
maintains in his important work on the right of asylum that the
Havana Convention is restrictive in that it does not lay down one
general rule but refers to the particular legislation of each of the
signatory States.
In view of the scope of Article 2 of the Havana Conveiltioii, the
Rapporteur of the 1939 M0nte.i-ide0 Convention \vas able to state
99
 DISSENTING OPINION BY M. CrlICEDO CASTILL.4 363
again. In cases of asylum in foreign embassies or legations, the
Colombian Government has always respected the qualification of
the respective diplomatic agents.
Colombian usage has been amply proved. Almost twenty cases
of asylum occurred since 1928 in the foreign embassies and legations
accredited in Colombia. I n al1 these cases, asylum was respected
and safe-conducts granted. There were eleven cases in which the
Colombian Government did not agree with the qualification made
by the foreign diplomatic agent, but in al1 these cases the Govern-
ment yielded to the unilateral qualification. Al1 these cases have
been listed in detail either in the LVritten Pleadings or in the oral
statements (see Mernorial of Colombia, p. 82 ; Rejoinder, p. 34 ; Oral
Statements, p. 44).

1 do not think that it is possible to submit more complete or

more convincing proof without a single contradictory case and
without it beiilg possible to argue that the countries concerned
were signatories of the Montevideo Convention of 1933 ; for several
of these cases of asylum involved Venezuela, which has not ratified
either the Havana or the Montevideo Convention and, consequently,
has no bond with Colombia other than that derived from the
Bolivarian Agreement of 1911 and from the principles of American
international law.
S. As regards Colombian laws and conventions, we must quote
law No. I j of 1936 approving the 1933 Montevideo Convention on
political asylum. This Convention contains an article under which
"the judgment of political delinquency concerns the State which
offers asyliim".
Law No. I j of 1936 is a Colombian law enacted with the same
formalities as the ordinary laws, it was approved by the Chamber
of Deputies and the Senate of the Republic, and duly confirmed
by the executive organ of the government. I t proves the adherence
of Colombia, of the executive and legislative organs of Colombia to
the theory of unilateral qualific at'ion.
q. In an effort to invalidate the views expressed above, reference
has been made to a report by BI. Raimundo Rivas, which was
approved by the Committee of Legal Advisers to the Ministry for
Foreign Affairs. I t should be pointed out in this connexion that the
Committee in question is inerely a consultative body and that its
opinions are not binding on the Government which may well depart
from them. The Committee's opinion is at most a piece of inform-
ation supplied to the Government. By requesting it, the Govern-
ment did not pledge itself in advance to approve it. Consequently,
M. Rivas's report mcrcly expresses the private opinion of a writer
and can in no sensc be considercd an official Colombian document.
Furtherinore, somc of thc iiiforinatioii it coiitaii~sis false, as, for
example, his referencc to thc Spailish Civil \Val- \vheil he states that
 DIÇÇESSIXG O P I N O S EY 31. CAICEDO CASTILL--1 364
Colombia did not grant asylum t o one single person, n-hereas, on
the contrary, she granted it on several occasions. On the otlier hand,
on page 182 cf the Counter-Memorial may be found a fragment of
a declaration by the Colombian Government showing the attitude
and opinion of Colombia in the case of Spain, which n-ere in absolute
agreement with the generous and liberal views so brilliantly
defended by Chile a t the time.
IO. There is another aspect of the question. The right to clualify
the nature of an offence must necessarily lie with the State granting
asylum, otherwise the very institution of asylum could no longer
exist. For asylum is granted precisely to protect those persons who
are proiecuted by the local government, usually a t difficult moments
in the life of the country, moments of great upheaval n-hen political
passions lead to the diminution or disappearance, even in verv
highly cultured statesmen, of that sercnity of mind which is indis-
pensable for an impartial judgment of political oppon'cnts. To
recognize the right of the local State to qualify the nature of the
offence would be equivalent to allosving this qualification to depend
upon the opinion of the government, whose interests would urge
it to act against the refugee. Asylum in these circumstances would
be absurd. Unilateral qualification is in fact inherent in the very
nature of the asylum itself ; it is essential for the continued existence
of this institution as it is understood in Latin America.
I n this respect there can be no better quotation than a passage
from Professor Scelle in his commentaries on cases occurring in
South America in 1911,which appeared in the Revzle géné~~ale de
Droit international public.
The first case was the dispute between the Argentine Republic
and Paraguay, and Professor Scelle wrote, i d e r d i a :

"The Treaty of Montevideo (of 1889) states tllat the Iist of

refugees should be submitted to the local government before asylum
may definitely be granted and the refugees transported to foreigil
or neutral territory. This does not signify that the local authority
has the right either to oppose this transfer or to insist that such and
such a refugee should be surrendered to it, for this would render the
right of asylum illusory. In doubtful or disputed cases, a definiti1-e
decision can only be made by the authorities granting asylum l."
(Rezlue générale de Droit i?zter?zatiolzalpublic, 1912, pp. 623-634.)
The concl~~sions could not be more final or more opportune :
asylum svould be illusory if the territorial State could demand
the surrender of the refugee or oppose his departure froni thc
country ; in case of douht the decision can only be made bj7 the
aut horities granting asylum.

1 Translation by the Registry.

 D I S S E N T I X G O P I N I O N BY M. C.SICED0 CASTILL-4 365
I n his analysis of the dispute which arose in 1911 between the
Governments of Ecuador and Great Britain regarding the asylum
granted to a number of refugees on board a merchant ship (the
case in which the Jlinister for Foreign Affairs of Ecuador, Dr. Tovar,
attempted to assimilate internal and external asylum), Professor
Scelle makes the following general observations on the problems
of asylum :
"This assimilation of external and internal asylum made by the
Minister of Ecuador was rather clever. It is juridical, and, in practice,
it would appear that asylum on territory properly speaking is more
difficult to grant than diplomatic asylum. I t would also appear
that the examination of political refugees is usually much more
thorough in the case of external asylum, and this is understand-
able as it is easier. In both cases, however, the right of decision
lies entirely with the government granting asylum 1."

