Sunday, March 25, 2012

The Asylum Case | Columbia v. Peru case brief

The Asylum Case (Columbia v. Peru in ICJ 1950; p. 97)
  • Peru guy sought asylum in Columbian embassy in Lima. Peru rejected Columbia’s assertion of diplomatic asylum.
  • In L Amer, normally host states accepted diplomatic asylum in embassies.
  • Columbia tries to prove custom by using:
    • # of extradition treaties.
    • Cases where this has happened.
    • Montevideo Treaty (1993)---Columbia says the convention is codification of existing custom.
  • Columbia fails b/c Peru didn’t agree—no ratification of the Montevideo Treaty.
  • Ct takes a VERY positivist approach by saying, for custom to exist, Peru must accept this custom and the no ratification shows they don’t consent.
  • Ct seems to be rejecting custom as a source.
  • Persistent objector (p. 99, n. 3)—a state can remove itself from custom in this way—this is a very positivist view.
  • Mutharika: Thinks Columbia has better sources than Justice Gray in Paquete b/c Gray’s sources were so old.
  • How courts weigh evidence is subjective.

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