A Latin American Guide to the International Court ... ---- (Pg 23--49)

2. HAYA DE LA TORRE (COLOMBIA V. PERU),
1950
2.1. Summary
This case concerns the effects of the judgments of the Asylum Case
(Colombia v. Peru)1 and its request for interpretation2 with respect to the
refugee Víctor Raúl Haya de la Torre, asylee at the Embassy of the
Republic of Colombia (hereinafter “Colombia”) in the Republic of Peru
(hereinafter “Peru”), where he was accused of committing political crimes.
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I. Facts
The International Court of Justice (hereinafter “ICJ”) adjudged the Asylum
Case in 1950, concerning the legal relation between the parties with
respect to the Havana Convention and the asylum of Mr. Haya de la Torre
in the Colombian Embassy at Lima, Peru. On 27 November of the same
year, Colombia filed a request for interpretation of the case, but the Court
found it to be inadmissible. On 28 November 1950, the Minister for
Foreign Affairs and Public Worship of Peru contacted the Colombian
Embassy, affirming that the judgment had made clear that the asylum was
irregular and, therefore, that the refugee should be surrendered to Peruvian
authorities. The Colombian Minister denied such a request, claiming that
surrender would not only be adverse to the referred judgment, but also to
the Havana Convention.3
With no agreement on the effect of the judgment, Colombia presented
an application instituting proceedings on 13 December 1950. The parties
consented to limit the written proceedings to a Memorial and CounterMemorial and indicated their judges ad hoc.
1
Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 266.
Request for Interpretation of the Judgment of 20 November 1950 in the Asylum
Case (Colombia v. Peru), I.C.J. Reports 1950, p. 395.
3
Convention of Havana on Right of Asylum (Havana Convention on asylum of
1928) (Havana, 20 February 1928, 132 L.N.T.S. 323).
2
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
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16
Chapter I
The proceedings were communicated to other states, as provided by
Article 664 of the Rules of Court and, on 15 February 1951, the Minister of
Cuba sent a memorandum regarding its views on the Havana Convention
and the specific asylum of Mr. Haya de la Torre. Such a memorandum was
interpreted as a Declaration of Intervention, according to Article 66,
Paragraph 1 of the Rules of Court. The parties were consulted and, since
Peru objected to the intervention, the Court opened a Public Hearing on 15
May 1951. Thereafter, attending to Article 635 of its Statute, the Court
decided to maintain the intervention since, in spite of the allegations that it
was res judicata, there were interpretations of matters not yet considered
by the ICJ. Peru contended that the situation was not an intervention but an
appeal by a third state and out of time, to which the Court responded that
every intervention is incidental and must be related to the subject matter at
hand. Consequently, it admitted the intervention based on Article 66,
Paragraph 2 of the Rules of Court.
II. Jurisdiction
According to the Court, the conduct of parties during the proceedings was
enough to, in this case, establish the jurisdiction. There was no objection
by the parties involved and all procedures were made in Court.
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III. Matters of Dispute
The question of this case is whether the refugee ought to be surrendered or
not. In its submissions, Colombia asked to Court to:
“[...] [S]tate in what manner the judgment of November 20th, 1950, shall be
executed by Colombia and Peru, and furthermore, to adjudge and declare
that Colombia is not bound, in execution of the said judgment of
November 20th, 1950, to deliver M. Víctor Raúl Haya de la Torre to the
Peruvian authorities. In the event of the Court not delivering judgment on
the foregoing submission, may it please the Court to adjudge and declare,
in the exercise of its ordinary competence, that Colombia is not bound to
4
This Article refers to the previous version of the Rules of Court. The current
version was adopted on 14 April 1978 and entered into force on 1 July 1978.
5
Article 63 of the Statute of the Court states that: “1. Whenever the construction of
a convention to which states other than those concerned in the case are parties is in
question, the Registrar shall notify all such states forthwith. 2. Every state so
notified has the right to intervene in the proceedings; but if it uses this right, the
construction given by the Judgment will be equally binding upon it.”
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2. Haya de la Torre (Colombia v. Peru), 1950
17
deliver the politically accused M. Víctor Raúl Haya de la Torre to the
Peruvian authorities.”6
For its part, Peru asked the Court:
“I. To state in what manner the judgment of November 20th, 1950, shall be
executed by Colombia; II. To dismiss the submissions of Colombia by
which the Court is asked to state solely [“sans plus”] that Colombia is not
bound to deliver Víctor Raúl Haya de la Torre to the Peruvian authorities;
III. In the event of the Court not delivering judgment on submission No. 1,
to adjudge and declare that the asylum granted to Señor Víctor Raul Haya
de la Torre on January 3rd, 1949, and maintained since that date, having
been judged to be contrary to Article 2, Paragraph 2, of the Havana
Convention of 1928, ought to have ceased immediately after the delivery
of the judgment of November 20th , 1950, and must in any case cease
forthwith in order that Peruvian justice may resume its normal course
which has been suspended.”7
Cuba, finally, presented some interpretations on the Havana Convention as
far as the surrender of Mr. Haya de la Torre was concerned.8
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IV. Judgment
The Court began by affirming that, in fact, there was no approach to how
the asylum should be terminated in the previous judgments. It explained,
nevertheless, that it was not in a position to indicate a solution itself, since
it would then be leaving its judicial role.
The Court responded directly to the states’ submissions. Regarding
Colombia’s request to conclude that it not be obligated to surrender the
refugee, according to the mentioned judgments, the Court explained that it
could not reach such a conclusion, since the matter was not observed at the
time of these previous judgments.
Regarding Colombia’s second request, that is, that the Court adjudge
the case with ordinary competence – to which Peru responded that the
decision of the previous case should be maintained –the ICJ explained that
there was no res judicata on the matter and that it showed up only when
Peru asked Colombia for the surrender of Mr. Haya de la Torre. The Court
6
Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 75.
Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 75.
8
Since the Court responded directly to the parties’ submissions, the presentation of
this case will focus on the judgment rendered by the Court, which indirectly
mentions the matters in dispute.
