LAW OF EXTRADITION CONTENTS 1 Definition 2. Importance of International Extradition 3. History of Extradition 4. General Principles of Extradition DEFINITION Extradition is the formal process whereby a fugitive offender is surrendered to the State in which an offense was allegedly committed in order to stand trial or serve a sentence. Extradition was defined by the court of the United States through Chief Justice Fuller as follows:"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.”"® Oppenheim’s International law defines Extradition as, “Extradition is a delivery of an accused ora 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 the alleged criminal happens to be for the time.” This law is undoubtedly based on the broad principle that a criminal should not escape from the clutches of law. So it becomes the duty of every nation to afford to another State necessary assistance to bring a criminal/convict to the criminal justice system of such State. In a civilized community as it is the responsibility of every State to bring the guilty of crimes to justice. Extradition is an accepted legal process which is generally adopted by the States to bring such criminals back and acquire jurisdiction over fugitives in order to preserve peace, law, order and security within their State. The convenience of trying crimes in the country where they were committed is obvious. The State on whose territory the crime has been committed is best able to try the offender because it is much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial isto be held. So the extradition of fugitive is necessary to bring the offender to justice. IMPORTANCE OF INTERNATIONAL EXTRADITION Extradition is a great step towards international cooperation in the suppression of crime. There is no general rule of International law that requires a State to surrender fugitive offenders and extradition arrangements proceed on the basis ofa formal treaty or a reciprocal agreement between States. The increase in the mobility of suspects has resulted in the increased willingness of States to use this form of mutual legal assistance to enforce their domestic criminal law. While United States continues to prefer bilateral treaties asa legal basis for extradition, European States are increasingly reliant upon multilateral regional treaties. The process of extradition which is founded on the concept of reciprocity, comity and respect for differences in other jurisdictions, aims to further international cooperation in criminal justice matters and strengthens domestic law enforcement. 15 Terlinder v. Ames V84 US Reports 770. p.269. beim, International law, 8 ed, val!» p69, SUR Mogren The Ian exsniona be OS, pS. 40HISTORY OF EXTRADITION Fugitive offenders ought to be returned by extradition and the practice has a long history which has been a subject of extensive research by different scholars.” The evolution of the subject for the past two centuries through practice and comment, of statute and case law are distinct and sufficient, for the understanding of the historical development of extradition law and also it provides insights into some of the present problems. Writers agree that the first treaty dealing with extradition was concluded in 1280 BC by Ramese II, the pharaoh of Egypt and the Hittite Prince Hateusili IL." This treaty applied to the surrender of ‘great man’, which has been taken to refer to political offenders and not criminals; extradition treaties today, on the other hand, specifically exempt political offenders from surrender. Blakesley has noted,! even ifthe term was unknown, extradition was in use in Pre Christian times with very few procedures of today were incorporated. Usually the ‘diplomatic request’ was accompanied by a threat of war if the fugitive were not to be surrendered. Shortly after the agreement between the Egyptians and the Hittites, one finds extradition taking place, ifrarely, in ancient Israel, and the Hindu code of Manu also made provision there for. Moreover the whole tenor of these procedures indicates the system was designed to return common criminals as well as great men.’ The Romans also practiced extradition, at least up to about 100 B.C." Thus extradition was known in ancient times though its practice would bear litte relation to the system in operation today. For the period of the dark ages there is little available evidence one way or the other about the practice of extradition; nevertheless, atreaty concluded in the 10* century by the rulers at Byzantium and the princes of Kiev did allow for it. Most likely the first treat that dealt with extradition in Europe was made in 1174 between England and Scotland. Similar to most extradition treaties of the pre modern period, extradition was but one issue in acomprehensive interstate agreement. In continental Europe, France was providing for the extradition of common criminals as early as 1376.” Although even before