ICJ Judgment of 20 November 1950
Facts
A military rebellion broke out in Peru. Haya was denounced as responsible and his arrest was ordered. In January 1949, Haya sought diplomatic asylum in the Colombian Embassy in Lima, Peru. The Ambassador of Colombia (“The Ambassador”) requested that Haya be given safe passage to leave Peru.
- Peru – a territorial State;
- Colombia – a State of Refuge. Specifically, her ambassador granting asylum to Victor Rayl Haya dela Torre (“Haya”).
Colombia asked Peru for a safe passage conduct, hence, the filing of this case before th ICJ.
Colombia’s arguments:
(1) Bolivarian Agreement of 1911 on Extradition; (2) Havana Convention of 1928 on Asylum; (3) Montevideo Convention of 1933 on Political Asylum; (4) American International Law. According to these, Colombia is entitled to qualify the nature of the offence for the purposes of asylum, therefore, Haya is qualified to be accommodated in their embassy.
ICJ Ruling
On the unilateral qualification made by Colombia
Colombia claimed the right of unilateral and definitive qualification binding upon Peru. The Bolivarian Agreement did not entail the right of unilateral qualification; When it laid down rules for extradition, conclusions of diplomatic asylum cannot be deduced from them. The refugee was on the territory of the State of refuge. Here, Haya was in the territorial state (where he allegedly committed crimes) and Colombia’s grant of asylum disrespected/derogated the sovereignty of Peru (territorial State) and removed the offender, Haya, from the jurisdiction of Peru.
On Havana Convention
Neither it did recognize the right of unilateral qualification either explicitly or implicitly.
On Montevideo Convention
Had not been ratified by Peru and therefore could not be invoked against Peru.
On American International Law
Colombia argued that there existed a regional custom allowing Colombia to unilaterally qualify the status of the a person as a refugee. But Colombia had not proved the existence of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon Peru (territorial State). The facts submitted had too much contradiction, and fluctuation to discern usage peculiar to Latin America accepted as law.
Therefore, Colombia not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
Class discussion
Colombia relied on 3 written texts, and 1 custom.
As for Bolivian Agreement, was its argument to unilaterally qualify tenable? No right to unilaterally qualify. Same with Havana Convention. Court did not look at the Montevideo Convention because Peru did not ratify.
What was ICJ’s statement regarding AIL? What was the exact term of the court in describing the custom?
Constant and uniform practice – consistent and observed by member states in a very uniform, concerted, manner, there must be commonality.
There is the earliest decision of ICJ in relation to a custom. No need for a practice to be observed in a global scale. It is sufficient that it is practiced regionally. A custom may exist nevertheless it is practiced regionally or locally.
There’s another case filed against Raul Haya dela Torre. Search for his name.
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