1.

Nationality- book
2. Extradition- ipleaders
3. Diplomatic agents -ipleaders
4. Asylum

What is Asylum?
Asylum is a legal protection granted by a state to foreign nationals
who have fled their home countries due to persecution, war or other
serious threats to their lives and freedom. The term “asylum” is
derived from the Greek word “asylon,” meaning “inviolable place.”
In essence, asylum offers a safe haven for individuals who cannot
return to their countries of origin because they face the risk of
persecution based on race, religion, nationality, membership in a
particular social group or political opinion.

Under international law, asylum is not just a humanitarian gesture

but also a legal obligation for states that are party to various
international treaties, such as the 1951 Refugee Convention and its
1967 Protocol. These treaties establish the rights of asylum seekers
and refugees, as well as the responsibilities of states to protect
them. The right to seek asylum is also enshrined in Article 14 of the
Universal Declaration of Human Rights, which states that “everyone
has the right to seek and to enjoy in other countries asylum from
persecution.
UNHCR Definition:
"Asylum is the protection granted by a state to a person who has
left their country and is unable or unwilling to return due to a well-
founded fear of persecution."
🔹 Montevideo Convention on Political Asylum (1933):
Defines asylum as the protection given to political offenders and
persons persecuted for their beliefs or actions

Types of Asylum in International Law

Asylum can be categorised into different types based on where and how it is granted.
The main types of asylum recognised in international law include territorial asylum,
extraterritorial asylum, diplomatic asylum and temporary asylum. Each type has its
own legal basis, procedures and implications.
Territorial Asylum
Territorial asylum is the most common form of asylum and is granted within the
territory of the state offering protection. This type of asylum is grounded in the
principle of state sovereignty, which allows a state to control who enters and resides
within its borders. Territorial asylum is typically granted to individuals who have
already entered the host country, either legally or illegally and are seeking protection
from persecution in their home country.
Legal Basis
The legal foundation for territorial asylum is found in various international treaties
and conventions, including the 1951 Refugee Convention and its 1967 Protocol.
Article 33 of the Refugee Convention, known as the principle of non-refoulement,
prohibits states from returning refugees to territories where their lives or freedom
would be threatened. This principle underpins the practice of granting territorial
asylum, ensuring that individuals at risk of persecution are not forcibly returned to
their home countries.
Examples
One of the most notable examples of territorial asylum is India’s decision to grant
asylum to the Dalai Lama and his followers in 1959. Fleeing persecution by the
Chinese government, the Dalai Lama and thousands of Tibetans were welcomed into
India, where they were granted protection and allowed to establish a government-in-
exile.
Extra-Territorial Asylum
Extraterritorial asylum, also known as diplomatic or consular asylum, is granted
outside the territory of the state offering protection. This type of asylum is typically
provided within the premises of a state’s embassy, consulate or aboard its warships.
Extraterritorial asylum is less common than territorial asylum and is often
surrounded by diplomatic sensitivities, as it involves offering protection on foreign
soil.
Diplomatic Asylum
Diplomatic asylum is a form of extraterritorial asylum granted within the premises of
a state’s diplomatic mission, such as an embassy or consulate, in a foreign country.
This type of asylum is typically offered to individuals who face imminent danger and
cannot safely leave the host country. Diplomatic asylum is not universally recognised
under international law and is often a contentious issue between states.
Legal Basis
Diplomatic asylum is primarily based on the principle of inviolability of diplomatic
premises, as established by the Vienna Convention on Diplomatic Relations (1961).
According to this principle, the premises of a diplomatic mission are considered the
territory of the sending state and local authorities cannot enter without permission.
However, the granting of diplomatic asylum is not explicitly recognised in
international law and its legitimacy depends on the specific circumstances and the
relations between the involved states.
Examples
One of the most famous cases of diplomatic asylum is that of Julian Assange, the
founder of WikiLeaks, who sought refuge in the Ecuadorian Embassy in London in
2012. Assange was granted asylum by Ecuador to avoid extradition to Sweden, where
he faced allegations of sexual misconduct and potentially to the United States, where
he was wanted for publishing classified documents.
Asylum in Warships
Another form of extraterritorial asylum is granted aboard a state’s warships. This type
of asylum is rare and is usually offered in cases of extreme danger, where the
individual cannot safely disembark in a foreign port. The granting of asylum on
warships is based on the principle that a warship is considered an extension of the
state’s territory, even when it is in international waters or a foreign port.
Legal Basis
The legal basis for granting asylum on warships is derived from the principle of
sovereign immunity, which protects a state’s warships from the jurisdiction of foreign
states. However, the practice of granting asylum on warships is not explicitly
regulated by international law and is typically governed by customary practices and
bilateral agreements between states.
Examples
A notable example of asylum granted on a warship occurred in 1986 when a group of
Chinese students sought refuge aboard the USS Midway, a U.S. Navy aircraft carrier,
during the Tiananmen Square protests. The students were later allowed to
disembark in a safe third country, avoiding persecution in China.
Temporary Asylum
Temporary asylum is a provisional form of protection granted to individuals who are
fleeing immediate danger but may not qualify for full refugee status. This type of
asylum is typically granted in situations of mass displacement, such as during armed
conflicts or natural disasters, where the host country provides shelter until it is safe
for the individuals to return home.
Legal Basis
The legal framework for temporary asylum varies by country and is often based on
domestic laws and regulations. While temporary asylum is not specifically addressed
in international treaties, it is recognised as a humanitarian measure that allows states
to respond to urgent situations without committing to long-term protection.
Examples
During the Syrian Civil War, many European countries granted temporary asylum to
Syrian refugees fleeing the conflict. This form of protection allowed Syrians to stay in
host countries until the situation in their home country stabilised, with the
understanding that they would return once it was safe to do so.
Conclusion
Asylum is a vital mechanism in international law that provides protection to
individuals facing persecution, conflict or other serious threats. The various types of
asylum—territorial, extraterritorial, diplomatic and temporary—each serve different
purposes and are governed by different legal principles. While territorial asylum is
the most common and widely recognised form, extraterritorial and diplomatic
asylum are more complex and often involve delicate diplomatic considerations.

