COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DROIT
D'ASILE

(COLOMBIE / PÉROU)
ARRÊT DU 20 NOVEMBRE 1950

1950

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

ASYLUM CASE

(COLOMBIA / PERU)
JUDGMENT OF NOVEMBER 20th, 1950
Le présent arrét doit étre cité comme suit :

« Affaire colombo-péruvienne relative au droit @asile,
Arrêt du 20 novembre 1950: C.I.]. Recueil 1950, p. 266.»

This Judgment should be cited as follows:

“Colombian-Peruvian asylum case,
Judgment of November 2oth, 1950: I.C. J. Reports 1950, p. 266.”

N° de vente: 50
Sales number

266

INTERNATIONAL COURT OF JUSTICE

YEAR 1950
. November 2oth
November 20th, 1950 General List:
No. 7
ASYLUM CASE
(COLOMBIA / PERU)

Diplomatic asylum.—Right of qualification of the nature of the
offence as political or ordinary; claim to unilateral and definitive
qualification by the State granting asylum.—Lack of foundation of
such a claim in the absence of agreement ov of a customary rule to
justify it.—Bolivarian Agreement of 1911 on Extradition ; differences
between territorial asylum (extradition) and diplomatic asylum.—
The Havana Convention on Asylum of 1928, the Montevideo Con-
vention on Political Asylum of 1933; custom, elements and proof
of custom.—Guarantees for the free departure of the vefugee ; conditions
vequived for the request for a safe-conduct.

Counter-claim.—Admissibility : direct connexion with the subject-
matter of the Application (Article 63 of the Rules of Court).—Merits :
interpretation of Article 1, paragraph x, of the Havana Convention ;
interpretation of Article 2, paragraph 2, of the same Convention :
notion of urgency, nature of the danger the imminence of which con-
stitutes urgency, legal proceedings instituted by the territorial authorities
prior to the grant of asylum, regular proceedings, proceedings manifestly
of an arbitrary character ; absence of urgency at the time of the grant
of asylum ; protection maintained against rezular proceedings ; pro-
longation of asylum. contrary to Article 2, par. aph 2, of the Havana
Convention.

JUDGMENT

Present : President BASDEVANT:;  VWice-President GUERRERO ;
Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC,
DE VisscHER, Sir Arnold McNair, KLAESTAD, BADAWI
PasHa, KryLov, READ, Hsu Mo, AZEVEDO ; M. ALAYZA
y Paz SotpAN and M. Catcepo CasriLLA, Judges ad
hoc ; M. GARNIER-COIGNET, Deputy-Registrar.
ASYLUM CASE {JUDGMENT OF 20 XI 50) 267

In 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 Consti-
tutional 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 Lépez Olivan, Ambassador,

THE COURT,
composed as above,

delivers the following Judgment :

On August 31st, 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 the Peruvian Republic,
and His Excellency Monsieur Eduardo Zuleta Angel, Ambassador
Extraordinary and Plenipotentiary ad hoc of Colombia, duly desig-
nated by their respective Governments to negotiate and draw up the

5
ASYLUM 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 Raül 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 friendship
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 with the agreement concluded by
the two Governments.

Second :

The Plenipotentiaries 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 jurisdiction of the Court may be
instituted on the application of either of the Parties without this
being regarded as an unfriendly 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 procedurein this case shall
be the ordinary procedure ; (6) 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 of persons who have claimed
asylum in her embassies, legations, warships, military camps or
military aircraft, to 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’ ”,
6
ASYLUM CASE (JUDGMENT OF 20 XI 50) 269

the 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 Bolivarian Agreement on Extradition of
July 18th, 1911, and the Convention on Asylum of February 2oth,
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
United Nations.

As the Application was based upon the Convention on Asylum
signed at Havana on February 20th, 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 2oth, 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 Soldän, 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 2nd, 3rd, 6th and gth, 1950.

7
ASYLUM CASE (JUDGMENT OF 20 XI 50) 270

In 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

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 roth, 1950,
which was submitted to the Court on the same date, and

Rejecting all contrary submissions,

I. 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 par-
ticular from the Bolivarian Agreement on Extradition of July 18th,
rg1z, 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 Ratl 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 ;

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 Raül Haya de la Torre was made
in violation of Article 1, paragraph 1, and Article 2, paragraph 2,
item 1 finciso primero), 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 Plead-
ings, 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
“MAY IT PLEASE THE COURT

To ADJUDGE AND DECLARE :

I.—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 2oth, 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 Rati] Haya de la Torre
from the country, with due regard to the inviolability of his
person.”

(on the counter-claim)

“x. That the counter-claim presented by the Peruvian Govern-
ment on March 21st, 1950, is not admissible because of its lack
of direct connexion with the Application of the Colombian Govern-
ment ;

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 I 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 Govern-
ment 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 Ratl Haya de la Torre was made
in violation of Article 1, paragraph 1, and of Article 2, paragraph 2,
item x (inciso primero), of the Convention on Asylum signed in
1928, and that in any case the maintenance of the asylum cons-
titutes at the present time a violation of that treaty.”

*
* *
ASYLUM CASE (JUDGMENT OF 20 XI 50) 272

On October 3rd, 1948, a military rebellion broke out in Peru.
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
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 roth by the Public
Prosecutor, who stated that the subject-matter of the proceedings
was the crime of military rebellion.

On October rth, 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 persons “denounced” who had not yet
been detained.

On October 27th, a Military Junta made a coup d’état and seized
the supreme power. This Military Junta of the Govérnment 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 against
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 to
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 official 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

Io
ASYLUM CASE (JUDGMENT OF 20 XI 50) 273

them ‘‘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 znd and December 2nd, 1948, and on
January 2nd, 1940.

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 Minister for
Foreign Affairs and Public Worship :

“T have the honour to inform Your Excellency, in accordance
with what is provided in Article 2, paragraph 2, of the Convention
on Asylum signed by our two countries in the city of Havana in
the year 1928, that Señor Victor Ratl Haya de la Torre has been
given asylum at the seat of this mission as from 9 p.m. yesterday.

In view of the foregoing, and in view of the desire of this Embassy
that Señor Haya de la Torre should leave Peru as early as possible,
I 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:

‘Pursuant to instructions received from the Chancellery of my
country, I 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, has qualified Señor Victor Rati] Haya de la Torre as a political
refugee.”

A diplomatic correspondence followed, leading up to the Act
of Lima of Atigust 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 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 2oth, 1928, and of American
international law in general.”

