Asylum

• Those cases where the territorial state decline to surrender a person to the
requesting state and provide shelter and protection on its own territory.
• Person enjoying asylum - Asylee

Elements of asylum
• Shelter - which is more than a temporary refuge.
• Protection - Protection by the authority in control.

Basis of Asylum
• A state has a sovereign right to control over the individual found on its territory.
• This right is exclusive since other states are excluded to exercise the jurisdiction over
the territory of other state.
• The right to grant asylum is not absolute.
• If a state concludes extradition treaties, there arises a legal obligation to surrender

them.
• States are not under duty to grant asylum to those who have planned, facilitated or
committed terrorist attack.
• Security Council Resolution 1373 - states that all state shall deny safe heaven to
those who finance, plan or support terrorism.

Reason for Asylum

• It is granted to save the person from jurisdiction of the local authority.
It is feared that he would not get a fair trial.
• A person may be granted asylum on humanitarian ground.
• National security also plays a role in granting asylum.
The offender who may be rebel today may become the ruler in future date.

Forms of
Asylum
I
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Extra-
Territorial Territorial
Territorial Asylum
• When asylum -is granted by a state on its territory- Territorial Asylum.
• Basis of Territorial Asylum -
State have jurisdiction over its territory.
State has the right to admit or expel any person found on its territory.
• Grant of asylum depends upon the discretion of the state.

General Assembly of the United Nations recommended

States in practice should do the following:
• When a person requests for asylum, his request should not be rejected or if he tries
to enter the territory ~f such State he should not be expelled from the frontier itself
but, when they come. in large. numbers the request for asylum could be reJecte
· d on
t h e ground of national security of its own people.

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 . t· g asylum it should adopt appropriate
. d•ff·
1 lty m gran m ' .
• If any State experiences ,cu f al duty through the medium of
measures by considering it as an i~terna ion '
individual states or the United Natiof n\. other States must respect such a
• When a State grants asylum to th e ugi ,ves,
decision of the State granting asylum.
.. I I . the case of defectors.
• Po I1t1ca asy um, in h O enuinely fear persecution or
• Refugee asylum in the case of persons w g
· · t,h · wn country· and finally
prosecution m eir O ' h fled their country for economic
• General Asylum, in the case of persons who ave
betterment and have no status of immigrants.

Extra Territorial Asylum

Asylum in Legation & Consulate . . . .
State W ·ithin its embassy situated m foreign countries.
• W hen Asy Ium grante db ya .
• It is also known as asylum in legation or diplomatic asylum.
• The head of the mission may grant asylum.
• But state is not under obligation to grant asylum.

Asylum in Warship . . . .
• Men of war and public vessels of foreign state, are exempted from local Junsd1ct1on
• Asylum may be granted on the ground of humanity.

Asylum in Merchant-Ship
• Merchant ships are not exempted from local jurisdiction.
• Asylum cannot be granted.

Nationality
• Individuals of a particular nations are supposed to owe allegiance to their states.
• Such individual who owe permanent allegiance to a state are known as nationals of a
person of a state.
• Nationality - The status of a natural person who is attached to a state by the tie of
allegiance.
• Nationality of a person is determined in accordance with the rule of municipal law.
• Nationality is the medium through which a individual can enjoy the benefit from IL
• A state exercises jurisdiction over its nationals travelling or residing abroad.
• It is also a goal of IL that each individual possesses atleast 1 nationality.

Nationality and Citizenship

• They are used interchangeably though they differ in many occasions.
• Nationality creates a legal relationship between state and individual under
International law.
• Citizenship denotes the relation between person and municipal law.
• In India Nationality and Citizenship are considered synonymous.
• The concept of citizenship is irrelevant to IL
• The Constitution of India provides only for Citizenship and does not speak of
Nationality.

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 Nationality and Domicile
• There is a lot of difference between nationality and domicile.
• Nationality denotes the relation of an individual with his country.
• Domicile indicates the residence of the individual.
• Domicile of a person means his permanent home.
• Domicile of origin of a person means domicile acquired by him at birth.

Mode of Acquisition of Nationality

1. By Birth
• Nationality is generally conferred to a person by many states on the basis of birth.
• All those persons whose birth takes place within territorial limits of a state.
• Acquires the nationality of that state.
• This principle is extended by some States to ships and aircrafts flying the flags of
those States.
• This principle is called jus soli.
Right of soil.
• UK, USA follow this principle

2. By Decent
• Nationality may also be acquired by a person on the basis of nationality of either
parents.
• A child may become a national of that state which his parents are national.
• This principle is jus sanguinis
Nationality is not determined by place of birth but by having one or both parent
citizens of that state.

