Extradition and Asylum
INTRODUCTION:- Extradition and Asylum are two distinct concepts within public
international law that deal with the movement of individuals across borders. Extradition involves
the surrender of a person from one state to another to face criminal prosecution or serve a
sentence, while asylum grants protection to individuals who seek refuge from persecution or
threats to their life or freedom. These two concepts are often in tension, reflecting the delicate
balance between a state's sovereignty and its international obligations.
EXTRADITION IN PUBLIC INTERNATIONAL LAW:- Extradition is a legal process by
which one country formally requests the surrender of a fugitive located in another country. It is
governed by international treaties, customary law, and domestic legislation. Key principles and
legal provisions include:
1. Principle of Dual Criminality: Extradition is typically granted when the alleged offense is a
crime in both the requesting and requested states. This principle ensures that extradition does not
become a tool for political persecution.
2. Extradition Treaties: Many states have bilateral and multilateral extradition treaties that
outline the procedures and conditions for extradition. These treaties often contain provisions on
the types of offenses for which extradition is allowed.
3. Non-Extradition for Political Offenses: Most extradition treaties contain a provision
excluding extradition for political offenses. This principle prevents the abuse of extradition for
political reasons.
4. Prohibition of Extradition for Death Penalty Cases: Some states and treaties prohibit
extradition when the requested person may face the death penalty in the requesting state.
5. Rule of Specialty: The rule of specialty requires that the extradited person can only be
prosecuted or punished for the offenses for which extradition was granted, preventing arbitrary
prosecution for unrelated crimes.
Case Law:- One notable case involving extradition is the case of Julian Assange. The founder of
WikiLeaks faced extradition from the United Kingdom to the United States on charges related to
the publication of classified information. The case raised complex legal and human rights issues,
including concerns about freedom of the press and the treatment of whistleblowers.
ASYLUM IN PUBLIC INTERNATIONAL LAW:- Asylum is a form of protection granted by
a state to individuals who fear persecution in their home country. It is grounded in principles of
international law, including the 1951 Refugee Convention and customary international law. Key
principles and legal provisions include:
1. Refugee Status: The 1951 Refugee Convention defines who qualifies as a refugee and
outlines the rights and obligations of both refugees and states. A refugee is someone with a well-
founded fear of persecution based on race, religion, nationality, political opinion, or membership
in a particular social group.
2. Non-Refoulement: The principle of non-refoulement prohibits states from returning refugees
to their home countries where they would face persecution. This principle is considered
customary international law and is binding on all states.
3. Asylum Procedures: States have varying asylum procedures to assess claims for refugee
status. These procedures should be fair and provide applicants with the opportunity to present
their case.
4. Complementary Protection: In addition to refugee status, some states offer complementary
protection to individuals who do not meet the strict criteria of the Refugee Convention but still
face serious harm if returned to their home country.
Case Law:-
A prominent case in the context of asylum is the Edward Snowden case. Snowden, a former U.S.
intelligence contractor, sought asylum in Russia after leaking classified information about U.S.
government surveillance programs. This case raised questions about the balance between
national security concerns and the rights of individuals seeking asylum.
The 'Asylum Case' (Colombia v. Peru) before the International Court of Justice underscored the
importance of state sovereignty in asylum matters and clarified the distinction between asylum
for political persecution and asylum for common crimes. It remains a significant reference point
in the field of international asylum law.
THE TENSION BETWEEN EXTRADITION AND ASYLUM:-
The relationship between extradition and asylum is complex, often leading to diplomatic disputes
and legal challenges. Some key points of tension include:
1. Political Considerations: States may deny extradition requests on political grounds, arguing
that the requested person would not receive a fair trial or could face political persecution. This
can strain diplomatic relations between countries.
2. Human Rights: Extradition may be denied when there are concerns about the human rights of
the requested person, such as the risk of torture or inhumane treatment in the requesting state.
3. Dual Role of Asylum: In some cases, individuals wanted for extradition may also seek
asylum, arguing that they face persecution for political reasons or due to the nature of the charges
against them.
4. Legal Challenges: Legal challenges often arise when a state grants asylum to a person sought
for extradition. These challenges can involve complex legal arguments and may take years to
resolve.
