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 Andres 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, duty designated by their respective Governments to
negotiate and draw up the [p268] 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 Raul 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:
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.
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.
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
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' ", [p269]
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
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 20th, 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
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
The Pleadings having been deposited within the time-limits prescribed in the
Order of October 20th, 1949, as extended by Orders of December 17th, 1949,
and May 9th, 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
Joaquín 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 Soldán, 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 9th, 1950. [p270] 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 10th, 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 particular from the Bolivarian
Agreement on Extradition of July 18th, 1911, and the Convention on Asylum of
February 20th, r928, 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 Raul 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 Raul Haya de la Torre was made in violation of Article 1, paragraph
r, and Article 2, paragraph 2, item 1 (inciso 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 Pleadings, the following
final submissions were presented to the Court orally and confirmed in
On behalf of Colombia:
(on the claim) [p271]
"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 20th, 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 Raul Haya de la Torre from the country, with due regard to the
inviolability of his person."
(on the counter-claim)
"I. That the counter-claim presented by the Peruvian Government on March
21st, 1950, is not admissible because of its lack of direct connexion with
the Application of the Colombian Government;
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
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 Government 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 Raul Haya de la Torre was made in violation of Article r, paragraph
r, and of Article 2, paragraph 2, item 1 (inciso primer0), of the Convention
on Asylum signed in r928, and that in any case the maintenance of the asylum
constitutes at the present time a violation of that treaty."
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 Raiil 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 10th by
the Public Prosecutor, who stated that the subject-matter of the proceedings
was the crime of military rebellion.
On October nth, 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'etat and seized the supreme
power. This Military Junta of the Government 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
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 [p273]
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 2nd and December 2nd, 1948, and on January 2nd, 1949.
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
"I 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 Víctor
Raúl 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 Señor Haya de la Torre may leave the
country with the usual facilities attaching to the right of diplomatic
On January 14th, the Ambassador sent to the Minister a further note as
"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 Víctor Raúl Haya de
la Torre as a political refugee."
A diplomatic correspondence followed, leading up to the Act of Lima of
August 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
20th, 192S, 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 [p274] 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 qualification. 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 Government 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
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 [p275] 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
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 Convention 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:" [p276]
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 Montevideo 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
ratifications 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 Convention 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 Montevideo 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
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 [p277] international custom "as evidence of a general practice accepted as
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 Convention 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 [p278] from having by its attitude adhered
to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a
rule concerning the qualification of the offence in matters of diplomatic
In the written Pleadings and during the oral proceedings, the Government of
Colombia relied upon official communiques published by the Peruvian Ministry
of Foreign Affairs on October 13th 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
"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 Raul 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 submission 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 counterclaim 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: [p279]
"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 i 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: [p280]
"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 Raul Haya de la Torre was made in violation of
Article 1, paragraph 1, and Article 2, paragraph 2, item 1 (inciso primero),
of the Convention on Asylum signed in 1928, and that in any case the
maintenance of the asylum constitutes at the present time a violation of
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 wrongfully 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 surrender 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 correspondence submitted by the
Parties or at any moment in the proceedings before the Court, and in fact
the Government of Peru has not requested that the refugee should be
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 [p281] 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 I, paragraph I, and Article 2,
paragraph 2, of the Havana Convention.
Under Article 1, 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 [p282] 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 counterclaim, 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 concerning the Havana Convention
in general and Article 2 in particular.
The object of the Havana Convention, which is the only agreement 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 1 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 imminence 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
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 [p283] 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 i6th/i8th,
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 Embassy. 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 responsible 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 subordination 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. [p284]
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 institutions 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 1 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
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 tribunals. 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 equivalent 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
proceedings against Haya de la Torre, as appears from the foregoing recital
[p285] 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 prominent 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
Indeed the diplomatic correspondence between the two Governments 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 Haj'a 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, [p286] 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 Reply of the Government of
Colombia and during the oral statements. 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
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. [p287]
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 qualification 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 obligations" alleged to be- binding on the Government of
Peru. In thus expressing itself, the Government of Colombia definitively
proclaimed 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 19th, 1949; of the Ambassador of Colombia
of March 28th, 1949).
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 protection 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,
1949, 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, paragrajm 2, of the Havana Convention. [p288]
This finding renders superfluous the addition to the counterclaim 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,
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 i, paragraph
I, 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. [p289]
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 transmitted to the Governments of the
Republic of Colombia and of the Republic of Peru respectively.
Judges Alvarez, Badawi Pasha, Read and Azevedo, and M. Caicedo, 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 dissenting opinions.
Judge Zoricic, 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 conformity 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.
DISSENTING OPINION BY JUDGE ALVAREZ
Importance of.the Colombian-Peruvian Asylum case. Questions which should be
The dispute between Colombia and Peru concerning asylum is of great
importance for the countries of the New World who await the Court's answer
with lively interest. This dispute also presents considerable importance for
all the other countries, since asylum has been written into the Universal
Declaration of Human Rights, which was adopted at the Third Assembly of the
To have an exact idea of the case now before this Court, it is necessary to
consider, in addition to the facts, the following questions in their broad
I° Unilateral acts in international law. Their nature.
2° Asylum in Europe. Asylum in Latin America. The social and political
environment in which asylum is practised in these countries.
3° Does there exist an American international law? Characteristics of this
law, especially at the present time.
4° Does there exist a customary American international law on asylum ?
Conventional American international law on the subject.
5° The Convention on Asylum which was adopted at the Sixth Pan-American
Conference of Havana in 1928 and was ratified by Peru and Colombia. Scope of
the provisions of this Convention.
Unilateral acts in international law. Their nature.
A distinction must be made in international law between unilateral acts, or
acts which are the result of the will of one State alone, and multilateral
acts in which the will of two or more States participate.
Unilateral acts occupy an important place and play an important role in
international law. I shall not expatiate upon this point but shall confine
myself to giving three examples of this kind of act : I° those which concern
the freedom of the individual and the sovereignty of States, on the one
hand, and the sovereignty of one or more States, on the other; 2° some acts
relating to conventional international law; 30 certain acts which relate to
Acts under the first head refer particularly to the admission of aliens to a
State, immigration, refuge, asylum, extradition, internment and expulsion,
The acts of the second category arise in connexion with certain conventions:
the latter may be adhered to, denounced, etc.; moreover, some conventions
may contain certain special provisions as, for instance, those excluding
from arbitration those questions which related to the vital interests of the
Finally, in the third category are included unilateral acts qualifying
certain individuals as persona grata or persona non grata, desirable or
In all the cases mentioned above, the appreciation of the facts or
circumstances depends on the will of one of the parties.
In certain cases, this unilateral appreciation may not be disputed; it may
at most be criticized. For example, in matters of immigration—an important
economic and social phenomenon in the lives of American countries—it is the
State in which the immigrants wish to settle which appreciates unilaterally
whether they should be admitted and, if so, under what conditions. The
result of such an appreciation may be prejudicial to the interests of
thousands of persons who wish to emigrate to these countries, as well as to
the interests of their national State; but nobody disputes the fact that the
government of the receiving country has the right to act unilaterally and
that its decisions cannot be disputed.
In other cases, the unilateral appreciation may be challenged by the party
concerned; this is precisely what happens in the case of asylum.
All these unilateral acts in their above-mentioned form are the consequence
of the individualistic regime and the absolute sovereignty of States.
To-day, under the new regime of interdependence, which is now emerging, this
matter must undergo important changes which need not be considered here.
Asylum in Europe. Asylum in the countries of Latin America. Social and
political environment in which asylum is practised in these countries.
Until the present day, asylum has been considered as a humanitarian and
transitory measure intended to protect individuals against angry mobs or
even against the abusive actions of the authorities of the State on the
territory of which they reside. Asylum has therefore a juridical, political
and psychological aspect, and this distinction has not always been properly
No precise rules have been laid down in international law in respect of
asylum. There has been general agreement, however, on two points: asylum
shall be granted only to political offenders and not to persons guilty or
accused of having committed a common [p292] crime, and that the State of
refuge is competent to appreciate provisionally the nature of the offence
committed by the refugee.
Asylum has been practised in Europe ; but since the middle of the xixth
century it is especially the countries of Latin America which have resorted
to asylum because of the frequent revolutions and civil wars in certain of
In this connexion, it is essential to make a preliminary observation.
In order to understand an institution and to give an adequate solution to
the questions which it raises, it is necessary to know the political and
social environment which gave it birth, and to consider how the institution
has been applied.
The Latin-American environment is very different, in matters of asylum, from
the European environment.
The aim of the revolutionary movements which occur in certain Latin-American
countries is either to change the existing political order, or to enable a
"caudillo" to assume power. The leaders of such movements consider that they
will be able, in the event of failure, to seek refuge in foreign embassies
or legations and asylum is readily granted to them; it has sometimes even
been granted to leaders of barrack mutinies which had been quickly
Asylum, in these countries, is regarded as a consequence of the
ex-territoriality of the premises on which it is granted and not as a
diplomatic protection ; it is consequently considered that such asylum in no
way constitutes an intervention or a limitation of the sovereignty of the
territorial State, but rather that it is the legitimate exercise of a
Sometimes the government of the territorial State places a police guard over
the approaches of premises sheltering the refugee in order to prevent the
latter from escaping from the local authorities, should he leave his place
Sometimes, also, the diplomatic agent who has granted asylum requests the
local authorities to grant a safe-conduct enabling the refugee to leave the
country in safety.
In leaving his place of asylum, with or without a safe-conduct, the refugee
frequently intends to continue his activities from the country to which he
is proceeding ; and it has happened that certain politicians, after
returning to the country which they had been forced to leave, have
subsequently held very important office there, including even that of head
of the State.
During revolutionary disturbances, common crimes or offences are frequently
committed, such as murder, looting, arson, etc.
In view of the importance of asylum in Latin-American countries, these
countries have followed certain practices and have regulated the matter by
conventions. By virtue of this fact, the institution of asylum is part of
what is termed American international law or rather Latin-American
international law. [p293]
Thus, asylum in Latin America should be considered in the light of the
environment to which I have just referred; it is with this environment in
mind that we should interpret the provisions of conventions on asylum, fill
any gaps they may contain and examine the tendency which asylum ought to
assume in the future.
Is there an American international law? Characteristics of that law,
especially at the present time.
In the written Pleadings and in the oral statements, reference has been made
to American international law and its existence has been recognized ; but
opinions have been expressed concerning its nature, content and future,
which make a clarification necessary. This clarification is of special
importance for America.
In the present case, Colombia has asked that the principles of American
international law be applied to the solution of the present case and that
the international spirit of the continent be also taken into consideration.
As far as international law is concerned, the States of America have, since
their independence, wished to modify that law so as to bring it into harmony
with the interests and aspirations of their continent. Pan-American
conferences, particularly that of Buenos Aires in 1936 and that of Lima in
1948, proclaimed certain principles as belonging to American international
This expression "American international law" has been accepted in various
ways which need not be mentioned here. This expression does not mean, as may
appear at first sight and as many would have us believe, an international
law which is peculiar to the New World and entirely distinct from universal
international law, but rather the complex of principles, conventions,
customs, practices, institutions and doctrines which are peculiar to the
Republics of the New World. Certain jurists have sought to call this complex
the "peculiarities of international law in America". This is merely a
question of terminology. The designation "American international law" has
I have referred to the "Republics" of the New World because Canada, which is
a British Dominion, and the European colonies in America, did not
participate in Pan-Americanism or in the establishment of American
If certain precepts, which are held to be universal, are not accepted by the
countries of the American continent, it is obvious that they no longer have
that character; and if American precepts are not recognized by the countries
of other continents, they must be applied only in the New World.[p294]
A principle, custom, doctrine, etc., need not be accepted by all of the
States of the New World in order to be considered as a part of American
international law. The same situation obtains in this case as in the case of
universal international law.
American international law is binding upon all the States of the New World;
it is also binding upon the States of other continents in matters affecting
America, such as immigration, the security zone of the continent in time of
American international law has its sub-divisions, such as, for instance,
Latin-American international law or the law of the Latin Republics of the
New World, which is not binding upon the United States.
American international law has exercised a considerable influence over
universal international law and has given it its peculiar character; many
concepts or doctrines of American origin have achieved or tend to achieve
universal acceptance and many concepts of a universal nature have, or tend
to have, a special application in the New World. The influence of that law
has increased since the last world war. The number and especially the
quality of the institutions and principles which have lately appeared in
America and which tend to be incorporated in new international law is truly
Since the last social upheaval, there exist not only an American
international law, but also a European international law, and an Asian
international law is in the process of formation. And apart from these three
international continental systems of law, another important international
system of law is emerging— Soviet law.
It has been maintained during the hearing that American international
law—and consequently other international continental systems of law—must be
subordinated to universal international law, and Article 52 of the United
Nations Charter has been invoked in support of this view. Such a statement
is not accurate. Article 52 in question refers only to regional agreements
relating to the maintenance of peace and not to continental systems of law.
Such systems of law are not subordinate to universal international law, but
correlated to it.
Universal international law thus finds itself to-day within the framework of
continental and regional law; and all such legal systems adopt new trends in
accordance with those indicated in the preamble and Chapter I of the United
Nations Charter; such trends reflect entirely American, international
Does there exist a customary American international law on asylu ? American
international conventional law on the subject.
The institution of asylum is a part of Latin-American international law
because that institution is applied in the Latin countries of the New World
in a special manner; it is not part of the continental American
international law, since the United States have never admitted asylum.
In view of the fact that asylum is utilized when the political order within
a country is disturbed, and inasmuch as the situation resulting from this
disorder may vary considerably, there is no customary American international
law of asylum properly speaking ; the existence of such a law would suppose
that the action taken by the Latin States of the New World was uniform,
which is not at all the case : governments change their attitude according
to circumstances and political convenience.
But if there is no customary Latin-American international law on asylum,
there are certain practices or methods in applying asylum which are followed
by the States of Latin America. These may be summarized as follows:
I° Asylum is granted only in cases of -political offence and not to common
2° Asylum is granted in accordance with the laws and usages of the State of
refuge, and it is for the latter to appreciate whether the offence committed
by the refugee is a political offence or a common crime.
3° The territorial State may request the departure of the refugee from its
territory and the State of refuge may then require the former State to
deliver a safe-conduct enabling the refugee to leave the country safely.
4° The State which granted asylum sometimes, with the same end in view,
requests that a safe-conduct be issued to the refugee.
In view of the importance of asylum in Latin-American countries, the matter
has been regulated in a number of bilateral or multilateral conventions.
The Latin-American States have signed in particular: the Bolivarian
Agreement on Extradition of July 18th, 1911 ; the Convention on Asylum
adopted at the Sixth Pan-American Conference of Havana, 192S ; the
Convention on Political Asylum adopted at the Seventh Pan-American
Conference of Montevideo of 1933 ; the Treaty on Political Asylum and Refuge
adopted at the Second South-American Congress of International Law at
Montevideo in 1939. [p296]
As regards the first of these conventions which refers solely to
extradition, Colombia argues that it is also applicable to asylum in view of
Article 18, which lays down that "aside from the stipulations of the
present agreement, the signatory States recognize the institution of asylum
in conformity with the principles of international law". I agree with the
Court that this claim is unfounded.
The Convention on Asylum which was adopted at the Sixth Pan-American
Conference of Havana in ig28 and ratified by Colombia and Peru. Scope of its
It has been rightly argued that the solution to the present case must be
sought especially in the provisions of the Havana Convention of 1928 on
Asylum, on the grounds that this Convention was ratified by Colombia and
Article 1 of this Convention enacts:
"It is not permissible for States to grant asylum in legations, warships,
military camps or military aircraft, to persons accused or condemned for
common crimes, or to deserters from the army or navy.
Persons accused of or condemned for common crimes taking refuge in any of
the places mentioned in the preceding paragraph, shall be surrendered upon
request of the local government...."
Article 2 provides:
"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:
First: 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.
Second: immediately upon granting asylum, the diplomatic agent, commander of
a warship or military camp or aircraft, shall report the fact to the
Minister of Foreign Relations of the State of the person who has secured
asylum, or to the local administrative authority, if the act occurred
outside the capital.
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, with due regard
to the inviolability of his person, from the country...." [p297]
The provisions of this Convention should be considered in the light of the
Latin-American spirit as well as of the social and political environment in
which asylum is practised in Latin America.
In respect of Article 1, it must be pointed out that it is the State from
which the asylum is requested that must decide whether it wishes to grant it
or not. There are certain countries, such as the United States, which never
There was considerable discussion as to the meaning of the word accusation
referred to in this same article. It was correctly argued that this term
must be construed in its ordinary juridical meaning: proceedings instituted
before a judicial authority of the country at the request of a third party,
or automatically by that authority. But a second condition must be added:
the accusation must refer to acts directly committed by the accused, and not
to acts committed by others in connexion with an insurrection or a
revolutionary movement for which the refugee is sought to be held
responsible as a leader of that movement.
There was also long debate as to who is competent to appreciate the nature
of the offence committed by the refugee. This appreciation must naturally
appertain to the State granting asylum ; if it appertained to the
territorial State, the institution of asylum would be rendered nugatory, for
it would be sufficient for that State to affirm that the refugee was guilty
of a common crime and he would then have to be handed over.
There must, however, be no misunderstanding as to the scope of the
qualification of the offence made by the State of refuge; it should not be
assumed that the State which makes that qualification has the last word in
this respect, and that its appreciation is definitive and irrevocable. This
qualification may be questioned by the territorial State, and if agreement
cannot be reached in this respect, the case must be submitted to arbitration
or to another means of peaceful settlement. Thus, in the last resort, it is
a third party, or international justice, which decides on the nature of the
It has been claimed that if Peru had ratified the Montevideo Convention of
1933, Article 2 of which provides that "the judgment of political
delinquency concerns the State which offers asylum", that country would be
bound by this provision and consequently would be unable to raise an
objection to the qualification made by Colombia. That is not so; even in
such a case Peru would be entitled to question the qualification since such
a prerogative is not excluded by Article 2 above.
