332

DISSENTING OPINION BY JUDGE AZEVEDO
[Translation]
Much to my regret, I am obliged to dissent from the reasons and

the conclusions adopted by the Court in its Judgment and to state
my personal views on those various points.

1. Care must be taken that an exaggerated application of the
grammatical method, excessive concern for the intention of the
authors of a text and strict adherence to formal logic should not
lead to disregard of the manner in which a legal institution has
become adapted to the social conditions existing in a certain part
of the world.

It should be remembered, on the other hand, that the decision
in a particular case has deep repercussions, particularly in inter-
national law, because views which have been confirmed by that
decision acquire quasi-legislative value, in spite of the legal prin-
ciple to the effect that the decision has no binding force except
between the parties and in respect of that particular case (Statute,
Art. 59).

Technical procedures may be applied in such a strict manner
that a chivalrous and traditional institution, the utility of which is
universally acknowledged, may be weakened and transformed to
such an extent that it becomes something akin to a police measure.
Thus, in the field of asylum, the distinction on which the institution
is based, ie. between political offences and common crimes, is
disregarded : the difference between respect in the first case and
prohibition in the second disappears.

If indeed the main concern is the material protection of the
individual against the excesses of an unruly mob during the time
strictly indispensable to surrender the refugee to the local author-
ities, and if, on the other hand, it is inconceivable that temporary
protection against lynching should be refused even to the most
infamous common criminal during the time indispensable for
their surrender to the custody of the territorial State, then all
distinction disappears.

It would be equally possible to consider that a refugee is in
safety by virtue of his surrender to the local authorities, even after
it has been agreed that he is merely a political offender, without
even a reservation concerning punishment for common crimes of
which he may be subsequently accused, as is the rule in the case
of extradition.

2. Reality, as I see it, is quite different, and the most firmly-
established traditions of Latin America which ensure the advantages

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DISSENTING OPINTON BY JUDGE AZEVEDO 333

of asylum to all persons accused of political crimes or offences, either
during revolutions or in the more or less disturbed periods that
follow, do not appear to me in the same light. This result goes
beyond the intentions of the draftsmen of the Treaty of 1928 and
rests, not on the sole grounds that the administration of justice
should be presumed to be defective, but on the fact that such an
adulteration is always possible in troubled times and that it is
better in each case to avoid an inquiry which would be more
offensive to the country concerned than a general provision which
is always applicable on the basis of strict reciprocity.

No one disputes the fact that international law may be influenced
by special factors which are perfectly compatible with it. This
secondary formation may result from various factors such as those
of race, religion or geographical proximity.

Diplomatic asylum is a striking example of the necessity of
taking into account, in the creation or adaptation of rules of
restricted territorial scope, of geographical, historical and political
circumstances which are peculiar to the region concerned——in this
case the twenty nations of Latin America.

In Europe, where social changes are rare but serious, the
institution of asylum tends to disappear; in Latin America,
however, where revolutions are less serious but much more frequent,
the adaptation and development of this ancient practice has
progressed, gaining force with each convention signed, and it is
still not yet possible to foresee the high point, much less the low
point, of the curve.

3. In that region, asylum has practically dated from the auto-
nomy of the States concerned, which have been independent for less
than a century and a half. The extent of the application of this
institution is confined to the territories of Central and South
America, and I cannot recall a single State that has remained
aloof from the action of asylum in its two aspects. Hundreds of
persons have benefited from asylum, and the protection of those
precious lives weighs more with me than the punishment of a
few political offences.

Apart from humanitarian considerations, however, which are
clearly individualistic in character, asylum has another even
more important aspect. It is also a highly social institution and
has a deep educational action towards the control of passions,
the exercise of self-control, and the respect for a rule which is
so deep-rooted that it has become almost sacramental. This
practice has asserted itself even on the most powerful de facto
governments which have assumed power in the course of civil
wars. At the most critical times of political strife, this fraternal
voice is heard calling upon the combatants to separate and urging
men to clemency.

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DISSENTING OPINION BY JUDGE AZEVEDO 334

That deep-rooted intuiton is more powerful than any technical
subtleties, and it is the first time that a dispute of this kind has
been submitted to international jurisdiction, the few difficulties
having been, so far, easily overcome.

If environment and other relevant factors are disregarded in
favour of the literal interpretation of one single condition, the
result would not then be a case of summum jus, but of an element
of disturbance, which, far from contributing to peace, would be
responsible for increasing the number of disputes and perhaps even
of civil wars in America.

4. In my opinion, the institution of asylum in Latin America
may be summarized as follows :

(1) It applies not only to political offenders, properly speaking,
but also to persons who are persecuted for political reasons, as
explained in a purely declaratory manner in Article 2 of the
Montevideo Convention of 1939: all political opponents are
protected, whether they be statesmen in disgrace or politicians
who have failed in their attempt to overthrow the government.

(2) Its exclusive, if not its principal, purpose is not to protect
the refugee from the excesses of a mob. Such excesses as may
have sometimes occurred in the overthrow of corrupt dictators,
remain rare because of the natural sympathy of the people for
those in trouble. The purpose of asylum is not only to protect
life, but especially to safeguard liberty against every kind of
persecution.

(3) Its purpose is not only to prevent the application of ad hoc
legislation by exceptional courts, but also to protect the refugee
against ordinary justice, in cases of political offences which, by
their very nature, do not lend themselves to judicial appreciation,
and are sometimes deferred to political organs following a procedure
of impeachment. Extradition of political offenders is refused the
world over, even when requested by countries living under a
normal constitutional régime. This fact is especially noteworthy,
since the country of refuge does not itself take measures to punish
the refugee, at least not to the extent it would punish an identical
offence committed on its own territory. This attitude, however,
would deprive a refusal of all moral justification and would reveal
the doubts entertained concerning the proper administration of
justice in the other State.

(4) Urgency, which may be interpreted in a number of ways,
cannot be determined in relation to a unit of time, but in relation
to various factors, including even the geographical dithculties of
external refuge, which can be reached much more easily in densely-
populated areas where rapid means of transportation are available
to nearby frontiers.

NI
iS)
DISSENTING OPINION BY JUDGE AZEVEDO 335

(5) Periods of constitutional abnormality are among the first
factors to be considered in assessing the danger threatening the
refugee when the rule of law is suspended or practically ceases to
exist. Serious concern for the safeguard of justice is then justified
because of the direct or indirect pressure which unlimited power
may exercise on ordinary or extraordinary courts.

(6) The restrictive clause on the duration of asylum, apart from
being obviously illogical if the departure of the refugee depends
on the goodwill of the other State, cannot be interpreted in the
sense that the surrender of the refugee to the local authorities is an
equivalent form of guarantee. On the contrary, because of the irre-
parable character of its consequences, asylum, if regularly granted,
cannot in any way terminate without the consent of the refugee.

(7) Like extradition, asylum is instantaneous in its character
and should be judged in relation to a very definite moment.
Subsequent events, and their unpredictable developments, may
sometimes assume an unexpected direction, but they merely
represent the consequences and the conclusion of a previously
existing legal situation.

5. To state these fundamental points does not imply that asylum
may be granted without careful consideration. Indeed, this would
increase the frequency of social disturbances and encourage the
initiative of adventurers specializing in asylum. That is why a
diplomat should not be approached concerning the attitude he
may adopt in the future, should such a case arise. The regulations
issued to the Brazilian diplomatic service expressly provide that
diplomatic officials shall not offer asylum to anyone seeking it or
lead such a person to the seat of the mission (H. Accioly, Traité
de droit international public, Paris, 1940-1942, tome II, paragraph
1170/A). Moreover, asylum would not thereby be made easier,
for it is inconceivable that a diplomat would welcome these alien
guests, who are the cause of serious inconvenience and consider-
able trouble.

