Asylum case (Colombia v. Peru) (Haya de la Torre case) (Judgment)

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS
ASYLUM CASE

(COLOMBIA I PERU) JUDGMENT OF NOVEMBER 20th, 1950

Diplomatic asylum.—Right of qualification of the nature of the offence as political or ordinary; claim to unilateral and definitive qualification by the State granting asylum.—Lack of foundation of such a claim in the absence of agreement or of a customary ride to justify it.—Bolivarian Agreement of 1911 on Extradition ; differences between territorial asylum (extradition) and diplomatic asylum.— The Havana Convention on Asylum of 1928, the Montevideo Con¬vention on Political Asylum of 1933; custom, elements and proof of custom.—Guarantees for the free departure of the refugee ; conditions required for the request for a safe-conduct.
Counter-claim.—Admissibility : direct connexion with the subject- matter of the Application (Article 63 of the Rules of Court).—Merits : interpretation of A rticle 1, paragraph 1, of the Havana Convention ; interpretation of Article 2, paragraph 2, of the same Convention : notion of urgency, nature of the danger the imminence of which con¬stitutes urgency, legal proceedings instituted by the territorial authorities prior to the grant of asylum, regular proceedings, proceedings manifestly of an arbitrary character ; absence of urgency at the time of the grant of asylum; protection maintained against regular proceedings; pro¬longation of asylum contrary to Article 2, par^0.aph 2, of the Havana- Convention.

JUDGMENT
Present: President BASDEVANT ; Vice-President GUERRERO ;
INTERNATIONAL COURT OF JUSTICE

1950 November 20th General List: No. 7

Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, HSU MO, AZEVEDO ; M. ALAYZA Y PAZ SOLDAN and M. CAICEDO CASTILLA, Judges ad hoc ; M. GARNIER-COIGNET, Deputy-Registrar.
In the Asylum case, between the Republic of Colombia, represented by :
M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal Adviser to the Ministry for Foreign Affairs of Colombia, former Senator, as Agent;
assisted by
M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-General of the Ministry for Foreign Affairs of Colombia, as Advocate ;
and
the Republic of Peru, represented by :
M. Carlos Sayan Alvarez, Barrister, Ambassador, former Minister, former President of the Peruvian Chamber of Deputies, as Agent;
assisted by
M. Felipe Tudela y Barreda, Barrister, Professor of Consti¬tutional Law at Lima,
M. Fernando Morales Macedo R., Parliamentary Interpreter, M. Juan Jose Calle y Calle, Secretary of Embassy ;
and, as Counsel,
M. Georges Scelle, Honorary Professor of the University of Paris, and
M. Julio Lopez Olivan, Ambassador,
THE COURT,
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, duly desig¬nated by their respective Governments to negotiate and draw up the 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 :
First :
They have examined in a spirit of understanding the existing dispute which they agree to refer for decision to the International Court of Justice, in accordance w’th the agreement concluded by the two Governments.
Second:
The Plenipotentiaries of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made.
Third:
They agree, here and now: (a) that the procedure in this case shall be the ordinary procedure ; (b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the Parties may exercise its right to choose a judge of its nationality; (c) that the case shall be conducted in French.
Fourth:
This document, after it has been signed, shall be communicated to the Court by the Parties.”
On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the name of the Colombian Government. After stating that Colombia asserts :
“(a) that she is entitled in the case of persons who have claimed asylum in her embassies, legations, warships, military camps or military aircraft, to qualify the refugees, either as offenders for common crimes or deserters from the army or navy, or as political offenders;
(b) that the territorial State, namely, in this case, Peru, is bound to give ‘the guarantees necessary for the departure of the refugee, with due regard to the inviolability of his person, from the country'”,
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 questions:
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 person ?”
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 Conventions.
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. Jose Joaquin 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 Soldan, 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.