If the Colombian Government by this submission intended to
allege that Colombia, as the State granting asylum, is competent
II
ASYLUM CASE (JUDGMENT OF 20 XI 50) 274

to 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
would not thereby be deprived of its right to contest the quali-
fication. 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 Govern-
ment 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.
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 the

12
ASYLUM CASE (JUDGMENT OF 20 XI 50) 275

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
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 Con-
vention 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 unilateral
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 :”

13
ASYLUM CASE (JUDGMENT OF 20 XI 50) 276

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. The
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,
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 Monte-
video 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 ratifi-
cations 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 Conven-
tion 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 Monte-
video 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 peculiar to Latin-American States.

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. 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
follows from Article 38 of the Statute of the Court, which refers to

14
ASYLUM CASE (JUDGMENT OF 20 XI 50) 277

international 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
such as the Montevideo Convention of 1889 on international penal
law, the Bolivarian Agreement of 1911 and the Havana Convention
of 1928. It has invoked conventions which have not been ratified by
Peru, such as the Montevideo Conventions of 1933 and 1939. The
Convention of 1933 has, in fact, been ratified by not more than
eleven States and the Convention of 1939 by two States only.

It is particularly the Montevideo Convention of 1933 which
Counsel for the Colombian Government has also relied on in this
connexion. It is contended that this Convention has merely codified
principles which were already recognized by Latin-American
custom, and that it is valid against Peru as a proof of customary
law. The limited number of States which have ratified this Conven-
tion reveals the weakness of this argument, and furthermore, it is
invalidated by the preamble which states that this Convention
modifies the Havana Convention.

Finally, 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—if in some
cases it was in fact invoked—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, accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the offence.

The Court cannot therefore find that the Colombian Government
has proved the existence of such a custom. But even if it could be
supposed that such a custom existed between certain Latin-Ameri-
can States only, it could not be invoked against Peru which, far

15
ASYLUM CASE (JUDGMENT OF 20 XI 50) 278

from having by its attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the Montevideo Conven-
tions of 1933 and 1939, which were the first to include a rule concern-
ing the qualification of the offence in matters of diplomatic asylum.
In the written Pleadings and during the oral proceedings, the
Government of Colombia relied upon official communiqués published
by the Peruvian Ministry of Foreign Affairs on October r3th
and 26th, 1948, and the Government of Peru relied upon a Report
of the Advisory Committee of the Ministry of Foreign Affairs
of Colombia dated September 2nd, 1937; on the question of
qualification, these documents state views which are contrary to
those now maintained by these Governments. The Court, whose
duty it is to apply international law in deciding the present case,
cannot attach decisive importance to any of these documents.

For these reasons, the Court has arrived at the conclusion that
Colombia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding
on Peru.

In its second submission, the Colombian Government asks the
Court to adjudge and declare:

“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 Ratl Haya de la Torre from the
country, with due regard to the inviolability of his person.”

This alleged obligation of the Peruvian Government does not
entirely depend on the answer. given to the first Colombian sub-
mission relating to the unilateral and definitive qualification of
the offence. It follows from the first two articles of the Havana
Convention that, even if such a right of qualification is not
admitted, the Colombian Government is entitled to request a
safe-conduct under certain conditions. |

The first condition is that asylum has been regularly granted
and maintained. It can be granted only to political offenders
who are not accused or condemned for common crimes and only
in urgent cases and for the time strictly indispensable for the
safety of the refugee. These points relate to the Peruvian counter-
claim and will be considered later to the extent necessary for
the decision of the present case.

The second condition is laid down in Article 2 of the Havana
Convention :

16
ASYLUM CASE (JUDGMENT OF 20 XI 50) 279

“Third: The Government of the State may require that the
refugee be sent out of the national territory within the shortest
time possible; and the diplomatic agent of the country who has
granted asylum may in turn require the guarantees necessary for
the departure of the refugee from the country with due regard to
the inviolability of his person.”

If regard is had, on the one. hand, to the structure of this
provision which indicates a successive order, and, on the other
hand, to the natural and ordinary meaning of the words “‘in
turn’, this provision can only mean that the territorial State
may require that the refugee be sent out of the country, and
that only after such a demand can the State granting asylum
require the necessary guarantees as a condition of his being sent
out. The provision gives, in other words, the territorial State
an option to require the departure of the refugee, and that State
becomes bound to grant a safe-conduct only if it has exercised
this option.

A contrary interpretation would lead, in the case now before
the Court, to the conclusion that Colombia would be entitled
to decide alone whether the conditions provided by Articles x
and 2 of the Convention for the regularity of asylum are fulfilled.
Such a consequence obviously would be incompatible with the
legal situation created by the Convention.

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. This procedure meets certain
requirements : the diplomatic agent is naturally desirous that the
presence of the refugee on his premises should not be prolonged ;
and the government of the country, for its part, desires in a great
number of cases that its political opponent who has obtained asylum
should depart. This concordance of views suffices to explain the
practice which has been noted in this connexion, but this practice
does not and cannot mean that the State, to whom such a request
for a safe-conduct has been addressed, is legally bound to accede
to it.

In the present case, the Peruvian Government has not requested
that Haya de la Torre should leave Peru. It has contested the
legality of the asylum granted to him and has refused to deliver a
safe-conduct. In such circumstances the Colombian Government is
not entitled to claim that the Peruvian Government should give the
guarantees necessary for the departure of Haya de la Torre from the
country, with due regard to the inviolability of his person.

*
* *

The counter-claim of the Government of Peru was stated in its
final form during the oral statement of October 3rd, 1950, in the
following terms :

17
ASYLUM CASE (JUDGMENT OF 20 XI 50) 280

“May IT PLEASE THE COURT:

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 Raül
Haya de la Torre was made in violation of Article 1, paragraph I,
and Article 2, paragraph 2, item x finciso primero), of the Con-
vention 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.”

As has already been pointed out, the last part of this sentence :
“and that in any case the maintenance of the asylum constitutes
at the present time a violation of that treaty’, did not appear in
the counter-claim presented by the Government of Peru in the
Counter-Memorial. The addition was only made during the oral
proceedings. The Court will first consider the counter-claim in its
original form.

This counter-claim is intended, in substance, to put an end to the
dispute by requesting the Court to declare that asylum was wrong-
fully given, the grant of asylum being contrary to certain provisions
of the Havana Convention. The object of the counter-claim is
simply to define for this purpose the legal relations which that
Convention has established between Colombia and Peru. The Court
observes in this connexion that the question of the possible surren-
der of the refugee to the territorial authorities is in no way raised
in the counter-claim. It points out that the Havana Convention,
which provides for the surrender to those authorities of persons
accused of or condemned for common crimes, contains no similar
provision in respect of political offenders. The Court notes, finally,
that this question was not raised either in the diplomatic correspon-
dence submitted by the Parties or at any moment in the procee-
dings before the Court, and in fact the Government of Peru has
not requested that the refugee should be surrendered.

