NATIONALITY

MEANING

 Fenwick defines ‘Nationality’ as follows: “….as the bond which

unites a person to a given State which constitutes his
membership in the particular state, which gives him a claim to
the protection of that State and which subjects him to the
obligation created by that State.”
In Re Lynch, the British Mexican Claims Commission defined
‘Nationality’ in the following words: “ A man’s nationality forms a
continuing state of things and not a physical fact which occurs at a
particular moment. A man’s nationality is a continuing legal
relationship between the sovereign State on the one hand and the
citizen on the other. The fundamental basis of a man’s nationality is
membership of an independent political community. This legal
relationship involves rights and corresponding duties upon both on
the part of the citizens no less on the part of the State.”
According to the World Court under IL, nationality is a “legal bond
having as its basis a social fact of attachment, genuine
connection of existence and sentiments together with the
existence of a reciprocal rights and duties. It may be said to
constitute a juridical expression of the fact that the individual
upon whom it is conferred either directly by the law or as a
result of an act of the authorities, is in fact more closely
connected with the population of State conferring nationality
than with that of any other State.” (Nottebohm case (second
phase) ICJ Rep 1955 p. 4)
It is for the internal law of each State to determine as to who is,
and who is not its national, subject to particular international
obligations. A State cannot claim that its determination must be
acceptable to other States unless and until its determination is in
conformity with the rules of International Law.
Significance of nationality in law

1. Nationality is the principal link between an individual and IL.

Nationality has often been used as a justification for the
intervention of a govt. to protect another country. It creates
rights only in favour of a State whose nationals they are.
2. Duties of States in relation to war and neutrality, resting on
customary law, are framed in terms of acts or omissions by
nationals which States should prevent and, in some cases,
punish.
3. Aliens on the territory of a State produce a complex of legal
relations consequent on their status as non-nationals.
4. Acts of sovereign may give rise to question of international
responsibility when they affect aliens or their property.
5. Aliens may be expelled for sufficient cause and their home
State is bound to receive them.
6. National will not, while aliens may, be extradited.
7. Nationality provides a normal (but not exclusive) basis for
exercising civil and criminal jurisdiction even concerning acts
committed abroad.
8. In a number of cases, the PCIJ has held that States may by
agreement take matters, such as nationality, out of domestic
jurisdiction and make them of international concern and
subject to international jurisdiction. [Case concerning certain
German interests in upper Silesia; Treatment of Polish Nationals in
Danzing territory; etc.]
Starke pointed out the importance of Nationality under IL:
1. The protection of rights of diplomatic agents are the
consequence of nationality.
2. If a State does not prevent offences of its nationals or allows
them to commit such harmful acts as might affect other States,
then that State shall be responsible for the acts committed by
such person.
3. Ordinarily, States do not refuse to take the person of their
nationality.
4. Nationality may also mean that the national of a State may be
competent to do military service for the State.
5. State can refuse to extradite its nationals.
6. During war, enemy character is determined on the basis of
nationality.
7. . States frequently exercise jurisdiction over criminal and other
matters over the persons of their nationality.
DEVELOPMENT
 Determination of nationality by State laws.
 Difficulties due to lack of uniformity in State laws in regard to nationality
 Problems of Statelessness, double nationality, etc.
 Hague Codification Conference, 1930 an endeavour to end conflicts
arising out of divergent State laws in r/o nationality. Art. 1 of the
Convention provides: “It is for each State to determine under its own
law who are its nationals. This law shall be recognized by other
States in so far as it is consistent with international conventions,
international customs, and the principles of law generally
recognized with regard to nationality.”
Art 3 of the European Convention on Nationality, 1997, provides that
national legislation must be consistent with international
conventions, international customs, and the principles of law
generally recognized with regard to nationality.”
Nationality of Married Woman was adopted in 1957; and
the Convention on the Reduction of Statelessness was
adopted in 1961.
Nationality and Domicile
Nationality is the basis of the membership of a person with an
independent community. It denotes the relation of the person
with the person’s nation which protects the person and the
person is bound to follow the rules enacted by that State.
Domicile denotes the residence of the person. A person may
acquire nationality through domicile. In different countries there
are different rules and processes in regard to acquisition of
nationality through domicile.
Nationality and Citizenship.
Often considered synonymous of each other, but in fact there is a
great difference.
Nationality under IL, implies the legal relationship which exists
between the nation and the individual. i.e. the civil and natural rights of
an indl may come under IL.
Citizenship, denotes the relation between the person and the State
law. i.e. the rights of the citizens are the sole concern of the State law.
Possible for all citizens to possess the nationality of a particular State,
but not necessary that all nationals may be citizens of that particular
State. Citizens possess full political rights in that State; but person
possessing nationality in a particular State may not possess all
political rights.
NATIONALITY RULES: ADOPTED BY STATES