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 xoth, 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 par-ticular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the 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 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 1, and Article 2, paragraph 2, item x (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 Plead¬ings, the following final submissions were presented to the Court orally and confirmed in writing :
On behalf of Colombia : (on the claim)
ASYLUM CASE (JUDGMENT OF 20 XI $0)    2/1
“MAY IT PLEASE THE COURT
To ADJUDGE AND DECLARE:
1.    —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)
“1. That the counter-claim presented by the Peruvian Govern-ment on March 21st, 1950, is not admissible because of its lack of direct connexion with the Application of the Colombian Govern-ment ;
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 Government.”
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 Govern-ment of Peru, and which were repeated in his letter of October 7th, I950-
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 I, paragraph 1, and of 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 cons¬titutes 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 Raul 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 appeal.
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 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 Worship :
“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 Senor Victor Raul 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 Senor 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 Senor Haya de la Torre may leave the country with the usual facilities attaching to the right of diplomatic asjdum.”
On January 14th, the Ambassador sent to the Minister a further note as follows :
“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, lias qualified Senor Victor Raul 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 offencc for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition of July iSth, 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 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 quali-fication. 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 Govern¬ment 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 international law.”
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 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 particular case.
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 Con¬vention 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 :”
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 Monte¬video 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 ratifi¬cations 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 Conven¬tion 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 Monte¬video 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 that Convention.
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
r A
international custom “as evidence of a general practice accepted as law”.
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 Conven¬tion 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 from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conven¬tions of 1933 and 1939, which were the first to include a rule concern¬ing the qualification of the offence in matters of diplomatic asylum.
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 and declare :
“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 sub¬mission 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 counter¬claim 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 :
“Third : The Government of the State ma}’ 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 ordinar}- 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:
“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 frimero), of the Con¬vention on Asylum signed in 1928, and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty.”
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 wrong¬fully 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 surren¬der 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 correspon¬dence submitted by the Parties or at any moment in the procee¬dings before the Court, and in fact the Government of Peru has not requested that the refugee should be surrendered.
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
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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 1, para¬graph 1, and Article 2, paragraph 2, of the Havana Convention.
Under Article I, 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 crimcs 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 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 counter¬claim, 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 con¬cerning the Havana Convention in general and Article 2 in particular.
The object of the Havana Convention, which is the only agree¬ment 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 conscquences 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 immi¬nence 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 was fulfilled.
It has not been disputed by the Parties that asylum may be granted on humanitarian grounds in order to protect political
n-ffAn/^nre onroinct thp xnnlAnf arul Hicri-rlAr!*7    r*f irmcnrincililr* 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 Em-bassy. The Court considers that, prima facie, 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 respon¬sible for the offcnces 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 subordin¬ation 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 clanger of this kind can serve as a basis for asylum.
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 i 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 political offenders.
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 tribu¬nals. 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 equiva¬lent 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 proceed¬ings against Haya de la Torre, as appears from the foregoing recital 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 promi¬nent 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 justice.
Indeed the diplomatic correspondence between the two Govern-ments 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 Haya 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 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 state¬ments. 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 obligation.
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.
AOIJUU:II v-.-voii YJ    i ur WJL jvj
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 qualifica¬tion 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 obliga¬tions” alleged to be binding on the Government of Peru. In thus expressing itself, the Government of Colombia definitively pro¬claimed 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 pro¬tection 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, paragraph 2, of the Havana Convention.
This finding renders superfluous the addition to the counter¬claim 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, THE COURT,
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 1, paragraph 1, 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.
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 trans¬mitted to the Governments of the Republic of Colombia and of the Republic of Peru respectively.
(Signed) BASDEVANT, President.
(Signed) GARNIER-COIGNET, Deputy-Registrar.
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 dissent¬ing 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 confor¬mity 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. (Initialled) G.-C.
ANNEX
LIST OF DOCUMENTS SUBMITTED TO THE COURT
r.—ANNEXES DEPOSITED DURING THE WRITTEN PROCEEDINGS
A.—BY THE GOVERNMENT OF COLOMBIA
(a) Annexes to the Memorial:
1.    —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 Colom¬bia 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.
