These cases are important to an understanding of the nature of
custom and the extracts printed later in this book should be read at the same time as those from the cases extracted in this chapter.
ASYLUM CASE 18
Columbia v Peru
I.C.J. Reports 1950, p.266
After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest on a criminal charge arising out of the rebellion of one of its leaders, Haya de Ia Torre, a Peruvian national. He was granted asylum by Colombia in its Peruvian Embassy in Lima. Colombia sought, and Peru refused, a safe conduct to allow Haya de Ia Torre out of the country. Colombia brought this case against Peru, asking the Court to rule, infer nlia, that:
Colombia, as the state granting asylum, is competent to qualify the offence 1 " for the purposes of the said asylum. 20
It argued for such a ruling on the basis of both treaty provisions and "American international law in general".ln the following extract, the Court considered the latter basis for the Colombian argument.
Judgment of the Court
The Colombian Government has finally invoked "American interna- tional law in general." In aqdition to the rules arising from agreements which have already been considered, it has relied on an alleged regional or local custom peculiar to Latin-American States. 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. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage prac- tised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. 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." ... the Colombian Government has referred to a large number of 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
Studil's 207; Ml'nde!son (1998) 272 Hague Recueil ISS; MUllcrson, in Wellens, ed., Inlemaliotrall.nw: Theory and Pmclice (1998), p.161; 1hirlway, lrrlemaliotral Crrstamary /.mu and Codification (19n); Wolfke, Crrslam i11 Preseu! ltr/enratiotml I.nw (2nd ed., 1993); Fiml Report of the Committee on the Formation of Customary International Law, /.L.A. 69tlr Conference Report (2000), p.712. ra See Briggs (1951) 45 A.J.I.L. 728. 19 i.e. to characterise the offence--in this case to say whether it was a political offence or not. 20 I.C.J. Rep. 1950, p.273.
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 State 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 asy- lum 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, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence. The Court cannot therefore find that the Colombian Government has proved the existence of such a custom. But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru which, 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 in matters of diplomatic asylum.
Notes 1. The Court's description of custom as a "constant and wtifonn usage, accepted as law" has long been quoted as a convenient and accurate formula. In other teiiil5, in the Legality of Nuclear Wenpons case, 2 ' the Court confirmed that the substance of customary rules is to be found "primarily in the actual practice and opi11io juris of states." These two are sometimes referred to as the objective and subjective elements of custom respectively. 2. General and Weal Customs. As the Court recognised in this case, although Art.3B(l)(b) refers to "a general" practice, it allows for local (or regional) customs amongst a group of states or just two states"' in their relations inler se as well as for general customs binding upon the international community as a whole. Local customs may supplement or derogate from general customary international law (subject to rules of ius cogeusll). A leading Soviet writer, Tunkin/ identified socialist international law as a form of local international law which was "coming to replace contemporary general international law" in the relations between socialist states. An example of such law was the Brezhnev Doctrine, which jus- tified intervention by socialist states in the affairs of any one of them to preserve socialism.'-' The Brezhnev Doctrine no longer applies and it is not dear that any other rules of socialist international law remain in the post-USSR era. Although local customs exist, general customs are by far the more numerous and important.
21 For the full pasSi!ge from the opinion, see below, p.963. 22 Such a custom was found to exist between India and Portugal in the Righi oJPassagf case, below, p.258. 23 On ius cosens, see below, p.856. l T11eory of Inlcmaliouall.nw, op. cit., p.S, n.13, above, p.444. 25 ibid. p.433.