To prevent abuse, American writers on international law (see
H. Accioly, of. cit., paragraphs 1170/A and 1173; Heitor Lira,
Revisto de Direito, Rio de Janeiro, v. 126) warn against any exten-
sive interpretation of this institution and restrict the grant of
asylum to grave circumstances. Governments, as we have just seen,
often send instructions to this effect to their diplomatic agents.

On the other hand, a strict interpretation should not lead to the
distortion of the purposes of asylum, or, in practice, bring about
its abolition by excessive respect for the letter of the texts or even
of mere preambles.

6. We have already mentioned the antiquity, extent and, par-
ticularly, the continuity of this practice. It is indisputable that

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DISSENTING OPINION BY JUDGE AZEVEDO 336

Latin-American countries practise asylum extensively, whether
actively or passively ; they sign conventions, even if they sometimes
fail to ratify them; they make solemn declarations, they issue
press communiqués, they praise the services rendered by asylum.
In a word, they appear generally proud of the extensive and
continued application of this ancient institution.

But it will be argued that such a practice, if it is interrupted,
cannot be regarded as a custom and that the Parties have dwelt
particularly on the contradictions in their respective practices.

The difficulties involved in referring ‘to custom as a source of
international law are well known ; custom plays a most important
part (the principal part, according to certain writers) in the develop-
ment of international law.

It is therefore necessary to consider the examples of interruption
in the practice in order to determine their true nature and decide
whether they suffice to destroy the value of other concordant cases
which, by their number, would clearly reveal an opinio juris. In the
present case, it will be necessary, for example, to consider whether
the nature and the purpose. of the institution, as they may be
deduced from the form it has assumed in that part of the world,
have been affected by the exceptions or whether, on the contrary,
the latter merely prove the rule. But these exceptions are only the
result of personal attitudes and rather reflect the conduct of govern-
ments in defiance of the juridical conscience of States which had
previously been firmly established. Such transitory or episodic
reactions are always the counterpart of political situations in the
process of consolidation and rarely arise from the normal func-
tioning of constitutional organs. Viewed from another angle, these
sporadic reactions have an abnormal character when they are
confined to one aspect of asylum—the reluctance to recognize the
measures taken by a foreign .diplomat, whereas the recalcitrant
State continues to grant asylum in other countries. It is unneces-
sary to qualify such conduct.

No value can attach to such weak elements, even if they assume,
as has already occurred, the strange form of the abolition of asylum
by unilateral declaration, for such an abolition is always immediat-
ely followed by a return to the previous practice, which is thus
strengthened by facts and not merely by presumptions, although
doctrine may consider the latter sufficient. The opponents of the
voluntary theory even go so far as to say that it is impossible to
seek a psychological element which remains necessarily intangible
(Paul Guggenheim, Les deux éléments de la coutume internationale,
in “‘La technique et les principes du droit public, Etudes en l’hon-
neur de Georges Scelle”, Paris, 1950, Vol. I, pp. 276 ef sqq.).

On the contrary, those occasional denials constitute violations
of an already established rule, for a State cannot oppose a custom
previously accepted.

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DISSENTING OPINION BY JUDGE AZEVEDO 337

To destroy such a custom, a clear, coherent, unilinear attitude
would be required, such as that of the United States for instance,
which, while refusing to become in any way involved in the institu-
tion of asylum adopted by their sister-republics, have in practice
shown toleration in some extreme cases, although with restricted
effects.

7. What is the value, however, of such a custom as against
conventions, and even a complex of conventions, the signature
and ratification of which sometimes reveal a certain lack of con-
sistency in the principles of the States belonging to the group
which establishes them ?

There is no need to go into the matter of the derogative action of
treaties upon custom, nor into the question of the compatibility
of the two sources of law. It will be sufficient to emphasize that
treaties often embody principles already established by custom,
and thus have a declaratory effect with regard to customary rules.
This role is greater in a system where the field of written law is
progressively extended by the reception of new practices which
have manifested themselves in the interval.

It is then very dangerous for a State to proclaim that it is bound
only by the treaties which it has signed and ratified. This purely
gratuitous declaration is rather daring, particularly at a time when
the contractual element is undergoing an obvious and deep change
by virtue of the para-legislative action of an international character
which is being developed even at the cost of substituting the
majority principle for the principle of unanimity.

Thus, in a course at the Academy of International Law, Pro-
fessor Balladore Pallieri referred to the current observation to the
effect that ‘‘a large number of Pan-American conventions are
observed, even by States which did not ratify them, and that they
often become common and general law for America” (Recueil des
Cours, 1949, Vol. 74, p. 540).

This practice is so deep-rooted that it may be observed that on
several occasions in respect of the Treaty of mutual assistance
signed at Rio de Janeiro on September 2nd, 1947, the signatories
could not participate in the voting provided for in that Treaty
unless they had ratified it.

8. To show the force of custom in the field of asylum in Latin
America, it is sufficient to recall the significant fact that Spain
was almost compelled to accept not only the institution of asylum,
but also to comply with regional agreements, even though these
had not been ratified by several American States, on the grounds
that the mother-country was bound to accept from her numerous
offspring a sort of estate in reversion.

Another decisive test may be mentioned. Very few of the twenty
States of the group ever ratified or even signed a treaty on
asylum. The names of Bolivia and Venezuela come to mind. In

75
DISSENTING OPINION BY JUDGE AZEVEDO 338

so doing, did they avoid the general practice, or did they at least
adopt other principles? On the contrary, they practise asylum
naturally, like the other States, invoking and accepting indis-
criminately the application of principles contained in regional
treaties.

There is a third, though minor, factor, and that is the practice
of immediately requesting a safe-conduct without awaiting the
initiative of the territorial State. It is therefore not proper to
deduce from the failure to ratify a new convention the conclusion
that the State concerned remains outside the group in which the
custom is respected.

9. In order to refute the claim that we should return to a literal
interpretation of the texts, it will be necessary to add to these
general data concerning the environment and the spirit of the
continent two further considerations which apply particularly to
the Respondent, although doctrine and jurisprudence: are not
concerned with seeking the recognition of custom in the practice
of the contesting States (A. Verdross, Recueil des Cours, Vol. 30,
Pp. 205).

On the one hand, on October 12th, 1948, the respondent Gov-
ernment recognized in an official note the respect of interna-
tional obligations concerning established practices (Memorial). On
October 26th, 1948, while already confining itself to conventions
which it had ratified, the Respondent acknowledged the right of
diplomatic agents to require the necessary guarantees for the
departure of the refugee. This right cannot be disregarded, any more
than the right to qualify the offence. In those conditions, the Court
cannot readily suppose that an error has been committed, as was
subsequently contended.

This was no extraordinary and isolated declaration of the Execu-
tive—of lesser importance than that accepted by the Permanent
Court in the famous Eastern Greenland case, and I believe that in
so doing that Court was applying international law—but a declara-
tion merely interpretative of treaties, and in harmony with the
normal attitude of the State (J. L. Brierly, Recueil des Cours,
Vol. 58, p. 71), and which moreover is in accordance with views
accepted and recognized by all American countries (Memorial).