The two main principles or predominant modes on which nationality

is based are: descent from a national (jus sanguinis) and the
fact of birth within state territory (jus soli.)
The Convention on Certain Questions relating to the Conflict of
Nationality Laws of 1930 provides in Art 12: “Rules of law which
confer nationality by reason of birth on the territory of a State
shall not apply automatically to children born to persons
enjoying diplomatic immunities in the country where the birth
occurs.”
The 1961 UN Conference on Diplomatic Intercourse and Immunities
adopted an Optional protocol concerning Acquisition of Nationality.
Art II provides: ‘Members of the mission not being nationals of
the receiving State, and members of their families forming part
of their household, shall not, solely by the operation of the law
of the receiving State, acquire the nationality that State.’
Few legislations and other prescriptions exclude the jus soli in
respect of children of persons exercising official duties on
behalf of a foreign govt.
Another exception commonly adopted concerns children of
enemy alien fathers born in territory under enemy occupation.
Extensions of the Jus Soli. States have generally applied
the principle of jus soli to birth on ships and aircraft
registered under the flag.
MODES OF ACQUISITION OF NATIONALITY

1. By birth – Of the State where a person is born. A person also

acquires the nationality of his parents at the time of birth.
2. Naturalization – When a person living in a foreign State for a long
time acquires the citizenship of that State, it is said to be state of
nationality acquired through naturalization. In Nottebohm case the
ICJ held that in respect of grant of nationality there is no obligation
of the State if that man has no relationship with the State of
Naturalization (principle of effective nationality).
Nottebohm’s case (ICJ Rep. 1955 p.4)-
 Born in 1881 in Germany Friedrich Nottebohm went to Guatemala in
1905.
 He had German nationality by birth and remained a German national
until 1939.
 From 1905 he resided in Guatemala where he carried on the business
of banking, commerce and plantation.
 He continued his business relations with Germany and went to
Germany several times.
 After 1931 he visited his brother who resided in Leichtenstein.
 In 1938 he left Guatemala. After reaching Leichtenstein, he through his
attorney, submitted an application for naturalization as a citizen of
Leichtenstein, and the same was granted on 13 Oct 1939.
Thereafter he conducted himself exclusively as a national of
Leichtenstein, particularly with regard to Guatemala. In the
beginning of 1940 he returned to Guatemala on Leichtenstein passport
and in Guatemala his change of nationality was enrolled on the register
of Aliens.
As a result of war measures his property was seized in 1943 and he
was arrested by Guatemala authorities and handed over to the armed
forces of the US in Guatemala.
 Later he was deported to the US and kept there for more than two
years.
 In 1944, as many as 57 legal proceedings were started against
him in Guatemala to confiscate all his properties.
 After his release from internment in US he wanted to go to
Guatemala to oppose case filed against him but he was refused
readmission to Guatemala.
In 1946 he went to Leichtenstein and lived there thereafter.
In 1949 his properties in Guatemala were confiscated under the law
of Guatemala.
After having been domiciled in Leichtenstein for five years,
Leichtenstein espoused his case, filed a case in the ICJ on 11 Dec
1951.
 By its judgment dt.18 Nov 1953, the Court rejected the preliminary
objection of Guatemala against the jurisdiction of the Court. In the
second phase the Court considered only the admissibility of claims
(of reparation summing into ten million Swiss Francs) and held by a
majority of 11 to 03 that Leichtenstein was not entitled to extend
protection vis-à-vis Guatemala.
 The World Court had to decide whether by the fact of grant of
nationality by the naturalization of Nottebohm by Leichtenstein
would directly entail an obligation on the part of Guatemala to
recognize Leichtenstein’s right to exercise its protection over
Nottebohm.
The Court noted that Guatemala was the main centre of
Nottebohm’s business and he remained there for as many as 34
years . Even after his removal in 1943 as a result of war measures
Guatemala remained the main seat of his business.
While connection with Leichtenstein were extremely tenors. At
the time of his application for naturalization, he had
neither any settled abode nor had resided in that country
for a long time. Nor did he intend to transfer his business
activities to Leichtenstein.
Applying the principle of effective nationality, the Court held
that Nottebohm did not enjoy the nationality of Leichtenstein.
The Court said that it was the bond of nationality between a
State and an individual which alone conferred upon the State
the right to put forward claim on his behalf on the international
plane, the grant of nationality was entitled to recognition by
other States only if it represented a genuine connection
between the individual and the State granting its nationality.
 Nottebohm’s nationality was not based on any genuine prior
link with Leichtenstein and the object of his naturalization
was to enable him to acquire the status of a neutral
national in time of war. On the basis of these reasons, the
Court held that Leichtenstein was not entitled to espouse his
case and put forward an international claim on his behalf
against Guatemala.
3. By Resumption. Sometimes a person may lose his nationality
because of certain reasons. Subsequently, he may resume his
nationality after fulfilling certain conditions.
4. By Subjugation. When a State is defeated or conquered, all
the citizens acquire the nationality of the conquering State.
5. By Cession. When a State has been ceded in another State,
all the people of the territory acquire nationality of the State in
which their territory has been merged.
LOSS OF NATIONALITY