Professor Scelle's opinion is categorical. As regards the examin-

ation of political refugees, whether in a case of territorial asylum
or in a case of diplomatic asylum, "the right of decision lies entirely
with the government granting asylum".
II. Similarlv 1 can refer to the Dutch writer, II. Sa-,~elberg,
cited in the Counter-Memorial of Peru as an authority in matters
of American international law. M. Savelberg has, in several
passages of his book, insisted on the need for unilateral qualifi-
cation. He says that this qualification "is necessary in order t o
prevent a State which recognizes the right of asylum on its
territory from rendering its exercise impossible by means of an
arbitrary interpretation of the expression 'political offence' 1''
(p. 359). He says elsewhere that unilateral qualification "is
indispensable, since the State in which asylum has been granted,
having received the qualification of the political offence, could
by an arbitrary interpretation of that expression render illusive
any exercise of that right". (P. 284.)
12. As regards practice, 1 would point out that -it has been
'
favourable t o unilateral qualification and that the Havana Con-
vention has been constantly interpreted in this manner. This is
not a persona1 statement, it is an assertion by one of the most
authoritative international jurists of America, M. Hildebrand0
Accioly. This eminent Brazilian author and diplomat who is a t
present his country's representative on the Council of the Organ-
ization of American States, writing on the question of "who
shall decide whether the motives justifying the asylum are purely
political or whether they contain an element of common crimin-
ality" States that "in practice and, as is only reasonable, the
solution was left to the discretion of the diplomatic agent granting
l Translation by the Registry.
103
 DISSESTISG OPISIOS BY JI. C.IICEDO C.ISTILL.I
366
asylum, just as, in the case of extradition, it is the requested
State which has the right to determine the nature of the fact
which justifies estradition". (Accioly, Vol. I I , p. 351.)
13. As for the tendencies of American law, an eloquent illus-
tration is providecl b y the fact that tnelve countries ratified
the tn-O Conventions of 3lontevideo ~vhichexpressly confirm the
ride of unilateral qualification, namelj-, Brazil, Colombia, Chile,
Salvador, Guatemala, Honduras, hiexico, Sicaragiia, Panama,
Paraguay, the Dominican Republic and Vruguay. Three countries
which had ratified the Havana Convention, namely, Costa Rica,
Cuba and Ecuador, also accepted the above rule, by ineans of
declarations of a public character. Finally, two countries, the
Argentine Republic and T7enezuela, which did not ratifj- the
treaties, also recognize the above rule. I n all. seventeen out of
twenty Latin-American countries are in favour of unilateral
qualification. The Colombian vie~vis thus the very espression
of ilnierican law.
14.The theory according to nhich the qualification should be
made jointly, that is, provisionally b y the State of asylum and then
ratifiecl or rejected with objections b y the territorial State, practic-
ally amounts to this : that qualification ~ r o u l dbe the attribut? of
the territorial State. For n-ith this joint qualification, the terri-
torial State can a t ni11 prevent the institution of asylum from
functioning. I t n-ould be strange, but true, that on the pretest of
a\-oiding iinilateral qualification xve should arrive a t a confirmation
of that practice-in favour however of the territorial State.
I t may be argued that in the event of a difference of opinion the
States concerned must resort to arbitration or t o legal proceedings.
That would mean that each case of asylum would become a la\\-suit,
a lengthy lan-suit, for it is understandable that international
proceedings should require several months to examine and decide
upon a case. Asylum would then become a n ineshaustible source
of litigation and hence of dispute among States, with the result
that the t\vo countries jvould have to examine the domestic situa-
tion of the territorial State, thus rendering the dispute bitter and
embarrassing and probably giving rise t o a disagreement n-hich
~vouldhnrnpcr and neaken understanding between the t n o coun-
tries.
Ij. On thc othcr hand, n-hat is there t o justify the conclusion
thnt the Ha\.aiia Coiivcntion recognizes such a prerogative as
appertaining to thc territorial State ? Nowhere is this stated in the
Havana Co~-i\.~ntion. I t has been said that \\-e should abide strictlj-
by the letter of th? tests ; ivhcre are such tests to be foiind which
speak of two clualificatioiis. oiirLpro\.isio~inlniirl ont. final. or \vliich
provide thlit th<. rislit of clualitication must 1~ cscrciçed both b ~ .
 D I S S E N T I N G O P I N I O S BY RI. CAICEDO C-4STILLA 367
the territorial State and b y the State of refuge ? On the contrary,
instead of express rules, there is a reference to the usages, conven-
tions and laws of the country of refuge. This reference, which
completely supports .the Colombian view, is a n express and literal
reference contained in the Convention.
16. Peru has on several occasions accepted the American practice
a s obligatory, including the principle of unilateral qualification.
I n 1936, during the Spanish Civil War, the Peruvian Govern-
ment, in a n officia1 declaration by its Minister for Foreign Affairs,
expressed its solidarity with other American countries, stating that
it was "in entire agreement with the theories maintained in Madrid
b y diplomatic representatives of the Argentine Republic, Chile and
other countries".
But the theories put forward by these countries were precisely
the legality of diplomatic asylum, the right of the State granting
asylum to qualify the nature of the refugee's offence, and the duty
of the territorial State to give the necessary guarantees to enable
the refugees to leave the country freely.
Explaining the attitude of the Latin-American States towards
Spain, the Chilean delegate t o the League of Nations summed up
the opinions of the said States in these words :
"Al1 refugees, at least those in embassies and legations of Latin-
American States, have been received in accordance with the rules
regarding the right of asylum laid down by the 1933 Montevideo
Convention."
On October 26th, 1948, the Peruvian Government published a n
official statement on asylum, from which we shall quote the follow-
ing paragraph :
"Under the relevant international conventions in force, the State
granting asylum is competent to qualify the act which has motivated
asylum, either to decide that it is a criminal offence, or that it is
a political offence.... For its part, Peru has previously claimed that,
when a diplomatic representative refuses to surrender a refugee
because he does not consider him as a common criminal offender,
extradition is granted only when the refugee has left the country,
and according to the procedure established by international agree-
ments on the matter. This thesis is accepted and recognized by al1
American States." (Memorial of the Government of Colombia,
p. 28.)

