haya de la torre judgment

9. 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. 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. As the asylum is still being maintained, the Government of Peru is legally entitled to claim that it should cease. 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. 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. 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. —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. The first condition is that asylum has been regularly granted and maintained. 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. The de jure Government of Peru seemed specially desirous of depriving Apra of its financial and publicity resources. 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. In accordance with the legal principles and the jurisprudence in force in America, the Colombian Ambassador could not act otherwise. The diplomatic correspondence between the two Governments does not indicate the nature of the danger which was alleged to threaten the refugee. On the contrary, those occasional denials constitute violations of an already established rule, for a State cannot oppose a custom On October 27th, a Military Junta made a coup d’etat and seized the supreme power. —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. 23). My reasons for adopting this view may be stated shortly : But, if the fundamental points were finally settled as suggested in my opinion, i.e. 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 tribunals. The first of these confirms the asylum and claims to justify its grant by a unilateral qualifica¬tion of the refugee. II. 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 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. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. —1949,    March 28th. II Such an obligation to render positive assistance to these authorities in their prosecution of a political refugee would far exceed the above-mentioned findings of the Court and could not be recognized without an express provision to that effect in the Convention. M. Julio Lopez Olivan, Ambassador, 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. 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. r A It was not contended that the grant of asylum was invalid, on the ground that it had not been an “urgent case”. 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. Three months had elapsed between the military rebellion and the grant of asylum. “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…. 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. 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. (3)    on September 13th, 1949, the prosecutor brings a charge against the refugee for the crime of usurpation of authority (see Counter-Memorial) ; 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. The portion of the Judgment of November 20th, 1950, to which they refer is the passage where, in pronouncing on the ques¬tion of the regularity of the asylum, it declares that the grant of asylum was not made in conformity with Article 2, paragraph 2 (“First”), of the Havana Convention on Asylum of 1928. Practice has furnished indisputable confirmation of the conclu¬sions deduced from the texts. 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. * 207 0 obj by fifteen votes to one, On that point, the Court observes that the Memorandum attached to the Declaration of Intervention of the Government of Cuba is devoted almost entirely to a discussion of the questions which the Judgment of November 20th, 1950, had already decided with the authority of res judicata, and that, to that extent, it does not satisfy the conditions of a genuine intervention. 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. 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. 12, p. 53). The counter-claim of Peru. “to state in what manner the Judgment of November 20th, 1950, shall be executed by Colombia and Peru….”. 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. DISSENTING OPINION BY JUDGE READ The sojourn of the refugee on national territory cannot be prolonged against the will of the territorial State ; There was also long debate as to who is competent to appreciate the nature of the offence committed by the refugee. 19. This is open to doubt. 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.

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