It results from the final submissions of the Government of
Colombia, as formulated before the Court on October 6th, 1950,
that that Government did not contest the jurisdiction of the
Court in respect of the original counter-claim ; it did so only in
respect of the addition made during the oral proceedings. On the
other hand, relying upon Article 63 of the Rules of Court, the
Government of Colombia has disputed the admissibility of the
counter-claim by arguing that it is not directly connected with the
subject-matter of the Application. In its view, this lack of connexion
results from the fact that the counter-claim raises new problems and
thus tends to shift the grounds of the dispute.

The Court is unable to accept this view. It emerges clearly from
the arguments of the Parties that the second submission of the
Government of Colombia, which concerns the demand for a safe-
conduct, rests largely on the alleged regularity of the asylum, which
is precisely what is disputed by the counter-claim. The connexion
is so direct that certain conditions which are required to exist
before a safe-conduct can be demanded depend precisely on facts

18
ASYLUM CASE (JUDGMENT OF 20 XI 50) 281

which are raised by the counter-claim. The direct connexion being
thus clearly established, the sole objection to the admissibility of
the counter-claim in its original form is therefore removed.

Before examining the question whether the counter-claim is well
founded, the Court must state in precise terms what meaning it
attaches to the words “the grant of asylum”’ which are used therein.
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. This view, which results from the very
nature of the institution of asylum, is further confirmed by the
attitude of the Parties during this case. The counter-claim, as it
appears in the Counter-Memorial of the Government of Peru,
refers expressly to Article 2, paragraph 2, of the Havana Convention,
which provides that asylum may not be granted except ‘‘for the
period of time strictly indispensable”. Such has also been the view
of the Government of Colombia ; its Reply shows that, in its opinion,
as in that of the Government of Peru, the reference to the above-
mentioned provision of the Havana Convention raises the question
of ‘‘the duration of the refuge”.

The Government of Peru has based its counter-claim on two
different grounds which correspond respectively to Article x, para-
graph 1, and Article 2, paragraph 2, of the Havana Convention.

Under Article x, paragraph 1, ‘‘It is not permissible for States to
grant asylum .... to persons accused or condemned for common
crimes....”. The onus of proving that Haya de la Torre had been
accused or condemned for common crimes before the grant of
asylum rested upon Peru.

The Court has no difficulty in finding, in the present case, that
the refugee was an “‘accused person” within the meaning of the
Havana Convention, inasmuch as the evidence presented by the
Government of Peru appears conclusive in this connexion. It
can hardly be agreed that the term “accused” occurring in a
multilateral treaty such as that of Havana has a precise and
technical connotation, which would have the effect of subordinating
the definition of ‘‘accused” to the completion of certain strictly
prescribed steps in procedure, which might differ from one legal
system to another.

On the other hand, the Court considers that the Government of
Peru has not proved that the acts of which the refugee was accused
before January 3rd/4th, 1949, constitute common crimes. From
the point of view of the application of the Havana Convention, it
is the terms of the accusation, as formulated by the legal authorities
before the grant of asylum, that must alone be considered. As has
been shown in the recital of the facts, the sole accusation contained
in all the documents emanating from the Peruvian legal authorities

19
ASYLUM CASE (JUDGMENT OF 20 XI 50) 282

is that of military rebellion, and the Government of Peru has not
established that military rebellion in itself constitutes a common
crime. Article 248 of the Peruvian Code of Military Justice of
1939 even tends to prove the contrary, for it makes a distinction
between military rebellion and common crimes by providing that :
“Common crimes committed during the course of, and in connexion
with, a rebellion, shall be punishable in conformity with the laws,
irrespective of the rebellion.”

These considerations lead to the conclusion that the first objection
made by the Government of Peru against the asylum is not justified
and that on-this point the counter-claim is not well founded and
must be dismissed.

The Government of Peru relies, as a second basis for its counter-
claim, upon the alleged disregard of Article 2, paragraph 2, of the
Havana Convention, which provides as follows: “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.”

Before proceeding to an examination of this provision, the
Court considers it necessary to make the following remark con-
cerning the Havana Convention in general and Article 2 in
particular.

The object of the Havana Convention, which is the only agree-
ment relevant to the present case, was, as indicated in its preamble,
to fix the rules which the signatory States must observe for the
granting of asylum in their mutual relations. The intention was,
as has been stated above, to put an end to the abuses which
had arisen in the practice of asylum and which were likely to
impair its credit and usefulness. This is borne out by the wording
of Articles x and 2 of the Convention which is at times prohibitive
and at times clearly restrictive.

Article 2 refers to asylum granted to political offenders and
lays down in precise terms the conditions under which asylum
granted to such offenders shall be respected by the territorial
State. It is worthy of note that all these conditions are designed
to give guarantees to the territorial State and appear, in the
final analysis, as the consideration for the obligation which that
State assumes to respect asylum, that is, to accept its principle
and its consequences as long as it is regularly maintained.

At the head of the list of these conditions appears Article 2,
paragraph 2, quoted above. It is certainly the most important
of them, the essential justification for asylum being in the immi-
nence or persistence of a danger for the person of the refugee.
It was incumbent upon the Government of Colombia to submit
proof of facts to show that the above-mentioned condition was
fulfilled.

It has not been disputed by the Parties that asylum may be
granted on humanitarian grounds in order to protect political
offenders against the violent and disorderly action of irresponsible

20
ASYLUM CASE (JUDGMENT OF 20 XI 50) 283

sections of the population. It has not been contended by the
Government of Colombia that Haya de la Torre was in such a
situation at the time when he sought refuge in the Colombian
Embassy at Lima. At that time, three months had elapsed since
the military rebellion. This long interval gives the present case
a very special character. During those three months, Haya de la
Torre had apparently been in hiding in the country, refusing to
obey the summons to appear of the legal authorities which was
published on November 16th/18th, 1948, and refraining from
seeking asylum in the foreign embassies where several of his
co-accused had found refuge before these dates. It was only on
January 3rd, 1949, that he sought refuge in the Colombian Em-
bassy. The Court considers that, prima jacie, such circumstances
make it difficult to speak of urgency.