An analysis of this statement shows that :

(1) The Peruvian Government agreed b y virtue of treaties in
force in America, including the Havana Convention, that the right
t o qualify the nature of the offence belonged to the State granting
asylum.
(2) Peru had already maintained on previous occasions that,
if a diplomatic agent did not surrender a refugee on the grounds
 DISSENTING OPINIOX BY hi. C.4ICEDO CASTILL.4 368
that he was not a common criminal, the Peruvian Government
would respect the decision of the foreign diplomatic agent, reserving
its right to request extradition once the refugee had left Peruvian
territory. In other words, Peru had already declared itself in favour
of unilateral qualification by the foreign diplomat and the obligation
to provide a safe-conduct without, however, prejudicing its rigfits
to make a subsequent request for extradition.
(3) According to the official statement, the foregoing doctrine
is at the present time not merely a Peruvian doctrine but has
been accepted and recognized by al1 American States.
The foregoing declaration is not that of a mere official but of
the Peruvian Government itself. Moreover, it was made after the
October revolution, precisely with the object of defining the
attitude of the Peruvian Government towards the numerous cases
of asylurn which had arisen. I t was in force on January 3rd, 1949,
as the expression of the rules which the Government of Peru
accepted at that date in matters of asylum. In such circum-
stances, the declaration has a very definite legal significance.

17. Apart from the Havana Convention of 1923, there exists

another agreement binding on both Colombia and Peru, namely,
the Bolivarian Agreement on Extradition of 1911, Article 18
of which recognizes the institution of asylum'in confornïity with
the principles of international law.
The argument that, because the Caracas Agreement is an extra-
dition treaty, it has nothing to do with'the regulation of asylum,
has a certain force which 1 cannot denv in so far as there is anv
intention to apply the rules of a treaty on extradition to the
institution of asylum. But it is quite inadmissible to seek to deny
the value of Article 18. For the argument that asylum and extra-
dition are different institutions leads precisely to the conclusion
that Article 18 has a very definite significance, namely that it
makes it quite clear that, apart from the stipulations regarding
extradition, the contracting States have agreed to recognize
another institution, asylum, and have admitted that that insti-
tution should be governed by legal principles. Thus the Agreement
regulates two institutions-extradition in al1 clauses of the Agrée-
ment except one, and asylum in one clause, Article 18. I t may be
argued that it is inconvenient and unusual to regulate two dif-
ferent institutions in the same treaty ; but this criticism, even if
it were valid, would not deprive Article 18 of its legal value or
render it inapplicable. On the other hand, it is obvious that the
plenipotentiaries of 1911 were of opinion that the two institutions
were similar and that they could, consequentlj~,be included, from
a iormal point of view, in a single treaty. This view may be crit-
icized, but it must in any case be respected ; it \vas after al1 adopted
by the said plenipotentiaries. Furthermore, it had already been
adopted in the Treaty of Rlontevideo of 1889, which included
both institutions in the same treaty under different headings.
 DISSESTIXG O P I K I O S ET 31. C.lICED0 C.1ST:LL.l 369

T o contend, as the Rejoinder does, that the article is del-oid of

effect because it confines itself to an obvious statement-a simple
allusion to international law-amounts to a unilateral denial of
a contractual obligation. Article 38 of the Statute of the Inter-
national Court of Justice says that the latter will apply the general
principles of law ; it cannot be argued that, because these prin-
ciples have not been detcrmined and because the article makes
a simple refercnce to law, this provision of the Statute is nul1 and
void. Yet this is practically the claim that is macle regardinç
Article 18 of the Bolivarian Agreement.
The most reasonable thing to do would be to examine Article IS
of the agreement and ascertain what juridical effects it could hai-e.
I t would then be found, in the first place, that the signatory ~~~~~~s
recognize asylum as a right ; it is r,ot a practice, neither is it 2
simple act of humanitarian toleration, but an institution governcd
by the principles of lan-. III the second place, this institution is
recognized in accordance with the (principles of internaticnal law ;
namely, in accordance with those principles accepted bu ~Anlerican
States, bot11 in their international conferences and in their collective
declarations. These pi-incip1i.s of international law cannot be other
than those nhich have heen stated in the varicus treaties on asylum
whicli w r e co~lcludedin -hierica, n-hetlier or not they n-ere ratifiecl
by the "Eolivarian" coiintries ; for we are not conceriied n-ith the
determination of a contractual obligation, but n-ith the determina-
tion of tl-iosc priiiciples \.i-hic11 are generally adopted in America in
mattcrs of asylunl. For esample, according to the Bolivarian
Agreement of 1911, asylum rnay only be granted to political
offenders. \I'h>- ? Sirnply because this is the principle that is generali>-
acccpted in -%rncrican international law. The same thing should
hold good as 1-egarclç the clualification of the offence. This clualifica-
tion appertaiils to the State granting asylum, since the principle is
specially meiltioncd in the Montevideo Convention of 1933 ; accord-
ing to thc Hal-ûca Coilvcr-ition, it is applied when the ian- of a
countïy grantiiig asyliim recogilizes it ; ar.d furthermore, this
constitiitc~sthc pïacticc of ilrnerican States.

