Asylum Case

Anglo Norwegian Fisheries Case (Summary on Customary International Law)

Case: Anglo Norwegian Fisheries Case (UK vs Norway)

Year of Decision: 1951. Court: ICJ.

 

The Court was asked to decide, inter-alia, the validity, under international law, of the methods used to delimit Norway’s territorial sea/ fisheries zone. We would not discuss the technical aspects of the judgment. The judgment contained declarations on customary international law. However, the value of the jurisprudence was diminished because these declarations lacked in-depth discussion.

 

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did not allow the length of a baseline drawn across abay to be longer than ten miles. Norway argued that its delimitation method was consistent with general principles of international law.

Formation of customary law

The court consistently referred to positive (1) state practice and (2) lack of objections of other states on that practice as a confirmation of an existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.

In the following passage, the court considered that expressed state dissent regarding a particular practice was detrimental to the existence of an alleged general rule. It did not elaborate whether these states adopted a contrary practice because it was claiming an exception to the rule (see the Nicaragua jurisprudence) or because it believed that the said rule did not possess the character of customary law.

“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”

 

Persistent objector rule

The court in its judgment held that even if a customary law rule existed on the ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”

In this case, the court appears to support the idea that an existing customary law rule would not apply to a state if it objected to any outside attempts to apply the rule to itself, at the initial stages and in a consistent manner, and if other states did not object to her resistance. In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs Colombia) in articulating what we now call the persistent objector rule.

 

Initial objection

In the present case, the court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”

The court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the Norwegian Government as compatible with international law”. The court held that Norway had refused to accept the rule as regards to it by 1870.

 

Sustained objection

The court also went on to hold that Norway followed the principles of delimitation that it considers a part of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute. In establishing consistent practice, the court held that “…too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”

 

No objection

After the court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of its objections, the court inquired whether the Norwegian system of delimitation, itself, was contrary to international law. To do so, the court referred to state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”

 

Contrary practice

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to international law) but rather it claimed that its practice was in conformity with international law (see page 21).

 “In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ”

 

Conclusion

The court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the Norwegian system to be “contrary to international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.”

 

Relationship between international and national law

The court alluded to the relationship between national and international law in delimitation of maritime boundaries. In delimitation cases, states “must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements…” The court would also consider “…certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its legal validity depends on international law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. (p. 20)”

 

Further reading:

T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, 26 Harvard International Law Journal, 1985, p. 457,

 J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56 BYIL, 1985, p. 1.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to maintain its status. No case is cited for a circumstance in which the objector effectively maintained its status after the rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained din light of the realities of the international legal system. This is certainly the plight that befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.

 “The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was whether Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that CIL did not allow the length of a baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the primary holding of the case was that the alleged CIL rule did not exist. In the alternative, the court briefly remarked that, had the rule existed, it would not have applied against Norway because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This language is often cited in support of the persistent objector doctrine, but it could just as easily be read to support the Default View of CIL, since there is nothing in this language that suggests that Norway’s opposition must have occurred prior to the establishment of the alleged rule of CIL. The arguments of the parties do not resolve this uncertainty: although the United Kingdom appears to have supported something like the modern persistent objector doctrine, at least for rights historically exercised by a state (while asserting that Norway had not met its requirements),Norway (which prevailed in the case) appears to have supported something closer to the Default View.

 The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine. State practice since those decisions is also relatively unhelpful, since there have been essentially no instances in which states have invoked the doctrine. As Professor Stein reported in a 1985 article, his research had “failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector principle—excepting of course the Asylum and Fisheries cases themselves.”

 

 

 

 

Asylum Case (Summary)

Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in brackets added).”

4. The court held that Columbia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian 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 or … that it 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. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, 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, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast’.)

6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Columbia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local government.”

10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of asylum. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “an imminent or persistence of a danger for the person of the refugee”. The court held that the facts of the case, including the 3 months that passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In principle, asylum cannot be opposed to the operation of justice.”

13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum. The court held that “protection from the operation of regular legal proceedings” was not justified under diplomatic asylum.

14. The court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. 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 constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.” 

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a Government might take or attempt to take against its political opponents… On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them… Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population.” (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection.”

NB: The court also discussed the difference between extradition and granting of asylum – you can read more on this in pp. 12 – 13 of the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18 – 19.

Additional reading (on diplomatic asylum/ also called extra territorial asylum):