7
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
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18
Chapter I
emphasized that, though the Havana Convention mentions asylum as a
provisory situation that must not be prolonged for an indeterminate period
(Article 2, Paragraph 19), it does not define this period or the way in which
the asylum should be terminated. It judged that Article 110 could not be
applied since the case did not correspond to the criteria it established,
according to the asylum case judgment. As for Paragraph 2, it could not be
applied either, since the situation involved a political crime, and not a
common one, as found in the referred judgment. The Court concluded
therefore that the absence of provision in the Convention could not be
interpreted as establishing an obligation to surrender the refugee in the
case of irregular asylum. It would be against the Latin American tradition
of political asylum that considers that in such situations refugees must not
be surrendered. Moreover, it found such lack of juridical rule to be an
option made by the parties of the Convention, indicating their wish to keep
the discussion in a political sphere.
Next, the Court justified that, although it found in previous judgments
that asylum should not be used to obstruct justice, this did not mean that
the state that grants irregular asylum must surrender the refugee. If it did,
claimed the Court, the Convention would have expressly addressed the
case, instead of providing only a general rule. In Peru’s last submission,
the Court observed that the state was entitled to ask for the conclusion of
the refugee, due to the decisions of the asylum case. This did not mean,
however, that it was in a position to require surrender.
Finally, the Court concluded that asylum should be terminated, but that
there were different ways to do this and it was up to the states involved to
decide, since any observation by the Court on the matter would exceed its
judicial function. The final decision was as follows:
9
Article 2, Paragraph 1 of the Havana Convention 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.”
10
Article 1 of the Havana Convention on Asylum states that: “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. Should said persons take refuge
in foreign territory, surrender shall be brought about through extradition, but only
in such cases and in the form established by the respective treaties and conventions
or by the constitution and laws of the country of refuge.”
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
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2. Haya de la Torre (Colombia v. Peru), 1950
19
“[...] [O]n the principal submission of the government of Colombia and the
first submission of the government of Peru, unanimously, finds that it
cannot give effect to these submissions and consequently rejects them;
[O]n the alternative Submission of the government of Colombia and the
second Submission of the government of Peru, by thirteen votes to one,
finds that Colombia is under no obligation to surrender Víctor Raúl Haya
de la Torre to the Peruvian authorities;
[O]n the third Submission of the government of Peru, unanimously, finds
that the asylum granted to Víctor Raúl Haya de la Torre on January 3rd4th, 1949, and maintained since that time, ought to have ceased after the
delivery of the judgment of November 20th, 1950, and should terminate.”11
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2.2. Timeline
DATE
DOCUMENT
CONTENT
13 December
1950
Press Release
No. 1950/48
Communicates the filing of an
application instituting proceedings
by Colombia against Peru.
11
3 January
1951
and
4 January
1951
Order and Press
Release
No. 1951/1
9 February
1951
Press Release
No. 1951/3
Establishes and notifies that the
President of the Court, as well as
the representatives of Colombia
and Peru have decided to limit the
filing of written proceedings to: 7
February 1951 for Colombia’s
Memorial and 15 March 1951 for
Peru’s Counter-Memorial.
Communicates that the parties
involved have chosen as judges
ad hoc: José Joaquin Caicedo
Castilla (Colombia) and Luis
Alayza y Paz Soldan (Peru). Also
lists the agents indicated by the
states involved and notes that
Colombia has delivered its
Memorial in time.
Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p.83.
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
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Chapter I
20
Press Release
No. 1951/4
Announces that, on 13 March
1951, the ICJ received a letter
from the government of Cuba,
presenting its views on the
Havana Convention and on the
case.
14 April
1951
Press Release
No. 1951/11
States that the Court will hold
Public Hearings on the case on 8
May 1951.
8 May 1951
Press Release
No. 1951/15
Communicates that Public
Hearings will begin on 15 May
1951.
15 May 1951
Press Release
No. 1951/16
Informs that the ad hoc judges
were installed and made their
solemn declarations.
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15 March
1951
Notifies that the Court found the
Cuban intervention to be
admissible and opened the oral
proceedings on the merits of the
case, hearing the representatives
of the parties involved.
Reports the conclusion of oral
proceedings.
16 May 1951
Press Release
No. 1951/17
17 May 1951
Press Release
No. 1951/18
11 June 1951
Press Release
No. 1951/23
Communicates that on 13 June
1951 the Court will hold a Public
Hearing to read its judgment on
the case.
13 June 1951
Press Release
No. 1951/24
Informs that the Court delivered
its judgment on the case.
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2. Haya de la Torre (Colombia v. Peru), 1950
21
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Bibliography
CARRIZOSA, Alfredo Vazquez; MORENO, Augusto Ramirez and
MOUTET, Marius (1950) Plaidoirie pour la République de Colombie
dans l’affaire colombo-péruvienne relative à l’asile de Victor Raúl
Haya de la Torre prononcée devant la Cour internationale de justice,
Paris: Pédone.
WILLIAM W. BISHOP, Jr. (1951) ‘Haya de la Torre Case (Columbia/Peru),’
The American Journal of International Law, 45. No. 4: 781-788.
Online. Available. <http://www.jstor.org/stable/2194269>
PAIVA, Emmanuelle Christinne Fonseca de (2007), ‘Asilo diplomático e
os direitos humanos: uma análise do Caso Haya de la Torre da Corte
Internacional de Justiça’ in Rosenite Alves de Oliveira (ed)
Realidades: direitos humanos, meio ambiente e desenvolvimento,Natal:
EDUFRN, pp. 31-46.
PATEL, Bimal N. (2002), ‘Case Concerning the Vienna Convention of
Consular Relations (Paraguay v. USA)’ in Bimal N. Patel The World
Court Reference Guide: Judgments, Advisory Opinions and Orders of
the Permanent Court of International Justice and the International
Court of Justice (1922-2000), Hague/London/New York: Kluwer Law
International.
—. (2002), ‘Haya de la Torre Case (Colombia v. Peru)’ in Bimal N. Patel
The World Court Reference Guide: Judgments, Advisory Opinions and
Orders of the Permanent Court of International Justice and the
International Court of Justice (1922-2000), Hague/London/New York:
Kluwer Law International.