A fiirther concliision ixay be d r a n n from this article, name!>-.

that ncccptailce of th^ application of the principles of international
lanl cntails a rccogilition of principles which may be derived f r o n
international custoin. If tliis is the cas?, this article in the Eoliva-
rian Agreement lias n spccial nleaniiig as rcçards custonl in mattcrs
of asylum, naincly, thcit it (1ciilonstratc.s the existence in bot11
C~oloinbiaantl 1'c.r~ of one of thc clcincnts n.i;icli nr-c, i~cx-essn;-~- foi-
the csistcilcc~of a custoin-tiie ~ ) s ~ - ~ l i o l o ~clemciit,
i c r ~ l thc oliiilio
fz~rissi.ile ~~ecessitniis.
Shc. Bolil-ririail :lçrec~ncnt rccognizes as>-lum,
recognizcs tl-ic 7-aliic of tlic. l)ïiiicil)lcs applicd in -4mcrica ; licncc
107
 D I S S E S T I N G O P I N I O N BY 11. C.%ICEDO ColSTILLA 37O
it includes these principles as binding. Consequently, their accept-
ance by governments or by one individual government implies
their acceptance by that government as "being the law", that is
to Say, that they are the applicable law.
This is a matter of the utmost importance, since the psychological
element of custom, which is always so difficult to prove, is here
entirely proved.
18. I n my opinion, diplomatic asylum is an international
custom of Latin America.
American Republics have practised asylum, have respected the
unilateral qualification exercised by the State granting asylum,
and have furnished the indispensable safe-conducts to enable the
refugees to leave the territory.
The custom has been continuous since it arose as early as the
middle of last century. Thus we see that we are dealing with a
custom one century old and consequently much earlier in date
than any treaties that exist on the matter.
The custom was general ; al1 the Latin-American Republics
recognized and practised diplomatic asylum and al1 exercised the
right to unilateral qualification of the offence when circumstances
required it. Mexico, the Republics of Central America, Cuba,
and the South American Republics are al1 in the same position.
Finally, by recognizing the practice of asylum, the American
Republics accepted it as obligatory. Nothing is more remarkable
in this respect than the case of the Republic of Venezuela. It
offers asylum in its embassies and legations and respects asylum
in foreign legations and embassies without having ratified either
the Montevideo Convention or the Havana Convention. That is
to Say, it recognizes asylum as an American right, as a practice
which is obligatory throughout the continent. I n the same way,
it also accepts the unilateral qualification of the offence.
There is a recent case in which several countries were involved
and which demonstrates the general feeling of American countries
regarding the obligatory character of asylum. With reference t o
the asylum of ex-President Bétancourt in the Colombian Embassy
a t Caracas, the Chilean Government, supported by the Guatemalan
Government, lodged a protest with the Council of the Organisation
of American States against the Venezuelan Government "for its
delay in delivering the safe-conduct". Thus we see that a country
like Chile, which had no treaty with Venezuela regarding asylum,
considered that it had the right to lodge a complaint against the
latter in order to obtain the necessary guarantees to enable the
refugee to leave Venezuelan territory. This is not al1 ! Chile then
claimed that the refugee in question was a t the embassy of a third
State. Such a claim could not have been made by a country so
highly respected in America as Chile, had it not been for the
conviction that the practice of asylum, with its various conse-
quences, is juridically obligatory. Tt must furthermore be noted
 DISSEKTIXG O P I N I O S BY 31. CAICEDO CASTILLX 37I
that il2 the incident in questioii, the Kepublic of Venezuela did
not put forward as an excuse or as a reply to the Chilean protest
the non-existence of treaties on asylum. Neither did it deny the
juridical obligations resulting from this custom. On the contrary,
it proved that it had respected American practice and American
law by showing that the safe-conduct had already been granted
when the complaint was lodged. Thus we have the example of
three American States, Chile, Guatemala and Venezuela, recog-
nizing the practice of asylum as obligatory, together with its conse-
quences, such as the qualification b y the country grantingasylum
and the right of the said country to demand a safe-conduct for
the refugee.
Another American country noted for its outstanding culture,
üruguay, has also maintained the opinion in question on several
occasions. I t will be sufficient to mention the memorandum
presented by the Uruguayan Embassj- in Lima to the Peruvian
Minister for Foreign Affairs and Public IVorship regarding the
asylum granted to MM. hlanuel Gutierrez Aliaga and Luis Felipe
Rodriguez. One of the paragraphs of the hlemorandum states :
"In accordance with the preceding facts, the Acting Chargg
d'Affaires received instructions from his Government to impress
upon the Peruvian Government the necessity for a speedy delivery
of safe-conducts which cannot be delayed on the pretext of an
alleged implication of the refugees in comrnon crimes or political
offences related thereto, by virtue of the principle by which the
country granting asylum has the right to decide whether the offence
is of a political nature or is a common crime."

I n the case of Paraguay of 1922, other countries, the Argentine

Kepublic, Brazil, Uruguay, Bolivia, Cuba and even Peru collectively
drew up the following declaration as a rule of conduct and embodied
it in an officia1 document :
"ilny person who shall request asyluin in the residence of a
foreign delegation for reasons of a political nature shall make a
statement of the facts which led him to request asylum, and the
appreciation of the circumstances shall be left to the head of the
legation."
I n the case of Spain, the Argentine and Domiriican Republics
maintained that Spain, in spite of the fact that it had no treaties
regarding the right of asylum, should nevertheless respect this
practice, and also that the head of the legation or embassy had the
right t o qualify the offence and to request the delivery of safe-
conducts in every case.
The Government of Cuba declared in a recent statement :
"The principle that the qualification of the offence concerns tlie
St:ite gi-anting asvliiiii is n general rule of law confirmed by custom."
 DISSENTISG O I > I N I O h I3Y JI. CAICEDO CASTII,L.\ 372
I n Chile, the instructions of the Ministry for Foreign Affairs t o
its diplomats of November 26th, 1935,Say :
"The right to qualify the political offence appertains to the State
granting asylum." (Quoted by Antokoletz.)
I n a recent declaration, Costa Rica has expressed itself in favour
of the theory according t o which the State granting asylum has
the right t o qualify the nature of the offence.
Ecuador also has very definitely stated its opinion as follows :