1. By Release. In some States law, provides that the citizens may

loose nationality by release. It is necessary to submit an application
for the same. Once the application is accepted the person
concerned is released from the nationality of the State concerned.
2. By Deprivation. Certain States law may provide that if the national
of that state without seeking permission of the govt. obtains
employment in another State, he will be deprived of his nationality.
3. Long Residence Abroad. State laws of many States contain
provisions in this connection that if a person resides for a long period
abroad, his nationality ends.
4. By Renunciation. A person may renounce his nationality esp when
a person acquires nationality of more than one State.
5. Substitution. Some States provide for substitution of nationality.
DOUBLE NATIONALITY & NATIONALITY OF MARRIED
WOMAN

 Due to conflict of the laws of nationality of different

countries, a situation arises when a person possesses nationality of
more than one State. Eg. a woman, who after her marriage
acquires the nationality of her husband may continue to possess
her original nationality. Double nationality may also be acquired by
birth such as by the parents who are at the time of birth in a foreign
State. Treaties may provide that persons may by their will
select their nationality.
 Hague Conf.,1930 attempted to remove the difficulty arising out of
double nationality in consequence of war (Art. 3 to 6.). Eg. Art 5
provides that such a person shall be treated in third State as if
he has only one nationality. The third State will either recognize
the nationality where he often resides or will recognize the
nationality which is more relevant under the facts and
circumstances of individual case.
 Art 8 to 11 provides for nationality of married woman.
According to these provisions when a woman marries then
she will automatically acquire the nationality of her
husband. The Convention on the Nationality of Married Woman
is an attempt to remove the difficulties and problems arising out
of double nationality.
 The UDHR, 1948 (Art 15(1)) provides that everyone has the
right to nationality. Art 15(2) provides that no one shall be
arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Covenant on Civil and Political Rights, 1966 affirm the right
of every child to acquire a nationality but has not incorporated
the right of everyone to a Nationality and the right not to be
deprived of one’s nationality.
 Convention on Elimination of All Forms of
Discrimination Against Women (CEDAW), 1979 came into
force in 1981 and has 183 State parties. State parties agreed
to grant to women equal rights with men to acquire,
change or retain their nationality. They also undertook to
ensure in particular that neither marriage to an alien nor
change of nationality by the husband during marriage
shall auto change the nationality to the wife, render her
stateless or force upon her the nationality of the husband.
State Parties shall also grant women equal rights with respect
to nationality of children.
STATELESSNESS