15-—1949> September ist. 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 Guate¬mala 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 Ist South-American Congress on Private International Law which met at Montevideo in 1889.
•20.—Bolivarian Agreement on Extradition, signed at Caracas on July 18th, 1911.
21.    —Convention    on Asylum, signed at the Vlth Pan-American Confer¬ence.
22.    —Convention    on Political Asylum, signed at the Vllth Pan-American Conference.
-23.—Extract from the Treaty on Asylum and Political Refuge, signed at the Ilnd South-American International Law Congress which met at Montevideo in 1939.
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) A nnexes 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 crimcs, 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).
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 xo-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 Investi¬gations 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 xo-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. 312, 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 Investi¬gations 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 docu¬ments relating to the bombs placed in the party wall of a glass factory (cf. Annex No. 11).
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 door¬way of a grocer’s shop (cf. Annex No. 14).
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, contain¬ing various documents relating to a bomb placed on the tramway (cf. Annex No. 17).
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. iS).
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 xo-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 work¬shops of the Telephone Company (cf. Annex No. 23).
23.    —Folios    21. and 22 of Folder 11-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 57).
24.    —Folios    96 to 98 of Folio S-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 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 proceed¬ings 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 concern-ing 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).
2S.—Five photographic reproductions of leaflets used by Apra in its campaign of incitement preceding the rebellion of October 3rd, 194S (cf. Annex No. 30).
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 investiga¬tions 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 I 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 proceed¬ings, 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).
38.    —Folios    22 to 24 of Folder X 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 II, 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 concern¬ing 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 concern¬ing the crime of military rebellion and other crimes, containing the note requesting the delivery of the documents found at the head¬quarters 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 concern¬ing the crime of military rebellion and other crimes, containing the note from the Inspector-General of the Investigations and Surveil¬lance 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 concern¬ing 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 Peruano, 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).
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 legisla¬tion, 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 authen¬ticated 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 Febru-ary 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 Grana 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 func¬tions to the prejudice of the State (cf. Annex No. 62).
(b) A nnexes 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 xi-C in the proceed¬ings 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.
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 :
—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.
—Certified    copy of the sentence pronounced on March 22nd, 1950, by the tribunal which tried the persons responsible for rebellion and other crimes.
—Copy    of the Military Penal Code of Colombia (law 3 a of 1945).
—Cutting    from the Official Journal of Colombia containing decree No. 3562 of 1949.
—Copy    of the Official Journal of Colombia containing decree No. 957 of 1950.
—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.
IX.—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.
T
DISSENTING OPINION BY JUDGE ALVAREZ [Translation] I
Importance of.the Colombian-Peruvian Asylum case. Questions which
should be considered.
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 United Nations.
To have an exact idea of the case now before this Court, it is necessary to consider, in addition to the facts, the following ques¬tions in their broad outlines:
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 coun¬tries.
3° Does there exist an American international law ? Charac¬teristics 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.
II
Unilateral acts in international law. Their nature.
A distinction must be made in international law between uni¬lateral acts, or acts which arc 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 politics.
Acts under the first head refer particularly to the admission of aliens to a State, immigration, refuge, asylum, extradition, intern¬ment and expulsion, etc.
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 parties.
Finally, in the third category are included unilateral acts quali¬fying certain individuals as persona grata or persona non grata, desirable or undesirable, etc.
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 immigra¬tion—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 sover¬eignty 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.
Ill
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 humanit-arian 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 made.
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 crime, and that the State of refuge is competent to appreciate provi¬sionally 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 those countries.
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 suppressed.
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 prerogative.
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 of asylum.
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.
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
IV
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 neces¬sary. 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 law.
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 triumphed.
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 international law.
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.
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 war, etc.
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 impressive.
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 inter-national 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 spirit.
Does there exist a customary American international law on asylum ?
American international conventional law on the subject.
The institution of asylum is a part of Latin-American inter¬national law because that institution is applied in the Latin coun¬tries 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 speak¬ing ; 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 criminals.