"The Goi-ernment of Ecuador considers that Article IS of the

13olivarian Agreement and Article 2 of the Convention on Asylum
of February zoth, 1928, which are valid instruments for Ecuador,
should be interpreted as meaning that the qualification of the nature
of the offence appertains to the country granting asylilni .... Tlie
Government of Ecuador bases this vicw on the very nature of the
institution of asylum : this institution would lose al1 vali~eif the
local government were granted the right to qualify the nature of the
offence, thus rendering inoperative the international agreements
on the matter. On the other hand, American customary law also
attributes the right of qualification to the country granting asylum.
This interpretation was expressly confirmed by the Convention on
Asylum signed at the Seyenth American International Conference
at hioiltevideo in December 1933 1.''
19.As regards the question of a safe-conduct, the Judgment
maintains that Article 2, 5 3, of the Havana Convention should be
interpreted as meaning that the State granting asylum may only
request the necessary guarantees t o enable the refugee t o leave
the country, after the territorial State has requested the refugee
t o leave the national territor-.
1 cannot accept this interpretation for several reasons, but
chiefly because 1 believe that the Havana Convention recognizes
two separate rights :
(a) firstlv, the right of the territorial State t o require the removal
of the refugee from the territory as rapidly as possible, that is t o
Say that, as asylum is a transitory situation which cannot be
prolonged indefinitely, the State granting asylunl should respect
this request. This is an obligation on the State granting asylum.
The sojourn of the refugee on national territory cannot be prolonged
against the will of the territorial State ;
(b) the second right is that, which is conferred by the above-
mentioned text upon the State granting asylum, t o require that
the refugee should leave the country with the necessary guarantees.
This right is a necessary consequence of asylum.
The unanimous practice of American States is in accordance
with this interpretation. In al1 cases of asylum, the diplomatic
agent has requested and obtained the departure of the refugee
1 Sraiisiation by the Registry.
II0
 DISSENTING O P I N I O X BY M. CAICEDO CASTILL.4 373
without waiting for the territorial government to take the initiative.
This practice has been amply proved in the documents annexed t o
the Pleadings of this case. They include a note dated October zoth,
1944, from the Minister of Peru in Guatemala t o the Honour-
able Members of the Revolutionary Junta of Guatemala ; another,
dated October A t h , 1948, from the Peruvian Legation in Panama
to the Minister for Foreign Affairs of Panama, and two other
communications, dated Xovember 2nd and 5th, 1948, respectively,
from the Uruguayan Embassy in Lima t o the Minister for Foreign
-4ffairs of Peru. Al1 these notes announce the grant of asylum and
simultaneously request the delivery of safe-conducts ; in none of
these cases has the State of refuge waited for the territorial State
to express any wishes on the subject.
I t would be impossible to quote a single diplomat'ic communi-
cation contrary to this practice. And as far as Peru is concerned.
apart from the above-cited documents of the Peruvian Legations in
Guatemala and Panama, there is an officia1 Government com-
muniqué of October ~ z t h 1948,
, which states : "The Government,
respectful of its international agreements and of the established
practice, has granted the respective safe-conducts." I n other
words, the Peruvian Government admits that, in accordance both
with the treaties in force and with American practice, it is compelled
to deliver safe-conducts.
I t has also been maintained that American practice is contrary
to the text of the Convention and that, consequently, it cannot
prevail. I t should be argued in reply :
(1) that authors such as Accioly consider that the Convention
conforms with practice on this point ;
(2) that practice shows what interpretation has been put upon
the Convention by the countries which signed and ratified it.
If there has been no other interpretation, why search for an
interpretation of the Havana provision outside American custom ?

