By Jibin Mathew George, Amity Law School, Delhi.
Editor’s Note: Case comment on Columbia vs. Peru and its relation with Extradition, Asylum, Refugee law, etc.
The concept of the right of asylum, in its loosest sense, can be traced a long way back in time. History is replete with instances of asylum being sought and granted by emperors, monarchs, and lords. And although, there is a marked differentiation between the concepts of asylum then and now, the very idea of what constitutes an asylum, remains the same.
In simple terms, an asylum is a temporary refuge. It is an ad hoc shelter sought by a person fearing persecution in the State where he originally belongs to. In other words, where a person fearing any injury to oneself in his habitual country seeks to avail the protection and security of another, he is said to have requested asylum.
As pointed out by Starke, Asylum involves two key elements, (1) A shelter which is more than a temporary refuge and; (2) A degree of active protection on the part of the authorities which have control over the territory of the asylum.
Here, the people usually seeking asylum are victims of threats, harassment, physical harm and denigration of their basic human dignity. Although there is no strict bracket which a State can use to classify who could be qualified as a refugee and granted asylum, most seekers are victims of discrimination based on,
- Political Opinion
- Personal lifestyle or Sexual Orientation
Based on the nature of their persecution, refugees may be political, economic or even humanitarian. However, the few laws that govern the right of asylum in International law are themselves to grey and oblique. This is especially apparent when taken in regard to those who are granted political asylum, which is sought by those who face persecution or injury for their different political opinions and ideologies.
However, before moving forward it is important to distinguish asylum from two concepts which occupy the same legal span as the concept of asylum ie. Exile and Extradition.
Asylum refers to political protection. It is given to those who are persecuted for something in one country, and wish, no, are in need of sanctuary in a country that will not imprison, torture or otherwise perpetrate human rights violations against the individual who is at risk.
Granting asylum is a measure that transcends and supersedes all international laws of immigration that might otherwise be in place. On the other hand, exile may be voluntary or involuntary and involve no particular sanction of protection over the person exiled. A very good example with regard to involuntary exile is Napoleon, who was made to go on an exile to the Island of Elba in the Mediterranean. [i]
Extradition is the formal surrender of a person by one State (the “requested State”) to the authorities of another (the “requesting State”) for the purpose of criminal prosecution or the enforcement of a sentence. It is a form of legal assistance between States, granted on the basis of a bilateral or multilateral treaty, or by ad hoc agreement. Asylum means offering sanctuary to those at risk and in danger, in compliance with States’ obligations under international refugee law, human rights law, and customary international law.
Extradition and asylum are not mutually exclusive. The institution of asylum is not intended to shield fugitives from legitimate criminal prosecution. However, where the extradition of a refugee or an asylum-seeker is sought, or where an asylum application is filed after the individual concerned learns that a request for his or her extradition has been made, the special protection needs of the wanted person must be taken into consideration.
From the point of view of international refugee protection, the principal concern in such situations is to ensure that that fleeing persecution rather than prosecution are adequately protected against refoulement – that is, removal to a country where their life, freedom or physical integrity would be at risk.[ii]
The question of political or diplomatic asylum will itself arise in the course of the following case, the landmark “Colombia v. Peru“[iii] case, also known as the Asylums case. And although the international law itself was in its infancy during the course of this case, it would have a deep impact on the framework of the international laws to come.
COLOMBIA V. PERU ASYLUMS CASE
On October 3rd, 1948 a military rebellion broke out in the South American state of Peru. However, the rebellion was quelled within a day and the accused were arrested and charged. A day after the rebellion was quashed; proceedings were instituted against Victor Raul Haye De La Torre, a leader of an opposition party known as the American Citizens’ Revolutionary Alliance on the charges of instigating and directing the rebellion. Absconding arrest, Haye De La Torre dodged Peruvian authorities who were keen to bring him on trial. This was actively pursued by the Military junta government that had come up after the siege on Lima, the capital of Peru.
However, on January 4th, 1949 it was brought to the attention of the Peruvian authorities that Victor Raul Haye De La Torre had been granted asylum by the Colombian Mission in Lima and the Colombian ambassador accordingly, requested that De La Torre be granted a right of passage or a safe-conduct so that he may leave the country. Peru solemnly refused, stating that De La Torre was accused of common crimes, not entitling him to the protection of political asylum. In other words, Peru refuted Columbia’s claim that De La Torre was a political refugee.
Soon, a diplomatic and political stalemate ensued between the two South American nation-states and after talks broke down in July, they finally agreed to let the International Court of Justice be the judge. A diplomatic correspondence ensued which terminated in the signature, in Lima, on August 31st. 1949, of an Act by which the two Governments agreed to submit the case to the International Court of Justice
- Issues and Contentions:
The issues and arguments raised by the state of Columbia are wholly based on three important conventions and treaties of International law. Colombia maintained before the Court that, according to the Convention in force-the Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum and according to American International Law, she was entitled to qualify the nature of the offense for the purposes of the asylum.
With regard to the first agreement ie. The Bolivarian Agreement of 1911 on Extradition, a general principle had been laid down or rather inferred from the agreement in later cases (inferred, because the agreement in question was an agreement concerning the concept of extradition and not asylum per say), which stated that “institution of asylum shall be in accordance with the principles of International Law.”