VAN ESSES, J. L. F. (1952) ‘Some Reflections on the Judgments of the
International Court of Justice in the Asylum and Haya de la Torre
Cases,’ The International and Comparative Law Quarterly, Vol. 1, No.
4, pp. 533-539. Online. Available.
<http://www.jstor.org/stable/755177>
VERZIJL, J.H.W. (1966) ‘The Asylum and Haya de la Torre Case
(Colombia v. Peru)’ in The Jurisprudence of the World Court: A Case
by Case Commentary – Volume II: The International Court of Justice
(1947-1965), Leyden: A.W. Sijthoff.
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.
3. ASYLUM (COLOMBIA V. PERU), 1949
3.1. Summary
This case concerns the dispute between the Republic of Colombia
(hereinafter “Colombia”) and the Republic of Peru (hereinafter “Peru”) on
matters related to the asylum granted by the Colombian Embassy in Lima
to the Peruvian citizen Víctor Raúl Haya de la Torre.
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I. Facts
On 3 October 1948 a rebellion against Peru’s government took place in
Lima. This rebellion was immediately associated with the political party
named the American People’s Revolutionary Alliance by a decree from
the President of the Republic on 4 October 1948. On that same day, a state
of siege was enforced in Peru.
On the following day, 5 October 1948, the leader of the party, Mr.
Haya de la Torre, as well as other members, was denounced. On 10
October 1948, the public prosecutor responsible for the case declared that
the crime for which they were being charged concerned military rebellion.
As the political scenario grew more intense, the examining magistrate
ordered the arrest, on 25 October 1948, of those who were accused of the
military rebellion and were not yet detained. Afterwards, on 27 October
1948, following this political crisis, the government’s military junta took
over the country. The result of such events was a decree on 4 November
1948 enforcing severe procedures on cases of rebellion, among others.
These procedures, however, did not apply specifically to the case
concerning Mr. Haya de la Torre and the other members of the political
party, as shown in several official government documents.
Given the circumstances, on 3 January 1949, Mr. Haya de la Torre
sought asylum at the Colombian Embassy in Lima. The Colombian
Ambassador notified the Peruvian Minister of Foreign Affairs and Public
Worship the next day that Mr. Haya de la Torre was given asylum based
on the Havana Convention on Right of Asylum of 1928,1 signed by both
1
Convention of Havana on Right of Asylum (Havana Convention on asylum of
1928) (Havana, 20 February 1928, 132 L.N.T.S. 323).
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
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3. Asylum (Colombia v. Peru), 1949
23
Peru and Colombia. Later, on 14 January 1949, the Ambassador informed
the Minister that Colombia had qualified Mr. Haya de la Torre as a
political refugee.
After receiving these notifications Peru started diplomatic discussions
with Colombia about the case, which culminated in the decision to refer it
to the International Court of Justice (hereinafter “ICJ”).
II. Jurisdiction
In the present case, the jurisdiction of the Court relies on the special
agreement named “Act of Lima.”2 This agreement, signed by the parties
on 31 August 1949, refers the dispute to the ICJ, based on Article 36,
Paragraph 1 of the Rules of Court.3 Since the parties were unable to refer
the case jointly to the Court, the agreement also established that one of the
parties should submit the application instituting proceedings without such
an act being considered uncordial by the other.
III. Matters of Dispute
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According to what was settled by the Act of Lima, Colombia submitted an
application instituting proceedings against Peru on 15 October 1949. On
that occasion Colombia requested the Court to answer two questions that
met with its final submissions to the Court. These submissions were for
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. Víctor Raúl Haya de la Torre from the country, with due
regard to the inviolability of his person.”4
2
Agreement of Lima between Colombia and Peru (31 August 1949).
Article 36, Paragraph 1 of the Rules of Court states that: “If the Court finds that
two or more parties are in the same interest, and therefore are to be reckoned as
one party only, and that there is no Member of the Court of the nationality of any
one of those parties upon the Bench, the Court shall fix a time-limit within which
they may jointly choose a judge ad hoc.”
4
Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports
1950, p.9, Paragraph 3.
3
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.
24
Chapter I
On the other hand, Peru, in its counter-claim, made the following final
submissions requesting the Court to adjudge and declare that:
“[T]he grant of asylum by the Colombian Ambassador at Lima to Víctor
Raúl Haya de la Torre was made in violation of Article 1, Paragraph 1,5
and of Article 2, Paragraph 2, Item I (inciso primera), of the Convention on
Asylum signed in 1928,6 and that in any case the maintenance of the
asylum constitutes at the present time a violation of that treaty.”7
IV. Merits
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A) Colombia’s Arguments
In order to pursuade the Court to deliberate in its favor, Colombia
presented on both its written and oral proceedings an extensive legal basis
for the submissions listed in its application.8
With regards to Colombia’s first submission, which concerns its
presumed right to unilaterally qualify the crime committed by Mr. Haya de
la Torre, Article 18 of the Bolivarian Agreement of 19119 was first
brought before the Court. This article, according to Colombia, grants such
a right as one of the principles of international law.
In addition, Colombia relied on the Havana Convention on Asylum of
1928. Even though this convention does not attribute the competence of
qualifying the crime exclusively to the state granting the asylum,
Colombia interpreted it as an implicit right inherent to the said institution.
Colombia’s argument against this convention was based specifically on its
5
Article 1, Paragraph 1 of the Havana Convention on Asylum provides that: “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.”
6
Article 2, Paragraph 2 of the Havana Convention on Asylum rules 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.”
7
Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports
1950, p.9, Paragraph 16.
8
Colombian-Peruvian asylum case (Colombia v. Peru), Application instituting
proceedings.
9
Article 18 of the Bolivarian Agreement on Extradition of 1911 is framed as
follows: “Aside from the stipulations of the present Agreement, the signatory states
recognize the institution of asylum in conformity with the principles of
international law.”