There has also been much debate on the meaning of political offence. It has
been contended that we should confine ourselves in this connexion to the
legislation of the country where the offence was committed. This is
inadmissible, for in their legislation, States ordinarily qualify as a
common crime certain acts, such as insurrection, which are manifestly
political offences. The qualification of [p298] the offence should be made
by the international legal authority whose task it is to decide in the
International law contains no precise rules on the subject, but the numerous
precedents in existence may serve to provide general directives. It may be
said that any act which purports to overthrow the domestic political order
of a country must be regarded as a political offence; in that sense even
murder may sometimes be termed a political offence. This consequently also
applies to military rebellion.
Since the two last world wars, two new categories of offences have been
established : international offences such as violation of the rights of the
individual, genocide, etc., and crimes against humanity, the chief one being
responsibility for instigating a war.
These two categories of offences cannot be qualified as political.
It is therefore the international judicial authority, as already stated,
which decides in the last resort, whether or not the offence is political;
and in order to do so, it must be guided not by national legislations, but
by the considerations of international justice referred to above. This
predominance of international law over national legislations is one of the
foundations of the new international law.
In normal times, a State may not grant asylum to an individual for the
purpose of removing him from the authorities of his country; but a State is
entitled to grant such asylum in abnormal times in the case of a political
offence; in such a case protection of the individual and humanitarian
considerations come into play.
Article 2 of the Havana Convention has given rise to important discussions
on the question of urgency.
If an international tribunal may easily give a decision on the qualification
of an offence because this matter is a question of law, that is not the case
with regard to urgency which is a matter of fact, and which may change
according to the circumstances of each case; what is considered urgent by
one State need not be considered urgent by another, and what is urgent in
some circumstances is no longer urgent in others. Moreover, urgency should
not be appreciated retrospectively, long after the events in question; it
should be considered from the standpoint of the time at which the events
The meaning of the term "urgency" should be interpreted in accordance with
the nature of asylum in Latin America, i.e., the need to act with utmost
speed in a given situation. There is no urgency in a case which involves
only the possibility of an individual being persecuted, but there is urgency
if he is already being persecuted and consequently faces an immediate
It is for the State of refuge to appreciate whether or not there is urgency
to grant asylum at the time it is requested. If the territorial State
considers that there was no urgency at the time, it [p299] must immediately
present a claim: any delay in the presentation of such a claim is a ground
for its rejection, for in such a case the territorial State may be presumed
to have admitted that urgency existed.
The same Article 2, "First", provides that asylum must be granted "for the
period of time strictly indispensable for the person who has sought asylum
to ensure in some other way his safety". This provision does not apply if a
dispute has already arisen between the State of refuge and the territorial
State concerning the regularity of the asylum; such a dispute suspends the
effect of the provision in question and asylum may then continue until the
dispute is settled.
Another very important point referred to in Article 2 is that of a
It has been claimed that it is only when the territorial State has demanded
the departure of the refugee from its territory that the State of refuge
may, in turn, require the delivery of a safe-conduct to enable the refugee
to leave in safety.
A strict compliance with the terms of Article 2 would be tantamount to a
disregard of the nature of asylum, for if the territorial State failed to
demand the departure of the refugee, the latter would be compelled to remain
indefinitely on the premises where he was granted asjdum. Besides, the
provision contained in "Third" of Article 2 above, is not exclusive in
character ; it does not mean that only the territorial State is entitled to
demand the departure of the refugee. If such had been the intention of the
authors of that provision, they would have stated so expressly, especially
since, in practice, it is frequently the State of refuge that has requested
a safe-conduct to enable the refugee to leave the country.
It should be pointed out that the Government of Peru, which puts a
restrictive interpretation on "Third" of Article 2, has on several occasions
granted safe-conducts at the request of the diplomatic agent to persons who
had been granted asylum in foreign embassies or legations. (See Memorial of
the Government of the Republic of Colombia.)
There is therefore a gap in Article 2.
The Havana Convention of 1928 has other important gaps. First of all, it
does not provide for the case of a refugee who is not a political offender
but the head of a State, overthrown by a revolution and seeking protection
from persecution at the hands of the victors ; in such a case delivery of a
safe-conduct is a necessity.
Nor has the case been provided for in which the diplomatic agent who granted
asylum no longer wishes to maintain the asylum, and chooses to provide for
the departure of the refugee whilst the territorial State objects to that
Another gap in the article concerns the safe-conduct: no allowance is made
for the territorial State to deliver a restricted safe-[p300] conduct, so
as to ensure that the refugee would not escape the action of justice in the
event of his being subsequently sentenced in the said State for a common
crime, or so as to prevent the refugee from seeking refuge in a country
whence he might continue his conspiracy.
We shall see how the Court could, in the present case, interpret certain
provisions of the Convention of 1928 and fill the above-mentioned gaps,
especially with respect to the request for a safe-conduct.
A. First submission of the Application of the Government of Colombia.
The Government of Colombia, in its Memorial and in its Reply, asks the
Court, as a first submission, to adjudge and declare : "that the Republic of
Colombia, as the country granting asylum, is competent to qualify the
offence for the purpose of said asylum....".
In its judgment, and basing itself on the written and oral arguments
furnished by the Government of Colombia, the Court declares that this
submission should be interpreted 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 upon Peru. This submission is
rejected by the Court.
I have previously pointed out that, according to the principles of
international law, the qualification of the offence appertains to the
country granting asylum, but that such qualification is not definitive ; the
territorial State may contest it, precisely as Peru has done, and it is then
for the Court to resolve the dispute arising from that contestation.
I therefore consider that the Court could have expressly declared that,
according to the documents submitted, Haya de la Torre is accused of
military rebellion, which is not a common crime but a political offence. The
judgment of the Court only contains an implicit declaration to that effect,
by rejecting the first submission of the counter-claim of Peru.
B. Second submission of the Application of the Government of Colombia.
I stated previously that there was a gap in the Havana Convention of 1928
with respect to the request by the State of refuge for the delivery of a
safe-conduct to the refugee.
To bridge this gap, the Court would actually have had to create the law as
it did in its Advisory Opinion of April nth, 1949, which, indeed, concerned
a much more important matter than the present case, since it referred to the
recognition of the right of the [p301] United Nations to submit
international claims in certain cases—a right which had not been bestowed
upon it by the Charter which brought the Organization into existence.
Among the factors which could have guided the Court are especially the ideas
prevailing in the New World on the subject of asylum, the fact that,
according to Article 2 of the Havana Convention, asylum should be of short
duration and that the refugee should be able rapidly to find safety by some
other means. But the delivery of a safe-conduct by the territorial State is
precisely the means which makes this double purpose possible. An
unjustifiable refusal to grant a safe-conduct would force the State of
refuge to keep the refugee indefinitely, which would be contrary to the
nature of asylum.
But before the delivery of such safe-conduct may- be requested, there must
be no contestation of the legality of the asylum, or if such a point arose,
it should have been previously settled; otherwise the State of refuge would
elude the objections raised by the territorial State. In the present case,
this legality has been contested by Peru which maintained that the offence
committed by Haya de la Torre was not a political offence and especially
that no case of urgency existed at the time at which asylum was granted. The
Court on that last point found for Peru; in the circumstances Colombia has
no reason to request a safe-conduct for Haya de la Torre.
One of the grounds for sometimes refusing to deliver a safe-conduct is the
fear that the refugees may continue their political activities abroad. That
fear is to-day greatly diminished because the view is emerging according to
which one of the obligations of States is to prevent conspiracies being
directed from their territories against another State. The "Declaration of
the great principles of modern international law", which has been adopted
by several important learned societies, provides this obligation in its
Article 25 (C). A similar provision is embodied in the Declaration of the
rights and duties of States which was drafted by the Codification
Commission of the United Nations.
Should the former refugee participate in such conspiracies while in a
foreign country, the State against which they are directed may require the
government of the foreign State to take the necessary measures in this
In any case, if Peru wishes spontaneously to deliver the safe-conduct which
has been requested, it may do so in such a manner that Haya de la Torre is
unable to escape the sentence that may be pronounced against him by the
Peruvian authorities, and that he may be extradited from the country in
which he then finds himself. [p302]
The counter-claim of Peru.
The counter-claim of Peru is based on two grounds.
The first is the violation by Colombia of Article 1, paragraph 1, of the
Havana Convention. The Court has rejected that claim, probably because it
considers that the offence of which Haya de la Torre is accused is not a
The second reason invoked by Peru is that Colombia granted asylum to Haya de
la Torre in violation of Article 2, paragraph 2, of the Havana Convention,
according to which "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".
I have previously pointed out the scope of this provision in so far as
urgency is concerned.
At the time at which Haya de la Torre requested asylum, he was in a most
critical situation, and he was by no means in safety. In the written Reply,
the Government of Colombia has explained the nature and magnitude of the
danger which threatened Haya de la Torre.
It is in the light of that situation that the diplomatic agent of Colombia
decided to grant asylum. I consider that he was able to appreciate exactly,
and better than anyone else, the urgency for such action.
The fact that several foreign embassies and legations had granted asylum in
Peru to various persons who had participated in the same revolutionary
movement as Haya de la Torre, further confirms this urgency. Moreover, Peru
has only recently invoked the absence of urgency.
As regards the last part of the counter-claim of Peru, submitted on October
3rd, 1950, and relating to the unlawfulness of the maintenance of asylum, I
cannot consider it well founded, since there existed a dispute concerning
the lawfulness of asylum, and that such a dispute warranted the maintenance
of the asylum.
(Signed) A. Alvarez.
DISSENTING OPINION BY JUDGE BADAWI PASHA
I share the opinion of the Court on the various conclusions except those
relating to the American practice, the "question of urgency", and the
maintenance of asylum until August 31st, 1949, the date of the Act of Lima.
To explain my dissent on the question of urgency, it will be necessary to
recall the circumstances in which asylum was granted on January 3rd, 1949,
and which are set out in the judgment of the Court.
Relying on these and certain other circumstances, Colombia has sought to
imply that Peruvian justice, as a result of the events of October 3rd, was
not, and could not be administered in an objective and impartial manner. I
do not consider that it is necessary for the Court to examine this argument.
The only issue before the Court is the validity or regularity of the asylum
and the interpretation of the Convention of 1928. This question must and can
be resolved without its being necessary to appreciate the operation of
ordinary justice in the territorial State, because no measure, not even a
state of siege, adopted by a de jure or a de facto government, was ever
inspired by a desire to influence that justice, or aimed at such a result.
The denunciation by the Minister of the Interior, which has been described
as an injunction to justice, is, in spite of its violent attack on Apra,
quite usual for such denunciations.
On the other hand, in the opinion of Peru, the cases of urgency referred to
in Article 2, paragraph 2, "First", seem to be none other than pursuit by a
furious mob or the action of arbitrary justice, exercised by a political
faction against its adversaries or in conditions which evidently preclude
all guarantees of an impartial and objective examination. The danger of
legal proceedings for political offences could consequently not be
considered as a case of urgency within the meaning of the above-mentioned
The Havana Convention of 1928 gives no definition of "urgent cases". That
Convention is the only instrument to have used the expression. With the
exception of the Montevideo Convention of 1933, the object of which was
merely to define the terms of that of 1928, and which consequently does not
regulate the question in its [p304] entirety, the Conventions of 1889 and
1939 make no reference to the matter of urgency.
Indeed, can these terms be defined? This is open to doubt. The conception of
urgency is essentially variable and relative. It depends first of all on the
cases to which it is applied, and then on the circumstances of time and
place. It is experience—not general but particular—and experience alone
which can give concrete form to this notion. Even the two cases cited by
Peru and which are the only ones known or accepted in Europe (and then only
in the drafts of learned societies and not by States) were not conceived a,
priori, but according to certain experimental data. Thus they cannot be
restrictive to the exclusion of other or more subtle forms of urgency.
In the absence of definition and criteria, upon what basis can the
expression be interpreted? The etymological meaning is obviously of no help
Since this is not a rational institution which is in the process of creation
or which is being regulated for the first time—as would be the case of a
draft convention of a learned society—but a living institution which is
almost a hundred years old, the only safe guide would appear to be practice,
to the extent to which such practice interprets the intentions of the States
which chose these expressions and agreed to adopt them, or of those States
entrusted with carrying out their intention, either as States of refuge or
as territorial States. This practice would be all the more decisive in
determining the scope of these expressions if it is both subsequent and
prior to the Convention, in other words, if it is uninterrupted.
This practice has been invoked by both sides. It is not limited to the
parties to any particular convention. It has even been adopted by States
which are not bound by any convention, as for instance Venezuela. It
therefore transcends the Convention of 1928 and goes back to the origins'of
the institution of asylum.
Colombia has attempted, unsuccessfully, to draw from this practice certain
conclusions respecting unilateral qualification. On the other hand, Peru, in
arguing that the only cases of urgency are those arising from pursuit by a
mob or from arbitrary justice at the hands of a political faction, is
proceeding by mere assertion or has referred to non-American authorities.
Peru has made no attempt to submit evidence derived from American life or
practice or from American authorities who have studied this question.
The special circumstances, the conditions or details of the cases cited in
illustration of this practice, have generally not been supplied or at any
rate have not been supplied in a complete manner. It is, however, easy to
see that all these cases without exception have a common characteristic,
i.e., they arose in connexion with a revolution or a rebellion. Revolution
or rebellion is their only reason and [p305] circumstance. No reference has
been made in that connexion to the threat of mobs or of justice at the hands
of a political faction. The refugees were merely sought by the public
authorities of their countries for the purpose of legal proceedings.
The cases cited as examples also present another aspect: they all terminated
by the grant of safe-conducts to the refugees, and no case was mentioned of
a refugee being surrendered to the territorial authorities for the purpose
of legal proceedings.
In all such cases, revolutions may have produced a state of disturbance;
successful revolutionaries may then be seeking members of the former
government to make them answerable for their past tenure of office; or a
government which has suppressed a rebellion may be seeking out its authors
in order to prosecute them under the criminal code; or, as in the present
case, successful revolution-aries, having overthrown a government, may be
seeking other revolutionaries who have been less fortunate than themselves.
In such troubled circumstances, exceptional measures are usually adopted,
but the general structure of the government remains intact. More especially,
justice continues to function as usual even in cases where special tribunals
have been instituted in addition to the ordinary courts.
The existence of this practice is thus undeniable. In the absence of further
proof, it is sufficient to recall what happened in connexion with these same
events of October 3rd. Independently of the degree of responsibility (a
question which is entirely irrelevant to the validity of the asylum), all
the refugees in the eight diplomatic missions, with the exception of Haya de
la Torre, received safe-conducts FN1 whereas from the point of view of the
nature of offence with which they were charged, and from the point of view
of urgency, they were all in the same situation FN2.
See the communique of the Peruvian Government of October 12th, 1948,
published in the official gazette El Peruana of October 13th (see Memorial
FN2 In this connexion, see especially the correspondence exchanged between
the Embassy of Uruguay and the Ministry of Foreign Affairs of Peru, quoted
in the Reply of Colombia, in which even the unilateral and definitive
qualification by the State of asylum has been invoked by Uruguay. In the
case of the refugees who were granted asylum in the Uruguayan Embassy,
safe-conducts were granted on February 17th, 1949.
The only question which may arise in the circumstances is whether this
practice is lawful or unlawful.
There is no doubt that an act resulting from an explicit or implicit
agreement freely entered into by two States exercising their sovereign
rights cannot be called unlawful.
There are only two alternatives: either this practice has abrogated the
condition of urgency or it has merely interpreted it in a liberal fashion.
Without having to consider whether an inter-[p306]
national custom can abrogate a rule of positive law, it must be admitted
that the most natural and the most juridical explanation is to consider this
practice as a method of interpretation of the condition or urgency.
But this practice was not only subsequent to the Convention (and
consequently constitutes a sound interpretation thereof), it also existed
before the Convention. It should, therefore, be considered as one of the
"rules they [the governments of the Latin-American States] must observe for
the granting of asylum in their mutual relations", which rules these
governments were "desirous of fixing" by that Convention (Preamble to the
This practice was known to these governments. It was common knowledge and
had not been contested. If these governments had wished to discontinue it,
they would not have failed to denounce it in one manner or another. The
absence of such a denunciation is conclusive proof that the practice
continues and is definitively recognized. This proof can only be refuted by
showing that the words "urgent cases" thus interpreted would be devoid of
meaning. This has not and could not be shown. It will later be shown what
these words were intended to exclude.
It remains to be seen whether the other provisions of the Convention of 1928
corroborate the interpretation of the words "urgent cases" deduced from
practice which is both prior and subsequent to the Convention.
In considering the provisions of the Convention, it is presumed that there
is no conflict between the territorial State and the State of refuge
concerning the political nature of the offence which gave rise to the
asylum, or that any dispute arising on that point was resolved by the
recognition of that political character by the territorial State.
But it will be admitted that asylum of a political offender, if it is not to
be indefinitely prolonged, should come to an end by one or other of the
following solutions: either the refugee leaves the territory with a
safe-conduct, or else he is surrendered to the territorial State for the
purpose of legal proceedings.
In order to contest the fact that, according to recognized practice, asylum
should always terminate in the grant of a safe-conduct, it is necessary to
admit that the territorial State has the right to demand the surrender of
the political offender for the purpose of legal proceedings.
That State has, of course, the right to insist on the surrender of a common
criminal. Article I, paragraph I, expressly says so. But nothing of the kind
is said concerning political offenders. [p307]
Does it therefore not follow from this provision, by an argument a
contrario, that such a right does not exist in the case of political
offenders? This argument a contrario is conclusive provided it is confirmed
by other arguments or considerations. In this case it is confirmed by the
fact that the Convention has sought to establish that the two cases of
asylum are clearly distinct. Each is the object of an article which provides
all the conditions relating to it.
Article 1, paragraph I, states that it is not permissible to grant asylum to
common criminals; but paragraph 2 provides for cases where, in fact, asylum
may have been granted, particularly the case where the head of a diplomatic
mission, considering at the time of asylum that he was granting it to a
political offender, subsequently recognized that the refugee was only a
In such cases a measure of urgency is necessarily implied in the asylum.
