PUBLIC INTERNATIONAL LAW
Name of the Case: SADC Asylum Case (Asante/Gopenia)
Year of the decision: 2014
Court: SADC Tribunal
Legal Issues before the Tribunal:
1. Is Asante competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law? 2. Was Gopenia, as the territorial State, bound to give a guarantee of safe passage?
The Tribunal’s Decision:
As a point of departure, Article 38(1) UN Charter provides the sources of international law. The statute provides:
“The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply, international conventions, international custom and general principles of international law that are recognised by civilised nations.”
In order to enable the world court to apply any asserted rule of international law, it must be shown that it is the product of one, or more, of the three law creating processes; treaties, international customary law or the general principles of law recognised by civilised nations as enunciated by the provision above. The significance of this enumeration lies in its exclusiveness. In the Lotus Case (France V Turkey), the court stated that, the rules of law binding upon states emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.
In light of the Asylum Case (Colombia/Peru), the court enunciated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence and the territorial State has the right to give consent to this qualification. By consenting to the qualification of the offence, the territorial State is bound to grant asylum. In the instant scenario, Asante has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and...
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