On the other hand, on October 20th and 28th, 1948, it seemed
natural to the diplomatic representatives of the Respondent in
Guatemala and Panama to ask territorial States to recognize the
protection granted by the Havana and Montevideo Conventions on
Asylum (Memorial), whereas it was necessary to establish that the
State of refuge would in any case not practise asylum to a greater
extent than was warranted by its own usages, conventions or laws

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DISSENTING OPINION BY JUDGE AZEVEDO 339

These two considerations may lead to the belief that application
more geometrico of treaty clauses—even by a court deciding strictly
in law—would be difficult to justify.

But let us.admit, for the sake of argument, that it is necessary to
return to the pure theory of the autonomy of the will, irrespective
of the direct action of custom exerting itself alongside that of
treaties in functions which are normally exercised preter legem. Even
then, it would not be possible to disregard the profound action of
custom as a preponderant factor in the interpretation of any text
adopted on the same subject, especially if such action assumes
a character of reciprocity (H. Lauterpacht, Recueil des Cours,
Vol. 62, pp. 157-161).

à

10. It has already been pointed out that the purpose of asylum,
as traditionally practised in Latin America, is not only to protect
the person of the refugee, but also to remove him from the juris-
diction of territorial courts for political offences, just as in the
case of refusal of extradition.

Concern for a good administration of justice is thus shown in
the same way in both institutions as regards political offences
which are purely of an artificial or conventional nature (G. Sotgia,
Il delitto politico, Rome, 1950, pp. 20 and 08).

The question might arise, however, whether this protection
against a mere legal danger, the danger of unfair trial and con-
demnation, should not be set aside in the case of asylum, which
differs from that of extradition in the sense that the offender
continues to remain on the territory of the State of which he is
a national, while protected not by the obsolete fiction of exter-
ritoriality, but simply by immunities granted to a foreign
diplomat.

To dispel this doubt, it is enough to recall other examples in
which international law, without any personal reflection on
municipal judges, does not comply with their final decisions and
recognizes compensation based on a denial of justice. This amounts
to reciprocal control, whici must be tolerated in the absence
of a super-State order. The situation is the same in the case of
recognition of individual rights below a certain standard type,
even if this inadequate régime applies to nationals.

Continual efforts are being made at the present time to establish
on an international plane a judicial organ to correct the inadequacy
of municipal courts, so that the new Declaration of Human Rights
may not remain a dead letter.

In this way the French law of March roth, 1924, provides that
extradition shall not be granted even in cases of common crimes
if the request has been made with a political end in view (Art. 5,
para. 2), and the grounds for such a provision have been very

77
DISSENTING OPINION BY JUDGE AZEVEDO 340

aptly explained by Professor Donnedieu de Vabres (Traité de droit
pénal et de législation pénale comparée, 3rd ed., 1947, para. 1701).

Already in the municipal laws of some countries a prejudiced
local attitude constitutes a legal reason for transferring the trial
of a criminal to the assizes of another district, sufficiently remote
not to be disturbed by the repercussions of the crime.

Finally, it would be difficult to understand why, in America, if
the purpose of asylum was not to protect a political offender from
ordinary courts, the territorial State should resign itself, in every
case, to accept this serious consequence simply by courtesy or
goodwill, even if at the outset that State sometimes makes a certain
attempt to oppose it.

This fact is evident and irrefutable: it has just been naturally
admitted, before or after a categorical denial.

Reference has been made to a certain lack of clarity in the
circumstances of the numerous cases of asylum described’ before
the Court by the Parties, but there is one point which in any case
is beyond dispute—and that is, that among the means by which
asylum was terminated does not appear the surrender of the refugee
to the local authorities without his consent, even if the prevailing
conditions had changed.

There is no known. case to the contrary, and, as an indication
of the extent to which the diplomatic code of honour is respected,
the famous case may be cited in which a refugee wished to renounce
the protection and surrender himself to the local authorities ; on
that occasion the Ambassador who, incidentally, was accredited
in Latin America by a European country, demanded an explan-
atory letter, signed not only by the refugee, but countersigned by
persons who were removed from constraint of any kind, and in that
instance the letter was widely publicized by the Ambassador.

This fact is to be explained by the decisive consideration that
the withdrawal of the favour which had been granted to the refugee
would greatly aggravate his position. He could not be sent away
with impunity ; having lost his hiding-place and by appearing in
the full light of day, he would become the object of special vigilance
and would be deprived of the means of seeking another form of
refuge, which would have been easier for him to do before leaving
the Embassy.

11. Would not this evident restriction to sovereignty offend
national feelings, particularly in America, where countries are most
jealous of their independence, and have initiated well-known
continental doctrines like those of Monroe, Drago, Porter, etc. ?
A mere reference to widespread historical factors shows that
preoccupations of sovereign equality among American States are
not based on inter-continental reasons, except in some exceptional

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DISSENTING OPINION BY JUDGE AZEVEDO 341

cases in the past, which showed apprehension of the extremes of
a political hegemony without counterpart on the continent itself.
The Charter of the Organization of American States, signed in
Bogota on May 2nd, 1948, provides that an act of aggression
against one American State is an act of aggression against all
the other American States (Art. 5 /).

Particularly in the Latin-American group, there are no suscept-
ibilities to trouble the fraternal atmosphere and the smallest
country will, as a matter of course, grant asylum and ask the most
powerful State for a safe-conduct without the slightest hesitation
and with the clear conscience of exercising a right. Considerations
of sovereignty easily give way to a superior spirit of justice in
matters concerning the protection of the inalienable rights of man,
even before the spectacular reception of the individual into the
international field, as a result of the decision of the United Nations
Assembly in Paris in 1948.

It must also be observed that in the Treaty of Rio de Janeiro of
September 2nd, 1947, for the common defence of the continent,
two procedures and two solutions were adopted depending upon
whether the aggression was external or by an American State.

M. Levi Carneiro, Brazilian jurist now Counsellor to the Ministry
for Foreign Affairs, referring to the best-known authors of the North-
ern and Southern American continents, says that asylum is not to
be considered merely as the result of humanitarian concern, but as
a preoccupation of justice—even of individual justice—based on a
certain reserve, a certain distrust of executive organs of the govern-
ment and the courts of the country of the accused or of the individ-
ual persecuted. The first grants of asylum were not motivated by
humanitarian reasons alone. They therefore imply certain mani-
festations of opinion regarding the domestic affairs of the country
(O direito internacional e a democracia, Rio de Janeiro, 1945,

p- 140).

Besides, Article 3 of the Havana Convention has turned the old
discussion on the nature of asylum—whether a right or a mere
humanitarian practice—into an academic question. It was illogical
in itself, as it opposed two heterogeneous factors, namely, cause and
effect. A right may be based on ethical considerations or take its
source from economic, political or other factors. In any event, the
Convention has decided that the effects of asylum are the same,
whatever the reasons for which it was granted.

If the relation between the individual and the State granting

asylum alone is considered, any restriction may become an anachron-
ism when asylum begins to be treated not as a mere option but as

79
DISSENTING OPINION BY JUDGE AZEVEDO 342

a right, recognized in its external aspect by the Declaration of
Human Rights.

The time is happily past when the preparatory work of the 1930
Rocco Code in Italy referred to the fact that ‘‘the right of political
asylum is an anachronism incompatible with the situation of a
strong State”.