This measure can only be urgency in the strict meaning of the word, in
accordance with Peru's interpretation of Article 2, paragraph 2, of the
Convention, i.e., pursuit by a mob, or justice at the hands of a political
faction. In fact, even a common criminal is entitled to regular justice, and
he is justified in seeking asylum in such circumstances of urgency.
Paragraph 2 of Article 1 enacts that, in such a case (provided of course
that the head of the mission does not dispute the fact that the refugee is a
common criminal), the territorial State may demand the surrender of the
But it is quite obvious that, even in the case of a common criminal,
urgency in its strict meaning described above ought to have ceased. The
request for surrender made by the territorial State is in itself an
implication of the fact that urgency has ceased.
In the circumstances, it might well be wondered why such a clear distinction
has been established between the two categories of offenders if, on the one
hand, urgency has the same strict meaning for both and if, on the other
hand, the refugee, whether a common criminal or a political offender, has to
be surrendered to the territorial State for the purpose of legal
proceedings, as soon as the case of urgency has ceased or in case urgency
never even existed.
The truth is that the notion of urgency is not the same for the two
categories of offenders and that the consequences of asylum also differ
according to whether the refugee is a common criminal or a political
offender. In the former case, as soon as urgency in its strict sense has
ceased, or if it has never even existed, the territorial State may demand
his surrender, whereas in the latter case it is the nature of the situation
(revolution or rebellion) which determines the urgency and justifies the
request and immediate grant of a safe-conduct.
Practice has furnished indisputable confirmation of the conclusions deduced
from the texts. Not only has this practice been constant in the sense that
revolution is a case of urgency and a [p308]
valid condition for asylum, but also in the sense that the invariable effect
of diplomatic asylum, regularly granted to a political offender, has been
the non-surrender of the offender to the territorial State and his departure
from the country by virtue of a safe-conduct granted by that State.
No case to the contrary has been cited.
Article 2, paragraph 2 ("First"), further provides that "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".
Could the last part of this sentence refer to the surrender to the
territorial State for purposes of legal proceedings? It may be true that in
case of pursuit by a mob or legal proceedings at the hands of a political
faction, such a surrender may ensure safety in some other way, but it is
even more true that this term would be inadequate; to ensure safety in some
way other than asylum can obviously only mean departure from the country.
Thus, departure from the territory seems to be the end of any political
asylum. That is the only conclusion compatible with the texts.
It could be argued, on the other hand, that, even admitting that general
practice places revolution on the same footing as pursuit by a mob or
justice at the hands of a political faction, all that the territorial State
is bound to do is to respect asylum until the return of normal conditions.
It could then request the State of refuge to surrender the refugee for
prosecution before the ordinary courts.
But whether or not normal conditions have returned is a question of opinion.
It might give rise to argument. On the other hand, such an interpretation of
the phrase in question would lead to the inadmissible conclusion that the'
State of refuge was under an obligation to keep the refugee until such time
as it might please the territorial State, at its absolute discretion, to
demand his surrender.
Moreover, what would be the significance or the scope of the rule appearing
in Article 2, paragraph I, to the effect that "asylum granted to political
offenders in legations, warships, military camps or military aircraft shall
be respected....", if that respect were not to manifest itself as a last
resort, by the grant of a safe-conduct? Does this obligation to respect
asylum confine itself to a mere prohibition for the territorial State to
force an entrance into the diplomatic mission for the purpose of seizing the
Here again it should be recalled that practice gives no example of asylum
granted on the occasion of a revolution having continued [p309] until
return to normal conditions or having terminated otherwise than by the
departure of the refugee.
The analysis of the practice of the South-American States (whether
signatories or not) before and after the Convention of 1928 and the analysis
of the provisions of that Convention as regards the difference it laid down
between common criminals and political offenders, the absence of any
reference to the surrender of the latter to the territorial State, as well
as of the meaning and scope of the expression "ensure in some other way his
safety", and of the obligation to respect asylum — this double analysis
establishes beyond any question that Article 2 refers especially to cases of
revolution which are qualified in that article as urgent cases.
In fact, the Convention of 1928 merely seeks by this reference to "urgent
cases" to exclude from asylum those cases in which it is granted following
legal proceedings, instituted in normal circumstances and in the absence of
revolutionary disturbances or of possible exceptional measures.
Of course, the Convention of 1928 as a whole has a restrictive character
with regard to the exercise of the right of asylum, but that general
character cannot offset all the arguments derived from a practice which is
both constant and unambiguous on a given point; this practice is further
corroborated by the analysis of the principal provisions of the Convention
It results from the foregoing description of asylum that this institution
has an aspect in South America which it has not elsewhere. If the reason
for this difference cannot be discovered, the conclusions deduced from
practice and from texts, however concordant they may be, might not appear
In the search for this difference, I do not consider it necessary to dwell
on the nature of revolutions in that part of the world, their causes or the
various conditions which favour their outbreak. It is sufficient to say that
revolutions and rebellions are very frequent. They sometimes fulfil the
functions of an election, when a section of public opinion which is
dissatisfied with the government wishes to effect a change in a manner which
is less slow and laborious than voting.
It is this frequency of revolutions combined with their character, causes
and conditions, which has given to asylum an object and a usefulness which
it does not seem to have elsewhere. By a kind of general and implicit
agreement it is to be regarded as a means enabling the authors of
unsuccessful conspiracies to [p310] escape the severity of the acts of
vengeance of the government in power and permitting members of a defeated
government to evade the measures by which a successful conspiracy would seek
to ensure its security.
By virtue of this usefulness, asylum has become a factor of peace and
moderation to the extent that it avoids violence, it provides a certain
respite, attenuates the bitterness of defeat and imposes wisdom and
moderation in view of the potential danger of the return of an exiled
There is no doubt that asylum can also be an element of instability in so
far as it reduces or eliminates the risks involved in revolution, but these
disadvantages, in comparison with the afore-mentioned advantages, do not
seem to have affected either its course or recurrence.
It is sometimes attempted to explain the particular development of this
institution in America by referring to chivalry and humanity. This point may
be open to doubt, although these concepts are not completely alien to the
institution of asylum. In any case, the idea of chivalry is quite relative.
In former times, asylum for common crimes was recognized in the name of
chivalry, whereas we now condemn this practice as being contrary to social
security and solidarity. In those days it was refused in cases of political
offences, being contrary to a certain dynastic solidarity. In modern times
it is admitted for these offences precisely because governments to-day no
longer have the character of permanency which they enjoyed in former times.
In fact, democracy necessarily supposes struggle for power and changes of
government. In such struggles and changes errors may be committed, but they
are considered as the price that must be paid for the advantages of
But however great the usefulness of asylum may be, this usefulness would be
insufficient to explain the development of asylum without having regard to
another consideration relating to the character of revolutions. In fact, in
the troubled times which accompany or follow them, passions are unleashed
which frequently cannot be controlled by reason and justice, and generally
have at their command an almost absolute power which, it must be admitted,
may be necessary in order to curb the disturbances occasioned by the
revolution. This power would, in the case of a constitutional government,
result from the proclamation of a state of siege. A de facto government
simply confers this power upon itself. In both cases it manifests itself by
a fusion of the legislative and executive powers in the hands of the members
of the government. It is in such circumstances that the government, without
[p311] having to encroach on the general judicial organization, could be
tempted to create special organs of justice bearing the imprint of political
Such is the case of the decree of November 4th enacted by the Military Junta
providing for Courts-Martial to judge summarily the authors, accomplices and
others responsible for the offences of rebellion, sedition or mutiny within
short time-limits (enquiry three days; prosecution and judgment six days).
It matters little whether this particular decree was retroactive or not from
the point of view of the summary justice which it instituted. What is
important is the fact that such political justice could be set up by that
same Junta and could examine facts which had occurred prior to its
institution. Such a fact could have been the case of Haya de la Torre where
the enquiry seems to have been suspended since the summons to appear
published on November 16th, 1948, in spite of the fact that the summons
informed the accused that the enquiry would proceed in their absence.
The creation of new judicial organs and the recognition of their competence
to judge facts prior to their existence, which hitherto fell within the
jurisdiction of ordinary tribunals, could have been regularly accomplished
by a constitutional government. Legislative power is not prevented from so
doing by the rule of non-retro-activity which is not generally applicable in
matters of judicial procedure and organization. The possibility for an
unconstitutional government to proceed in this manner is even more obvious.
The Junta assumed power on October 27th, 1948, as a de facto government. It
thus held all the power without needing to invoke the state of siege
proclaimed on October 4th by the constitutional government which had
preceded it. However, it saw fit to renew the state of siege whenever it
expired (every thirty days). In fact, the state of siege was renewed on
November 2nd, December 2nd and January 2nd. These successive renewals,
although superfluous, prove that, at any rate until the last date, the Junta
considered it necessary to announce publicly that it might still need
excep-tional measures and that the situation, at the time, was not yet
The fact that the Agent of Peru declared in his Rejoinder on behalf of his
Government—a declaration which was subsequently confirmed in the oral
statement of October 2nd, 1950—that the decree of November 4th was "intended
to apply to crimes occurring after its publication" in no way alters the
possibility existing in January, 1949, of enacting another decree providing
for another Court-Martial with similar summary procedure to deal with facts
which had occurred prior to the decree. The reference to retroactivity in
the foregoing declaration must be interpreted as bearing on the application
of the penalties provided in the decree of November 4th. [p312]
It is this possibility of exceptional measures which characterizes periods
of revolution and which makes it always possible to speak of the danger of
legal proceedings, in so far as it involves a further danger, namely
proceedings before a political tribunal.
Obviously the danger of legal proceedings for a political offence is not in
principle sufficient to justify the grant of asylum to the person
But asylum as practised in America has been indissolubly bound to the
conception of revolution. On the one hand, it provided the social and
political usefulness referred to above, and on the other hand, it found a
general justification in the possibility of exceptional measures.
In this very special environment, asylum assumed the aspect of a regional or
continental institution, approved by the governments in power, those which
triumphed over a conspiracy as well as those which had triumphed as a result
of a conspiracy; and by their recognition of asylum both types of government
considered it as a possible resort in the event of a reversal of fortune.
Just as there exist usages of war, so a usage of revolution has arisen,
which became the object of implicit and general agreement between the
It is as such that the exercise of asylum is so frequently and widely
Viewed as an isolated phenomenon, the asylum of a political offender may
easily acquire the aspect of an encroachment on territorial sovereignty,
and, as far as it is an obstacle to legal proceedings, it may appear as a
suspicion of the national justice and, in any case, as an interference in
the domestic affairs of a State. However, when it is accepted by all States,
both in the role of the territorial State and the State of refuge, it loses
all such aspects and becomes a general and impersonal rule of conduct.
The fact that abuses may have arisen in the exercise of asylum is absolutely
alien and irrelevant to the appreciation of that institution as a juridical
phenomenon. Just as alien and irrelevant is the fact that established
governments, enjoying general respect and confidence, owe their existence to
revolutions or to the exercise of asylum. Such merits or abuses may
influence the evolution of the institution or its transformation, or bring
about its extinction. They remain, however, irrelevant to the task of the
Court when considering an individual application of that institution.
On the other hand, it may readily be agreed that a number of cases which are
not regular cases of asylum have intruded on the practice already referred
to which is recognized as a general rule of conduct. Such, for example, are
cases where, for reasons of political expediency, safe-conducts may have
been granted to refugees whom the territorial State regarded as common
criminals, but in whose case it did not choose to enter into a dispute. I do
not include in this [p313] category the case of persons against whom no
charge has been made but who, fearing that such a charge may arise, seek
asylum ; for it is in the spirit of the institution to grant to such persons
the protection of asylum.
In spite of this intrusion, the practice of asylum as a usage of revolution
remains a juridical phenomenon which can be regulated, interpreted and
applied, just as the usages of war. The fact that the Parties had recourse
to the Court in order to solve a dispute on the subject of asylum is
sufficient proof thereof.
It may therefore be concluded that in enacting that asylum may only be
granted in urgent cases, the Havana Convention of 1928 was desirous of
"fixing the rules" (preamble to the Convention) which had been applied up to
that time. These rules tend not to admit asylum in times of peace and order,
but to grant it in times of revolution, euphemistically described in the
Convention as "urgent cases". To interpret asylum in such a case, as
implying suspicion of territorial justice or interference in the domestic
affairs of another State, is definitely out of the question because this is
a special situation, with ample possibilities of deterioration through the
adoption of exceptional measures, and because all the States, in their
alternative capacity as State of refuge and territorial State, have accepted
this rule as a general rule of conduct.
In the case under consideration, the state of disturbance caused by the
revolution of October 3rd still persisted on January 3rd. Proof of this may
be found in the fact that, the day before, the Military Junta considered it
necessary to proclaim the renewal of the state of siege, thus implying the
possibility of taking exceptional measures. Asylum was thus regularly
granted to Haya de la Torre since this was a case of urgency, the state of
disturbance caused by the rebellion still persisted, and the offence with
which he was charged was unquestionably a political offence FN1.
In fact, the proceedings for rebellion against Haya de la Torre, in the
absence of almost all those responsible, who had been authorized by the
Government of Peru to leave the country, could only be partial and
fragmentary. This initial discrimination by the Executive does not appear to
be a perfect guarantee of impartiality.
The de jure Government of Peru seemed specially desirous of depriving Apra
of its financial and publicity resources. (See in the Counter-Memorial the
denunciation of the Peruvian Minister of the Interior of October 5th, 1948-)
Judging by the communique of October 12th, the prosecution assumed
secondary importance. On the other hand, the de facto Government, this aim
having been achieved, seemed to be especially anxious to strike at the head
of the party. (See the contradictory attitudes of this Government at that
time towards Colombia and Uruguay.)
It is very significant in this connexion that the diplomatic correspondence
between Colombia and Peru, which lasted three months, and which purported to
reflect the direct reactions of the two Parties and to contain the
fundamental bases of their respective attitudes, does not for a single
moment touch on the question of urgency; see especially in the memorial, the
letter of Peru of March 19th: VI, second paragraph; VII, first paragraph;
IX, X, first paragraph, and Peru's letter of August 6th: VI.
If Peru considered that there was no urgency in this case, she would not
have failed to rely on this argument and to avoid this long controversy
concerning terrorism, which apparently had no chance of convincing Colombia
for the simple reason that it had no foundation in fact or in law, and that
the so-called terrorist crimes had not given rise to any accusation prior to
the grant of asylum.
It was only after the presentation of the Counter-Memorial that an attempt
was made to argue urgency in the case of Haya de la Torre, without, however,
attributing to this argument, at the beginning, the importance which it
subsequently acquired. It was especially in the final oral reply that this
absence of urgency became the essential basis and grounds of the
counter-claim. No explanation has been given—and for an obvious reason—to
show why this argument, if it is so decisive and so much less controversial
than that of terrorism, has not been invoked at the very outset in the
In that correspondence, Colombia, relying on her doctrine of unilateral and
definitive qualification, refrained from any discussion of the domestic
affairs of Peru, although the latter, curiously enough, had invited Colombia
to participate in such a discussion. This attitude on the part of Colombia
may easily be explained by a desire to avoid being drawn into a discussion
of the responsibility of Haya de la Torre and the terroristic aspect of the
crimes committed in the course of the events of October 3rd, which, in the
view of Peru, were to transform the offences with which Haya de la Torre was
charged into common crimes and thus render his asylum pointless.
In view of the foregoing conclusion, any consideration of the duration of
asylum seems to me completely superfluous, especially since the prolongation
of asylum is, in fact, entirely due to the diplomatic correspondence. This
correspondence constitutes the negotiations between two States concerning a
dispute which has [p315] arisen between them. It was these negotiations
which led to the Act of Lima, by virtue of which the dispute was submitted
to the Court.
It is impossible to deny that Colombia is entitled to maintain, by means of
negotiations, what she considers to be her right or to deny that she is
entitled to continue the asylum throughout such negotiations.
(Signed) Badawi Pasha.
DISSENTING OPINION BY JUDGE READ
As I have concurred in the judgment of the Court on the claims presented by
the Government of Colombia, and in a large part of the judgment on the
counter-claim, it is possible for me to confine my separate opinion to one
aspect of the case. I regret that I cannot agree with the majority of the
Court on the question whether the grant of asylum by the Colombian
Ambassador at Lima, on Janu-ary 3rd, 1949, to Sefior Haya de la Torre, could
be justified as an urgent case within the meaning of the Havana Convention,
Before examining this question, it is necessary to make some preliminary
explanations. In the pleadings, and in the course of the argument, there
have been frequent references to "American international law", and the
"American institution of asylum". As my conclusions in this case are largely
based on my understanding of these expressions, it is necessary for me to
indicate what they mean.
They use the word "American" in a special sense—as relating to a regional
group of States, the twenty Latin-American Republics. The region covers the
greater part of South and Central America, and extends to parts of North
America south of the Rio Grande, including two of the. Caribbean Islands. It
does not, however, include the whole of either North, South, or Central
America, and, in that sense, the use of the word "American" is misleading.
To avoid confusion, it will be convenient to use quotation marks when it is
used in this special sense.
With regard to "American international law", it is unnecessary to do more
than confirm its existence—a body of conventional and customary law,
complementary to universal international law, and governing inter-State
relations in the Pan American world.
The "American institution of asylum" requires closer examination. There
is—and there was, even before the first conventional regulation of
diplomatic asylum by the Conference at Montevideo in 1889—an "American"
institution of diplomatic asylum for political offenders. It has been
suggested, in argument, that it would have been better if the institution
had been concerned with ordinary people and not with politicians, that it is
unfortunate that political offenders were protected from trial and
punishment by courts of justice during the troubled periods which followed
revolutionary outbreaks, and that it would have been a wiser course for the
republics to have confined the institution to pro-[p317]tection against
mob violence. That is none of our business. The Court is concerned with the
institution as it is. The facts, established by abundant evidence in the
record of this case, show that the Latin-American Republics had taken a
moribund institution of universal international law, breathed new life into
it, and adapted it to meet the political and social needs of the Pan
The institution was founded upon positive law, the immunity of the
diplomatic mission, and it does not make any difference whether the theory
of extraterritoriality is accepted or rejected.
