Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4254

September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for
respondents.
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision
of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country
from Shanghai as a secret operative by the Japanese forces during the latter's regime in
these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter
Intelligence Corps. Later he was handed to theCommonwealth Government for disposition in
accordance with Commonwealth Act No. 682. Thereafter, the People's Court ordered his
release. But the deportation Board taking his case up, found that having no travel documents
Mejoff was illegally in this country, and consequently referred the matter to the immigration
authorities. After the corresponding investigation, the Board of commissioners of Immigration
on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designation port of entry and,
therefore, it ordered that he be deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948
he was transferred to the Cebu Provincial Jail together with three other Russians to await the
arrival of some Russian vessels. In July and August of that year two boats of Russian
nationality called at the Cebu Port. But their masters refused to take petitioner and his
companions alleging lack of authority to do so. In October 1948 after repeated failures to
ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa
where he has been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to keep him under detention
while arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the undesirable alien under
confinement for a reasonable lenght of time." It took note of the fact, manifested by the Solicitor
General's representative in the course of the of the oral argumment, that "this Government desires to
expel the alien, and does not relish keeping him at the people's expense . . . making efforts to carry
out the decree of exclusion by the highest officer of the land." No period was fixed within which the
immigration authorities should carry out the contemplated deportation beyond the statement that

"The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of
obtaining a passport, the availability of transportation, the diplomatic arrangements with the
governments concerned and the efforts displayed to send the deportee away;" but the Court warned
that "under established precedents, too long a detention may justify the issuance of a writ of habeas
corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this
decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the
prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to
further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that two
months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated, the Government has
not found way and means of removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it was through no fault of theirs
that no ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept.
18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no
less true however, as impliedly stated in this Court's decision, supra, that foreign nationals, not
enemy against whom no charge has been made other than that their permission to stay has expired,
may not indefinitely be kept in detention. The protection against deprivation of liberty without due
process of law and except for crimes committed against the laws of the land is not limited to
Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality.
Whether an alien who entered the country in violation of its immigration laws may be detained for as
long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry
into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de
facto government whose decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled "Universal
Declaration of Human Rights" and approved by the General Assembly of the United Nations of which
the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty
and all other fundamental rights as applied to all human beings were proclaimed. It was there
resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that
"Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social
origin, property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by
the competent national tribunals for acts violating the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile"
(Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from
custody an alien who has been detained an unreasonably long period of time by the Department of
Justice after it has become apparent that although a warrant for his deportation has been issued, the
warrant can not be effectuated;" that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed, is functus officio and the alien is
being held without any authority of law." The decision cited several cases which, it said, settled the
matter definitely in that jurisdiction, adding that the same result had reached in innumerable cases
elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last

paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28,
1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a
stateless person, formerly a Polish national, resident in the United States since 1911 and many
times serving as a seaman on American vessels both in peace and in war, was ordered excluded
from the United States and detained at Ellis Island at the expense of the steamship company, when
he returned from a voyage on which he had shipped from New York for one or more European ports
and return to the United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain documents he
presented himself to be an American citizen. Upon his application for release on habeas corpus, the
Court released him upon his own recognizance. Judge Leibell, of the United States District Court for
the Southern District of New York, said in part:
When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some
country that he would receive him as a resident. He is, a native-born Pole but the Polish
Consul has advised him in writing that he is no longer a Polish subject. This Government
does not claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back aboard a ship and
sailed to the Port (Cherbourg, France) from which he last sailed to the United States, he
would probably be denied permission to land. There is no other country that would take him,
without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country. The
steamship company, which employed him as one of a group sent to the ship by the Union,
with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day
for petitioner's board at Ellis Island. It is no fault of the steamship company that petitioner is
an inadmissible alien as the immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of the petitioner on his
own recognizance. He will be required to inform the immigration officials at Ellis Island by
mail on the 15th of each month, stating where he is employed and where he can be reached
by mail. If the government does succeed in arranging for petitioner's deportation to a country
that will be ready to receive him as a resident, it may then advise the petitioner to that effect
and arrange for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to
the quandry in which the parties here finds themselves, solution which we think is sensible, sound
and compatible with law and the Constitution. For this reason, and since the Philippine law on
immigration was patterned after or copied from the American law and practice, we choose to follow
and adopt the reasoning and conclusions in the Staniszewski decision with some modifications
which, it is believed, are in consonance with the prevailing conditions of peace and order in the
Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the

disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer
that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines nor identified with the countries
allied against these nations, the possibility of the petitioner's entertaining or committing hostile acts
prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After all, the
Government is not impotent to deal with or prevent any threat by such measure as that just outlined.
The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in
connection with the appliccation for bail of ten Communists convicted by a lower court of advocacy
of violent overthrow of the United States Government is, in principle, pertinent and may be availed of
at this juncture. Said the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after conviction,
have forfeited their claim to bail. Grave public danger is said to result from what they may be
expected to do, in addition to what they have done since their conviction. If I assume that
defendants are disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the jailing of persons by
the courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this country and
so fraught with danger of excesses and injustice that I am loath to resort it, even as a
discretionary judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these
defendants we throw out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some future day.
xxx

xxx

xxx

1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked or
underestimated that is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that their conviction is
invalid. All experience with litigation teaches that existence of a substantial question about a
conviction implies a more than negligible risk of reversal. Indeed this experience lies back of
our rule permitting and practice of allowing bail where such questions exist, to avoid the
hazard of unjustifiably imprisoning persons with consequent reproach to our system of
justice. If that is prudent judicial practice in the ordinary case, how much more important to
avoid every chance of handing to the Communist world such an ideological weapon as it
would have if this country should imprison this handful of Communist leaders on a conviction
that our highest Court would confess to be illegal. Risks, of course, are involved in either
granting or refusing bail. I am naive enough to underestimate the troublemaking propensities
of the defendants. But, with the Department of Justice alert to the the dangers, the worst
they can accomplish in the short time it will take to end the litigation is preferable to the
possibility of national embarrassment from a celebrated case of unjustified imprisonment of
Communist leaders. Under no circumstances must we permit their symbolization of an evil
force in the world to be hallowed and glorified by any semblance of martyrdom. The way to
avoid that risk is not to jail these men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present petition,
since the right of accused to bail pending apppeal of his case, as in the case of the ten Communists,
depends upon the discretion of the court, whereas the right to be enlarged before formal charges are
instituted is absolute. As already noted, not only are there no charges pending against the petitioner,
but the prospects of bringing any against him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he
keep peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of
First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above
purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of
Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions
PABLO, M., disidente:
Disiento
En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el
solicitante Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia
venido a Filipinas procedente de Shanghai como espia japones; en la liberacion, el ejercito
americano le arresto por se espia, habiendo sido mas tarde entregado al Gobierno del
Commonwealth para ser tratado de acuerdo con la ley No.682; pero como bajo el Codgo Penal
Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al
extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion,
la Junta de Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fue
entregado a la Junta de Inmigacion, la cual ordeno su deportacion a Rusia por el primer transporte
disponible por haber vendo aqui ilegalmente; fue enviado a Cebu para que alli se embarcase, pero
los dos barcos de nacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron
admitirle. Por no encontrar transportacion para su departacion, Mejoff fue enviado a la Prison de
Muntinglupa, donde esta actualmente de tenido mientras el Gobierno no encuenra medio de
transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government whose decrees were law
during the occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio como
espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le
trajo, el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe
acudir al Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta aqui no le da titulo para
permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo de Filipinas no tiene
derecho a pedir igual trato que aquel ha entrado de buena fe. Es que Filipinos tiene la obligacion