The diplomatic correspondence between the two Governments
does not indicate the nature of the danger which was alleged to
threaten the refugee. Likewise, the Memorial of the Government
of Colombia confines itself to stating that the refugee begged
the Ambassador to grant him the diplomatic protection of asylum
as his freedom and life were in jeopardy. It is only in the written
Reply that the Government of Colombia described in more precise
terms the nature of the danger against which the refugee intended
to request the protection of the Ambassador. It was then claimed
that this danger resulted in particular from the abnormal political
situation existing in Peru, following the state of siege proclaimed
on October 4th, 1948, and renewed successively on November 2nd,
December 2nd, 1948, and January 2nd, 1949; that it further
resulted from the declaration of ‘‘a state of national crisis” made
on October 25th, 1948, containing various statements against the
American People’s Revolutionary Alliance of which the refugee
was the head; from the outlawing of this Party by the decree
of October 4th, 1948; from the Order issued by the acting
Examining Magistrate for the Navy on November 13th, 1948,
requiring the defaulters to be cited by public summons; from
the decree of November 4th, 1948, providing for Courts-Martial
to judge summarily, with the option of increasing the penalties
and without appeal, the authors, accomplices and others respon-
sible for the offences of rebellion, sedition or mutiny.

From these facts regarded as a whole the nature of the danger
now becomes clear, and it is upon the urgent character of such a
danger that the Government of Colombia seeks to justify the
asylum—the danger of political justice by reason of the subordin-
ation of the Peruvian judicial authorities to the instructions of
the Executive,

It is therefore necessary to examine whether, and, if so, to what
extent, a danger of this kind can serve as a basis for asylum.

ar
ASYLUM CASE (JUDGMENT OF 20 XI 50) 284

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 them-
selves open by attacking the mstitutions of that country ; nor can
it be admitted that in referring to ‘the period of time strictly
indispensable for the person who has sought asylum to ensure in
some other way his safety”, the Convention envisaged protection
from the operation of regular legal proceedings.

It would be useless to seek an argument to the contrary in
Article I of the Havana Convention which forbids the grant of
asylum to persons ‘‘accused or condemned for common crimes” and
directs that such persons shall be surrendered immediately upon
request of the local government. It is not possible to infer from that
provision that, because a person is accused of political offences and
not of common crimes, he is, by that fact alone, entitled to asylum.
It is clear that such an inference would disregard the requirements
laid down by Article 2, paragraph 2, for the grant of asylum to
political offenders.

In principle, therefore, asylum cannot be opposed to the operation
of justice. An exception to this rule can occur only if, in the guise
of justice, arbitrary action is substituted for the rule of law. Such
would be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the
political offender against any measures of a manifestly extra-legal
character which a government might take or attempt to take against
its political opponents. The word “‘safety’’, which in Article 2,
paragraph 2, determines the specific effect of asylum granted to
political offenders, means that the refugee is protected against
arbitrary action by the government, and that he enjoys the benefits
of the law. On the other hand, the safety which arises out of asylum
cannot be construed as a protection against the regular application
of the laws and against the jurisdiction of legally constituted tribu-
nals. Protection thus understood would authorize the diplomatic
agent to obstruct the application of the laws of the country whereas
it is his duty to respect them ; it would in fact become the equiva-
lent of an immunity, which was evidently not within the intentions
of the draftsmen of the Havana Convention.

It is true that successive decrees promulgated by the Government
of Peru proclaimed and prolonged a state of siege in that country ;
but it has not been shown that the existence of a state of siege
implied the subordination of justice to the executive authority, or
that the suspension of certain constitutional guarantees entailed the
abolition of Judicial guarantees. As for the decree of November 4th,
1948, providing for Courts-Martial, it contained no indication which
might be taken to mean that the new provisions would apply
retroactively to offences committed prior to the publication of the
said decree. In fact, this decree was not applied to the legal proceed-
ings against Haya de la Torre, as appears from the foregoing recital

22
ASYLUM CASE (JUDGMENT OF 20 XI 50) 285

of the facts. As regards the future, the Court places on record the
following declaration made on behalf of the Peruvian Government :

“The decree in question is dated November 4th, 1948, that
is, it was enacted one month after the events which led to the
institution of proceedings against Haya de la Torre. This decree
was intended to apply to crimes occurring after its publication,
and nobody in Peru would ever have dreamed of utilizing it in
the case to which the Colombian Government clumsily refers,
since the principle that laws have no retroactive effect, especially
in penal matters, is broadly admitted in that decree. If the
Colombian Government’s statement on this point were true, the
Peruvian Government would never have referred this case to
the International Court of Justice.”

This declaration, which appears in the Rejoinder, was confirmed
by the Agent for the Government of Peru in his oral statement of
October 2nd, 1950.

The Court cannot admit that the States signatory to the Havana
Convention intended to substitute for the practice of the Latin-
American republics, in which considerations of courtesy, good-
neighbourliness and political expediency have always held a promi-
nent place, a legal system which would guarantee to their own
nationals accused of political offences the privilege of evading
national jurisdiction. Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin
America, namely, non-intervention. It was at the Sixth Pan-
American Conference of 1928, during which the Convention on
Asylum was signed, that the States of Latin America declared their
resolute opposition to any foreign political intervention. It would
be difficult to conceive that these same States had consented, at the
very same moment, to submit to intervention in its least acceptable
form, one which implies foreign interference in the administration
of domestic justice and which could not manifest itself without
casting some doubt on the impartiality of that justice.

Indeed the diplomatic correspondence between the two Govern-
ments shows the constant anxiety of Colombia to remain, in this
field as elsewhere, faithful to the tradition of non-intervention.
Colombia did not depart from this attitude, even when she found
herself confronted with an emphatic declaration by the Peruvian
Minister for Foreign Affairs asserting that the tribunal before which
Haya de la Torre had been summoned to appear was in conformity
with the general and permanent organization of Peruvian judicial
administration and under the control of the Supreme Court. This
assertion met with no contradiction or reservation on the part of
Colombia. It was only much later, following the presentation of the
Peruvian counter-claim, that the Government of Colombia chose,

23
ASYLUM CASE (JUDGMENT OF 20 XI 50) 286

in the Reply and during the oral proceedings, to transfer the
defence of asylum to a plane on which the Havana Convention,
interpreted in the light of the most firmly established traditions of
Latin America, could provide it with no foundation.

The foregoing considerations lead us to reject the argument that
the Havana Convention was intended to afford a quite general
protection of asylum to any person prosecuted for political offences,
either in the course of revolutionary events, or in .the more or
less troubled times that follow, for the sole reason that it must be
assumed that such events interfere with the administration of
justice. It is clear that the adoption of such a criterion would lead
to foreign interference of a particularly offensive nature in the
domestic affairs of States ; besides which, no confirmation of this
criterion can be found in Latin-American practice, as this practice
has been explained to the Court.

In thus expressing itself, the Court does not lose sight of the
numerous cases of asylum which have been cited in the Keply
of the Government of Colombia and during the oral state-
ments. In this connexion, the following observations should be
made :

In the absence of precise data, it is difficult to assess the value
of such cases as precedents tending to establish the existence of
a legal obligation upon a territorial State to recognize the validity
of asylum which has been granted against proceedings instituted
by local judicial authorities. The facts which have been laid
before the Court show that in a number of cases the persons who
have enjoyed asylum were not, at the moment at which asylum
was granted, the object of any accusation on the part of the
judicial authorities. In a more general way, considerations of
convenience or simple political expediency seem to have led the
territorial State to recognize asylum without that decision being
dictated by any feeling of legal obligation.

