Issue in this case:

Whether or not Columbia as the State granting asylum, is competent to

qualify the nature of the offense by a unilateral and definitive decision
binding on Peru?
In this case Columbia Government relied on Article 4 of this agreement
concerning extradition of a criminal refugee from the territory of the State in
which he has sought refuge. The arguments submitted in this respect reveal
a confusion between territorial asylum (extradition), on the one hand, and
diplomatic asylum, on the other1
Distinction: Diplomatic Asylum vs Territorial Asylum:
In the case of Territorial Asylum Extradition:
Here the refugee is within the territory of the State of refuge. A decision with
regard to extradition implies only the normal exercise of the international
territorial sovereignty. The refugee is outside the territory of the State were
the offence was committed, and a decision to grant him asylum in no way
derogates from the sovereignty of that State.
In the case of diplomatic asylum, the refugee is within the territory of the
State where the offense was committed. 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 constitute an
intervention in matter which territorial sovereignty cannot be recognized
unless its legal basis is established in each particular case.

The ICJ said that Extradition based on its definition cannot apply to the
dispute before it . ( because the concern is diplomatic asylum
HAVANA CONVENTION ASYLUM
The Columbian Government invoked the Havana Convention Ayslum of
1928- it lays down certain rules on diplomatic asylum, but ( a big BUT) there
is no provision conferring on the State granting asylum a unilateral
competence to qualify the offence with definitive and binding force for the
territorial state.

Asylum Case, 1950 ICJ reports, last line of page 9

Montevideo Convention : moreover its preamble states that it modifies the

Havana Convention, it cannot represent merely an interpretation of the
Convention.2
THE COLUMBIAN GOVERNMENT invoked American International Law in
general law alleging local custom or regional custom amongst Latin
American States:
There is no proof that such custom is practiced in Peru, here there is no proof
of State practice and Opinio Juris 3

Even Treaty cease to exist, Customary Law still exist.

Court also said the limited number of States, weakens the argumentof US.
And the Havana Convention is prior to Montevideo convention, if the latter is
a mere codification, then why is it a modification of treaty law, Mr. Did you
get it? Cge nga let us see what did you get? Then Mr. Roy stood up to ask a
question =)

Important: Sir highlighted on this part of

the case:
A. ICJ ruling: The Court cannot therefore find that the Columbian
Government has proved the existence of such custom.
B. ICJ Explanation:
Sir Said this is the Summary of the Ruling of ICJ: ( On page 12) Finally, the
Columbian 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-if in some case it was invoked- that is 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.

2
3

Asylum Case, 1950 ICJ reports, paragraph 4, page 11

Asylum Case, 1950 ICJ reports , second to the last paragraph of page 11

In short there are many cases = so This is State practice class, but it is not enough
to prove State practice, according to North Sea case, Opinio Juris requires separate
proof from State Practice: But here in Asylum Case there is no legal duty or Opinio
Juris , but by mere Political Reasons.
Sir also repeated:
But in Nicaragua case different: State practice daw may be proof of Opinion Juris,
so not separate.
Here in Asylum: Sir said the Case discussed on particular customary Law between

This writer would like to cite Professor Christopher Greenwood on his

argument that State practice require further introspection and study4.
Xxxx According to him A new rule of customary international law cannot be created unless both of
these elements are present. Practice alone is not enough see, e.g., the Case of the SS Lotus (1927).
Nor can a rule be created by opinio juris without actual practice see, e.g., the Advisory Opinion on
Nuclear Weapons (1996).
But these elements require closer examination. So far as practice is concerned, this includes not just
the practice of the government of a State but also of its courts and parliament. It includes what States
say as well as what they do. Also practice needs to be carefully examined for what it actually says
about law. The fact that some (perhaps many) States practise torture does not mean that there is not
a sufficient practice outlawing it. To quote from the ICJs decision in the Nicaragua case:
In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should in general be consistent with such a rule; and that instances of State conduct
inconsistent with a given rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule. (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.).

Feed your faith and your doubts will starve =)

Christopher Greenwood. Sources of International Law: An Introduction.

Sir said this part is most important :

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 ( law , opinion Juris), with regard to the alleged rule of unilateral and definitive
qualification of the offense. (but sa case it is spelled as offence).
Grand Finale of Sirs discussion:
Thus the grant of Unilateral and definitive qualification of the offense is not a Customary
Law, it cannot be binding on Peru Class.
As to treaty law = no remedy : Non-ratificaition of Montevideo Convention Peru did not ratify
it Class ha?
As to Customary norm = No remedy: There is no Customary Norm to speak of, because the
grant of the asylums were due to mere political Expediency not opinion Juris, and Not State