HAYA DE LA TORRE CASE JUDGMENT OF - PDF document

1 HAYA DE LA TORRE CASE (JUDGMENT OF 13
HAYA DE LA TORRE CASE (JUDGMENT OF 13 VI 51) 84 Done in French Peace Palace, this thirteenth day nine hundred. and fifty-one, in four copies, one of which will be placed in the archives of the Court and the others trans- to the and to BASDEVANT, President . (Signed) E. HAMBRO, Registrar. M. ALAYZA Y PAZ SOLDAN, Judge ad hoc, declares had stated under the second point of the operative clause that Colombia was under obligation, as means been in concur in But the sentence employed, misunderstood, prevents him Having thus in accordance with Havana Convention the legal relations between the Parties with regard the matters to it, is unable to give any practical advice as to various courses which might be teminating the asylum, since, by doing so, it would depart from its judicial function. But it can be assumed that the Parties, now that their mutual relations have will be able satisfactory solution those considerations of courtesy and good-neighbourliness which, relations between these reasons, on the prin

2 cipal Submission of the Government of Co
cipal Submission of the Government of Colombia and the first Submission of the Government of Peru, unanimously, finds that it cannot give effect to these Submissions and conse- second Submission is under no obligation to surrender Victor Ratil de la Torre Peruvian authorities ; on the third Submission of the Government of Peru, unanimously, finds that the asylum granted to Victor Ratil la Torre 3rd-4th, 1949, and maintained since time, ought 1950, should terminate. common crimes. Moreover, when Court considered these provisions, that the asylum had not been granted in conformity with the Convention. It follows from these considerations that, so far as the question of surrender is concemed, the refugee must be treated as a person a political offence. The Court has, consequently, arrived at the conclusion that the Government of Colombia is under no obligation Peruvian authorities. the event delivering judgment 1, to adjudge and declare that the asylum granted to Sefior Raul Haya 3rd, 1949, and maintained since

3 been judged Havana Convention of 1928,
been judged Havana Convention of 1928, it ought to have ceased immediately after the delivery of the Judgment of November zoth, 1950, and must in any order justice may course which reject this Submission. In its Judgment of November zoth, that the made in 2 ("First"), of the Convention. This decision entails a legal conse- Colombia which is bound to terminate it. As the asylum is still being maintained, the Govemment of Peru is legally that it But the cease "in order course which This addition involve, For the reasons given above, this part of the Submission of the Government of Peru cannot be accepted. The Court has thus but that is under authorities. There is no contradiction between these two findings, since surrender is only way CASE (JUDGMENT 13 VI 51) 81 political offenders. be interpreted to the 2 of the Convention. Such would be which political refugees should not be surrendered. There is nothing in exception should it express provision to that effect would been needed, and the Havana C

4 onvention contains no such provision
onvention contains no such provision. The silence of the Convention implies that it was intended to leave the adjustment of the consequences of this situation to decisions inspired by consi- political expediency. infer from this silence that there is an obligation to surrender a person would be these extra-legal factors in Havana Convention itself. In its Judgment of November 20th cannot be The safety asylum cannot be protection against regular application legally constituted tribunals. Protection thus is his them. The Court further said not admit Havana which would offences would be Say the State is obliged to surrender the refugee to the local authorities. Such render positive these authorities in their refugee would not be express provision effect in Thus, the Havana Convention does political offender, imposes person to whom asylum has been granted. In its Judgment of November 20th the Court, in examining whether the asylum was regularly granted, found that the Govern- was accused, before him, cons

5 tituted 14 HAYA DE LA TORRE CASE (JUDG
tituted 14 HAYA DE LA TORRE CASE (JUDGMENT OF 13 VI 51) 80 "to dismiss by which deliver Victor Raul la Torre to the author- ities". The Government of Peru states in this Submission that the Court is asked by the Submissions of Colombia "to state solely that Colom- not bound ....". By using legal position 20th case be thus to the statement set forth Submission, which will be examined later. As mentioned above, the question of the surrender of the refugee was not decided by the Judgment of November 20th. This question is new ; was raised Novem- ber 28th, 1950, and was submitted to the Court by the Application of Colombia of December 13th, 1950. There is consequently no res judicata to the Havana Convention, diplomatic asylum is a cannot be inde- be terminated as can, accord- ing to Article 2, paragraph 2, only be granted "for the period of time strictly indispensable for the person sought asylum ensure in some other way Court finds does to the manner in asylum shall persons accused or condemne

6 d common crimes who seek refuge, Article
d common crimes who seek refuge, Article surrendered upon "political offenders" prescribed, namely, the grant safe-conduct for the departure under the terms of the Judgment of November zoth, a safe-conduct can only be claimed under the Havana granted and cases in which main- no provision made as matter cases where the departure Thus, Convention prescribes duration asylum shall time "strictly silent asylum should terminated in zoth, the Havana perçons accused or condemned common crimes territorial authorities, does not contain any 13 HAYA DE LA TORRE CASE (JUDGMENT OF 13 VI 51) made in Havana Convention on Asylum Havana established between entails for them only the obligation of compliance therewith. The interrogative form in *hich they have formulated their Submissions shows that they desire Court should various be terminated. these extent, the Parties are alone a position not be practic- ability or of political expediency ; it is not part of the Court's judicial function to make such principal S