then, it concluded a treaty with England in 1303 that allowed for the handing over of political opponents of the requesting State. Earlier writers have said that English extradition upto 1794 was generally exercised on an adhoc basis for there were very few treaties" and that it was only used to return political offenders. But O' Higgins™ has shown that many treaties contained provisions dealing with extradition during the middle ages and that all types of offender were returned, usually only ifsuch a treaty provision existed; the Anglo Dutch Treaty of 1662, even though primarily designed to obtain a return of political enemies also allowed for the return of any other offender req Nevertheless with regard to continental European treaties, where flight across a border was easy, the position seems to have been closer to present practice. The modern law of extradition started toevolve ' Shearer, Extradition in International law. p5-19, (1971). O° Higgins, The History of extradition in Brish Practice, 13. IND YB INTL AFF 78 (1964), Blakesley, The practice of Extredition from Ancigulty to Modern, France and che United Saces. A brief History, 4 BC Iot'L & comparative LJ 39 (1981). Blakesley actully considers the whole history of extradition, not just French and American, although his review does skip from pre Christin Extradition arrangements to those of medieval times)Cf, Geoff Gilbert, Transnational fugitive offenders in International law- Extradition and other mechanisms, (International stadies in human rights, vol 55.) 1998. ‘BLA. Shearer, supra note 45, p5: Kat I Rebane, Extradition and Individual Rights: The need for an Incernational criminal court to safeguard Individual Rights, 19 Fordham Int L} 1636, 1645 (1996). Antiquity, supra 45, at pp 4 et sq, "© Sir Edward Clarke, A treatise upon the Law of Extradition, pp. 16-29 (2 ed., 1874). Cf, LAShearer, International extradition, 1971. '% Schmid. Extradition and International Judicsl and Administrative Assistance in penal matters in East European sates, 34 Law in E, Europe 167 at p. 174 (1988), Cf, Geoff Gilbert, Transnational fugitive offenders in International law- Extradition and other mechanisms, (International studies in human rights, vol 55.) 1998 p18. "Blakesley, The practice of Extradition from Antiquity to Modern, France and the United Sates. A brie History, 4 BC Intl & comparative LJ at pa8. Id. Clarke, Extradition, pp -18-22(¢* edi, 1923).1d. ‘The Anglo French and Anglo Dutch treaty of 1661 and 1662 , respectively referred to in Blakesley, Antiquity at p.49. Higgins, The History of Extradition in British Practice, 13, IND-YBINT'L AFF.78 (1964). 41during the 18% century in Europe between adjoining States. Since the UK is an island, it was insulated from the rest of the continent's fleeing fugitives and so did not enter into as many extradition treaties at that time, England and United States were naturally protected by geography until the more sophisticated means of transport enabled criminals to move frequently over the border. By comparison, France led the way in concluding extradition treaties" and it was truly the founder of modern extradition practice. Clearly the leading country in the field of extradition from the end of the eighteenth to the nineteenth century was France. The important substantive treaty provisions commonly contained in modern extradition treaties were initiated by France like non extradition of nationals, the exception of political offenders, the concept of specialty, the exception of prescriptive offences and the inclusion of convicted as well as accused offenders all ind their beginnings in treaties negotiated by France. When compared with America and Britain, the French courts had not built up a great body of jurisprudence. This was due to the fact that extradition in France (and most of Europe) was for a long time a matter more with in the province of the executive than of the judicial branch of government." However the original creative role was played by the French treaty-makers. According to the Russian scholar de Martens" almost one hundred treaties pertaining to extradition were made during the 18" and early part of the 19 centuries (1718-1830). As might be anticipated these agreements were usually between contiguous States the fugitive would not flee far from home. The ease of ‘movement around the world available today obviously did not exist, but, as others have noted too, this was coupled with the fact that people would ordinarily remain in the community into which they were born all. their lives and the arrival of a stranger would not necessarily be welcome. Even if he had committed a crime, the offender would not readily flee because of the loss of livelihood and community that accompanied his fight. Nevertheless, extradition treaties proved increasingly necessary during the 18" century. The rise of extradition as the appropriate means of dealing with fugitive offenders probably stems from 2 movements also arising in that century. The first is the rise of the nation-state and second the concept of coequal sovereignty in Europe. To assert independent authority and equality in all matters, the ‘emerging States promulgated treaties on various matters as extradition was part of this. The other movement was the development of a burgeoning law of human rights."