Right of asylum
The right of asylum is a fundamental component of international human rights and
refugee law, referring to the ability of individuals to seek and receive protection
from a foreign state when facing persecution or danger in their own country.
While individuals have the right to seek asylum, the grant of asylum remains a
sovereign right of states, exercised at their discretion. This creates a legal and
 humanitarian tension between state sovereignty and the universal protection of
human rights.
Definition of the Right of Asylum
Although not universally defined in a binding treaty, it is recognized in various legal
instruments and scholarly works:
 Universal Declaration of Human Rights (1948), Article 14(1):
“Everyone has the right to seek and to enjoy in other countries asylum from
persecution.”
 Oppenheim’s International Law:
“Asylum is the protection which a state grants to foreigners against their own state.”
 UNHCR:
Defines asylum as protection given by a country to people fleeing persecution in their
home country, usually under the 1951 Refugee Convention.

✅ IV. Nature of the Right of Asylum

The right of asylum involves a dual perspective:
A. Individual Right (Right to Seek Asylum)
 Every person has the right to seek asylum, i.e., request protection from another
state.
 This right is grounded in human dignity and non-discrimination.
 However, there is no absolute right to be granted asylum.
B. State Right (Right to Grant or Refuse Asylum)
 Asylum is an expression of state sovereignty.
 States are free to determine:
o Who may enter and stay in their territory.
o Whether or not to grant asylum.
o What legal status is given to the asylee.

✅ V. Sources of the Right of Asylum

A. International Human Rights Law
 UDHR (1948) – Article 14
 International Covenant on Civil and Political Rights (ICCPR) – indirectly supports
asylum through rights to life and freedom from torture.
B. Refugee Law
 1951 Refugee Convention & 1967 Protocol
o Defines who is a refugee.
o Establishes non-refoulement (Article 33):
No refugee shall be returned to a country where they face threats to life or freedom.
o Does not create an obligation to grant asylum, but limits actions states can
take (i.e., they cannot send refugees back to danger).
C. Customary International Law
 The principle of non-refoulement is widely accepted as customary international law,
binding even on non-signatory states.
D. Regional Instruments
 European Union Charter of Fundamental Rights (Article 18)
 American Convention on Human Rights (Article 22)
 African Charter on Human and Peoples’ Rights

✅ VI. Key Principles Underlying the Right of Asylum

1. Non-Refoulement
 A core principle in international refugee law.
 Prohibits the expulsion or return ("refoulement") of a person to a country where:
o They face threats of persecution, torture, or death.
 This principle is absolute and non-derogable under international law.
2. Sovereignty of States
 States have the exclusive right to grant asylum and control entry to their territory.
 But this is limited by international obligations, particularly non-refoulement.
3. Humanitarianism
 Asylum is a humanitarian measure, often granted when states are committed to
international solidarity and human rights.

VIII. Key Case Law

🔹 Asylum Case (Colombia v. Peru, ICJ 1950)
 Colombia granted diplomatic asylum to a Peruvian rebel.
 ICJ held that there is no general rule of diplomatic asylum in international law
unless provided by treaty.
🔹 Soering v. United Kingdom (ECHR, 1989)
 Court ruled that extraditing a person to the US would breach Article 3 of the
European Convention (inhuman treatment) due to the “death row phenomenon.”
🔹 East African Asians v. United Kingdom (1973)
 UK’s immigration policy discriminating based on race violated human rights;
strengthened protection of asylum seekers against arbitrary discrimination.
Contemporary Relevance & Challenges
 Asylum Crisis in Europe: 2015 Syrian refugee crisis highlighted the need for burden-
sharing and clearer EU asylum policies.
 Afghanistan and Taliban: Many Afghans seek asylum due to the threat posed by the
Taliban regime, especially women and minorities.
 Controversial Reforms: Some countries are tightening asylum procedures or
outsourcing processing (e.g., UK–Rwanda agreement), raising legal and ethical
concerns.

