COLOMBIA V. PERU (ASYLUM CASE)
INTRODUCTION:
Asylum, this concept can be traced a long way back, and we can say that there will be a difference between the concept of asylum then and asylum now, but the basic idea of asylum will remain the same. Asylum in simple terms can be called Refugee. In other words, when a person seeks to avail the of protection and security in another country and they have fear of any injury in their habitual country, then we can say that he is said to have requested asylum. We can say that it is Political protection given to those people, and there is a condition that those countries will not torture, imprison or violate any human rights against the individual who is at risk.
In the landmark case “Colombia v. Peru” case, also known as the Asylum case, the question of political or diplomatic asylum had raised, and during the time of this case, international law was in its earlier phase, and this case would have made a huge impact in the formulating of International Law.
FACTS:
On 3rd October 1948, a military insurgency broke out in the South American state of Peru. However, the revolution has put an end to within a day and the accused were arrested and charged. A day after, proceedings were put in motion against Victor Raul Haye De La Torre, a leader of an opposition party, ‘American citizens’, and the charges were on them to direct and haggle the rebellions. The absconding arrest of Haye De La Torre distort Peruvian authorities who were eager to bring him on trial. This was actively chased by the Military junta government.
However, on 4th January 1949, the Peruvian authorities got the news that Victor Haye De La Torre had been granted Asylum by the Colombian Mission in Lima. The Colombian ambassador had also requested that the right of passage or a safe-conduct should be granted to De la Tore so that he may leave the country. Here Peru refused this request which was made by the Colombian ambassador, as De La Torre was accused of common crimes, he should not get the protection of political asylum, Peru also refused the claim of political refugee which was given to De La Torre of political refugee.
This led to a diplomatic and political standoff developed between the two South American states. On 31st August 1949 IN Lima a diplomatic correspondence was developed and signed by both countries’ governments which agreed to submit the case to the international court of Justice.
ISSUES:
- Is the country Colombia, competent to grant asylum, to unilaterally qualify the offense for the purpose of asylum under a treaty and international law?
- In this case, was as the territorial state Peru bound to give a guarantee of safe passage?
- Did Colombia violate Articles 1 and 2(2) of the Havana convention,1928, which summarize general respect for the state on its decision to grant asylum without any qualifications?
Peru, in the counterclaim, asserted that asylum granted to Victor De La Torre was against the rules and also a direct violation of The Havana Convention on the asylum of 1928.
Firstly, this was because, under this convention, there is a concept that political asylum could be granted to political offenders, and Victor De La Torre was charged with an ordinary crime, not with any political offense.
Secondly, Peru asserted that this convention expressly states that a demanding insistence of immediate danger was required in every entreaty of asylum, which was clearly missing in this case.
JUDGEMENT:
The International Court of Justice in its examination rejected the first submission made by the Republic of Colombia by fourteen votes to two judges Azevedo and M.caicedo. Also, The Republic of Colombia had submitted the Havana Convention of 1928, the Bolivarian agreement, and the Montevideo Convention of 1933 referring to the principle i.e “institution of asylum in accordance with principles of International law,”.
Firstly, the hon’ble court held that the Bolivarian agreement which was mentioned by the Republic of Colombia is the treaty on extradition. Here, the concept of asylum is confined to a single article. As the conclusion related to diplomatic asylum is not possible to conclude because the Bolivarian agreement laid rules for extradition and the concept of extradition and asylum are contradictory.
Secondly, the Havana Convention on Asylum of, 1928 was mentioned by the Republic of Colombia. The Hon’ble International Court of Justice held that the power to grant shelter or admit any existence is not given to any nation-state by any treaty, whether implicitly or explicitly. The Hon’ble International Court of Justice, Regarding the Montevideo Convention of 1933 held that this Convention cannot be used to foster the argument as Peru had not verified the agreement and any decision had been made grounded on that agreement would not be made binding on a country which has not verified the agreement.
Eventually, Colombia had submitted with regard to American international law, that a general custom existed to grant shelter in Pan America unrepressed of any qualifications. They further claimed that therein arises the obligation of other countries to admire similar qualifications of asylum as the veritable base of granting asylum embedded in the traditional practice of American law.
The data submitted to the court bared too important contradiction and change to make it possible to discern therein an operation peculiar to Latin America and accepted as law. Colombia’s substation of the actuality of such a custom was riddled with inconsistencies and lack of uniformity which reduced the credibility of such a custom as a source of international law. Colombia, granting asylum wasn’t competent to qualify the nature of the offense by a unilateral and definitive decision binding on Peru and this was rejected by Justice Caicedo by fifteen votes to one.
The Hon’ble court stated that according to Article 1 of the Havana Convention on the asylum of 1928 in which the state of Colombia said that asylum cannot be granted to those accused of ordinary, common crimes. Victor Haye de la Torre, was a political offender, not a common criminal because the charge was of military rebellion which was not a common crime. The Hon’ble court rejected the counterclaim of Peru declaring it ill-found by a vote of fifteen votes to one. The ICJ analyzed the facts of the case, there was 3 months gap between the grant of asylum and military rebellion and there was no question for protecting Haye de la Torre against his irresponsible action and having to face legal proceedings.
The Havana Convention was not created to shield a citizen from regular legal proceedings after they had conspired against their nation’s institutions. Being charged with a political crime did not automatically qualify someone for asylum, instead, asylum could only be utilized for the execution of justice. It had not been demonstrated that the circumstances in Peru at the time warranted the repeal of judicial protections or the subordination of justice to the government.
Furthermore, The Havana convention was unable to provide a legislative framework that would grant those charged with political crimes the right to evade their country of residence. Given that it should be thought that revolutionary events interfere with the administration of justice, the convention at Havana would have been particularly offensive and charged with political crimes during revolutionary events.
In its concluding and succinct ruling, the international court of Justice stated that “to infer…an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rules of the extra-legal factors involved in the development of asylum in Latin America and the spirit of the Havana convention.”
CONCLUSION
Professor Oppenheim provides the most up-to-date and definitive definition of asylum, stating that “The so-called right of asylum is nothing but the competence of every State to allow a prosecuted alien to enter and to remain on its territory under its protection and thereby to grant asylum to him.” This is the definition that Professor Oppenheim offers. The main issue was that the Colombian government gave asylum to a Peruvian citizen, Haye De La Torre, in its embassy. Lastly, it was made in favor of a counter-claim submitted by Peru and here according to the Havana convention. The Court concluded that the grant of asylum and the reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention. “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.”
-Ritti Ramya, Law College Dehradun, Dehradun, (VIII) Semester
