ABSTRACT
Very few topics are as intrinsically linked to Latin America as diplomatic asylum.1 Latin America’s history of civil wars and insurrections in the nineteenth and twentieth centuries demonstrated the need to expeditiously protect the life and physical integrity of those persecuted for political reasons. In such circumstances, the jurisdictional immunity enjoyed under diplomatic premise can constitute a useful tool. The practice of some Latin American states allowing persons persecuted for political reasons to enter the premises of their embassies or the private residence of their chiefs of diplomatic mission abroad in order to be protected by the jurisdictional immunity of the diplomatic premise (hereinafter the ‘asylum state’) raises a series of problems in international law (i.e. who may benefit from it? and under what conditions? what state or states determine whether the requester can effectively benefit from it and whether the conditions are actually met? when does it actually start and until when does it last? how does it come to an end?). A number of treaties were concluded at different times by Latin American states2 to provide an uncontroverted legal basis for this practice while attempting to solve those problems. Among those treaties is the 1928 Havana Convention on Political Asylum (hereinafter the ‘Convention’). Mr Victor Raul Haya de la Torre was a Peruvian politician and head of the
American People’s Revolutionary Alliance. On 3 October 1948, a military rebellion broke out in Peru and was suppressed the very same day. Criminal proceedings were instituted against Mr Haya de la Torre for instigating and directing the rebellion. On the night between 3 and 4 January 1949, Mr Haya de la Torre felt he
was persecuted for political reasons and fearing for his life and physical integrity, requested and was permitted by the Colombian ambassador to Peru to enter the premises of the Colombian Embassy. Colombia later requested a safe-conduct to Peru to allow Mr Haya de la Torre (hereinafter the ‘refugee’) to leave the country. Peru denied this on the ground that the refugee was not politically persecuted but was accused of common crimes and was therefore not entitled to benefit from diplomatic asylum or, as it is also known, ‘political asylum’. The dispute was ultimately submitted to the International Court of Justice
(hereinafter ‘the Court’) that rendered its judgment on 20 November 1950 (hereinafter the ‘Asylum Judgment’). The Court ruled that Colombia was not entitled to unilaterally qualify the nature of the offence attributed to the refugee and that Peru was not bound to deliver safe-conduct. The Court also found that the asylum was not granted in conformity with the Convention because the granting of asylum cannot be an obstacle to proceedings instituted by legal authorities operating in accordance with the law. On the same day of the Asylum Judgment, Colombia requested the Court
for an interpretation of the judgment (hereinafter the ‘request for interpretation’). One week later, on 27 November 1950, the Court rendered its judgment declaring the request for interpretation inadmissible. Following the Asylum Judgment and the decision on the request for inter-
pretation, Peru requested Colombia to surrender the refugee. However, in Colombia’s view, to surrender the refugee would have been contrary to the Asylum Judgment and the Convention. The parties were unable to reach an agreement on the manner in which effect was to be given to the Asylum Judgment. On 13 December 1950, less than a month after the Asylum Judgement and some fifteen days after the Court’s decision on the request for interpretation, Colombia instituted new proceedings against Peru. This new case is known as the Haya de la Torre case.