Reasons
Main Reasons for Seeking Asylum
The following are the five Convention grounds for persecution that justify asylum
claims:

🔹 1. Persecution Based on Race

 Includes threats, discrimination, or violence due to racial identity, color, descent, or
ethnic origin.
 Examples:
o Rohingya Muslims in Myanmar.
o Ethnic minorities during Apartheid in South Africa.

🔹 2. Persecution Based on Religion

 Fear of punishment or harm for holding or expressing religious beliefs, or being part
of a minority faith group.
 Examples:
o Christians in parts of the Middle East.
o Uyghur Muslims in China facing forced labor and re-education.

🔹 3. Persecution Based on Nationality

 Harm targeted at individuals based on their national origin, even if they are citizens
of the persecuting state.
 Often overlaps with ethnic and racial persecution.
 Examples:
o Ethnic Tutsis in Rwanda during the genocide.
o Palestinians denied nationality rights and targeted in conflict zones.

🔹 4. Persecution Based on Membership of a Particular Social Group (PSG)

 A broad and evolving category. Includes groups sharing common traits that are:
o Immutable (cannot be changed), or
o Fundamental to identity or conscience.
 Recognized examples:
o LGBTQ+ individuals in countries where homosexuality is criminalized.
o Victims of gender-based violence (e.g., forced marriage, FGM).
o Caste-oppressed individuals in certain South Asian societies.
o Survivors of domestic violence with no state protection.

🔹 5. Persecution Based on Political Opinion

 Includes actual or perceived political beliefs or expressions that are critical of the
government or political system.
 Asylum may be granted to:
o Political dissidents.
o Human rights activists.
o Journalists persecuted for reporting on corruption.
 Examples:
o Pro-democracy activists fleeing authoritarian regimes.
o Opposition party members persecuted under military regimes.

✅ IV. Additional Non-Convention Reasons (Recognized in Practice)

 Though not explicitly listed in the 1951 Convention, many states and regional
instruments recognize other humanitarian or compelling circumstances:

🔹 6. Generalized Violence or Armed Conflict

 Refugees fleeing civil wars, armed conflicts, or widespread violence.
 Recognized under regional instruments like:
o Cartagena Declaration (1984)
o OAU Convention (1969)
 Examples:
o Syrians escaping the civil war.
o Sudanese fleeing civil strife in Darfur.

🔹 7. Torture, Inhumane or Degrading Treatment

 Even if not persecuted on Convention grounds, if returning a person would expose
them to torture or cruel treatment, asylum or protection may be granted under:
o UN Convention Against Torture (CAT)
o European Convention on Human Rights (ECHR, Article 3)

🔹 8. Gender-Based Persecution
 Often treated as a social group under the PSG category.
 Includes:
o Female Genital Mutilation (FGM)
o Honor killings
o Domestic violence where state fails to provide protection
o Denial of education or mobility (e.g., under Taliban rule)

🔹 9. Statelessness or Denial of Nationality

 Individuals denied citizenship rights or legal identity in their country.
 Risk arbitrary arrest, deportation, or discrimination.
 Example:
o Stateless Rohingya denied Burmese citizenship.

