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The Colombian-Peruvian Asylum Case: The Practice of Diplomatic Asylum*

Published online by Cambridge University Press:  02 September 2013

Alona E. Evans
Alona E. Evans
Affiliation:
Wellesley College
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Extract

By a turn of legal fate, the first case between two American states to be decided by either the International Court of Justice or its predecessor, the Permanent Court of International Justice, is one which involves the controversial practice of diplomatic asylum. One can choose to regard diplomatic asylum as a principle of American international law or as a “permissive local custom,” though in no sense a principle of international law, or one can agree that “the fact that asylum is not exercised in the territory of the leading states, and is mainly resorted to in the ‘backward’ countries of the Near and Far East and of Latin America, suggests that it is a practice followed only in relation to states who are not fully civilized in the Western sense of the term, and that as such it is a temporary exception to the system of international law which obtains in the community of civilized nations.” Whatever the viewpoint, the fact remains that the practice has been indulged in for a long time, with and without formal legal sanction, and in more places than Latin America. The Colombian-Peruvian Asylum Case brings to attention the issues of the validity in international law of diplomatic asylum and of its desirability in international relations. A short sketch of the origin and development of diplomatic asylum will indicate something of its nature.

Type
Research Article
Information
American Political Science Review , Volume 46 , Issue 1 , March 1952 , pp. 142 - 157
Copyright
Copyright © American Political Science Association 1952

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References

1 No cases between American states came before the Permanent Court of International Justice, although the Court was granted jurisdiction in the Chaco dispute between Bolivia and Paraguay and in the Leticia dispute between Colombia and Peru. See Hudson, Manley O., International Tribunals, Past and Future (Washington, 1944), p. 141Google Scholar.

2 I.C.J., General List, 1949, No. 7, p. 9.

3 Hackworth, Green H., Digest of International Law (8 vols., Washington, 1940–1944), Vol. 2, p. 623Google Scholar.

4 Morgenstern, Felice, “‘Extra-territorial’ Asylum,” British Year Book of International Law, Vol. 25, p. 242 (1948)Google Scholar.

5 For a concise history of asylum and a general discussion of problems involved in the practice, see Reale, Egidio, “Le Droit d'Asile,” Recueil des Cours de l'Académie de Droit International, Vol. 63, pp. 469–601 (1938)Google Scholar.

6 Ibid., pp. 513–518, 522–25.

7 Harvard Law School, Research in International Law, “Draft Convention on Extradition,” American Journal of International Law, Vol. 29, supp., pp. 108–9 (1935)Google Scholar.

8 For example, Article 6 of the 1924 Treaty between Great Britain and Finland and Article 4 of the 1922 Treaty between Germany and Czechoslovakia, ibid., pp. 109, 241, 320. A “classic” case on the subject is Re Castioni [1891]; 1 Q.B. 149.

9 Moore, John Bassett, A Digest of International Law (8 vols., Washington, 1906), Vol. 2, pp. 767–70Google Scholar; Reale, p. 528; U. S. Department of State, Papers Relating to the Foreign Relations of the United States (Washington, 1870—), 1909, p. 495Google Scholar; Foreign Relations, 1918, Russia, Vol. 1, p. 667Google Scholar; Padelford, Norman J., International Law and Diplomacy in the Spanish Civil Strife (New York, 1939), pp. 157–66Google Scholar.

10 Morgenstern, pp. 242, 249.

11 Padelford, pp. 157–59.

12 Hackworth, Vol. 2, pp. 622, 623.

13 Foreign Relations, 1870, pp. 506–07; Foreign Relations, 1906, Pt. 1, p. 544; Foreign Relations, 1911, p. 285; Foreign Relations, 1924, Vol. 1, p. 357Google Scholar; Foreign Relations, 1891, pp. 153–56.

14 The trend of opinion has also been unfavorable to the practice of political territorial asylum. In 1856, Belgium excluded from the status of political refugee any person who was responsible for an attempt on the life of the head of a foreign state and made such a person liable to extradition as a common criminal. See Fenwick, Charles G., International Law (3rd ed., rev., New York, 1948), p. 336Google Scholar. More recent evidence of this view is found in the League of Nations' Conventions on Terrorism and the International Criminal Court, which followed on the reaction to the assassinations of King Alexander of Yugoslavia and French Foreign Minister Barthou in Marseilles in 1934 and to the subsequent protection of the assassins as political offenders (League of Nations Document, C.94, M.47, 1938, V.3.)

15 Hermes, J. S. da Fonseca, “Asilo Diplomático,” Boletim da Sociedade Brasileira de Direito International, Vol. 4, p. 43 (Jan.–June, 1948)Google Scholar; Parra, Francisco, El Derecho de Asilo (Lima, 1936), p. 6Google Scholar.

