Asylum Case (Colombia v. Peru) (1950)

Two things, and they are usually examined together. It is the leading authority on regional or local custom, and it is the leading authority on diplomatic asylum. On custom it settles who must prove what. On asylum it settles that the sheltering State cannot decide for itself that the fugitive is a political offender.

On 3 October 1948 a military rebellion broke out in Peru. It was suppressed the same day and investigations opened at once. On 4 October the President issued a decree charging the American People's Revolutionary Alliance with having organised and directed the rebellion, placing it outside the law.

The party's leader, Haya de la Torre, did not surrender. He remained in hiding in Peru for three months, refusing to obey a published summons to appear, and only on 3 January 1949 sought refuge in the Colombian Embassy at Lima. Colombia qualified him as a political refugee and asked Peru for a safe conduct out of the country. Peru refused, contesting the legality of the asylum.

1. Is Colombia, as the State granting asylum, competent to qualify the offence by a unilateral and definitive decision binding on Peru?
2. Is Peru bound to give the guarantees necessary for the refugee's departure?
3. On Peru's counter-claim, was the asylum granted in violation of Articles 1(1) and 2(2) of the Havana Convention?

1. No. Colombia is not competent to qualify the offence unilaterally and definitively.
2. No. Peru is not bound to give a safe conduct.
3. The counter-claim succeeded in part: military rebellion was not shown to be a common crime, but the requirement of urgency in Article 2(2) was not satisfied.

Diplomatic asylum is a derogation from sovereignty. The Court began from the character of the institution. A decision to grant diplomatic asylum "involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State." From that it drew a rule of construction: "Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case." Derogations are not presumed.

Unilateral qualification is not implied in the Havana Convention. The Convention lays down rules on diplomatic asylum but contains no provision conferring on the sheltering State a unilateral competence to qualify the offence with definitive and binding force. Colombia said the competence was implied and inherent. The Court refused. Such a competence is exceptional; it derogates from the equal rights of qualification which, absent a contrary rule, belong to each State; and it aggravates the derogation from territorial sovereignty already involved in asylum. Asylum might be more effective with such a rule, but it is not essential to its exercise.

Colombia's reading of Article 2(1), that Colombian usages and laws on qualification could be invoked against Peru, was rejected as making the extent of one State's obligation depend on changes in another State's law. The provision instead limits the extent to which asylum is to be respected.

Proof of a regional custom. This is the passage to learn. "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." Colombia had to show that the rule it invoked accorded with a constant and uniform usage practised by the States in question, and that the usage expressed a right in the granting State and a duty in the territorial State. The Court expressly grounded this on Article 38, which refers to international custom "as evidence of a general practice accepted as law".

Colombia's evidence failed at every level. Extradition treaties were beside the point. Conventions it cited contained no rule of unilateral qualification. The Montevideo Convention of 1933 had been ratified by no more than eleven States and that of 1939 by two, and Peru had ratified neither. As for the many instances of asylum granted and respected, Colombia had not shown that the alleged rule was invoked as a right and respected as a duty rather than observed for reasons of political expediency. The facts disclosed "so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum" that no constant and uniform usage accepted as law could be discerned.

Even had such a custom existed among some Latin-American States, it could not be invoked against Peru, which had repudiated it by not ratifying the two Montevideo Conventions, the first instruments to include a rule on qualification. That is the persistent objector point in embryo.

Safe conduct. There is undoubtedly a practice of requesting a safe conduct at once. But the Court explained that practice by the convergence of interests: the diplomatic agent does not want the refugee on his premises, and the government often wants its opponent gone. That concordance of views explains the practice, and "this practice does not and cannot mean that the State, to whom such a request for a safe-conduct has been addressed, is legally bound to accede to it." Peru had not asked for the refugee's departure; it had contested the asylum. So no obligation arose.

Urgency. Article 2(2) allows asylum "except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety." Three months had passed since the rebellion, during which the refugee had been in hiding and had refused the summons. The Court held that prima facie such circumstances make it difficult to speak of urgency. It is inconceivable that urgent cases was meant to include the danger of regular prosecution to which anyone attacking the institutions of his country exposes himself.

The limiting principle. "In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to this rule can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law." Asylum protects against manifestly extra-legal measures; it is not a protection against the regular application of the laws and the jurisdiction of legally constituted tribunals, for that would make the diplomatic agent an obstructer of the laws he is bound to respect.

• Set out the two-limb test for a regional custom: constant and uniform usage, plus the usage being the expression of a right in one party and a duty in the other. Then add the burden: the party relying on it must prove it binds the other party.
• The strongest single sentence for a custom answer is the one on uncertainty, contradiction, fluctuation and discrepancy. It shows what inconsistent practice looks like in the Court's hands.
• Do not confuse this with the sequel, Haya de la Torre, where the Court held that its decision did not oblige Colombia to hand the refugee over to Peru.
• Pair this case with Right of Passage, where a bilateral practice did succeed. The contrast is instructive: two States over a century and a quarter proved a custom; twenty States over decades did not.