7 ubmission, adjudge and declare not bou
ubmission, adjudge and declare not bound, execu- tion of the said Judgrnent of November zoth, 1950, to deliver M. Victor Raul the Peruvian authorities". is strictly limited by the words "in execution of the said Judgment of Novem- ber 2oth, 1950". These words serve thus formulated, as in the first part of the same to the zoth, 1950. stated both 27th, 1950, Peru had This question not submitted by it. there- fore possible to deduce from the Judgment of November zoth as to the existence or non-existence these Court is a position merely on zoth, is or is not bound to the these give effect above- The alternative Colombia is the event delivering judgment foregoing Submission, may declare, in the exercise of its ordinary competence, that Colombia is not bound to deliver the politically accused M. Victor Rad to the Peruvian authorities." second Submission 12 take the necessary steps, Sir, terminat- this protection, granted, by refugee Victor Rad la Torre, disposal of the examining magistrate for jud

8 gment, with what 1 have recited above
gment, with what 1 have recited above." In a Note dated December 6th, 1950, Colombia refused ; in particular had granted sons accused or condemned for Should as requested Your Excel- violate Article 1, paragraph 2, of the Havana Convention which provides that : ' Persons or condemned for taking refuge in a legation shall be surrendered upon request of the locaI government.' " These circumstances giving rise to the present case which has been brought before the Court by the Government of Colombia by Application of December 13th, 1950. The Parties have Al1 been argued decision on the merits. This conduct of the Parties is sufficient jurisdiction on what manner 1950, and Pe first Submission "to what manner 1950, shall be executed by Colombia". These Submissions are both designed to obtain a decision to the The portion 1950, passage where, pronouncing on declares that the grant of was completely outside which was above- mentioned Judgment. these circumstances, the only point which it is necessary t

9 o ascertain is whether the object of t
o ascertain is whether the object of the intervention of the Govern- Cuba is Havana to the question whether is under Court observes is devoted almost entirely to a discussion of the questions which the Judgrnent of November zoth, 1950, had already decided with the authority of res judicata, and that, to that extent, it does a genuine 15th, 1951, the Agent of the Government of Cuba stated that the intervention was based on the fact that the Court was required to interpret a new aspect of the Havana Convention, an aspect which the Court had not been called on to consider in its Judgment of November zoth, 1950. operating within these Cuba conformed Statute, Court, having deliberated matter, decided on May 16th Rules of Court. In its Judgment of November zoth, 1950, relations between with regard diplomatic asylum in Ra61 in Lima 3rd-4th, 1949. On the day of the delivery of this Judgment the Government of Colombia submitted to the Court a Request for Interpretation, which by the Judgment of November 27th, 1950, u

10 ras for Foreign addressed a Chargé d'A
ras for Foreign addressed a Chargé d'Affaires in particular "The moment come to carry by the International Justice by terminating is improperly granting Raul Haya longer possible further to prolong is being to the Embassy cannot protect the thus barring the national courts. HAYA DE LA TORRE CASE (JUDGMENT OF 13 VI 51) his oral 16th, 1951, the Agent of the Govemment of Colombia re-stated the Submissions of the Memorial with the following addition relating to the Co'unter-Memonal what manner 1950, shall in accordance frrst point of Our claim, 'in 1950, shall and Peru' same Counter-Memorial : To reject it ; And, should said Counsel for decide favour upon Havana Convention so to the Statute of the Court confers on States parties to a convention, filed a Declaration of Intervention with the Registry on March 13th, 1951, a Memorandum its in regard Havana Convention of 1928 ratified by it and also its general attitude towards asylum. The Court considered that this Memo- observations provided Arti

11 cle 66 Rules Cuba was inadmissible, D
cle 66 Rules Cuba was inadmissible, Declara- and the Memorandum accompanying intervention in true the term, 1950. Court observes only acquires actually relates The subject-matter case differs case which 1950 concerns a HAYA DE LA TORRE CASE (JUDGMENT OF 13 VI 51) 75 On behalf of the Government of Cuba: "May it please the Court to declare that the request to intervene is admissible." 16th, 1951, Court decided, reasons which admit the public hearings held 17th, 1951, heard statements 5, of the Rules of Court, it heard a statement on the interpretation of the Havana presented on Colombia (Submissions what manner 1950, and Peru, and declare that Colombia is not bound, in execution of the said Judgment of November zoth, 1950, to deliver M. Victor Raul Peruvian authorities. delivering judgment fore- going Submission, may it please the Court to adjudge and declare, in the exercise of its ordinary competence, that Colombia is politically accused Rad1 Haya de Counter- Memorial) : "May it please the Court, 1. wh