On the other hand, why disregard the interpretation which

had been accepted by Peru ? It may be said, to meet this argument,
that States are entitled to change their minds. 1 recognize that
right as far as purely political questions are concerned, but as
regards legal questions, such as the interpretation or application
of treaties, a change of opinion is scarcely admissible except
for the future. Othernisc an element of uncertainty would be
introduced into international relations. I t is hardly admissible
in law that a country, after maintaining a given interpretation
of a treaty and making it known to other contracting parties
by declaring its intention to apply that interpretation to cases
involving given circumstances, should be able to disregard its
own interpretation in cases and circumstanccs arising nrhilst
that riile was still considered to bv in forcc.
 D I S S E N T I N G O P I N I O X BY 11. CAICEDO CASTILLA 374
Any other practice would create a new element of insecurity
in international relations.
Furthermore, there have been cases in wl-iich the opinion of
the State granting asylum prevailed. We may, for example, quote
the case of the parliamentarian Rodriguez Araya, who took refuge
in the Uruguayan Embassy in Buenos Aires in 1949. The Argentine
Government declared that the local authorities were not prosec-
uting him and that the latter enjoyed al1 necessary guarantees
to reside freely on the national territory. In spite of this declaration
by the territorial State, Uruguay insisted that the refugee should
be allowed to leave the territory of the Argentine Republic. In
face of this insistence, the Argentine Republic, which has so
many noble juridical traditions in matters of asylum, immediately
granted the necessary safe-conduct.
Consequently, it must be admitted that the interpretation put
by Colombia upon Article 2 of the Havana Convention is entirely
in accordance with the general principles of laur, as well as with
the spirit of the text and the provisions of the Convention taken
as a whole. Colombia has thus respected the uniform and con-
tinuous practice of the American nations, including Peru.
20. I n my opinion the second basis of the counter-claim (case of
urgency) of the Government of Peru presented on March z ~ s t1950, ,
does not come within the jurisdiction of the Court and is not
directly connected with the subject-matter of the Application. My
grounds for this opinion are that Peru, during the controversy
which preceded the signature of the Act of Lima, made no claim
whatsoever concerning the existence of urgency ; and consequently,
this consideration was not a part of the existing dispute ; it was not
referred to by Colombia in connexion with the question of the grant
of a safe-conduct, the latter question being based upon the essen-
tially political nature of the offence attributed to the refugee, the
grant of the safe-conduct constituting an obligation for the terri-
torial State. There was no other subject of dispute between the
Parties.
21. As regards the condition of urgency, it is sufficient to recall
that M. Haya de la Torre was threatened in his life or liberty due
to the fact that he was being prosecuted for political reasons,
and this consideration justifies the conclusion that he was entitled
to invoke in his favour the institution of diplomatic asylum in
Latin America.
Furthermore, there is abundant evidence to show that a t that
time Peru was passing through an abnormal situation. One of the
first decrees promulgated by the Military Junta u7asthat of Y ovem-
ber znd, 1948, under which "the Jlilitary Junta of the Government
assumes al1 the powers which the Constitution of the State confers
upon the executive and legislative branches of the Government" l.
' Translation by t h e Registry.
TI2
 D I S S E S T I S G O P I S I O S Bi' hl. C.AICED0 CASTILLA 375
I n other mords, the de jacto military government conferred upon
itself the right to make new laws and modify or abrogate existing
lams, without regard to the rules of the Constitution. I n the exercise
of the rights which it had conferred upon itself, the Junta enacted
decrees as grave as that of Kovember 4th, ~vhichprovidecl for
Oral Courts-Ilartial and authorized the application of the death
sentence, whilst suspending appeal to the Supreme Court against
the judgment. The decree-law fastened those accused of inilitary
rebellion, siich as M. Haya de la Torre, in a grip of iron : the members
of the Courts-Martial urere soldiers 11-hodepeilded upon the pn7ein-
ment, the defence for the accused mas to be appointed by the
government, the penalty imposed might be death, hi ch na5 not
accepted under the Code of Military Justice, and there n a s to be no
appeal against the judgment ; al1 the foregoing measures supersedecl
the Peruvian Code of Jlilitary Justice which had provided for a11
appcal to the Supreme Court on the gi-ounds of nullitj., naturally
restricted to alleged irregularities of form.
Subsequently, on Yovembcr 17th, a new decree-la~vn as enacted
concerning the composition of the Supreme Court of Justice, n-hich
stated as follows :
"1. Law No. 9654 of Kovember q t h , 1942, is abrogated: the
positions whicli are at present provided on the Supreme Court of
Justice of the Republic under law No. 9654 are vricailt as from the
date of the present decree.
2. The x-acancies resulting froni the application of the preseilt
decree as well as tlie positions of Judges and General ddvocates
of the Supreme Court of Justice shall be filled by direct appointment
of the llilitary Junta of the Government z."
I t is true that the Agent of the Government of Peru dcclarcd
that the decree of November 4th does no1 have rctroactix-î cfîcct.
But this declaration in no way modifies the problem in so iar as
M. Haya de la Torre is concerned. For this problem müst be
envisaged as it existed on January ;rd, 1949, the date of the grai::
of asylum : a t that time the decree \vas in force and there was no
reason to believe that it would 11ot have retroactive effects for :
1) no declaration had been made by the Go\-ernment in this
connexion, 2) thcre esiçted a t that tii-ne a de jncto Go~.erninent
whose powers were founded, not on constifutional provisions but
on the success of a cozlp d'étai :and that Govcrnment Iiad conferrecl
upon itself the right t o promulgate lan-s reçardless of the îonstitu-
tion, and 3) it was not ltnown h o ~ vthis decree u-ould De interpreteci
b y the Oral Courts-Martial.
On the other hand, the Peruvian Government duriiig those
same days of October and Kovember 1948 had prnmulgated
decrees of a retroactive character, such as that of October 4th

l Translation by the Registry.

113
 DISSENTING OPINION BY M. CAICEDO CASTILLA 376
concerning the outlawing of the ,4prist Party which established
the collective criminal responsibility of the Aprist leaders for
the events of October 3rd. In other words, there was established
e x post facto a penal responsibility attributable to a whole category
of perçons. A further retroactive decree was that of the Military
Junta concerning the suspension of proceedings for military
rebellion which had been instituted against Colonel Llosa and
others for the abortive revolution of July 1948. This decree
intervened in the operation of military justice, and suspended
the action of the latter.
I n making these remarks, 1 in no way intend to criticize the
Peruvian Government, for it is evident that it could judge, better
than anyone, what measures should be taken for the country.
My sole reason for referring to al1 these laws is because, in my
opinion, they prove clearly that there existed an unstable domestic
situation characterized by political disturbances, precisely the
kind of situation constituting the urgency of diplomatic asylum.
This abnormal situation is confirmed by the existence of a
state of siege. By a supreme decree of January znd, 1949, published
on January 3rd, i.e. the very day asylum was granted to M. Haya
de la Torre, the state of siege was extended for 30 days. I n its
recitals, the decree states that "the reasons which have led t o
the decree providing for the suspension of individual guarantees,
continue to exist ....". I n other words, the abnormal situation
'

continues to exist. The decree adds "that it is necessary that

the authority should have extraordinary powers in order t o
maintain public order and tranquillityl".
I t has been pointed out that Haya de la Torre sought refuge
only on January 3rd, whereas the revolution had occurred on
October 3rd. For me, the time factor has no importance, for the
important question here is whether on January 3rd the abnormal
situation still existed : and irrefutable proof of this fact is furnished
by the above-quoted decree. p n the other hand, if the Callao
revolution occurred on October 3rd, it was only a t the end of
that month that the military uprising occurred which aggravated
the situation of IYt. Haya de la Torre, since the second revolution
which led to the fa11 of President Bustamante took place m-ith
the avowed intention of punishing ilpra. Consequently, the policy
of the new government consisted of the exclusion and repression
of Aprism (note of February zznd, from the Peruvian Minister
for Foreign Affairs : "It was for that reason that the armed forces
of the Republic, by a unanimous impulse, took action to put
an end to al1 this crime and wickedness, and to Save Peru." P. I j o
of the Counter-Rlemorial). Furthermore, 31. Haya de la Torre,
prosecuted as a criminal, his personal assets having been seques-
trated, and in the face of a declaratioil of a state of siege tvliich
-

l Translation by the Registry.