Upon the reception of a fugitive in an embassy or legation, he enjoyed in
fact, and as a result of the rules of international law, an absolute
immunity from arrest or interference of any nature by the administrative or
judicial authorities of the territorial State. The only course open to that
State was diplomatic pressure. It could not force an entry and remove the
fugitive. It could insist on the recall of the head of the mission ; and, as
a last resort, it could break off diplomatic relations.
The record in this case discloses that revolutions were of frequent
occurrence in the region under consideration, and that a practice developed
of granting asylum to political offenders. This practice became so common
that it was regarded as a normal part of the functions of diplomatic
missions. During a period when the institution of diplomatic asylum was
obsolescent in other parts of the world, it was in a stage of vigorous
growth and development in Latin-America.
This practice had a profound effect upon the legal relationship resulting
from the establishment of a diplomatic mission, or the presentation of
Letters of Credence by a new head in the case of a mission already
established. This legal relationship finds its origin in implied contract.
Its terms are never expressed in the Letters of Credence or other formal
documents. The understanding of the parties as to what constitutes the
proper functions of a diplomatic mission was affected by this widespread
practice of granting asylum to political offenders, and, in consequence, the
legal relationship based on implied contract was altered. Within the region
under consideration, a territorial State, in the event of the grant of
asylum to a political offender, could no longer assert, with justification,
that the ambassador had transgressed the limits of the proper functioning of
a diplomatic mission. The territorial State, on receiving the ambassador,
had consented to the exercise by him of all the ordinary diplomatic
functions, and within the Latin-American world, as a result of the
development of this practice, it was understood by everybody that "the
ordinary diplomatic functions" included the grant of asylum to political
Having established the nature of the "American institution of asylum", it is
possible to proceed to the examination of the special aspect of the
counter-claim in which I am unable to concur in the judgment of the Court.
The majority is of the opinion that the grant of asylum in the present case
was made in violation •of the "First" provision of Article 2 of the Havana
Convention, on the ground that it was not an urgent case within the meaning
of that provision. I am of the opinion that it was an urgent case, and that
the counter-claim should be dismissed.
The "First" provision of Article 2 reads as follows:
"First: 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."
It is obvious that the expression "except in urgent cases .... safety" is
not clear and unambiguous. Urgency has more than one ordinary and natural
meaning, and it is capable of application to the problem of asylum in more
than one way. In order to determine the meaning that the Parties to the
Convention had in mind when they used this expression, it is necessary to
look at the nature of the problem with which they were concerned, and at the
context in which it is to be found.
The preamble shows that the Governments represented at the Sixth Pan
American Conference at Havana in 1928 were "desirous of fixing the rules
they must observe for the granting of asylum in their mutual relations".
They dealt with asylum as an existing institution ; and, in Articles 1 and
2—the operative provisions of the Convention—they prescribed a series of
restrictive conditions upon the grant of asylum, procedures which should be
followed, and obligations which were for the most part incumbent upon the
country of refuge. The only obligations imposed on the territorial State
were the duty to recognize a grant of asylum made in compliance with the
restrictive conditions, and the ancillary duty to furnish a safe-conduct in
cases where the territorial State required that the refugee should be sent
out of the country.
The principal provision in Article 2 imposes an obligation on the
territorial State—the only primary obligation imposed on that State by the
Convention. It is the obligation that asylum ' 'shall be respected", and it
imposes on the territorial State a legal obligation to respect any asylum
which has been granted by a Party to the Convention, in conformity with the
conditions clearly imposed under Articles 1 and 2, both precedent and
subsequent. It is an obligation to respect not merely the grant but also the
maintenance of asylum within the conventional limitations.
There are certain conditions arising under the 2nd, 4th, 5th and 6th
provisions in Article 2 which are not unimportant, but which do not raise
any difficulties in the present case. There are, however, [p319] four
essential conditions precedent, all of which had to be fulfilled in order to
grant or maintain an asylum which the territorial State was bound to
respect. They are:
(a) The refugee must not have been "accused or condemned for common crimes".
(b) The refugee must be a "political offender" within the meaning of the
expression as used in the first paragraph of Article 2.
(c) Asylum shall be respected only "to the extent in which allowed, as a
right or through humanitarian toleration, by the usage, the conventions or
the laws" of the country of refuge.
(d) It must be an urgent case.
The first three conditions were fulfilled in this case, but the fourth
requires special consideration. The fundamental problem is to determine what
the Parties to the Havana Convention had in mind when they used the
expression "in urgent cases". There are two possible interpretations, one
which was put forward by the Peruvian Government at a relatively late stage
in the controversy, namely, in the Counter-Memorial, and the other put
forward by the Colombian Government at an even later stage, namely, the
Reply. The reason for the delay in raising this issue can be readily
understood. It had never occurred to anybody in Government circles in
either Peru or Colombia that there was any doubt as to the existence of
urgency in the present case.
The Governments of Peru and Colombia, in the months of February and March,
1949, were vigorously debating the question as to whether the asylum granted
in the present case by the Colombian Ambassador could be justified, and
whether the Peruvian Government was justified in refusing to recognize the
asylum and grant a safe-conduct. If it had ever dawned on the consciousness
of any person in authority in Lima that it was possible to place a
construction on the expression "urgent cases" that would raise a doubt as to
whether this was an urgent case, it is unthinkable that the point would not
have been raised in the diplomatic correspondence. It was at a later stage
that the Peruvian Agent thought it worth while to raise this point by way of
counter-claim. It is now necessary to decide whether to adopt the position
put forward by Peru, or the position put forward by Colombia, or a middle
ground between two extremes.
To begin with, I do not think that it is possible to accept the extreme
argument put forward on behalf of the Colombian Government. That argument
was based upon an attempt to discredit the administration of justice in
Peru, coupled with charges of administrative interference in judicial
process. In this matter, it is sufficient to say that the Colombian
Government has not proved its case, [p320] and that there is no
justification for discrediting the administration of justice or for any lack
of confidence in that administration, whether in Peru or in any other State.
Having disposed of the extreme Colombian position, it is necessary to look
at the extreme Peruvian position. It has been contended that the use of the
expression "urgent cases" limits the grant of asylum to incidents in which
the fugitive is being pursued by an angry mob or perhaps by a partially
organized force meting out a form of crude and popular pseudo-justice in a
period intervening between a successful revolution and the formation of a
new organized judicial system. The basis of this view is that it is
inconceivable that the Governments represented at the Panamerican Conference
at Havana in 1928 could possibly have had in mind a system which would
protect political offenders from police measures and prosecution and
punishment under the laws of the country in which their offences had been
I find it impossible to accept this extreme position, advanced by the
Peruvian Government during the later stages of this dispute.
From the point of view of the regions of the world with which I have had
close contact, it would be inconceivable, in principle, that governments
could have intended "urgent cases" to include the protection of political
offenders from the local justice. It would be unthinkable that a treaty
provision should, in the absence of express words, be construed so as to
frustrate the administration of justice.
There is, however, a principle of international law which is truly
universal. It is given equal recognition in Lima and in London, in Bogota
and in Belgrade, in Rio and in Rome. It is the principle that, in matters of
treaty interpretation, the intention of the parties must prevail.
To apply this principle to the Havana Convention, I am compelled to
disregard regional principles, and personal prejudices and points of view,
which are not accepted and shared by the peoples and governments of the
"American" region. I am compelled to look at the problem from the point of
view of the twenty Latin-American Republics, the signatories of the Havana
Convention. The United States of America contracted out of the Convention,
by reservation before signature, and its special position does not need to
It is, therefore, necessary to examine the question, taking into account the
principles of international law which are of universal application, and,
also, the point of view and manner of thinking of the Parties to the
Convention as indicated by the record. The real issue is : whether the
Conference at Havana in 1928 had in mind the limitation of asylum to cases
of mob violence, and whether [p321] such an interpretation is confirmed or
contradicted by the context. For this purpose, principles of international
law which are universally accejoted would justify consideration of the
Ist. the nature of the institution with which the Conference was dealing;
2nd. the context and the economy of the treaty regarded as a whole; and
3rd. the understanding of the parties to the treaty as to its meaning, as
reflected by their subsequent action.
To my mind, the Peruvian interpretation, when subjected to these three
tests, meets three insuperable obstacles, and must be discarded. They may be
considered in turn.
The first test relates to the nature of the institution of asylum. While I
have concurred in the view of the majority of my colleagues that Colombia
has not established that there is a right of unilateral qualification or a
right to safe-conduct based on customary law, there can be no doubt about
the existence of an "American" institution of asylum, an extensive and
persistent practice, based on positive law, on convention and on custom.
The record in this case discloses that over a period of more than a century
there were numerous instances in which asylum was granted and made effective
in the Latin-American republics. The wide spread of the practice is
indicated by the citation, in the Reply, of more than fifty separate
instances in which asylum was granted and made good, covering two hundred
and forty-four enumerated individuals, as well as a number of groupings in
which precise numbers are not given. At least seventeen Latin-American
States were concerned. While the information available is by no means
complete, the dates and such details as are given make it possible to tie in
the instances in which asylum was granted to political revolutions and the
periods of disturbed conditions which followed both successful and
unsuccessful revolts. There is no instance anywhere in the record in which a
country of refuge, of the Pan American world, acceded to a request by a
territorial State to surrender a political offender to the local justice.
There is nothing in the record to suggest that the granting of asylum was
limited to cases in which the fugitive was being pursued by angry mobs. The
evidence shows that asylum was granted, as a matter of course, to political
offenders who were seeking to escape from ordinary judicial process under
the laws of the territorial State. There can be no doubt that the
institution of asylum, which the Pan American Conference was seeking to
regulate in 1928, was one in which asylum was freely granted to political
offenders during periods of disturbed conditions following revolutions. The
Governments represented at the Conference made their intention abundantly
clear in the preamble. They were "desirous of fixing the rules they [p322]
must observe for the granting of asylum". They gave no indication of any
intention to change the essential character of the institution. Taking into
account the points of view and manner of thinking of the twenty
Latin-American republics, as disclosed by the evidence as to tradition and
practice in the record, it is inconceivable that they could have intended to
limit the grant of asylum for political offenders to cases in which they
were being pursued by angry mobs. It is unthinkable that, in using an
ambiguous expression "urgent cases", they were intending to bring to an end
an "American" institution, based on ninety years of tradition, and to
prevent the grant of asylum to political offenders "in times of political
disturbance". To apply such a construction would be to revise, and not to
interpret the Havana Convention ; a course which I am precluded from
adopting by the rule laid down by this Court when it stated : "It is the
duty of the Court to interpret the Treaties, not to revise them."
"Interpretation of Peace Treaties (second phase), Advisory Opinion : I.C.J.
Reports 1950, p. 229."
Accordingly, the Peruvian contention fails to meet the test of the first
obstacle, and must be rejected.
On the positive side the application of this test would strongly support and
confirm an interpretation of the expression "urgent cases" as covering cases
in which asylum was granted during a period of disturbed conditions
following a revolution, and as excluding asylum during periods of political
The second test arises out of the context and the general economy of the
Convention. I have already reviewed the general economy of the treaty and
shall confine myself to two aspects of the context.
The argument that asylum cannot be granted to protect the political offender
from prosecution and possible conviction by the local courts, which is at
the basis of the Peruvian interpretation of "urgent cases", encounters an
insuperable obstacle in the text of Article I.
The first paragraph of this article provides that "it is not permissible for
States to grant asylum .... to persons accused or condemned for common
crimes....". The second paragraph provides that "persons accused of or
condemned for common crimes taking refuge .... shall be surrendered upon
request of the local government". Accordingly, it is clear that a person
accused, or even condemned, for a political offence was regarded by the
Governments represented at the Conference as a proper subject for asylum.
It is equally clear that a refugee accused or condemned for a political
offence alone need not be surrendered to the local government. In the case
before the Court, Peru has no right, [p323] under the Havana Convention, to
demand the surrender of the fugitive.
There is another aspect of the context. An examination of Articles i and 2
of the Convention shows that the parties intended to draw a clear-cut line
between common criminals and political offenders. An interpretation,
limiting asylum for political offenders to cases in which mob violence or
revolutionary tribunals were involved, would eliminate this distinction and
leave Article 2 to serve no useful purpose. I am precluded from accepting
such an interpretation by the rule laid down by this Court when it stated:
"It would indeed be incompatible with the generally accepted rules of
interpretation to admit that a provision of this sort occurring in a special
agreement should be devoid of purport or effect." "Corfu Channel Case,
Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 24."
This Convention, in paragraph I of Article 2, deals with "asylum granted to
political offenders". A political offender is a person who has committed a
political offence against the laws of the territorial State. Asylum cannot,
by its very nature, be granted to a political offender without protecting
him from local prosecution, and without frustrating the administration of
justice in the territorial State. An interpretation limiting the grant of
asylum under Article 2 to cases in which political offenders were pursued by
angry mobs, coupled with the duty to turn the fugitive over to the local
police to be prosecuted for his political offence, would put the political
offender on exactly the same footing as the common criminal. It is conceded
that the latter can be given temporary shelter from mob violence or lynch
law, on humanitarian grounds, and handed over to the local police for
prosecution. Such an interpretation would, in effect, delete the word
asylum from the first paragraph of the article, substitute temporary shelter
on humanitarian grounds, and create a position in which the provisions of
Article 2 would "be devoid of purport or effect".
Any attempt to interpret the expression "urgent cases" as limiting
diplomatic asylum to protection from mob violence encounters the insuperable
obstacle presented by these provisions of the Convention, and must be
On the positive side, the application of this test would support an
interpretation of the expression as covering cases of asylum during periods
of revolutionary disturbance, and as excluding it during periods of
tranquillity, and would bring the provisions of Articles 1 and 2 into close
The third test relates to the understanding of the parties to the treaty as
to its meaning, reflected by their subsequent action. It may be observed
that this Court relied upon an examination of the [p324] subsequent
attitude of the Parties with a view to ascertaining their intention, when
interpreting an international agreement, stating: "The subsequent attitude
of the Parties shows that it was not their intention, by entering into the
Special Agreement, to preclude the Court from fixing the amount of the
compensation." "Corfu Channel Case, Judgment of April 9th, 1949: I.C.J.
Reports 1949, p. 25."
In the present case, if the Parties had meant that asylum was to be
restricted to cases where offenders were seeking to escape from angry mobs,
or from improvised revolutionary tribunals, it is certain that there would
have been a fundamental change in the practice of the Latin-American States.
There is sufficient evidence in the record to convince me that there was no
change in practice in granting or recognizing diplomatic asylum, in the
years following the coming into force of the Havana Convention.
Considerations of time and space, and the lack of information regarding the
course followed by all of the Parties to the Convention, prevent a
comprehensive examination of all aspects of this test. It will be sufficient
to examine the course followed by Colombia and Peru in granting asylum, and
in recognizing the grant of asylum by other countries, during the last
With regard to Colombia, it is sufficient to note that there was no break in
Colombian practice in the matter of the grant of asylum by Colombian
diplomatic missions, or in the recognition of asylum granted in Colombia by
the diplomatic missions of other Latin-American States. There was no
indication of any tendency to restrict the grant or recognition of asylum to
cases in which a political offender was not seeking protection from arrest,
prosecution and punishment by the local authorities.
With regard to Peru, it is equally clear that, prior to March 21st, 1950,
there was no change in practice. Disregarding the Spanish Civil War cases
which were of a special character, Peru recognized the grant of asylum by
the Bolivian Legation in 1930, granted asylum in Guatemala in 1944, in
Bolivia in 1946, and in Panama in 1948, and recognized grants of asylum by
the Brazilian, Paraguayan, Colombian, Chilean, Uruguayan and Venezuelan
Embassies in Lima in 1948 and 1949. Even the course followed in the case of
Señor Haya de la Torre did not indicate any change in practice. Throughout
the diplomatic correspondence, Peru strongly contended that Colombia was not
entitled to grant the asylum because the refugee had been accused of a
common crime. It was urged, with equal vigour, that Peru was not bound to
give a safe-conduct, and that Colombia did not have a right of unilateral
qualification. It was not contended that the grant of asylum was invalid, on
the ground that it had not been an "urgent case". It was not argued that
asylum [p325] could not be accorded when its purpose was to enable a
refugee to escape from prosecution or imprisonment by the local judicial
authorities. There is only one possible explanation for this omission;
namely, that, at that time, the Peruvian Government considered that the
conditions of urgency contemplated by the Havana Convention existed in Lima
in January 1949.
There is the strongest possible confirmation of this explanation in the
"Official information from the Ministry for Foreign Affairs" published in
the Official Bulletin of the Government of Peru, El Peruano, October 26th,
1948, and cited in the Memorial, paragraph 39. An attempt was made by
Colombia to treat this document as committing the Government of Peru to
acceptance of the doctrine of unilateral qualification upon which it was
largely based. I do not dissent from the action of the Court in rejecting
this extreme view of the nature and significance of the document. But that
does not mean that the document has no significance. While it may not have
conformed to the view of the Military Junta, it remains an official
statement of the views of the constitutional Peruvian Government as to the
nature and scope of diplomatic asylum. It is the strongest possible evidence
that the Peruvian Government, on October 26th, 1948, did not consider that
the "First" provision in Article 2 of the Havana Convention, in using the
expression "urgent cases" could be regarded as restricting asylum to
refugees fleeing from angry mobs or revolutionary tribunals. All of the
"asylees" whose position was explained in this document were political
offenders, fugitives from the ordinary administration of justice in Peru.