In other words, Columbia claimed that with regard to this general principle derived from an agreement both Peru and Columbia had ratified, she was well within its rights to grant asylum to De La Torre and did not, in any manner whatsoever, contravene any principle of International Law.
The same argument was reiterated and recycled by Columbia’s claim of having granted asylum in accordance to principles of International law as stated in the Havana Convention of 1928 on Asylum and the Montevideo Convention of 1933.
Secondly, Columbia claimed that the basis for such a grant of asylum was seeded in American International Law (here, predominantly with regard to the Americas south of the Equator). She claimed that there exists in Pan-American Law the long followed practice or custom of the right of a state to grant asylum, uninhibited of any qualifications and unilateral if need be.
She further claimed that therein arises the obligation of other states to respect such qualification of asylum as the very basis of granting asylum in rooted in the traditional practice of American law.
Thirdly, Colombia claimed that Peru was under an obligation to allow the right of safe passage to a refugee who has been granted asylum by another. This, she stated was based on the collective ratification or rather adherence of Pan American law and the Havana Convention of 1928 which encapsulated general respect for the decision of a State to grant asylum without any qualifications.
In a counter-claim against the Colombian claim, the Republic of Peru put forward the following issues and contentions:
In its counter-claim, Peru claimed that the asylum granted to Victor Raul De La Torre, the chief of the American Citizens’ Revolutionary Alliance by Colombia, was irregular and in violation and direct contravention of the Havana Convention on Asylum of 1928. Firstly because, under the Havana Convention, political asylum could be granted to political offenders.
However, Peru claimed that Haye De La Torre was not charged with a political offense but with ordinary, common crime. Secondly, Peru stated that the Havana Convention on Asylum specifically states that a demanding urgency was required in every request of asylum, which was conspicuously missing in the present case. In other words, Peru claimed that under the Convention, there must be an immediate danger and urgency of persecution against the person seeking such an asylum.
The International Court of Justice in its contemplation of the first submission of the Republic of Colombia rejected its submission by fourteen votes to two (Judge Azevedo and M. Caicedo). Herein, the Republic of Colombia had duly submitted that owing to the general principle inferred from the Bolivarian agreement, Havana Convention of 1928 and Montevideo Convention of 1933 i.e. “institution of asylum in accordance with principles of International law,” it was within its powers to grant unqualified asylum to the Peruvian dissident, Victor Raul Haye De La Torre.
However, the Hon’ble court held that firstly, the Bolivarian Agreement invoked by Colombia is primarily on the treaty on extradition and is confined to the concept of asylum in one single article, in accordance with the principles of international law. But these principles do not entail the right of unilateral qualification. On the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not possible to deduce from them conclusions concerning diplomatic asylum.
In the case of extradition, the refugee was on the territory of the State of refuge: if asylum were granted to him, such decision would not derogate from the sovereignty of the States in which the offense was committed. A decision with regard to extradition implies only the normal existence and exercise of territorial sovereignty. On the contrary, in the case of diplomatic asylum, the refugee was on the territory of the State in which he had committed the offense: the decision to grant asylum derogated from the sovereignty of the territorial State and removed the offender from the jurisdiction of that State.
In other words, a diplomatic asylum withdraws offenders from the territorial jurisdiction of the state and involves a direct contravention or intervention in the exercise of the State’s sovereign power, it is exclusively competent to exercise. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established without a doubt in any particular case.
As for the second treaty invoked by Colombia that is, the Havana Convention on Asylum of 1928, the Hon’ble bench of the International Court of Justice held the same that neither treaty entails or gives any nation-state the authority or power to unilaterally recognize and grant asylum to any individual, whether implicitly or explicitly. As regarding the Montevideo Convention of 1933, the Court held that the Convention cannot be used to further the argument as Peru had not ratified the agreement and any decision based on such an agreement cannot be made binding on a country which has not ratified the agreement.
Finally, as regarded American international law, Colombia had submitted that there existed a general practice or custom in Pan-America of the right of a state to grant asylum, uninhibited of any qualifications and unilateral if need be. She further claimed that therein arises the obligation of other states to respect such qualification of asylum as the very basis of granting asylum in rooted in the traditional practice of American law. This argument, they based on the fact that International and local customs constitute as a local custom as put forth in the Statute of International Court of Justice.[iv]
However, it could not prove the existence, either regionally or locally, of constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law. Colombia’s evidence of the existence of such a custom was riddled with inconsistencies and lack of uniformity which reduced the credibility of such a custom as a source of International law.
It, therefore, followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offense by a unilateral and definitive decision binding on Peru. The submission was therefore rejected by fifteen votes to one (Judge Caicedo).
Colombia also maintained that Peru was under the obligation to issue a safe-conduct to enable the refugee to leave the country in safety. The Court, setting aside for the time being the question of whether asylum was regularly granted and maintained, noted that the clause in the Havana Convention which provided guarantees for the refugee was applicable solely to a case where the territorial State demanded the departure of the refugee from its territory. It was only after such a demand that the diplomatic agent who granted asylum could, in turn, require a safe-conduct.
