below, p.959.

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.