The case of Colombia v. Peru or commonly known as the Asylum case is a landmark in Public International law for several reasons, inter alia, its expansion of laws on extradition and political asylum, development of customary international law and concept of sovereignty in International law.
The case, having been decided as early as the 1950s, [Judgment on 20 November 1950] has played a significant role in moulding the international law and giving it the shape as it stands today.
I. Factual Background of the Asylum Case
Peru is a country in the Continent of Latin America or South America and has its capital at Lima. In 1948, the country went through rough times where a very long tussle broke out in Lima for the acquisition of political powers and government.
After a long struggle and siege, the Military Junta Government came to power defeating the American Citizens’ Revolutionary Alliance which automatically became the opposition party.
As a result of this loss of power and government, the leader of the opposition, Victor Raul, commenced a rebellion against the Junta government in Peru intending to dethrone him. However, due to extreme political powers vested in the government, the rebellion was surmounted within 24 hours. The leading party also instituted criminal proceedings against Raul for instigating the rebellion and sedition. As a result, Raul had to run for his life, and he sought asylum in the capital of Peru, Lima, under a Colombian Embassy.
Three months after his escape, on January 04, 1949, the Peruvian government was informed about his asylum, and they immediately claimed his custody. On the other hand, the Colombian embassy claimed that Victor has a right to passage and requested safe passage for him to leave the country. Moreover, the Colombian government unilaterally qualified the offence committed by Victor to be a political offense and allowed political refuge without consideration from the Peruvian government. The already enraged government of Peru categorically denied the safe passage arguing that there exists no right of political or diplomatic asylum for Raul since he is responsible for the rebellion or in legalese, common crimes.
Due to non-agreement between both the States, Peru and Colombia, the situation reached a diplomatic stalemate and no provision was left for either party rather than to move an independent authority. Hence, an agreement was signed between the two States and it was decided that the ICJ will adjudge the matter, and the award will be agreed to by both the parties.
II. Issues before the ICJ
- Whether the State of Colombia had right to unilaterally qualify the offense of Victor Raul as a political offense under any international treaty, customary international law or any general principles of international law?
- Whether the Peruvian government was bound to grant safe passage to Raul to leave the country under international law?
- Whether the Colombian government and ambassador was liable for violating the provisions of the Havana Convention on Asylum, 1928 by providing and continuing to provide asylum to the offender?
III. Relevant Legal Provisions
- Article 18 of the Bolivarian Agreement on Extradition, 1911
- Articles 1 and 2 of the Havana Convention on Asylum, 1928
- Montevideo Convention on Political Asylum, 1933
- Customary International Law
IV. Arguments on Behalf of the Colombian Government
The Colombian government put forth a threefold argument before the court to substantiate its actions. Now, before proceeding with the arguments, it is vital to note that in the present case, Colombia has filed a claim before the court to hold its asylum valid and allow safe-passage to Victor Raul to leave the State. On the contrary, Peru has filed a counter-claim to hold the asylum invalid, extradite the offender to the Peruvian government and deny safe passage to the offender. Hence, both the parties tried to justify their actions through profound arguments.
The threefold arguments of the Columbian government can be explained as follows:
- Under Article 18 of the Bolivarian Agreement, 1911 every country is entitled to grant political asylum to any political refugee in accordance with the international law. This has been further reiterated under the Montevideo Convention, 1933 as well. Both the agreements were ratified and signed by Peru and Colombia. These provisions were relied upon by Colombia and argued that according to these treaty obligations, Colombia had every right to grant asylum to the political offender and hence, no law has been violated.
- Further, Colombia argued the existence of an ancient and long practised custom in South American countries that vests right upon these countries to grant asylum to anyone seeking it. Further, Colombia also claimed that the custom does not prevent any unilateral qualification of an offender as a political offender for the purpose of granting asylum. Hence, Colombia prayed that since the State has the right to qualify anyone as a political offender unilaterally, it is the duty of other States to respect such qualification and allow safe passage to such refugees or asylum-seekers.
- Lastly, Colombia argued that according to Article 2 (2) of the Havana Convention, Peru was obliged to provide a free and safe passage to the asylum seeker to leave the country without any harm. Moreover, it was implored that the provision of this convention align with the American custom demands respect for such rights and hence, Peru is liable to provide passage to Raul.
V. Arguments on Behalf of the Peruvian Government
As mentioned before, the Peruvian government filed a counterclaim to claim the extradition of Kaul and hold Colombia liable for hiding an offender. The arguments of the Peruvian government were twofold;
- Firstly, the Bolivarian agreement is a treaty on extradition and does not deal with asylum. Further, according to the Havana Convention on Asylum, political asylum can be provided only in favour of a political offender. A political offender means any person who has committed an act towards the detriment of the State and caused or attempted to cause harm to its sovereignty and integrity. Political offenders are allowed asylums because several times, these political offenders are rebels fighting against their cruel government or a dictator’s rule and under their radar to be found and exterminated. In the present case, Peru argued that Victor was not a political offender and the unilateral qualification of Victor as a political offender by the Colombian government is invalid.
- Secondly, it was also argued by the Peruvian government that according to Article 2 of the Havana Convention, asylum should be granted in cases of dire need or utmost emergency. For instance, when there is an immediate threat of extermination or persecution of the asylum seeker. In the present case, the Peruvian government has not shown any such intention of persecuting Raul. On the contrary, a legal trial has been initiated against him in the Peruvian court. Hence, the asylum is invalid and against international law.
VI. Judgment of the ICJ | Asylum Case (Colombia v. Peru),  ICJ 6
With respect to the unilateral qualification of Raul’s offense as a political offense, the ICJ observed that in a normal scenario, the procedure is that the asylum granting State has right to provisionally qualify an offense as a political offense and the territorial State is entitled to consent to such qualification. In the present case, consent was denied by the Peruvian government, but the Colombian embassy made the qualification absolute even without consent.
Moreover, the court also observed that the Havana Convention does not provide any right or entitlement to any State for the unilateral qualification of an offense as a political offense. Hence, it would be wrong to assert that Colombia had any right to make such a qualification.
The Colombian government relied highly on the Montevideo Convention of 1933 which allows such power to the State, to which the court observed that Peru has neither signed nor ratified the Montevideo Convention. Moreover, the convention has not been ratified by a large number of States, and its provisions are very rarely used. Hence, it is neither binding as a treaty nor as a general principle of International law.
Adding to the issue of unilateral qualification, the court also held that the Colombian government’s argument related to customary practice in the Latin American States to grant asylum is also futile. It is because an essential ingredient of a valid custom is “consistent and uniform usage”. In the case of South American States, the practice has always arisen, taking into consideration some unforeseen exigencies and urgent need. There is no uniform practice as such and hence, no customary International law as well.
Conclusion & Analysis
This case evolved the concept of customary international law and added two essential ingredients to it, i.e. consistent and uniform usage. Now, when you distinguish practice from a custom, the essential requirement is to prove that the practice has been going on for centuries in the same fashion and is still in vogue guiding the way of the State. Hence, the court rightly concluded that Peru has the right over the custody of Victor Raul.
- Judgment of ICJ in Colombia v. Peru,  ICJ 6, Available Here
- Malcolm N. Shaw, International Law, 6th 2008.