As early as 1939, Uruguay proposed the insertion in the Con-
vention of a rule to replace the faculty for the diplomat to grant
asylum by an obligation which he assumed vis-à-vis any individual
who might need such protection (Franchini Netto, O asilo diplo-
matico e o costume internacional, Sao Paulo, 1939, p. 100). Con-
sequently, it is not a mere toleration, which would moreover be
incompatible with any codification if asylum were to depend
upon the goodwill of each government. On the contrary, a European
writer, Cabral de Moncada, has emphasized the future of this
institution in international law in respect of the determination
of the minor rights of the human person (O asilo interno em
Diveito internacional publico, Coimbra, 1946, p. 158).

12. To understand the true American spirit, it is necessary to
take into account other elements which might easily pass unob-
served outside the continent.

For example, the Convention of 1928 on the effects of treaties
contains a clause which says that treaties will continue to have
effect even if the Constitution of a signatory State is modified
(Article 11).

Finally, it was the American nations which, for the first time
in the world, directly and explicitly agreed that a majority of
them be empowered to take decisions binding upon all. This
majority was two-thirds, and applied in matters of great importance
such as mutual assistance in case of aggression, but did not apply
to armed collaboration which continued to depend upon the
consent of each State (the above-quoted Treaty of 1947, Articles 8,
17 and 20).

13. It matters little that, in the question of recognition of
new de facto governments, the collective action of American
countries has not yet made it possible to arrive at a definite
solution by means of preliminary consultations. In accordance
with new trends and doctrines such as those of Estrada, Tobar,
Larreta, etc., there is an attempt to demand a perfect and immed-
iate application of democratic principles after any political
change (Charles Fenwick, The problem of the recognition of de
facto governments, “Inter-American Juridical Yearbook, 1948,
Washington, 1949, p. 18).

At any rate, there can be no comparison between the two cases,
for the need to establish and maintain good-neighbourly relations
explains why certain formal conditions have to be accepted for the
recognition of a government as, for instance, apparent stability,

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DISSENTING OPINION BY JUDGE AZEVEDO 343

the maintenance of public order, or respect for international under-
takings.

But these conditions do not justify the sacrifice of all concern
for justice and the safeguard of the dignity of the human person.
Restrictions on the administration of justice in the political domain
do not offend governments to the same extent as a refusal of recog-
nition, even if the new government owes its existence to force.

That is why the Latin-American countries have so willingly
accepted the consequences of asylum which, at first sight, might
gravely encroach upon their sovereignty ; moreover, the reciprocity
which is the basis of this institution deprives this measure, adopted
by a restricted group of States, of any aspect of intervention. It
was therefore considered preferable to accept, even at the price
of impunity, a privilege which was tantamount to a sort of amnesty
having a general application in which any personal suspicion of the
members of the judicial system of such a country was removed.

Even admitting that the intention at Havana in 1928 was to put
an end to abuses, there is no evidence to prove that this purpose
was achieved, in view of the imperfect character of the texts which
were adopted at that time. Moreover, little value can be attributed
to preparatory work, especially to such complicated work as that
accomplished by a very large assembly (Max Sorensen, Les sources
du droit international, Copenhagen, 1946, p. 215). On the contrary,
it must be admitted that precisely after that date the institution
of asylum assumed great importance, a phenomenon which has.
been often observed in connexion with articles of codes which, in
response to the pressure of urgent social needs, frequently have
effects which their authors had not foreseen.

All the foregoing considerations have clearly characterized the
attitude adopted by the Respondent, as we shall see later on. In
this connexion, we must examine frankly the clause which was
clumsily introduced into the Havana Convention and which has
given rise to so much misunderstanding. It is evidently that clause
which refers to the ‘‘time strictly indispensable for the refugee to
ensure in some other way his safety”. Does this clause concern
the State granting asylum ? But if it be concluded that the terri-
torial State may reject the qualification and especially refuse to
grant the safe-conduct, then the rule would have no meaning.
Indeed, who would be responsible for the delay ? An enquiry would
have to be opened in order to appraise the conduct of each State,
and the conclusion might be that the clause had been violated but
that no one was to blame for this violation.

In the circumstances it is not apparent how this text is con-
clusive, especially in the present case, where the reply to the three
notes from the Applicant was despatched 48 days after the first
note was sent.

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DISSENTING OPINION BY JUDGE AZEVEDO 344

But it would be an exaggeration to consider that, by virtue of
that clause, the refugee must be surrendered to the local authorities
at the first opportunity as if this represented a guarantee for
his security comparable to that constituted by the diplomatic
premises.

14. In support of almost all of what I have just stated, I could
rely on a series of articles which are dated 1945 but which were
published between January 1947 and August 1948 in the Revista
peruana de Derecho internacional, the organ of the ‘‘Sociedad peruana
de Derecho internacional’ (Vols. 7 and 8, Nos. 23 to 28), by one of
the directors of this review, M. Alejandro Deustua A., a summary
of which may be found in the Yearbook of the Pan-American
Union for 1948 (Washington, 1940, p. 219).

Let us briefly recapitulate the principal points : relying upon the
definition of asylum of the outstanding international jurist Alberto
Ulloa, the author proves the weakness of the arguments invoked by
European authors, particularly those which refer to the reservation
of sovereignty and the authority of local courts. In considering the
prevailing opinion in his country, the author mentions as the sole
exception one writer, M. Wiesse, all other writers having adopted
American continental practice ; he then examines the institution
in the light of all the American conventions without exception, and
points out that the life of the refugee is not the only human value
that is protected by asylum, the purpose of the latter being also to
preclude the possibility of unjust punishment ; the notion of danger
1s then carefully examined with a view to ensuring that the refugee
will be free to choose the precise moment when he needs security,
it being also left to the discretion of the diplomat to appreciate this
necessity ; then the author points out that in principle the local
government does not oppose this choice and, without disputing the
urgency of the protection, rather seeks to deny the political charac-
ter of the offence attributed to the refugee. Continuing what becomes
almost a prophecy of future events, the author seeks to dispel the
confusion between asylum and mere refuge, showing that such an
institution cannot subsist without the recognition of political
offences. And finally, after having emphasized that the qualification
must not appertain to an interested party but rather to a neutral
authority, such as a foreign agent, the author goes on to examine
certain other interesting considerations relating to the institution
which he has examined from its historical origins ; he reaches
sixteen conclusions of which the fourth leaves the character of
urgency on one side and the ninth recognizes that the State granting
asylum has the faculty to qualify the offence.

15. Two particular aspects of asylum must be emphasized : the
immutability of the conditions as viewed at the time asylum was
granted and the irreparable character of the consequences which
the withdrawal of asylum would imply for the refugee.

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DISSENTING OPINION BY JUDGE AZEVEDO 345

Whether asylum is considered as a simple option, as a human-
itarian act, or as a veritable right, once it has been granted, it lays
an obligation upon the State which granted it. It is true that the
refugee runs a grave risk if the doors of the legation remain closed
to him, but if he succeeds in being admitted he acquires the assur-
ance that he will not be surrendered to the territorial State, except
on serious grounds.

The two foregoing observations make it possible to eliminate all
confusion between the grant of asylum, which produces instan-
taneous and final results, and the vicissitudes which may sub-
sequently arise before the situation is resolved.