While it is impossible to review the practice in all of the Republics which
were Parties to the Convention, and while the references to the attitude
adopted by Bolivia, Guatemala, Panama, Brazil, Paraguay, Chile, Uruguay and
Venezuela are incomplete, there is one fact that emerges from the state of
the record in this case. There is not one instance, cited by either Colombia
or Peru, in which a Party to the Convention has refused to grant or to
recognize diplomatic asylum to a political offender "in times of political
disturbance" on the ground that he was seeking to escape from arrest,
prosecution or imprisonment, for a political offence, by the judicial
authorities of the territorial State. If there had been such an instance, it
is inconceivable that it would not have been included in the voluminous
documentation of this case.
It is impossible to escape the conclusion that the Parties to the Convention
have acted over a period of twenty-two years upon the understanding that the
use of the expression -"urgent cases" was not intended to be a bar to the
grant of asylum to [p326] political offenders, seeking to escape from
prosecution for a political offence by the local judicial authorities, "in
times of political disturbance". Accordingly, the Peruvian interpretation
fails to meet the third test.
On the positive side, the application of this test supports an
interpretation of the expression "urgent cases" as covering cases of asylum
granted to political offenders "in times of political disturbance", and as
excluding it during periods of tranquillity.
The three tests lead to the same results. They lead to the rejection of the
new Peruvian interpretation of "urgent cases" ; and they lead, with equal
force, to the acceptance of the view put forward by the Peruvian Foreign
Ministry on October 26th, 1948. This is a clear and unequivocal statement of
the views of the Government as to the nature and extent of the obligations
imposed on Peru by the conventional and customary rules binding on that
country. It is also noteworthy that it contains a clear statement on the
point which is under immediate consideration. It reads as follows:
"Diplomatic asylum is based on a desire for humanitarian protection in
times of political disturbance and on the recognized inviolability of the
seats of diplomatic missions. Therefore, it must be recognized in favor of
persons prosecuted for political reasons."
In stating that diplomatic asylum "must be recognized in favor of persons
prosecuted for political reasons", the Government was taking the position
that a person seeking to escape from prosecution by the local judicial
authorities could be an "urgent case" within the meaning of Article 2 of the
Havana Convention. In saying that "diplomatic asylum is based on a desire
for humanitarian protection in times of political disturbance", the
Government of Peru was furnishing the key to the solution of the problem.
Nowhere in the extensive documentation of this case can we find a clearer or
more convincing interpretation of the expression "urgent case". Nowhere can
we find any other interpretation which will satisfy the three tests set
forth above, as well as any other tests which would be permissible under the
rules of international law governing the interpretation of treaties.
Accordingly, I am compelled to reach the conclusion that the expression
"urgent cases" must be construed as restricting the grant of diplomatic
asylum, as regards political offenders, to cases in which the grant is made
"in times of political disturbance" of a revolutionary character, and as
preventing the grant of asylum during periods of tranquillity.
The question remains whether the third day of January, 1949, has been proved
to have been a time of political disturbance of a [p327] revolutionary
character. This is a matter peculiarly within the knowledge of the
territorial State, and, in my opinion, Colombia was not bound to establish
more than a prima facie case. There can be no doubt that Colombia has
discharged the burden of proof to this extent. On the other hand, Peru has
not furnished a scintilla of evidence with regard to political conditions
obtaining in Lima at the beginning of January, 1949. The Agent for Peru in
the Rejoinder stated: "We do not propose to describe the internal situation
of Peru which justified the promulgation of the decrees mentioned by
Colombia" (the decrees mentioned included that under which a state of siege
was proclaimed on January 2nd, 1949). Certain assertions were made on behalf
of the Peruvian Government as to conditions obtaining at that time, but they
were incomplete and, even if accepted in the absence of proof, they did not
cover all relevant phases of the conditions existing at the date in
question. In these circumstances, I am of the opinion that it is necessary
to make a finding in favor of the Colombian contention in this respect,
namely, that January 3rd, 1949, was a time of political disturbance in which
a request from a political offender for protection against prosecution by
the local authorities could be regarded as an "urgent case" within the
meaning of the Convention.
It is unnecessary at this stage to do more than indicate the extent of the
prima facie evidence submitted by Colombia to prove the existence of a
period of political disturbance at that time. It is sufficient to indicate
that the period of disturbance lasted until February 17th, 1949. Beyond that
date, there is nothing in the record to justify an assumption that disturbed
conditions continued or disappeared. The evidence is as follows:
1. The state of siege proclaimed by the Government of Peru on January 2nd,
1949, and extending for a period of 30 days. It is true that under the
Peruvian Constitution the proclamation of a state of siege did not prevent
the functioning of the ordinary courts of justice. On the other hand, it is
conclusive evidence of the fact that the Government of Peru was at that date
of the opinion that a period of political tranquillity had not been reached,
but that political conditions were so disturbed that it was necessary to
continue the state of siege and the suspension of the constitutional
2. Apart altogether from the proclamation of a state of siege, there is
unmistakable evidence that the Peruvian Government was of the opinion that
the conditions up to the 17th February, 1949, were such that a grant of
asylum in Lima could be regarded as an "urgent case" within the meaning of
the Havana Convention. During this period the Peruvian Government acted on
this assumption, and as late as February 17th, 1949, delivered safe-conducts
to the Uruguayan Ambassador (Reply, Annex 1). [p328]
3. In addition to the appraisal of the situation made by the Peruvian
Foreign Office and by the Colombian Ambassador, it has been established that
the Ambassadors of Bolivia, Guatemala, Panama, Brazil, Paraguay, Uruguay,
Chile and Venezuela considered that the political situation in Lima was so
disturbed that grants of asylum to political offenders could be justified as
"urgent cases" within the meaning of the Convention. These transactions took
place at varying dates extending beyond the middle of February, 1949, and
none of the cases seemed to be grants of asylum for the purpose of escaping
from angry mobs. The action of these Ambassadors is not conclusive, but it
is difficult to believe that they could all have been wrong in this respect,
and that their error could have been shared by the Peruvian Ministry for
4. This was not a case of conflict between a lawfully established
constitutional government and a person alleged to be a leader of a
revolutionary party. It was a conflict between two revolutionary groups. The
record shows that the successful group had staged a revolution in August,
1948, which had failed; and a second revolution on October 27th, which had
succeeded. This group, which described itself as "The Military Junta of the
Government", was exercising supreme legislative and executive powers in
This Military Junta, which had gained power by unconstitutional means, as
its fourth official act, made a Decree-Law, dated November 4th, 1948, and
published in El Peruano on the following day, with harsh measures directed
against rebels. The provisions of this Law were in striking contrast to
those of the Peruvian Constitution and Codes which have been brought to the
attention of the Court.
I do not think that it has been established that the provisions of this Law
could have been invoked against Señor Haya de la Torre. On the other hand,
they demonstrate the extreme nature of the legislative and executive powers
which were, in fact, being exercised by an unconstitutional'military junta.
They point to the fact that orderly government had not been restored in
It seems clear, therefore, that Colombia has established considerably more
than a -prima facie case, and that the Court should find that the grant of
asylum to Señor de la Torre was an "urgent case" within the meaning of the
Before stating my final conclusions on the counter-claim, I must deal with
some other points which affect the case. [p329]
It has been contended that urgency is lacking in this case because the grant
of asylum on January 3rd, 1949, by the Colombian Ambassador was three months
after the second rebellion, two months after the third and successful
rebellion by the Military Junta, and 48 days after the summons of November
16th, 1948. It must not be overlooked that the fugitive was a political
leader, well known in Peru, and if he had remained in hiding for three
months and if he had refused to comply with the summons, which has not been
proved in these proceedings, there may have been good and sufficient reasons
entirely consistent with urgency. It was undoubtedly necessary for him to
remain hidden until the hue and cry had diminished to the point where he
could reach an embassy in safety. If a right to grant the asylum existed, a
delay reasonably necessary to take advantage of this right under the treaty
could not impair the validity of the grant.
Further, the suggestion that 48 days or even three months was an
unreasonably long time seems somewhat unrealistic to any person who
possesses any knowledge of the history of revolutions, whether in
Latin-America or in other parts of the world. It should not be overlooked
that the contention, if accepted, would destroy the foundation of the case
presented by the Government of Peru. It implies that if the fugitive had
arrived at the Colombian Embassy at an earlier date, say Christmas or
Thanksgiving Day, there would have been urgency and the grant by the
Ambassador would have been valid, but even at the earlier dates the effect
of asylum would have been to protect the fugitive from prosecution by the
There is another point of greater importance. This opinion has been confined
to the question of the grant of asylum; and, apart from an incidental
remark, maintenance has not been mentioned. Further, the case has been
discussed in the light of the circumstances when the Colombian Ambassador
granted the asylum; and facts intervening during the diplomatic negotiations
or pending the proceedings before this Court have been treated as
Beginning with the first point, maintenance, it would be improper for me, as
a judge, to pass on the matter. The Peruvian Government has made its request
to the Court in precise terms. It has confined the issue to the question of
grant ("l'octroi''). My reasons for adopting this view may be stated
(a) What did Peru ask the Court to decide? Peru asked the Court to adjudge
and declare "that the grant (l'octroi) of asylum by the Colombian Ambassador
at Lima to Victor Raul Haya de la Torre was made in violation of Article I",
(b) What did Peru mean when its Agent used this language? Ordinarily, it
would be enough to say that the Peruvian Government meant what it said. The
words used "1'octroi de l'asile" mean the grant of asylum—and do not mean
"grant and maintenance".
In this case, however, the meaning of "l'octroi" has been given a double
demonstration by Peru. The fact that Peru made a fruitless effort to bring
the question of "maintenance" into the case, by putting forward a new
counter-claim based on "maintenance" during the oral proceedings, is proof
that Peru did not think that it had already been brought before the Court by
the language used in the original counter-claim.
Further, the Peruvian Government has explained, in unequivocal language,
what its Agent meant when he made the counter-claim. The statement was made
in the course of the oral proceedings:
"The essential reason for the presentation of the counter-claim was to
induce the Court to declare that, at the moment when the asylum was granted,
the accused man was not exposed to any physical and transient danger such as
would result from the action of an angry mob, rioting, the impotence of the
government, or even from the constitution of an extraordinary tribunal, a
tribunal of vengeance. That is the essential basis of our counter-claim. If
that danger did not exist, and a fortiori if it did not persist, there was
no reason for granting asylum. Accordingly, it is only as a quite subsidiary
and secondary issue that we have discussed the point whether it was a
question of a common crime or of a political delinquency, or whether M. Haya
de la Torre was guilty or innocent. That point is entirely, or almost
entirely, outside the debate. We might have argued that you had no
jurisdiction to decide on it, and that the only question we were asking you
to answer was whether at the moment when the asylum was granted, and at the
present time, the refugee was exposed to any danger, and whether, in
consequence, the asylum was legitimate or otherwise."
The first sentence in the quotation takes in the original counterclaim, and
shows that Peru meant to ask the Court to decide on the grant and not the
maintenance of the asylum. The last sentence takes in both the original and
the new counter-claim made on October 3rd, and repeated on October 9th in
the course of the oral proceedings. It shows that Peru meant to ask the
Court to decide on the grant and also on the maintenance at the present time
("l'heure actuelle"); but not on the question of maintenance between this
original grant and the date of the judgment of the Court.
(c) My third reason for refusing to interpret "grant" as including
"maintenance" is to be found in the attitude of the Parties in this case.
Peru has not—either in the diplomatic correspondence, in the pleadings or in
the oral proceedings—called on Colombia to surrender the fugitive. This
attitude was fully explained in the Counter-Memorial. The explanation given
reserved the right to demand surrender; but it also showed that Peru
recognized that there were political as well as legal factors involved, and
that there was no desire to raise the question of surrender (and maintenance
is inseparably connected with surrender) pending the settlement of the legal
questions put to the Court in the counter-claim.
In fact, apart from the original grant of asylum, there has been no actual
issue of maintenance between the Parties. It was necessary to keep the
fugitive in the Embassy to preserve the matter in status quo during the
period of diplomatic negotiation. It was equally necessary to retain him
while the case was pending before this Court. In the absence of a demand for
his surrender, his retention was with the concurrence of the Peruvian
It is necessary to emphasize that I must confine my opinion to the
counter-claim as presented in the final submission of the Peruvian
Government made on October 9th, 1950. The request that the Court should
adjudge and declare "that in any case the maintenance of the asylum
constitutes at the present time a violation of that treaty" must be
rejected, because it was made in the course of the oral proceedings contrary
to the provision of Article 63 of the Rules of Court. Its acceptance would
deprive the Colombian Government of its procedural right to answer this new
counter-claim in the Reply, and to present evidence in respect of it. With
regard to the original counter-claim, I am bound to limit my opinion to the
question as to whether "the grant of asylum by the Colombian Ambassador ....
was made in violation of" the provisions of the Convention.
For all of these reasons, I am compelled to reach the conclusion that it has
been established that the asylum was granted by the Colombian Ambassador to
a political offender "in times of political disturbance" between a
successful revolution and the restoration of settled conditions in Peru. It
follows that this was an urgent case and that the grant of asylum by the
Ambassador was not made in violation of the provisions of Article 2 of the
(Signed) J. E. Read.
DISSENTING OPINION BY JUDGE AZEVEDO
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 international law,
because views which have been confirmed by that decision acquire
quasi-legislative value, in spite of the legal principle 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, i.e. 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 authorities, 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 [p333]
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
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
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 autonomy 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
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. [p334]
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
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 regime. 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
(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 difficulties of external refuge,
which can be reached much more easily in densely-populated areas where rapid
means of transportation are available to nearby frontiers. [p335]
(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
(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 irreparable 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 riot 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, Traite 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 considerable trouble.
To prevent abuse, American writers on international law (see H. Accioly, op.
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, particularly, the
continuity of this practice. It is indisputable that [p336] 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 communiques, 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 development of
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
governments 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 functioning 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 unnecessary 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 immediately 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 elements de la coutume
Internationale, in "La technique et les principes du droit public, Etudes en
l'honneur de Georges Scelle", Paris, 1950, Vol. I, pp. 276 et sqq.).
On the contrary, those occasional denials constitute violations of an
already established rule, for a State cannot oppose a custom previously
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 institution 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 consistency 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, Professor 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 [p338]
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 Cows,
Vol. 30, p. 295).
On the one hand, on October 12th, 1948, the respondent Government
recognized in an official note the respect of international 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 Executive—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 declaration 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
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.
These two considerations may lead to the belief that application more
geométrico 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 prater 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).
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
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, II delitto politico, Rome,
1950, pp. 20 and 98).
The question might arise, however, whether this protection against a mere
legal danger, the danger of unfair trial and condemnation, 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 exterritoriality, but simply by immunities granted to a foreign
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, which 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 regime 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
In this way the French law of March 10th, 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 [p340] aptly explained by Professor
Donnedieu de Vabres ( Traité de droit pénal et de législation pénale
comparée, 3rd éd., 1947, para. 1791).
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 explanatory 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 [p341] 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 susceptibilities 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 Northern 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 government and the courts of the
country of the accused or of the individual persecuted. The first grants of
asylum were not motivated by humanitarian reasons alone. They therefore
imply certain manifestations of opinion regarding the domestic affairs of
the country (0 direito internacional e a democracia, Rio de Janeiro, 1945,
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 anachronism when asylum begins
to be treated not as a mere option but as [p342] 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 Convention of a
rule to replace the faculty for the diplomat to grant asylum by an
obligation which he assumed vis-á-vis any individual who might need such
protection (Franchini Netto, O asilo diplomático e o costume internacional,
Sao Paulo, 1939, p. 100). Consequently, 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 Moneada, 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 Direito 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 unobserved outside the
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 II).
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
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
immediate 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, [p343] the maintenance of public
order, or respect for international undertakings.
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 recognition, 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
territorial 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
In the circumstances it is not apparent how this text is conclusive,
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. [p344]
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, 1949, 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 is 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 character 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. [p345]
Whether asylum is considered as a simple option, as a humanitarian 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 assurance 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 instantaneous 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 rebus sic
stantibus could then apply. Apart from this exceptional situation, the
refugee cannot be surrendered to the local authorities without his free
The grant of asylum 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
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 ferpetuam rei 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 extradition
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. [p346]
16. The Respondent has understood this problem perfectly. This is apparent
from the clarity with which he has formulated the counter-claim in verbis:
"the grant of asylum by the Colombian Ambassador .... was made in
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
Such a claim has been considered to be superfluous, but it was necessary to
accept a prolongation until August 31st, 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 ("octroyer", "accorder" and "conceder").
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 or 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 declaration 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 qualification. But a host of other reasons would explain the
omission—very [p347] frequent in Latin America—to ratify a convention which
also contained 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 constitutes 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 Nicaragua,
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
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 res 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, [p348] 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
It is true that current practice has developed in the direction of the
initiative being taken by the State of refuge, but a fundamental
psychological element should here be taken into consideration. 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
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
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 extradition.
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 (Pessoa, 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 unconditional departure might
be most detrimental to the State. [p349]
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
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
Reservations made by the territorial State are even-more understandable
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 postponement 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 obligation 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 1911 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, 1949.
Was this due to error or oversight? No, for in reply to the communication of
January 4th, 1949, the first letter of the Respondent 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 [p350] 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
criminality, 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
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 leitmotiv 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 declarations (see
Memorial, Counter-Memorial, Rejoinder and oral statements) 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. [p351]
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
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 qualification 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
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 counterclaim, became the Respondent, when,
in the absence of any objection 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
It was considered preferable to confine the discussion to a tacit agreement
of the Parties since, in the oral submissions, the Applicant 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 [p352] jurisprudence the
dissenting opinion submitted among others by-Judge Max Huber (P.C.I.J.,
Series A, No. 15: Judgment No. 12, p. 53). Furthermore, this was a case of a
lack of jurisdiction ratione materia which the Applicant has in fact
recalled in connexion with the duty of the Court to examine ex officio the
two requirements 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. 0. Hudson, 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 unexpectedly
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 9th, 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 [p353] 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 indication 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
Constitution remained in force before October 27th with only the
restrictions pertaining to a state of siege. It will be sufficient to note
that the said decree 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
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. [p354]
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
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 Government 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 Constitution 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
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 [p355] 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 regime. 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 unlimited 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 constitutional government can, in a simple
state of siege, exercise such essentially legislative functions by virtue of
particular provisions 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 proceedings in 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; [p356] 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
27. In fact, there is only one way of appraising any question of
responsibility whatsoever, and that is to return to the conditions 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, 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 paterfamilias.