If these remarks tend to reduce considerably the value as
precedents of the cases of asylum cited by the Government of
Colombia, they show, none the less, that asylum as practised in
Latin America is an institution which, to a very great extent,
owes its development to extra-legal factors. The good-neighbour
relations between the republics, the different political interests
of the governments, have favoured the mutual recognition of
asylum apart from any clearly defined juridical system. Even if
the Havana Convention, in particular, represents an indisputable
reaction against certain abuses in practice, it in no way tends to
limit the practice of asylum as it may arise from agreements
between interested governments inspired by mutual feelings of
toleration and goodwill.

24
ASYLUM CASE (JUDGMENT OF 20 XI 50) 287

In conclusion, on the basis of the foregoing observations and
considerations, the Court considers that on January 3rd/4th, 1949,
there did not exist a danger constituting a case of urgency within
the meaning of Article 2, paragraph 2, of the Havana Convention.

This finding implies no criticism of the Ambassador of Colombia.
His decision to receive the refugee on the evening of January 3rd,
1949, may have been taken without the opportunity of lengthy
reflection ; it may have been influenced as much by the previous
grant of safe-conducts to persons accused together with Haya de
la Torre as by the more general consideration of recent events in
Peru ; these events may have led him to believe in the existence
of urgency. But this subjective appreciation is not the relevant
element in the decision which the Court is called upon to take
concerning the validity of the asylum ; the only important question
to be considered here is the objective existence of the facts, and it
is this which must determine the decision of the Court.

The notes of the Ambassador of Colombia of January 14th and
February 12th, 1949, reflect the attitude of the Government towards
the asylum granted by its Ambassador. The first of these confirms
the asylum and claims to justify its grant by a unilateral qualifica-
tion of the refugee. The second formulates a demand for a safe-
conduct with a view to permitting the departure of the refugee,
and has based this demand expressly on the “international obliga-
tions’ alleged to be. binding on the Government of Peru. In thus
expressing itself, the Government of Colombia definitively pro-
claimed its intention of protecting Haya de la Torre, in spite of
the existence of proceedings instituted against him for military
rebellion. It has maintained this attitude and this protection by
continuing to insist on the grant of a safe-conduct, even when the
Minister for Foreign Affairs of Peru referred to the existence of
“‘a judicial prosecution, instituted by the sovereign power of the
State” against the refugee (notes of the Minister for Foreign Affairs
of Peru of March roth, 1949; of the Ambassador of Colombia of
March 28th, 1940).

Thus, it is clearly apparent from this correspondence that the
Court, in its appraisal of the asylum, cannot be confined to the
date of January 3rd/4th, 1949, as the date on which it was granted.
The grant, as has been stated above, is inseparable from the pro-
tection to which it gives rise—a protection which has here assumed
the form of a defence against legal proceedings. It therefore results
that asylum has been granted for as long as the Government of
Colombia has relied upon it in support of its request for a safe-
conduct.

The Court is thus led to find that the grant of asylum from
January 3rd/4th, 1940, until the time when the two Governments
agreed to submit the dispute to its jurisdiction, has been prolonged
for a reason which is not recognized by Article 2, paragraph 2,
of the Havana Convention.

25
ASYLUM CASE (JUDGMENT OF 20 XI 50) 288

This finding renders superfluous the addition to the counter-
claim submitted during the oral proceedings and worded as follows :
“and that in any case the maintenance of the asylum constitutes
at the present time a violation of that treaty’. This part of the
submission, as finally worded by the Government of Peru, was
intended as a substitution for the counter-claim in its original form
if the latter were rejected: it disappears with the allowance of
this counter-claim. Hence it will not be necessary for the Court to
consider either the objection on the ground of lack of jurisdiction
or the objections on the grounds of inadmissibility which the
Government of Colombia has based on an alleged disregard of
Article 63 of the Rules of Court or to consider the merits of the
claim thus submitted by the Government of Peru.

FOR THESE REASONS,

THE COURT,

on the submissions of the Government of Colombia,
by fourteen votes to two,

Rejects the first submission in so far as it involves a right for
Colombia, as the country granting asylum, to qualify the nature
of the offence by a unilateral and definitive decision, binding on
Peru ;

by fifteen votes to one,

Rejects the second submission ;

on the counter-claim of the Government of Peru,
by fifteen votes to one,

Rejects it in so far as it is founded on a violation of Article 1,
paragraph 1, of the Convention on Asylum signed at Havana in
1928 ;

by ten votes to six,

Finds that the grant of asylum by the Colombian Government to
Victor Raul Haya de la Torre was not made in conformity with
Article 2, paragraph 2 (‘‘First’’), of that Convention.
ASYLUM CASE (JUDGMENT OF 20 XI 50) 289

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twentieth day of November,
one thousand nine hundred and fifty, in three copies, one of which
will be placed in the archives of the Court and the others trans-
mitted to the Governments of the Republic of Colombia and of the
Republic of Peru respectively.

(Signed) BASDEVANT,

President.

(Signed) GARNIER-COIGNET,

Deputy-Registrar.

Judges ALVAREZ, BADAWI PASHA, READ and AZEVEDO, and
M. Catcepo, Judge ad hoc, declaring that they are unable to
concur in certain points of the Judgment of the Court, have availed
themselves of the right conferred on them by Article 57 of the
Statute and appended to the Judgment statements of their dissent-
ing opinions.

Judge Zori¢ié, whilst accepting the first three points of the
operative part of the Judgment and the reasons given in support,
regrets to state that he is unable to agree with the last point of the
operative part, as he considers that asylum was granted in confor-
mity with Article 2, paragraph 2, of the Havana Convention.
On this point he shares the views expressed by Judge Read in his
dissenting opinion.

(Initialled) J. B.
(Initialled) G.-C.

27
382

ANNEX

LIST OF DOCUMENTS SUBMITTED TO THE COURT
I.-ANNEXES DEPOSITED DURING THE WRITTEN PROCEEDINGS

A.—BY THE GOVERNMENT OF COLOMBIA

(a) Annexes to the Memorial:

1.—1949, January 4th. No. 2/1. Letter from the Ambassador of
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion.

2.—1949, January 14th. No. 8/2. Letter from the Ambassador of
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion,

3.—1949, February 12th. No. 2/64. Letter from the Ambassador of
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion.