3. By Naturalization
• When a person changes his nationality and acquires nationality of some other state.
• This process is called naturalization.
• A person may acquire nationality through naturalization when it is granted by a
state.

4. By Resumption
• A person may acquire nationality by naturalization of any other state.
• The person may again acquire the nationality of older state.
• This is called reintegration or resumption.

5. By Subjugation
• A person may acquire nationality through subjugation after conquest.
• When part _of the territory of a state or whole state is subjugated by another state.
• All the inhabitants of the subjugated territory become the national of the conquest
state. •

Mode of Loss of Nationality

1. By Release
• Some state give their citizens the right to ask to released from their nationality.
 • Release occur only when an application is made to that effect an accepted by the
state concerned

2. By Deprivation
• A national of a state may be deprived of nationality in case of certain happenings.
• Legislation of many state recognizes provides various grounds of deprivation.
• Eg-A citizen enters into foreign civil or military service without permission, he may
be deprived of his nationality.

3. By Renunciation
• A person may renounce/give up his nationality of state.
• It arises when a person acquires nationality of more than one state.

4. By Substitution
• A person may lose the nationality of a state when he acquires nationality in some
other state by naturalization.

Nationality and India

• The Constitution of India does not use the expression "Nationality!'.
• Instead used the expression "Citizenship".
• Part II of the Constitution deals regarding the citizenship.
• Article 11 expressly empower the legislature to enact a law on citizenship.
The Citizenship Act, 1955
 • It . Extradition
IS possible for a person to escape to another state after committing a crime.
• QueSt ion - Whether fugitive shall be tries in the country where he fled or where he
committed crime.
• A state find it difficult to punish a person who has committed a crime elsewhere due
to lack of jurisdiction.
• Person are sometimes surrendered to the state where he has committed the crime.
This is referred to as Extradition.

Definition
• Surrender of an accused or a convicted person by the state on whose territory he is
found to the state on whose territory he has committed the crime.
• Oppenheim - It is the delivery of an accused or a convicted individual to the state
where he is accused or convicted of a crime by the state on whose territory he
happens to be.
• Two state are involved-
Territorial State - state where convict or accused is found.
Requesting state - state where crime has been committed.
• Request is made normally through Diplomatic Channel.

Purpose of Extradition
• It is a process towards the suppression of crime .
It act as a warning to the criminals that they cannot escape punishment by fleeing to
•
another state.
• It safeguards the interest of the territorial state .
,.
• It is based on reciprocity .
• It is done to achieve international cooperation .
• Evidence is more freely available in requesting state .
It is mutually beneficial for all the state or international community as whole .
•

Extradition - a legal duty of a state

• Grotius - State of refuge has a duty either to punish the offender or to surrender
him to the requesting state.
• Vettal is of the same view. - regards extradition as a legal duty imposed upon state
by IL.
• Extradition has been expressed by
out dedre out puniore - Legal obligation of a state to prosecute person who commits
serious international crime where no state has requested extradition.
• in practice, the principle has not been followed by the States, and therefore, it could
not become a rule of International Law.
• In Modern times -A fugitive criminal is not surrendered in the absence of
extradition treaty.

Law on extradition
• Rule of Extradition is not well settled.
• It is not under exclusive domain of international law.
• Law of extradition is dual law.

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 • It has national as well as international operation. b h
• Extradition of a person is determined by municipal law of a state ut at t e same
time it governs the relationship of 2 states. . .
• A number of attempts has been made to conclude a convention governing
extradition but all failed.
• In absence of any multilateral treaty or convention, extradition is done by the states
on basis of bilateral treaty where provisions are made in accordance with municipal
law.
• A state may have National Legislation.
• India - The Extradition Act 1962.

Extradition Treaty
• The first and foremost important condition of extradition is existence of an
extradition treaty.
• UN General assembly adopted a model treaty on Extradition.
• In absence of any treaty a person may be extradited on the basis of reciprocity.
• India -
48 Extradition Treaty & 12 Extradition Arrangements.
Till now 75 fugitives have been extradited (Including deportation) to India
successfully.
Till now India has extradites 51 Fugitives to other countries.

