STUDY MATERIAL

PUBLIC INTERNATIONL LAW

SYLLABUS

MODULE---I

Introduction and Sources

1. Nature and Scope of International Law
2. Definitions of International Law
3. International Conventions and Customs
4. General Principles of International Law, Judicial Decisions and other sources
5. Relationship between International Law and Municipal Law

MODULE---II

State: Recognition and Responsibility

1. Subjects of International Law

2. Theories and Kinds of State Recognition
3. Consequences and Exceptions to Non-Recognition
4. Nature and Kinds of State Responsibility
5. Consequences of Internationally Wrongful Acts

MODULE---III

Diplomatic Relations and Law of Treaties

1. Meaning, Privileges And Immunities of Diplomats

2. Classification and Functions of Diplomats
3. Extraditions and Asylum
4. Making of Treaties and Reservations to Treaties
5. Amendments, Interpretation, Termination and Suspension of Treaties

MODULE---IV

International Institutions and Settlement of International Disputes

1. League of Nations
 2. United Nations; Preamble, Objects and Principles
3. Organs of United Nations
4. Role of United Nations in the development of International Law
5. Mechanisms for Settlement of International Disputes

STUDY MATERIAL

MODULE---III

Diplomatic Relations and Law of Treaties

1. Meaning, Privileges And Immunities of Diplomats

2. Classification and Functions of Diplomats
3. Extraditions and Asylum
4. Making of Treaties and Reservations to Treaties
5. Amendments, Interpretation, Termination and Suspension of Treaties

III MODULE
EXTRADITION AND ASYLUM

 UNDERSTANDING THE TERM OF EXTRADITION

 IS IT DIFFERENT FROM ASYLUM?
 DIFFERENCE BETWEEN EXTRA TERRITORIAL AND
TERRITORIAL ASYLUM.

 UNDERSTANDING THE TERM EXTRADITION

INTRODUCTION: - Each State exercises complete jurisdiction over all the
persons within its territory. But sometimes there may be cases when a person
after committing crime runs away to another country. In such a situation the
country affected finds itself helpless to exercise jurisdiction to punish the guilty
person. This situation is undoubtedly very detrimental for peace and order.
There is a social need to punish such criminals and in order to fulfil this social
necessity the principle of extradition has been recognised.
MEANING AND DEFINITION OF EXTRADITION:-
Extradition is the delivery of an accused or a convicted individual to the State
on whose territory he is alleged to have committed or to have been convicted of
a crime.
According to Starke, “The term extradition denotes the process whereby under
treaty or upon a basis of reciprocity one state surrenders to another at its request
a person accused or convicted of a criminal offence committed against the laws
of the requesting state.
According to Grotius:- “It is the duty of  each state either to punish the
criminals or to return them to the States where they have committed crime.”
Under International Law extradition is mostly a matter of bilateral treaty. In
principle each state considers it a right to give asylum to a foreign national, thus
there is no universal rule of customary international law in existence imposing
the duty of extradition. A famous case Music director Nadeem who was
accused of the murder of Gulshan kumar. Nadeem fled to Britain. Lack of
providing sufficient evidence England refused to extradite Nadeem.
                  
 IS EXTRADITION IS DIFFERENT FROM ASYLUM
There is a great difference in between extradition and Asylum.  Extradition
means delivery of an accused or a convicted individual to the state on
whose territory he is alleged to have committed or have been convicted of a
crime whereas in Asylum the active protection extended to a political
refugee from another state by a state which admits him on his request.
DIFFERENCE BETWEEN EXTRA TERRITORIAL & TERRITORIAL
ASYLUM:- In the asylum case Colombia v/s Peru, ICJ-1950.

           Extra territorial Asylum          Territorial Asylum

In case of diplomatic asylum the The refugee is within the territory of

refugee is within the territory of the the state of refuge
state where the offence was
committed.
Territorial asylum is granted by a State
Grant of diplomatic asylum involves a in its own territory.
derogation from the sovereignty of that
state.
Every state has right in the exercise of
It withdraws the offender from the its sovereignty to admit into the
jurisdiction of the territorial state and territory such persons as it deems
constitutes an intervention in matters advisable without exercising the
which are exclusively within the Declaration of Asylum.
competency of the state.
The grant of territorial asylum is an
Grant of extra territorial asylum is incident of territorial sovereignty
rather a derogation from the itself.
sovereignty.
Each state has a plenary right to grant
Right to grant extra-territorial asylum territorial asylum unless it has
is exceptional and must be established accepted some particular restriction in
in each case. this regard.
ANOTHER ARTICLE ON EXTRADITION

THE CONCEPT OF 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: INDIAN AND

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.

BASIC PRINCIPLES OF EXTRADITION:

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

INTRODUCTION:
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”.

KINDS OF ASYLUM:
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.