™ The emerging States tended to have broken away from the autocratic empires in an attempt to assert individual freedoms, as extradition treaties, by providing a system that regulated the surrender of fugitives, protected those individual freedoms. Now, to say these developments all occurred at once in the law of extradition creating the practice and procedure today would be ludicrous. For instance it took until 1850 for the principle of specialty to be fully worked out in the Franco- Saxon treaty of that year. However the prevailing philosophies of the 18* century shaped the development of extradition law under the unfolding umbrella of International Law. The 18 century ensured that extradition would be the appropriate method of returning fugitive offenders rather than any other system. The 19% century's liberalism developed the detail of the process known now. The United Kingdom's modern law began in 1794 with the Jay treaty, (Treaty of Amity, commerce and navigation with Great Britain)" concluded with the United States. Itincluded many features known in today's treaties, such as the need for a prima facie case and the requisition process being initiated by diplomatic communications. The mid 19* century saw three treaties being concluded” with the USA, En aa ea (Shearer, Extradition in Incernational law, (1971), at pp 8-11. '% Judicial was substituted for executive control by the law of March 0, 1927 arw.10-17: Harvard Research: Extradition, 382. LAShearer, supra note 54, at pl7. '™ Recueil De Traies, 7vol.1791-1826; Supplements Au Recueil Des Prin (1 Paux Trates, 20 vols.1802-42.see Geoff Gilbert, Transnational fugitive fren in Iseraconal aw: Eran nd other mechaioms,(Ineraona ude in human gh, vl 35) 1998. p19 ‘Bex, Humanity in Warfare, pp31 et.seq. (1983). Se for example, Thomas Paine, The Rights of Man. © Shearer, Extradition in Inveaatinal law, (1971), at p.18. LBPS..784; 5 MARTENS (I) 640. '™ USA. 1842 (The Webser- Ash Burton Treaty), 30 B FSP. 360; 3 MARTENS (Il) 20; France 1843,31 BLFS.P 194; 5 Martens (Il); Denmark 1862, 54.B.FS.P 27, 42France and Denmark respectively. Each of these treaties was implemented by a separate statute. None of them contained provisions dealing with political offences or the principle of specialty (that is that the fugitive may only be dealt with for the offences for which he was returned), both of which appear in every modern day United Kingdom treaty on extradition, But the Anglo French Treaty and the Webster- Ash Burton Treaty were given the force of law by two Acts of Parliament in 1843. These Acts permitted extradition only for a limited number of serious crimes but were notable in that they contained the requirement for dual criminality. By comparison, France had established extradition relations with not only most of Europe, but also with many emerging States in Latin America."™ These agreements incorporated most of the provisions seen in the present day extradition treaties. ‘The most significant treaty of this period was that negotiated with France in 1852 and for the first time in British practice the exemption of political offenders, the non extradition of nationals, the principle of specialty and the resolution of conflicting requisitions was included. But however the treaty did not receive the parliamentary approval in Great Britain. The problems created by land borders meant that fleeing criminals were much more prevalent for France than for the United Kingdom before theend ofthe 19% century and so extradition treaties were essential if France was to sustain a credible system of criminal justice. As the ease of movement improved however, the UK too had to make extradition arrangements, although even now the UK only surrenders between 30 and 40 fugitive offenders per year. These were often in the form of bilateral treaties. But within the British Empire, as it then was, extradition was governed by the Imperial Fugitive Offenders act 1881 with no treaties at all. When the empire turned into the commonwealth, this less formal system was retained, even though the relationship had changed into one of equal, sovereign States. Functionally, however, the commonwealth scheme is the same as a multilateral treaty. Modern extradition was fully in place by the tum of the century. GENERAL PRINCIPLES OF EXTRADITION 3.1 EXTRADITION PROCESS - GENERAL PRINCIPLES Three widely accepted principles of extradition law and procedure may be expressed conveniently in the following simple terms: (i) DOUBLE CRIMINALITY: A person may