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 multi¬lateral conventions.
The Latin-American States have signed in particular : the Boli- varian Agreement on Extradition of July i8th, ign ; the Conven¬tion on Asylum adopted at the Sixth Pan-American Conference of Havana, 1928 ; 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.
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 stipul¬ations 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.
VI
The Convention on Asylum which was adopted at the Sixth Pan- American Conference of Havana in 1928 and ratified by Colombia and Peru. Scope of its provisions.
It has been rightly argued that the solution to the present case must be sought especially in the provisions of the Havana Conven¬tion of 1928 on Asylum, on the grounds that this Convention was ratified by Colombia and Peru. 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….”
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 I, 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 grant asylum.
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 apprecia¬tion must naturally appertain to the State granting asylum ; if it appertained to the territorial State, the institution of as}dum 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 qualifica¬tion 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 offence.
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 insurrec¬tion, which arc manifestly political offences. The qualification of the offence should be made by the international legal authority whose task it is to decide in the matter.
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 mili¬tary 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 pol¬itical.
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 inter¬national 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 circum¬stances 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 occurred.
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 perse¬cuted and consequently faces an immediate danger.
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 terri-
fnriol Q+ifa    fViat tViprA    nn nrcf^nnw at thp time it 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 regularitj’ 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 safe-conduct.
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 tant¬amount 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 asylum. 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 revolu¬tion 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 departure.
Another gap in the article concerns the safe-conduct: no allow¬ance is made for the territorial State to deliver a restricted safe- 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, inter¬pret certain provisions of the Convention of 1928 and fill the above-mentioned gaps, especially with respect to the request for a safe-conduct.
VII
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 grant¬ing asylum, is competent to qualify the offence for the purpose of said asylum….”.
In its judgment, and basing itself on the written and oral argu¬ments 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 Coiirt.
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 Con¬vention 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
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 unjustifi¬able 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 asdum, or if such a point arose, it should have been previously settled ; other¬wise the State of refuge would elude the objections raised by the territorial State. In the present case, this legality has been con¬tested 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 terri¬tories against another State. The “Declaration of the great princi¬ples 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 Codifi¬cation 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 neces¬sary measures in this connexion.
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 dc 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.
The counter-claim of Peru.
The counter-claim of Peru is based on two grounds.
The first is the violation by Colombia of Article r, paragraph i, 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 common crime.
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 con¬firms 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
[Translation1
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 condi¬tions 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 provision.
*
* *
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 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 whatsoever.
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 revolu¬tion or a rebellion. Revolution or rebellion is their only reason and 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 mem¬bers of the former government to make them answerable for their past tenure of office ; or a government which has suppressed a rebel¬lion 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 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  .
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¬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 the}’ [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 Convention).
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 x, paragraph 1, expressly says so. But nothing of the kind is said concerning political offenders.
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 I, 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, subse¬quently recognized that the refugee was only a common criminal.
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 refugee.
But it is quite obvious that, even in the case of a common crim¬inal, 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 terri¬torial 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 conclu¬sions deduced from the texts. Not only has this practice been constant in the sense that revolution is a case of urgency and a 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 oj 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 safc-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 refugee ?
Here again it should be recalled that practice gives no example of asylum granted on the occasion of a revolution having continued
until return to normal conditions or having terminated otherwise
than by the departure of the refugee.
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* >-
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 circum¬stances 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 itself.
*
It results from the foregoing description of asylum that this institution has an aspect in South America which it has not else¬where. If the reason for this difference cannot be discovered, the conclusions deduced from practice and from texts, however concor¬dant they may be, might not appear decisive.
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 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 refugee.
There is no doubt that asylum can also be an element of instab¬ility in so far as it reduces or eliminates the risks involved in revolu¬tion, but these disadvantages, in comparison with the afore-men¬tioned advantages, do not seem to have affected either its course or recurrence.
It is sometimes attempted to expla’in 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 democracy.
