CIJ - Asylum (Colombia - Perú)

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,

AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DROIT

D'A SILE

(COLOMBIE / PÉROU)

ARRÊT DU 20 NOVEMBRE 1950

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,

ADVTSORY OPINIONS AND ORDERS

ASYLUM CASE

(COLOMBIA / PERU) JUDGMENT OF NOVEMBER 20th, 1950Le présent arrêt doit être cité comme suit : « Agaire colombo-péruvienne relative au droit d'asile, Arrêt du 20 novembre 1950: C. I. J. Recueil 1950, p. 266. )! This Judgment should be cited as follows : "Colombian-Peruvian asylum case, Judgment of November 20th 1950 : I.C. J. Refiorts 1950, fi. 266." NO de vente : 1 .M,~. 50 1In the Asylum case, between the Republic of Colombia, represented by :

M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal Adviser to the Ministry for Foreign Affairs of Colombia, former Senator, as Agent ; assisted by

M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-General of the Ministry for Foreign Affairs of Colombia, as Advocate ; and the Republic of Peru,

represented by :

M. Carlos SayAn Alvarez, Barrister, Ambassador, former Minister, former President of the Peruvian Chamber of Deputies, as Agent; assisted by

M. Felipe Tudela y Barreda, Barrister, Professor of Coristitutional Law at Lima,

M. Fernando Morales Macedo R., Parliamentary Interpreter,

M. Juan José Calle y Calle, Secretary of Embassy ; and, as Counsel,

assisted by

M. Felipe Tudela y Barreda, Barrister, Professor of Coristitutional Law at Lima,

M. Fernando Morales Macedo R., Parliamentary Interpreter,

M. Juan José Calle y Calle, Secretary of Embassy ; and, as Counsel,

M. Georges Scelle, Honorary Professor of the University of Paris, and

M. Julio Lopez Olivan, Ambassador, composed as above, delivers the following Judgment : On August yst, 1949, an agreement called the "Act of Lima" was signed at Lima in the name of the Colombian Government and of the Peruvian Government. This Act is as follows : "His Excellency Monsieur Victor Andrés Belaunde, Ambassador Extraordinary and Plenipotentiary ad hoc of +lie Peruvian Kepublic, and His Excellency Monsieur Eduardo Zuleta Ançel, Ambassador Estraordinary and Plenipotentiary ad hoc of Colombia, du157 designated by tlieir respective Governments to negotiatc and draw up tlie

5ASYLUM CASE (JUDGMENT OF 20 XI 50) 268 terms of an agreement to refer to the International Court of Justice a dispute which arose following a request by the Colombian Embassy in Lima for delivery of a safe-conduct for Monsieur Victor Raul Haya de la Torre, have met in the Ministry of Foreign Affairs and Public Worship in Lima and, having exchanged their respective credentials, make the following declaration in the spirit of cordial fnendship which characterizes the relations between the two countries : First : They have examined in a spirit of understanding the existing dispute which they agree to refer for decision to the International Court of Justice, in accordance ~3h the agreement concluded by the two Governments.

Second : The Plenipotentianes of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that

Court of Justice, in accordance ~3h the agreement concluded by the two Governments.

Second : The Plenipotentianes of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that proceedings before the recognized junsdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfnendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made.

Third : They agree, here and now : (a) that the procedure in this case shall be the ordinary procedure ; (b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the Parties may exercise its right to choose a judge of its nationality ; (c) that the case shall be conducted in French.

Fourth : This document, after it has been signed, shall be communicated to the Court by the Parties." On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the name of the Colombian Government. After stating that Colombia asserts : "(a) that she is entitled in the case cf perçons who have claimed asylum in her embassies, legations, warships, rnilitary camps or military aircraft, io qualify the refugees, either as offenders for common crimes or deserters from the army or navy, or as political offenders ;

