Extradition and Asylum

By | May 30, 2018
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WHAT IS EXTRADITION?

Extradition is the conventional process in which a person is surrendered by one state to another on the basis of a treaty, or comity, or some bilateral arrangement between the two sovereign states. This request of extradition made by a sovereign state is usually initiated at first place because the individual demanded by the state is charged with a crime but not tried, or tried and convicted yet the accused escaped and reached the territory of the other sovereign state.

This process is also known as Rendition, which is handing over or surrendering of a convicted person or accused from one state jurisdiction to another where the accused is alleged to have committed a crime.

According to the norms of the International Law, there is a lack of a binding obligation on a state to surrender the accused demanded by another foreign state because the law upholds the principle of sovereignty which is about the right and full authority of the state over itself and its subjects without any intervention from foreign bodies.

In Black’s Law Dictionary, extradition has been defined as “The surrender by one state or Country to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.” Hence it can be summarised that Extradition is the act of sending a person from one jurisdiction to another where he/she is accused of committing a crime and is being demanded to get them tried as per the legal procedure in the sovereign demanding such person.

The purpose of extradition is to make sure that criminals are surrendered from one country to another which leads to mutual cooperation between states in control, prevention, and suppression of international and domestic criminality. At present in this era of globalization, where certain groups and individuals are conducting trade and business by various means and channels at an unprecedented manner, most of the crimes have become cross-border in nature & thus the obligation on part of the states to extradite has gained enough significance and value over the years.

In the Supreme Court case of Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra [(2011) 11 SCC 214], Justice Sathasivam was of the view that with the tremendous increase in the international transport and communication, extradition has taken prominence since the emergence of the 21st century.

LEGAL STATUS OF EXTRADITION: FROM INDIAN & INTERNATIONAL LAW PERSPECTIVE

As per the Indian Law, the extradition of an escapee or fugitive from India to another nation or vice versa is dealt by the rules laid down in the Extradition Act, 1962. This law forms the legislative basis for extradition in India. The Extradition act deals with two schedules and five chapters. The Government of India till date has entered into Bilateral Extradition treaties with 42 countries to make the extradition process efficient and hassle-free.

The term Extradition Treaty is defined as per Section 2(d) of the Extradition Act which explains it as, “a treaty, agreement or arrangement with a foreign state in the relation of extradition of fugitive criminals”.

Apart from this, our country has entered into extradition arrangement with 9 countries as well. Extradition request can be made by India to any country. The countries with which India has a treaty have the obligation to consider the request due to the treaty between the two countries.

In other cases where there is non-existence of a treaty, the foreign country may or may not accept the request and may subject it as per their domestic procedure and law.

Hence the obligation for extraditing is due to the treaties and arrangement entered into by India with other nations. It needs to be understood that an Extradition is a sovereign act and in cases where there is no treaty and absence of international duty between the two sovereign states, any sort of extradition activity is dependent upon the ideas of reciprocity and comity which are an essential part of the International principles of amicable cooperation between states or nations.

As per Section 3 of the Extradition Act, the government can issue a notification to extend the notifications of the act to the notified countries. The act further defines the ambit of what Extradition offenses are and who can be extradited as per Section 2(c) and Section 2(f) respectively.

As per the International Law conventions, a state is not under a binding obligation to surrender a fugitive to another sovereign state. There is no duty as such imposed by the International law on the states to extradite. Although there are certain basic principles governing the extradition process which are accepted and followed by several nations.

The principle of Dual Criminality:

Also known as the Principle of Dual Criminality, it is one of the most significant principles governing the law of extradition. It states that extradition process can only happen when the criminal act under scrutiny is an offense in both the jurisdiction of the sovereign states.

Rule of Speciality:

The idea behind this rule is to prevent blanket extradition demand made by the requesting state. The rule says that the fugitive who is extradited for a certain crime should be tried for that very crime and not some other. In the judgment given by the Apex court in the case of Daya Singh Lahoria vs. Union of India [(2001) 4 SCC 516], it was stated that a fugitive criminal brought in India under extradition treaty can only be tried for the offense provided in the extradition decree and not for any other offense. The Criminal courts in India cannot try such fugitive under any offense other than the one allowed for trial.

The principle of Proportional Punishment:

Extradition may be refused in cases where there is a possibility for the extradited individual to receive a punishment out of proportion or severe in form when compared to the degree of offense. This principle is specifically invoked in order to avoid violation of Human right norm accepted globally. Where there is a possibility of the death of the fugitive in the requesting state, such request is denied as per this principle to protect and avoid violation of Human rights norms internationally.

Opportunity for Fair trial:

Before the Extradition process is initiated by the requested state it is ensured that the fugitive will be given a chance to represent himself under a procedure of fair trial in the requesting state. This principle is read with the principle of non-inquiry, where the requesting state is under no obligation to subject its judicial procedures as per the punctilious evaluation criteria of the requested state. This principle isn’t absolute and rigid in nature but the requested state can question the judicial procedure in the requesting state if the same is on the face of it is against the principle of law and justice.

ASYLUM: MEANING, TYPES, and RATIONALE

Asylum is a Latin word and it derives its origin from a Greek word “Asylia” meaning inviolable place. The term asylum in common parlance means giving protection and immunity by a state to an individual from their native country. In day to day conversation, the term asylum is used interchangeably with the term refugee, there is difference between the two procedurally where a person who is still overseas seeks protection from a nation when given patronage after reaching there is given the title of a refugee whereas in asylum the person seeks the protection from a nation after reaching there and hence is known as asylee or asylum seeker.

