INTERNATIONAL LAW

PSDA ACTIVITY
RESEARCH PAPER

TOPIC- Case Analysis- Asylum Case

(Colombia v Peru)

Submitted To: Dr. Abhishek Trivedi

Submitted By:

Tanisha Bajaj (05817703521)

Shivansh Gupta (05917703521)
Vanshika Vashisht (06617703521)
Mishti Kalra (06717703521)
Shrey Arora (1041770352)
INTRODUCTION

Public international law or ‘international law’ governs relationships between and among
entities with international legal personality, i.e., sovereign states and other international actors,
such as inter-governmental organisations and individual natural persons. The legal personality
attributed to these entities means that they have rights, protections, responsibilities and
liabilities under international law.

According to J.G. Starke, “It is that body of law, which is composed for its greater part of the
principles and rules of conduct which states feel themselves bound to observe, and therefore,
do commonly observe in their relations with each other and, which includes also:

• The rules of law relating to the functioning of international institutions or organizations,

their relations with each other and their relations with states and individuals.
• Certain rules of law relating to individuals and non-state entities so far as the rights and
duties of such individuals and non-state entities are the concern of international
community.

There are two kinds of International Law, namely-

• Public International Law: It prevails universally in all over the world.

• Private International Law: It is enforced only between some of states.

Purposes of International Law-

The purposes of international law include-

• Resolution of problems of a regional or global scope, for example, environmental

pollution or boundary conflicts
• Regulation of areas outside the control of any one nation (including outer space or the
high seas)
• Adoption of common rules for multinational activities (such as air transport or postal
service)
• International law also aims to maintain peaceful international relations when possible
and resolve international tensions through pacific means when they develop, to prevent
needless suffering during wars, and to improve the human condition during peace.

What is the ICJ?

International Court of Justice (ICJ), byname World Court, is the principal judicial organ of the
United Nations (UN). The ICJ was established in 1945 by the San Francisco Conference, which
also created the UN. All members of the UN are parties to the statute of the ICJ, and non-
members may also become parties. The court’s inaugural sitting was in 1946.

The ICJ is a continuing and autonomous body that is permanently in session. It consists of 15
judges—no two of whom may be nationals of the same state—who are elected to nine-year
terms by majority votes in the UN General Assembly and the Security Council. The official
languages of the court are French and English. The court’s primary function is to pass judgment
upon disputes between sovereign states. In proceedings before the court, written and oral
arguments are presented, and the court may hear witnesses and appoint commissions of experts
to make investigations and reports when necessary.

The ICJ decides disputes in accordance with international law as reflected in international
conventions, international custom, general principles of law recognized by civilized nations,
judicial decisions, and writings of the most highly qualified experts on international law. The
court’s judgment is final and without appeal.

One such case was the case of Colombia v. Peru or commonly known as the Asylum case
(judgement of 20 November, 1950). It is a landmark case in Public International law for several
reasons, inter alia, its expansion of laws on extradition and political asylum, development of
customary international law and concept of sovereignty in International law. This case is
studied further in this assignment.

What is Asylum?

1. Asylum can be defined as, “Protection from arrest and extradition, given especially to
political refugees by a nation or by an embassy or other agency that has diplomatic immunity.”

2. According to Art. 14 of the Universal Declaration of Human Rights, 1948 – Everyone has
the right to seek and to enjoy in other countries asylum from prosecution. This right may not
be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts
contrary to the purposes and principles of the United Nations.

3. Thus, the essential elements involved in Asylum are-

a) Shelter, which is generally more than a temporary refuge.

b) Some extent of active protection on the part of the authorities from the territory of
asylum.

4. The word asylum is Latin and derived from the Greek word ‘Asylia’ which means inviolable
place.

5. Basis of asylum-

The right of a state to grant asylum to a person is based on the principle that it has a sovereign
right to exercise control over the individuals found on its territory. Since other states cannot
exercise jurisdiction over the same territory, this becomes an exclusive right of the state.

6. Types of Asylum-

Territorial Asylum:

a) When a state grants asylum to a person on its own territory, it is called Territorial Asylum.
State exercises territorial sovereignty over all persons on its territory. Since there is no legal
obligation for the grant of territorial asylum, it depends purely on the discretion of a State.

b) The General Assembly adopted ‘Declaration of Territorial Asylum’ on 14th December, 1967
through the adoption of resolution. This declaration contains a Preamble and 4 Articles relating
to the principles regarding the refusal or grant of asylum. This Declaration also provides that
the right to seek asylum cannot be invoked by any person against whom there are serious
allegations such as committing a crime against peace, war crimes and crimes against humanity.

c) For example, India had granted asylum to Dalai Lama and his followers who were other
Tibetans on the ground of territorial sovereignty over the state, which resulted in more strained
relationship between India and China.