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
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3. Asylum (Colombia v. Peru), 1949
25
Article 2, Paragraph 1.10 Colombia’s understanding of such a provision
was that it could use its internal legislation to qualify the crime and impose
such a qualification on Peru.
Another convention, the Montevideo Convention on Political Asylum
of 1933, was referred to Colombia. Unlike the Havana Convention on
Asylum of 1928, Article 211 of the Montevideo Convention determines
that the state granting asylum has the prerogative to qualify the offence.
This convention actually dictates the way the Havana Convention should
be interpreted.
Finally, to argue over its first submission, Colombia invoked Latin
America’s customary law. According to Article 38 of the statute of the
Court,12 a common international practice will only be accepted as
customary international law if it is a constant and uniform practice among
the states in question. Therefore, Colombia presented to the Court several
cases related to asylum as well as the Montevideo Convention of 1889, the
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10
Article 2, Paragraph 1 of the Havana Convention on Asylum of 1928 states that:
“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:”
11
Article 2 of the Montevideo Convention on Asylum of 1933 establishes as
follows: “The judgment of political delinquency concerns the state which offers
asylum.”
12
Article 38 of the Rules of Court provides that: “1. When proceedings before the
Court are instituted by means of an application addressed as specified in Article
40, paragraph 1, of the Statute, the application shall indicate the party making it,
the state against which the claim is brought, and the subject of the dispute.2. The
application shall specify as far as possible the legal grounds upon which the
jurisdiction of the Court is said to be based; it shall also specify the precise nature
of the claim, together with a succinct statement of the facts and grounds on which
the claim is based. 3. The original of the application shall be signed either by the
agent of the party submitting it, or by the diplomatic representative of that party in
the country in which the Court has its seat, or by some other duly authorized
person. If the application bears the signature of someone other than such
diplomatic representative, the signature must be authenticated by the latter or by
the competent authority of the applicant's foreign ministry. 4. The Registrar shall
forthwith transmit to the respondent a certified copy of the application. 5. When
the applicant state proposes to found the jurisdiction of the Court upon a consent
thereto yet to be given or manifested by the state against which such application is
made, the application shall be transmitted to that state. It shall not however be
entered in the General List, nor any action be taken in the proceedings, unless and
until the state against which such application is made consents to the Court's
jurisdiction for the purposes of the case.”
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
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26
Chapter I
Bolivarian Agreement of 1911, and the Havana Convention of 1928, in an
attempt to prove to the Court both the common practice and jurisprudence
among Latin American states on granting asylum.
With regards to the second submission, which concerns the guarantee
of security of the refugee for the departure from Peru, Colombia also
relied on the Havana Convention on Asylum of 1928, in Article 113 and
Article 2.14 These provisions establish the conditions necessary both for
granting asylum and for the refugee to be entitled to request safe-conduct.
Colombia alleged that the safeguard of Mr. Haya de la Torre was therefore
its right and Peru’s obligation.
B) Peru’s Arguments
The government of Peru’s submission can also be divided in two sections.
The first part concerns the request to the Court to declare a violation of
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13
Article 1 of the Havana Convention on Asylum of 1928 is written as follows: “1.
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. 2. 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. 3. Should
said persons take refuge in foreign territory, surrender shall be brought about
through extradition, but only in such cases and in the form established by the
respective treaties and conventions or by the constitution and laws of the country
of refuge.”
14
Article 2 of the Havana Convention on Asylum of 1928 rules that: “1. 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: 2. 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. 3. 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. 4.
Third: The government of the state may require that the refugee be sent nut of the
national territory within the shortest time possible; and of his person, from the
country. 5. Fourth: Refugees shall not be landed in any point of the national
territory nor in any place too near thereto. 6. Fifth: While enjoying asylum,
refugees shall not be allowed to perform acts contrary to the public peace. 7. Sixth:
States are under no obligation to defray expenses incurred by one granting
asylum.”
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3. Asylum (Colombia v. Peru), 1949
27
Article 1 and Article 2 of the Havana Convention on asylum of 1928 by
Colombia. This was, in fact, the original submission, complemented later
by oral statements. The additional request made by Peru during the oral
statements can be considered the second part of the submission, which is
an implicit demand for the surrender of Mr. Haya de la Torre. Peru asked
the Court to consider this second submission only if the original one was
rejected.
Peru’s argument against Colombia’s violation of Article 1, Paragraph 1
of the Havana Convention on Asylum of 1928 is related to the question of
whether Colombia was competent or not to qualify the crime committed
by Mr. Haya de la Torre and the qualification itself. This provision rules
that people accused of committing common crimes cannot be granted
asylum. Peru argued that the crimes which Mr. Haya de la Torre had been
accused of were common crimes.
Concerning Colombia’s violation of Article 2, Paragraph 2, which lists
urgency as one of the conditions for the granting of asylum, Peru claimed
that the case was not urgent. In order to support this argument, Peru
brought before the Court a couple of considerations. The first
consideration regarded the time elapsed since the rebellion and the request
for asylum. Peru alleged that a period of three months was too long for an
urgent situation. The second consideration was that during these three
months some of the people accused of the same crimes sought asylum in
several embassies, and Mr. Haya de la Torre resisted doing so. Peru points
to this resistance as proof of the non-urgency of the asylum granted, since
if it were indeed urgent, Mr. Haya de la Torre would have immediately
requested it, instead of postponing it.
The second submission, regarding the implicit request of surrender of
Mr. Haya de la Torre, questions whether the maintenance of asylum was
legal or not. Peru’s main argument towards this point rests upon the fact
that the maintenance of asylum itself would violate the Havana
Convention on Asylum of 1928. This argument is based on Article 2,
Paragraph 2, which provides that asylum should only last for the time
strictly necessary. This claim does not depend on the turnout of the first
submission, since it does not question the regularity with which the
asylum was provided, but in which it is maintained.
V. Judgment
The Court rendered its decision on 20 November 1950. It started by
evaluating Colombia’s submissions and arguments, followed by those
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28
Chapter I
brought up by Peru. Then, finally, the Court issued a brief summary of its
judgment exposing its votes.