be extradited only for conduct which is criminal in both requested and requesting jurisdictions. (ii) SPECIALTY: A person shall be tried or punished after extradition only for the criminal conduct for which his surrender has been made, unless the requested State after surrender, gives consent to further trial or punishment. (iii) POLITICAL OFFENCE EXCEPTION: A person who is accused of political crimes shall not be extradited. PRINCIPLE OF DOUBLE CRIMINALITY: DEFINITION AND PURPOSE: Double criminality has been a traditional requirement of extradition. Oppenheim defines the principle, also called the rule of dual criminality as follows: No person is to be extradited whose deed is not a crime according to the criminal law of the State, which is asked to extradite as well as the State, which demands extradition.'” Geoff Gin vol $8.) 1998, p20 °% Unul 1995, thy four of the United Kingdom's 43 exant treaties were concluded berween 1870 and 1914 although several of thete are now supplanted by the European extradition convention 1987, ETS 24 ‘Oppenheim, International law, Vol. eighth edition, 1955, London, p70) 43 ional give offenders in Inernational law Exradiion and other mechanisms, (International srudeThis protection limits extradition to those crimes, which are punishable by the laws of both of the contracting parties. It is well recognized that the right of an individual to his personal liberty, in so far as he does not transgress substantive law of the realm or infringe the legal rights of others, is irrefutable and the person so deprived of his liberty has access to the courts to protect him from any violation of that right. Hence, criminality of the act or acts charged must be proved or determined in accordance with the national laws of the place where the fugitive or the person so charged is apprehended or detained’ because the executive does not have the prerogative to deprive an individual of his liberty arbitrarily in the absence of a positive law and without due process of law. The general rule therefore is that the offence in respect of which extradition is requested must be an extraditable offence not only under the law of the requesting State but also under the law of the requested State. Extraditable offences in treaties may be designated and achieved by one of two methods, enumerative or eliminative.'* 1. _Theenumerative method, by which the offenses are named and defined, has a limitative effect, confining the application of the treaty to stated offences. 2. Eliminative method, which is indicative rather than limitative, specifies as extraditable those offences which under the laws of both States are punishable by an agreed degree of severity, usually a minimum penalty. “The Broad Conduct Test”: The Rule in Nielsen and Mccaffery’? Nielsen was charged in Denmark with “breach of trust” which appeared to be a broad continuing, offence of dishonesty by a person occupying a fiduciary position asa company director, and which embraces many accusations of individual acts. In 1984 the House of Lords held conclusively that in order to determine whether a person who was alleged to have committed an “extradition crime” in a foreign State with which a bilateral arrangement had been made, it was necessary to look only at the conduct disclosed in the evidence supplied by the requesting State in or pursuant to its request. Tewould be relevant to refer to the recent decision of the Canadian Supreme courton double cri in Canada Justice) v. Fischbacher' Per McLachlin, C,.,and Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell Jf: The principle of double criminality codified in s. 3 of the Extradition Act has two components, one foreign and one domestic. The foreign component requires that the offence upon which extradition is requested be criminal in the requesting State and carry the specified penalty. The domestic aspect requires that the conduct underlying the foreign offence amount to a criminal offence under Canadian law with the specified penalty. Consistent with prevailing international practice and the principle of comity, Canada has adopted a conductbased approach to determining double criminality and, as a result, itis not necessary that the Canadian offence described in the authority to proceed or the committal order“match” the foreign offence for which the person is sought or surrendered in name or in terms ofits constituent elements; it is the essence of the offence that is important under the conductbased approach. : NIN‘ A decision on the extradition request by the requested State is a final verdict and is not open to challenge in the courts of the requesting State. A fugitive criminal brought back to a country cannot be tried forany other offences except the one for which he has been extradited. Tbisknown asthe rule of Speci. 