(b) that the territorial State, namely, in this case, Peru, is bound to give 'the guarantees necessary for the departure of the refugee, with due regard to the inviolability of his person, from the country' ", 6the Application concludes by requesting the Court :

offenders ; (b) that the territorial State, namely, in this case, Peru, is bound to give 'the guarantees necessary for the departure of the refugee, with due regard to the inviolability of his person, from the country' ", 6the Application concludes by requesting the Court : "To pass judgment on and answer, whether the Government of the Republic of Peru enters an appearance or not, and after such time-limits as the Court may fix in the absence of an agreement between the Parties, the following questions : First Question.-Within the limits of the obligations resulting in particular from the Eolivarian Agreement on Extradition of July 18th, 1911, and the Convention on Asylum of February zoth, 1928, both in force between Colombia and Peru, and in general from American international law, was Colombia competent, as the country granting asylum, to qualify the offence for the purposes of said asylum ? Second Question.-In the specific case under consideration, was Peru, as the territorial State, bound to give the guarantees necessary for the departure of the refugee from the country, with due regard to the inviolability of his person ?" Together with the Application, the Agent of the Colombian Government filed in the Registry a certified true copy of the original in Spanish, accompanied by a French translation, of the Act of Lima. By letter of October 15th, 1949, received by the Registry on ,the same day, the Agent of the Peruvian Government also deposited a certified true translation of the Act of Lima. The Application was notified, under Article 40, paragraph 3, of the Statute of the Court, to the States entitled to appear before the Court. It was also transmitted to the Secretary-General of the 'C'nited Nations. As the Application \vas based upon the Convention on Asylum signed at Havana on February zoth, 1928, and upon the Agreement on Extradition signed at Caracas on July 18th, 1911, the notification

'C'nited Nations. As the Application \vas based upon the Convention on Asylum signed at Havana on February zoth, 1928, and upon the Agreement on Extradition signed at Caracas on July 18th, 1911, the notification prescribed by Article 63, paragraph 1, of the Statute of the Court was addressed to the States other than those concerned in the case which were parties to the foregoing Conventions. The Pleadings having been deposited within the time-limits prescribed in the Order of October zoth, 1949, as extended by Orders of December 17th, 1949, and May gth, 1950, the case was ready for hearing on June 15th, 1950. As the Court did not include upon the Bench any judge of the nationality of the Parties, the latter availed themselves of the right provided by Article 31, paragraph 3, of the Statute. The Judges ad hoc designated were M. José Joaquin Caicedo Castilla, Doctor of Law, Professor, former Deputy and former President of the Senate, Ambassador, for the Government of Colombia, and

M. Luis Alayza y Paz SoldAn, Doctor of Law, Professor, former Minister, Ambassador, for the Government of Peru.

The opening of the oral proceedings was fixed for September 26th,

1950. Public sittings were held by the Court on September 26th, 27th, 28th and 29th and on October and, 3rd, 6th and gth, 1950.

7In the course of the sittings, the Court heard statements by M. J.

M. Yepes, Agent, and M. Alfredo Vasquez, Advocate, on behalf of the Republic of Colombia, and by M. Carlos SayAn Alvarez, Agent, and M. Georges Scelle, Counsel, on behalf of the Republic of Peru.

At the end of the written proceedings the Parties had presented the following submissions : On behalf of Colombia (submissions contained in the Reply) :

"MAY IT PLEASE THE COURT

and M. Georges Scelle, Counsel, on behalf of the Republic of Peru. At the end of the written proceedings the Parties had presented the following submissions : On behalf of Colombia (submissions contained in the Reply) : "MAY IT PLEASE THE COURT To dismiss the submissions of the Government of the Republic of Peru, TO ADJUDGE AND DECLARE : In accordance with the submissions presented by the Government of the Republic of Colombia in its Memorial of January ~oth, 1950, which was submitted to the Court on the same date, and Rejecting al1 contrary submissions,

1. That the Republic of Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Convention on Asylum of February zoth, 1928, and of American international law in general ;

,

II. That the Republic of Peru, as the territorial State, is bound in the case now before the Court to give the guarantees necessary for the departure of M. Victor Rahl Haya de la Torre from the country, with due regard to the inviolability of his person." On behalf of Peru (submissions contained in the Rejoinder) : "MAY IT PLEASE THE COURT To set aside the submissions of the Government of the Republic of Colombia; As a counter-claim, under Article 63 of the Rules of Court, and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raiil Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item I (ilzciso primera), of the Convention on Asylum signed at Havana in 1928." At the end of the oral statements, the Agent for the Government of Peru having made an addition to the submissions in the Pleadings, the following final submissions were presented to the Court