114
 DISSENTING OPINION BY M. CAICEDO CASTILLA 377
facilitated search without a warrant from a competent judge,
and a t a time when foreign embassies and legations were under
the surveillance of the police, M. Haya de la Torre, we Say, was
not really in a position to choose the date of his asylum. It might
be said that he sought refuge when he could.
The existence of the condition of urgency was so evident that
it was accepted without hesitation by the Diplomatic Corps accred-
ited in Lima. For, following the revolution of October 3rd,
M. Haya de la Torre was not the only person obliged t o seek asylum.
There were many refugees who had sought and obtained asylum
in eight embassies ; al1 of them were -4prist leaders involved in
the same proceedings as M. Haya de la Torre. It is possible t o
deduce from the foregoing that the Ambassadors considered that
there existed a situation implying serious danger for-the security
of the refugee Aprist leaders. The case of M. Haya de la Torre
is identical with that of the other refugees.
On the other hand, it must not be forgotten that M. Haya de
la Torre was reputed to have given orders for the extermination
of his adversaries. There is no proof of this order, but the rumour
uras spread (Counter-Memorial, p. 7). I n moments of such con-
fusion and passion when a complete change in the political situation
had just taken place, it was quite conceivable that there should
be some danger of reprisais against the Aprists, and more especially
against their leader. The leaders of a victorious revolutionary
movement, even when they have assumed total power, are not
always able to control the activities of the extremist elements
among their siibordinates and supporters. The very fact that the
Colombian Embassy in Lima has been provided with a continuous
police guard, is evidence of the anxiety of the local authorities
lest the political opponents of Haya de la Torre might take action
to seize him and endanger his life. If that happened while he was
in the Embassy, how much greater would the possibilities have
been and how much greater the danger for his persona1 safety,
had he been in another place.
Furthermore, in judging the conduct of the Ambassador, Ive
must consider :
I. That the two officia1 communiqués of the Peruvian Govern-
ment-one of the 12th and the other of 26th October 1948-accepted
the existence of a situation which might justify the urgency of
asylum, as well as the principle of unilateral qualification and that
of the grant of a safe-conduct. These communiqués were in force on
January 3rd, 1949, for it was only in a note of February zznd, that
the Peruvian Government showed any desire to change its attitude.
2. The Ambassador had granted asylum to M. Pulgar Vidal, an
Aprist deputy, who obtained a safe-conduct on November zgth,
in other words, after the summons had been issued regarding
 DISSENTING OPINION BY M. CAICEDO CASTILLA 37%
M. Haya de la Torre and his friends, and without any remarks being
made by the Peruvian Government on the matter of urgency. Thus,
in the case of M. Pulgar Vidal, the theories set forth in the two
officia1 communiqués were put into application.
3. Other Ambassadors had granted asylum without any observa-
tions being made by the Peruvian Government.
4. Officia1 declarations by the Head of a State, published in the
official gazette El Peruano on January 3rd, 1949, recognizing that
the situation of the country at the time was abnormal.
5. The de facto situation which has already been described
actually existed.
Having regard to the foregoing elements of fact and of law, 1
consider that the Colombian Ambassador acted correctly : he could
not do othenvise than grant asylum ; he conformed to international
law and American practice ; he granted the asylum in strict conform-
ity with the stipulations of the Havana Convention.

22. Finally, we have further recognition by Peru of the abnormal

nature of conditions existing in January 1949, namely, the modifica-
tion of her counter-claim. To maintain that present conditions are
different from those that obtained in 1949, amounts to an admission
that the conditions in 1949 were abnormal, that is, if it is claimed
that present conditions are not abnormal.

23. Asylum, such as is recognized in America, has never been

regarded as a form of intervention. I t is not intervention in the
sense that a government may interfere in the domestic affairs of a
country by favouring the members of a certain party ; indeed,
asylum has always been exercised generously and nobly, in favour
of al1 types of persons without discrimination and regardless of the
political views of the refugee. This point must be stressed because
it is to the crédit of the Latin-American countries.