6 "0 Satyadeva Bedi, Extradition in International law and practice (1991), voll, "0 M-CheriffBassioun, International Extradition United Staves law and practice, © Re Mien (1980) A.COeCovernmen ofthe USA ¥:Mecatery (198) 1 WR 86 2009 SCC 46, [2009] 3 SCR. 170. °. This word is aso writen as “specialty” which may be the preferred spelling because i resembles more closely the French term “specialite” the original term for the doctrine. See Christopher L. Blakesley, Excradition becween France and che United Sates: An Exercise in Comparative and {oceraational Law, 13 Vand. J. Transnat™ L. 653, 706 (1980); Christopher J. Morvill, Note, Individual Rights and the Doctrine of Specialty: The Deterioration of United States v. Rauscher, 4 Fordham Int LJ. 967 (1990-91). The Supreme Cour, however, has used the term “specialty See Van cauwenberghe v. Biard, 486 US. 517,525-26, Ct. Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 1993, (34 Va. J. Int L. 71). ‘edi, (2002), 44‘When a person is extradited fora particular crime, he can be tried for that crime only. This protection is designed to limit prosecutions in the requesting country, after extradition specifically to those for which extradition was officially requested or granted (unless, the extradited commits further offences after his arrival in the requesting country). Specialty’s origin is in the French word specialite, which means particularity. Specialty is frequently referred to as a principle because it is so broadly recognized in international law and practice that it has become a rule of customary international law." The U.S. Supreme Court first recognized the doctrine of specialty in US v. Rauscher. In that case, the U.S. asked for the extradition of William Rauscher, an officer on an American vessel at the time of his alleged crimes, to stand trial on a charge of murder on the high seas from Great Britain. Great Britain agreed. Once Rauscher arrived in the United States, he was also charged with infliction of cruel and unusual punishment, a charge not included in the extradition request" from the surrendering country, from which the defendant's treaty rights are derived." The court stated that it is unreasonable to infer that the asylum country would deliver an accused to be prosecuted by the requesting government without any limitation, implied or otherwise.” INCE EX N- OR. IND Recognition of political offence as worthy of exemption from extradition is of a comparatively recent origin, dating largely from the time of French Revolution, although the principle is found to have been asserted in a publication of 1755." The purpose behind POE is to reconcile the purposes of extradition" ie., the right to promote political change by balancing the interests of the person sought, the requesting and requested States, and the international legal order. In fact, until the French Revolution in 1789, the primary purpose of extradition had been to expedite the return of political offenders. The primary interest of the medieval State was the preservation of its political system, Consequently arrangements were made for their extradition. Both the exclusion of political offenders and the inclusion of common criminals are relatively recent additions to extradition practice." Thus Grotius mentioned that the right of demanding for punishment those who have fled beyond the frontier had been exercised in. the majority of the States of Europe only with respect to those crimes that affected the public weal, or which manifested extraordinary wickedness." Hobbes recommended more severe penalty for political crimes than for ordinary crimes, the former being graver than the latter." ‘6 M.Cheriff Basiouni , International Extradition United States law and practice, 4* edi 2002, p.512. 10 “Rauscher, 19 US 2 409. ‘a Even courts that believe defendants should be given broad standing rights concede that any rights defendants obtained from treaties are Aerivative in nature, see, for example Leighnor v. Turner, 684 F 24 385, 389(8° cir 1989). "United States v. Rauscher, 19 US. 407.424 (1886). Ici unreatonable, however, to expect requested counties to oversee every prosecution resulting from extradition. Morvillo, Individual Rights and the Doctrine of Specialty: The Deterioration of United States v. Rauscher, 14 Fordham Int! LJ. at 1023 (ating requested countries rely on requesting countries to full treaty obligations) ‘S"FHutchson ystem philosophy. Book 3, ch 10,29, 1051758) aloo Oppenheim, Iernaconl law, edb HLLautrpact, VL. 704 (8* 4.1955). ChPrakash Sinha, Asylum and International law, 1971, p.170. fugitives to be brought to justice, see Harvard Research, Research in 29 Am foe 22, 19 Sapp, 1938) 34 C, Van den Wingoere, The Polieal Offence Exception to Eradtion (190), w Ricoto’ De Joe Bei Pais Lites Tres, 1625 Book, ch Zl S(3,tandated by FLW.Keley (1925). Prakash sinha, Asylum and International law, 1971, p.171. ‘St Hobbes, Leviathan, 236 (ed by W.G.P Smith, 1947). 