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Asylum stops, as it were, where extradition or rendition begins. Explain. UPSC law Optional.

This question has been asked in UPSC law Optional for more than 4 times.


Relevant Topic : International Law | UPSC Law Optional | Territorial jurisdiction of States, Extradition and Asylum.


UNDERSTANDING THE CO-RELATION : Asylum stops, as it were, where extradition or rendition begins, as per Starke. When one state has chosen to accord asylum to a certain person, it automatically results in refusal for the extradition or rendition of him by some other State. Conversely, the moment when former state decides to stop giving asylum, that person can be extradited by the latter state.


HOW IT WORKS? Extradition and Asylum are political acts of States and it differs from state to state depending upon treaties, internal and external policies, and this interdependence makes the two as indivisible and inter-related phenomena.


You can refer to Official Government of India page to know the list of countries with whom india have extradition treaties : https://mea.gov.in/leta.htm




MEANING AND NATURE :

  • 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.

  • Asylum means the protection or refuge granted by a State on its territory or premises under its control to a person who comes to seek such protection or refuge. Obviously, asylum is linked with extradition inasmuch as asylum stops where extradition or rendition begins.

DUTY TO EXTRADITE/ GRANT ASYLUM :

  • The concept of extradition is based on the maxim aut punire aut dedere which signifies that the offender must be punished by the State of refuge or surrendered to the State which can and will punish him.

  • The purpose of  asylum is to accord protection to a person and to bring him under the jurisdiction of the granting State whereas extradition aims at surrendering or returning the offender to the State where he is alleged to have committed the offence.

Therefore, asylum stops when the granting State decides to extradite the offender. Therefore, the concepts of asylum and extradition are opposite to each other.


INTERNATIONAL LAW/INSTRUMENTS :

  • There is no universal rule of customary international law in existence which imposes duty of extradition. In fact, extradition assumed prominence, only in the 19th century due to advancement of transport and communication. Therefore, States started entering into bilateral extradition treaties. In the absence of extradition treaty between the States, the grant of extradition depended purely on reciprocity or courtesy.

  • The offender has no right of asylum. However, on this issue, certain international instruments are worth examining. Article 14 of the Universal Declaration of Human Rights of 1948 recognises the right of everyone to seek and enjoy in other countries asylum from persecution. It, being a declaration and not a treaty, does not bind the States. On 14 December 1967, UN General Assembly adopted a Declaration on Territorial Asylum. It, inter alia, declared that a person seeking asylum from persecution should not be rejected at the frontier

INDIAN POSITION:

  • The Extradition Act, 1962 governs the law relating to extradition in India. At the outset, the Act makes it clear that extradition treaty is not the only basis for extradition. In this regard, Section 2(i)(ii) is instructive. Extradition, under Indian law is possible even in the absence of extradition treaty.

  • There is no India law with respect to aspect of Asylum. Asylum decisions are taken by Indian government on case-by-case basis.

EXAMPLE :


For Extradition : Abu Salem, a dreaded criminal, was arrested in 2002 in Portugal. In February 2004, a Portugal court cleared his extradition to India to face trial in the 1993 Bombay bomb blasts case and was extradited to India. He was tried and convicted in some cases and was sentenced life imprisonment in 2015.


For Asylum : Not many examples. However, during the 1959 Tibetan uprising, the 14th Dalai Lama escaped to India, where he currently lives in exile while remaining the most important spiritual leader of Tibet.

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