There was, of course, practice according to which the diplomatic Agent immediately requested a safe-conduct, which was granted to him: but this practice, which was to be explained by reasons of expediency, laid no obligation upon the territorial State. In the present case, Peru had not demanded the departure of the refugee and was therefore not bound to deliver a safe-conduct.
In its counter-claim, Peru had firstly Peru had asked the Court to declare that asylum had been granted to Haya de la Tom in violation of the Havana Convention, first, because Haya de la Torre was accused, not of a political offense but of a common crime and, secondly, because the urgency which was required under the Havana Convention in order to justify asylum was absent in that case. Having observed that Peru had no time asked for the surrender of the refugee, the Court examined the first point.
In this connection, the Court noted Article 1 of the Havana Convention on Asylum of 1928 which the State of Colombia had advanced stated out rightly that asylum cannot be granted to those accused of ordinary, common crimes. However, the only charge against the refugee was that of military rebellion, which not a common crime was as it had gravely political elements, which makes Haye De La Torre a political offender and not a common criminal. Consequently, the Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded by a vote of fifteen votes to one.
The International Court of Justice in its contemplation of Peru’s second submission in its counter-claim observed that the essential justification of asylum lay in the imminence or persistence of a danger to the person of the refugee, analyzed the facts of the case. Three months had elapsed between the military rebellion and the grant of asylum. -There: was no question of protecting Haya de la Torre for humanitarian considerations against the violent and uncontrolled action of irresponsible elements of the population; the danger which confronted Haya de la Torre was that of having to face legal proceedings.
The Havana Convention was not intended to protect a citizen who had plotted against the institutions of his country from regular legal proceedings. It was not sufficient to be accused of a political offense in order to be entitled to receive asylum; asylum could only intervene against the action of justice in cases where arbitrary action was substituted for the rule of International law. It had not been proved that the situation in Peru at the time implied the subordination of justice to the executive or the abolition of judicial guarantees.
Besides, the Havana Convention was unable to establish a legal system which would guarantee to persons accused of political offenses the privilege of evading their national jurisdiction. Such a conception would come into conflict with one of the oldest traditions of Latin America, that of non-intervention.
For if the Havana Convention had wished to ensure general protection to all persons prosecuted for political crimes in the course of revolutionary events, for the sole reason that it should be presumed that such events interfere with the administration of justice, this would lead to foreign interference of a particularly offensive nature in the domestic affairs of States.
Simply stated, the second submission of Peru was accepted by a vote of ten votes to six as the three month period between the indictment and grant of asylum predicates any notion of immediate danger to the refugee, Victor Raul Haye De La Torre.
The International Court of Justice in conclusion and summarily held that “to infer…. an obligation to surrender a person to whom asylum has been irregularly granted would be to disregard both the rule of the extra-legal factors involved in the development of asylum in Latin America and the spirit of the Havana Convention.”
RIGHT OF ASYLUM: PRESENT
The most modern and definitive definition of asylum is given by Professor Oppenheim who states that “The so-called right of asylum is nothing but the competence of every State to allow a prosecuted alien to enter and to remain on its territory under its protection and thereby to grant asylum to him.
Such fugitive enjoys the hospitality of the State which grants him asylum, but it might be necessary to place him under surveillance or even to intern him at some place in the interest of the State which is seeking to prosecute him. For it is the duty of every State to prevent individuals living in its territory from endangering the safety of another State by organizing hostile or by preparing common crime against the head, members of its government or its property.”
According to Starke, with regard to the grant of asylum in foreign legation or diplomatic embassies, it may be granted in the following exceptional cases, (1) Individuals who are in physical danger from mob-violence or in case of a fugitive who is in danger because of political corruption in the local State (2) Well-established and binding local custom (3) May be granted if there is a special treaty between territorial state and state of legation concerned.
That said, the modern law of asylum revolves around two landmark conventions ie. United Declaration of Human Rights and the Convention Relating to the Status of Refugees 1951.
Article 14 of the Universal Declaration of Human Rights states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the defoulé refugee) is a person who is outside their own country’s territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds.
Protected grounds include race, caste, nationality, religion, political opinions and membership and/or participation in any particular social group or social activities. Rendering true victims of persecution to their persecutor is a particularly odious violation of a principle called non-refoulement, part of the customary and trucialLaw of Nations.
It must, however, be noted that both the UDHR and the Convention on the Status of Refugees, 1951 and the 1967 protocol recognize merely the right of asylum but, does not grant the right to receive asylum. In other words, the right of asylum is not necessarily supplemented by the duty or obligation of States.
Formatted on March 2nd, 2019.
[i]FERAL OINK, Asylum and Exile, Distinguished, http://english.stackexchange.com/questions/57028/what-is-the-difference-between-asylum-and-exile (last updated 05 February 2012)
[ii]THE INTERPLAY BETWEEN ASYLUM AND EXTRADITION, UN HIGH COMMISSIONER FOR REFUGEES REPORT 2003, PPLA/2003/05
[iii]I.C.J Reports (1950) p. 266
[iv]A. 38 § Statute of International Court of Justice