TREATIES
 Concept of Treaty
Article 2(1)(a) of the Vienna Convention defines treaty as “means an international
agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.”. Hence, treaties are essentially agreements entered into
through writing between parties to agree to a set of principles regarding any matter which
affects internationally. These are referred to as pacts and charters too. Mere statements,
declarations and stances made do not qualify as a treaty.
Treaties may be classified on basis of their objects, purpose or number of parties. There may
be political treaties defining a party’s allies or disarmament policies, administrative treaties
with the purpose of establishing and defining the functions of international organisations,
for example, the World Health Organisation. Commercial treaties regarding trade
agreements such as the such as the GATT, criminal treaties, human rights treaties, treaties
which even codify international law, and civil treaties are some of the classifications based
on the object.
Generally, unless a country ratifies a treaty or becomes a signatory, there is no legal
obligation of abiding by the treaty terms. This concept has been referred to by the Latin
maxim, “pacta sunt servanda” which states that every signatory is bound to follow the treaty
obligations in good faith. Pacta sunt servanda forms the basis of treaty law which is
recognised under Article 26 of the Convention. The exception to this was laid down in the
North Sea Continental Shelf Cases[1] where the ICJ held that certain treaties have a
fundamentally norm-creating character. This essentially means that treaties define such
conduct, often pertaining to human rights, which binds states internationally.
While signatories are bound by all terms and provisions of the treaty, reservations may be
made, through which a signatory absolves itself from obligation of following certain specific
provision/s. A reservation against primary clauses which defeat the entire object of the
treaty cannot be made. Article 2(1)(d) defines reservations. The primary reasons for which
the provision of reservations is made are:
● To encourage states to become parties to the Convention
● To increase the number of ratifications
● Reservations are provided basically because of the various differences that exist between
states.
● As a principle to uphold of Sovereignty.
● To avoid conflict with domestic laws.
Role of treaties in International Law
Treaties are the essential source of international law. They are quintessential for establishing
diplomacy among member states and laying down ground rules of conduct. They foster
international peace, security and cooperation. The importance of treaties is also
ascertainable through the Preamble of the Vienna Convention of Law of Treaties by vesting
the guarantee of international order as the function of treaties.
Kinds of treaty
Law Making treaties
Law making treating create a binding legislation towards the parties. The sucject matter and
content of such a treaty is statutory and not a mere contract. Matters which affect states
internationally and require immediate laws to commonly bind the parties and address such
an issue by imposing international legal orders led to formation of law making treaties. Law
making treaties differ from others as they do not formulate mere rules left to the discretion
of the signatories. It creates mandatory obligations in the form of a statute. Hence, the
obligations defined by these treaties are independent without the need for a separate set of
rules to be followed. Another point of difference is that, law making treaties can set up
international tribunals, international mandates, international waterways etc.
Often these treaties are multilateral (more than two parties involved) and ave a common
object which affects globally. Human rights treaties and maritime laws are classified as the
most common law making treaties by Fitzmaurice.[2] The nature of such a treaty is
multilateral in the sense that, there are several bilateral treaties whereby each party is
bound to the rest independently and collectively. Therefore, the obligations defined are
mandatory. Bilateral treaties are mutually dependent on the existence and terms defined by
two parties. Law making treaties are bilateral of the kind which binds the parties to a
common cause which is distinct from the personal interests but in favour of a common
interest.
Contractual treaties
Unlike law-making treaties, contractual treaties have a more exclusive group of parties, and
are often bilateral in nature. There exists a mutual interest from one another between the
parties, usually of a commercial or political kind. It is either to gain some kind of benefit or
protection in exchange to provide the same in return. While law making treaties are focused
on rights, duties, code of conduct and are governed by principles of natural law, morality
etc., contractual treaties are focused on one matter of relevance solely to the interested
parties and not globally. These are often trade agreements, alliance agreements, conveyance
agreements etc. It is almost a pure contract, governed by principles of barter and absolves
the rest of the parties from any obligation if one of them fails to upkeep their side of the
agreement. This is unlike law making treaties which do not absolve such rights irrespective
of a breach from one party but rather imposes penalties on the offending party.
The Binding Force of Treaties
The Vienna Convention on the Law of Treaties is an international agreement between the
states to govern and regulate treaties. The Convention on law of treaties deals with written
treaties exclusively. Composed of eighty five articles, the first part of the Convention deals
with the basics such as object and scope. The second part of the Convention addresses
adoption, ratification and conclusion of treaties. The third part focuses on interpreting
treaties. Modifications, amendments and changes to treaties is dealt with in the fourth part,
and the termination, invalidity, suspension clauses are elaborated in the fifth part. According
to the Convention the International Court of Justice has jurisdiction over all matters of
disputes. Technical issues such as the implication of a change in government on treaties and
ratification are dealt with in the final parts.
The maxim “pacta sunt servanda” binds all signatories to their treaties and is incorporated
under Article 26 of the Convention. Therefore, all signatories of the Vienna Convention are
by extension bound to any other treaty they become a signatory to. It is interesting to note
that the United States has not ratifies the Convention. This is probably because of
differences between the Legislative and Executive branches.
Article 1 of the said Convention lays out its applicability to treaties between the states. It is
also applicable to treaties entered into by international organizations. Article 2 defines
“ratification”, “approval”, “reservation”, etc., in the context of the treaty. However, the
Convention is not applicable between two subjects of international law or to agreements
formed between an international body and a state. Article 3 provides for the scope of the
Convention and confirms that even if such agreements are entered into, their legalities shall