Extra- Territorial Asylum:

a) When Asylum is granted by a State at a place which is outside its own territory, it is called
extra-territorial Asylum. In other words, a state might refuse to surrender the fugitive upon
request by another state, even though the person may not be physically present on their territory.
The person may be on the state’s public ships present in foreign territorial borders or present
in its diplomatic premises within other foreign territories. It must also be noted that
International law does not recognize the absolute right to grant extra-territorial asylum except
in certain exceptional cases. However, in cases of extreme danger, states have a right to provide
temporary refuge.
b) The 4 types of extra-territorial asylum can be classified as follows-

1. Diplomatic asylum such as in embassies, legations, consulates

2. Asylum in warships

3. Asylum in merchant vessels in foreign territory

4. Asylum in the premises of international institution

What is extradition?

1. When a state surrenders or hands over a convicted or accused person, who is found on their
territory to the State in which he has been alleged of such commission or conviction of a crime,
upon request by the latter it is known as Extradition.

2. The term ‘extradition’ is derived from the Latin words - ex and traditum which means
delivery or surrender of criminals or fugitives.

3. Extradition generally involves 2 states namely:

• The territorial state, i.e., the State in which the accused or a convict is physically present

• The requesting state, i.e., the State where the crime has been committed. It is called as a
requesting state only because the person is surrendered by the territorial state upon request by
the other state.

4. Reasons for extradition:

• Generally, a person cannot be punished or prosecuted in a State to where he has fled

because of issues related to jurisdiction or technical rules of criminal law. Hence,
extradition takes place so that due punishment is given to the accused or convict.
• Extradition has a deterrent effect in the sense it reminds criminals that they cannot
escape punishment by fleeing to another State.
• Extradition is based on the principle of reciprocity because a state which is being
requested to surrender a criminal today, may in the future need to request for extradition
of a criminal.
• Extradition complies with the purposes of UN as given under para 3 of article 1 of the
UN Charter as it helps in the achievement of international co-operation to some extent.
5. There are no strict principles or rules regarding extradition in International law because it
does not fall within the domain of international exclusively. Law of extradition operates in both
National and International level. At the national level, extradition or non-extradition of a person
is determined by the municipal courts of a State, however it is also concerned with international
law because it governs the relations between two states.

6. General rules of Extradition can be explained as –

• Extradition Treaties: There must be the existence of an extradition treaty between the
territorial state and requesting state for extradition to take place. For example, the United States,
Belgium and the Netherlands, require a treaty as an absolute pre-condition to extradition. Since
extradition treaties are viewed as politically sensitive subjects, they require long and deliberate
negotiations. This is the reason why states generally refrain from entering into such treaties. As
a result, the criminal is safe if he flees to a state which requires the existence of a treaty for
extradition and they do not have the same with the requesting state.

• Extradition of own Nationals: In certain cases, a person may return to his own country after
committing a crime in a foreign country. A question arises whether the state should extradite
their own nationals. Different states generally follow different practices. However, states such
as Netherlands, Belgium, Italy, Germany, Switzerland and France follow the principle of not
extraditing their own nationals to a foreign state in which they have been accused or convicted
of committing a crime.

• Extradition of Political Offenders: Under International law, It is a rule emerging out of

customary practices that political offenders cannot be extradited. Therefore, they are granted
asylum by the territorial state. This rule also applies to military and religious offenders.

• Rule of Specialty: The rule of specialty imposes a duty on the requesting states for
safeguarding the fugitives from fraudulent extraditions. It implies that a fugitive may be tried
by the requesting state only for that offense for which he has been extradited and cannot be
punished for any other offense unless he has been given an opportunity to return to the
territorial state.

• The doctrine of Double Criminality: According to this doctrine, a crime must be an offense
which is recognized in both, the territorial as well as in the requesting state. The fulfilment of
this principle is a pre-condition to extradition.
• Time-barred crimes: The territorial state can deny the grant of extradition if the fugitive
criminal has been tried and has served sentence for the offense committed in the territorial state
itself. Therefore, extradition cannot be granted for an offence which has been time- barred.

