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Extradition And Asylum Under International Law

Prologue
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 together.

Extradition

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 diplomatic channel.

The following rational considerations have conditioned the law and practice as to extradition:

  1. 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.
     
  2. 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 obligation.

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:

  1. Extraditability of nationals of the state of refuge.
  2. Evidence of guilt required by the state of refuge.
  3. The relative powers of the executive and judicial organs in the procedure of surrendering the fugitive criminal.

Before an application for extradition is made through the diplomatic channel, two conditions are as a rule required to be satisfied:
  1. There must be an extraditable person.
  2. 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 citizens abroad.

(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 Act 1989.

As a general rule, the following offences are not subject to extradition proceedings:

  1. Political crimes.
  2. Military offences, for example, desertion.
  3. 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 requesting state.

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.

Rendition

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 Magistrates, 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.

Asylum


The conception of asylum in international law involves two elements:
  1. Shelter, which is more than merely temporary refuge.
  2. 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 apprehension.

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 repatriated.

In the light of recent events it has been claimed that territorial asylum should be sub-classified into:
  1. political asylum, e.g., for so-called defectors;
  2. refugee asylum, for refugees with a well-founded fear of persecution in their own country; and
  3. 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 right of asylum. 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 following:
  1. 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).
     
  2. 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).
     
  3. 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).

(b) Refugees:

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.

The 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 influx.

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 law.

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 same.

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 to persecution.

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

  1. 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 legation premises:
    1. 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.
       
    2. Where there is a binding local custom, long recognised, that such diplomatic asylum is permissible.
       
    3. 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.
       
  2. Asylum in consulates or consular premises:
    Similar principles, subject to the same exceptions, apply as in the case of legation premises.
     
  3. 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.
     
  4. Asylum in merchant vessels:
    Merchant vessels are not exempt from the local jurisdiction, and therefore cannot grant asylum to local offenders.

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