4.—1949, February 2and. No. (D) 6-8/2. Letter from the Peruvian
Minister for Foreign Affairs and Religion to the Ambassador of
Colombia at Lima.

5.—1949, March 4th. No. 40/6. Letter from the Ambassador of Colom-
bia at Lima to the Peruvian Minister for Foreign Affairs and
Religion.

6.—1949, March 1gth. No. (D) 6-8/4. Letter from the Peruvian Minister
for Foreign Affairs and Religion to the Ambassador of Colombia at
Lima.

7.—1949, March 28th. No. 73/9. Letter from the Ambassador of
Colombia at Lima to the Peruvian Minister for Foreign Affairs and
Religion.

8.—1949, April 6th. No. (D) 6-8/6. Letter from the Peruvian Minister
for Foreign Affairs and Religion to the Ambassador of Colombia at
Lima.

9.—1949. April 7th. Statements given to the press by the Colombian
Minister for Foreign Affairs.

10.—1949, April 20th. No. (S) 6-8/7. Letter from the Peruvian Minister
for Foreign Affairs and Religion to the Ambassador of Colombia at
Lima.

11.—The Act of Lima, dated August 31st, 1940.

I2.—1949, August 31st. Letter from the Special Plenipotentiary of
Colombia at Lima to the Peruvian Special Plenipotentiary.

13.—1940, August 31st. No. (D) 6-8/14. Letter from the Peruvian Special
Plenipotentiary to the Special Plenipotentiary of Colombia at Lima.

14.—1949, August 31st. No. 300/36. Letter from the Ambassador of
Colombia to the Peruvian Minister for Foreign Affairs and Religion.

120
ASYLUM CASE (JUDGMENT OF 20 XI 50) 383

15.—1949, September 1st. Letter from the Peruvian Minister for Foreign
Affairs and Religion to the Ambassador of Colombia at Lima.
16.—1944, October 2oth. Letter from the Peruvian Legation at Guate-

mala to the Military Junta of the Government.
17.—1948, October 28th. No. 5-20 M/34. Letter from the Peruvian
Legation at Panama to the Minister for Foreign Affairs.
18.—Extract from the Treaty on Private International Law, signed at
the Junta of American jurists which met at Lima in 1870.
19.—Extract from the Treaty on International Penal Law, signed at the
Ist South-American Congress on Private International Law which
met at Montevideo in 1889.
20.—Bolivarian Agreement on Extradition, signed at Caracas on July

18th, 1911.

21.—Convention on Asylum, signed at the VIth Pan-American Confer-
ence.

22.—Convention on Political Asylum, signed at the VIIth Pan-American
Conference.

23.—Extract from the Treaty on Asylum and Political Refuge, signed at
the IInd South-American International Law Congress which met
at Montevideo in 1930.

24.—Excerpt from the American Declaration on the Rights and Duties
of Man, adopted at the [Xth Pan-American Conference.

25.—Extract from the Universal Declaration on Human Rights, adopted
by the General Assembly of the U.N. on December roth, 1948.

{b) Annexes to the Reply:

1.—Documents concerning the asylum of MM. Manuel Gutiérrez
Aliaga and Luis Felipe Rodriguez in the Uruguayan Embassy at
Lima and the safe-conducts granted to them by the Peruvian
Government (five notes listed from A to E).

2.—Decree No. 4 of November 4th, 1948, creating a Court Martial for
the summary judgment of authors, accomplices and other persons
tesponsible for rebellion, sedition or rioting.

B.—BY THE GOVERNMENT OF PERU

4a) Annexes to the Counter-Memortal :

1.—The Lima Act of August 31st, 1949 (cf. Annex No. 1).

2.—The Public Prosecutor’s indictment, dated September 7th, 1949,
in the proceedings concerning the crime of military rebellion and
other crimes (cf. Annexes Nos. 2, 4, 25}.

3.—Folios 105 to 145 of Folder 8-A in the proceedings concerning the
crime of military rebellion and other crimes, containing the report
of the Deputy-Inspector, head of the Bureau for special cases, on
the malicious damage caused to the Central Telephone Exchange
(cf. Annex No. 3).

4.—Copy of El Peruano, the Peruvian official gazette, of October 4th,
1948 (cf. Annexes Nos. 4 and 32).

12I
ASYLUM CASE (JUDGMENT OF 20 XI 50) 384

5.—Folios 27, 31 and 196 of Folder 10-A in the proceedings concerning
the crime of military rebellion and other crimes, containing the
indictment, the inspection by eye-witnesses and the experts’ report
on the explosives found at San Isidro (cf. Annex No. 5).

6.—Folio 708 of Folder 10-B of the proceedings concerning the crime
of military rebellion and other crimes, containing note No. 290, of
October 3rd,. 1948, to the Inspector-General, head of the investi-
gations and Surveillance Service, on the bombs found in a taxi
(cf. Annex No. 6).

7.—Note of October 4th, 1948, to the Inspector-General, head of the
Investigations and Surveillance Service, concerning a dynamite
bomb found in the garden of the house of the secretary of the
Telephone Company ; Folder ro-A in the proceedings concerning
the crime of military rebellion and other crimes (cf. Annex No. 7).

8.—Folios 219 et sgg. of Folder 10-A in the proceedings concerning the
crime of military rebellion and other crimes, containing Report
No. 312, of October 5th, 1948, to the Deputy-Inspector, head of
the Secretariat, on the explosion of bombs on the roofs of buildings
(cf. Annex No. 8).

9.—Folio 501 of Folder 10-B in the proceedings concerning the crime
of military rebellion and other crimes, containing communiqué
No. 201, of October 4th, 1948, addressed to the Inspector-General,
head of the Investigations and Surveillance Service, on the damage
caused to a branch of the People’s Bank of Peru (cf. Annex No. 9).

10.—Folios 215 to 217 of Folder ro-A in the proceedings concerning the
crime of military rebellion and other crimes, containing note
No. 465, of October 4th, 1948, and the report No. 1309, of October
14th, 1948, addressed to the Inspector-General, head of the Investi-
gations and Surveillance Service, on the dynamite cartridges placed
near a petrol pump (cf. Annex No: 10), and note No. 211-R/Ia,
addressed to the said inspector-general in regard to bombs found
near a barracks (cf. Annex No. 24).

11.—Folios 516 et sqg. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing the docu-
ments relating to the bombs placed in the party wall of a glass
factory (cf. Annex No. 11).

12.—Folios 509 et sqgg. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing documents
relating to the dynamite bombs found in the garden of a house at
Miraflores (cf. Annex No. 12).

13.—Folios 523 et sqg. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing various
documents relating to the bombs which exploded on the public
highway, injuring passers-by (cf. Annex No. 13).