A radical change in the situation makes it indeed possible to
conceive of the departure of the refugee, not in order to surrender
to the police, but in order to return to his domicile with all due
peace of mind ; for the intervention of new factors, without in any
way affecting the regularity or irregularity of the asylum granted—
which remains unchanged— might result in the elimination of the
two reasons which gave rise to asylum, namely danger to life and
liberty, on account of previous political activity. In such cases,
which are not very rare, the objection of the refugee would be proof
of a mere abuse which is never supported by law, and the rule vebus
sic stantibus could then apply. Apart from this exceptional situation,
the refugee cannot be surrendered to the local authorities without
his free consent.

The grant of asylim gives rise to effects ex tunc and not ex nunc ;
in fact, in this latter case the territorial State could always defer
the issue of the safe-conduct or any other solution by agreement
in the hope of laying hands on the refugee following a change in
the status quo ante, for political events frequently take quite
unexpected directions and there has even arisen a case of exchange
of residence between the government and a diplomatic mission.

In the present case, it has been seen, for instance, that the
Minister who had brought the charges against the refugee approached
that same Ambassador three weeks later, and the latter, being above
party considerations, granted him his protection.

The grant of asylum thus constitutes an admitted fact the
circumstances of which must be fixed, once and for all, ad perpetuam
rel memoriam, in view of any appreciation which may have to be
made in the future. It is entirely independent of its maintenance
for a necessarily indefinite period once it is recognized that the
determination of its duration does not depend exclusively on the
person granting it. Just as in all obligations, whatever their nature,
the formation and effects of a contractual obligation cannot be
confused with the manner in which it is terminated. As for extra-
dition itself, it is necessary to consider a definite moment in order
to appreciate whether the accused should be surrendered, and
subsequent modifications cannot influence this appreciation; on
the contrary, efforts are made to ensure that the situation of the
extradited person is not aggravated by other charges.

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DISSENTING OPINION BY JUDGE AZEVEDO 346

16. The Respondent has understood this problem perfectly. This
is apparent from the clarity with which he has formulated the
counter-claim im verbis: “‘the grant of asylum by the Colombian
Ambassador .... was made in violation....”.

But later on, the theory of the separate stages, which was still
accepted at the time of the oral statements in order to explain an
objection to a certain mode of terminating the asylum, was replaced
by the theory of the continuity of asylum as a whole.

This change, however, has required a formal modification of the
original claim ; this modification, which was submitted with the
consent of the agent of the Respondent, consisted of adding to the
idea of grant that of maintenance.

Such a claim has been considered to be superfluous, but it was
necessary to accept a prolongation until August 3xst, 1949, of
the circumstances constituting urgency, a concept which by its
very nature is transitory, and this observation is also superfluous
in view of the conclusion that asylum was irregularly granted on
January 3rd.

In my opinion, this application of the theory of “continuous”
asylum is even less defensible in that it even contradicts the
ordinary meaning of the verbs used in this connexion (‘‘océroyer”,
‘accorder’ and “‘concéder’’).

As has already been pointed out, it is difficult to draw conclusions
from a delay which results from the very nature of a divergence
of view, especially if the parties have reached an agreement on
the means of solving the dispute, in a regular manner, thus
rejecting on both sides the effects of a delay which had already
occurred at the time the agreement was concluded, as well as
the effects of any delay which might result from the subsequent
procedure. The truth is that the parties have in this way mutually
decided to remove any consequences which might arise from
such a delay.

It is worthy of note, finally, that the draft approved at Bath
used the conjunction ov to separate the phrase referring to the
grant of asylum from that which referred to the maintenance
of asylum, instead of linking them by the conjunction and.

17. I shall not dwell on points which have become of minor
importance after the modification of the case.

Thus, as regards qualification of offences, it was seen that the
respondent State itself, invoking a precedent proper to its own
practice, considered that it was for the State granting asylum to
qualify the act which led to the asylum. That declaratlon would be
sufficient to set aside the statement made incidentally during the
proceedings that the Respondent had not ratified the Conventions
of 1933 and 1939, because of an aversion from the right of qualifica-
tion. But a host of other reasons would explain the omission—very

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DISSENTING OPINION BY JUDGE AZEVEDO 347

frequent in Latin America—to ratify a convention which also con-
tained other provisions. It would be necessary to put forward some
material evidence to establish this aversion. Moreover, in 1939 it
did not then exist, since the delegates of the Respondent had
renewed the signature already given to the same effect in 1933.

It is unnecessary to argue ad hominem because, in my opinion,
the clause of unilateral qualification is self-evident and even consti-
tutes the only means of settling such a difficult problem. It thus
happened twice at Montevideo that previous practice was restated
and that the texts merely proclaimed anew what was already
accepted practice at the time (H. Accioly, of. cit., para. 1171/A);
a simple expression in the preamble recording the undisputed fact
of a material modification could not act as an obstacle in the path
of a reality recognized without exception up to 1949. This is a
much more natural explanation of why four of the States which
were signatories in 1928 considered it unnecessary to join by a
mere declaration in the restatement of the existing law.

The decision of the territorial State would bring into play
a practically arbitrary factor and the conditions of a prior
agreement would be incompatible with the prompt action required.
On the contrary, the conflicting solutions regarding the two kinds
of offences—respect of asylum and surrender of the refugee—and
the very general reference to the domestic law of the country
granting asylum would amply justify the view that the Treaty of
1928 assumed the same preference for exclusive qualification which
fourteen States later expressly accepted (eleven in 1933, plus Nica-
ragua, which had not then deposited the ratification which had
been given, and two in 1939) and which six others accepted in
practice.

It is thus seen that the fact in no way offends against national
sovereignty, by virtue of the reciprocity and of the purposes in view,
namely, the protection of human rights against the contingencies
of political life.

18. The qualification of asylum must not only be unilateral but
also stable, as has already been seen above.

What is involved here is not a provisional qualification or a
mere question of effectiveness, but rather a necessary consequence
of the normal functioning of asylum as understood in Latin-
American practice.

The conclusion reached on the nature of qualification cannot,
however, attribute the value of ves judicata to a unilateral decision
of the country of asylum, even if this qualification should assume
a definitive character. This qualification is not unattackable and
is subject not to the ordinary revision of facts in each case, but,

85
DISSENTING OPINION BY JUDGE AZEVEDO 348

in exceptional cases, to a sort of appeal such as the recours en
cassation, in the event of manifest violation of international law.
Obvious abuse and misuse of powers may occur in the grant of
asylum, in which case international law will intervene—as would
municipal law—to suppress any arbitrary action by specific means
for the peaceful settlement of disputes. In fact, reference to such
means may be found in certain treaties (Treaty of Montevideo, 1939,
Art. 16).

19. As regards the obligation to grant a safe-conduct without
reservations, I agree in principle with the opinion of the majority
of the Court, although this solution is entirely independent of the
problem of qualification. It suffices, in this connexion, to recall that
asylum may have been regularly granted and yet the territorial
State may refuse to issue a safe-conduct for political reasons.

It is true that current practice has developed in the direction
of the mitiative being taken by the State of refuge, but a fund-
amental psychological element should here be taken into con-
sideration. In order to respect asylum a State will yield, thus
curbing its wishes and waiving its interests, thereby showing
its obedience to a compulsory rule. But it is impossible to find
here evidence of the recognition of any obligation, even reluctantly
fulfilled.

Indeed, the easy grant of a safe-conduct coincides with the
interest of the State. It consents to the departure of a dangerous
individual, capable of creating difficulties, even though isolated
in a diplomatic residence and subject to severe restrictions, for
the material obstacle would be quite insufficient to control the
excesses of an unruly mob, should such a case arise.