45SYLUM IN CONTENTS 1. Meaning 2. Basis of Asylum 3. Kinds of Asylum MEANING Asylum is as old as the history of mankind. The word “Asylum” is of Latin origin, which derives from the Greek word Asylon, meaning a place which shall not be violated. Historically, asylum has been regarded as a place of refuge where one can enjoy the protection of the state that granted asylum. The concept of asylum under international law involves two elements, firstly shelter which is more than merely temporary refuge. Second a degree of active protection on the part of the authorities in control of the territory of asylum." The Institute of International Law at its Bath session in 1950, defined asylum as “the Protection which a state grants on its territory, or in some other places under control of certain of its organs, to.a person who comes to seek it." ‘The right of asylum is a collection of certain manifestation of state conduct, these are > toadmita person toits territory, > toallow the person to sojourn there, > torefrain from expelling person, > torefrain from extraditing person to refrain from prosecuting punishing or otherwise restricting the person’s liberty.” B L w States’ right to grant asylum to a person, flows from the principle of sovereignty. State has right to control everything within its territory. This type of jurisdiction is termed territorial jurisdiction. It denotes that state enjoys civil as well as criminal jurisdiction over all persons and things within its boundary. To exercise jurisdiction is a right of a state and it's also manifestation of sovereignty. The Draft Declaration on the Rights and Duties of states prepared by the International Law Commission in the year 1949 laid down that every state has the right to exercise jurisdiction over all persons and things therein. The Draft Convention on Territorial Asylum adopted by the General Assembly in 1974 has recognized that granting asylum is a sovereign right of state." The right of territorial jurisdiction extends to embassies, legations, vessels and aircrafts. States are free to impose restriction on their territorial jurisdictional right. Thus, states may conchude treaties for extradition of fugitive criminal. If two states conclude an extradition treaty, legal obligation arise on the part of the states not to grant asylum and extradite in accordance to rules laid down in the extradition treaty. KINDS OF ASYLUM Asylum maybe territorial or internal, i.e., granted by a state within its territory, or it may be granted extra territorial; which is granted within the premises of legations, consular premises, international headquarters and warships. Starke ‘International Law’, 11° ed. 1994 ' Institute de Droit International, Session De Bath, Ar. 1 ofthe Resolution. "Roman Boed, The state ofthe Right of Asylum in International Law, 5 Duke J. Comp. & Int L. 1 1994-1995. '™% Draft Convention on The Territorial Asylum, 1974, Article I. 46TERRITORIAL ASYLUM ‘When Asylum is granted by a state within its territory, it’s called territorial asylum. The right to ‘grant asylum by a state to a person on its own territory proceeds from the principle of state sovereignty. And one of the exhibitions of state sovereignty is exclusive jurisdiction over all people and everything found in the territory. A state has complete right to admit or expel any person found in its territory. The states exercise full discretion in deciding whether asylum is to be granted toa person unless it is bound by any legal obligation to grant asylum to a person. Declaration on Territorial Asylum was adopted by the General Assembly in the year 1967, on December 14. The Declaration consists of a preamble and four Articles which deal with principles relating to the grant or refusal of asylum. EXTRATERRITORIAL ASYLUM When asylum is granted by a state at the places outside its own territory, it's called extraterritorial asylum. According to M’cNair, the term extraterritorial asylum is usually described to those cases in which a state declines to surrender a person demanded who is not upon its own physical territory but is upon one of its public ships laying in foreign territorial waters or upon its diplomatic (or rarely consular) premises within foreign territory. Thus, asylum given within the premises of legations, consular premises and on the warships are instances of extraterritorial asylum. ASYLUM IN LEGATION When asylum is given by a state within its premises of embassy situated in foreign countries, it's known as asylum in legation or diplomatic asylum. Asylum on legation is based on the principle of extraterritoriality, a fiction in which legation premises were regarded as representing an extension of the sending state's territory within the territory of receiving states." Asylum in consulates or consular premises ~ Similar principles as well as exceptions would apply to consulates or consular premises. The crucial difference between the legations and consulates is that recognized immunities attach to the legations, while