16 For example, Antokoletz, Daniel, Tratado de Derecho Internacional Público (4th ed., Buenos Aires, 1944), Vol. 2, p. 299Google Scholar; Alejandro Deustua, A., “Derecho de Asilo,” Revista Peruana de Derecho Internacional, Vol. 7, p. 184 (July–Dec., 1947)Google Scholar; Ursúa, Francisco A., Derecho Internacional Público (México, D.F., 1938), pp. 285–86Google Scholar. In spite of widespread approval of the practice in Latin American states, it is not often described in such terms as “una floración de la piedad, el más exquisito de los sentimientos humanos, pero vestido siempre con la túnica severa del derecho” (Franco, Armando Fernández, “El Asilo Diplomático,” Revista de Derecho Internacional, Vol. 46, p. 216 [1946])Google Scholar.

17 U. S. Department of State, Diplomatic Correspondence, 1867, Pt. 2, p. 759Google Scholar; Foreign Relations, 1908, pp. 437–38. For the dénouement, see Foreign Relations, 1870, pp. 506–07; Foreign Relations, 1911, p. 285.

18 Morgenstern, p. 240.

19 Colombia, Leyes Expedidas por el Congreso Nacional, 1913, p. 160Google Scholar. The Central American Treaty of Peace and Amity of 1907 provided that asylum in merchant ships should be respected. Foreign Relations, 1907, Pt. 2, p. 694.

20 This Convention has been ratified by fifteen states: Brazil, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay, Honduras. Status of the Pan American Treaties and Conventions (rev. to March 1, 1951, by the Pan-American Union, Washington, 1951), p. 7Google Scholar. The United States signed the Convention with “an explicit reservation … that the United States does not recognise or subscribe to as part of international law, the so-called doctrine of Asylum” (League of Nations Treaty Series, Vol. 132, p. 323Google Scholar).

21 Hudson, Manley O., International Legislation (Washington, 1931—), Vol. 6, pp. 607–12Google Scholar. The United States signed this Convention with its reservation of 1928. The Convention has been ratified by twelve states.

22 Jarpa, Ernesto Barros, Derecho Internacional Público (3d ed., Santiago de Chile, 1945), p. 165Google Scholar; Padelford, pp. 157–59. See also, Helfant, Henry, La Doctrina Trujillo del Asilo Diplomático Humanitario (México, D.F., 1947), pp. 27–29Google Scholar.

23 Argentina, Ministry of Foreign Affairs and Worship, Project of a Convention on the Right of Asylum (Buenos Aires, 1937), pp. 4, 19Google Scholar.

24 Hudson, , International Legislation, Vol. 8, pp. 404–11Google Scholar.

25 Council of the Organization of American States, Decisions Taken at the Meeting Held on February 14, 1951 (Washington, 1951), pp. 25–26Google Scholar. At the Ninth Conference of American States held at Bogotá in 1948, an “American Declaration of the Rights and Duties of Man” was drawn up which included a provision on the “right of asylum.” U. S. Department of State, Ninth International Conference of American States (Washington, 1948), p. 264Google Scholar.

26 For a brief description of APRA and its leader, see Macdonald, Austin F., Latin-American Politics and Government (New York, 1949), pp. 343–50Google Scholar. See, also, Torre, Víctor Raúl Haya de la, El Antimperialismo y el APRA (2nd ed., Santiago de Chile, 1936)Google Scholar; Government of Peru, The Inner Meaning of the ‘APRA’ (Communism Undercover) (Lima, n.d.); Eudocio Ravines, The Yenan Way (1951)Google Scholar.

27 New York Times, June 18, 1948, p. 13; July 6, p. 10; July 11, p. 19; July 12, p. 5.

28 Ibid., Oct. 4, p. 1; Oct. 8, p. 19.

29 Colombian-Peruvian Asylum Case, Judgment of November 20, 1950: I.C.J. Reports, 1950, p. 272.

30 New York Times, Oct. 28, p. 1; Oct. 29, p. 18; Oct. 30, p. 1; Oct. 31, p. 38. General Odría and the Military Junta governed Peru until the presidential election of July, 1950, at which time Odría was confirmed as constitutional chief of state (ibid., July 29, 1950, p. 5).

31 I.C.J. Reports, 1950, p. 272.

32 Ibid., pp. 272–73.

33 I.C.J. General List, 1949, No. 7, p. 5.

34 Idem. See Notes Exchanged between the Minister of Foreign Affairs of Peru and the Ambassador of Colombia referring to the Asylum of Victor Raul Haya de la Torre, March 19, 1949 (Lima, n.d.); New York Times, March 27, 1949, p. 20.