In the case of Colombia v Peru, it was held that asylum and extradition are exclusive of
each other, i.e, there is either Asylum or Extradition. So, we can say that asylum stops,
where extradition begins.
Details of the case

Name : Asylum Case (Colombia v Peru) Citation : [1950] ICJ Rep 266 at 276-78 Plaintiff :
Columbia

Defendant : Peru

Court : International Court of Justice

Judges :

a) (President) Basdevant,

b) (Vice-President)Guerro,

c) (Judges) Alvarez, Hackworth, Wixiarski, Zorieic, de Visscher, Klaestad, Badawi

Pacha, Mrylov, Read, Hsu Mo, Azevedo, and Sir Arnold McNair, and

d) (Judges ad hoc) Alayza y Paz Soldan, Caicedo Castilla, and Garnier-Coign

Area of law : Customary law as a source of international law, concept of sovereignty,

extradition and political asylum

Issue :

a) What constitutes sufficient state practice for the establishment of local custom?

b) Whether Colombia had the right to unilaterally qualify Haya de la Torre’s offense as a

political one under any international treaties, customs or general principles of

international law?

c) Whether the Government of Peru is bound by international law to provide safe

passage for Raul to leave the country?

d) Whether the Government of Colombia had violated the provisions of the Havana

convention, 1928 by providing and continuing to provide asylum to Raul?

Decided : November 20, 1950

a) Declaration of Judge Zoričić

b) Dissenting Opinion by- Judge Alvarez, Judge Badawi Pasha, Judge Read, Judge
Factual Background of the case

On January 3rd, 1949, the Colombian Ambassador in Lima (Capital of Peru) had granted
asylum to M. Victor Raul Haya de la Torre who was the head of a Political party in Peru known
as the American People’s Revolutionary Alliance.

On October 3rd, 1948, a military rebellion broke out in Peru and Haya de la Torre was accused
for instigating and directing that rebellion. He was sought by the Peruvian authorities; however,
they were unsuccessful. Later, the Colombian Ambassador in Lima had granted asylum to the
refugee and requested a safe-conduct to enable Haya de la Torre to leave the country, claiming
that he qualified as a political offender. But the Government of Peru had refused, claiming that
Haya de la Torre had committed common crimes and was not entitled to enjoy the benefits of
asylum. This dispute between the two countries could not be resolved between themselves and
hence it was put in front of the ICJ by an application submitted by Colombia.

Sequence of Events :

1. October 3rd, 1948 –

After a long struggle and siege, the Military Junta Government came to power defeating the
American Citizens’ Revolutionary Alliance which automatically became the opposition party.
On the 3rd of October, a military rebellion had broken out in Peru, which was supressed the
same day.

2. October 4th, 1948 –

On the following day, a decree was published charging the opposition party (The American
People’s Revolutionary Party) to have prepared and directed the rebellion. The head of the
party, Victor Raul Haya de la Torre was denounced to be responsible for the same. He, along
with the other members of his party were prosecuted on the charge of military rebellion.

3. October 27th, 1948 –

After the military Junta had assumed power in Peru, they published a decree providing for
courts-martial for summary judgement in cases of rebellion, sedition and rioting; but this decree
was not applied to the proceedings against Haya de la Torre and others and it was declared
before the court that this decree was not applicable to the said proceedings.

4. November 16th, 1948 –

As Haya de la Torre was still at Liberty on this date, summons were issued ordering him to
appear before the Examining Magistrate.

5. January 3rd, 1949 –

Haya de la Torre was granted asylum in the Colombian Embassy in Lima, Peru.

6. January 4th, 1949 –

The Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted
to Haya de la Torre and requested for a safe-conduct to be issued to enable the refugee to leave
the country.

7. January 14th, 1949 –

The Colombian ambassador in Lima also unilaterally qualified that the refugee was a political
refugee. The Peruvian Government disputed this qualification as they considered his crime to
be a common one and refused to grant a safe-conduct.

Due to non-agreement between both the States, Peru and Colombia, the situation reached a
diplomatic stalemate and no provision was left for either party rather than to move an
independent authority. Hence, the Act of Lima was signed between the two States on August
31st, 1949 and it was decided that the ICJ will adjudge the matter and the award will be agreed
to by both the parties.

Issues laid down before the ICJ

1. Whether the State of Colombia had right to unilaterally qualify the offense of Victor Raul as
a political offense under any international treaty, customary international law or any general
principles of international law?

