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    The Asylum Case (Digest)

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    Laila Ismael Salisa
    1. In 1948, Haya de la Torre fled to the Colombian embassy in Peru after being accused of instigating a military rebellion. Colombia granted him asylum and claimed he was a political offender. 2. Peru refused to accept this qualification and denied his safe passage, arguing he committed common crimes. The two countries agreed to submit the case to the ICJ. 3. The ICJ held that Colombia could not unilaterally define the nature of the offense in a way that bound Peru. It also found Peru was not legally obligated to ensure safe passage. While rebellion was not a common crime, Colombia violated treaties by granting asylum without an urgent threat to de la Torre's safety.

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    The Asylum Case (Digest)

    Uploaded by

    Laila Ismael Salisa
    1K views2 pages
    1. In 1948, Haya de la Torre fled to the Colombian embassy in Peru after being accused of instigating a military rebellion. Colombia granted him asylum and claimed he was a political offender. 2. Peru refused to accept this qualification and denied his safe passage, arguing he committed common crimes. The two countries agreed to submit the case to the ICJ. 3. The ICJ held that Colombia could not unilaterally define the nature of the offense in a way that bound Peru. It also found Peru was not legally obligated to ensure safe passage. While rebellion was not a common crime, Colombia violated treaties by granting asylum without an urgent threat to de la Torre's safety.

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    56. THE ASYLUM CASE (DIGEST)

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    1. In 1948, Haya de la Torre fled to the Colombian embassy in Peru after being accused of instigating a military rebellion. Colombia granted him asylum and claimed he was a political offender. 2. Peru refused to accept this qualification and denied his safe passage, arguing he committed common crimes. The two countries agreed to submit the case to the ICJ. 3. The ICJ held that Colombia could not unilaterally define the nature of the offense in a way that bound Peru. It also found Peru was not legally obligated to ensure safe passage. While rebellion was not a common crime, Colombia violated treaties by granting asylum without an urgent threat to de la Torre's safety.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    1K views2 pages

    The Asylum Case (Digest)

    Uploaded by

    Laila Ismael Salisa
    1. In 1948, Haya de la Torre fled to the Colombian embassy in Peru after being accused of instigating a military rebellion. Colombia granted him asylum and claimed he was a political offender. 2. Peru refused to accept this qualification and denied his safe passage, arguing he committed common crimes. The two countries agreed to submit the case to the ICJ. 3. The ICJ held that Colombia could not unilaterally define the nature of the offense in a way that bound Peru. It also found Peru was not legally obligated to ensure safe passage. While rebellion was not a common crime, Colombia violated treaties by granting asylum without an urgent threat to de la Torre's safety.

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    © All Rights Reserved
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    56. THE ASYLUM CASE (COLOMBIA V.

    PERU, 17 ILR 28, ICJ REPORTS


    NOVEMBER 20, 1950)
    FACTS:
    On October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted
    against Haya de la Torre for the instigation and direction of that rebellion. Three months after the
    rebellion, Torre fled to the Colombian Embassy in Lima, Peru.
    He was sought out by the Peruvian authorities, but without success; and after asylum had been
    granted to the refugee, the Colombian Ambassador in Lima requested a safe-conduct to enable
    Haya de la Torre, whom he qualified as a political offender, to leave the country. This was
    granted in accordance with Article 2(2) of the Havana Convention on Asylum of 1928.
    Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in
    accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term
    refugee is not the same as the Refugee Convention of 1951).
    The Government of Peru refused to accept the unilateral qualification and refused to grant safe
    passage, claiming that Haya de la Torre had committed common crimes and was not entitled to
    enjoy the benefits of asylum.
    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.
    ISSUE/S:
    1: Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
    for the purpose of asylum under treaty law and international law?
    2: Is Peru, as the territorial State, bound to give a guarantee of safe passage?
    3: Did Colombia violate Article 1 and 2(2) of the Convention on Asylum of 1928 (Havana
    Convention) when it granted asylum and is the continued maintenance of asylum a violation of
    the treaty?

    HELD:
    Colombia was not entitled to qualify unilaterally and in a manner binding upon Peru the nature
    of the offence.
    It declared that the Government of Peru was not bound to deliver a safe-conduct to the refugee.
    The Court rejected by fifteen votes to one the Peruvian contention that Haya de la Torre was
    accused of common crimes; the Court noted that the only count against Haya de la Torre was
    that of military rebellion and military rebellion was not, in itself, a common crime.
    1: The court stated that in the normal course of granting diplomatic asylum a diplomatic
    representative has the competence to make a provisional qualification of the offence (for
    example, as a political PUBLIC INTERNATIONAL LAW A.Y. 2016-2017 Atty. Ryan
    Mercader 2K 68 offence) and the territorial State has the right to give consent to this
    qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is
    competent to qualify the nature of the offence in a unilateral and definitive manner that is
    binding on Peru. The court had to decide if such a decision was binding on Peru either because
    of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of
    1933), other principles of international law or by way of regional or local custom.
    2: The court held that there was no legal obligation on Peru to grant safe passage either because
    of the Havana Convention or customary law. In the case of the Havana Convention, a plain
    reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage
    only after it requests the asylum granting State (Columbia) to send the person granted asylum
    outside its national territory (Peru). In this case the Peruvian government had not asked that
    Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused
    to grant safe conduct.
    3: Article 1 of the Havana Convention states that “It is not permissible for States to grant
    asylum… to persons accused or condemned for common crimes… (such persons) shall be
    surrendered upon request of the local government.” In other words, the person-seeking asylum
    must not be accused of a common crime (for example, murder would constitute a common
    crime, while a political offence would not). The accusations that are relevant are those made
    before the granting of asylum. Torre’s accusation related to a military rebellion, which the court
    concluded was not a common crime and as such the granting of asylum complied with Article 1
    of the Convention. Article 2 (2) of the Havana Convention states that “Asylum granted to
    political offenders in legations, warships, military camps or military aircraft, shall be respected to
    the extent in which allowed, as a right or through humanitarian toleration, by the usages, the
    conventions or the laws of the country in which granted and in accordance with the following
    provisions: First: Asylum may not be granted except in urgent cases and for the period of time
    strictly indispensable for the person who has sought asylum to ensure in some other way his
    safety.” An essential pre-requisite for the granting of asylum is the urgency or, in other words,
    the presence of “an imminent or persistence of a danger for the person of the refugee”. The court
    held that the facts of the case, including the 3 months that passed between the rebellion and the
    time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The
    court held: “In principle, it is inconceivable that the Havana Convention could have intended the
    term “urgent cases” to include the danger of regular prosecution to which the citizens of any
    country lay themselves open by attacking the institutions of that country… In principle, asylum
    cannot be opposed to the operation of justice.” In other words, Torre was accused of a crime but
    he could not be tried in a court because Colombia granted him asylum. The court held that
    “protection from the operation of regular legal proceedings” was not justified under diplomatic
    asylum. Asylum may be granted on “humanitarian grounds to protect political prisoners against
    the violent and disorderly action of irresponsible sections of the population.” (for example during
    a mob attack where PUBLIC INTERNATIONAL LAW A.Y. 2016-2017 Atty. Ryan Mercader
    2K 69 the territorial State is unable to protect the offender). Torre was not in such a situation at
    the time when he sought refuge in the Colombian Embassy at Lima

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