Extradition and Asylum
Module 14 to 16
Topics
Concept of extradition Basis and principles of extradition Meaning of Asylum and Rights
Extraterritorial and diplomatic asylum Indian legislation Judgments given by Indian courts
Concept of extradition
The term ‘extradition’ originates from two Latin words- ‘ex’ meaning ‘out’ and ‘tradium’
meaning ‘give up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning
“either extradite or prosecute”. As Oppenheim defined, “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 by the state on whose territory he happens
for the time to be”.
As Chief Justice Fuller observed in the case of Terlinden v. Ames (1902), “extradition is the
surrender by one nation to another of an individual accused or convicted of an offence
outside of its own territory and within the territorial jurisdiction of the other which, being
competent to try and punish him demands the surrender”. There are two states involved in
extradition- the territorial state and the requesting state. The “territorial state” is where the
accused or convict flees to escape the trial or punishment. On the other hand, the
“requesting state” is the one where the offence is or is allegedly committed. The requesting
state formally demands the surrender of the accused or convict through diplomatic
channels and in conformity with any treaty.
The philosophy behind extradition
The concept of extradition is based on the contention that an accused or convict can be tried
or punished with utmost efficacy at the place where the cause of action arose or the crime
took place. This is because it is much more advantageous to prosecute the offender in the
country where he committed the offence; for instance, procuring the relevant evidence is
more convenient in the country where the offence was committed than in any other
country. Also, such a country has a significant amount of interest in punishing the offender.
Moreover, the concept of state sovereignty kicks in while dealing with extradition. State
sovereignty refers to the ultimate authority of the concerned state over its own citizens and
territorial jurisdiction. So, technically speaking, no state is required or bound to hand over
to another state any person (either its own citizen or a non-citizen) currently present within
its territorial jurisdiction.
Purpose of extradition
- To prevent escape from punishment: Most fugitive convicts or accused persons run from
the competent jurisdiction to other countries hoping to escape from the impending
punishment for the offence they are convicted or accused of. Such unjustifiably motivated
accused persons or convicts should be extradited so that their offences may not go
unpunished.
- Extradition as a deterrence: Every successful extradition acts as a red flag to the criminals
intending or planning to flee from the territory of the juridically competent state. So,
extradition has a deterrent effect on criminals.
- To maintain peace in the territorial state: If the convicts or accused persons are not
extradited by the territorial state, it will send a wrong message to the criminals intending or
planning to escape from the territorial clutches of the juridically competent state. If the
territorial state refuses to extradite the convicts or accused persons residing within its
territory, it will further motivate more such persons to flee into it. Thus, such a country may
end up becoming a haven for international criminals, ultimately threatening the safety and
peace within its territory.
- To reciprocate diplomatic kindness: Extradition is also one of the best ways to reciprocate
the diplomatic support of the requesting state. It welds diplomatic ties between the
territorial and requesting states.
- To enhance international cooperation: The extradition through bilateral or multilateral
treaties on extradition act as examples of international cooperation in international dispute
resolution.
Principles of extradition
- Principle of Reciprocity: The principle of reciprocity is well-founded under various aspects
of international law. It provides that every act of favor, respect, benefit, or penalty that a
country bestows on the citizens or legal entities of another country should be returned
(reciprocated) in the same manner.
- Principle of Double Criminality: The principle of double criminality provides that the act
for which the accused person or convict is requested to be extradited by the requesting
state must be a crime in the territorial state as well.
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