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.
What is Asylum Law?
Asylum, in international law, the protection granted by a state to a foreign citizen against his own state. The term is applied to those cases where the territorial State refuses to capitulate a person to the requesting state and provides accommodation and protection in its own territory. Asylum means refugees, whistleblowers or criminals who, because of the concern of getting persecuted by their country, get escaped to another.
Therefore asylum involves two components, firstly, a shelter which is more than short-term protection; and secondly, a level of active protection on the part of the authorities having power over the territory of asylum.
In the International arena, there exist various legal protection guaranteed to refugees under various conventions & treaties. Article 14 of the Universal Declaration of Human Rights (UDHR) assures that everyone has a right to seek asylum & enjoy in another country from the fear of being persecuted by his or her state.
Example – Dalai Lama’s Asylum
India in the year 1959 gave territorial asylum to the Dalai Lama and his followers who were oppressed by the repressive policies of China.
Asylum seeker:
Asylum seeker is the person who is asking for asylum in various countries until he or she receives one. The one who seeks international protection & whose appeal as a refugee is not determined yet. The reason could be to escape war or due to fear of persecution.
Refugee:
The 1951 Refugee Convention’s article 1 (A) (2) elaborates refugee as someone who was forced to retreat because their home nation is unsafe, and their particular government cannot or will not protect them and is not willing to return there,
- 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.
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.
- Extra-Territorial Asylum:
This particular type elaborates that the state does not grant asylum in its territory but preferably in embassies, commissions, ministries, warships, and merchant vessels in foreign territory.
Who doesn’t qualify for Asylum?
According to United Nations principles, “All civilians are entitled to seek asylum”. Also states former soldiers are eligible, but people who are currently soldiers are not eligible. Also, the person who has committed severe crimes against peace or humanity & serious non-political crimes would not qualify for asylum status.
Definition of Extradition
The term extradition denotes the process whereby under the 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 is competent to try the alleged offender.
Extraditable persons may include:
- Persons charged with a crime but not yet tried.
- Persons who have been tried and convicted but have escaped custody.
- Persons convicted in absentia.
Basic Principles Governing Extradition
- Principle of relative Seriousness of the offence: Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanors or petty offences.
- Principle of Dual Criminality: This is the most important principle governing Extradition Law. This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state.
- Existence of prima facie case against the fugitive: This is a safety valve to ensure, at-least on broad probabilities, and the existence of a triable case against the fugitive. This is sought to be ensured by a magisterial inquiry that is to precede the actual extradition. If the case lacks merit on the face of it, extradition may be disallowed at the very outset.
- Principle of proportionality between offence and sentence: Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined.
- Rule of specialty: When a fugitive is extradited for a particular crime, he can be tried only for that crime.
Rendition
The 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.
Conclusion
Asylum stops where extradition begins. Extradition and Asylum are political acts of states and it differs from state to state depending upon treaties, internal and external policies. India being an accomplished democracy must comply with International policies & assign treaties to restrain a minimum breach of basic rights. India on the asylum part needs a National Asylum Policy.
Extradition is a great step towards international cooperation in the suppression of crime. With the growing internationalization of crime and judicial developments, extradition law is in a state of great flux. Asylum and Extradition law are a critical aspect of International Law and needs to be controlled carefully. Both have pros and cons before taking any huge step states should vividly ponder on their decisions.
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