*
* *
But however great the usefulness of asylum may be, this useful¬ness 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 fre¬quently 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 govern¬ment. It is in such circumstances that the government, without having to encroach on the general judicial organization, could be tempted to create special organs of justice bearing the imprint of political justice.
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 Novem¬ber 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 normal.
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.
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 threatened.
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 American States.
It is as such that the exercise of asylum is so frequently and widely recognized.
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 exer¬cise of asylum. Such merits or abuses may influence the evo¬lution 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 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 protec¬tion 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
1 In fact, the proceedings for rebellion against Haya do 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, ig.(S.) Judging by the communique of October 1.2th, the prosecution assumed socon- darv importance. On the other hand, the de jacto Government, this aim having been achieved, seemed to be especially anxious to strike at the head of the party. (See the contradictory attitudes of tins 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-callcd 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 diplomatic correspondence.
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 com¬mitted 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.
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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 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 Senor Haya de la Torre, could be justified as an urgent case within the meaning of the Havana Convention, 1928.
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 examin¬ation. 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¬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 American world.
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 ter¬ritorial 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 develop¬ment of this practice, it was understood by everybody that “the ordinary diplomatic functions” included the grant of asylum to political offenders.
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 coun¬try 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 mainte¬nance 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,
r-f.
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 contro¬versy, 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 Govern¬ment 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 corre¬spondence. 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 Govern¬ment. That argument was based upon an attempt to discredit the administration of justice in Peru, coupled with charges of adminis¬trative interference in judicial process. In this matter, it is sufficient to say that the Colombian Government has not proved its case, 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 neces¬sary 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 organ¬ized 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 committed.
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 com¬pelled 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 be considered.
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 such an interpretation is confirmed or contradicted by the context. For this purpose, principles of international law which are univer¬sally accepted would justify consideration of the following points :
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 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 tranquillity.
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 1.
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 govern¬ment”. Accordingly, it is clear that a person accused, or even condemned, for a political offence was regarded by the Govern¬ments 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, 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 gth, 1949, I.C.J. Reports 1949, p. 24.”
This Convention, in paragraph 1 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 prose¬cution, 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 human¬itarian grounds, and handed over to the local police for prose-cution. 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 limit¬ing diplomatic asylum to protection from mob violence encounters the insuperable obstacle presented by these provisions of the Convention, and must be rejected.
On the positive side, the application of this test would support an . interpretation of the expression as covering cages 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 harmony.
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 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 gth, 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 twenty-two years.
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 2ist, 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 Senor Haya de la Torre did not indicate any change in practice. Through¬out 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 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 Conven¬tion 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 Peruana, 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 angrv 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
fto political offenders, seeking to escape from prosecution for a pol¬itical offence by the local judicial authorities, “in times of polit¬ical 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 pro-tection 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
A A 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 protec¬tion 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 dis¬turbed that it was necessary to continue the state of siege and the suspension of the constitutional guarantees.
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 Govern¬ment acted on this assumption, and as late as February 17th, 1949, delivered safe-conducts to the Uruguayan Ambassador
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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 Foreign Affairs.
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 Peru.
This Military Junta, which had gained power by uncon-stitutional 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 Senor 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 Peru.
It seems clear, therefore, that Colombia has established con¬siderably more than a -prima facie case, and that the Court should find that the grant of asylum to Senor de la Torre was an “urgent case” within the meaning of the Convention.
Before stating my final conclusions on the counter-claim, I must deal with some other points which affect the case.
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 local authorities.
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 circum¬stances 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 irrelevant.
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 (“I’octroi”). My reasons for adopting this view may be stated shortly :
(a) What did Peru ask the Court to decide ? Peru asked the Court to adjudge and declare “that the grant (Voctroi) of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of Article 1”, etc.
(b)    What did Peru mean when its Agent used this language ? Ordinarily, it would be enough to say that the Peruvian Govern¬ment meant what it said. The words used “1’octroi de l’asile” mean the grant of asylum—and do not mean “grant and main¬tenance”.
