Posted by CASE COMMENT: HAYA DE LA TORRE CASE
JUDGMENT OF JUNE 13TH, 1951: I.C. J. REPORTS 1951, P. 71.
By Akshita Mittal, Law Student, NLU Nagpur, Online Intern @LawOF
It is popularly known as Asylum case which involves the controversial practice of diplomatic Asylum. The Colombian-Peruvian Asylum case brings to notice the issue of validity of diplomatic asylum in international arena and its influence on international relations.
Finally, the legal relations between both the parties i.e. Republic of Colombia and Republic of Peru were clarified and thus they could now come to a common consensus regarding the issue pertaining to Asylum. They could find some satisfactory solution as to the problem they were facing before and also reconciliation of the strained bilateral relations could happen. Also, as they are good neighbours in Latin America, it would give them an advantage to resolve the dispute as the quality of neighbourliness holds a prominent position when it comes to Asylum for countries situated in Latin America.
The contribution of Latin American countries has been of great significance in issues involving Asylum. There are a number of states from that region which entrusted their disputes to the Court for settlement and on some occasions to United States.[1]
The Haya de La Torre case represents a case completely out of the legal arena, and in fact belongs in the political arena instead, in which decisions can be made by the diplomats and politicians, not judges and arbitrators.[2] It showed that such political disputes stand a possibility of being deemed as non-justiciable under the Court of Law. However, the Court in its opinion has differed in many cases while determining if it is a purely political dispute and is hence justiciable or not, such as Customs Regime between Germany and Austria[3]. There are, however, ways to adjudge such issues: they can be transformed into legal disputes through the litigation process. Secondly, overall disputes can be fragmented into their constitutive elements, with the more legal parts being sent for international adjudication and the remaining simplified dispute being sent to more political methods of resolution.
The Haya de la Torre case is an exceptional case that will rarely be repeated since it was a legal question associated with dispute on treaty law. There is only one case in ICJ where the court concluded that that the dispute was non-justifiable based on legal as well as political dimensions to the case.
Also, it is to be noted that no practical consequence followed after both the judgements as Republic of Colombia was not required to surrender the refugee to Peru. Moreover, though the court defined the legal relations between the parties, the resolution of the dispute was left to the international politics between the parties.
While defining the legal relations between the parties, the court had put the parties in a dilemma that they had the freedom to act upon the situation but at the same time they would need cooperation from each other. Mutual assistance was needed.
Thus, we can gather that asylum as practiced in Latin America is an institution which owes its development to extra-legal factors such as good neighbour relations between the republics, and different political interests of the government apart from defined juridical system.[4]
[1] Peter Tomka, The Role of the International Court of Justice in World Affairs: Successes and Challenges with Special Reference to OAS Member States and the Pact of Bogota (Lecture Series of the America), 6 (2014).
[2] JAMES D. FRY, LEGAL RESOLUTION OF NUCLEAR NON-PROLIFERATION DISPUTES,406-407 1st ed. 2013, Cambridge University Press, New York.
[3] (1931) P.C.I.J., Ser. A/B, No. 41.
[4] 1950 ICJ REP. 266 (1950) Aug 24 2017 11:00 PM (http://www.icj-cij.org/docket/files/14/1937.pdf).
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