remain unaffected. However, such parties are not obligated to follow the provisions of the
Convention, but must generally conform to the basic principles of international law while
forming their treaty provisions. Further, such agreements do not affect the interaction
between states.
Parties to a treaty
There are two types of parties to a treaty- state parties and third States. State parties are
actual signatories of the treaty which have signed, ratified and adopted such treaty. They are
bound by it unconditionally. “Third state” is not an actual signatory or party of the treaty.
Third States
Article 34 of the Convention absolves all obligations of a treaty to a third state as it is not a
signatory. Further, any provision of a treaty between two states which tends to impose
liabilities on a third state cannot be incorporated unless the consent of the third state has
been taken. If the third state gives its consent, and the parties wish to vest certain rights to
such a state, provisions for the same are allowed according to Article 36 of the Law of
Treaties. Only when the third state follows all the conditions and duties imposed on it can it
exercise such rights vested in it. The revocation, amendment of the provisions related to a
third state are dealt with in Article 37. Article 35 states that when there has been express
consent of the parties to the treaty and the third state such a revocation or amendment can
take place. However, the rights conferred by Article 36 cannot be revoked or altered without
the consent of the third state if it was so provided that such revocation or alteration cannot
be done solely by the parties. Further, customary international law provides that the
provisions of a treaty become binding on third states too.
Formation of a treaty
There is no set procedure to be followed in the creation of a treaty. However, every treaty
must have a Preamble which gives the background object of the treaty, followed by the
subject matter of the treat. The time period for which the treaty is formulated, the
reservations, ratification, amendment procedures must be laid out. Finally, the ratification
and signatures of parties are incorporated. The steps primarily involved in the formation of a
treaty are as follows:
Adoption: Unconditional consent except in form of reservations is essential for adoption of
the text of a treaty. If the adoption is required internationally, at least two thirds majority is
required for adoption.
Authentication: According to the procedures laid down in the treaty itself, the text is made
authentic. If no such procedure is provided, the signatures of the parties may be deemed to
be a reflection of the authenticity.
Consent is expressed: Consent is expressed through signatures, ratification, acceptance,
approval or accession or by exchanging instruments required for the treaty.
 Consent by signature
The representatives of the states sign the treaty text when signature is enough to imply
consent according to the treaty.
 Consent by exchange of instruments required by the treaty
Instruments which are equivalent to expression of consent may be exchanged among
parties.
 Consent by ratification, acceptance or approval
Ratification is a reflection of acceptance or approval.
 Consent expressed by accession
The difference between ratification and accession is that, ratification primarily occurs until
the minimum number of signatories required to give force to the treaty. All parties who sign
the treaty after the minimum number is achieved are parties by way of accession.
 Formulation of reservations
While becoming a signatory, a party may provide reservations, if any.
Invalidity of treaty
Part V, Section 2 of the Vienna Convention on The Law of Treaties, 1969, deals with the
invalidity of treaties. Articles 46-53 provides for the procedure to be followed for invalidating
a treaty. Invalidity essentially means to make a treaty void. Content, the parties and the
implications of the treaty are a few reasons to invalidate it i.e., if it becomes impossible, or
the issue at hand is already addressed, or by consent of the parties.
Under Article 46 of the Law of Treaties, if the provisions of a treaty goes against its domestic
laws, the state may communicate its unwillingness and the desire to invalidate the treaty.
Article 48 allows for invalidation if the treaty has an error which substantially affects the
treaty provisions so as to be in conflict with the object of the treaty.
Treaties may be called for invalidation if its consent has been obtained by the fraudulent acts
of a party member, or by corruption of its legal representatives, or if such representatives
have been coerced on basis on lack of free consent.
Jus cogens are “peremptory norm of general international law” such as piracy, genocide,
apartheid, torture etc. If a treaty is in contravention of any of these laws, it can be rendered
invalid.
Termination of treaty
Termination by means of Withdrawal
International law is based on the foundation of consent of the parties. It is in respect of this
that treaties have provisions for withdrawal. If the number of signatories falls below the
prescribed number due to withdrawal, a treaty stands terminated. Article 56 deals with
withdrawal of treaties which do not have termination or withdrawal clause. However, certain
treaties do not allow for withdrawal owing to their nature. It is for this reason that North
Korea was denied withdrawal from the International Covenant on Civil and Political Rights.
Suspension and Termination
 Implied by the conclusion of a later treaty-
If a new treaty has been drafted dealing with the same subject matter as a previous one,
then upon the conclusion and ratification of the new treaty, the old one is deemed to be
suspended.
 As a consequence of its breach-
Usually among bilateral treaties, if one party commits a breach of the provisions then the
entire treaty can be terminated or suspended at the discretion of the other parties.
 Impossibility of performance-
When the carrying out of the provisions becomes impossible for any reason, then the treaty
can be terminated. If the impossibility if for a specific duration of time, then the treaty may
be suspended for that time period.
 Fundamental change of circumstances
This is akin to force majeure clauses, where due to unforeseen, uncontrolled events, the
provisions of the treaty can only be carried out with great impediment.
 Changes in diplomatic or consular relations
Hostile elations and change in diplomatic relations by themselves cannot lead to suspension
or termination unless the treaty specifically provides for such a clause.
 New jus cogens
Jus cogens are internationally recognized principles. If there exists new jus cogens, then the
treaties which are in violation of such a new jus cogen may be terminated.
Conclusion
The Vienna Convention on the Law of Treaties is the principal piece of international
document which provides the basics of all other treaties. Pacta sunt servanda is the principal
maxim which governs it and enforces obligations on signatories of all treaties. This
Convention which provides basis of formation, ratification, amendment, and termination of
treaties is of primary importance as treaties form the most fundamental source of
international law.