In this case, however, the meaning of “1’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 counter-claim, 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 (“I’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 Government.
It is necessary to emphasize that I must confine my opinion to the counter-claim as presented in the final submission of the Peru¬vian 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 Havana Convention.
(Signed) J. E. READ.
DISSENTING OPINION BY JUDGE AZEVEDO [Translation] 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 inter¬national law, because views which have been confirmed by that decision acquire quasi-legislative value, in spite of the legal prin¬ciple 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 author¬ities, 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 sec it, is quite different, and the most iirmly- established traditions of Latin America which ensure the advantages 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 proximity.
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 America.
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 auto¬nomy 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 offences.
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.
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 overcome.
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, bv 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 other State.
(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.
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(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 courts.
(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 irre¬parable 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 consider¬able 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, par-ticularly, the continuity of this practice. It is indisputable that
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 develop¬ment of international law.
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 wdiether, 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 govern¬ments 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 func¬tioning 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 unneces¬sary 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 immediat¬ely 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 coutunie Internationale, in “La technique et les principes du droit public, Etudes en l’hon- neur 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
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 institu¬tion 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 con¬sistency 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, Pro¬fessor 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 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 Cours, Vol. 30, P- 295)-
On the one hand, on October 12th, 1948, the respondent Gov¬ernment recognized in an official note the respect of interna¬tional 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 Execu-tive—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 declara¬tion 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 (Memorial).
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 geometrico 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 extradition.
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 con¬demnation, 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 exter¬ritoriality, but simply by immunities granted to a foreign diplomat.
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 letter.
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 aptly explained by Professor Donnedieu de Vabres (Traite de droit penal et de legislation penale comparee, 3rd ed., 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 explan¬atory 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 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 suscept-ibilities 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 North¬ern 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 govern¬ment and the courts of the country of the accused or of the individ¬ual persecuted. The first grants of asylum were not motivated by humanitarian reasons alone. They therefore imply certain mani¬festations of opinion regarding the domestic affairs of the country (0 direito international e a democracia, Rio de Janeiro, 1945, p. 140).
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 anachron¬ism when asylum begins to be treated not as a mere option but as 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 Con¬vention of a rule to replace the faculty for the diplomat to grant asylum by an obligation which he assumed vis-a-vis any individual who might need such protection (Franchini Netto, 0 asilo diplo- matico e 0 costume international, Sao Paulo, 1939, p. 100). Con¬sequently, 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 Moncada, has emphasized the future of this institution in international law in respect of the determination of the minor rights of the human person (0 asilo interna em Direito international 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 unob¬served outside the continent.
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 11).
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 20).
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 immed¬iate 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, the maintenance of public order, or respect for international under¬takings.
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 recog¬nition, 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 192S 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 terri¬torial 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 violation.
In the circumstances it is not apparent how this text is con¬clusive, 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.
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 deDerecho international, 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 charac¬ter 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.
Whether asylum is considered as a simple option, as a human¬itarian 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 assur¬ance 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 instan¬taneous 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 consent.
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 diplomatic mission.
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 perpetuam 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 extra¬dition 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 arc made to ensure that the situation of the
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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 violation….”.
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 maintenance.
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 (“odroyer”, “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 qualifica¬tion. But a host of other reasons would explain the omission—very frequent in Latin America—to ratify a convention which also con¬tained 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 consti¬tutes 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, op. 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 Nica¬ragua, 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 sovereignt}’, by virtue of the reciprocity and of the purposes in view, namely, the protection of human rights against the contingencies of political life.
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,
e,- 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 political reasons.
It is true that current practice has developed in the direction of the initiative being taken by the State of refuge, but a fund¬amental psychological element should here be taken into con¬sideration. 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 reluctantly fulfilled.
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 arise.
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 extra¬dition.
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 uncon-
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 serious.
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 to criticism.
Reservations made by the territorial State are even more under-standable 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 post-ponement of the delivery of a safe-condtict 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 obliga¬tion 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 previousty 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, 194Q.