de acoger a un ciudadano indeseable de Rusia? Desde cuando tiene que allanarse una nacion a
ser residencia de una extranjero que entro como enemigo o, peor aun, como espia? Un Estado
tiene indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable.
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer
aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno
que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual
derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so
pretexto de no querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si
los mismos communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion
como la concedida a Mejoff, tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada
"Universal Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one
shall be subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo
sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo
justificado, de una manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de
una manera provisional. Tan pronto como haya barco disponible para su deportacion o tan pronto
como pueda embarcarse en algun barco para el extenjero o para cualquier otro punto a donde
quiera ir, dejara de ser detenido. Conste que no esta preso como un criminal condenado por un
delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera
sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion del
pueblo filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo
salir, yo seria el primero en abogar por su liberacion inmediata.
Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International
Law, 732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad
en un recurso de habeas corpus. En nuestra opinion, dicho caso no tiene simulitud con la causa
presente. Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como marino en
barcos mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando
volvio a America procedente de un viaje a Europa por no tener papeles de inmigracion.
Staniszewski no habia entrado en los Estados Unidos como espia, estuvo residiendo en dicho pais
por varios aos, era ya habitante de los Estados unidos. La ocupacion de marino es honrosa, la del
espia mercenario, detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia,
con disimulo y arte engaosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner
en libertad a un espia es poner en peligro la seguridad del Estado.
En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la
cincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y
Rusia o Shanghai, debico a fala de relciones diplomaticas, son completamente anormales. No es
culpa del gobierno el que no encuentre medios de transportacion para el.
La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the
United Nations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o enviado a
otro pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en condicines para
aceptar dicha recomendacion.
William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su
deportacion por el Sub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su
libertad bajo el recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion; no se
le pudo deportar porque "the necessary arrangements for his deportation could obviously not be
made." (District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional

de William Martin Jurgans duro mas de seis aos; la de Mejoff no ha sido mas que de 31 meses, y
no porque el gobierno no quiere deportarle, sino porque no hay medio disponible para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular cases. This court cannot
shut its eyes to the vitally important interests of this country at this time with respect to the
bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to
the utmost without delay consequent upon the lack of avilable seamen. Under these present
conditions the court should be liberal indeed in aiding the executive branch of the govenment
in the strict enforcement of laws so vitally necessary in the common defns. There is sound
authority for this view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97,
where Circuit Judge Lacombe refused to release an alien who had come here from Germany
and was ordered deported in 1915 when, by reason of the then existing war between
Germany and England, his deportation to Germany was not possible. It was said:
At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to forward him, and are holding him until some opportunity of returning
him to Germany may present itself. His continual detention is unfortunate, but certainly is not
illegal. His present condition can be alleviated only by the action of the executive branch of
the government. A federal court would not be justified in discharging him. . . .
If he is not really fit for sea service, it is not probable that he would be forced into it, although
he may be able to serve his government in some other capacity. But however that may be,
while this country has no power under existing legislation to impress him into sea service
against his will, he has no just cause to be relieved from the strict enforcement of our
deportation laws, and to remain at liberty in this country as a sanctuary contrary to our laws.
No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.
La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su
deportacion, supon un gasto innecesario.

Footnotes
<sup*< sup="">84 Phil., 218.</sup*<>
Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru.
Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of
military rebellion which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed
that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political
refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to
accept the unilateral qualification and refused to grant safe passage.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?
The Courts Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it
is competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either
because of treaty law (in particular the Havana Convention of 1928 and the Montevideo

Convention of 1933), other principles of international law or by way of regional or local

custom.
2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which
accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on
Peru and considering the low numbers of ratifications the provisions of the latter Convention
cannot be said to reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court
held that the burden of proof on the existence of an alleged customary law rests with the
party making the allegation:
The Party which relies on a custom of this kind must prove that this custom is established
in such a manner that it has become binding on the other Party (that) it is in accordance
with a (1) constant and uniform usage (2) practiced by the States in question, and that this
usage is (3) the expression of a right appertaining to the State granting asylum (Columbia)
and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article
38 of the Statute of the Court, which refers to international custom as evidence of a
general practice accepted as law(text in brackets added).
4. The court held that Columbia did not establish the existence of a regional custom because
it failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of
State practice). The court also reiterated that the fact that a particular State practice was
followed because of political expediency and not because of a belief that the said practice is
binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation
of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more
on opinio juris):
[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged
rule of unilateral and definitive qualification was invoked or that it was, apart from
conventional stipulations, exercised by the States granting asylum as a right appertaining to
them and respected by the territorial States as a duty incumbent on them and not merely