35 I.C.J. General List, 1949, No. 7, pp. 6–7.

36 Excelsior, México, D.F., April 19, 1949, p. 15Google Scholar. This procedure was in accordance with Article 7 of the Protocol of Friendship and Co-operation between Colombia and Peru, signed at Rio de Janeiro, May 24, 1934 (League of Nations Treaty Series, Vol. 164, p. 22Google Scholar).

37 El Peruano, Diario Oficial, Sept. 1, 1949, p. 1Google Scholar.

38 I.C.J. General List 1949, No. 7, p. 9. The jurisdiction of the Court was founded on Art. 7 of the 1934 Protocol of Friendship and Co-operation (see above, n. 36); Art. 36, par. 1, and Art. 40 of the Statute of the International Court of Justice; and Art. 32 of the Rules of the Court.

39 I.C.J. General List, 1949, No. 7, p. 3; I.C.J. Communiqué, No. 50/35 (unofficial), Sept. 25, 1950.

40 I.C.J. Reports, 1950, p. 271. The two claims were amended after the oral arguments. The pertinent provisions of the Havana Convention are Art. 1, par. 1: “It is not permissible for States to grant asylum in legations … to persons accused or condemned for common crimes, or to deserters from the army or navy”; Art. 2, par. 1, item 1: “Asylum granted to political offenders in legations … 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” (League of Nations Treaty Series, Vol. 132, pp. 327, 329Google Scholar).

41 I.C.J. Reports, 1950, pp. 278, 288. As the International Court of Justice has no judges of the nationality of the parties, each appointed an ad hoc judge, in accordance with Article 31, paragraph 3, of the Statute. Colombia was “represented” by Sr. José Joaquín Caicedo Castilla; Peru, by Sr. Luis Alayza y Paz Soldán (I.C.J. Communiqué, No. 50/35 [unofficial], Sept. 25, 1950).

42 I.C.J. Reports, 1950, pp. 274–75.

43 See above, n. 40.

44 I.C.J. Reports, 1950, p. 276.

45 Ibid., p. 277.

46 The vote was 15 to 1 (ibid., pp. 279, 288).

47 Ibid., pp. 282, 288.

48 Ibid., pp. 287–88. Dissenting opinions were filed by Alvarez (Chile), Badawi Pasha (Egypt), Read (Canada), Azevedo (Brazil), and Caicedo (Colombian ad hoc judge). Zoričić (Yugoslavia) accepted the majority opinion on the first three points; but taking the view that the asylum had been granted in conformity with the pertinent provisions of the Havana Convention, he shared Read's dissenting opinion on this point (ibid., p. 289).

49 Ibid., p. 284.

50 Ibid., pp. 285–86.

51 New York Times, Nov. 22, 1950, p. 24.

52 Ibid.

53 Ibid., Nov. 23, p. 36. See also La Razón, La Paz, Dec. 4, 1950, p. 4; La Nación, Santiago de Chile, December 3, 1950, p. 16.

54 I.C.J. Reports, 1950, p. 399.

55 The vote was 12 to 1 (ibid., p. 403).

56 New York Times, Dec. 2, 1950, p. 6.

57 1950 Semanario Peruano, Dec. 4, 1950, pp. 5–6; La Razón, La Paz, Dec. 4, 1950, pp. 1, 4.

58 I.C.J. General List, 1950, No. 14, pp. 4–5. Haya de la Torre Case, Order of January 3rd, 1951: I.C.J. Reports, 1951, pp. 4–6.

59 Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports, 1951, pp. 73–74. See Articles 63 and 66, Rules of the Court.

60 Mercurio, Santiago de Chile, Aug. 20, 21, 1949. The asylum granted to the two Apristas in December, 1948, by the Cuban Ambassador had been challenged by Peru for reasons similar to those in the case of Haya de la Torre. While the two governments were discussing the desirability of submitting this issue to the Court, the Apristas vanished from the embassy and made their way to Havana. Peru severed diplomatic relations with Cuba, an unpleasant situation which was aggravated when the Cuban government decorated the ambassador on his return to Havana. See Haya de la Torre Case, Pleadings (May 1951), p. 3.

61 Ibid., pp. 3–5.

62 I.C.J. Reports, 1951, p. 75.

63 Pleadings (May 1951), p. 40Google Scholar.

64 Ibid., pp. 39–40.

65 I.C.J. Reports, 1951, p. 79.

66 Ibid.

67 Ibid., p. 82. The vote was 13 to 1, with Peruvian ad hoc Judge Alayza y Paz Soldán the dissenter.

68 Ibid., p. 81.

69 Ibid., p. 82.

70 Ibid.

71 New York Times, June 24, 1951, sec. 4, p. 8.

72 I.C.J. Reports, 1951, p. 83.

73 New York Times, July 15, 1951, p. 20. No settlement had been reached up to January, 1952.

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