CONVENTIONS AND TREATIES:- There are several international treaties and conventions
related to both extradition and asylum. These agreements help establish the legal framework for
the extradition of individuals wanted for prosecution or the protection of individuals seeking
asylum. Here are some of the most notable treaties and conventions related to these topics:
EXTRADITION TREATIES:-
1957 European Convention on Extradition:- This treaty governs extradition between European
countries and establishes common principles and procedures for extradition within the region.
Inter-American Convention on Extradition (1981):- This treaty facilitates extradition among
member states of the Organization of American States (OAS) and sets out the legal framework
for extradition within the Americas.
1981 United Nations Convention against Transnational Organized Crime (Palermo Convention):-
While primarily focused on combating organized crime, the Palermo Convention includes
provisions related to extradition, cooperation, and mutual legal assistance among its signatory
states.
ASYLUM TREATIES:-
1951 Refugee Convention:- This treaty defines who qualifies as a refugee and outlines the rights
and responsibilities of both refugees and the states that host them. It's the cornerstone of
international refugee law.
1967 Protocol Relating to the Status of Refugees:- This protocol removed geographical and
temporal restrictions from the 1951 Refugee Convention, making its provisions applicable to
refugees worldwide.
Cartagena Declaration on Refugees (1984):- Although not a treaty, this declaration is a
significant regional instrument in Latin America that expanded the definition of refugees to
include those fleeing "generalized violence," thereby offering broader protection.
1969 OAU Refugee Convention:- Focused on Africa, this convention addresses refugee issues on
the continent and contains provisions similar to the 1951 Refugee Convention.
European Convention on Human Rights (1950):- While not an asylum-specific treaty, the
European Convention protects the right to seek asylum and prohibits refoulement (the forced
return of refugees to places where they may face persecution).
UNHCR Statute (United Nations High Commissioner for Refugees):- This instrument establishes
the UNHCR and outlines its role in providing international protection and assistance to refugees.
These treaties and conventions help regulate the extradition and asylum processes at the
international level, ensuring that they are conducted in accordance with established principles
and standards. It's important to note that each country may have its own bilateral extradition
agreements and domestic asylum laws in addition to these international instruments.
DISTINCTION BETWEEN EXTRADITION AND ASYLUM:- Extradition and asylum are
two distinct legal concepts with different purposes and implications:
1. Purpose: The purpose of extradition is to facilitate the transfer of a person from one state to
another for the purpose of facing criminal prosecution or serving a sentence. It is typically used
when a person has committed a crime in one country and seeks refuge in another. Asylum, on the
other hand, is a form of protection granted by a state to individuals who fear persecution, harm,
or threats to their life and freedom in their home country. It is a humanitarian act that provides
refuge to those seeking safety
2. Process: Extradition involves formal legal procedures where one country requests the
surrender of a fugitive from another country. This often requires bilateral or multilateral
extradition treaties, as well as compliance with specific legal criteria. Asylum is a request made
by an individual to the authorities of a country, expressing their fear of persecution or danger in
their home country. The asylum process typically includes interviews, assessments, and legal
proceedings to determine eligibility.
3. Decision-Making: The decision to extradite is made by the requested state, which may grant
or deny the request based on various factors, including its domestic laws, the seriousness of the
alleged crime, and any political or human rights considerations. The decision to grant asylum is
made by the asylum-granting state based on criteria established by international law. It involves
an assessment of whether the individual meets the legal definition of a refugee and faces a well-
founded fear of persecution.
4. Legal Basis: Extradition is governed by international treaties, customary international law,
and domestic legislation. These agreements outline the conditions and procedures for extradition.
Asylum is primarily based on international agreements like the 1951 Refugee Convention and its
protocols, as well as customary international law. These agreements define who qualifies as a
refugee and set out the rights and obligations of both refugees and states.
5. Outcomes: The outcome of extradition is the transfer of the individual to the requesting state
to face prosecution or serve a sentence, assuming the request is granted. The outcome of asylum
is the granting of protection to the individual, allowing them to live in the asylum-granting
country without the risk of being returned to their home country where they fear persecution.
