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 politicalexpediency. 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. ___________________________________________________
In the Asylum Case (Colombia v Perú), judgement 20 November 1950 (General List No. 7 (1949–1950)), the International Court of Justice (ICJ) recognised that Article 38 of the Statute of the International Court of Justice encompassed local custom as well as general custom, in much the same way as it encompasses bilateral and multilateral treaties.. The Court also clarified that for custom to be...