the same is not true for consulates. It’s to be noted that even immunities of legations don’t include general right of asylum. ASYLUM IN WARSHIPS One theory isthat the warships are extraterritorial. According to Oppenheim, “public ship is floating portion of the flag state." Thus, all persons and goods on board remains under jurisdiction of the flag state even during the stay of her in foreign waters, that maybe in ports or internal waters. According to J.G Starke “Warships and public vessels of foreign states, while in the ports or internal waters of another state are in great measure exempt from the territorial jurisdiction." Public vessels and warships are required to observe the ordinary laws of the port. ASYLUM IN MERCHANT VESSELS Merchant vessels don’t enjoy any such immunities granted to warships, therefore they are not exempted from the local jurisdiction, thus cannot grant asylum to the local offenders, fleeing from local authorities. There is, therefore a rule that asylum is not granted on merchant vessels.'® However states may grant asylum if they conclude a treaty to this effect. For example Central American Republics have concluded a contract which binds them to respect the inviolability of the right of asylum abroad the merchant vessels of whatsoever nationality anchored in their waters. However the treaty is only binding upon the signatories. ‘Mtr, “Enredkion and Bxadidonal Alm, BYIL VOL. 28, 1951, Page, 172, “@M.G. Kaadharan Nayar Te ight of Arum ia Interaconal law: sats and prospects, 17 St. Louis U. LJ. 1719721973 8 Oppenheim’ International Law, Page 768, "© Stack’s International Law. 11th ed. 1994, P ‘O'Connell, International Law’, Vol. (i) Page 814 47ASYLUM IN THE PREMISES OF INTERNATIONAL INSTITUTIONS ‘The Headquarters Agreement of the United Nations in 1946 acknowledged the immunity of the headquarters area and of the buildings and forbids the United States officials from entering without the permission of the Secretary ~ General. However the Agreement proves that “the United Nations shall prevent the headquarters district from becoming a refuge either for persons who are avoiding arrest under the federal, state, or local law of the United States or are required by the Government of the United States for extradition to another country, or for persons who are endeavoring to avoid service of legal process.” But the Headquarters Agreement of the U.N. and of other specialized agencies disclose no general right to international institutions to grant asylum or even refuge in their premises to offenders as against territorial state. However a right to grant temporary refuge in extreme circumstances of danger from mob cannot be ruled out. ASYLUM AND EXTRADITION The liberty of state to bestow asylum to a person overlaps to an extent with its liberty to refuse extradition. Stark says “Asylum stops where extradition begins.” The relationship between two concepts makes it impossible for either to be considered in isolation. The term extradition has derived from two Latin words ex and traditum. Ordinarily it means ‘delivery of criminals’ or ‘surrender of fugitives’. Extradition can be defined as surrender of accused ora convict by the state on whose territory he is found tothe state on whose territory he alleged to have committed a crime or to have been convicted of a crime. The practice of extradition is based on some prudence. It's a common desire of every state that serious crimes must not go unpunished. Criminals are extradited as the state on whose territory the crime alleged to have been committed, is always in a better position to try the offender in relation to jurisdictional issues or evidential matters. The international law applies maxim “aut punier, autdedere” which means the offender must be punished by the state if refuge or extradited to the state which is willing to prosecute and punish the offender. The person who is not extradited, is said to have been given asylum. Normally asylum is granted to political offenders, religious and military offenders because the rules of international law prohibit extradition of such persons. The extradition and asylum are two interdependent concepts but the distinction between them must be kept in mind. It’s normally considered that extradition process falls within the ambit on international law, whereas the issue of asylum comes within the purview of internal law, an immigration matter. Extradition isto be decided on the basis of treaty binding on the two states concerned or in the absence of the treaty on the basis of customary law or reciprocal relations. Asylum process is deemed to be considered as internal matter and to be decided on national considerations. ™ Agreement with the United Nations regarding the Headquarters of the United Nation, signed in 264 June, 1947. ° Agreement with the United Nations regarding the Headquarters ofthe United Nations, signed in 26¢h June, 1947, Article 1b) 48