item I (ilzciso primera), of the Convention on Asylum signed at Havana in 1928." At the end of the oral statements, the Agent for the Government of Peru having made an addition to the submissions in the Pleadings, the following final submissions were presented to the Court orally and confirmed in writing : On behalf of Colombia (on the claim)ASYLUM CASE (JUDGMENT OF 20 XI 50) 271 T0 ADJUDGE AND DECLARE : 1.-That the Republic of Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Havana Convention on Asylum of February zoth, 1928, and of American international law in general ; II.-That the Republic of Peru, as the territorial State, is bound in the case now before the Court to give the guarantees necessary for the departure of M. Victor Raul Haya de la Torre from the country, with due regard to the inviolability of his person." (on the counter-claim) "1. That the counter-claim presented by the Peruvian Government on March z~st, 1950, is not admissible because of its lack of direct connexion with the Application of the Colombian Government ;

2. That the new counter-claim, irregularly presented on October 3rd, 1950, in the form of a submission upon allegations made during the oral debate, is not admissible on the grounds

that : (a.) It was presented in violation of Article 63 of the Rules of Court ; (b) The Court has no jurisdiction to take cognizance of it ; ('c) It has no direct connexion with the Application of the Colombian Government."

On behalf of Peru : "MAY IT PLEASE THE COURT To set aside submissions 1 and II of the Colombian Memorial.

of Court ; (b) The Court has no jurisdiction to take cognizance of it ; ('c) It has no direct connexion with the Application of the Colombian Government."

On behalf of Peru : "MAY IT PLEASE THE COURT To set aside submissions 1 and II of the Colombian Memorial.

To set aside the submissions which were presented by the Agent of the Colombian Government at the end of his oral statement on October 6th, 1950, in regard to the counter-claim of the Government of Peru, and which were repeated in his letter of October 7th, 1950. TO ADJUDGE AND DECLARE, As a counter-claim, under Article 63 of the Rules of Court and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of Article 1, paragraph 1, and of Article 2, paragraph 2, item I (inciso primera), of the Convention on Asylum signed in 1928, and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty."On October 3rd, 1948, a military rebellion broke out in Pen. It was suppressed on the same day and investigations were at once opened. On October 4th, the President of the Republic issued a decree in the recitals of which a political party, the American People's Revolutionary Alliance, was charged with having organized and directed the rebellion. The decree consequently enacted that this party had placed itself outside the law, that it would henceforth not be permitted to exercise any kind of. activity, and that its leaders would be brought to justice in the national courts as instigators of the rebellion. Simultaneously, the head of the Judicial Department of the Navy issued an order requiring the Examining Magistrate to open at once an enquiry as to the facts constituting the crime of military rebellion. On October 5th, the Minister of the Interior addressed to the

instigators of the rebellion. Simultaneously, the head of the Judicial Department of the Navy issued an order requiring the Examining Magistrate to open at once an enquiry as to the facts constituting the crime of military rebellion. On October 5th, the Minister of the Interior addressed to the Minister for the Navy a "note of denunciation" against the leader of the American People's Revolutionary Alliance, Victor Raul Haya de la Torre, and other members of the party as responsible for the rebellion. This denunciation was approved on the same day by the Minister for the Navy and on October 10th by the Public Prosecutor, who stated that the subject-matter of the proceedings was the crime of military rebellion. On October t th, the Examining Magistrate issued an order for the opening of judicial proceedings against Haya de la Torre and others "in respect of the crime of military rebellion with which they are charged in the 'denunciation' ", and on October 25th he ordered the arrest of the perçons "denounced" who had not yet been detained. On October 27th, a Military Junta made a coz@ d'état and seized the supreme power. This Military Junta of the Govèrnment issued on November 4th a decree providing for Courts-Martial for summary procedure in cases of rebellion, sedition and rioting, fixing short time-limits and severe punishment without appeal. This decree was not applied to the judicial proceedings agabst Haya de la Torre and others. These proceedings continued under the same jurisdiction as theretofore. This is shown by a note of November 8th from the Examining Magistrate requesting the production of certain documents, by a note of November 13th from the Head of the Investigation and Surveillance Service te the Examining Magistrate stating that Haya de la Torre and others were not arrested as they could not be found, and by an Order by the Examining Magistrate of the same date requiring the defaulters to be cited by public summons. On November 16th and the two

