The liberty of a state to accord asylum to a person overlaps to a certain extent
with its liberty to refuse extradition or rendition of that person at the
request of some other state, an overlapping best seen in the grant, commonly, of
asylum to political offenders, who correspondingly are not as a rule
extraditable. Asylum stops, as it were, where extradition or rendition begins,
and this interdependence makes it convenient to consider the two subjects
The term extradition' denotes the process whereby under treaty or upon a basis
of reciprocity one state surrenders to another state at its request a person
accused or convicted of a criminal offence committed against the laws of the
requesting state, such requesting state being competent to try the alleged
offender. Normally, the alleged offence has been committed within the territory
or aboard. Requests for extradition are usually made and answered through the
The following rational considerations have conditioned the
law and practice as to extradition:
- The general desire of all states to ensure that serious crimes do not go
unpunished. Frequently a state in whose territory criminals have taken
refuge cannot prosecute or punish them purely because of some technical rule
of criminal law or for lack of jurisdiction. Therefore to close the net
round such fugitive offenders, international law applies the maxim, autpunireautdedere',
i.e. offenders must be punished by the state of refuge or surrendered to the
state which can and will punish them.
- The state on whose territory the crime has been committed is best able
to try the offender because the evidence is more freely available there, and
that state has the greatest interest in the punishment of the offender, and
the greatest facilities for ascertaining the truth. It follows that it is
only right and proper that to the territorial state should be surrendered
such criminals as have taken refuge abroad.
With the increasing rapidity and facility of international transport and
communications, extradition began to assume prominence in the nineteenth
century, although actually extradition arrangements date from the eighteenth
century. Because of the negative or neutral attitude of customary international
law on the subject, extradition was at first dealt with by bilateral treaties.
These treaties, in as much as they affected the rights of private citizens,
required in their turn alterations to the laws and statutes of the states which
had concluded them. Hence the general principle became established that without
some formal authority either by treaty or by statute, fugitive criminals would
not be surrendered nor would their surrender be requested. There was at
international law neither a duty to surrender, nor a duty not to surrender. For
this reason, extradition was called by some writers a matter of imperfect
In the absence of treaty or statute, the grant of extradition
depended purely on reciprocity or courtesy. International law concedes that the
grant of and procedure as to extradition are most properly left to municipal
law, and does not, for instance, preclude states from legislating so as to
refuse the surrender by them of fugitives, if it appears that the request for
extradition had been made in order to prosecute the fugitive on account of race,
religion, or political opinions, or if the fugitive may be prejudiced thereby
upon eventual trial by the courts of the requesting state.
There are some divergences on the subject of extradition between the different
state laws, particularly as to the following matters:
Before an application for extradition is made through the diplomatic channel,
two conditions are as a rule required to be satisfied:
- Extraditability of nationals of the state of refuge.
- Evidence of guilt required by the state of refuge.
- The relative powers of the executive and judicial organs in the
procedure of surrendering the fugitive criminal.
- There must be an extraditable person.
- There must be an extradition crime.
(a) Extraditable persons:
There is uniformity of state practice to the effect
that the requesting state may obtain the surrender of its own nationals or
nationals of a third state. But many states usually refuse the extradition of
their own nationals who have taken refuge in their territory, although as
between states who observe absolute reciprocity of treatment in this regard;
requests for surrender are sometimes acceded to. This does not necessarily mean
that a fugitive from justice escapes prosecution by the country of his or her
nationality, for that country (and especially Civil Law countries) may assert
jurisdiction on the basis of nationality, over all crimes committed by their
(b) Extradition crimes:
The ordinary practice as to extradition crimes is to
list these in each bilateral extradition treaty. However, it is becoming
increasingly common to define extradition crimes in terms of a given minimum
level of punishment provided under the laws of each state; however the offence
may be denominated.
