Abstract
Seventy years since its judgment, the Colombian-Peruvian Asylum Case (1950) remains a foundational text in international law, not merely for its ruling on diplomatic asylum but for its enduring methodological influence on identifying customary international law. This paper critically reassesses the case’s legacy, arguing that its rigorous two-element test—requiring both consistent state practice and opinio jurisestablished a judicial template that continues to guide the International Court of Justice (ICJ) and other tribunals today. While the case famously found no regional custom granting unilateral qualification of asylum, its deeper contribution lies in its systematic approach to evaluating evidence of custom, setting a precedent for judicial caution and methodological transparency. Through analysis of the case’s reasoning and its subsequent citation in ICJ jurisprudence, including recent cases addressing issues from climate obligations to cyber operations, this paper demonstrates how the Asylum Case’s framework has evolved to meet contemporary challenges. It concludes that the case’s true significance is its establishment of a durable, flexible methodology that balances the need for customary law to evolve with the imperative of legal certainty, ensuring its continued relevance in an era of rapid normative change.
Keywords: Customary International Law, Asylum Case, ICJ, Opinio Juris, State Practice, Judicial Methodology, Diplomatic Asylum, Sources of International Law.
Literature Review
Alessandra Favi[1], Protecting Asylum Seekers and Migrants in the Context of the Rule of Law Crisis in EU Member States: The following research showcases the scenarios in which infringement procedure and its applications have an impact on migration and asylum law. It deals in detail about the Article 258 Infringement Procedure Mechanism. The mechanism is quite effective in combating not only specific but also multiple violations of EU law duties which influence migration and asylum law. Court of Justice of EU here makes a significant contribution towards protection of asylum law. Scenarios such as these can easily be recognized as the aftereffect of the Asylum Case and again shows that it was this spark that started the ignition which lead to development of Customary Rule of Law.
Alina Malinowski[2] here the practical difficulties in implementation of diplomatic Asylum have been discussed. There is no doubt that diplomatic asylum is recognized as part of regional international law in different parts of the world. The problem primarily arises due to its applicability, prerequisite includes urgency and nature of crime being a political crime. Position of States in relation to such institutions is required to be understood to handle the situation. An international convention which would govern all States volunteering could be a possible solution but due to negative attitudes and threat to sovereignity of smaller states this does not seem possible in the near future.
Introduction
For practitioners in international and national courts, customary international law is critical. Custom and treaties may coexist on the same subject matter as the push for the codification of international law.[3] Due to overlapping of Customs and treaties there is a clash as the application mechanism are different for the two. Moreover the coverage of customary law expands farther than application of treaty law.
The recognition of customary rule of law differs from recognition of treaties. While recognition of a custom depends upon existence of a valid customary rule whereas evolution of customary rule is what is required for establishment of treaties. Traditionally there were two requirements to identify a custom i.e. sufficient evidence of state practice and legal opinion. Now, The International Law Commission (ILC) has adopted the two-element stating them as “a general practice” and “recognized as law.”[4]
Over the years there have been various theories suggested for the recognition of customs. These include variations of the two element approach and one element method which deal with the conflicts between opinio juris and proof of practice. Few other renowned scholars have suggested a ‘core right’ approach to customary rules in international criminal law, which also derives its principles from the one element approach. In the subject of international law, criminal matter holdcertain peculiarities which differentiate then when compared to other fields. Since the two element approach is of such great importance it becomes essential to identify whether a new custom-identification method has arisen in this industry.[5]
Through passing of time it is now well settled that Article 38 of the Statute of the International Court of Justice (ICJ)[6] is the appropriate source for determining the custom-identification procedure. As such no convention, customary norm, or general concept is present which governs the method of identifying customary law. ‘Judicial decisions and the teachings of the most highly competent publicists of the various nations,’ according to Article 38, are secondary sources.[7]
Primary sources would include academic works and judicial decisions for examining the procedure employed to identify the presence of a customary rule.
Nationality is the only parameter that connects the individual and international law under customary international law. People who have been forced to flee from their homes due to natural disasters or political events and who may or may not be outside their nation of origin are commonly known as refugees. Although refugees can be stateless majority of them are not. The subject matter of our research only deals with those refugees who have left their nation for political purposes and also highlights the legal issues faced by such refugees.[8]
[1]ALESSANDRA FAVI, protecting asylum seekers and migrants in the context of the Rule of Law, MDPI, https://mdpi.com
[2]ALINA MALINOWSKA, the institution of diplomatic asylum as the possibility of protecting human rights , MDPI
https://www.culturaldiplomacy.org
[3]1 Lassa Oppenheim, Oppenheim’s International Law: Peace 25–30 (Robert Jennings & Arthur Watts eds., 9th ed. 1996).
[4] Int’l Law Comm’n, Draft Conclusions on Identification of Customary International Law, in Report of the International Law Commission on the Work of Its Seventieth Session, U.N. Doc. A/73/10, at 119 (2018).
[5] Michael Wood, The Role of Opinio Juris in Customary International Law, 81 Nordic J. Int’l L. 389, 395–400 (2012).
[6] Statute of the International Court of Justice art. 38, ¶ 1(b), June 26, 1945, 59 Stat. 1055, 1060.
[7]Id
[8] Anthea Roberts & Sandesh Sivakumaran, The Theory and Reality of the Sources of International Law, in The Oxford Handbook of the Sources of International Law 108, 115–20 (Samantha Besson & Jean d’Aspremont eds., 2017).