The asylum case: an analysis of the International Court of Justice's leading judgment on political asylum and regional custom

Resumo

This paper offers an overview of the political background in Peru when a dispute on the political asylum of Victor Raúl Haya de la Torre between Colombia and Peru arose. The claim and counter-claim submitted to the International Court of Justice (ICJ) and the Court’s decision are discussed. It critically reviews the judgment's main issues to the international legal debate: the right of qualification of a political offense, the discussion over regional customary international law, the duty or not to give a safe-conduct, and what should be considered urgency for the purposes of diplomatic asylum. It claims that the unilateral qualification of the offense is essential to the nature of diplomatic asylum. It highlights that this was the first decision of an international court that confirms the existence of a regional custom and discusses what is necessary for a local practice to be considered regional custom. It refutes ICJ’s ruling and argues that nowadays, in the Latin-American context, the territorial State is bound to issue a safe-conduct, regardless if it requested the refugee to leave the country. It disagrees with ICJ’s restrictive interpretation of the term “urgent cases” and understands that urgency shall be construed to allow diplomatic asylum in times of political instability and prevent it in times of democratic normality. Finally, it reflects on the actual impacts of the judgment on the development of international law.