This finding renders superfluous the addition to the counter-claim submitted during the oral proceedings and worded as follows: "and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty".
Such a consequence obviously would be incompatible with the legal situation created by the Convention. For these reasons, the Court has arrived at the conclusion that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.
He must in fact examine the question whether the conditions required for granting asylum are fulfilled.
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.
By letter of October 15th,received by the Registry on the same day, the Agent of the Peruvian Government also deposited a certified true translation of the Act of Lima. The Government of Peru has based its counter-claim on two different grounds which correspond respectively to Article 1, paragraph 1, and Article 2, paragraph 2, of the Havana Convention.
It points out that the Havana Convention, which provides for the surrender to those authorities of persons accused of or condemned for common crimes, contains no similar provision in respect of political offenders. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims.
In this connexion, the following observations should be made: In the absence of precise data, it is difficult to assess the value of such cases as precedents tending to establish the existence of a legal obligation upon a territorial State to recognize the validity of asylum which has been granted against proceedings instituted by local judicial authorities.
The first of these confirms the asylum and claims to justify its grant by a unilateral qualification of the refugee.