 Statelessness is a condition which not only means great hardship

and lack of security for individuals but involves the existence of a serious gap
in the application of IL. A person who does not possess the nationality of
any nation cannot exercise the rights conferred upon him by IL.
 Since municipal laws of different States differ in points concerning
nationality, an individual sometimes possesses more than one nationality and
sometimes none at all. Such a state is referred to as the state of
Statelessness. Stateless persons are not only without the diplomatic
protection of any State, but they are also refused the enjoyment of
rights dependent on reciprocity.
Nationality is imp to the individual not only with regard to political rights and
privileges but also because his civil status and capacity is dependent upon it.
[Personal capacity-attainment of majority, capacity of married woman, family
rights( marriage, divorce, adoption of children), matrimonial regime and
succession to moveable and in some case to immovable property etc.]
 The situation of statelessness is recognized under German
law, English law and IL. Oppenheim has compared such persons with
the ships floating in the open sea without the flag of any country.
 Stoeck v. The Public Trustee,[(1921)2 Ch 67]- Held, that if a person
is not a citizen of any State, he will be called Stateless.
 Russell, J observed “the question of what State a person
belongs to must ultimately be decided by the municipal law of the state
to which he claims to belong to or to which it is alleged that he
belongs.
This principle has been incorporated in Hague Convention of 1930.
Art 2 provides that any question as to whether a person possesses the
nationality of a particular State shall be determined in accordance with
the law of that State.
Art 15 of UDHR, each person is entitled to have nationality and his
nationality cannot be taken away or snatched arbitrarily.
CONVENTION ON THE REDUCTION OF
STATELESSNESS, 1961

The main provisions of the Convention are:-

1. A party to the Convention shall grant its nationality to a person born
in its territory who would otherwise be Stateless. Such a nationality
shall be granted either by birth or by operation of law.(Art 1)
2. A child born in wedlock in a territory of a party to the Convention,
and whose mother is a national of that State, shall get that
nationality in case the child would otherwise be Stateless.
3. A contracting State shall grant its nationality to a person who is
born in its territory and who would be otherwise Stateless and on
account of certain reasons he is unable to acquire the nationality of
the Contracting State. But this is subject to certain conditions
including the condition that at the time of the person’s birth, the
nationality of one of his parents was that of the Contracting State.
(Art 1)
4. A State party to the Convention shall also grant its nationality to a person
who was although not born in the territory of such State party yet at the
time of his birth, one of his parents was the national of that State party.
Such a grant of nationality may be subject to certain conditions and may
be granted either on application or by operation of law.(Art 4)
5. Loss of nationality as a result of any change in the personal status of a
person such as marriage, termination of marriage, and adoption, shall be
conditional upon possession or acquiring of another nationality.(Art 5)
6. A person shall not be deprived of his nationality, so as to become
Stateless, on the ground of departure, residence abroad or failure to
register.(Art 7)
7. Naturalization abroad or renunciation shall not result in loss of nationality
unless the person concerned acquires another nationality.(Art 7)
8. Except in the circumstances provided in Art 7, normally a
person shall not loose the nationality of the State party to the
Convention if such loss renders him Stateless.(Art 7)
Conclusion
Statelessness is sought to be minimized and grant of
nationality liberalized and obligated. And if nationality is
ensured to a person, he acquires political rights which stand
four square between the offending State and the expelled. Nor
can any particular racial groups be deported on the arbitrary
fiat of any rule.
 EXTRADITION

Each State exercises complete jurisdiction over all the persons

within its territory; but sometimes when a person after
committing crime runs away to another country, the country
affected finds itself helpless to exercise jurisdiction to punish the
person. In such a situation peace and order can be maintained
only when there is international co-operation among the States.
There is a social need to punish such criminals and in order to
fulfill this social necessity the principle of extradition has been
recognized.
Meaning/Definition of the term ‘extradition’.
Extradition is the delivery of an accused or a 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 being.
As per Grotius, it is the duty of each State either to punish the
criminals or to return them to the States where they have
committed crime.
In practice, States do not accept such obligation. Under IL,
extradition is mostly a matter of bilateral treaty. In principle each
State considers it a right to give asylum to a foreign national as an
inference from their territorial supremacy.
There is no universal rule of customary IL in existence imposing
the duty of extradition. Extradition depends on the provisions of the
existing extradition treaties. In Factor v. Laubenheimer [(1993) 280
US 276], the Court held: “The principles of IL recognize no right
to extradition apart from treaty while a govt. may, if agreeable
to its own constitution and laws, voluntarily exercise the
power to surrender a fugitive from justice to the country from
which he fled…
The legal right to demand his extradition and the correlative duty to
surrender him to the demanding State exist only when created by
treaty.
Extradition treaty is not the only basis for extradition of fugitive
criminal. Extradition Act, 1962 governs the law governing extradition
in India.
Chapter III- deals with return of fugitive criminals from Commonwealth
countries with extradition arrangements.
Chapter II - deals with extradition of fugitive criminals to foreign States
and to Common wealth countries to which Chapter III does not apply.
Under Sec 4, a requisition for the surrender of a fugitive criminal of a
foreign State can be made to the Central Govt. The Central Govt.
may, if it thinks fit, order for magisterial inquiry (Sec 5.)
Under Sec 7(4), if a magistrate is of the opinion that a prima facie
case is made out in support of the requisition of the foreign State or
Commonwealth country, he may commit the fugitive criminal to
prison to await orders of the Central Govt. and shall report the result
to the Central Govt.