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 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
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
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:
(I) 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); [p352]
(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 preliminary 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, 1949, 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
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 assassination of Grana 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"
29. My conclusion that both the main claim and the counterclaim 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 cequo 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 [p358] 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 asylum 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
admission of the counter-claim, I wonder whether the Respondent, who up to
now has not demanded the surrender of the refugee, will not be induced 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 arc not known,
it is permissible 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 provnils in Latin America.
(Signed) Ph. Azevedo.
DISSENTING OPINION BY M. CAICEDO CASTILLA
1. Diplomatic asylum is an institution which is characteristic of Latin
America. As a result of the frequency with which political upheavals occur
(civil wars, coups d'etat, etc.), and of the intensity of the struggle
between the various parties or groups, the aim of asylum in that part of the
world is twofold. Firstly, to protect the life, liberty and safety of
persons prosecuted for political offences by the local authorities, taking
this expression in its wider meaning to include the various organs of the
government. In accordance with this aim, diplomatic asylum has rendered
great services, for, generally speaking, it is statesmen, politicians,
intellectuals and outstanding personalities who request asylum. Asylum
protects the persecuted individual, whose merits may be recognized later on,
thus enabling him to render outstanding services to his country and to the
American continent. In Latin America we have not such an abundance of men of
ability and culture that we can afford to contemplate with an indifferent
eye their sacrifice on the altar of unbridled political passion. One glance
at the list of persons to whom asylum has been granted will show no less
than twenty heads of States. The list of writers, journalists,
parliamentarians and jurists who have at one time or another sought refuge
could be prolonged indefinitely, which goes to show that by protecting this
category of persons the State granting asylum is rendering a valuable
service to the territorial State in that it prevents biased legal
proceedings, unjust persecution or a decision based on the result of a
triumphant revolution from creating irreparable situations and sowing the
seeds of future discord and implacable hatred between the nationals of the
The second aim of asylum is in keeping with the ideal which has always
inspired Latin America, that of ensuring respect for fundamental human
In spite of governments which have, on more than one occasion, violated
these rights, the ideal aspiration has always been the establishment of a
democratic and republican regime in all American States. For this reason,
asylum has always been accepted on the international plane as a means of
guaranteeing political liberty.
2. An obvious conclusion may be drawn from the preceding considerations: in
studying the problems of diplomatic asylum and in reaching a decision,
account must be taken of the Latin-American spirit and environment, as well
as of the special interpretation of American international law regarding
asylum, which is very different from the European interpretation.
3. The Judgment of the Court refrains from considering the institution of
asylum as it appears in Latin America. Basing itself [p360] on such
grounds, the Judgment of the Court was necessarily bound to arrive at very
debatable conclusions with which I cannot agree.
Indeed, the Judgment imposes such limitations on the institution of asylum
that its practice becomes difficult, if not impossible. Thus, for instance,
the recognized right of the territorial State to question the qualification
made by the State granting asylum implies a legal insecurity concerning the
grant of asylum as well as the possibility -of lengthy litigation. With the
theory of urgency, it would be impossible to justify asylum ; with such an
interpretation, none of the hundreds of cases of asylum which occurred in
America during the last few years would be justified. With an interpretation
that the State of refuge may request the necessary guarantees enabling the
refugee to leave the country only if the local government has requested his
departure, asylum may be indefinitely prolonged and this would obviously be
prejudicial to both countries.
4. The Court rejects the contention of Colombia that the State granting
asylum has the unilateral and definitive right to qualify the nature of the
offence of which the refugee is accused. At the same time, the Court agrees
that Colombia was entirely right in her qualification of M. Haya de la Torre
as a political offender.
This last point is of great importance, for the whole dispute between the
two Governments, as will be seen from a mere reading of the diplomatic
correspondence between the Ambassador of Colombia in Lima and the Minister
for Foreign Affairs of Peru, referred to the insistence of the Peruvian
Government in considering that well-known intellectual and eminent
political leader, M. Victor Raul Haya de la Torre, as a vulgar common
criminal. In spite of the fact that, during this case, the Peruvian
Government brought new and abundant evidence in an attempt to prove its
views, the Court Unanimously decided that it has not been established that
M. Haya de la Torre was a common criminal.
It is thus evident that the attitude of Colombia was -unimpeachable, since
she gave asylum to a political refugee. In accordance with the legal
principles and the jurisprudence in force in America, the Colombian
Ambassador could not act otherwise.
5. In my opinion, the State which grants asylum must have the right to
qualify unilaterally and definitively the nature of the offence of the
refugee. I base this view on:
(1) the Havana Convention of 1928 and the Bolivarian Agreement of 1911,
both in force and binding upon Colombia and Peru; [p361]
(2) the very nature of the American institution of asylum;
(3) the obligations deriving from the international custom existing in the
6. The Havana Convention provided that asylum was to be determined by the
laws of the country of refuge. This is clearly stated in Article 2 of the
Convention, and may be also deduced from the history of that Convention.
The draft was prepared at the 1927 meeting of jurists in Rio de Janeiro and
submitted as a basis of discussion at the Havana Conference. Article 2,
however, was modified with the definite aim of referring to the customs,
conventions and laws of the country granting asylum.
The documents of the Havana Conference and of its Second Committee enable us
to follow the various steps in the elaboration of the Convention. As the
United States delegation opposed the right of asylum, the Mexican delegate,
Dr. Gonzalez Roa, undertook to find a formula which would enable all
American States, including the United States of America, to sign the
proposed Convention in spite of their different views regarding the right of
asylum and the extent of its application. In this formula of the Mexican
delegate, which became Article 2 of the Havana Convention, two main points
(I) No effort is made to find a definite basis for asylum from the legal
point of view, so that some contracting States may consider asylum as an
institution based strictly on law, whilst others may consider it as a custom
or merely a humanitarian toleration. Within the framework of the Havana
Convention, this point is of no interest.
(2) Apart from the provisions laid down in this Convention, the conditions
of asylum are also determined by the law of the country of refuge.
The United States, nevertheless, did not accept the Havana Convention, which
did not achieve the desired unanimity. Article 2, however, retained the
definitive form proposed by the Mexican delegate with the scope and extent
already mentioned. By virtue of this article, according to the explanation
given by the Mexican delegate in his report to the Mexican Government,
"contracting States remain free to pursue their own policy in matters of
asylum". It is for this reason that the Argentinian writer, M. Bollini Shaw,
maintains in his important work on the right of asylum that the Havana
Convention is restrictive in that it does not lay down one general rule but
refers to the particular legislation of each of the signatory States.
In view of the scope of Article 2 of the Havana Convention, the Rapporteur
of the 1939 Montevideo Convention was able to state [p362] in a document as
important as the Official Report, that in the Havana Convention "asylum was
left to the customs, conventions and laws of the country of refuge".
The author of this Report is the Chilean professor Julio Escudero Guzman,
former member of the Inter-American Legal Committee, and the Report, before
being submitted to the Montevideo Congress, was approved by all members of
the Committee on which all the countries attending the Congress were
represented, including Colombia and Peru.
I have no intention of claiming that this document lays any legal obligation
whatever on the Parties in the present case, but I strongly maintain that it
is of acknowledged importance for a proper understanding of the
interpretation and extent of Article 2 of the Havana Convention. For this is
a document that was drawn up and approved by well-known American legal
advisers, who had no dispute to settle and no special case before them, but
whose intention it was to prepare a report of an exclusively legal nature.
This interpretation of Article 2 of the Havana Convention is so obvious that
both Parties in the present case accept it—Colombia explicitly in all its
allegations, while Peru, in spite of attacking it in several places, does
in. fact accept it in its statement regarding its interpretation of the
Havana Convention. It is asserted on page 10 of the Peruvian Rejoinder:
"Henceforth an asylum would not be considered regular, and consequently
would not have to be respected if it were proved that the diplomat who
granted it, or the government which directed him to maintain it, was not
acting in conformity as a minimum with the prescriptions of their domestic
law, whether customary or conventional."
This interesting opinion set forth in the Rejoinder in such positive terms
amounts to a statement that henceforth asylum will be considered regular and
must consequently be respected, once it is proved that the diplomat who
granted it or the government which directed him to maintain it was acting
in conformity, as a minimum, with the prescriptions of their domestic law,
whether customary or conventional.
7. The Havana Convention does not require all three factors, custom,
convention and law, since it refers to customs or conventions or laws,
which means that the existence of one of these factors is sufficient.
However, as regards Colombia, the three factors are equally in favour of
In the case of asylum in Colombian embassies or legations, that country has
always claimed and obtained the right to qualify. In the course of this
case, numerous examples were mentioned to prove this fact; I do not think
that there is any need to repeat [p363] again. In cases of asylum in
foreign embassies or legations, the Colombian Government has always
respected the qualification of the respective diplomatic agents.
Colombian usage has been amply proved. Almost twenty cases of asylum
occurred since 1928 in the foreign embassies and legations accredited in
Colombia. In all these cases, asylum was respected and safe-conducts
granted. There were eleven cases in which the Colombian Government did not
agree with the qualification made by the foreign diplomatic agent, but in
all these cases the Government yielded to the unilateral qualification. All
these cases have been listed in detail either in the Written Pleadings or in
the oral statements (see Memorial of Colombia, p. 82; Rejoinder, p. 34; Oral
Statements, p. 44).
I do not think that it is possible to submit more complete or more
convincing proof without a single contradictory case and without it being
possible to argue that the countries concerned were signatories of the
Montevideo Convention of 1933; for several of these cases of asylum involved
Venezuela, which has not ratified either the Havana or the Montevideo
Convention and, consequently, has no bond with Colombia other than that
derived from the Bolivarian Agreement of 1911 and from the principles of
American international law.
8. As regards Colombian laws and conventions, we must quote law No. 15 of
1936 approving the 1933 Montevideo Convention on political asylum. This
Convention contains an article under which "the judgment of political
delinquency concerns the State which offers asylum".
Law No. 15 of 1936 is a Colombian law enacted with the same formalities as
the ordinary laws, it was approved by the Chamber of Deputies and the Senate
of the Republic, and duly confirmed by the executive organ of the
government. It proves the adherence of Colombia, of the executive and
legislative organs of Colombia to the theory of unilateral qualification.
9. In an effort to invalidate the views expressed above, reference has been
made to a report by M. Raimundo Rivas, which was approved by the Committee
of Legal Advisers to the Ministry for Foreign Affairs. It should be pointed
out in this connexion that the Committee in question is merely a
consultative body and that its opinions are not binding on the Government
which may well depart from them. The Committee's opinion is at most a piece
of information supplied to the Government. By requesting it, the
Government did not pledge itself in advance to approve it. Consequently, M.
Rivas's report merely expresses the private opinion of a writer and can in
no sense be considered an official Colombian document. Furthermore, some of
the information it contains is false, as, for example, his reference to the
Spanish Civil War when he states that [p364] Colombia did not grant asylum
to one single person, whereas, on the contrary, she granted it on several
occasions. On the other hand, on page 182 of the Counter-Memorial may be
found a fragment of a declaration by the Colombian Government showing the
attitude and opinion of Colombia in the case of Spain, which were in
absolute agreement with the generous and liberal views so brilliantly
defended by Chile at the time.
10. There is another aspect of the question. The right to qualify the nature
of an offence must necessarily lie with the State granting -asylum,
otherwise the very institution of asylum could no longer exist. For asylum
is granted precisely to protect those persons who are prosecuted by the
local government, usually at difficult moments in the life of the country,
moments of great upheaval when political passions lead to the diminution or
disappearance, even in very highly cultured statesmen, of that serenity of
mind which is indispensable for an impartial judgment of political
opponents. To recognize the right of the local State to qualify the nature
of the offence would be equivalent to allowing this qualification to depend
upon the opinion of the government, whose interests would urge it to act
against the refugee. Asylum in these circumstances would be absurd.
Unilateral qualification is in fact inherent in the very nature of the
asylum itself; it is essential for the continued existence of this
institution as it is understood in Latin America.
In this respect there can be no better quotation than a passage from
Professor Scelle in his commentaries on cases occurring in South America in
1911, which appeared in the Revue générale de Droit international public.
The first case was the dispute between the Argentine Republic and Paraguay,
and Professor Scelle wrote, inter alia:
"The Treaty of Montevideo (of 1889) states that the list of refugees should
be submitted to the local government before asylum may definitely be granted
and the refugees transported to foreign or neutral territory. This does not
signify that the local authority has the right either to oppose this
transfer or to insist that such and such a refugee should be surrendered to
it, for this would render the right of asylum illusory. In doubtful or
disputed cases, a definitive decision can only be made by the authorities
granting asylum FN1." (Revue generale de Droit international public, 1912,
Translation by the Registry.
The conclusions could not be more final or more opportune : asylum would be
illusory if the territorial State could demand the surrender of the refugee
or oppose his departure from the country ; in case of doubt the decision can
only be made by the authorities granting asylum. [p365]
In his analysis of the dispute which arose in 1911 between the Governments
of Ecuador and Great Britain regarding the asylum granted to a number of
refugees on board a merchant ship (the case in which the Minister for
Foreign Affairs of Ecuador, Dr. Tovar, attempted to assimilate internal and
external asylum), Professor Scelle makes the following general observations
on the problems of asylum:
"This assimilation of external and internal asylum made by the Minister of
Ecuador was rather clever. It is juridical, and, in practice, it would
appear that asylum on territory properly speaking is more difficult to grant
than diplomatic asylum. It would also appear that the examination of
political refugees is usually much more thorough in the case of external
asylum, and this is understandable as it is easier. In both cases, however,
the right of decision lies entirely with the government granting asylum
Translation by the Registry.
Professor Scelle's opinion is categorical. As regards the examination of
political refugees, whether in a case of territorial asylum or in a case of
diplomatic asylum, "the right of decision lies entirely with the government
11. Similarly I can refer to the Dutch writer, M. Savelberg, cited in the
Counter-Memorial of Peru as an authority in matters of American
international law. M. Savelberg has, in several passages of his book,
insisted on the need for unilateral qualification. He says that this
qualification "is necessary in order to prevent a State which recognizes the
right of asylum on its territory from rendering its exercise impossible by
means of an arbitrary interpretation of the expression 'political offence'
FN1" (p. 359). He says elsewhere that unilateral qualification "is
indispensable, since the State in which asylum has been granted, having
received the qualification of the political offence, could by an arbitrary
interpretation of that expression render illusive any exercise of that
right". (P. 284.)
Translation by the Registry.
12. As regards practice, I would point out that it has been favourable to
unilateral qualification and that the Havana Convention has been constantly
interpreted in this manner. This is not a personal statement, it is an
assertion by one of the most authoritative international jurists of America,
M. Hildebrando Accioly. This eminent Brazilian author and diplomat who is at
present his country's representative on the Council of the Organization of
American States, writing on the question of "who shall decide whether the
motives justifying the asylum are purely political or whether they contain
an element of common criminality" states that "in practice and, as is only
reasonable, the solution was left to the discretion of the diplomatic agent
granting [p366] asylum, just as, in the case of extradition, it is the
requested State which has the right to determine the nature of the fact
which justifies extradition". (Accioly, Vol. II, p. 351.)
13. As for the tendencies of American law, an eloquent illustration is
provided by the fact that twelve countries ratified the two Conventions of
Montevideo which expressly confirm the rule of unilateral qualification,
namely, Brazil, Colombia, Chile, Salvador, Guatemala, Honduras, Mexico,
Nicaragua, Panama, Paraguay, the Dominican Republic and Uruguay. Three
countries which had ratified the Havana Convention, namely, Costa Rica, Cuba
and Ecuador, also accepted the above rule, by means of declarations of a
public character. Finally, two countries, the Argentine Republic and
Venezuela, which did not ratify the treaties, also recognize the above rule.
In all, seventeen out of twenty Latin-American countries are in favour of
unilateral qualification. The Colombian view is thus the very expression of
14. The theory according to which the qualification should be made jointly,
that is, provisionally by the State of asylum and then ratified or rejected
with objections by the territorial State, practically amounts to this: that
qualification would be the attribute of the territorial State. For with this
joint qualification, the territorial State can at will prevent the
institution of asylum from functioning. It would be strange, but true, that
on the pretext of avoiding unilateral qualification we should arrive at a
confirmation of that practice—in favour however of the territorial State.
It may be argued that in the event of a difference of opinion the States
concerned must resort to arbitration or to legal proceedings. That would
mean that each case of asylum would become a lawsuit, a lengthy lawsuit, for
it is understandable that international proceedings should require several
months to examine and decide upon a case. Asylum would then become an
inexhaustible source of litigation and hence of dispute among States, with
the result that the two countries would have to examine the domestic
situation of the territorial State, thus rendering the dispute bitter and
embarrassing and probably giving rise to a disagreement which would hamper
and weaken understanding between the two countries.
15. On the other hand, what is there to justify the conclusion that the
Havana Convention recognizes such a prerogative as appertaining to the
territorial State? Nowhere is this stated in the Havana Convention. It has
been said that we should abide strictly by the letter of the texts; where
are such texts to be found which speak of two qualifications, one
provisional and one final, or which provide that the right of qualification
must be exercised both by [p367] the territorial State and by the State of
refuge? On the contrary, instead of express rules, there is a reference to
the usages, conventions and laws of the country of refuge. This reference,
which completely supports the Colombian view, is an express and literal
reference contained in the Convention.
16. Peru has on several occasions accepted the American practice as
obligatory, including the principle of unilateral qualification.
In 1936, during the Spanish Civil War, the Peruvian Government, in an
official declaration by its Minister for Foreign Affairs, expressed its
solidarity with other American countries, stating that it was "in entire
agreement with the theories maintained in Madrid by diplomatic
representatives of the Argentine Republic, Chile and other countries".