2. Whether the Peruvian government was bound to grant safe passage to Raul to leave the
country under international law?

3. Whether the Colombian government and ambassador was liable for violating the articles 1
and 2(2) of the Havana Convention on Asylum, 1928 by providing and continuing to provide
asylum to the offender?

Legal provisions relevant to the case

1. Article 18 of the Bolivarian Agreement on Extradition, 1911

2. Articles 1 and 2 of the Havana Convention on Asylum, 1928

3. Montevideo Convention on Political Asylum, 1933

4. Customary International Law

Arguments made on behalf of the Colombian Government

Colombia maintained before the court that, according to the Convention in force – the
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the
Montevideo Convention of 1933 on Political Asylum – and according to American
international law, she was entitled to qualify the nature of the offence for the purposes of the
asylum. In this connection, the Court considered that, if the qualification in question were
provisional, there could be no doubt on that point: the diplomatic representative would consider
whether the required conditions has been satisfied, he would pronounce his opinion and if that
opinion were contested, a controversy would then arise which might be settled according to the
methods provided by the parties. However, it resulted from the proceedings in the case that
Colombia claimed the right of unilateral and definitive qualification binding upon Peru.

The three-fold argument put forth by the Colombian Government can be summarised as
follows-

1. According to Article 18 of the Bolivarian Agreement, 1911 every country is permitted to

grant political asylum to any political refugee in accordance with the international law. This
principle has been further reiterated under the Montevideo Convention, 1933. Since, both the
agreements were ratified and signed by Peru and Colombia, these provisions were relied upon
by Colombia and they argued that according to the obligations arising from these treaties, they
had every right to grant asylum to the political offender and hence, they had not violated any
law.

2. Colombia also argued that there exists an ancient and long practised custom in South
American countries that vests within these countries, the right to grant asylum to anyone
seeking it. This arises from Article 38 of the Statute of the Court, which refers to international
custom “as evidence of a general practice accepted as law.”

Further, Colombia also argued that the custom encouraged unilateral qualification of the nature
of an offence of an offender as a political one for the purpose of granting asylum. Hence,
Colombia prayed that since the State has the right to qualify anyone as a political offender
unilaterally, it is the duty of other States to respect such qualification and allow safe passage to
such refugees or asylum-seekers.

3. The last argument of Colombia was regarding Article 2 (2) of the Havana Convention.
They claimed that this provision imposed an obligation on Peru to provide a free and safe
passage to Raul to leave the country without any harm. Moreover, it was pleaded that the
provision of this convention which is in line with the American custom, demands respect for
such rights and hence, Peru is under an obligation to provide safe passage for Raul to leave the
country.

Arguments made on behalf of the Peruvian Government

The Peruvian government filed a counter-claim to claim the extradition of Raul and hold
Colombia liable for hiding an offender. Peru’s lawyers responded that Colombia could not
unilaterally grant asylum over Peru’s objection. De la Torre had committed a common crime,
subjecting him to prosecution by Peru, just like any other criminal. Colombia had no right to
employ asylum as a means of avoiding Peru’s criminal laws.

The arguments of the Peruvian government can be summarised as follows –

1. Firstly, the Bolivarian agreement is a treaty on extradition and does not deal with asylum.

2.According to the provisions of the Havana Convention on Asylum, political asylum can
be provided only in favour of a political offender. A political offender is one who has
committed an act towards the detriment of the State and caused or attempted to cause harm to
its sovereignty and integrity. Political offenders are allowed this privilege of asylums because
several times, these political offenders are rebels fighting against their cruel and corrupt
government or a dictator’s rule and under their radar to be found and exterminated. In the
present case, Peru argued that Victor was not a political offender and the unilateral qualification
of Victor as a political offender by the Colombian government is invalid.

3. Thirdly, it was also argued by the Peruvian government that according to Article 2 of the
Havana Convention, another essential condition to grant asylum is that it should be granted
only in cases of dire need or utmost emergency. For instance, when there is an immediate
threat of extermination or persecution of the asylum seeker. However, in the present case, the
Peruvian government has not shown any such intention of persecuting Raul. Only a legal trial
has been initiated against him in the Peruvian court. Hence, the asylum is invalid and against
international law.

Court’s decision

(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?