Generally, states extradite only for serious crimes and
there is an obvious advantage in thus limiting the list of extradition crimes
since the procedure is so cumbrous and expensive. Certain states, for example,
France, extradite only for offences which are subject to a definite minimum
penalty, both in the state requesting and in the state requested to grant
extradition. This is also the case in the United Kingdom under the Extradition
As a general rule, the following offences are not subject to
- Political crimes.
- Military offences, for example, desertion.
- Religious offences.
International law leaves to the state of refuge the sovereign right of deciding,
according to its municipal law and practice, the question whether or not the
offence which is the subject of a request for extradition is a political crime.
As regards the character of the crime, most states follow the rule of double
criminality, i.e. that it is a condition of extradition that the crime is
punishable according to the law both of the state of asylum and of the
Substantial similarity of the alleged extradition crime to the
crime punishable according to the legal system of the state of refuge is
sufficient to bring into effect the double criminality rule so as to justify a
grant of extradition. A further principle sometimes applied is known as the
principle of specialty, i.e. the requesting state is under a duty not, without
the consent of the state of refuge, to try or punish the offender for any other
offence than that for which he was extradited.
This principle is frequently
embodied in treaties of extradition and is approved by the Supreme Court of the
United States. Human rights as embodied in national legislation or in
international instruments may constitute further restrictions on extradition. In
the Soering Case the United Kingdom intended to extradite a person to the United
States for a crime carrying a possible penalty of death.
The European Court of
Human Rights held that such circumstances, where a fugitive might spend years on
Death Row' awaiting the result of appeals, would constitute inhuman and
degrading treatment contrary to the European Convention on Human Rights, and
that extradition was thus inadmissible.
This more generic term rendition' covers instances where an offender may be
returned to a state to be tried there, under ad hoc special arrangement, or on
the basis of reciprocity in the absence of an extradition treaty, or even if
there be such a treaty between the states concerned, irrespective of whether or
not the alleged offence is an extraditable crime.
A deportation or refusal of
asylum may have the effect of a rendition, although from the point of view of
the deporting state or state of purported entry, it is not of this nature. As
pointed out by Barwick CJ in a decision of the High Court of Australia, there
are obvious objections to the use of immigration or expulsive powers as a
substitute for extradition
The House of Lords in R v. Horseferry Road
, Bennett declared that to invoke the criminal jurisdiction of the
English courts over an accused deported from South Africa by prior arrangement
with English police constituted an abuse of process, and that jurisdiction
should be declined for that reason.
AsylumThe conception of asylum in international law involves two elements:
- Shelter, which is more than merely temporary refuge.
- A degree of active protection on the part of the authorities in control
of the territory of asylum.
Asylum may be territorial (or internal), i.e. granted by a state on its
territory; or it may be extra-territorial, i.e. granted for and in respect of
legations, consular premises, international headquarters and warships to
refugees from the authorities of the territorial state.
The differences between
the principles applying to the two kinds of asylum flow from the fact that the
power to grant territorial asylum is an incident of territorial sovereignty
itself, whereas the granting of extraterritorial asylum is rather a derogation
from the sovereignty of the territorial state in so far as that state is
required to acquiesce in fugitives from its authorities enjoying protection from
Consistently with this distinction, the general principle is that
every state has a plenary right to grant territorial asylum unless it has
accepted some particular restriction in this regard, while the right to grant
extra-territorial asylum is exceptional and must be established in each case.
Both types of asylum have this in common, that they involve an adjustment
between the legal claims of state sovereignty, and the demands of humanity.
(1) Territorial asylum:
A state's liberty to grant asylum in its territory is of
ancient origins, and extends not only to political, social, or religious
refugees, but to all persons from abroad, including criminal offenders; it is
merely one aspect of a state's general power of admission or exclusion from its
territory. Normally, however, persons not being nationals of the territorial
state, and who are held in custody on foreign vessels within that state's
waters, will not be granted asylum. It is a matter of controversy whether a
state may grant asylum to prisoners of war detained by it, but unwilling to be
In the light of recent events it has been claimed that territorial
asylum should be sub-classified into:
- political asylum, e.g., for so-called defectors;
- refugee asylum, for refugees with a well-founded fear of
persecution in their own country; and
- general asylum, i.e. for persons who have fled from their country
to seek economic betterment, but do not have the status of immigrants.