In terms of the first submission, concerning the right to unilaterally
qualify the crime committed by Mr. Haya de la Torre with the purpose of
granting asylum, Colombia presented a series of legal arguments, which
invoked several treaties and customary law.
Colombia’s main argument was based on Article 18 of the Bolivarian
Agreement of 1911, where it interpreted such a right as being a principle
of international law. The Court rejected such an argument stating that it
was not a principle of international law. In fact, the Court found this
argument particularly alarming. From its point of view, considering the
said provision as a principle of international law could put the sovereignty
of the state which the refugee is from at risk.
The second treaty invoked by Colombia was the Havana Convention
on Asylum of 1928. Colombia’s interpretation of the treaty was that its
competence to qualify the crime was implicit in the convention and was
part of the nature of the institution of asylum. It also understood from
Article 2, Paragraph 1, that it could use its internal law to qualify the crime
and impose it on Peru. Again, the Court rejected the claim, declaring that
such a provision was to be interpreted as a restriction of the conditions
where asylum could be granted. That is, asylum should not be provided
beyond what is expressed in a state’s domestic law. Therefore, the Court
considered the interpretation given by Colombia misguided, since it
endangers Peru’s sovereignty.
The third and last treaty brought up by Colombia to support its first
submission was the Montevideo Convention on Political Asylum of 1933.
The Court dismissed the application of this convention, since it was not
ratified by Peru, and, therefore, could not be used against this state.
Finally, Colombia alleged that the unilateral qualification of the crime
for providing asylum was a customary law in Latin American states. In
order to support this argument, Colombia presented a series of treaties
signed by Latin American states and several cases in which asylum was
granted and respected. The Court rejected this argument, whereas the
treaties presented were not ratified by Peru or were not ratified by a
significant number of Latin American states. Moreover, the cases
submitted to the Court were inconsistent and could not be considered
customary law.
In relation to Colombia’s second submission, which involved the
safeguard of Mr. Haya de la Torre, the party relied broadly on Article 1
and Article 2 of the Havana Convention on Asylum of 1928. It alleged that
the safeguard of Mr. Haya de la Torre was a right granted by this
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3. Asylum (Colombia v. Peru), 1949
29
convention. Once again, the Court dismissed this argument, claiming that
the safeguard of the refugee to leave the country is not a right of the state
granting asylum, but a choice of the territorial state. That is, Peru should
provide safeguard to Mr. Haya de la Torre if it were in its interest to have
him leave the country.
The Court acknowledged that it is a common practice for the
diplomatic representative of the state providing asylum to request
safeguard before the territorial state. However, it explained that this
usually happens in virtue of the mutual interest of states. While the state
granting asylum wishes not to prolong the stay of the refugee in the
Embassy, the territorial state desires the departure of its political opponent.
The Court, then, pointed out that this was not the case, since Peru did not
desire the departure of Víctor Raúl Haya de la Torre.
Regarding Peru’s submissions, the Court first analyzed the original
submission concerning the violations of the Havana Convention on
Asylum of 1928, since the second one should only be considered in case
the original was dismissed.
The violations pointed out by Peru were of Article 1, Paragraph 1 and
Article 2, Paragraph 2 of the said convention. In relation to the first
provision, Peru argued that Mr. Haya de la Torre had committed common
crimes, and therefore, that asylum was granted irregularly. The Court
considered that Peru was unable to prove that such crimes had this
qualification, since all official records of the government of Peru accused
Mr. Haya de la Torre of being part of the military rebellion.
Peru’s claim concerning Colombia’s violation of Article 2, Paragraph
2, of the Havana Convention of 1928 rests upon the idea of urgency. Peru
alleged that such a condition was not considered by Colombia when
asylum was granted. The Court agreed that Colombia did not express
urgency with regards to the asylum of Mr. Haya de la Torre in the initial
proceedings. But later on in the development of the case, Colombia did
attempt to prove the danger in which it considered Mr. Haya de la Torre to
be. The nature of this supposed danger relied on the subordination of the
Peruvian justice system to the executive power. That is, Colombia alleged
that Mr. Haya de la Torre would not have a fair trial given his political
position. The Court evaluated both arguments and decided that the
urgency alleged by Colombia was not included in the Havana Convention
on Asylum of 1928. This convention, according to the Court, should be
interpreted restrictively, since it was created in order to avoid abuses in the
use of the institution of asylum. Moreover, the Court did not find evidence
that the Peruvian justice system was in fact corrupt. Therefore, the Court
agreed that the asylum granted by Colombia to Mr. Haya de la Torre was
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Chapter I
30
not in conformity with Article 2, Paragraph 2, of the Havana Convention
of 1928.
Since the Court did not dismiss the original submission made by Peru,
the second submission, related to the maintenance of asylum was not even
considered.
Having analyzed all of these arguments, the Court voted as follows:
“On the submissions of the government of Colombia,
[B]y 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;
[B]y fifteen votes to one, rejects the second submission, on the counterclaim of the government of Peru,
[B]y fifteen votes to one, rejects it in so far as it is founded on a violation
of Article 1, Paragraph 1, of the Convention on Asylum signed at Havana
in 1928;
[B]y ten votes to six, finds that the grant of asylum by the Colombian
government to Víctor Raul Haya de la Torre was not made in conformity
with Article 2, Paragraph 2 ("First"), of that Convention.”15
3.2. Timeline
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DATE
17 October
1949
DOCUMENT
CONTENT
Press Release
No. 1949/18
Concerns the filing of an
application instituting proceedings
against the government of Peru by
the government of Colombia. The
dispute taken to the ICJ involves
the welfare of a Peruvian citizen
who was granted asylum by the
Colombian Embassy in Lima.
15
Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports
1950, p.26, Paragraph 4.
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3. Asylum (Colombia v. Peru), 1949
31
20 October
1949
Presents the jurisdiction of the
Court in the case and the contents
of the application instituting
proceedings submitted by
Colombia. It also establishes the
time limits for the filing of written
Order and Press
proceedings, as follows: 30
Release No.1949/19
December 1949 for the Memorial
of Colombia; 10 March 1950 for
the Counter-Memorial of Peru; 20
April 1950 for the Reply of
Colombia; and 30 May 1950 for
the Rejoinder of Peru.
