Case: The Asylum Case (1960 World)

Facts: Torre, the unsuccessful leader of a military rebellion in Peru in 1948,

sought political asylum in the Columbian embassy in Lima. Peru refused to allow
Torre to leave the country, and insisted he be given over to Peru to be tried for
military rebellion. Dispute referred to the ICJ, which first decided that Columbia
had no treaty right to declare that Torre was entitled to the status of a
political offender eligible for political asylum. The ICJ then turned to customary
international law.

Issue: Whether there is an custom so established that it is binding to allow

Columbia to grant political asylum.

Holding: No evidence as to custom allowing Columbia to grant political asylum and

binding Peru.

Reasoning: Columbia cited several conventions, of which some Peru was not a party
so not binding, and others that were accepted by so few states it is very weak.
Columbia also refers to many cases where political asylum was granted, but court
cannot determine whether they were granted due to usage, or for political
expediency. Court says Columbian gov't has not through its arguments proven the
existence of such a custom. And, if there was such a custom, it could not be
enforced against Peru, b/c they were not party to the Montevideo convention which
included matters of political asylum.

RULE: To invoke a customary international law, you have to prove it has been used
fairly often, and adopted by many states. Also, you cannot bind a state to a
treaty to which it did not ratify.

Notes

• How does this relate to CIL?

○ Because the question is if there is CIL that governs asylum
• No CIL here because not overwhelmingly adopted by enough states
○ One of the treaties raised, Peru didn’t sign onto
○ Another signed on to by a limited number of states
○ Weak evidence showing indication of CIL
○ Peru has not acted in a way that showed they practiced this custom
§ No evidence of consent to the custom
• The persistent objection consent
○ If Peru objects persistently, even if custom very common, they still
wouldn’t be bound (unless it was a natural right)