(a) Political' asylum:
It is sometimes said that the fugitive has a
. This is inaccurate, as fugitives have no enforceable right in
international law to enjoy asylum. The only international legal right involved
is that of the state of refuge itself to grant asylum.
Municipal legal systems (see, for example, the constitutions of France,
Germany, and Italy) do indeed sometimes provide for a right of asylum to
individuals fleeing from persecution, and an example of the provision of a
modern international instrument (not being a binding convention) providing for
an individual right of asylum from persecution is article 14 of the Universal
Declaration of Human Rights 1948 which rather weakly refers to a right to seek
asylum. But, so far, no such individual right is guaranteed by international
law, a Declaration on Territorial Asylum adopted by the United Nations General
Assembly on 14 December 1967, recommended that, in their practices, states
should follow a number of standards and desiderata, among which are the
- Persons seeking asylum from persecution (see article 14, above, of the
Universal Declaration of Human Rights) should not be subject to rejection at
the frontier, or if they have already entered the territory in which they
seek asylum, to expulsion or compulsory return. If there are overriding
reasons of national security, or if it be necessary to safeguard the
population, as in the case of a mass influx, asylum may be refused, but the
state concerned should consider granting the person seeking refuge an
opportunity, by way of provisional asylum or otherwise, of going to another
state (article 3).
- Where a state finds difficulty in granting or continuing to grant
asylum, states individually or jointly or through the United Nations should
consider, in a spirit of international solidarity', appropriate measures to
lighten the burden on that state (article 2).
- Asylum granted to persons seeking refuge from persecution should be
respected by all other states (article 1).
The liberty of states to grant asylum may, of course, be cut down by treaties of
the states concerned of which, extradition treaties are the commonest
illustration. In principle, asylum ought not to be granted to persons, with
respect to whom there are well-founded reasons for considering that they have
committed a crime against peace, a war crime, or a crime against humanity
(article 1, paragraph 2 of the Declaration on Territorial Asylum, referred).
The principles outlined above with respect to political' asylum
apply also to refugees. Indeed, most applicants for territorial asylum will also
claim status as refugees. A refugee is defined in article 1 of the Convention on
the Status of Refugees, 1951, as a person who, owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a
particular social group, or political opinion, is outside the country of which
that person is a national and is unable or, owing to such a fear, is unwilling
to return to it.
The convention was limited at first to a fear based on events
occurring in Europe prior to 1 January 1951, but these geographical and temporal
restrictions were removed as between the parties to the supplementary Protocol
of 1967. Nonetheless the Convention clearly betrays its dated origins as an
instrument designed to deal with the problems posed by millions of people
displaced by World War II in Europe and unwilling to return to countries which
they had left because those countries now had Marxist-Leninist governments or,
in the case of some, because they had been rendered stateless by reason of
territorial changes. The issue of reception and admission of refugees did not
arise; they were already present in the territories of contracting parties.