17 December
1949
Refers to the extension of a
deadline for the filing of part of the
written proceedings, as requested
by Colombia. Once there were no
objections from Peru, the Court
agreed to postpone the time limits
of both the Memorial and the
Order and Press
Counter-Memorial. The dates
Release No.1949/27 established were: 10 January 1950
for the Memorial of Colombia and
21 March 1950 for the CounterMemorial of Peru. The Court,
however, maintained the time
limits of the Reply and Rejoinder
according to what was decided in
the Order of 20 October 1949.
11 January
1950
Press Release
No. 1950/2
Publishes the ad hoc judge choice
made by the parties in the case, as
provided by Article 31, Paragraph
3 of the Statute of the Court. José
Joaquin Caicedo Castilla and Luis
Alayza y Paz Soldán were chosen
as judges by Colombia and Peru,
respectively.
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Chapter I
32
9 May 1950
Order
Establishes the extension of the
time limits for the filing of a
Rejoinder by Peru, as requested by
the party. Colombia objected to
such a request, expressing concern
over the delay of the opening of
oral proceedings. Nonetheless, the
Court agreed to postpone the
deadline of the Rejoinder to 15
June 1950.
22 September
1950
Press Release
No.1950/34
Determines the date of the opening
of oral proceedings. The Public
Hearings at the ICJ were set to be
held on 26 September 1950.
Press Release
No. 1950/35
Summarizes the history of
proceedings before the oral
statements. First it briefly explains
the dispute involved in the case.
Then it exposes the arguments
submitted by each party in their
written proceedings. Finally, the
document presents once again the
designated ad hoc judges and the
names that would represent the
parties in the Public Hearings.
Press Release
No. 1950/36
Records the first day of Public
Hearings. On this occasion, the
importance of the present case to
international jurisdiction was
highlighted as “the first time that
two American countries referred a
dispute to the International Court
of Justice.” The document also
establishes the extension of
Colombia’s oral statements to 27
September 1950.
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25 September
1950
26 September
1950
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3. Asylum (Colombia v. Peru), 1949
29 September
1950
3 October
1950
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6 October
1950
9 October
1950
33
Press Release
No. 1950/37
Summarizes the arguments in the
case presented by Colombia’s
representatives during the Public
Hearings held between 26
September 1950 and 29 September
1950. It also establishes the
beginning of Peru’s oral statements
on Public Hearings starting 2
October 1950.
Press Release
No. 1950/38
Summarizes the arguments on the
case presented by Peru’s
representatives during Public
Hearings held on 2 October 1950
and 3 October 1950. It also
establishes the date of the
beginning of the oral Reply and
Rejoinder as 6 October 1950.
Press Release
No.1950/39
Displays the arguments presented
by Colombia’s agents in their oral
Reply. On this occasion, the party
requested the Court to declare
Peru’s Counter-Memorial as out of
order. This document also settles
the date of the Public Hearing
when Peru’s agents would present
their oral Rejoinder as 9 October
1950.
Press Release
No. 1950/40
Reports what took place during the
public sitting of 9 October 1950, in
which Peru presented its oral
Rejoinder. It also presents Peru’s
final submissions. Finally, it
declares the closure of the oral
proceedings with the reservation of
reopening the proceedings if the
Court ever judges necessary.
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34
16 November
1950
20 November
1950
Chapter I
Press Release
No. 1950/42
Settles for the Court to hold a
Public Hearing to announce its
judgment on the present case as 20
November 1950.
Press Release
No.1950/43
Publishes the Court’s decision on
the case and presents a brief
summary of the judgment. It
exposes the votes and decisions
given to each question set out in
the written proceedings. The Court
decided, among other things, that
the asylum given by Colombia was
not in accordance with the Havana
Convention, to which both
countries were parties.
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3.3. Bibliography
BISHOP, William W. Jr. (1956) ‘Asylum Case (Colombia/Peru),’ The
American Journal of International Law, 45: 179-203.
BRIGGS, Herbert W. (1951) ‘The Colombian-Peruvian Asylum Case and
Proof of Customary International Law,’ The American Journal of
International Law, Vol. 45. No. 4. Pp. 728-731. October 1951. Online.
Available. < http://www.jstor.org/stable/2194257>
EVANS, Alona E. (1952) ‘The Colombian-Peruvian Asylum Case: The
Practice of Diplomatic Asylum,’ The American Political Science
Review, Vol. 46, No. 1, pp. 142-157. Online. Available.
<http://www.jstor.org/stable/1950767>
—. (1951) ‘The Colombian-Peruvian Asylum Case: Termination of the
Judicial Phase,’ The American Journal of International Law, Vol.45,
No. 4, pp. 755-762. Online. Available.
<http://www.jstor.org/stable/2194262>
GARCÍA-MORA, Manuel R. (1951) ‘The Colombian-Peruvian Asylum
Case and the Doctrine of Human Rights,’ Virginia Law Review, Vol.
37. No. 7. Pp.927-965. Online. Available.
http://www.jstor.org/stable/1069115
GONIDEC P.F. (1951) ‘L’affaire du droit d’asile,’ Revue Générale de
Droit International Public, vol. 55, pp. 547-592.
LALIVE, J.F. (1953) ‘Droit d’asile, affaire Haya de la Torre’, J.D.I., 80:
684-705.
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.
3. Asylum (Colombia v. Peru), 1949
35
Copyright © 2017. Cambridge Scholars Publishing. All rights reserved.
PATEL, Bimal N. (2002) ‘Asylum Case (Colombia v. Peru)’ in Bimal N.
Patel The World Court Reference Guide: Judgments, Advisory
Opinions and Orders of the Permanent Court of International Justice
and the International Court of Justice (1922-2000)’, Hague/London/
New York: Kluwer Law International.
—. (2002) ‘Request for Interpretation of the Judgment of November 20th,
1950, in the Asylum Case (Colombia v. Peru)’ in Bimal N. Patel The
World Court Reference Guide: Judgments, Advisory Opinions and
Orders of the Permanent Court of International Justice and the
International Court of Justice (1922-2000), Hague/London/New York:
Kluwer Law International.