14,—Folio 703 of Folder 10-B in the proceedings concerning the crime
of military rebellion and other crimes, containing various documents
relating to the bomb and the incendiary bottle placed in the door-
way of a grocer’s shop (cf. Annex No. 14).

122
ASYLUM CASE (JUDGMENT OF 20 XI 50) 385

15.—Folios 221 to 223 of Folder 10-A in the proceedings concerning the
crime of military rebellion and other crimes, containing various
documents relating to the bomb found near the printing works of
the newspaper El Comercio (cf. Annex No. 15).

16.—Folios 512 et sqg. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing various
documents relating to the bombs thrown at a house (cf. Annex
No. 16), and the bomb found at the foot of the wall of a barracks
(cf. Annex No. 22).

17.—Folios 203 to 205, and overleaf, of Folder 10-A in the proceedings
concerning the crime of military rebellion and other crimes, contain-
ing various documents relating to a bomb placed on the tramway
(cf. Annex No. 17).

18.—Folder 210 of Folder ro-A in the proceedings concerning the crime
of military rebellion and other crimes, containing documents
relating to the bomb found in a motor bus (cf. Annex No. 18).

19.—Folio 229 of Folder 10-A in the proceedings concerning the crime
of military rebellion and other crimes, containing documents
relating to the gelignite cartridge found in the premises of the
daily paper La Prensa (cf. Annex No. 19).

20.—Folios 201 and 202 of Felder 10-A in the proceedings concerning
the crime of military rebellion and other crimes, containing various
documents relating to the twenty-eight dynamite bombs found on
the roof of an hotel (cf. Annex No. 20).

21.—Folios 740 ef sgq. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing various
documents concerning the bomb, hidden in the coal, which exploded
in a kitchen range (cf. Annex No. 21}.

22.—Folio 700 of Folder 10-B in the proceedings concerning the crime
of military rebellion and other crimes, containing various documents
relating to bombs found on the roof of a house adjoining the work-
shops of the Telephone Company (cf. Annex No. 23).

23.—Folios 21.and 22 of Folder 11-A in the proceedings concerning the
crime of military rebellion arid other crimes, containing a list of
documents and exhibits transmitted by the Prefecture to the
judicial department of the Navy with a view to their being attached
to the prosecution opened in regard to the subversive movement of
October 3rd, 1948 (cf. Annexes Nos. 25 and 57).

24.—-Folios 96 to 98 of Folio 8-A in the proceedings concerning the crime
of military rebellion and other crimes, containing Report No. 55 of
October 8th, 1948, on the manufacture of explosives in a kitchen
stove factory (cf. Annex No. 26).

25.—Folios go et sqg. of Folder 8-A in the proceedings concerning the
crime of military rebellion and other crimes, containing the report
of the assistant chief of the Investigations and Surveillance Service
to the Inspector-General, chief of the Service, on the manufacture
of bombs by the Aprist Party (cf. Annex No. 27).

26.—Report by the examining magistrate on the malicious damage
caused to the Central Telephone Exchange and the manufacture

123
ASYLUM CASE (JUDGMENT OF 20 XI 50) 386

of explosive bombs by the members of the Aprist Party; this
report is contained in Folios 300 et sgq. of Folder 8-A in the proceed-
ings concerning the crime of military rebellion and other crimes
(ci. Annex No. 28).

27.—Folio 847, and overleaf, of Folder 10-B in the proceedings concern-
ing the crime of military rebellion and other crimes, containing the
deposition of M. Alberto Benavides, who was asked by the Aprist
leaders to cast shells for explosive bombs (cf. Annex No. 29).

28.—Five photographic reproductions of leaflets used by Apra in its
campaign of incitement preceding the rebellion of October 3rd,
1948 (cf. Annex No. 30).

29.—Copies of the Lima newspapers containing information published
after the rising on October 3rd, 1948 (cf. Annex No. 31).

30.— Volume containing the record of the prosecution for trade in drugs
instituted in a court of the United States of America (district of
Southern New York), against Edward Tampa, Miguel E. Gonzales
and Eduardo Balarezo, showing the connexion which existed
between the latter and the revolutionary movement of October 3rd,
1948, and also his connexion with Victor Ratil Haya de la Torre,
the leader of Apra. This document is authenticated by the United
States authorities (cf. Annex No. 33).

31.—Photographic copies of documents communicated to the Peruvian
Ambassador at Washington by the Bureau of Narcotics of the
United States of America (cf. Annex No. 34).

32.—Letter addressed to M. Haya de la Torre by Major Aguila Pardo,
Folio 624 of Folder 10-B in the proceedings concerning the crime
of military rebellion and other crimes. Photographic reproduction
of the document and authenticated copy (ci. Annex No. 35).

33.—Decree No. 23 of October 4th, 1948, by the Executive Power,
outlawing Apra (cf. Annex No. 36).

34.—Copy of the Penal Code of the Republic of Peru ; law No. 4868 of
January roth, 1924 (cf. Annex No. 37).

35.—Copy of the Code of Military Justice of the Republic of Peru ; law
No. 8901 of October 16th, 1939 (cf. Annex No. 37).

36.—Order made by the head of the Naval Judicial Department, dated
October 3rd, 1948, giving instructions for the opening of investiga-
tions by the Permanent Examining Magistrate of the Navy, Folio 1,
and overleaf, in the proceedings concerning the crime of military
rebellion and other crimes (cf. Annex No. 38).

37.—Folios 8 and 9 of Folder x in the proceedings concerning the crime
of military rebellion and other crimes, containing a request by the
prosecutor to the Directorate of the Judicial Department of the
Navy for the issue of a formal order for the opening of the proceed-
ings, and an order dated October 4th, 1948, for the opening of a
military prosecution in accordance with the opinion given by the
prosecutor on the same date (cf. Annex No. 39).

124
ASYLUM CASE (JUDGMENT OF 20 XI 50) 387

38.—Folios 22 to 24 of Folder x in the proceedings concerning the crime
of military rebellion and other crimes, containing the institution of
the prosecution of the persons responsible, the perpetrators and
accomplices (cf. Annex No. 40).

39.—Accusation by the Minister of the Interior, transmitted by the.
Minister of the Navy to the head of the Judicial Department of
the Navy; this accusation appears in Folios z to 5, and on the
reverse of Folios 5, 10 and 11, and.on the reverse of Folder 10-A of
the proceedings concerning the crime of military rebellion and other
crimes (cf. Annex No. 41).

40.—Folios 16 to 23 of Folder 10-A concerning the crime of military
rebellion and other crimes, containing a certified true copy of the
examining magistrate’s report (cf. Annex No. 42).

41.—Folio 170, and overleaf, of Folder 10-A in the proceedings concern-
ing the crime of military rebellion and other crimes, containing the
judicial order for the arrest of the accused persons who are not yet
in custody (cf. Annex No. 43).