This attitude also shows the conviction on the part of the
territorial State that it will not be able to punish the refugee,
except after his departure and by means of a request for extra-
dition.

But in some cases, on the contrary, the territorial State may
have a reasonable interest in preventing the departure of the
refugee, because of the greater danger he might cause to public
order, as for instance by joining insurgent groups inside or outside
its boundaries.

By virtue of direct negotiations or the mediation of a third
State, it may be possible to arrive at a conciliation safeguarding
the interests of the country, by means of restrictions which in
fact have already been adopted in several conventions or drafts
(Pesséa, 1912, Draft of the conference of jurists in Rio de Janeiro,
1927), and which recall, moreover, that asylum should not bestow
unfair advantage on one of the opposing factions. It is quite
natural, therefore, that with or without the guarantee of the
State of refuge the refugee should undertake not to take up arms,
or establish his residence near the frontier, as otherwise his uncon-
ditional departure might be most detrimental to the State.

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DISSENTING OPINION BY JUDGE AZEVEDO 349

20. In cases of asylum and non-extradition of political offenders,
there is a degree of constraint upon the State which is thus unable
to apply its criminal law—the obstacle being either the flight of the
criminal or his entrance into a diplomatic residence.

This negative aspect should be emphasized, because it is a serious
thing to put a State under an obligation to perform a positive act,
such as the issue of an exit permit, the psychological repercussions
of which are most serious.

In this connexion it is also necessary to admit that the State is
free to discriminate and to decide on the danger which would result
from the departure of each refugee individually, without such
decision being subject to criticism.

Reservations made by the territorial State are even more under-
standable when that State considers that asylum resulted from an
“abuse of right”. This constitutes a kind of reservation, comparable
to the exceptio non adimpleti contractus, which consists in the post-
ponement of the delivery of a safe-conduct until the dispute has
been settled, instead of permitting immediate departure, even with
the reservation of an ultimate request for extradition, especially
when, in the country of refuge, the latter measure is left exclusively
to the decision of the judicial authorities, thus depriving the obliga-
tion which the government might assume in this connexion of all
its effectiveness.

21. Let us now examine the present case.

Following the grant of asylum to M. Haya de la Torre, the
countries concerned embarked upon a diplomatic correspondence
which finally resulted in a very clear legal dispute, in which the
Respondent, while referring exclusively to the Conventions of 1917
and 1928, disputed the legitimacy of asylum on the sole grounds
that the refugee was not a political offender but a common criminal
previously accused of acts of terrorism. No one has claimed that
the element of urgency required by the Convention of Havana was
absent, and yet three months had already elapsed since the main
fact with which the leaders of the party in question were charged,
namely the military rebellion in the port of Callao on October 3rd,
1940.

Was this due to error or oversight ? No, for in reply to the
communication of January 4th, 1949, the first letter of the Respon-
dent began with a reference to the rules of Havana, including the
circumstance of urgency, without raising any objection in this
connexion.

This was tantamount to a full recognition of the fact that asylum
had been properly granted, for it was unnecessary to begin a
painful discussion on any other point. Such an attitude further
stresses the manner in which the institution of asylum is viewed in

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DISSENTING OPINION BY JUDGE AZEVEDO 350

its natural surroundings. The arithmetical aspect of the duration
of this asylum did not attract the attention of any local jurist.

It is in this spirit that there arose a single dispute or controversy
of crystal clarity, the main points of which have been indicated
several times already. It is true that the two Parties did not agree
on the terms in which the dispute should be. submitted to the
Court, but there is nothing to show that the lack of such agreement
was due to a question which did not arise at the time; on the
contrary, the divergence noted referred to the question of criminal-
ity, the Applicant preferring to confine himself to the two abstract
problems—namely, the right of qualification and the obligation to
deliver a safe-conduct—and the Respondent hoping to invoke the
existence of a prior accusation of common crimes.

In any case, the Act of Lima was concluded in order to submit
to the Court the dispute “which arose following a request .... for
the delivery of a safe-conduct....”, etc. Thus, on these two occasions,
namely January 3rd and August 30th, 1949, the dispute was
confined to definite points, in accordance with consent of the
Parties repeatedly expressed.

But, removed from the environment in which it arose, was
understood and defined, the case began to undergo the effects of a
process of change, at first discreet, but which finally resulted in
completely transforming the dispute.

22. Thus the counter-claim has added to the complaint of
violation of Article 1, paragraph 1, of the Havana Convention,
that of violation of Article 2, paragraph 2 (“First”), of the same
instrument.

From the antecedents of the case and in the absence of a precise
explanation on the developments which that paragraph may
permit, it could readily be imagined that, far from laying down
a new ground, it referred rather to an alternative arising out
of the previous discussion which has retained the same tenor
in the subsequent. development of the legal proceedings until
the last oral statement, constantly recurring as a /eitmotiv in
the case: the charge of common crime made in respect of acts
of terrorism to a certain extent tends to deprive such acts of
their political character.

It could therefore be admitted that after such express declara-
tions (see Memorial, Counter-Memorial, Rejoinder and oral state-
ments) it would automatically follow that, once the existence of
prior charges of common crimes has been disposed of, the grant
of asylum to a mere politician in distress or to a political criminal
whose right of asylum the Respondent has in principle always
acknowledged, would appear to be perfectly regular.

In other words, if the Court finds that the refugee was not
accused of a common crime prior to the grant of asylum, the
asylum must be upheld.

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DISSENTING OPINION BY JUDGE AZEVEDO 351

A very careful scrutiny of the Pleadings was necessary in order
to discover in two or three hidden references to urgency (Counter-
Memorial, Rejoinder) a new and even subsidiary requirement for
the acceptance of the asylum. I might even go so far as to say that
the clarity of the reference which precedes the submission of the
counter-claim is far from satisfactory (see Counter-Memorial).

But the question was presented in an entirely different form
in the oral rejoinder, in order to make it possible to state to the
Court that it was free to consider or not the question of the quali-
fication of the offence, which question the Respondent at that time
considered to be outside the debate and the “trend which it had
assumed”’, for the Respondent was mainly concerned with the
circumstance of urgency connected with a material and transitory
danger.

The centre of the case was thus displaced; all concern with
common crimes, which had hitherto been the only grounds for not
recognizing the asylum, disappeared ; and the question was then
raised of the competence of the Court to decide on problems which
had been raised only in the counter-claim.

I cannot, for my part, remain indifferent to such a practice, which
is reminiscent of the Anglo-Saxon concept of estoppel, nor could I
accept that the onus of proving urgency should, at the eleventh
hour, be placed upon the Applicant who, in respect of the counter-
claim, became the Respondent, when, in the absence of any objec-
tion regularly presented on the point of urgency, the procedural rule
should be applied according to which facts not disputed by the
other party should be assumed to be true.

In any case the question of proof has no importance whatever in
the present case, for the documents submitted by both Parties, with
different ends in view, are more than sufficient to prove the facts
which are necessary for the Court’s decision in this case.

23. In my opinion the Court was not even competent to decide
upon a dispute which did not exist at the time of the conclusion of
the Act of Lima, whereas that Act described a dispute which had
already arisen and had been clearly defined. Under the terms of the
Protocol signed in Rio de Janeiro by the Parties on May 24th,
1934, a direct preliminary diplomatic discussion would also have
been necessary before a question could be brought before the Court.

It was considered preferable to confine the discussion to a tacit
agreement of the Parties since, in the oral submissions, the Applic-
ant did not again refer to the competence of the Court to consider
what he called the first claim, whereas he referred to its lack of
jurisdiction with respect to the second counter-claim (see Reply
and Oral Statements).