VAN ESSES, J. L. F. (1952) ‘Some Reflections on the Judgments of the
International Court of Justice in the Asylum and Haya de la Torre
Cases,’ The International and Comparative Law Quarterly, Vol. 1. No.
4. pp. 533-539. Online. Available. <
http://www.jstor.org/stable/755177>
VERZIJL, J.H.W. (1966) ‘The Asylum and Haya de la Torre Case
(Colombia v. Peru)’ in The Jurisprudence of the World Court: A Case
by Case Commentary – Volume II: The International Court of Justice
(1947-1965), Leyden: A.W. Sijthoff.
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.
4. REQUEST FOR INTERPRETATION
OF THE JUDGMENT OF 20 NOVEMBER 1950
IN THE ASYLUM CASE (COLOMBIA V. PERU),
1950
4.1. Summary
This case concerns the dispute between the Republic of Colombia
(hereinafter “Colombia”) and the Republic of Peru (hereinafter “Peru”)
regarding the admissibility of a request for interpretation of the judgment
of the Asylum Case submitted by Colombia.
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I. Facts
On 20 November 1950 the International Court of Justice (hereinafter
“ICJ”) delivered its judgment on the Asylum Case. The dispute concerning
this case arose on 3 January 1949, when Víctor Raúl Haya de la Torre
sought asylum at the Colombian Embassy in Lima. At the time, Peru was
politically unstable due to a series of rebellions that culminated in the
enforcement of a state of siege. Mr. Haya de la Torre was the leader of the
party associated with such rebellions, the American People’s
Revolutionary Alliance. Due to his political position, Mr. Haya de la Torre
was prosecuted for military rebellion and, later, the examining magistrate
ordered his arrest. For this reason, Víctor Raúl Haya de la Torre was
granted asylum by the Colombian government.
The government of Peru initiated diplomatic negotiations with
Colombia for Mr. Haya de la Torre’s surrender as soon as it acknowledged
the asylum. Such negotiations led to a special agreement that submitted
this case to the ICJ. During the proceedings, Peru requested the Court to
adjudge that the asylum granted was not in accordance with international
law, since, from its point of view, the crimes committed by Mr. Haya de la
Torre were common crimes and not political crimes, as alleged by
Colombia. Colombia, however, requested the Court to declare that its
government was competent to unilaterally qualify the type of offense
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4. Request for Interpretation of the Judgment of 20 November 1950
37
committed by the refugee and that such a qualification was binding for the
government of Peru.
The Court declared that the asylum was not in accordance with
international law due to the fact that it had lasted longer than strictly
necessary and because the Colombian Ambassador had unilaterally
qualified the nature of the offense committed by the refugee. However, it
dismissed both Peru and Colombia’s submissions, the first due to the lack
of proof that Mr. Haya de la Torre had committed common crimes and the
second because it was considered to be a threat to Peru’s sovereignty.
While the government of Colombia was dissatisfied with the decision,
deeming it unclear and lacking information, on 20 November 1950 it
submitted to the Court a request for interpretation of the said judgment.
II. Jurisdiction
Colombia submitted to the Court the request for interpretation of the
judgment of 20 November 1950 based on Article 60 of the Statute of the
Court.1 This provision allows a party to the case to submit a request for
interpretation in case a dispute between the parties arises over the meaning
and scope of a decision delivered by the Court.
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III. Matters of Dispute
The question the Court had to face in its judgment regarding the request
for interpretation was whether the judgment of 20 November 1950 should
be interpreted, and, if so, for what reasons. In this sense, on the occasion
of the submission of the request, Colombia asked the Court to answer
three questions:
“First: Must the judgment of November 20th, 1950, be interpreted in the
sense that the qualification made by the Colombian Ambassador of the
offence attributed to M. Haya de la Torre, was correct, and that,
consequently, it is necessary to attribute legal effect to the abovementioned qualification, in so far as it has been confirmed by the Court?
Second: Must the judgment of November 20th, 1950, be interpreted in the
sense that the government of Peru is not entitled to demand surrender of
the political refugee M. Haya de la Torre, and that, consequently, the
government of Colombia is not bound to surrender him even in the event
1
Article 60 of the Statute of the Court reads as follows: “The judgment is final and
without appeal. In the event of dispute as to the meaning or scope of the Judgment,
the Court shall construe it upon the request of any party.”
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38
Chapter I
of this surrender being requested? Third: Or, on the contrary, does the
Court’s decision on the counter-claim of Peru imply that Colombia is
bound to surrender the refugee Víctor Raúl Haya de la Torre to the
Peruvian authorities, even if the latter do not so demand, in spite of the fact
that he is a political offender and not a common criminal, and that the only
convention applicable to the present case does not order the surrender of
political offenders?”2
The only request made by the Peruvian government to the Court was for it
to consider Colombia’s request inadmissible.
IV. Merits
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A) Colombia’s Arguments
In its request, Colombia exposed two arguments in favor of the
interpretation of the judgment of 20 November 1950. The first argument
concerned the qualification attributed to the crimes committed by Mr.
Haya de la Torre. Colombia’s ambassador in Lima considered the offences
for which Mr. Haya de la Torre was being charged to be political crimes,
and, for this reason, considered him fit to seek asylum at the Colombian
Embassy. Peru, however, alleged that the crimes committed by the refugee
were of common nature, and, therefore, that the asylum was not in
accordance with the Convention of Havana on Right of Asylum
(hereinafter “Havana Convention”).3 The aforementioned treaty is the only
legal document regulating matters of asylum between two parties and
provides that whenever the territorial state and the state granting asylum
diverge on the qualification of the crime committed by the refugee, both
states ought to use their own methods for pacific settlement of disputes.
Colombia found that taking the case to the ICJ was its way of doing so.