What is 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”.

APrinciples of extradition

There are generally four principles of extradition, as explained below:

Principle of Reciprocity

The principle of reciprocity is well-founded under various aspects of international law. It provides
that every act of favour, 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. It provides for the
mutual expression of international support. As far as extradition is concerned, the principle of
reciprocity applies that the territorial state must extradite the accused persons or convicts in
exchange for any diplomatic kindness shown by the requesting state. Such diplomatic kindness may
be any act, ranging from tariff relaxations or enforcement of foreign judgments to military or
economic aid. This principle may also operate for the mutual extradition of accused persons or
convicts of the respective countries.

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.
Meaning, the fugitive’s activity must constitute a crime in both the territorial state and the
requesting state. For instance, if an individual is convicted of ‘perjury’ under English Law, but his acts
do not constitute ‘perjury’ under American Law, then America can reject the request by England to
extradite him.

Principle of Double Jeopardy

The principle of double jeopardy is also called ‘non-bis in-idem’. It provides that a person who had
already been tried and punished can not be extradited if the request pertains to the same crime. No
criminal tried and convicted once can be extradited for the same offence, except for the expired
period of punishment.
Principle of Speciality

The principle of speciality provides that the requesting state is bound to try or punish the extradited
offender only for the offence for which he is extradited. For instance, in the case of United States v.
Rauscher (1886), a fugitive offender was extradited from Great Britain to the United States of
America to be tried for a murder committed on board an American ship. Upon the extradition, the
offender was convicted for the offense of grievously hurting a man, and not for the alleged murder
for which he was extradited. This was because there was no substantial evidence to prove him guilty
of the alleged murder. The Supreme Court held that it was a violation of the Extradition Treaty and
set aside the conviction.

s 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.

However, the mutual interests of both the territorial state and the requesting state for the
maintenance of law and order and the administration of justice require that the nations should
cooperate with each other in returning the accused person or convict to the requesting state. Hence,
to avoid the clash between state sovereignty and administration of justice, most states enter into
various treaties governing extradition. Also, various countries incorporate provisions for extradition
in their penal codes.

As far as India is concerned, the Indian Penal Code, 1860 does not explicitly mention extradition but
implies it in the Sections related to jurisdiction. The Extradition Act, 1962 explicitly deals with it.

Prerequisites for extradition

The following conditions must be satisfied to grant extradition:

Extraditable persons
The accused persons or convicts must not fall under the ambit of the following three categories to be
extraditable.

Territorial state’s own nationals

Most countries refuse to extradite their own nationals allegedly committing a crime in the requesting
State; such countries claim their right to exercise State sovereignty over their nationals, even though
the offence was committed in another country.

Political offenders

One of the most controversial aspects of extradition is that many countries refuse to extradite
political offenders.

Persons already punished

Most countries follow the principle of double jeopardy and refuse to extradite the persons tried and
punished for the same offence for which the extradition is requested.

Extraditable crimes

The principle of double criminality applies to determine the extraditable crimes; meaning, the
fugitive’s activity must constitute a crime in both the territorial state and the requesting state.
Generally, except for the following categories of offences, most crimes specifically mentioned in the
extradition treaty existing between both the states are extraditable.

Religious offences

Religious offences including religious disrespect are not extraditable.

Military Offences

Military offences like desertion, disobedience of higher officials’ orders, etc. are non-extraditable.

Extradition under Indian Laws

In British India, extradition was regulated by the United Kingdom’s Extradition Act (1870), followed
by the Extradition Act (1903). Presently, the Extradition Act (1962) (hereinafter referred to as ‘the
Act’) regulates extradition in India.

The Extradition Act (1962)

The Act provides for the extradition of fugitive criminals both from and to India. The extradition may
take place in accordance with any extradition treaty with the requesting or territorial state. However,
the Act also provides that, in absence of any such treaty, any Convention to which India and such
requesting or territorial state are parties can be treated as the extradition treaty for that matter.
(Section 3)

The Act imposes no explicit restriction on the extradition of Indian nationals to the requesting State;
however, the bar on extradition varies from treaty to treaty.

Currently, India has extradition treaties in force with the following 48 countries:

Further, currently, India has extradition arrangements with the below-mentioned 12 countries.
Extradition arrangements refer to the agreements between the requesting and territorial states,
wherein it is agreed that the extradition will take place as per the local laws of the territorial state
and international regulations instead of the local laws of the requesting state.

Restrictions on surrender under Indian Law

As per Section 31 of the Act, the fugitive criminal shall not be surrendered:

1. If the offence committed or alleged to have been committed by him is of political nature;

2. If the offence committed or alleged to have been committed by him is time-barred as per the
requesting state’s laws;

3. If no provision exists in the extradition treaty or arrangement stating that he shall not be
tried for any offence other than for which he is extradited;

4. If he has been accused of any offence in India not being the one for which is extradition is
sought; and

5. Until after fifteen days from the date of his being committed to prison by the magistrate.

Savarkar’s case

In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a vessel named
Morea, for his trial on a charge of treason and murder (Emperor v. Vinayak Damodar
Savarkar (1910)). He escaped to France while the vessel was harboured at Marseilles. However, a
French policeman, in a mistaken execution of his duty, caught and surrendered Savarkar to the British
authorities without following the extradition proceedings. Later, France demanded Britain hand over
Savarkar to formally carry out his extradition procedure. Britain refused France’s demand, and the
case was laid before the Permanent Court of Arbitration in Hague. The Court agreed with the
happening of irregularity on the part of the French policeman. However, France’s demand for a fresh
extradition procedure was rejected owing to the absence of international law regarding such
circumstances.