In the case of Colombia and Peru, it is sufficient to point out

that the same Ambassador granted asylum, first to M. Julio
C. Villegas, who, as Minister of the Interior, wrote the letter provid-
ing for the application of certain measures in the proceedings
against M. Haya de la Torre, and later, to Haya de la Torre himself.
24. Nor is diplomatic asylurr~contrary to the principle of non-
intervention, which is fundamental in American law. The historical
origins of this principle are to be found in the relations between the
United States of America and the Latin-American nations, and
it was put forward by the latter as an affirmation of their independ-
ence against interventions, even armed interventions, which had
occurred but which need not be recalled here. At the hlontevideo
Conference of 1933, the principle was accepted by the Vnited
116
 DISSENTING OPINION BY M. CAICEDO CASTILLA 379
States of America following the development of the policy of
President Franklin Roosevelt ; and pursuant to the confirmation of
the juridical equality of American States, their subsequent mutual
relations developed in an atmosphere of complete solidarity, for
the feelings of distrust which had existed theretofore now
disappeared.
That is why it has never been believed in America that asylum
is related to intervention or to non-intervention. These are entirely
different situations which have never been confused. That is why
countries like. the Argentine Republic and Mexico which have
always most enthusiastically supported non-intervention, have also
supported with the same enthusiasm the institution of asylum.
In so doing, they were not being inconsistent, but were rather
taking American reality into account.
25. The Havana Conference of 1928 had before it the institution
of asylum which was intended to assist political refugees' in the
event of domestic disturbance. The Conference never chose at any
moment to modify the essential character of the institution of
asylum, but sought rather to maintain and strengthen it. Nor did
it express a desire to put an end to alleged abuses in the matter
of asylum. The precedents of the Convention are very clear in this
connexion. The principal one was the meeting of jurists at Rio
de Janeiro in 1927, whose purpose was merely to attempt to
codify public international law and private international law in
accordance with the systems adopted by the Fifth Pan-American
Conference of Santiago (Chile) of 1923, namely, the elaboration
of a code of private international law and the preparation of
partial agreements for public international law. The criterion
applied in selecting the questions of public international law at
Rio was that preference should be given to questions in which
there were no wide divergencies of view, and upon which there
was general agreement. These were so to speak subjects which
were ripe for insertion in a treaty following a generally favourable
consensus, a kind of juridical conscience that had already been
formed in this respect among the American countries. We may
therefore assume that if the subject of asylum was chosen at Rio
it was because this was doubtless a question which enjoyed general
support and sympathy, a matter in which agreement was possible,
as was the case for the other topics adopted on that occasion
(diplomatic officiais, consuls, treaties, literary copyright, etc.).
The same spirit may be noted in the acts and deliberations at
Havana. There was no resistance to asylum except the opposition
in principle of the United States of America. With this exception,
the matter presented no difficulty and raised no objections.
26. The grant of asylum and the maintenance of asylum are
different phenomena. The former is instantaneous, the latter
extends in time. This was Peru's understanding in presenting its
 DISSENTING OPINION BY M. CAICEDO CASTILLA 380
counter-claim concerning the grant of asylum as well as the addition,
which was not examined by the Court, concerning the maintenance
of asylum. For this reason 1 believe that al1 that relates t o the
grant of asylum can only be examined by considering one date
and one date alone, January 3rd, 1949.
To pass judgment on the maintenance of asylum is to go beyond
the limits of the Peruvian claim as it was expressed by that Govern-
ment, and in my capacity as Judge, 1 consider that 1 must confine
myself to resolving the questions which have been put by the
Parties.
Nevertheless, the maintenance of asylum is fully justified in the
case of Colombia on the following grounds :
I. At no moment has Peru requested the surrender of .the refugee.
2. Peru opposed the asylum on the grounds that M. Haya de la
Torre was a common criminal, a fact which Peru has not been able
to establish.
3. On the very day after the grant of asylum, namely January
4th, 1949,Colombia requested a safe-conduct to enable M. Haya de
la Torre to leave Peru with the necessary guarantees, thus bringing
the stage of diplomatic asylum to a close.
4.This request on the part of Colombia was not entertained.
5. Following the Act of Lima, the question is sub judice and the
two countries have agreed upon their obligations to respect the
existing situation.
27. I t has been stated that Colombia, following the day on
which the counter-claim was presented and during the oral
proceedings, chose to transfer her defence to a plane on which
the Havana Convention could provide it with no foundation.
This refers to the fact that the spokesmen for Colombia have
exanlined the circumstances in which proceedings were instituted
against M. Haya de la Torre. In my opinion, this examination
did not depend upon the will of Colombia, but rather upon the
policy adopted by Peru in presenting a counter-claim which, in
contrast to the Colombian Application, does not submit purely
legal questions t o the Court but rather questions of fact and
accusations against the conduct of the Colombian Ambassador
in Lima. Throughout thc diplomatic correspondence, Colombia
has consistently refused to enter into a discussion concerning
Peruvian politics or the domestic situation in Peru. This refusa1
is to be found in al1 the Colombian notes, in spite of the repeated
invitations of the Peruvian Minister for Foreign Affairs. But con-
fronted with the counter-claim, Colombia was obliged to change
her attitude and to examine the documents and facts which were
raised in that counter-claim.
 DISSENTING OPINION BY M. CAICEDO CASTILLA 381
Evidence of the change which was introduced by the counter-
claim is found in the fact that the point which was most discussed
in the last stage of the proceedings was the condition of urgency,
a question which had not even been mentioned during the diplo-
matic discussions.
Among the documents presented by Peru, the letter of
October 5th, 1948, from the Minister of the Interior, M. Villegas,
who subsequently sought refuge in the Colombian Embassy, is
worthy of special attention. I t has been contended that this
letter constitutes a denunciation, although it does not fuifil the
requirements of Peruvian legislation in this respect. This lettcr
is a very serious document because it orders the Examining
Magistrate t o follow a certain procedure in respect of M. Haya
de la Torre, which procedure that judge actually adopted. This
constitutes irrefutable evidence of the influence and intervention
of the Government in military justice.
28. In view of the foregoing considerations, it is possible to
conclude that the conduct of Colombia was beyond reproach. I t
must further be emphasized that it is abundantly clear from the
whole proceedings that the Colombian Ambassador a t Lima had
urgent grounds to grant asylum to M. Victor Rahl Haya de la
Torre, and it is equally clear that the refugee is a political offender.
This proves that Colombia's actions were inspired by the most
respectable considerations.
Colombia has not sought to defend a particular interest, but
rather the legal principles which are generally accepted in Latin
America. Colombia has considered that, as a member of the American
community, she is bound to work for the integrity of these principles
which, along with many others, are effectively in force on the
American continent, thus ensuring that international relations in
that part of the world develop pn the basis of noble doctrines and
not on grounds which are purely utilitarian or materialistic. In
this case Colombia has remained faithful to her own traditions as
well as to the juridical traditions of the continent. In stating
resolutely and unselfishly the tendencies which are common to the
other American Republics, Colombia actually becomes the spokes-
man of the free peoples of America.
I n defending a political refugee, Colombia defends a fundamental
human right, and in so doing not only honours her contractual
obligations, but also undertakings of another order, the force of
which cannot be disregarded.
1 am referring to the essential principles which have inspired
not only the Charter of the United Nations, but also the declara-
tions which have been adopted by the IXth Pan-American Confer-
ence, and by the General Assembly of the United Nations.