the Examining Magistrate stating that Haya de la Torre and others were not arrested as they could not be found, and by an Order by the Examining Magistrate of the same date requiring the defaulters to be cited by public summons. On November 16th and the two subsequent days, the summons was published in the officia1 gazette El Peruano, requiring "the accused persons who are in default" - Haya de la Torre and others-to report to the office of the Examining Magistrate to answer the accusation brought against IOthem "for the crime of military rebellion". Haya de la Torre did not report, and the facts brought to the knowledge of the Court do not show that any further measures were taken against him. On October 4th, the day after the military rebellion, a state of siege was declared, suspending certain constitutional rights ; it was renewed on November and and December and, 1948, and on January and, 1949. On January 3rd, 1949, Haya de la Torre sought asylum in the Colombian Embassy in Lima. On the next day, the Colombian Ambassador sent the following note to the Peruvian hIinister for Foreign Affairs and Public Worship : "1 have the honour to inform Your Excellency, in accordance with what is provided in Article 2, paragrapl-i 2, of the Convention on Asylum signed by Our two countries in the city of Havana in the year 1928, that Seiïor Victor Raul Haya de la Torre has been given asylum at the seat of this mission as from g p.m. yesterday. In view of the foregoing, and in view of the desire of this Embassy that Sefior Haya de la Torre should leave Peru as early as possible, 1 request Your Excellency to be good enough to give orders for the requisite safe-conduct to be issued, so that Sefior Haya de la Torre may leave the country with the usual facilities attaching to the right of diplomatic asylum."

1 request Your Excellency to be good enough to give orders for the requisite safe-conduct to be issued, so that Sefior Haya de la Torre may leave the country with the usual facilities attaching to the right of diplomatic asylum." On January 14th, the Ambassador sent to the Minister a further note as follows : "Pursiiant to instructions received from the Chancellery of my country, 1 have the honour to inform Your Excellency that the Government of Colombia, in accordance with the right conferred upon it by Article 2 of the Convention on Political Asylum signed by our two countries in the city of Montevideo on December 26th, 1933, lias qualifiecl Sefior Victor Rad Haya de la Torre as a political refugee." A diplomatic correspondence followed, leading up to the Act of Lima of Aiigust 31st, 1949, whereby the dispute which had arisen between the two Governments was referred to the Court. The Colombian Government has presented two submissions, of which the first asks the Court to adjudge and declare "That the Republic of Colombia, as the country granting asylum, is competent to qtialify the offence for the purpose of the said asylum, witliin the limits of the obligations resulting in particular from tlie Bolivarian Agreement on Extradition of July ~Sth, 1911, and the Convention on ilsylun of February zoth, 1928, and of -4merican international law in gcnerrtl." If the Colombian (;o\~eriîmcnt by this submission intended to allege that Colombin, as the State granting asylum, is competentto qualify the offence only provisionally and without binding effect for Peru, the solution would not remain a matter of doubt. It is evident that the diplomatic representative who has to determine whether a refugee is to be granted asylum or not must have the competence to make such a provisional qualification of any offence alleged to have been committed by the refugee. He must in fact examine the question whether the conditions required for granting asylum are fulfilled. The territorial State

determine whether a refugee is to be granted asylum or not must have the competence to make such a provisional qualification of any offence alleged to have been committed by the refugee. He must in fact examine the question whether the conditions required for granting asylum are fulfilled. The territorial State would not thereby be deprived of its right to contest the qualification. In case of disagreement between the two States, a dispute would arise which might be settled by the methods provided by the Parties for the settlement of their disputes. This is not, however, the meaning which the Colombian Government has put on its submission. It has not claimed the right of qualification for the sole purpose of determining its own conduct. The written and oral arguments submitted on behalf of that Government show that its claim must be understood in the sense that Colombia, as the State granting asylum, is competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. Colombia has based this submission partly on rules resulting from agreement, partly on an alleged custom. The Colombian Government has referred to the Bolivarian Agreement of 1911, Article 18, which is framed in the following terms : "Aside from the stipulations of the present Agreement, the signatory States recognize the institution of asylum in conformity with the principles of international law." In recognizing "the institution of asylum", this article merely refers to the principles of international law. But the principles of international law do not recognize any rule of unilateral and definitive qualification by the State granting diplomatic asylum. The Colombian Government has also relied on Article 4 of this Agreement concerning extradition of a criminal refugee from the territory of the State in which he has sought refuge. The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty.

asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from thesovereignty 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 recognized unless its legal basis is established in each particular case. For these reasons, it is not possible to deduce from the provisions of agreements concerning extradition any conclusion which would apply to the question now under consideration. The Colombian Government further relies on the Havana Convention on Asylum of 1928. This Convention lays down certain rules relating to diplomatic asylum, but does not contain any provision conferring on the State granting asylum a unilateral competence to qualify the offence with definitive. and binding force for the territorial State. The Colombian Government contends, however, that such a competence is implied in that Convention and is inherent in the institution of asylum. A competence of this kind is of an exceptional character. It involves a derogation from the equal rights of qualification which, in the absence of any contrary rule, must be attributed to each of the States concerned ; it thus aggravates the derogation from territorial sovereignty constituted by the exercise of asylum. Such a competence is not inherent in the institution of diplomatic asylum. This institution would perhaps be more effective if a rule of unilateral and definitive qualification were applied. But such a rule is not essential to the exercise of asylum. These considerations show that the alleged right of uailateral

Such a competence is not inherent in the institution of diplomatic asylum. This institution would perhaps be more effective if a rule of unilateral and definitive qualification were applied. But such a rule is not essential to the exercise of asylum. These considerations show that the alleged right of uailateral and definitive qualification cannot be regarded as recognized by implication in the Havana Convention. Moreover, this Convention, in pursuance of the desire expressed in its preamble of "fixing the rules" which the Governments of the States of America must observe for the granting of asylum, was concluded with the manifest intention of preventing the abuses which had arisen in the previous practice, by limiting the grant of asylum. It did so in a number of ways and in terms which are unusually restrictive and emphatic ("It is not permissible for States ...." ; "Asylum may not be granted except in urgent cases and for the period of time strictly indispensable....", etc.). The Colombian Government has invoked Article 2, paragraph 1, of the Havana Convention, which is framed in the following terms : "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 :"This provision has been interpreted by that Government in the sense that the usages, conventions and laws of Colombia relating to the qualification of the offence can be invoked against Peru. This interpretation, which would mean that the extent of the obligation .of one of the signatory States would depend upon any modifications which might occur in the law of another, cannot be accepted. Tfie provision must be regarded as a limitation of the extent to which asylum shall be respected. What the provision says in effect is that the State of refuge shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or laws and that the asylum granted must be respected by the territorial State only where such asylum would be permitted according to the usages,

asylum shall be respected. What the provision says in effect is that the State of refuge shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or laws and that the asylum granted must be respected by the territorial State only where such asylum would be permitted according to the usages, conventions or laws of the State of refuge. Nothing therefore can be deduced from this provision in so far as qualification is concerned. The Colombian Government has further referred to the Montevideo Convention on Political Asylum of 1933. It was in fact this Convention which was invoked in the note of January 14th, 1949, from the Colombian Ambassador to the Peruvian Minister for Foreign Affairs. It is argued that, by Article 2 of that Convention, the Havana Convention of 1928 is interpreted in the sense that the qualification of a political offence appertains to the State granting asylum. Articles 6 and 7 of the Montevideo Convention provide that it shall be ratified and will enter into force as and when the ratifications are deposited. The Montevideo Convention has not been ratified by Peru, and cannot be invoked against that State. The fact that it was considered necessary to incorporate in that Convention an article accepting the right of unilateral qualification, seems to indicate that this solution was regarded as a new rule not recognized by the Havana Convention. Moreover, the preamble of the Montevideo Convention States in its Spanish, French and Portuguese texts that it modifies the Havana Convention. It cannot therefore be considered as representing merely an interpretation of that Convention. The Colombian Government has finally invoked "American international law in general". In addition to the rules arising from agreements which have already been considered, it has relied on an alleged regional or local custom peciiliar to Latin-American States. The Party which relies on a custom of this kind must prove that this custom is established in such a rnanner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant

alleged regional or local custom peciiliar to Latin-American States. The Party which relies on a custom of this kind must prove that this custom is established in such a rnanner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follo\vs from Article 38 of the Statute of the Court, which refers tointernational custom "as evidence of a general practice accepted as law". In support of its contention concerning the existence of such a custom, the Colombian Government has referred to a large number of extradition treaties which, as already explained, can have no bearing on the question now under consideration. It has cited conventions and agreements which do not contain any provision concerning the alleged rule of unilateral and definitive qualification su