Distinction : ‘Expulsion’ (under Foreigners Act, 1946) and

“Extradition’.
The SC in Hans Muller of Nuremburg v. Superintendent, Presidency
Jail, Calcutta & Ors [AIR 1955 SC 367], clarified the distinction by
observing that the Foreign Act confers the power to expel
foreigners from India. It vests the absolute and unfettered
discretion and, as there is no provision fettering this discretion
in the Constitution, an unrestricted right to expel remains.
The law of extradition is different due to treaty obligations. It confers
a right to certain countries to ask the persons who are alleged to
have committed certain specified offences on the territories; or who
have already been convicted of those offences by their courts, be
handed over to them in custody for prosecution or punishment .
The Extradition Act is a special branch of the law of criminal
procedure. It deals with criminals and those accused of certain
crimes.
The Foreigners Act is not directly concerned with criminals or crime
though the fact that a foreigner has committed offences or is
suspected of that may be a good ground for regarding him as
undesirable.
Under the Extradition Act warrants or summons must be issued;
there must be magisterial enquiry and when there is an arrest it is
penal in character and when a person leaves India he does not
leave the country as a free man. The police in India hands him over
to the police of the requisitioning State and he remains in custody
throughout.
In case of Expulsion, no idea of punishment is involved, and if a man
is prepared to leave voluntarily he can ordinarily go as and when he
pleases. It is not so under the Indian law, and is left to the unfettered
discretion of the CG.
The Foreigners Act is not governed by the provisions of the
Extradition Act. Sec 3(1) of the Extradition Act gives an unfettered
right of refusal- it says, “The CG may, if thinks fit.”
 ESSENTIAL CONDITIONS OF GRANTING EXTRADITION
OR RESTRICTION ON SURRENDER

1. Non-extradition of political criminals. Extradition for political

crimes is not allowed. Most States refuse to commit themselves
to extradite…any person charged with ‘political crimes’ or
crimes that are politically motivated. For an offence to be
political, it is necessary there should be two or more than two
parties in the State.
Eg. Re Castioni (Swiss canton case); and Re Meunier (French
anarchist)
Due to different political systems and the need to deal with the
complex crimes, Oppenheim pointed to three practical attempts
made to formulate a satisfactory conception of the term(political
crime):
a) The Attentat Clause.- Enacted by Belgium in1856 after the attempt
to murder of the Emperor Nepolean III by Jacquin, a French
manufacturer domiciled in Belgium, and a person named Celestin
Jacquin a foreman in his factory by trying to cause an explosion on
the railway line between Lilla and Calais. The extradition of the said
two sought by France was refused by the Belgian Court of Appeal.
To deal with such cases Belgian ATTENTAT clause was enacted. It
provides that murder of the Head of a foreign govt, or member
of his family, should not be considered a political crime. Britain
and many other European States also adopted such attentat clause.
b) The Russian Project of 1881.- In 1881, Emperor Alexander II was
murdered. Russia invited other States to hold an international
conference at Brussels to consider the proposal that murder or
attempt to murder should not be considered as a political crime. The
Russian initiative failed to materialize because Britain and France
refused to participate in the conference.
c) The Swiss Solution to the problem in 1892. In 1892, Switzerland
enacted extradition law.
Art 10 of the said law recognises the principle of non-extradition of
political criminals. Art 1 also recognises that if the chief feature of
the offence contained more aspects of an ordinary rather than a
political crime, then the political criminal would not be
surrendered and the decision as to whether such criminal could be
extradited or not was left with the Bundesgericht (the Highest Swiss
Judicial Court.)
2. Extradition is not allowed for military criminals also.
3. For religious crimes also persons are not extradited.
4. The Rule of Specialty: An accused is extradited for a particular
crime, and the country which get back the criminal is entitled to
prosecute that person only for the crime for which he was extradited.
The same law prevails in India.
5. Rule of Double Criminality. The crime for which extradition is claimed
should be a crime in both the countries.
6. There should be sufficient evidence (prima facie) for crime relating to
extradition.
7. Necessary certain other prescribed formalities should be fulfilled.
8. The conditions and terms mentioned in the Extradition Treaty should
be fulfilled.
Savarkar case (1911)
Savarkar was an Indian revolutionary who was being brought to India
to be prosecuted on the ground of crimes which he was alleged to
have committed.
When the ship was in the port of Marcelese, Savarkar escaped, but
later on he was apprehended by French police . But the Captain of the
French ship returned Savarkar to the Captain of the British ship under
the wrong impression that it was his duty to do so.
Later on the Govt of France requested the British Govt to return
Savarkar on the ground that the rules relating to his extradition were
not strictly observed.
This case was entrusted to the PC of Arbitration, Hague.
The Court decided that the IL does not impose any obligation upon the
State whereby on the above grounds the criminal may be returned. i.e.
once a person is extradited, even though it was done in irregular way,
the country receiving the fugitive or criminal is not bound under IL to
return the accused.
This decision has been criticized as not being based on sound
principles of justice.

