ASYLUM CASE- (Case Commentary)

INTRODUCTION

This is the landmark case of Public International Law. It is also known as "Columbia v Peru, and was decided under the International Court of Justice (ICJ), on 20^th November, 1950". It is mainly based on diplomatic asylum. In this case, the International Court of Justice explained the distinction between territorial asylum and diplomatic asylum. In this case, Colombia provided asylum to the Peruvian who was accused of an offense committed against the Peruvian government but the Peruvian government denied the safe passage of the offender from Peru. Hence, the dispute arises between Colombia and Peru.

BACKGROUND

The political leader who was a Peruvian national Victor Raul Haya De La Torre was accused of waging a military rebellion, was given Asylum in the Columbian embassy at lima on 3^rd January, 1949, after his faction lost a one-day civil war in Peru.

As the Colombian Government allotted him Asylum but the Peruvian government (i.e) his territorial state refused to allow his safe passage out of Peru.

Columbia asserted that according to the available conventions like the Bolivian Agreement of 1911 on Extradition, Article 2(2) of the Pan-American Havana Convention on Asylum (1928) on Asylum, Article 2 of Montevideo Convention on Political Asylum of 1933, and according to American International Law they were empowered to decide if Asylum should be granted and their unilateral decision was unalterable as well as binding on Peru.

ISSUES RAISED

·         Whether Columbia was competent to afford asylum and was authorized to decide. whether the offense committed by the refugee was a political offense or a common offense?

·         Whether the territorial state i.e. Peru was bound to provide the necessary guarantee to enable the refugee to leave the country safely?

·         Whether Colombia violated Article 1 and 2 (2) of the Pan-American Havana Convention on asylum (1928) while granting asylum and would continuing maintenance of asylum be a violation of the treaty?

ANALYSIS

·         Firstly, the judgment given in this particular case in favour of Peru can be considered fair and just as the court stated that normally only a diplomatic representative is competent to make a provisional qualification of the offense for granting diplomatic asylum, the territorial State has the right to agree or disagree to this qualification. But  In This case, Columbia asserted that according to the available conventions like the Bolivian Agreement of 1911 on Extradition, Article 2(2) of the Pan-American Havana Convention on Asylum (1928) on Asylum, Article 2 of the Montevideo Convention (1933) on Political Asylum and according to American International Law they were empowered to decide if Asylum should be granted and their unilateral decision was unalterable as well as binding on Peru. Whereas, The court held that there was neither expressed nor implied right of unilateral qualification of the State that affords asylum under the Pan-American Havana Convention of 1928 on asylum or related principles of international laws. The Montevideo Convention on the asylum of 1933, which accepts the right of unilateral qualification, and on which Colombia depend upon to justify its unilateral qualification, was not approved by Peru.

·         Secondly, The Convention, in itself was not binding on Peru, and considering the low approval, the provisions of the latter Convention cannot be said to show customary international law but Colombia asserted that regional or local customs support the qualification made. Whereas The court held that the burden of proof on the existence of said customary law stays on the party making the allegation. Colombia was not able to prove the existence of a regional custom as it failed to prove 2 most important essentials of the valid custom (i.e.) consistent and uniform usage of the said custom by concerned States. The variations and contradictions in State practices did not support uniform usage (for eg. Mendelson, 1948 and Nicaragua case, the legal impact of variations in State practice). The court also stated that the fact that a particular State practice was prevalent because of political tactics and not because of a belief that the said practice is binding on the State by way of a legal obligation (Opinio Juris) is detrimental to the formation of customary law (as North Sea Continental Shelf Cases and Lotus Case for more on opinio Juris).

·         Hence, in my opinion, it was concluded that Colombia, as the State granting asylum, was not competent to qualify whether the offense committed by the refugee was a political offense or common offense, a unilateral and definitive decision, and was not binding on Peru.

·         Thirdly, there was no legal obligation on Peru to provide the necessary guarantee to enable the refugee to leave the country safely either because of the Havana Convention or customary law because In the case of the Pan-American Havana Convention on asylum (1928), as Article 2 of the same states that territorial state (Peru) will be under obligation to guarantee safe passage only if it requests the asylum affording State to send the person granted asylum outside its national territory. In this case, the Peruvian government had not asked the refugee to leave Peru. On the contrary, it opposed the legality of asylum afforded to him and denied to guarantee to leave the country safely.

·         Fourthly, Article 2 (2) of the Pan-American Havana Convention on the asylum of 1928 states that "Asylum afforded to political offenders in legations, warships, military camps or military aircraft, shall be given respect to the extent in which allowed, as a right, by the customs, the conventions or the laws of the country in which granted according to the following provisions:

(1) Asylum may not be afforded other than  urgent cases and for the period of a crucial time for the refugee in need of asylum to ensure his safety." So, an essential requirement for the granting of asylum is the urgency or, in other words, the presence of "an impending or continuous danger to the life of the refugee". The Court held that asylum is granted irregularly because 3 months had passed after the suppression of the military rebellion which clearly represents that the emergency prescribed by Havana conventions as a condition for regularity of asylum ceased to exist.

·         Fifthly, the refugee, in this case, was accused of an offense but he could not be tried in a court because Colombia afforded him asylum. The court held that "protecting the refugee from the process of important and regular legal proceedings" was neither justified nor explained under diplomatic asylum. Diplomatic asylum means the person demanding asylum is within the territory of the State. A decision to afford diplomatic asylum includes a derogation from the sovereignty of that State. It removes the wrongdoer from the jurisdiction of the territorial State and constitutes an intervention in matters which are solely under the competence of that State. Such a derogation from territorial sovereignty cannot be admitted unless its legal basis is provided in each particular case. Asylum may be afforded on "humanitarian grounds to safeguard political prisoners against the violent and unlawful actions of reckless sections of the society." (for example, during a mob lynching where the territorial State is unable to safeguard the offender). But Refugee, in this case, was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.

·         Hence, the grant of an asylum to a refugee in this case and reasons for its continuation were violative of Article 2(2) of the Havana Convention on asylum, 1928.

·         Sixthly, the judgment provides asylum is not a speedy or instant act which ends with the moment of admission, of refugees to an embassy. Affording of asylum results in and, logically implies, a state of protection, the asylum is afforded as long as the continued presence of the refugee in the embassy continues this protection.

CONCLUSION

Thus, in the above case refugee, Victor Raul Haya De La Torre was a military rebellion. He committed a political offense which was declared to be the common offense of murders by ICJ also he was not falling under any urgent case where need to grant asylum to protect his personal life from any danger was required rather he was being provided with the safe exit from the process of regular legal proceedings and if such step of granting asylum by Colombian government was approved by ICJ then it would have been violative of the sovereignty of the state Peru, Article 2 and 2(2) of Pan-American Havana Convention on asylum (1928).

- Kanika Mahajan

Rayat Bahra University.