Vijay Mallaya’s case

The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and United
Breweries Holdings Ltd., is arguably the most well-known extradition case in India (Dr Vijay
Mallya v. State Bank Of India (2018)). He owed a whopping debt of over ₹6,000 crores to 17 Indian
banks including the State Bank of India and the Indian Overseas Bank. Fearing an impending arrest,
Mallaya fled from India to the United Kingdom in 2016. His extradition was sought by India in 2017.
Mallya’s extradition case was laid before the Westminster Magistrate’s Court in London. In 2018, the
Court ordered his extradition to India. His appeal at the High Court in London was rejected; however,
he has not been brought back to India yet due to ongoing legal procedures. It’s also worth noting
that in 2019, he was declared a ‘Fugitive Economic Offender’ under the Fugitive Economic Offenders
Act, 2018.

Nirav Modi’s case

Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab National Bank (PNB)
filed a complaint before the Central Bureau of Investigation (CBI), alleging Nirav, along with his wife
Mrs Ami Modi, of fraudulently obtaining fake Letters of Understanding (LoU) worth ₹11,400 crores.
The money was then channelised to his fifteen overseas sham companies. Following a CBI probe, the
Enforcement Directorate (ED) confiscated Nirav’s assets in India. He fled India and sought asylum in
the United Kingdom. Interpol issued a Red Corner Notice against him in 2018. Following an
extradition request from India, a Westminster Court issued an arrest warrant against Nirav. The Court
ordered his extradition to India in 2021.

Introduction
Diplomats are the persons who reside in foreign countries as the representative of the country by
whom they are despatched. They act as a link between the country who despatch them and by
whom they are accredited. Therefore, they perform the act of diplomacy, which in International Law
means by which the States maintain or establish mutual relations and carry out their legal or political
transactions based on their foreign policies.

Act of diplomacy may be performed by the head of State, Government, Minister of Foreign Relations
or by and by diplomatic agents.

Law on Diplomatic agents

The practice of sending and receiving diplomatic agents is followed by states since ancient time. In
ancient times ‘Doots’ were sent from one Rajya to another. However, in ancient time the practice
was not uniform nor they were sent permanently to another Rajya. The practice of permanently
sending the diplomatic agents started from the seventeenth century.

By the second half of the seventeenth-century permanent legation became a general institution and
certain rights and duties almost identical in nature were provided to the diplomats.

The Congress of Vienna of 1815 for the first time codified customary rules of International Law on
ranks of diplomatic representatives. The institution of diplomacy continued to develop after 1815
and after the establishment of the United Nations, the task for codifying for the law relating to
diplomatic agents was given to the International Law Commission.

The Commission prepared the draft article and submitted them to General Assembly. The Assembly
convened a conference in 1961 and adopted Vienna Convention on Diplomatic relations.

Classification of Diplomatic agents

Diplomatic agents accredited to a State differ in class. The Vienna Convention on diplomatic
relations, 1961 under Article 14 divides diplomatic agents into three classes. They are:

 Ambassadors accredited to head of State.

 Envoys, ministers accredited to the head of State.

 Charges d’ Affairs accredited to Ministers of Foreign Affairs.

Functions of Diplomatic Agents

Functions of diplomatic agents are determined by the rules and regulations of International Law and
municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of Diplomatic
Relations, 1961 lays down various functions of diplomatic agents which are as follows:

 Representation: Diplomatic agents represent the policies and beliefs of State by which they
are dispatched to the state where they are accredited. The function of representation is
primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats
 are the mouthpiece of the head of his own State and the Foreign Minister for
communication to be made to State where they are dispatched.

 Protection: Diplomatic agents protect the rights and interests of sending State and also of
nationals, within the limits allowed by the municipal law of respective State. The limit of
diplomats is not prescribed by the International Law but by the municipal law of the State.

 Negotiation: Negotiation is the most important function which is performed by the

diplomatic agents. Generally, the head of the diplomatic mission negotiates on various
aspects of on behalf of the sending State with the State to which they are accredited in order
to maintain a friendly relationship. Diplomatic agents are required to communicate the
outcome of the negotiation to sending State from time to time,

 Observation: Diplomatic agents are required to observe those events and happenings which
take place or which may take place in the State where they are accredited, especially those
which may affect the interests of the State by which they are sent. After making observations
of the events, they are required to make periodical reports to the government of sending
State.

 Promotion of Friendly Relations: Diplomats are required to promote friendly relations

between the sending State and the receiving State. They also have the function to develop
the social, cultural and economic relations between the two States.

 Consular Functions: Vienna Convention lays down that diplomatic agents can also perform
consular functions which may be allotted to them from time to time such as death, birth and
marriage registrations of the subjects of home State, issue of passports etc.

Diplomatic immunities and privileges

International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction by
receiving States. The principles governing diplomatic immunities and privileges are among the most
ancient and universally recognised principles of International Law.

