国际贸易法教学案例英文.doc

Case Analysis for International Trade Law 国际贸易法教学案例国际贸易法教学案例 （（Revised Edition）） （修订版）（修订版）School of International law Northwest University of Political Science these questions were set out in an Application submitted by Colombia and in a Counter-Claim submitted by Peru.In its Judgment, the Court, by fourteen votes to two, declared that Colombia was not entitled to qualify unilaterally and in a manner binding upon Peru the nature of the offence; by fifteen votes to one, it declared that the Government of Peru was not bound to deliver a safe-conduct to the refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian contention that Haya de la Torre was accused of common crimes; the Court noted that the only count against Haya de la Torre was that of military rebellion and military rebellion was not, in itself, a common crime. Lastly, by ten votes to six, the Court, without criticising the attitude of the Colombian Ambassador in Lima, considered that the requirements for asylum to be granted in conformity with the relevant treaties were not fulfilled at the time when he received Haya de la Torre. Indeed, according to the interpretation which the Court put upon the Convention of Havana, asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law.Comments: Colombia maintained before the Court that, according to the Convention in force - the Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum the Montevideo Convention of 1933 on Political Asylum - and according to American International Law, she was entitled to qualify the nature of the offence for the purposes of the asylum. In this connection, the Court considered that, if the qualification in question were provisional, there could be no doubt on that point: the diplomatic representative would consider whether the required conditions had been satisfied, he would pronounce his opinion and if that opinion were contested, a controversy would then arise which might be settled according to the methods provided by the Parties.But it resulted from the proceedings in the case that Colombia claimed the right of unilateral and definitive qualification binding upon Peru. The first of the Treaties which it invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in one Article to recognizing the institution of asylum in accordance with the principles of international law. But these principles do not entail the right of unilateral qualification. On the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not possible to deduce from them conclusions concerning diplomatic asylum. In the case of extradition, the refugee was on the territory of the State of refuge: if asylum were granted to him, such decision would not derogate from the sovereignty of the States in which the offence was committed. On the contrary, in the case of diplomatic asylum, the refugee was on the territory of the State in which he had committed the offence: the decision to grant asylum derogated from the sovereignty of the territorial State and removed the offender from the jurisdiction of that State.As for the second treaty invoked by Colombia - the Havana Convention - it did not recognize the right of unilateral qualification either explicitly or implicitly. The third treaty - the Convention of Montevideo - had not been ratified by Peru and could be invoked against that country.Finally, as regarded American international law, Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law.It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru.Colombia also maintained that Peru was under the obligation to issue a safe-conduct to enable the refugee to leave the country in safety. The Court, setting aside for the time being the question of whether asylum was regularly granted and maintained, noted that the clause in the Havana Convention which provided guaranties for the refugee was applicable solely to a case where the territorial State demanded the departure of the refugee from its territory: it was only after such a demand that the diplomatic Agent who granted asylum could, in turn, require a safe-conduct. There was, of course, a practice according to which the diplomatic Agent immediately requested a safe-conduct, which was granted to him: but this practice, which was to be explained by reasons of expediency, laid no obligation upon the terri。