42.—Folio 346, and overleaf, of Folder 10-A in the proceedings concern-
ing the crime of military rebellion and other crimes, containing the
note requesting the delivery of the documents found at the head-
quarters of the Aprist Party, in the premises of La Tribuna, and
in Haya de la Torre’s private house, with a renewed order for the
arrest of the accused persons who have defaulted (cf. Annex No. 44).

43.—Folio 421, and overleaf, of Folder 10-A in the proceedings concern-
ing the crime of military rebellion and other crimes, containing the
note from the Inspector-General of the Investigations and Surveil-
lance Service to the judicial authority, informing the latter that
Haya de la Torre and other accused persons had not been found
(cf. Annex No. 45).

44.--Folio 414, and overleaf, of Folder 10-A in the proceedings concern-
ing the crime of military rebellion and other crimes, containing the
judge’s order for the citation, by public summons, in accordance
with the law, of the accused persons who have defaulted (cf. Annex
No. 46).

45.—Copy of the Peruvian official gazette ET Peruano, of November 16th,
1948, containing the first of the citations summoning the accused
persons to appear (cf. Annex No. 47).

46.—Note dated January 4th, 1949, from the Colombian Ambassador in
Lima to the Peruvian Minister for Foreign Affairs (cf. Annex No. 48.)

47.—Note dated January 14th, 1949, from the Colombian Ambassador in
Lima to the Peruvian Minister for Foreign Affairs (cf. Annex No. 48.)

48.— Note dated February rath, 1949, from the Colombian Ambassador
in Lima to the Peruvian Minister for Foreign Affairs (cf. Annex
No. 48).

49.—Official publication containing the note No. (D) 6-8/2, dated
February 22nd, 1949, from the Peruvian Minister for Foreign
Affairs to the Colombian Ambassador in Lima (cf. Annex No. 49).

125
ASYLUM CASE (JUDGMENT OF 20 XI 50) 388

50.—Official publication containing the note No. (D) 6-8/4, dated
March 19th, 1949, from the Peruvian Minister for Foreign Affairs
to the Colombian Ambassador in Lima (cf. Annex No. 49).

51.—Official publication containing the note No. (D) 6-8/6,. dated
April 6th, 1949, from the Peruvian Minister for Foreign Affairs to
the Colombian Ambassador in Lima (cf. Annex No. 40).

52.—Photographic copy of the pages of the Revista colombiana de Derecho
internacional, containing a report by the advisory commission of the
Colombian Ministry of Foreign Affairs (cf. Annex No. 50).

53.—Photographic copy of a page of the year-book of Peruvian legisla-
tion, containing the text of law No. 9048 (cf. Annex No. 54).

54.—Photographic copy contained in Folder 10-B in the proceedings
concerning the crime of military rebellion and other crimes, of the
Disciplinary Statute of the People’s Party, together with an authen-
ticated copy of the same document (cf. Annex No. 55).

55.—Photographic copy contained in Folder ro-B in the proceedings
concerning the crime of military rebellion and other crimes, of the
Code of Justice of the Aprist Advanced Guard, together with an
authenticated copy of that document (cf. Annex No. 56).

56.—Text of a cable from President Benavides, dated December 26th,
1938 (cf. Annex No. 58).

57-—Official publication by the Peruvian Ministry of the Interior
containing President Bustamante y Rivero’s message dated Febru-
ary 29th, 1948 (cf. Annex No. 59).

58.—Judgment delivered on December 5th, 1940, in the trial of Alfredo
Tello Salavarria and other persons for the murder of M. Francisco
Grafia Garland, in which orders were given for the institution of
proceedings against Victor Ratil Haya de la Torre and Carlos Boado
for the crime which was the subject of that trial (cf. Annex No. 60).

59.—The public prosecutor’s indictment of Haya de la Torre and other
persons for the crime of usurpation of authority (cf. Annex No. 61).

60.—Order for the institution of proceedings against Victor Ratil Haya
de la Torre and other persons for the crime of usurpation of func-
tions to the prejudice of the State (cf. Annex No. 62).

(b) Annexes to the Rejoinder :

1.—Extracts from the Peruvian Code of Military Law (document
transmitted with the Counter-Memorial).

2.—Extracts from the resolution of the head of the Judicial Department
of the Navy which declares Mr. Haya de la Torre, among others, a
defaulting criminal. (Folios 24 to 54 of Folder 11-C in the proceed-
ings concerning the crime of military rebellion and other crimes.)

3.—Extracts from the sentence pronounced on March 22nd, 1950, by
the tribunal which tried the persons responsible for rebellion and
other crimes.

4.—Articles from the Military Penal Code of Colombia.
126
ASYLUM CASE (JUDGMENT OF 20 XI 50) 389

5.—Colombian decree extending the jurisdiction of the Courts Martial.

6.—Colombian decree increasing the penalties under the Penal Code.

7.—Extracts from the report of the examining magistrate in the
proceedings against Victor Ratil Haya de la Torre and others
concerning the crime of usurpation of authority.

{c) Documents submitted to the Registry of the International Court of
Justice with the Rejoinder :

1.—Folios 24 to 54 of Folder 11-C in the proceedings concerning military
rebellion and other crimes, containing the resolution of the head of
the Judicial Department of the Navy, which declares M. Haya de la
Torre, among others, a defaulting criminal.

2.—Certified copy of the sentence pronounced on March 22nd, 1950,
by the tribunal which tried the persons responsible for rebellion
and other crimes.

3.—Copy of the Military Penal Code of Colombia (law 3 a of 1945).

4.—Cutting from the Official Journal of Colombia containing decree
No. 3562 of 1949.

5.—Copy of the Official Journal of Colombia containing decree No. 957
of 1950.

6.—Certified copy of the report of the examining magistrate in the

proceedings against Victor Ratil Haya de la Torre and others
concerning the crime of usurpation of authority.

II—ANNEXES DEPOSITED DURING ORAL PROCEEDINGS

By THE GOVERNMENT OF COLOMBIA:

1.—Authentication of the signature of the Notary Public for the District
of Columbia by the Secretary of the Bureau des Commissaires of
that district.

2.—Letter from M. Serafino Romualdi to M. Francisco Urrutia, signed
before a notary at New York on 6th September, Ig50.

3.—Copy of a letter from M. Serafino Romualdi to M. Edward G.
Miller Jr., dated 11th April, 1950.

4.—Photocopy of a letter from Mr. Edward G. Miller Jr., dated 1st May,
1950, in answer to M. Serafino Romualdi’s letter.

5.—Photocopy of M. Victor Raül Haya de la Torre’s passport.

127