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International Law: Exploring Extradition, Asylum, and Their Intersections

This article investigates the notion of extradition under international law, its general principles, and Indian extradition legislation. In addition, it discusses the idea of asylum in relation to international law. It also discusses the connection between asylum and extradition.

Concept Of Extradition Under International Law

The word "extradition" comes from the Latin where "ex" means "out" and "tradition" means "delivery"; used together, they mean "delivery of a criminal." Extradition is the process through which a territorial state turns over a person who fled to another state after committing a crime in its own territory.

According to Oppenheim, The act of delivering an accused or convicted person to the state where they are accused of, or have been found guilty of, a crime by the state whose territory they happen to be at the time, is known as extradition.

Extradition is not totally subject to international law. The states' municipal courts control whether an individual may be extradited or not. Simultaneously, international law controls the connection between the territorial state and the requesting state based on whether that individual would be turned over by the state to another state; as a result, extradition laws are not well defined under international law. Thus, many concepts of extradition arose from treaties between two state entities, or bilateral treaties, as well as from court precedents and state national laws.

General Principle Of Extradition

International extradition proceedings are governed by a number of broad concepts. Some of the highlighted ones are listed below:

  • Rule of Speciality: This concept allows the requesting state to bring charges against a fugitive based only on the offence for which he was extradited. This implies that a state has a duty to refrain from prosecuting an extradited individual for any other crime. They eventually offer the fugitive protection against unauthorized extradition.
  • Double Criminality: Extradition is often permitted only if the offence is committed within the jurisdiction of both states, i.e., the asking and the requested state.
  • 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 that extradition is demanded by the requesting state.
  • Non-extradition of Political criminals: Extradition of political criminals is prohibited under customary international law, which is founded on the principle of humanity. The d'attentat clause, however, specifies that assassinations of leaders of state or government should not be regarded as political offences, and such victims may be extradited.
  • A person who has committed a military crime or a religious crime cannot be extradited.

Purpose Of Extradition
The primary goal of extradition is to have the deterrent effect of ensuring that no criminal escapes justice. Additionally, extraditing fugitives ensures that their crime is not unpunished and is a step towards curtailing offences. Moreover, the basis of extradition is reciprocity, which implies that the state making the request may eventually become the territorial state in future.

Indian Law On Extradition
India has bilateral treaties with about thirty-eight nations, including the United Kingdom, the United States of America, Germany, and others. The Extradition Act, 1962, is an Indian statute that sets forth the rules and processes for extraditing fugitives from India to other nations and vice versa.

Factor v. Laubenheimer 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.
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.

Frauds have caused the banking and financial industry in India to lose ₹41,000 crores. The cases of Vijay Mallya and Nirav Modi are two recent instances of those who are presently going through the extradition procedure.

Concept Of Asylum Under International Law
Concept of Asylum:
The Latin term "asylum" comes from the Greek word "asylia," which means "inviolable place." As a result, it claims to be a state-granted shelter and active protection to a person seeking such safety and protection on its territory. Asylum is invoked when the territorial state refuses to transfer a person to the requesting state and gives refuge and protection in his own state.

Asylum grants are recognized as sovereign rights of a state under Article 1 of the 1974 General Assembly Draft Convention on Territorial Asylum.

As other nations have laws regarding immigration and asylum-seeking, India also has laws dealing to these topics. The Citizenship Amendment Act, which addresses refugees, was recently introduced in India.

Reasons for Asylum:
A state gives someone asylum for the following main reasons:
  • First and foremost, to protect an individual from an unjust trial in the event of extradition due to disagreements with their political and religious beliefs.
  • Second, asylum is given to avoid further human rights breaches on extra-legal or humanitarian grounds, in order to protect political offenders from the violent acts of irresponsible members of the community.
  • Thirdly, the decision to grant refuge is significantly influenced by national security. The perpetrator who is a rebel now may become the ruler in the future. If he gets extradited in that scenario, the relationship would be strained
Dalai lama's Asylum, in 1959, Asylum granted to Dalai Lama and other 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.

Nexus Between Asylum And Extradition

The extradition procedure differs from the usual practice of granting asylum by the state. Consequently, the state uses the extradition process in situations when the custom of giving asylum is not followed. However, Extradition and Asylum intersect and overlap in some ways. For example, when determining whether a refugee or asylum-seeker can be lawfully extradited, the state must make a decision that adheres to the principle of non-refoulment, as guaranteed by Article 33 of the 1951 Convention and customary international law.

While the primary goal of asylum is to provide a safe haven for a person who is fleeing political persecution or tyranny, extradition aims to protect criminal justice. 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 treaties.

  • Sibylle Kapferer, The Interface between Extradition and Asylum, PPLA/2003/05, (May 30, 2021, 9:30 PM),
  • Factor v. Laubenheimer, (1993) 280 US 276
  • Roshni Bagai, Extradition Laws, Processes and recent Developments, Latest (May 26, 2021, 8:30 PM),
  • Debalina Chatterjee, Extradition and Asylum: Concept and Important Case Laws, Legal Bites (May 27, 2021, 9:00 PM),

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