12 at manner ; II. To dismiss is asked
at manner ; II. To dismiss is asked 1s not deliver Victor Raul Peruvian authorities delivering judgment on Sub- mission No. 1, to adjudge and declare that the asylum granted to SeÏior Victor Raul de la 3rd, 1949, and maintained since that date, having been judged to be contrary to Article 2, paragraph 2, of the Havana Convention of 1928, ought to have ceased immediately after the delivery of the Judgment of November zoth, 1950, and must in any case cease forthwith in order been suspended." which were than those this fact. Cuba on February 15th, 1951, Registrar, in reply, letter a Memorandum his Government concerning the construction of the Convention of Havana as this in regard letter, a Declaration under Article 66, paragraph 1, of the Rules Parties in and to the United Nations letter was at the same documents annexed been placed disposal On March 28th, 1951, the Agent of the Government of Colombia stated that he did not raise any objection to the intervention of Cuba. On April znd, 1951,

13 the Agent of the Government of Peru ad
the Agent of the Government of Peru addressed a letter to the in which decide that the intervention was not admissible. In application of Article 66, paragraph 2, of the Rules Court decided Cuba on Government's intervention hearing was held for purpose on May 15th, 1951, during statements submitted Tudela y Barreda, Agent, and M. G. Gidel, Counsel ; de Brigard, ; and on behalf of the Govem- public hearing to the to the adjudge : that the present case cannot give rise to the convention within Statute Court, and Havana Convention, concerning the meaning of which the Court gave judgment on November zoth, 1950 ; and that, therefore, the intervention of the Government of Cuba is not admissible." On behalf of the Government of Colombia : "May it please the Court to decide that the Government of Cuba is entitled to intervene in the present case." 7 such time-limits as the Court may fix in the absence of an agree- ment between the Parties : In pursuance of the provisions of Article 7 Friendship and Co-operation betwee

14 n zdth, 1934, which effect shall to
n zdth, 1934, which effect shall to the Judgrnent of November zoth, 1950 ; is, or is Govem- ment of Pem M. Victor Raul la Torre, "(6) ALTERNATIVE CLAIM : claim being the Court, com- petence, and after such an agreement Parties, to adjudge and declare whether, in force between Govern- or is Raul to the Co- Rio de Janeiro, 24th, 1934, exchanged between those Application was under Article 40, para- graph 3, of the Statute United Nations. proceedings were counter-memorial, and these were filed time-limits prescribed Order of January 3rd, 1951. As the Court did not include upon the Bench availed themselves Statute. The Judges ad hoc chosen were M. José Joaquin Castilla, Doctor Law, Professor, former Senate, Ambassador, for the Government of Colombia, and M. Luis Alayza y Paz Soldan, Professor, former Ambas- sador, for the Government of Peru. By a letter dated January zznd, 1951, Asylum signed Havana February zoth, ; give effect Statute. the States Envoy Extraordinary and The Ne

15 therlands, Agent, assisted by M. Cami
therlands, Agent, assisted by M. Camilo de Brigard, Ambassador, Professor Law, former Advisory Committee Ministry for Tudela y Barreda, Agent, assisted by M. Fernando Morales Macedo R., Parliamentary Calle y Calle, and, as - Julio L6pez Olivkn, Ambassador, with, as intervening The Hague, above, delivers the following Judgment : On December 13th, 1950, filed in an Application 27th upon Request for unable to come to an manner in should be given to the said Judgrnents as regards refugee Victor Rad1 Application made adjudge and declare, whether the Govern- Peru enters INTERNATIONAL COURT OF JUSTICE YEAR 1951 June qth, 1951 HAYA DE LA TORRE CASE (COLOMBTA / PERU) Diplomatic asylum. Intervention under Article 63 of the Statute and Article 66 of Rules. -Admissibility of intervention.-Its limits. Jurisdiction based on attitude of Parties.-Manner of carrying out Judgment of November zoth, 1950.-Choice between various means.- Judicial function of Court. Res judicata.-Provisional character of di

16 plomatie asy1um.-Methods of terminatin
plomatie asy1um.-Methods of terminating asylum under Havana Convention on Asylum of 1928. -No surrender of political oiJenders to territorial authorities. Character and legal consequences of Judgment of November zoth, 1950. - Termination of asylum. 1951 June 13th General List : NO. 14 JUDGMENT Present : President BASDEVANT ; Vice-President GUERRERO ; Judges ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, READ, HSU MO ; MM. ALAYZA Y PAZ SOLDAN and CAICEDO CASTILLA, Judges ad hoc ; Registrar HAMBRO. 4 Le présent arrêt doit être cité comme suit : (( Aflaire Arrêt du 1951: C.I. J. Recueil 1951, p. 71. 1) should be cited la Torre 13th, 1951 : I.C. J. Reports 1951, p. 71." NO de vente : 1 Saies nurnber 60 1 COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARKETS, AVIS CONSULTATIFS / PÉROU) ARRÊT AND ORDERS / PERU) JUDGMENT OF JUNE 13th, 1951 LEYDE Il LEYDEN SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF'S A. W. SIJTHOFF PUBLISHING COMPAN