1. In this regard, the Court held that in a ordinary case of granting diplomatic asylum, the
diplomatic representative has the right to make a provisional qualification of the nature of the
offence and the territorial State has the right to give consent to such qualification. However, in
this case, Colombia (being the State granting asylum) argues that it is competent to qualify the
nature of the offence in a unilateral and absolute manner which would be binding on Peru. The
court had to contemplate if any laws arising from treaties (with specific reference to the Havana
Convention of 1928 and the Montevideo Convention of 1933) or other principles of
international law or whether any regional or local custom existed such that Peru would be
bound by Colombia’s decision.

2. The Court held that, under the provisions of the Havana Convention or relevant principles
of international law there was no expressed or implied right of unilateral and definitive
qualification by the State granting asylum. Though the Montevideo Convention of 1933 on
which Colombia relied to justify their act, accepts the right of unilateral qualification, the same
was not ratified by Peru. Therefore, the said convention was not binding on Peru. It was also
stated that since there were a low number of ratifications, the provisions of this Convention do
not constitute customary international law.

3. Colombia further supported their argument by stating that regional or local customs approve
of such qualification. The court held that any party alleging the existence of any customary law
must also prove the same, i.e, the burden of proof lies on them.

“The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party... it is in accordance with a (1)
constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the
expression of a right appertaining to the State granting asylum and (4) a duty incumbent on the
territorial State. This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law”

4. Since Colombia could not prove consistent and uniform usage of the apparent custom by
relevant States, the court held that Colombia could not prove the existence of such regional or
local custom. A major barrier to the criterion of uniform usage can be seen as the fluctuations
and contradictions in State practice. The court also reiterated that it can be detrimental to the
formation of a customary law, if a state practice is followed purely on the basis of political
expediency and not because of the belief that any legal obligation exists which makes a State
bound by that practice.

“The Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule
of unilateral and definitive qualification was invoked or ... that it was, apart from conventional
stipulations, exercised by the States granting asylum as a right appertaining to them and
respected by the territorial States as a duty incumbent on them and not merely for reasons of
political expediency. The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and in the official views expressed on various occasions, there has been so
much inconsistency in the rapid succession of conventions on asylum, ratified by some States
and rejected by others, and the practice has been so much influenced by considerations of
political expediency in the various cases, that it is not possible to discern in all this any constant
and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and
definitive qualification of the offence.”

5. Moreover, the Court held that even if Colombia could prove that such a regional custom
existed, it would not be binding on Peru, because Peru “far from having by its attitude adhered
to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence [as “political” in nature] in matters of diplomatic asylum.”

6. Therefore, the Court came to a conclusion that Colombia, acting as the State granting asylum,
is not competent to unilaterally and definitively make a decision to qualify the nature of the
offence which may be binding on Peru.

(2) In this case, was Peru, acting as the territorial State, bound to give a guarantee of
safe passage for Raul to leave the country?

7. The Court held that Havana Convention or customary law did not impose any legal
obligation on Peru to grant safe passage to Raul. In fact, under Article 2 of the Havana
Convention, there is an obligation on the territorial state (Peru) to grant safe passage only after
it requests the State granting Asylum (Colombia) to send the person granted asylum outside its
territory (Peru). However, here the Peruvian government did not ask for Raul to leave the
country but instead it contested the legality of asylum granted to him by the Colombian
Ambassador and rejected the plea to grant safe passage for him to leave the country.

8. The Court also considered the possibility of a customary law emerging from a State practice
where even before the territorial State could request for the departure of the asylum seeker, the
diplomatic agents themselves have requested and been granted safe passage for them. However,
once again the court concluded that these practices were influenced by a need for expediency
and other considerations rather than being backed by a belief that the act amounts to a legal
obligation.

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum
immediately requests a safe conduct without awaiting a request from the territorial state for the
departure of the refugee...but this practice does not and cannot mean that the State, to whom
such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted

asylum and is the continued maintenance of asylum a violation of the treaty?

9. According to Article 1 of the Havana Convention, “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.”

10. In order to be granted asylum, the asylum seeker must not be accused of any common
crime. The relevant accusations are those made before the granting of asylum. In this case,
Raul was accused of being the leader and directing a military rebellion against the ruling party,
which according to the court was not a common crime and as such, the granting of asylum can
be justified under Article 1 of the Convention. In other words, 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.
11. According to Article 2 (2) of the Havana Convention, “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.”

12. This article specifically mentions that the existence of an urgency or the presence of “an
imminent or persistence of a danger for the person of the refugee”, is a pre-condition required
for granting asylum. The court held that, almost 3 months had passed after the rebellion and
before the asylum was sought, therefore the facts of the case did not comply with the urgency
criteria (pp. 20 -23). So, the second submission of Peru was accepted by a vote of ten votes to
six. 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.”

