ASYLUM CASE (SUMMARY)

Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia
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 Court’s 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 Torre’s 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 (Colombia) 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 Colombia 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

“[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.”.
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’.)
LOTUS CASE (SUMMARY)
Permanent Court of International Justice, Contentious Case: The Lotus Case (France
vs Turkey);
Year of the decision: 1927.
Overview:

A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish
nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French national
under international law?

Facts of the Case:

The issue at hand concerned a collision on the high seas (where international law applies) between the Lotus, a
French ship, and the Boz-Kourt, a Turkish ship. Several people aboard the latter ship were drowned and Turkey
alleged negligence by the French officer of the watch. When the Lotus reached Istanbul, the French officer was
arrested on a charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him. Among
the various arguments adduced, the French maintained that there existed a rule of customary law to the effect
that the flag state of the accused (France) had exclusive jurisdiction in such cases and that accordingly the
national state of the victim (Turkey) was barred from trying him. To justify this, France referred to the absence
of previous criminal prosecutions by such states in similar situations and from this deduced tacit consent in the
practice which therefore became a legal custom.

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a
French national, outside Turkey? If yes, should Turkey pay compensation to France?

Relevant Findings of the Court:

The Lotus case gave an important dictum on creating customary international law. France had alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute
only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary
law on collisions.The Court disagreed and held that, this:

“…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and
not that they recognized themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged
fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will
presently be seen, there are other circumstances calculated to show that the contrary is true.”

In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when
those omissions are made following a belief that the said State is obligated by law to refrain from acting in a
particular way. (For more on opinio juris click here)