Privileges and immunities of a Diplomat

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges
which are granted to diplomatic agents. They are as follows:

 Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is

recognized in International Law much before the adoption of the Convention of 1961. Article
29 of the Vienna Convention lays down that “the person of a diplomatic agent shall be
inviolable”. He shall not be liable to any form of arrest or detention, and the receiving State
shall treat him with all due respect and should take all appropriate to prevent an attack on
his personal freedom and dignity.

 The Government of receiving State by virtue of Article 29 is under a duty to conduct to

abstain from any form of conduct which is injurious to the diplomatic agents and also under
a duty to prevent such injurious conduct if attempted by another.

This does not mean that the immunity given to the diplomats is absolute. The receiving State has the
power to arrest or detain the diplomatic agent in exceptional cases for instance, a drunken diplomat
with a loaded gun in a public place can be arrested or if a diplomatic agent commits an act of
violence which disturb the order and peace of receiving State in such a manner that it becomes
necessary to put him under restraint for the purpose of preventing similar acts.

Inviolability of Staff of Mission

In addition to the head of mission, immunities are also given to the staff of the mission, which is
defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention lays down
that members of the administrative and technical staff shall enjoy the immunities and privileges as
mentioned from Article 29 to Article 35 if they are not nationals or are not permanent residents of
receiving State.

Thus, administrative and technical staff only enjoys personal inviolability (Article 29), inviolability of
residence (Article 30(1)), immunity from criminal jurisdiction (Article 31(1)), exemption from certain
taxes and duties (Article 34) and immunity from civil and administrative jurisdiction exists when they
are performing service duties [Article 31(1)].

Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are not
the nationals or permanent resident of receiving State. It provides immunity to the acts performed in
course of their duties, exemption from taxes and duties on emoluments received and exemptions on
social security provisions.

Inviolability of family members

Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities and
privileges to the family members of diplomatic the diplomatic agents having diplomatic ranks may be
given, if firstly they are not nationals or permanent resident of receiving State and secondly, so long
as they form the part of household, i.e. they live under one roof”.

So if the son of a diplomat is studying in any University of receiving State and just come on weekends
to meet his parents, then he will not be provided with any immunity as he is not forming the part of
the household.

o Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a

permanent diplomatic mission needs premises to operate and receiving State must
help the sending State to obtain the premises form mission”. The sending State has
the right to use its flag and emblem on the premises (Article 20). Article 22 of the
Vienna Convention of Diplomatic Relations stipulates the customary rule of
International Law by stating that “the premises of the mission shall be inviolable”.
Further Article 30 also provides that “private residence of a diplomatic agent shall
also enjoy inviolability”. The agents, police or any officer of the receiving State are
not allowed to enter the premises without the consent of the head of mission.
However, the inviolability of premises is also not absolute it can be compromised in
certain exceptions. Article 41 of the Convention itself lays down that “premises of
the mission should not be used in any manner as incompatible with functions of
mission or by rules of general International Law”. So, if the inviolability of premises is
abused then the receiving State should not bear it passively and can take all the
necessary steps to stop the actions of agents.
 o Inviolability from being a witness: Diplomatic agents are completely immune from
being a witness in any civil or criminal or administrative court of State to which they
are accredited. He is also immune from giving evidence before the Commissioner.
However, they may appear before any court by waiving of their immunity. Article
31(2) lays down that “diplomat agent is not obliged to give evidence as a witness”.

o Immunity from taxes and customs duties: Article 34 of Vienna Convention lays
down that, “diplomatic agents shall be exempted from all dues and taxes, personal
or real, national, municipal or regional”. Initially, before the convention, this right
was given to the agents due to Courtesy but Convention has incorporated it with
more precise definition.

o Immunity from inspection of Personal Baggage: The bag used by the diplomatic
agents for sending articles, letters or documents to the sending states or any other
missions of its State to abroad be known as a diplomatic bag. Para 3 of Article
27 of the Vienna Convention lays down that “diplomatic bag should not be opened
or detained’. But according to Article 36 Para 2, this right is not absolute. It lays down
that, “general practice of exempting the diplomats’ personal baggage from a custom
inspection is qualified by the provision that inspection can be conducted in presence
of a diplomatic agent or his agent if there are serious grounds for suspecting that the
article is not for official use”.

o Freedom of Communication: Diplomatic agents are free to communicate any

information for official purposes to the State by which they are accredited. Article 27
of the Vienna Convention lays down that “the freedom of communication also
involves the use of code messages and couriers”.

o Freedom of movement and travel: Article 26 of Vienna

Convention empowers diplomatic agents to move and travel in the territory of
receiving State but subject to laws and regulations of International Law and rules
made by receiving State concerning security zone.

o Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have
the right to worship any religion they like within the mission premises or residence.
But they cannot invite any nationals of the receiving State to take part in the worship
and have no right to preach their religion in receiving State.

o Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the
jurisdiction of local courts. The immunity extends both to criminal as well as civil
jurisdiction.

Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. Thus, receiving State has no right to
prosecute and punish diplomatic agents. Immunity of diplomatic agents from civil and administrative
jurisdiction also a well- recognized principle of International Law.