This reason, although supported by the jurisprudence of the
Permanent Court, is very weak. First of all, I would prefer to this

89
DISSENTING OPINION BY JUDGE AZEVEDO 352

jurisprudence the dissenting opinion submitted among others by
Judge Max Huber (P.C.I.J., Series A, No. 15: Judgment No. r2,
p. 53). Furthermore, this was a case of a lack of jurisdiction ratione
materie which the Applicant has in fact recalled in connexion
with the duty of the Court to examine ex officio the two require-
ments laid down in Article 63 (jurisdiction and connexion).

But there is yet a more important circumstance ; it is that the
modification to the essential basis of the claim was pleaded at.a
time when the other Party was no longer able to reply, and that
condition was in any case required by the Permanent Court in
connexion with a simple modification of submissions (M. O. Hud-
son, The Permanent Court of International Justice, New York,
1943, page 576, and note 25).

In any case, instead of seeking the consent of the Parties in the
weak measure of a tacit or a contrario renunciation, I would prefer
to seek it in a solemn document such as the Act of Lima, which is
at the basis of the whole case, and limits the jurisdiction which
was conferred upon the Court only by the will of the Parties and
which the Court must observe ex officio. (Viktor Bruns, in Recueil
des Cours, Vol. 62, p. 603.)

24. The counter-claim, and especially the importance so unex-
pectedly assumed by the circumstance of urgency, has brought
about a considerable modification in the case, removing it from the
field of simple juridical discussion to a plane where the political
aspect is of paramount importance. The intention has clearly been
to “‘burst an abscess’.

The Applicant, who had displayed extreme reserve throughout
the diplomatic discussions, refraining from appraising the facts
(see Rejoinder) and relying on the general aspects of the law,
was forced to set forth the existing political motives on the first
occasion which presented itself after the Counter-Memorial,
namely in the Reply. |

The Court has rejected almost unanimously the contention
concerning the existence of a common crime at the time at which
asylum was granted. This is the complete rejection of the view
maintained by the Respondent up to the date of his Counter-
Memorial, a view which was relegated to a subsidiary position only
on October gth, 1950.

But is has been argued that another provision of the Havana
Convention was violated because, within three months after the
principal event, there was no urgency and because on January 3rd,
1949, there was not sufficient real danger to justify the grant of
asylum.

25. But even up to that time, several diplomats continued to
grant asylum, without opposition, to a great number of persons,
and this circumstance further leads to the rejection of a strict
interpretation of the word “urgency” in relation to time, according

go
DISSENTING OPINION BY JUDGE AZEVEDO 353

to which the period should only consist of an unspecified number
of days.

It is very difficult to adopt an interpretation of a text without
regard to the special circumstances in which it was drafted ; these
circumstances are both numerous and varied.

Sometimes even the dates are lacking which would permit the
time to be calculated. It is also necessary to take into account the
difficulties of reaching a legation, for the first concern of the police
in such cases is to watch the premises of diplomatic missions in
order to prevent suspects from reaching them. In such instances
a refugee is forced to wait a long time for a favourable opportunity
of passing through unnoticed, generally at night.

It will be noted in the present case that the first definite indica-
tion of an accusation of political offence was the summons which
appeared in the official gazette of November 16th, 1948; the
Ministerial letter to which we shall refer later had remained secret.

But could an anticipated request be willingly agreed to by a
diplomatic agent or, on the contrary, would he reject it on the
ground that it was premature? It would be very difficult to
appraise such a situation in such different conditions of time and
place with a view to understanding the hesitation which might
arise in the mind of the fugitive.

It will be argued that there had existed since October 4th, 1948,
a decree outlawing the Aprist Party, the recitals of which contained
clear references to the intention to punish the moral authors of
acts contrary to the public order of the nation, in spite of the fact
that the programme of that party had been known for a long time
and that many of its members had belonged to the Congress or the
Government. But the constitutional validity of this act was none
the less open to judicial appreciation, since the Peruvian Constitu-
tion remained in force before October 27th with only the restric-
tions pertaining to a state of siege. It will be sufficient to note that
the said decreé was based on Article 154, No. 2, of the Constitution,
which attributes the maintenance of public order to the executive
power, without however authorizing that power to violate the
Constitution or the laws.

Other circumstances could also be considered in appreciating the
conduct of the Ambassador, as well as that of his Government,
which subsequently had to support him. First of all the letter of the
Minister of the Interior of October 5th, 1948, denouncing crimes ;
this letter was of a clearly political nature, and although it remained
secret, produced visible results such as the sequestration of his
assets and newspapers ; then the successive renewals of a state of
siege, the last of which occurred the day before the asylum was
granted, showing that the fear of social disturbances had in no way
disappeared ; and, finally, the decree-law of November 4th, to
which we shall refer later.

OI
DISSENTING OPINION BY JUDGE AZEVEDO 354

On the other hand, there could remain the danger of private
attacks, for instance from personal enemies, who might evade all
precautions taken by the police guard.

26. But indisputable proof that the decision of the Ambassador
was not abnormal, unlawful or hasty, is to be found in the profound
change in the circumstances during the three months’ period which
elapsed between the two facts of rebellion and asylum.

It is most regrettable to be obliged to examine the merits of
political facts,. but there is no other means of considering the
problems raised by the counter-claim, and even then we are bound
to argue in a hypothetical and retrospective manner, since we are
dealing with a situation already past.

The success on October 27th, 1948, of another revolutionary
movement aggravated the situation of the refugee, especially if
he is held responsible for the distribution of the pamphlets that
have been submitted to this Court.

It may perhaps have been considered that the punitive action
instituted by the. constitutional President against the Aprist
Party was insufficient, and it has been stated, on the other hand,
that the new Government did not consider itself bound by the
policy of the preceding Government in a question such as the
qualification of asylum.

It is important to recall that a Military Junta of the Govern-
ment was set up or, as is stated in the Judgment, “‘seized the
supreme power’. Such a situation was incompatible with a real
constitution, and in the first place with that particular Con-
stitution which had been violated by the installation of this new
organ. The limitations of power which those who govern by virtue
of an act of force impose upon themselves are always deceptive,
since they proceed from a will that can be changed at any
moment. The decree of November 4th, for instance, is founded
on the powers which have been conferred upon the Junta without
its having been thought necessary to give the least explanation
concerning the source of such powers.

Thus, the monthly renewal of a state of siege, which normally
is confined to the suspension of certain constitutional guarantees,
has but little significance in the light of the unlimited scope of
the powers which the de facto government could assume in any
case; the said decree of November 4th, providing the death
penalty and simplifying the legal procedure in cases of political
crimes, is clear proof of the force of a practically unlimited power.

It is therefore possible to admit in principle that a foreign
diplomat could have serious doubts concerning the functioning
of ordinary justice. For the dismissal, under various pretexts,
not only of military judges, but also of permanent judges even

g2
DISSENTING OPINION BY JUDGE AZEVEDO 355

belonging to a Supreme Court, is not an unusual possibility in
a country which might find itself for any length of time deprived
of its normal constitutional régime. Such a possibility need not
seem surprising in the light of a famous attempt which was
made to change the majority of a court in one of the greatest
democracies of the world, although the object in that instance
concerned only the fundamental interests of the country and
consisted in transforming the economic system of the State.