primary focus of the Convention therefore was the conditions of treatment of
refugees. Hence the Convention does not address the more important issue of
refugee law at the present time, namely under what circumstances should a person
seeking admission to a state as a refugee be recognised as such and be granted
permanent or temporary asylum by way of being accorded refugee status. This
vital issue continues to be regulated solely by national laws and practice;
states are apparently for the most part unwilling to subordinate their
sovereignty to acceptance of any international standard of obligation to receive
refugees, no doubt out of fear that they might be swamped by an intolerable
The Convention did succeed in achieving a principle of special
importance. Article 33 of the Convention provides that, even if for any reason a
state no longer desires that a refugee remain in its territory, it may not
expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group, or
political opinion.' This article, establishing the principle of non-refoulment,
is now regarded as having the status of a binding rule of general international
However, the same vice remains that article 33 does not apply except in the
case of refugees determined to be such by the host state, according to the
definition in article 1, but as to which no procedure for determination is laid
down. The test for refugee status under both articles has been held to be the
An extension of the principle of non-refoulment to a wider category of persons
who might qualify as refugees, because they are fleeing from persecution', as
set out in article 14 of the Universal Declaration of Human Rights, 1948, but
have not yet been determined to be such by the host state, can be argued to
arise on the basis of the Declaration on Territorial Asylum of the United
Nations General Assembly, 1967, which provides that no person entitled to invoke
article 14 of the General Declaration shall be subjected to rejection at the
frontier or expulsion or return to any state where that person may be subjected
However, the 1967 Declaration has only recommendatory status;
moreover, it is subject to exception for over-riding reasons of national
security or in order to safeguard the population, as in the case of a mass
influx of persons.' Despite the legal and moral strength of the principle of
non-refoulment it has been difficult in practice to secure an even observance of
it. Some states have come under great pressure from large numbers of claimants
to refugee status and have found the task of assessing each case individually to
be arduous and lengthy.
(c) General asylum:
At the base of the concerns of many states faced with an
actual or threatened influx of asylum-seekers is the reality that some of these
may not qualify as refugees in the sense of the Convention, or as victims of
persecution in the sense of the Universal Declaration, but are seeking a better
life elsewhere for economic or social reasons.
This can only be determined on a
case by case basis. Such persons are not asylum-seekers but would be immigrants.
Other persons may be genuine asylum-seekers, not for political or similar
reasons but as a result of civil war in their own countries, or natural
disasters such as famine or flood. Normally the need for such asylum will not be
lengthy before repatriation can take place, but the states offering temporary
asylum may need international assistance in order to bear the burdens.
(2) Extra-territorial asylum
- Asylum in legations:
Modern international law recognises no general right of
a head of mission to grant asylum in the premises of the legation. Such grant
seems rather prohibited by international law where its effect would be to exempt
the fugitive from the regular application of laws and administration of justice
by the territorial state.
The lack of any such general right of diplomatic
asylum was affirmed by the International Court of Justice in the Asylum Case,
which dealt with the application of alleged regional Latin-American rules of
international law concerning such asylum. It has been claimed that the Latin-
American practice and doctrine of diplomatic asylum operated in large measure
not through treaties alone (such as the Montevideo Convention of 1933 on
Political Asylum) but by common unarticulated understandings19 and should not
be regarded as capable of generalisation.
In any event such asylum was usually
granted for only a limited time. Exceptionally, but without acknowledgement of
any absolute right in a fugitive to require this, asylum may be granted in
- As a temporary measure, to individuals physically in danger from mob
disorder or mob rule, or where the fugitive is in peril because of extreme
political corruption in the local state, the justification being presumably
that by the grant of asylum, an urgent threat is temporarily tided over. In
certain instances, the legation would not provide asylum without the
authority of the accrediting government.
- Where there is a binding local custom, long recognised, that such diplomatic
asylum is permissible.
- Under a special treaty (usually allowing such right in respect of
political offenders only) between the territorial state and the state which
is represented by the legation concerned.
- Asylum in consulates or consular premises:
Similar principles, subject to the same exceptions, apply as in the case of
- Asylum in the premises of international institutions:
The Headquarters Agreements of the United Nations and of the specialised agencies reveal no
general right of international institutions to grant asylum or even refuge in
their premises to offenders as against the territorial state, and not even a
right of protection on humanitarian grounds. It is difficult to conceive,
however, that a right to grant temporary refuge in an extreme case of danger
from mob rule would not be asserted and conceded.
- Asylum in merchant vessels:
Merchant vessels are not exempt from the local jurisdiction, and
therefore cannot grant asylum to local offenders.