The Court, in its judgment of 20 November 1950, dismissed Peru’s
allegation that Mr. Haya de la Torre had committed common crimes due to
a lack of proof. From Colombia’s point of view, such a dismissal meant
that the Court agreed on the qualification attributed by the Colombian
ambassador to Mr. Haya de la Torre’s as political crimes. Based on this
premise, Colombia questioned the unlawfulness of granting him asylum.
The reason for such questioning was that since the Court agreed that Mr.
Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J, Reports 1950, p.8, Paragraph 16.
3
Convention of Havana on Right of Asylum (Havana Convention on asylum of
1928) (Havana, 20 February 1928, 132 L.N.T.S. 323).
2
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4. Request for Interpretation of the Judgment of 20 November 1950
39
Haya de la Torre had committed political crimes, Colombia sought to
understand the reason why the Court considered the asylum it granted
unlawful. Colombia argued that the mere fact that its Ambassador had
qualified the nature of the crime unilaterally, and not by consulting Peru,
was not sufficient to annul the legal effects of the qualification itself.
The second argument regards the surrender of Mr. Haya de la Torre.
According to Colombia, in the judgment of 20 November 1950, the Court
indirectly ordered the surrender of Mr. Haya de la Torre by stating that the
asylum was illegal because it violated Article 2, Paragraph 2 of the
Havana Convention.4 That is, it indirectly suggested that Colombia would
be in breach of international law as long as it kept Mr. Haya de la Torre on
its premises. In response, Colombia alleged that this matter was never
brought to the Court by either party during the proceedings, nor was it
discussed between them in their diplomatic correspondence. Therefore, it
was not for the Court to decide upon, even indirectly. Moreover, the
Havana Convention, as mentioned above, is the only treaty that regulates
the matters of asylum between two parties, and it does not provide for the
surrender of political criminals. Thus, keeping Mr. Haya de la Torre did
not constitute a breach of international law. Furthermore, Colombia
pointed out that it could not have violated the order of surrender
supposedly comprised in the said judgment, since it was merely an indirect
order.
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B) Peru’s Arguments
Peru expressed its view on the request for interpretation in a letter sent to
the Court on 22 November 1950. In this document, besides affirming that
it found the judgment of 20 November 1950 perfectly clear, the Peruvian
government alleged that the Colombian request was inadmissible for not
fulfilling the requirements of Article 60 of the Statute of the Court. From
Peru’s point of view, the request for interpretation submitted by Colombia
used expressions such as “gaps” to force a new judgment on different
matters. Therefore, Peru argued that if the Court consented to interpret the
judgment as requested by Colombia, it would be in violation of the
mentioned provision.
4
Article 2, Paragraph 2 of the Havana Convention on Asylum of 1928 states 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.”
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40
Chapter I
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IV. Judgment
In order to decide whether the request for interpretation was admissible or
not, the Court analyzed mainly Article 60 of the Statute of the Court, but
also Article 79, Paragraph 2 of the Rules of Court.5 In this sense, the Court
established that the two requirements of Article 60 of the Statute of the
Court were, firstly, that the object of interpretation involved the meaning
and scope of what the Court had decided with binding force, and,
secondly, that there must be a dispute between the parties concerning the
meaning and scope of the decision. Moreover, the Court made clear that
such a dispute could not be such that one party finds the judgment unclear
while the other party does not. Furthermore, Article 79, Paragraph 2 of the
Rules of Court establishes that the request for interpretation “shall specify
the precise point or points in dispute.”6
The Court proceeded to verify if Colombia’s request fulfilled such
requirements. First, it pointed out that Colombia did not ask the Court to
qualify Mr. Haya de la Torre’s crimes in the judgment of 20 November
1950, nor did it ask it to declare that the Colombian’s Ambassador’s
interpretation was correct. In fact, Colombia’s only request was for the
Court to adjudge that it had the right to qualify the crimes unilaterally and
with binding force on Peru, which was found to threaten the latter’s
sovereignty. By dismissing Peru’s counter-claim that Mr. Haya de la Torre
had committed common crimes, the Court did not declare that he was a
political criminal. The Court could not have done so, since the question
was never put before it during the proceedings. For this reason, it
dismissed Colombia’s first argument, since the Court’s declaration on the
qualification of Mr. Haya de la Torre’s crimes did not concern the
meaning and scope of the judgment.
The Court also dismissed Colombia’s second argument, the one
regarding Mr. Haya de la Torre’s surrender, for the same reason it
dismissed the first one. The Court declared that it did not order or decide
upon the surrender, since this matter was never brought before it during
the proceedings, and so it could not be discussed in a request for
interpretation. Moreover, the Court highlighted that there was no dispute
5
Article 79, Paragraph 2 of the Rules of Court determines that: “2.
Notwithstanding paragraph 1 above, following the submission of the application
and after the President has met and consulted with the parties, the Court may
decide that any questions of jurisdiction and admissibility shall be determined
separately.”
6
Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum
Case (Colombia v. Peru), Judgment, I.C.J, Reports 1950, p.12.
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.
4. Request for Interpretation of the Judgment of 20 November 1950
41
between Peru and Chile over the meaning and scope of the judgment of 20
November 1950, since Peru found that the judgment was perfectly clear
and Colombia was unable to specify the nature of the dispute between
them.
For the reasons exposed above, the Court decided that Colombia’s
request for interpretation did not fulfil the requirements of Article 60 of
the Statute of the Court and Article 79, Paragraph 2, of the Rules of Court,
and, in the end, considered the request inadmissible.
4.2. Timeline
DATE
DOCUMENT
CONTENT
21 November
1950
Press Release
No. 1950/44
Notifies the filing by Colombia of
a request for interpretation of the
judgment rendered by the ICJ on
the Asylum Case.
Press Release
No.1950/46
Publishes the Court’s decision on
the request for interpretation of the
Asylum Case, in which the Court
considered such a request
inadmissible.
Copyright © 2017. Cambridge Scholars Publishing. All rights reserved.
27 November
1950
Paula, W. A., Júlia, R. C. D. S. B., & Ananda, M. W. (2017). A latin american guide to the international court of justice case
law. Cambridge Scholars Publishing.
Created from upnpe on 2023-09-11 19:11:58.