But the theories put forward by these countries were precisely the legality
of diplomatic asylum, the right of the State granting asylum to qualify the
nature of the refugee's offence, and the duty of the territorial State to
give the necessary guarantees to enable the refugees to leave the country
Explaining the attitude of the Latin-American States towards Spain, the
Chilean delegate to the League of Nations summed up the opinions of the said
States in these words:
"All refugees, at least those in embassies and legations of Latin-American
States, have been received in accordance with the rules regarding the right
of asylum laid down by the 1933 Montevideo Convention."
On October 26th, 1948, the Peruvian Government published an official
statement on asylum, from which we shall quote the following paragraph:
"Under the relevant international conventions in force, the State granting
asylum is competent to qualify the act which has motivated asylum, either to
decide that it is a criminal offence, or that it is a political offence....
For its part, Peru has previously claimed that, when a diplomatic
representative refuses to surrender a refugee because he does not consider
him as a common criminal offender, extradition is granted only when the
refugee has left the country, and according to the procedure established by
international agreements on the matter. This thesis is accepted and
recognized by all American States." (Memorial of the Government of Colombia,
An analysis of this statement shows that:
(1) The Peruvian Government agreed by virtue of treaties in force in
America, including the Havana Convention, that the right to qualify the
nature of the offence belonged to the State granting asylum.
(2) Peru had already maintained on previous occasions that, if a diplomatic
agent did not surrender a refugee on the grounds [p368] that he was not a
common criminal, the Peruvian Government would respect the decision of the
foreign diplomatic agent, reserving its right to request extradition once
the refugee had left Peruvian territory. In other words, Peru had already
declared itself in favour of unilateral qualification by the foreign
diplomat and the obligation to provide a safe-conduct without, however,
prejudicing its rights to make a subsequent request for extradition.
(3) According to the official statement, the foregoing doctrine is at the
present time not merely a Peruvian doctrine but has been accepted and
recognized by all American States.
The foregoing declaration is not that of a mere official but of the Peruvian
Government itself. Moreover, it was made after the October revolution,
precisely with the object of defining the attitude of the Peruvian
Government towards the numerous cases of asylum which had arisen. It was in
force on January 3rd, 1949, as the expression of the rules which the
Government of Peru accepted at that date in matters of asylum. In such
circumstances, the declaration has a very definite legal significance.
17. Apart from the Havana Convention of 1928, there exists another agreement
binding on both Colombia and Peru, namely, the Bolivarian Agreement on
Extradition of 1911, Article 18 of which recognizes the institution of
asylum'in conformity with the principles of international law.
The argument that, because the Caracas Agreement is an extradition treaty,
it has nothing to do with the regulation of asylum, has a certain force
which I cannot deny in so far as there is any intention to apply the rules
of a treaty on extradition to the institution of asylum. But it is quite
inadmissible to seek to deny the value of Article 18. For the argument that
asylum and extradition are different institutions leads precisely to the
conclusion that Article 18 has a very definite significance, namely that it
makes it quite clear that, apart from the stipulations regarding
extradition, the contracting States have agreed to recognize another
institution, asylum, and have admitted that that institution should be
governed by legal principles. Thus the Agreement regulates two
institutions—extradition in all clauses of the Agreement except one, and
asylum in one clause, Article 18. It may be argued that it is inconvenient
and unusual to regulate two different institutions in the same treaty; but
this criticism, even if it were valid, would not deprive Article 18 of its
legal value or render it inapplicable. On the other hand, it is obvious that
the plenipotentiaries of 1911 were of opinion that the two institutions were
similar and that they could, consequently, be included, from a formal point
of view, in a single treaty. This view may be criticized, but it must in
any case be respected; it was after ail adopted by the said
plenipotentiaries. Furthermore, it had already been adopted in the Treaty of
Montevideo of 1889, which included both institutions in the same treaty
under different headings. [p369]
To contend, as the Rejoinder does, that the article is devoid of effect
because it confines itself to an obvious statement—a simple allusion to
international law—amounts to a unilateral denial of a contractual
obligation. Article 38 of the Statute of the International Court of Justice
says that the latter will apply the general principles of law ; it cannot be
argued that, because these principles have not been determined and because
the article makes a simple reference to law, this provision of the Statute
is null and void. Yet this is practically the claim that is made regarding
Article 18 of the Bolivarian Agreement.
The most reasonable thing to do would be to examine Article 18 of the
agreement and ascertain what juridical effects it could have. It would then
be found, in the first place, that the signatory States recognize asylum as
a right; it is not a practice, neither is it a simple act of humanitarian
toleration, but an institution governed by the principles of law. In the
second place, this institution is recognized in accordance with the
principles of international law; namely, in accordance with those principles
accepted by American States, both in their international conferences and in
their collective declarations. These principle s of international law cannot
be other than those which have been stated in the various treaties on asylum
which were concluded in America, whether or not they were ratified by the
"Bolivarian" countries; for we are not concerned with the determination of a
contractual obligation, but with the determination of those principles
which are generally adopted in America in matters of asylum. For example,
according to the Bolivarian Agreement of 1911, asylum may only be granted to
political offenders. Why? Simply because this is the principle that is
generally accepted in American international law. The same thing should hold
good as regards the qualification of the offence. This qualification
appertains to the State granting asylum, since the principle is specially
mentioned in the Montevideo Convention of 1933; according to the Havana
Convention, it is applied when the law of a country granting asylum
recognizes it ; and furthermore, this constitutes the practice of American
A further conclusion may be drawn from this article, namely, that acceptance
of the application of the principles of international law entails a
recognition of principles which may be derived from international custom. If
this is the case, this article in the Bolivarian Agreement has a special
meaning as regards custom in matters of asylum, namely, that it demonstrates
the existence in both Colombia and Peru of one of the elements which arc
necessary for the existence of a custom—the psychological element, the
opinio furis sive necessitatis. The Bolivarian Agreement recognizes asylum,
recognizes the value of the principles applied in America; hence [p370] it
includes these principles as binding. Consequently, their acceptance by
governments or by one individual government implies their acceptance by that
government as "being the law", that is to say, that they are the applicable
This is a matter of the utmost importance, since the psychological element
of custom, which is always so difficult to prove, is here entirely proved.
18. In my opinion, diplomatic asylum is an international custom of Latin
American Republics have practised asylum, have respected the unilateral
qualification exercised by the State granting asylum, and have furnished the
indispensable safe-conducts to enable the refugees to leave the territory.
The custom has been continuous since it arose as early as the middle of last
century. Thus we see that we are dealing with a custom one century old and
consequently much earlier in date than any treaties that exist on the
The custom was general; all the Latin-American Republics recognized and
practised diplomatic asylum and all exercised the right to unilateral
qualification of the offence when circumstances required it. Mexico, the
Republics of Central America, Cuba, and the South American Republics are all
in the same position.
Finally, by recognizing the practice of asylum, the American Republics
accepted it as obligatory. Nothing is more remarkable in this respect than
the case of the Republic of Venezuela. It offers asylum in its embassies and
legations and respects asylum in foreign legations and embassies without
having ratified either the Montevideo Convention or the Havana Convention.
That is to say, it recognizes asylum as an American right, as a practice
which is obligatory throughout the continent. In the same way, it also
accepts the unilateral qualification of the offence.
There is a recent case in which several countries were involved and which
demonstrates the general feeling of American countries regarding the
obligatory character of asylum. With reference to the asylum of ex-President
Betancourt in the Colombian Embassy at Caracas, the Chilean Government,
supported by the Guatemalan Government, lodged a protest with the Council of
the Organisation of American States against the Venezuelan Government "for
its delay in delivering the safe-conduct". Thus we see that a country like
Chile, which had no treaty with Venezuela regarding asylum, considered that
it had the right to lodge a complaint against the latter in order to obtain
the necessary guarantees to enable the refugee to leave Venezuelan
territory. This is not all! Chile then claimed that the refugee in question
was at the embassy of a third State. Such a claim could not have been made
by a country so highly respected in America as Chile, had it not been for
the conviction that the practice of asylum, with its various consequences,
is juridically obligatory. It must furthermore be noted [p371] that in the
incident in question, the Republic of Venezuela did not put forward as an
excuse or as a reply to the Chilean protest the non-existence of treaties on
asylum. Neither did it deny the juridical obligations resulting from this
custom. On the contrary, it proved that it had respected American practice
and American law by showing that the safe-conduct had already been granted
when the complaint was lodged. Thus we have the example of three American
States, Chile, Guatemala and Venezuela, recognizing the practice of asylum
as obligatory, together with its consequences, such as the qualification by
the country granting asylum and the right of the said country to demand a
safe-conduct for the refugee.
Another American country noted for its outstanding culture, Uruguay, has
also maintained the opinion in question on several occasions. It will be
sufficient to mention the memorandum presented by the Uruguayan Embassy in
Lima to the Peruvian Minister for Foreign Affairs and Public Worship
regarding the asylum granted to MM. Manuel Gutierrez Aliaga and Luis Felipe
Rodriguez. One of the paragraphs of the Memorandum states:
"In accordance with the preceding facts, the Acting Charge d’Affaires
received instructions from his Government to impress upon the Peruvian
Government the necessity for a speedy delivery of safe-conducts which cannot
be delayed on the pretext of an alleged implication of the refugees in
common crimes or political offences related thereto, by virtue of the
principle by which the country granting asylum has the right to decide
whether the offence is of a political nature or is a common crime."
In the case of Paraguay of 1922, other countries, the Argentine Republic,
Brazil, Uruguay, Bolivia, Cuba and even Peru collectively drew up the
following declaration as a rule of conduct and embodied it in an official
"Any person who shall request asylum in the residence of a foreign
delegation for reasons of a political nature shall make a statement of the
facts which led him to request asylum, and the appreciation of the
circumstances shall be left to the head of the legation."
In the case of Spain, the Argentine and Dominican Republics maintained that
Spain, in spite of the fact that it had no treaties regarding the right of
asylum, should nevertheless respect this practice, and also that the head of
the legation or embassy had the right to qualify the offence and to request
the delivery of safe-conducts in every case.
The Government of Cuba declared in a recent statement:
"The principle that the qualification of the offence concerns the State
granting asylum is a general rule of law confirmed by custom." [p372]
In Chile, the instructions of the Ministry for Foreign Affairs to its
diplomats of November 26th, 1935, say:
"The right to qualify the political offence appertains to the State granting
asylum." (Quoted by Antokoletz.)
In a recent declaration, Costa Rica has expressed itself in favour of the
theory according to which the State granting asylum has the right to qualify
the nature of the offence.
Ecuador also has very definitely stated its opinion as follows:
"The Government of Ecuador considers that Article 18 of the Bolivarian
Agreement and Article 2 of the Convention on Asylum of February 20th, 1928,
which are valid instruments for Ecuador, should be interpreted as meaning
that the qualification of the nature of the offence appertains to the
country granting asylum.... The Government of Ecuador bases this view on the
very nature of the institution of asylum: this institution would lose all
value if the local government were granted the right to qualify the nature
of the offence, thus rendering inoperative the international agreements on
the matter. On the other hand, American customary law also attributes the
right of qualification to the country granting asylum. This interpretation
was expressly confirmed by the Convention on Asylum signed at the Seventh
American International Conference at Montevideo in December 1933 FN1."
Translation by the Registry
19. As regards the question of a safe-conduct, the Judgment maintains that
Article 2, § 3, of the Havana Convention should be interpreted as meaning
that the State granting asylum may only request the necessary guarantees to
enable the refugee to leave the country, after the territorial State has
requested the refugee to leave the national territory.
I cannot accept this interpretation for several reasons, but chiefly because
I believe that the Havana Convention recognizes two separate rights:
(a) firstly, the right of the territorial State to require the removal of
the refugee from the territory as rapidly as possible, that is to say that,
as asylum is a transitory situation which cannot be prolonged indefinitely,
the State granting asylum should respect this request. This is an obligation
on the State granting asylum. The sojourn of the refugee on national
territory cannot be prolonged against the will of the territorial State;
(b) the second right is that, which is conferred by the above-mentioned text
upon the State granting asylum, to require that the refugee should leave the
country with the necessary guarantees. This right is a necessary consequence
The unanimous practice of American States is in accordance with this
interpretation. In all cases of asylum, the diplomatic agent has requested
and obtained the departure of the refugee [p373] without waiting for the
territorial government to take the initiative. This practice has been amply
proved in the documents annexed to the Pleadings of this case. They include
a note dated October 20th, 1944, from the Minister of Peru in Guatemala to
the Honourable Members of the Revolutionary Junta of Guatemala; another,
dated October 28th, 1948, from the Peruvian Legation in Panama to the
Minister for Foreign Affairs of Panama, and two other communications, dated
November 2nd and 5th, 1948, respectively, from the Uruguayan Embassy in Lima
to the Minister for Foreign Affairs of Peru. All these notes announce the
grant of asylum and simultaneously request the delivery of safe-conducts; in
none of these cases has the State of refuge waited for the territorial State
to express any wishes on the subject.
It would be impossible to quote a single diplomatic communication contrary
to this practice. And as far as Peru is concerned, apart from the
above-cited documents of the Peruvian Legations in Guatemala and Panama,
there is an official Government communique of October 12th, 1948, which
states: "The Government, respectful of its international agreements and of
the established practice, has granted the respective safe-conducts." In
other words, the Peruvian Government admits that, in accordance both with
the treaties in force and with American practice, it is compelled to deliver
It has also been maintained that American practice is contrary to the text
of the Convention and that, consequently, it cannot prevail. It should be
argued in reply:
(1) that authors such as Accioly consider that the Convention conforms with
practice on this point;
(2) that practice shows what interpretation has been put upon the Convention
by the countries which signed and ratified it.
If there has been no other interpretation, why search for an interpretation
of the Havana provision outside American custom?
On the other hand, why disregard the interpretation which had been accepted
by Peru? It may be said, to meet this argument, that States are entitled to
change their minds. I recognize that right as far as purely political
questions are concerned, but as regards legal questions, such as the
interpretation or application of treaties, a change of opinion is scarcely
admissible except for the future. Otherwise an element of uncertainty would
be introduced into international relations. It is hardly admissible in law
that a country, after maintaining a given interpretation of a treaty and
making it known to other contracting parties by declaring its intention to
apply that interpretation to cases involving given circumstances, should be
able to disregard its own interpretation in cases and circumstances arising
whilst that rule was still considered to be in force. [p374]
Any other practice would create a new element of insecurity in international
Furthermore, there have been cases in which the opinion of the State
granting asylum prevailed. We may, for example, quote the case of the
parliamentarian Rodriguez Araya, who took refuge in the Uruguayan Embassy in
Buenos Aires in 1949. The Argentine Government declared that the local
authorities were not prosecuting him and that the latter enjoyed all
necessary guarantees to reside freely on the national territory. In spite of
this declaration by the territorial State, Uruguay insisted that the refugee
should be allowed to leave the territory of the Argentine Republic. In face
of this insistence, the Argentine Republic, which has so many noble
juridical traditions in matters of asylum, immediately granted the necessary
Consequently, it must be admitted that the interpretation put by Colombia
upon Article 2 of the Havana Convention is entirely in accordance with the
general principles of law, as well as with the spirit of the text and the
provisions of the Convention taken as a whole. Colombia has thus respected
the uniform and continuous practice of the American nations, including
20. In my opinion the second basis of the counter-claim (case of urgency) of
the Government of Peru presented on March 21st, 1950, does not come within
the jurisdiction of the Court and is not directly connected with the
subject-matter of the Application. My grounds for this opinion are that
Peru, during the controversy which preceded the signature of the Act of
Lima, made no claim whatsoever concerning the existence of urgency; and
consequently, this consideration was not a part of the existing dispute ; it
was not referred to by Colombia in connexion with the question of the grant
of a safe-conduct, the latter question being based upon the essentially
political nature of the offence attributed to the refugee, the grant of the
safe-conduct constituting an obligation for the territorial State. There
was no other subject of dispute between the Parties.
21. As regards the condition of urgency, it is sufficient to recall that M.
Haya de la Torre was threatened in his life or liberty due to the fact that
he was being prosecuted for political reasons, and this consideration
justifies the conclusion that he was entitled to invoke in his favour the
institution of diplomatic asylum in Latin America.
Furthermore, there is abundant evidence to show that at that time Peru was
passing through an abnormal situation. One of the first decrees promulgated
by the Military Junta was that of Novem-ber 2nd, 1948, under which "the
Military Junta of the Government assumes all the powers which the
Constitution of the State confers upon the executive and legislative
branches of the Government" FN1.
Translation by the Registry
In other words, the de facto military government conferred upon itself the
right to make new laws and modify or abrogate existing laws, without regard
to the rules of the Constitution. In the exercise of the rights which it had
conferred upon itself, the Junta enacted decrees as grave as that of
November 4th, which provided for Oral Courts-Martial and authorized the
application of the death sentence, whilst suspending appeal to the Supreme
Court against the judgment. The decree-law fastened those accused of
military rebellion, such as M. Haya de la Torre, in a grip of iron: the
members of the Courts-Martial were soldiers who depended upon the
government, the defence for the accused was to be appointed by the
government, the penalty imposed might be death, which was not accepted under
the Code of Military Justice, and there was to be no appeal against the
judgment; all the foregoing measures superseded the Peruvian Code of
Military Justice which had provided for an appeal to the Supreme Court on
the grounds of nullity, naturally restricted to alleged irregularities of
Subsequently, on November 17th, a new decree-law was enacted concerning the
composition of the Supreme Court of Justice, which stated as follows:
"I. Law No. 9654 of November 13th, 1942, is abrogated: the positions which
are at present provided on the Supreme Court of Justice of the Republic
under law No. 9654 are vacant as from the date of the present decree.
2. The vacancies resulting from the application of the present decree as
well as the positions of Judges and General Advocates of the Supreme Court
of Justice shall be filled by direct appointment of the Military Junta of
the Government FN1.”