for reasons of political expediency. The facts brought to the knowledge of the Court disclose
so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise
of diplomatic asylum and in the official views expressed on various occasions, there has
been so much inconsistency in the rapid succession of conventions on asylum, ratified by
some States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern
in all this any constant and uniform usage, mutually accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the offence.
5. The court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru far from having by its attitude adhered to it,
has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions
of 1933 and 1939, which were the first to include a rule concerning the qualification of the
offence [as political in nature] in matters of diplomatic asylum. (See in this regard, the
lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court
held in any event the . . . rule would appear to be inapplicable as against Norway in as
much as she had always opposed any attempt to apply it to the Norwegian coast.)
6. The court concluded that Columbia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana Convention,
a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State (Columbia) to send the person
granted asylum outside its national territory (Peru). In this case the Peruvian government
had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum
granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers,
before the territorial State could request for his departure. Once more, the court held that
these practices were a result of a need for expediency and other practice considerations
over an existence of a belief that the act amounts to a legal obligation (see paragraph 4
above).

There exists undoubtedly a practice whereby the diplomatic representative who grants
asylum immediately requests a safe conduct without awaiting a request from the territorial
state for the departure of the refugeebut this practice does not and cannot mean that the
State, to whom such a request for safe-conduct has been addressed, is legally bound to
accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted
asylum and is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that It is not permissible for States to grant
asylum to persons accused or condemned for common crimes (such persons) shall be
surrendered upon request of the local government.
10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres
accusation related to a military rebellion, which the court concluded was not a common
crime and as such the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders
in legations, warships, military camps or military aircraft, shall be respected to the extent in
which allowed, as a right or through humanitarian toleration, by the usages, the conventions
or the laws of the country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for the period of
time strictly indispensable for the person who has sought asylum to ensure in some other
way his safety.
12. An essential pre-requisite for the granting of asylum is the urgency or, in other words,
the presence of an imminent or persistence of a danger for the person of the refugee. The
court held that the facts of the case, including the 3 months that passed between the
rebellion and the time when asylum was sought, did not establish the urgency criteria in this
case (pp. 20 -23). The court held:
In principle, it is inconceivable that the Havana Convention could have intended the term
urgent cases to include the danger of regular prosecution to which the citizens of any
country lay themselves open by attacking the institutions of that country In principle,
asylum cannot be opposed to the operation of justice.

13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that protection from the operation of regular
legal proceedings was not justified under diplomatic asylum.
14. The court held:
In the case of diplomatic asylum the refugee is within the territory of the State. A decision
to grant diplomatic asylum involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and constitutes an
intervention in matters which are exclusively within the competence of that State. Such a
derogation from territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the
rule of law. Such would be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the political offender against
any measures of a manifestly extra-legal character which a Government might take or
attempt to take against its political opponents On the other hand, 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. Protection thus understood
would authorize the diplomatic agent to obstruct the application of the laws of the country
whereas it is his duty to respect them Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin-America, namely, nonintervention [for example, by Colombia into the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect political prisoners against
the violent and disorderly action of irresponsible sections of the population. (for example
during a mob attack where the territorial State is unable to protect the offender). Torre was
not in such a situation at the time when he sought refuge in the Colombian Embassy at
Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were not
in conformity with Article 2(2) of the Havana Convention (p. 25).

The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and
in consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.
NB: The court also discussed the difference between extradition and granting of asylum
you can read more on this in pp. 12 13 of the judgment. The discussions on the
admissibility of the counter claim of Peru are set out in pp. 18 19.