Asylum is interpreted as a place of protection or refuge for a fugitive where he/she is given protection from trial and pursuit from their home country or to provide protection to a foreign citizen by a state against his own government. The main purpose of asylum is to give shelter to those who have well-rounded fear in their home countries of persecution. The Universal Declaration of Human Rights under article 14 (1), provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

The idea of Asylum remains that of personal immunity from authoritative steps of a decision maker than that of jurisdictional authority under whose power it falls. There are mainly two forms of Asylum:

(1) Territorial Asylum:

It is granted in the territorial boundary of a state providing asylum. Every sovereign state has the right to control and maintain jurisdiction on its territory, hence the decision to extradite someone or give them asylum is totally under its discretion. Thus a state has territorial sovereignty over all its subjects and aliens. This form of asylum is mainly given to people who have been accused of political offenses like sedition, treason, and espionage in their home country. Territorial asylum is based mainly on the national law of the sovereign.

(2) Extra-territorial Asylum:

This form of asylum is usually granted by a state beyond its state territory and usually at places which are not a part of its physical territory. In such case, a state providing asylum in its embassy established in a foreign state is called Diplomatic Asylum. Asylum may also be granted to asylee in Warships because they are exempted from the jurisdiction of the foreign state in whose water it is operating. Such warships are under the patronage of the Flag state. The same is not the case with merchant’s vessels as they are not immune to the provisions of international law. Hence, Extra-territorial Asylum is based on the framework of International Law Conventions.

The contemporary reasoning or rationale behind asylum must be understood via Rationae Materiae (Jurisdiction over subject matter) and Rationae Personae (Jurisdiction over a person). A sovereign state has the right to exclude the involvement or interference by another sovereign over its territory. This principle of sovereignty forms the basis for Territorial Asylum and by the very nature of this principle, it finds its extension to consulates, embassies, vessels, aircrafts belonging to the sovereign state.

In recent times, we have seen high profile individuals like Julian Assange and Edward Snowden seeking asylum under Ecuador and Russia respectively. In case if Julian Assange, the founder of WikiLeaks organization, he sought extraterritorial asylum under Ecuadorian Embassy after his extradition was approved by the UK to Sweden. Whereas, Edward Snowden after exposing NSA illegal spying program sought refuge under territorial asylum after entering the territory of Russia.

Rationae Personae explains that certain individuals due to immunity granted to them due to their position or capacity, are not under the jurisdictional control of a state which would otherwise have exercised jurisdiction over them due to territorial sovereignty. This form of special immunity is applicable to Diplomats, Heads of State, government officials on a certain mission etc.

LEGAL STATUS OF ASYLUM: NATIONAL AND INTERNATIONAL LEVEL

National and International law are the only two forms which support and govern the practice of Asylum. India which is home to one of the largest refugee population in South Asia has no specific law dealing with the issue of asylum and is yet to enact one.

Refugee and asylum seekers in India are subject to various non-specific laws like The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, Foreigners Order, 1948, and Passport Act, 1920. There is no mention of the term ‘refugee’ in any of the National laws and asylum seeker and refugees in India are subject to the definition of ‘Foreigner’ as a person who is not a citizen of India as per the laws mentioned above. These laws are used by the Indian government officials in order to deal with the intricacies arising out of the entry of refugees and asylum seekers in our country. Since there is no specific asylum policy in India, the government grants asylum on a case-to-case basis.

Congress MP Shashi Tharoor in the year 2015 introduced the Asylum Bill, 2015 which aimed to provide a legal basis to the issue of asylum in India. The bill is still pending and is yet to be taken up by the parliamentarians for consideration and evaluation.

In the International sphere, the body of laws governing Asylum are the 1951 United Nations Refugee Convention signed in Geneva and supplemented by its 1967 New York Protocol. The Geneva Convention along with the New York Protocol is considered as the Cornerstone of the International legal regime towards the protection and security of Refugees. The Convention Relating to the Status of Refugees, or 1951 Refugee Convention, is a UN treaty defining who a refugee is and sets out rights for the asylum seekers and the duties of the nation’s granting it.

Overall this treaty governs how states allowing asylum seeker and refugees in their territory should treat these people. India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol. Asylum is considered an International practice based on Human Rights which take the shape as a customary law with time because once it is found in some of the practices of the state without any legal basis, it creates an international obligation on the state to uphold this customary practice.

CORRELATION BETWEEN EXTRADITION AND ASYLUM

Extradition is mainly the surrendering of a fugitive by one state to another for the intention of criminal prosecution. This is a way of providing legal assistance between two sovereign states on the basis of some bilateral treaty or ad hoc agreement. Asylum, on the other hand, is about offering protection to those at risk of the legal framework operating in their home country. It is at times said that asylum ends where extradition initiates. Both of them are not identical and have procedural and functional differences which have evolved with time.

Extradition aims at securing criminal justice and denying safe haven to fugitive leading to a stable transnational criminal cooperation between the sovereign states. Whereas Asylum seeks to provide a safe and secure living for individuals on the run from their home country in order to avoid political persecution. Granting asylum is clearly distinguished from the order to refuse extradition even though the two can be intertwined at times because there can arise two possibilities where a person’s extradition might be sought when they are an asylee or they may apply for asylum at a time when they are being asked to extradite by their home country.

Any extradition request made to a state for an asylum seeker must be in compliance with the principle of non-refoulement in International law enshrined under article 33 of the 1951 Geneva Convention. The decision to extradite is left with the judicial authorities and the issue of asylum is dealt by the executive decision on practical and political grounds most of the times. These concepts are conflicting in nature and are not mirror image of one another which strive for their different goals and ideals. A request for asylum cannot be considered if there is an extradition case pending and the court of law, would not hear extradition case against an individual granted asylum in their country.


– Priyansh Yadav

(National Law University, Orrisa)


SOURCES:

  1. International Extradition, Bassiouni and M. Cherif
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  3. Asylum and International Law, S. Prakash Sinha
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