9. When a person is charged with having been an accessory in a crime

committed in a foreign State which seeks his extradition, it is not
necessary that at the time of offence the said person must be
present in the said foreign State.
Mobarak Ali Ahmed v. St of Bombay (AIR 1957 SC 857)
The SC held,” The fastening of criminal liability on a foreigner in
respect of culpable acts or omissions in India which are judicially
attributable to him not withstanding that he is corporeally present
outside India at that time, is not to give any extra-territorial operation
to the law; for it is in respect of an offence whose locality is in India,
that the liability is fastened on the person and punishment is awarded
by the law, if his presence for the trial can be secured.
10. Extradition is a matter of bilateral treaty, there must be a ‘formal
treaty’ and not a simple agreement or notification.
11. Generally, States do not allow extradition of their own citizens.
However this has changed based on the observations of the
Chairman (Cockburn, C.J.) of the Royal Commission on Extradition,
that ‘reciprocity should not be insisted upon.’ If he has broken the
laws of a foreign country his liability ought not to depend upon his
nationality...
…The convenience of trying crimes in the country where they were
committed is obvious. It is much easier to transport the criminal to the
place of offence than to carry all the witnesses and proofs to some
other country where the trial is held. The Extradition Act, 1962 also
provides for the surrender of criminals including Indian subjects for a
variety of offences.
RESTRICTIONS ON SURRENDER UNDER INDIAN LAW

Sec 31, Extradition Act, 1962, provides restrictions as follows:

1. Offences of political character.
2. Prosecution for offence being barred by time.
3. Extradition treaty or provision by law of Foreign State that
Fugitive criminal shall not be tried or detained in that State
for any offence committed prior to his surrender or return.
(violation of the rule of speciality)
4. If accused of some offence in India other than offence for
which extradition sought.
5. After expiration of 15 days after being committed to prison.
THE ABU SALEM
EXTRADITION CASE