Translation by the Registry
It is true that the Agent of the Government of Peru declared that the decree
of November 4th does not have retroactive effect. But this declaration in no
way modifies the problem in so far as M. Haya de la Torre is concerned. For
this problem must be envisaged as it existed on January 3rd, 1949, the date
of the grant of asylum: at that time the decree was in force and there was
no reason to believe that it would not have retroactive effects for: 1) no
declaration had been made by the Government in this connexion, 2) there
existed at that time a de facto Government whose powers were founded, not on
constitutional provisions but on the success of a coup d'état: and that
Government had conferred upon itself the right to promulgate laws regardless
of the Constitution, and 3) it was not known how this decree would be
interpreted by the Oral Courts-Martial.
On the other hand, the Peruvian Government during those same days of October
and November 1948 had promulgated decrees of a retroactive character, such
as that of October 4th [p376] concerning the outlawing of the Aprist Party
which established the collective criminal responsibility of the Aprist
leaders for the events of October 3rd. In other words, there was established
ex post facto a penal responsibility attributable to a whole category of
persons. A further retroactive decree was that of the Military Junta
concerning the suspension of proceedings for military rebellion which had
been instituted against Colonel Llosa and others for the abortive revolution
of July 1948. This decree intervened in the operation of military justice,
and suspended the action of the latter.
In making these remarks, I in no way intend to criticize the Peruvian
Government, for it is evident that it could judge, better than anyone, what
measures should be taken for the country. My sole reason for referring to
all these laws is because, in my opinion, they prove clearly that there
existed an unstable domestic situation characterized by political
disturbances, precisely the kind of situation constituting the urgency of
This abnormal situation is confirmed by the existence of a state of siege.
By a supreme decree of January 2nd, 1949, published on January 3rd, i.e. the
very day asylum was granted to M. Haya de la Torre, the state of siege was
extended for 30 days. In its recitals, the decree states that "the reasons
which have led to the decree providing for the suspension of individual
guarantees, continue to exist....". In other words, the abnormal situation
continues to exist. The decree adds "that it is necessary that the authority
should have extraordinary powers in order to maintain public order and
Translation by the Registry.
It has been pointed out that Haya de la Torre sought refuge only on January
3rd, whereas the revolution had occurred on October 3rd. For me, the time
factor has no importance, for the important question here is whether on
January 3rd the abnormal situation still existed: and irrefutable proof of
this fact is furnished by the above-quoted decree. On the other hand, if the
Callao revolution occurred on October 3rd, it was only at the end of that
month that the military uprising occurred which aggravated the situation of
M. Haya de la Torre, since the second revolution which led to the fall of
President Bustamante took place with the avowed intention of punishing Apra.
Consequently, the policy of the new government consisted of the exclusion
and repression of Aprism (note of February 22nd, from the Peruvian Minister
for Foreign Affairs: "It was for that reason that the armed forces of the
Republic, by a unanimous impulse, took action to put an end to all this
crime and wickedness, and to save Peru." P. 150 of the Counter-Memorial).
Furthermore, M. Haya de la Torre, prosecuted as a criminal, his personal
assets having been seques-trated, and in the face of a declaration of a
state of siege which [p377] facilitated search without a warrant from a
competent judge, and at a time when foreign embassies and legations were
under the surveillance of the police, M. Haya de la Torre, we say, was not
really in a position to choose the date of his asylum. It might be said that
he sought refuge when he could.
The existence of the condition of urgency was so evident that it was
accepted without hesitation by the Diplomatic Corps accredited in Lima.
For, following the revolution of October 3rd, M. Haya de la Torre was not
the only person obliged to seek asylum. There were many refugees who had
sought and obtained asylum in eight embassies; all of them were Aprist
leaders involved in the same proceedings as M. Haya de la Torre. It is
possible to deduce from the foregoing that the Ambassadors considered that
there existed a situation implying serious danger for-the security of the
refugee Aprist leaders. The case of M. Haya de la Torre is identical with
that of the other refugees.
On the other hand, it must not be forgotten that M. Haya de la Torre was
reputed to have given orders for the extermination of his adversaries. There
is no proof of this order, but the rumour was spread (Counter-Memorial, p.
7). In moments of such confusion and passion when a complete change in the
political situation had just taken place, it was quite conceivable that
there should be some danger of reprisals against the Aprists, and more
especially against their leader. The leaders of a victorious revolutionary
movement, even when they have assumed total power, are not always able to
control the activities of the extremist elements among their subordinates
and supporters. The very fact that the Colombian Embassy in Lima has been
provided with a continuous police guard, is evidence of the anxiety of the
local authorities lest the political opponents of Haya de la Torre might
take action to seize him and endanger his life. If that happened while he
was in the Embassy, how much greater would the possibilities have been and
how much greater the danger for his personal safety, had he been in another
Furthermore, in judging the conduct of the Ambassador, we must consider:
1. That the two official communiques of the Peruvian Government—one of the
12th and the other of 26th October 1948—accepted the existence of a
situation which might justify the urgency of asylum, as well as the
principle of unilateral qualification and that of the grant of a
safe-conduct. These communiques were in force on January 3rd, 1949, for it
was only in a note of February 22nd, that the Peruvian Government showed any
desire to change its attitude.
2. The Ambassador had granted asylum to M. Pulgar Vidal, an Aprist deputy,
who obtained a safe-conduct on November 29th, in other words, after the
summons had been issued regarding [p378] M. Haya de la Torre and his
friends, and without any remarks being made by the Peruvian Government on
the matter of urgency. Thus, in the case of M. Pulgar Vidal, the theories
set forth in the two official communiques were put into application.
3. Other Ambassadors had granted asylum without any observations being made
by the Peruvian Government.
4. Official declarations by the Head of a State, published in the official
gazette El Peruano on January 3rd, 1949, recognizing that the situation of
the country at the time was abnormal.
5. The de facto situation which has already been described actually existed.
Having regard to the foregoing elements of fact and of law, I consider that
the Colombian Ambassador acted correctly: he could not do otherwise than
grant asylum ; he conformed to international law and American practice; he
granted the asylum in strict conformity with the stipulations of the Havana
22. Finally, we have further recognition by Peru of the abnormal nature of
conditions existing in January 1949, namely, the modification of her
counter-claim. To maintain that present conditions are different from those
that obtained in 1949, amounts to an admission that the conditions in 1949
were abnormal, that is, if it is claimed that present conditions are not
23. Asylum, such as is recognized in America, has never been regarded as a
form of intervention. It is not intervention in the sense that a government
may interfere in the domestic affairs of a country by favouring the members
of a certain party; indeed, asylum has always been exercised generously and
nobly, in favour of all types of persons without discrimination and
regardless of the political views of the refugee. This point must be
stressed because it is to the credit of the Latin-American countries.
In the case of Colombia and Peru, it is sufficient to point out that the
same Ambassador granted asylum, first to M. Julio C. Villegas, who, as
Minister of the Interior, wrote the letter providing for the application of
certain measures in the proceedings against M. Haya de la Torre, and later,
to Haya de la Torre himself.
24. Nor is diplomatic asylum contrary to the principle of nonintervention,
which is fundamental in American law. The historical origins of this
principle are to be found in the relations between the United States of
America and the Latin-American nations, and it was put forward by the latter
as an affirmation of their independence against interventions, even armed
interventions, which had occurred but which need not be recalled here. At
the Montevideo Conference of 1933, the principle was accepted by the United
[p379] States of America following the development of the policy of
President Franklin Roosevelt ; and pursuant to the confirmation of the
juridical equality of American States, their subsequent mutual relations
developed in an atmosphere of complete solidarity, for the feelings of
distrust which had existed theretofore now disappeared.
That is why it has never been.believed in America that asylum is related to
intervention or to non-intervention. These are entirely different situations
which have never been confused. That is why countries like, the Argentine
Republic and Mexico which have always most enthusiastically supported
non-intervention, have also supported with the same enthusiasm the
institution of asylum. In so doing, they were not being inconsistent, but
were rather taking American reality into account.
25. The Havana Conference of 1928 had before it the institution of asylum
which was intended to assist political refugees' in the event of domestic
disturbance. The Conference never chose at any moment to modify the
essential character of the institution of asylum, but sought rather to
maintain and strengthen it. Nor did it express a desire to put an end to
alleged abuses in the matter of asylum. The precedents of the Convention are
very clear in this connexion. The principal one was the meeting of jurists
at Rio de Janeiro in 1927, whose purpose was merely to attempt to codify
public international law and private international law in accordance with
the systems adopted by the Fifth Pan-American Conference of Santiago (Chile)
of 1923, namely, the elaboration of a code of private international law and
the preparation of partial agreements for public international law. The
criterion applied in selecting the questions of public international law at
Rio was that preference should be given to questions in which there were no
wide divergencies of view, and upon which there was general agreement. These
were so to speak subjects which were ripe for insertion in a treat}'
following a generally favourable consensus, a kind of juridical conscience
that had already been formed in this respect among the American countries.
We may therefore assume that if the subject of asylum was chosen at Rio it
was because this was doubtless a question which enjoyed general support and
sympathy, a matter in which agreement was possible, as was the case for the
other topics adopted on that occasion (diplomatic officials, consuls,
treaties, literary copyright, etc.).
The same spirit may be noted in the acts and deliberations at Havana. There
was no resistance to asylum except the opposition in principle of the United
States of America. With this exception, the matter presented no difficulty
and raised no objections.
26. The grant of asylum and the maintenance of asylum are different
phenomena. The former is instantaneous, the latter extends in time. This was
Peru's understanding in presenting its counter-claim concerning the grant of
asylum as well as the addition, which was not examined by the Court,
concerning the maintenance of asylum. For this reason I believe that all
that relates to the grant of asylum can only be examined by considering one
date and one date alone, January 3rd, 1949.
To pass judgment on the maintenance of asylum is to go beyond the limits of
the Peruvian claim as it was expressed by that Government, and in my
capacity as Judge, I consider that I must confine myself to resolving the
questions which have been put by the Parties.
Nevertheless, the maintenance of asylum is fully justified in the case of
Colombia on the following grounds:
I. At no moment has Peru requested the surrender of the refugee.
2. Peru opposed the asylum on the grounds that M. Haya de la Torre was a
common criminal, a fact which Peru has not been able to establish.
3. On the very day after the grant of asylum, namely January 4th, 1949,
Colombia requested a safe-conduct to enable M. Haya de la Torre to leave
Peru with the necessary guarantees, thus bringing the stage of diplomatic
asylum to a close.
4. This request on the part of Colombia was not entertained.
5. Following the Act of Lima, the question is sub judice and the two
countries have agreed upon their obligations to respect the existing
27. It has been stated that Colombia, following the day on which the
counter-claim was presented and during the oral proceedings, chose to
transfer her defence to a plane on which the Havana Convention could provide
it with no foundation. This refers to the fact that the spokesmen for
Colombia have examined the circumstances in which proceedings were
instituted against M. Haya de la Torre. In my opinion, this examination did
not depend upon the will of Colombia, but rather upon the policy adopted by
Peru in presenting a counter-claim which, in contrast to the Colombian
Application, does not submit purely legal questions to the Court but rather
questions of fact and accusations against the conduct of the Colombian
Ambassador in Lima. Throughout the diplomatic correspondence, Colombia has
consistently refused to enter into a discussion concerning Peruvian politics
or the domestic situation in Peru. This refusal is to be found in all the
Colombian notes, in spite of the repeated invitations of the Peruvian
Minister for Foreign Affairs. But confronted with the counter-claim,
Colombia was obliged to change her attitude and to examine the documents and
facts which were raised in that counter-claim. [p381]
Evidence of the change which was introduced by the counterclaim is found in
the fact that the point which was most discussed in the last stage of the
proceedings was the condition of urgency, a question which had not even been
mentioned during the diplomatic discussions.
Among the documents presented by Peru, the letter of October 5th, 1948, from
the Minister of the Interior, M. Villegas, who subsequently sought refuge in
the Colombian Embassy, is worthy of. special attention. It has been
contended that this letter constitutes a denunciation, although it does not
fulfil the requirements of Peruvian legislation in this respect. This letter
is a very serious document because it orders the Examining Magistrate to
follow a certain procedure in respect of M. Haya de la Torre, which
procedure that judge actually adopted. This constitutes irrefutable evidence
of the influence and intervention of the Government in military justice.
28. In view of the foregoing considerations, it is possible to conclude that
the conduct of Colombia was beyond reproach. It must further be emphasized
that it is abundantly clear from the whole proceedings that the Colombian
Ambassador at Lima had urgent grounds to grant asylum to M. Victor Raul Haya
de la Torre, and it is equally clear that the refugee is a political
offender. This proves that Colombia's actions were inspired by the most
Colombia has not sought to defend a particular interest, but rather the
legal principles which are generally accepted in Latin America. Colombia has
considered that, as a member of the American community, she is bound to work
for the integrity of these principles which, along with many others, are
effectively in force on the American continent, thus ensuring that
international relations in that part of the world develop on the basis of
noble doctrines and not on grounds which are purely utilitarian or
materialistic. In this case Colombia has remained faithful to her own
traditions as well as to the juridical traditions of the continent. In
stating resolutely and unselfishly the tendencies which are common to the
other American Republics, Colombia actually becomes the spokesman of the
free peoples of America.
In defending a political refugee, Colombia defends a fundamental human
right, and in so doing not only honours her contractual obligations, but
also undertakings of another order, the force of which cannot be
I am referring to the essential principles which have inspired not only the
Charter of the United Nations, but also the declarations which have been
adopted by the IXth Pan-American Conference, and by the General Assembly of
the United Nations.
(Signed) Jose Joaquin Caicedo Castilla.
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:
I.—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 22nd. 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 Colombia at
Lima to the Peruvian Minister for Foreign Affairs and Religion.
6.—1949, March 19th. 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 29th. 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, 1949.
12.—1949, August 31st. Letter from the Special Plenipotentiary of Colombia
at Lima to the Peruvian Special Plenipotentiary.
13.—1949, 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. [p383]
15.—1949, September 1st. Letter from the Peruvian Minister for Foreign
Affairs and Religion to the Ambassador of Colombia at Lima.
16.—1944, October 20th. Letter from the Peruvian Legation at Guatemala 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 1879.
19.—Extract from the Treaty on International Penal Law, signed at the 1st
South-American Congress on Private International Law which met at Montevideo
20.—Bolivarian Agreement on Extradition, signed at Caracas on July 18th,
21.—Convention on Asylum, signed at the VIth Pan-American Conference.
22.—Convention on Political Asylum, signed at the VIIth Pan-American
23.—Extract from the Treaty on Asylum and Political Refuge, signed at the
IInd South-American International Law Congress which met at Montevideo in
24.—Excerpt from the American Declaration on the Rights and Duties of Man,
adopted at the IXth Pan-American Conference.
25.—Extract from the Universal Declaration on Human Rights, adopted by the
General Assembly of the U.N. on December 10th, 1948.
(b) Annexes to the Reply:
1.—Documents concerning the asylum of MM. Manuel Gutierrez 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 responsible for
rebellion, sedition or rioting.
B.—By the Government of Peru
(a) Annexes to the Counter-Memorial:
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). [p384]
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 Investigations 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
10-A in the proceedings concerning the crime of military rebellion and other
crimes (cf. Annex No. 7).
8.—Folios 219 et sqq. of Folder 10-A in the proceedings concerning the crime
of military rebellion and other crimes, containing Report No. 3r2, 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 communique 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 10-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 Investigations 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 sqq. of Folder 10-B in the proceedings concerning the
crime of military rebellion and other crimes, containing the documents
relating to the bombs placed in the party wall of a glass factory (cf. Annex
12.—Folios 509 et sqq. 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 sqq. 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 doorway of a grocer's
shop (cf. Annex No. 14). [p385]
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 sqq. 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, containing
various documents relating to a bomb placed on the tramway (cf. Annex No.
18.—Folder 210 of Folder 10-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 Folder 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 et sqq. 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 workshops of the
Telephone Company (cf. Annex No. 23).
23.—Folios 21.and 22 of Folder n-A in the proceedings concerning the crime
of military rebellion and 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
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 90 et sqq. 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 [p386] of explosive bombs by
the members of the Aprist Party; this report is contained in Folios 300 et
sqq. of Folder 8-A in the proceedings concerning the crime of military
rebellion and other crimes (cf. Annex No. 28).
27.—Folio 847, and overleaf, of Folder 10-B in the proceedings concerning
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.
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 Raul 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 (cf. 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
10th, 1924 (cf. Annex No. 37).
35.—Copy of the Code of Military Justice of the Republic of Peru ; law No.
8991 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 investigations 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 1 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 proceedings, 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). [p387]
38.—Folios 22 to 24 of Folder 1 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 1 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 concerning
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 concerning
the crime of military rebellion and other crimes, containing the note
requesting the delivery of the documents found at the headquarters 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 concerning
the crime of military rebellion and other crimes, containing the note from
the Inspector-General of the Investigations and Surveillance 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 concerning
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 El Peruana, 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 12th, 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). [p388]
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. 49).
52.—Photographic copy of the pages of the Revista colombiana de Derecho
international, 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 legislation,
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 authenticated copy of the
same document (cf. Annex No. 55).
55.—Photographic copy contained in Folder 10-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 February 29th, 1948 (cf.
Annex No. 59).
58.—Judgment delivered on December 5th, 1949, in the trial of Alfredo Tello
Salavarria and other persons for the murder of M. Francisco Gratia Garland,
in which orders were given for the institution of proceedings against Victor
Raul 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 Raul Haya de la
Torre and other persons for the crime of usurpation of functions 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 n-C in the proceedings 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. [p389]
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 Raul 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:
I.—Folios 24 to 54 of Folder n-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
5.—Copy of the Official Journal of Colombia containing decree No. 957 of
6.—Certified copy of the report of the examining magistrate in the
proceedings against Victor Raul 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, 1950.
3.—Copy of a letter from M. Serafino Romualdi to M. Edward G. Miller Jr.,
dated nth 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 Raul Haya de la Torre's passport.