13. Though Raul was accused of a crime, he could not be tried in a court of Peru because
Colombia had granted him asylum. The court held that diplomatic asylum does not in any way
justify “protection from the operation of regular legal proceedings”.

14. The Court held:

“In the case of diplomatic asylum, the refugee is within the territory of the State. A decision to
grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws
the offender from the jurisdiction of the territorial State and constitutes an intervention in
matters which are exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is established in each
particular case.”

15. As a result, exceptions to this rule that asylum should not be granted to those facing regular
prosecutions are strictly regulated under international law. An exception to this rule can occur
only if, arbitrary action is substituted for the rule of law in the pretext of justice. Such a situation
would arise if the administration of justice were corrupted by the influence of political aims.
Asylum aims to protect the political offender against any actions which a Government might
take or attempt to take against its political opponents. At the same time, the safety which arises
out of asylum cannot be misunderstood as a protection from the regular application of the laws
and the jurisdiction of legally constituted tribunals. If it is construed in this way, it would
authorize the diplomatic agent to obstruct the application of the laws of the country whereas he
is bound to respect them. Moreover, it would contradict one of the most firmly established
traditions of non-intervention keenly practised in Latin- America.

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections of the population.” However, when Raul
sought asylum at the Colombian Embassy located in Lima, Peru, he was not in such a situation.

17. Therefore, the Court concluded that the act of granting and continuing to provide asylum
and the reasons given by the Colombian were not in accordance with Article 2(2) of the Havana
Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in
consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.”

Final decision of the court

Having regard to Articles 35, 36, 40 and 48 of the Statute of the Court, Having regard to Articles
32, 35, 38 and 41 of the Rules of Court,

The two submissions of Colombia were rejected, the first by fourteen votes to two (Judge
Azevedo and M. Caicedo, Judge ad hoc), the second by fifteen votes to one (Judge Caicedo).
As for the counter-claim of the Government of Peru, it was rejected by fifteen votes to one in
so far as it was founded on a violation of the Article of the Havana Convention providing that
asylum shall not be granted to persons accused of common crimes. But on the second point,
the counter-claim was allowed by ten votes to six. (Judges Alvarez, Zoricic, Badawi Pasha,
Read and Azevedo and M. Caicedo., Judge ad hoc.) The dissenting opinions of Judges Alvarez,
Badawi Pasha, Read, Azevedo, and M. Caicedo, Judge ad hoc, were appended to the Judgment.
In respect of the second point of the counter-claim, Judge Zoricic subscribed to the opinion of
Judge Read.

Conclusion
• The Asylum case was the first case between two American states to be decided by either
the International Court of Justice or its predecessor, the Permanent Court of
International Justice. It is a case which involves the controversial practice of diplomatic
asylum.
• The Colombian-Peruvian Asylum Case brings to light the issues regarding the validity
of diplomatic asylum in international law and its desirability in international relations.
• With respect to the unilateral qualification of Raul’s offense as a political offense, the
ICJ observed that in a normal scenario, the procedure is that the asylum granting State
has right to provisionally qualify an offense as a political offense and the territorial
State is entitled to consent to such qualification. In the present case, consent was
denied by the Peruvian government, but the Colombian embassy made the
qualification absolute even without consent.
• Moreover, the court also observed that the Havana Convention does not provide any
right or absolute authority to any State for the unilateral qualification of an offense
as a political offense. Hence, it would be wrong to state that Colombia had any absolute
and definitive right to make such a qualification.
• With regard to the Montevideo Convention of 1933 on which the Colombian
government relied highly upon, though it allows such power to the State, the court
observed that Peru has neither signed nor ratified the Montevideo Convention. It was
also observed and stated that, the convention has not been ratified by a large number of
States and its provisions are very rarely used. Hence, it is neither binding as a treaty
nor as a general principle of International law.
• Adding to the issue of unilateral qualification, the court also held that the Colombian
government’s argument related to customary practice in the Latin American
States to grant asylum is also futile.
It is because an essential ingredient of a valid custom is “consistent and uniform usage”.
In the case of South American States, the practice has always arisen, taking into
consideration some unforeseen exigencies and urgent need. There is no uniform
practice as such and hence, no customary International law as well.
• This case evolved the concept of customary international law and added two
essential ingredients to it, i.e. consistent and uniform usage.
• Hence, the court rightly concluded that Peru has the right over the custody of
Victor Raul