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International Law- Week 2- sources

International Law- Week 2- sources - The Sources of...

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The Sources of International Law Readings: Harris, Chapter 2/ Evans Chapters 4,5,6 In order for the World Court to apply any asserted rule of international law, must be shown to be a product of one or more of the three law-creating processes: 1) treaties 2) international customary law 3) the general principles of law recognized by civilised nations 4) subsidiary sources -Significant because it rules out other potential law-creating processes such as national law, moral postulates or the doctrine of international law. - Article 38 of the Statute of the World Court discusses this. -Fundamental principle of law that a special rule goes before a general law. **Asylum Case-------Colombia v. Peru (1950) -Peruvian leader attempts an unsuccessful rebellion against Peru in 1948. Peruvian govt gives warrant for his arrest. -Leader granted asylum by Colombia in Peruvian embassy. Colombia requests permission from Peru for leader's safe passage from embassy, through Peru, and into Colombia. Peru refuses. -Peru maintains that Colombia cant unilaterally grant asylum over Peru's objection. -Colombia asks ICH to declare that Colombia had properly granted asylum, pursuant to a recognized regional practice of granting asylum in such political cases. - In addition to the rules arising from agreements, Colombia relied on an alleged regional or local custom peculiar to Latin-American States. -Must prove that this custom established in a manner that it is binding on other Party (Peru), in accordance with a consistent and uniform usage practised by the States in question. -Colombia shows a large number of cases in which diplomatic asylum granted and respected BUT has not shown that the alleged rule of unilateral and definitive qualification was invoked -Court cannot find that Colombian govt has proved existence of a custom, BUT even it could show a custom existed between certain Latin-American states only, it could not be invoked against Peru which, far from having adhered to it-on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933/39. -Issue: Whether there is a custom so established that it is binding to allow Colombia to grant political asylum. -Colombian government must prove that it was rule binding on other party in constant and uniform usage practiced by other party. -a.k.a "a general practice accepted as law"- custom -Colombia argued that according to treaties in force (Bolovian, Havana,
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Montevideo on Political Asylum) they were entitled to decide if asylum should be granted and their unilateral decision binding on Peru. -Much contradiction in practice, fluctuation, and discrepancy in the exercise of diplomatic asylum and in the official views on various occasions, INCONSISTENT, ratified by some states, rejected by others.
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