Was this due to error or oversight ? No, for in reply to the communication of January 4th, 1949, the first letter of the Respon¬dent 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 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 criminal¬ity, 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 dispute.
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 declara¬tions (see Memorial, Counter-Memorial, Rejoinder and oral state¬ments) 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.
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 Counter-Memorial).
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 quali¬fication 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 transitory danger.
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 counter¬claim, became the Respondent, when, in the absence of any objec¬tion 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 Court.
It was considered preferable to confine the discussion to a tacit agreement of the Parties since, in the oral submissions, the Applic¬ant 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 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 require¬ments 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. O. Hud¬son, 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 unex-pectedly 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 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 indica¬tion 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 Constitu¬tion remained in force before October 27th with only the restric¬tions 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 laws.
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.
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 police guard.
26. But indisputable proof that the decision of the Ambassador was not abnormal, unlawful or hasty, is to be found in the profound changc 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 Govern¬ment 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 Con¬stitution 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 eases of political crimes, is clear proof of the force of a practically unlimited power.
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 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 unlim ted 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 con¬stitutional government can, in a simple state of siege, exercise such essentially legislative functions by virtue of particular pro¬visions 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 pro¬ceedings 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 ;
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 Rejoinder).
27.    In fact, there is only one way of appraising any question of responsibility whatsoever, and that is to return to the condi¬tions 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 bv 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 counter-claim.
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 conformity.
If this harsh alternative is abandoned, then the only coursc 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 acquitted.
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 :
(1) 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) ;
(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 prelim¬inary 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 Rejoinder).
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 assas¬sination 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” (see Rejoinder).
29. My conclusion that both the main claim and the counter¬claim 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 relating to the protection of the fundamental interests of the country and the dignitv 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 admiss’on of the counter-claim, I wonder whether the Respondent, who up to now has not demanded the surrender of the refugee, will not be nduced 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 24S of the Military Code of Justice which provides that, when the real authors of related crimes are not known, it is per¬missible to punish the principal leaders of the rebellion. Such results appear to me to be contrar’ to the idea of asylum to political offenders, which prevails in Latin America.
(Signed) PH. AZEVEDO.
DISSENTING OPINION BY M. CAICEDO CASTILLA [.Translation)
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 valu¬able 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 same State.
The second aim of asylum is in keeping with the ideal which has always inspired Latin America, that of ensuring respect for fundamental human rights.
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 inter¬pretation 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 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 interpre¬tation, 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 consider¬ing 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 estab¬lished that M. Haya de la Torre was a common criminal.
It is thus evident that the attitude of Colombia was unimpeach¬able, 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 Agree¬ment of 1911, both in force and binding upon Colombia and Peru;
(2)    the very nature of the American institution of asylum ;
(3)    the obligations deriving from the international custom existing in the American continent.
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 stand out:
(1) 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 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 govern¬ment 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 conven¬tions 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 unilateral qualification.
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 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 Govern¬ment 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 contradictor}’ 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 inform¬ation supplied to the Government. By requesting it, the Govern¬ment 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
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 cf 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.
xo. 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 indis¬pensable 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 respcct 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 generate 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 1.” (Revue generale de Droit international public, 1912, pp. 623-634.)
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.
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 understand¬able as it is easier. In both cases, however, the right of decision lies entirely with the government granting asylum1.”
Professor Scelle’s opinion is categorical. As regards the examin¬ation 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 granting asylum”.
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 qualifi¬cation. 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’2” (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.)
12.    As regards practice, I would point out that it has been favourable to unilateral qualification and that the Havana Con¬vention 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 Organ¬ization 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 crimin¬ality” states that “in practice and, as is only reasonable, the solution was left to the discretion of the diplomatic agent granting 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 illus¬tration 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 American law.
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, practic¬ally amounts to this : that qualification would be the attribute of the territorial State. For with this joint qualification, the terri¬torial 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 situa¬tion 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 coun¬tries.
