The Asylum Case: Colombia v. Peru [1950] ICJ 6 by VEDANT JAIN at LEXCLIQ

The case of Colombia v. Peru or commonly known as the Asylum case is a landmark in Public International law for several reasons, inter alia, its expansion of laws on extradition and political asylum, development of customary international law and concept of sovereignty in International Law. The case, having been decided as early as the 1950s, has played a significant role in moulding international law and giving it the shape it stands today.

Facts & Issues

The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on January 3rd. 1949, by the Colombian Ambassador in Lima to M. Victor Raul Hays de la Torre, head of a political party in Peru, the American People’s Revolutionary Alliance. On October 3rd, 1948, a military rebellion broke out in Peru and proceedings were instituted against Haya de la Torre for the instigation and direction of that rebellion. He was sought out by the Peruvian authorities, but without success; and after asylum had been granted to the refugee, the Colombian Ambassador in Lima requested safe-conduct to enable Haya de la Tom, whom he qualified as a political offender, to leave the country. The Government of Peru refused, claiming that Haya de la Tom had committed common crimes and was not entitled to enjoy the benefits of asylum. Being unable to reach an agreement, the two Governments submitted to the Court certain questions concerning their dispute; these questions were set out in an Application submitted by Colombia and in a Counter-Claim submitted by Peru.

 

Judgement

In its Judgment, the Court, by fourteen votes to two, declared that Colombia was not entitled to qualify unilaterally and in a manner binding upon Peru the nature of the offence; by fifteen votes to one, it declared; that the Government of Peru was not bound to deliver a safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian contention that Elaya de la Torre was accused of common crimes; the Court noted that the only count against Haya de la Torre was that of military rebellion and military rebellion was not, in itself, a common crime.

Lastly, by ten votes to six, the Court, without criticising the attitude of the Colombian Ambassador in Lima, considered that the requirements for asylum to be granted in conformity with the relevant treaties were not fulfilled at the time when he received Haya de la Torre. Indeed, according to the interpretation which the Court put upon the Convention of Havana; asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law.

 

Analysis

This case evolved the concept of customary international law and added two essential ingredients to it, i.e., consistent and uniform usage. Now, when you distinguish practice from a custom, the essential requirement is to prove that the practice has been going on for centuries in the same fashion and is still in vogue guiding the way of the State. Hence, the court rightly concluded that Peru has the right over the custody of Victor Raul.

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