Political Offence
• A political crime or political offence is an offence involving acts or omissions which
prejudice the interests of the state, its government, or the political system.
• It is customary rule of IL that political offenders are not extradited.
• They are generally granted asylum by the territorial state.
• Asylum - Person persecuted by their own country may be protected by another
sovereign authority.
• Dalai lama was given asylum by India
• During the days of monarchs, extradition of political offenders was very common.
• They used to prefer extradition so as to avoid intervention in the affairs of another
State.
• But the practice underwent a complete change with the beginning of the French
Revolution.
• Perhaps, for the first time, the French Constitution of 1793 under Article 120 made a
provision for granting asylum to those foreigners who exiled from their home
country for the cause of liberty.
• Later on, other States followed the principle of non-extradition of the political
offenders gradually.
• Indian Extradition Act of 1962 also lays down a similar provision under Section 31(a).
• At present, non- extradition of the political offenders has become a general rule of
International Law and therefore it is one of the exceptions of extradition.

Basis for the non-extradition of PO

• The rule is based on the elementary consideration of humanity. No state would
extradite a person if he is not a criminal.
 • If they are extr d't d .
• a I e , It 1s feared that they would not be treated fairly. .
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t a so protect PO from any measure of extra-legal character which the reque ,ng
st
st ate might attempt to take against them.
•
PO are not dangerous for the territorial state as may be in the case of ordinary
criminals.

Exception to PO Non - Extradition

• Genocide, attempt to commit genocide shall not be consider a political crime.
• Crimes such as war crimes and crime against humanity will not be consider as an
exception to extradition.
• Act relating to hijacking, torture or hostage taking, injury to diplomat and grave
breach of laws of war (Geneva Convention)
• Former government officer guilty of human rights abu~es. . .
• Indian Extradition Act 1962 has laid down comprehensive list of offences which sha 11
not be regarded as PO.

Doctrine of Double Criminality

• The doctrine of double criminality denotes that a crime must be an offence
recognized in the territorial as well as in the requesting State.
• No person is extradited unless this condition is fulfilled.
• The doctrine appears to be based on the consideration that it would offend the
conscience of the territorial State if it has to extradite a person when its own law
does not regard him a criminal.
• The requesting State would also not ask for the surrender of a person for those
crimes which are not recognized in its State.
• The doctrine thus satisfies double purpose.
• It helps the requesting State to enforce its criminal law, and to the territorial State in
the sense that the rule protects it from fugitive criminals.
• In order to ensure that a crime is recognized in both the States, a list of extraditable
offences is attached in the extradition laws of some States. But, generally, a list of
crimes is embodied in the treaties for which extradition is done.
• Article 2 of the model treaty states that extraditable offence under the law of path
parties by imprisonment for a minimum period of year or by more severe penalty.
• Crime Punishable by Death in Requesting State
Territorial state may hesitate to extradite a person whom death sentence would b
given, when its own law do not provide for the death sentence for that often e
ce.
In order to overcome the difficulty, the extradition shall be granted only whe th
. state gives
requesting . n e
an assurance t hat deat h penalty, if imposed, shall not be
executed.

Rule of Specialty
• According to this principle, a fugitive may be tried by the requesting St t
that offence for which he has been extradited. a e only for
• The requesting State is under a duty not to try or punish the fug· t·,v .
. 1
e
other offence than that for which he has been extradited, unless he has . cnrninal for any
opportunity to return to the territorial State. given an
 • The rule has been made to provide safeguard to the fugitives against fraudulent
extradition.

Prima Facie Evidence

• There should be prima facie evidence of the guilt of the accused.
• Before a person is extradited the territorial state must satisfy itself that there is a
prima facie evidence against the accused for which extradition is demanded.
• The purpose for laying down the rule of prima facie evidence is to check the
fraudulent extradition. The territorial State has to see that the demand is not
motivated by any political reasons.

Time barred Crime

• A fugitive criminal shall not be surrendered, if he has been tried and has served
sentence for the offence committed in territorial state.
• Extradition is not granted, if it has become time barred.

Extradition of Own National

• Many countries such as Belgium, Turkey Germany UAE, France have adopted a
principle for not extraditing their own nationals to a foreign country.
• National Judges are regarded as neutral Judges.
• Foreign Judges cannot be trusted.
• Some countries like USA, UK have favored.
• It depends upon the wordings of the extradition treaty.
• India adheres to the principle of extraditing its own nationals