EXTRADITION AND ASYLUM

INTRODUCTION

This article examines the concept of extradition under international law, its general principle and Indian Extradition law. Moreover, it covers the concept of asylum under International Law. Furthermore, it also talks about the nexus between extradition and asylum.

CONCEPT OF EXTRADITION UNDER INTERNATIONAL LAW

Extradition has a Latin origin where ‘ex’ means ‘out’ and ‘tradition’ means ‘delivery’, as a whole it may mean “delivery of a criminal”. A person, who escaped to another state after committing an offence in his own state, the surrender of that individual by the territorial state to the requesting state is known as Extradition.

According to Oppenheim, “Extradition is the delivery of an accused or a convicted individual to the State where he is accused of or has been convicted of, a crime, by the State on whose territory he happens for the time to be”.

Extradition does not entirely come under the realm of international law. As the municipal courts of the states regulate the extradition and non-extradition of san individual. Simultaneously, international law governs the relationship between the territorial state and requesting state on the ground of whether that individual will be handed over by the state to another state, owing to this, rules regarding Extradition is not well established under International Law. Hence, A treaty between two state entities i.e., Bilateral treaties, Precedents of courts and national laws of states evolved certain principles of Extradition.

GENERAL PRINCIPLE OF EXTRADITION

There are several general principles applied to extradition cases internationally. Some of the highlighted ones are following:

• Rule of Speciality: As per this principle, the requesting state can prosecute a fugitive solely on the basis of the offence for which he has been extradited. This means a state is under the obligation of not trying an extradited person under any other offence. Which ultimately provide a safeguard to the fugitive against unlawful extradition.
• Double Criminality: Generally, Extradition is granted only if the offence is done under the jurisdiction of both the states i.e., requesting as well as the requested state.[1]
• Time-Barred crimes: The territorial state will not surrender the fugitive, if he has already been tried by the territorial state under the same offence, the extradition is demanded by the requesting state.
• Non-extradition of Political criminal: under customary international law, political offenders are not extradited and this rule is based on considerations of humanity. However, the d’attentat clause states that murders of heads of governments or states will not be considered as a political crime and they can be extradited for such a crime.
• Extradition is not allowed of a person who has committed a Religious as well as Military Crime.

PURPOSE OF EXTRADITION

The chief purpose of extradition holds a Deterrent Effect that punishment spares no criminal. Moreover, it’s a step towards Curtailing offences, Fugitives are extradited so that their crime may not go unpunished. Furthermore, Extradition is based on Reciprocity, which means the requesting state can become the territorial state in future.

Indian Extradition law

India has entered into bilateral treaties with approximately thirty-eight countries namely Germany, the united kingdoms, the united states of America, etc., India has its act, The Extradition Act, 1962, which governs the laws and procedure of the extradition of fugitives from India to another country and vice versa.

CASES

1. Factor v. Laubenheimer[2] laid down that there is no universally recognised practice that there can be no extradition except under a treaty, for, some countries grant extradition without a treaty.
2. Abu Salem’s Extradition Case, even though India and Portugal don’t have an extradition treaty with each other, When Abu Salem fled to Portugal after the Mumbai blast, Portugal extradited Abu Salem along with his wife to India.

The banking and finance sector of India has suffered a loss of ₹41,000 crores resulting from frauds. Recently, the Cases of Nirav Modi and Vijay Mallya are the prime examples of, who are currently facing the extradition process.[3]

CONCEPT OF ASYLUM UNDER INTERNATIONAL LAW

Concept of Asylum:

The word asylum is Latin and derives from the Greek word ‘Asylia’ which means inviolable place. Hence, it purports it as a refuge and active protection granted by a state to a person seeking such a refuge and protection on the territory under its control. Asylum comes into the picture when the territorial state declines to surrender a person to the requesting state and provide shelter and protection in his state.

The Draft Convention on Territorial Asylum adopted by General Assembly in 1974 has recognised under Article 1 that the grant of asylum is a sovereign right of a state.

India has laws pertaining to Asylum-seeking and immigration, as different countries have their laws with respect to this subject. Recently, In India, Citizenship Amendment Act came up with regards to Refugees.

Reasons for Asylum:

A state grants Asylum to a person due to some chief reasons:

Firstly, to save a person from an unfair trial, if extradited, because of difference of opinions in relation to his religious and political pursuits.

Secondly, Asylum is granted for preventing other human rights violations, on extra-legal grounds or Humanitarian grounds to protect political offenders against the violent actions of irresponsible sections of the population.

Thirdly, National security also plays an important role in granting asylum. The offender who may be a rebel today may become the ruler on a future date. In that case, the relationship would be strained if he is extradited.

Case:

1. Dalai lama’s Asylum, in 1959, Asylum granted to Dalai Lama and others Tibetans by India resulted in strained relations between India and China. India on the other hand was competent enough to grant asylum because of the principle of territorial sovereignty.[4]

NEXUS BETWEEN EXTRADITION AND ASYLUM

The extradition process is opposite to the traditional practice grant by the state i.e., Asylum. Therefore, in cases where the traditional practice of granting Asylum is not followed, there the state follows the procedure of extradition. However, Extradition and Asylum intersects and overlaps in some ways, like, while determining whether a refugee or an asylum-seeker may be lawfully extradited the state must come up with the decision which must comply with the principle of non-refoulment, as guaranteed under Article 33 of the 1951 convention and customary international law.[5]

CONCLUSION

The main objective of Extradition is to secure criminal justice whereas, Asylum seeks to provide shelter and secure living to the individual who is on the run, to avoid political persecution/oppression. As the former and latter, both in the political act of the state, it varies from state to state, based upon their internal and external policies and the treaties.

Author(s) Name: Aditi Arora (Student, Maharaja Agrasen Institute of Management studies, IPU, Delhi)

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[1] Sibylle Kapferer, The Interface between Extradition and Asylum, PPLA/2003/05, UNHCR.org (May 30, 2021, 9:30 PM), https://bit.ly/3fYKqlm.

[2] Factor v. Laubenheimer, (1993) 280 US 276.

[3] Roshni Bagai, Extradition Laws, Processes and recent Developments, Latest Laws.com, (May 26, 2021, 8:30 PM), https://bit.ly/34zz6Xn.

[4] Debalina Chatterjee, Extradition and Asylum: Concept and Important Case Laws, Legal Bites (May 27, 2021, 9:00 PM), https://www.legalbites.in/extradition-and-asylum.

[5] Sibylle, supra note 1.