 The first case related to the murder of one Pradeep

Jain over the non-payment of some money in a civil
dispute, on March 7, 1995. He was charged under
various sections of IPC, the Arms Act, and the Terrorists
and Disruptive Activities (Prevention) Act (TADA).
 The second case related to Salem’s role in the
Bombay blasts. Salem allegedly stored, distributed,
and transported illegally smuggled AK-56 rifles, hand
grenades, as well as boxes of magazines from a
godown in Gujarat to Mumbai in a Maruti van which
had specially crafted secret cavities.
 Subsequently, he left Mumbai and entered Portugal
under an assumed name on a Pakistani passport.
 A designated TADA court in Mumbai declared him a proclaimed offender on
October 15, 1993. Later, a non-bailable warrant was issued against him.
Interpol also issued a Red Corner notice for his arrest on September 18,
2002.
On December 13, 2002, the Government of India through the then Minister
of State for External Affairs Omar Abdullah, submitted a requisition for
Salem’s extradition to Portugal in nine criminal cases relying on the
International Convention for the Suppression of Terrorist Bombings and on
assurance of reciprocity as applicable in international law.
The government gave a solemn sovereign assurance on December 17,
2002, through the then Deputy Prime Minister, L K Advani, that it would
exercise powers conferred by Indian laws to ensure that if extradited by
Portugal for trial in India, Salem would not be visited by the death
penalty or imprisonment for a term beyond 25 years.
The Ambassador of India in Lisbon gave another solemn assurance on May
25, 2003, that if Salem is extradited, then he would not be
prosecuted for offences other than those for which the extradition
was sought, and he would not be extradited to any third country. (Rule of
Specialty)
 The Ministry of Justice of Portugal by an order dated
March 28, 2003, allowed his extradition, but only for
some of the offences in the GOI request. Salem
challenged this before the Court of Appeal, Lisbon,
which allowed his extradition for all offences in the
request except those punishable with death or life
imprisonment.
The Supreme Court of Portugal confirmed the order of
the Court of Appeal, Lisbon on January 27, in view of
the assurance given by GOI that Salem would not be
visited with death penalty or imprisonment for a term
beyond 25 years.

https://www.scconline.com/blog/post/2022/07/13/abu-s
alem-to-be-released-from-prison-after-completition-of-2
SAARC ACCORD ON EXTRADITION

The Foreign Secretary of South Asian Regional Counties, on 16 Jun

1987 entered into an agreement on Extradition. This agreement
provides for extradition of persons accused of terrorist acts but does
not include acts of political nature. The SAARC Convention on
Terrorism, 1987 also provides for the extradition of persons accused
of terrorist acts. However, Art 11 of the Convention provides, that if
the State concerned thinks that it is not proper and expedient to
extradite the accused, there shall be no obligation to extradite. The
following six crimes shall not be considered as political crimes or
crimes inspired by political motives:
1. Crimes relating to aircraft hijacking under the Hague Convention,
1970 on Hijacking.
2. Crimes relating to aircraft hijacking under the Montreal
Convention, 1971 on Hijacking.
3. Crimes under the Convention of 14 Dec 1973 relating to
Prevention and Punishment of crimes against internationally
Protected Persons ( a term referring explicitly to heads of
State, heads of Govt., Foreign ministers, ambassadors,
other official diplomats, and members of their families.)
4. Crimes under any Convention of which the SAARC States are
parties and under which State parties are under obligation to
prosecute or extradite the accused;
5. Crimes relating to murder, assault, making hostage etc.; and
6. Attempt to aid and advise the crime etc.mentioned in 1. above.
ASYLUM

Asylum is understood as an active protection extended to a

person from another State by a State which admits him on his
request. Asylum involves two elements:
1. A shelter which is more than a temporary refuge;
and
2. A degree of active protection on the part of the
authorities which have control over the territory of asylum.
The Institute of International Law has defined asylum as “the
protection which a State grants on its territory or in some place
under of her the control of certain of its organs to a person who
comes to seek it.
The word Asylum is derived from the Greek word ‘Asylia’ which
means inviolable peace.
Active protection granted by a State to a person seeking such a
refuge and protection on the territory under its control. It comes
into the picture when a territorial state declines to
surrender a person to the requesting state and provide
shelter and protection in his State.
A refugee is defined as someone who has been forced to flee
persecution, war or violence and has crossed an international
border to find safety in another country. They have a well-
founded fear of persecution because of their race, religion,
nationality, political opinion or membership in a
particular social group. Refugees are afforded international
protection by other countries because it is too dangerous for
them to return home. An asylum seeker is someone whose
request for sanctuary has yet to be processed.
Not every asylum seeker will ultimately be recognised as a
refugee, but every refugee is initially an asylum seeker.
Art 14 of the UDHR provides: “Every one has a right to seek
and enjoy in other countries asylum from prosecution.” This
declaration merely recognises the right of asylum, it does not
grant right to receive asylum.
The Draft Convention on territorial asylum adopted by GA 1974
has recognised under Article 1 that the grant of Asylum is a
sovereign right of a state.
Territorial Asylum, Diplomatic Asylum and Neutral Asylum