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 the territorial State and by the State of refuge ? On the contrary, instead of express rules, there is a reference to the usages, conven¬tions 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 Govern¬ment, 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 freely.
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 follow¬ing 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 agree¬ments on the matter. This thesis is accepted and recognized by all American States.” (Memorial of the Government of Colombia, p. 28.)
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 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 circum¬stances, 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 extra¬dition 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 extra¬dition 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 insti¬tution should be governed by legal principles. Thus the Agreement regulates two institutions—extradition in all clauses of the Agree¬ment except one, and asylum in one clause, Article 18. It may be argued that it is inconvenient and unusual to regulate two dif¬ferent 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 crit¬icized, but it must in any case be respected; it was after all adopted by the said plenipotentiaries. Furthermore, it had already been adopted in the Treaty of Montevideo of 1889, which included
1. . j 1 ‘ t • J i •    •    i 1    1    1    1    TM    r 1    1″
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 Inter¬national Court of Justice says that the latter will apply the general principles of law ; it cannot be argued that, because these prin¬ciples 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 principles 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 determina¬tion of those principles which are generally adopted in America in matters of asj-lum. 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 qualifica¬tion appertains to the State granting asylum, since the principle is specially mentioned in the Montevideo Convention of 1933 ; accord¬ing 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 States.
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 Boliva¬rian Agreement has a spccial 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 are necessary for the existence of a custom—the psychological element, the opinio juris sive necessitatis. The Bolivarian Agreement recognizes asylum, recognizes the value of the principle’s applied in America ; hence it includes these principles as binding. Consequently, their accept¬ance 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 law.
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 America.
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 matter.
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 conse¬quences, is juridically obligatory. It must furthermore be noted 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 safc-conduct had already been granted when the complaint was lodged. Thus we have the example of three American States, Chile, Guatemala and Venezuela, recog¬nizing the practice of asylum as obligatory, together with its conse¬quences, 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 document :
“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.”
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 iS 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 1.”
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 sa}- 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 of asylum.
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 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 Honour¬able 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 communi¬cation 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 com¬munique 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 safe-conducts.
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.
Any other practice would create a new element of insecurity in international relations.
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 prosec¬uting 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 safe-conduct.
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 con¬tinuous practice of the American nations, including Peru.
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 essen¬tially political nature of the offence attributed to the refugee, the grant of the safe-conduct constituting an obligation for the terri¬torial 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” 1.
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 govern¬ment, 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 form.
Subsequently, on November 17th, a new decree-law was enacted concerning the composition of the Supreme Court of Justice, which stated as follows :
“1. 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 Ailed by direct appointment of the Military Junta of the Government’-.”
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’etai.: and that Government had conferred upon itself the right to promulgate laws regardless of the Constitu¬tion, 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 194S had promulgated decrees of a retroactive character, such as that of October 4th 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 diplomatic asylum.
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 tranquillity1”.
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 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 accred¬ited 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 con¬fusion 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 place.
Furthermore, in judging the conduct of the Ambassador, we must consider :
1.    That the two official communiques of the Peruvian Govern-ment—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
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 observa-tions 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 conform¬ity with the stipulations of the Havana Convention.
22.    Finally, we have further recognition by Peru of the abnormal nature of conditions existing in January 1949, namely, the modifica¬tion 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 abnormal.
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 provid¬ing 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 non-intervention, 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 independ¬ence 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
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 Govern¬ment, 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 :
1.    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 situation.
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 con¬fronted 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.
Evidence of the change which was introduced by the counter¬claim 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 diplo¬matic 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 respectable considerations.
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 spokes¬man 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 disregarded.
I am referring to the essential principles which have inspired not only the Charter of the United Nations, but also the declara¬tions which have been adopted by the IXth Pan-American Confer¬ence, and by the General Assembly of the United Nations.
(Signed) JOSE JOAQUIN CAICEDO CASTILLA.
* *
1    See the communique of the Peruvian Government of October 12th, 1948, published in the official gazette El Peruano of October 13th (see Memorial of Colombia).