Case Study of Public International Law

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Asylum case
Columbia v Peru ICJ, 1950

Principle: In order to get the validity of international customary law it has to satisfy the material test. That is the practice must be uniform and consistently.

Fact of the case: Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one military rebellion broke out in Peru which is organized and directed by the American People’s Revolutionary Alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian Government issued a warrant for his arrest on criminal charges related to this political uprising. He fled to the Columbian embassy in Lima seeking for asylum from them. Columbia the requested permission from Peru for Haya de la Torre’s safe passage from the Columbian embassy, through Peru, goes to Columbia. Peru refused to give such permission. Columbia then brought this suit against Peru in the International Court of Justice, based on the agreement made by both named Act of Lima.

Fact in issue:
1. Based on conventions, which in force between both countries, and in general from American international law, whether Columbia competent, as the country granting asylum, to qualify the offence for the purpose of said asylum?

2. Was Peru bound to give the guarantees necessary for the departure of the refugees from the country, with due regard to the inviolability of his person?

Decision of the case:

1. Columbia was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. 2. Columbia was not entitled to claim that the Peru was bound to gives guarantees necessary for the departure of Haya de la Torre, with due regard to the inviolability of his person. 3. Peru counter-claim that Haya de la Torre was an accused of a common crime was rejected; therefore it was not in accordance with Article I, Paragraph I of the Havana convention. 4. Peru Counter-claim that the grant of asylum by the Columbian government to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of the Havana Convention was approved by the court.

Reasoning
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 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 procedure in this case shall be the ordinary procedure; (b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the Parties may exercise its right to choose a judge of its nationality; (c) that the case shall be conducted in French. Fourth: This document, after it has been signed, shall be communicated to the Court by the Parties" On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the name of the Colombian Government. After stating that Colombia asserts: "(a) That she is entitled in the case 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...
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