It matters little whether the decree-law of November 4th was not
actually applied in the proceedings against the subordinate accused,
for, at any time, another act based upon the same unlim:ted powers
could have, by a mere stroke of the pen, given an entirely different
course to these proceedings in a manner which could not have been
foreseen in so unstable a situation.

Thus, a diplomat placed in similar circumstances could not be
certain that the old and deep-rooted cultural tradition of the
country to which he was accredited could be a sufficient obstacle
to a possible retroactive application of a new law, the intimidating
effect of which was undeniable.

It is true that a declaration made before the Court on June 15th
and October 2nd, 1950, by a constitutional government deserves
absolute respect and constitutes a guarantee against the future
application of the exceptional law in case the refugee were to
stand trial, although the task of applying a law appertains to the
judicial and not to the executive authority. But, in any case, such
a declaration is irrelevant to the situation, as it existed at a time
when it was considered easy to abandon the policy of the preceding
constitutional government (see Memorial).

The observation made by the Respondent that the Applicant
had adopted similar laws relating to the aggravation of penalties
and the simplification of procedure in cases of political offences is
not an argument in support of his case. On the contrary, if a con-
stitutional government can, in a simple state of siege, exercise
such essentially legislative functions by virtue of particular pro-
visions in its constitution, it can readily be imagined what might
happen in a case where such provisions did not exist or were only
partially applied at the discretion of the de facto authorities.

The Ambassador was able to note that proceedings were to
continue in the absence of the accused pursuant to a summons
published officially by order of the military Examining Magistrate
(see Counter-Memorial). Could he foresee that this penalty would
not be imposed by virtue of a legal provision prohibiting pro-
ceedings 7m absentia? The exact terms of this provision are not
yet known to the Court and would need explanation especially
as regards the significance of the references in the last part of the
decision reproduced in the Rejoinder. It matters little that a
moderate judgment was delivered without haste on March 22nd,
1950, against those of the accused who put in an appearance ;

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DISSENTING OPINION BY JUDGE AZEVEDO 356

for it also proclaims in an unduly anticipatory manner the main
responsibility of the leaders of Apra for events from which they
were to derive personal advantage (see Rejoinder).

27. In fact, there is only one way of appraising any question
of responsibility whatsoever, and that is to return to the condi-
tions of place, time and environment in which the events took
place, although it is possible to hesitate between a subjective and
an objective appreciation by adopting g, in the first case, the point
of view of the accused and, in the second, an abstract attitude
comparing the criticized conduct to an ideal conduct which is the
well-known criterion of bonus paterfamalias.

The approval given by the Government to the action of its
representative has not changed the aspect of the situation nor
displaced the facts a single day after January 3rd, 1949. It would
therefore not be reasonable to set against the facts, which ‘occurred
at that time, a subsequent version which has been constructed
two years after the events and at a place far removed from the
scene of those events.

The sole purpose of the diplomatic discussion was to achieve a
re-consideration of attitude in the light of reasons going as far back
as the grant of asylum. These negotiations did not succeed, and the
problem has remained in the state in which it was referred to the
Court by the text of the counter-claim.

The dispute remained the same, and it was impossible to escape
from the following dilemma: either the violation is admitted, in
which case the Ambassador was wrong in the light of the only
circumstances that may be taken into consideration, or else he was
right, in which case there can be no question of violation or even,
in an attenuated form, of lack of conformity.

If this harsh alternative is abandoned, then the only course is to
enter the field of arbitrary action, for there can be no question of
passing judgment on the personal conduct of the Ambassador, or
whether he committed an error or not, whether such an error was
excusable, or whether he should be acquitted.

28. There are other elements in the case which the Court cannot
fail to consider, especially as regards the change which has allegedly
occurred in the situation since January 3rd, with a view to deciding
whether the surrender of the refugee would make it possible to
ensure his safety.

Thus it will be seen, apart from the letter of the Minister of the
Interior of October 5th, 1948, that :

(1) on May 25th, 1949, the prosecutor denounced the refugee for
participation in the crime of homicide on the count of second-
degree instigation and on the basis of mere presumptions (see
Counter-Memorial) ;

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(2) on September 7th, 1949, another enquiry was opened into
the forgery of a document which was to benefit the party and the
refugee (Counter-Memorial) ;

(3) on September 13th, 1949, the prosecutor brings a charge
against the refugee for the crime of usurpation of authority
(see Counter-Memorial) ;

(4) on September 21st, 1949, an enquiry was opened on the
count given above under No. 3 (see Counter-Memorial) ;

(5) on December 5th, 1949, the judgment accepts in a prelim-
inary manner the accusations of homicide and offences against
the administration of justice and against the good name of the
State (see Counter-Memorial) ;

(6) on December 31st, 1049, an Examining Magistrate was
appointed who on that same day ordered the opening of two
enquiries on counts given above in No. 5 (see Counter-Memorial);

(7) on April 22nd, 1950, the enquiry into offences against the
good name of the State and the administration of justice was
completed and an order issued for the application of the provisions
of the law against the defaulting defendants without the scope
of such penalties being known (see Rejoinder).

All these facts have made it possible to argue during the oral
proceedings that “‘the municipal courts {of the country of which
the refugee is a national] consider him responsible for the assas-
sination of Grafia and for crimes against the administration of
justice and against the good name of the State, and it is on these
counts that the proceedings were instituted” (see Rejoinder).

29. My conclusion that both the main claim and the counter-
claim should be dismissed could obviously give rise to the criticism
that the deadlock would continue after the twenty-two months
which have already elapsed ; but the two Parties, whilst having
urgently appealed to the Court to resolve the dispute, have not
furnished it with the means to arrive at an independent solution
as would have been possible under Article 38, paragraph 2, of
the Statute of the Court (judgment ex æquo et bono). On the
contrary, the Parties have limited the action of the Court by
indicating only the legal data applicable to the case.

But, if the fundamental points were finally settled as suggested
in my opinion, i.e. if the Respondent were not obliged to deliver
a safe-conduct and yet were not authorized to require the surrender
of the refugee, this situation would be conducive to an agreement
compatible with the requirements of security of the territorial
State and the individual rights of man, by virtue of conditions

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relating to the protection of the fundamental interests of the
country and the dignity of its citizens.

It would therefore not be possible to speak of life imprisonment or
even indefinite imprisonment, for the question of the asvlum would
be easily solved as it was in all other cases where a dispute arose.

30. in the circumstances, if the principal Applicant is dismissed
by an admisson of the counter-claim, I wonder whether the
Respondent, who up to now has not demanded the surrender
of the refugee, will not be nduced to do so in accordance with
the reservation made in that connexion (see Counter-Memorial).
I wonder what the attitude of the principal Applicant may be
if such a claim were made, or even whether, in the absence of
any request, the Respondent would not compel the refugee to
leave the Embassy. I wonder whether both sides will not be led
to admit that the surrender of the refugee to territorial justice
is the only solution. If that were so, then it would happen that
after hundreds of cases of asylum, we might witness, and for
the first time—at any rate as regards Latin America—the
surrender of a political offender to territorial justice, whether
civil or military. I wonder if, in that event, that justice would
try him not only for the political offence with which he is charged,
but even for common crimes, applying to. him that curious
Article 248 of the Military Code of Justice which provides that,
when the real authors of related crimes are not known, it is per-
missible to punish the principal leaders of the rebellion. Such
results appear to me to be contrary to the idea of asylum to
political offenders, which prevails in Latin America.

(Signed) Pu. AZEVEDO.

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