ASYLUM

Asylum is a form of protection which allows a foreign individual to remain in the host country
instead of being removed/deported to home country or any country where he she fears
persecution or harm. If they are granted asylum, this gives them protection and the right to stay
in the host country. Asylum can also be defined when a country gives protection to individuals
who are being persecuted by another sovereign country. Most of the times, it is their own
government. It must be noted that asylum deals with refugees. Those granted asylum are called
asylees.To apply asylum in a particular host country, you must be physically present in the
country or be seeking entry into the host country’s /be at the port of entry. People can seek or
win asylum because of harm or persecution due to their race, religion, nationality, political
opinion (or political opinion someone thinks you have) or the fact you are part of a particular
social group.

Asylum in International Law is the protection granted by a state to a foreign citizen against his
own state. The right to asylum falls into three basic categories:

Territorial

Extra-territorial

Neutral Asylum.

Territorial Asylum is granted within the territorial bounds of a state offering asylum and is an
exception to the practice of extradition. It is designed and employed primarily for the protection
of persons accused of political offenses such as treason, desertion, sedition and espionage.
However the following categories are excluded: murder of a head of statee, collaboration with
the enemy in time of war, terrorist acts, crimes against humanity and crimes of war.

Extra territorial Asylum, also known as Diplomatic Asylum, refers to asylum granted in
embassies, legations,consulates,warships and merchant vessels in foreign territories and is thus
granted within the territory of the state from which protection is sought. Case of extraterritorial
asylum granted in asylum, legations or consulates are often cases for disputes. Example: The
case of Julian Assange in the Ecuador Embassy in Britain.

Neutral Asylum is employed by states exercising neutrality during war to offer asylum within its
territory to troops of belligerent states, provided that the troops submit to internment for the
duration of war.

It is the right of a state to grant asylum to an individual, but it is not the right of an individual to
be granted asylum by the state. This perspective is reflected in the Universal Declaration of
Human Rights,which,though recognizing(in Article 14)the right “to seek and to enjoy in other
countries asylum from persecution,” does not explicitly provide the right of asylum. This is due
to the recognition that “ the grant of asylum may place unduly heavy burdens on certain
countries.”Howeer,there have been unsuccessful effort to articulate and individual rights of
asylum in the following agreements:

UN General Assembly Declaration on Territorial Asylum (19667) which contained substantive

exception to it non-refoulment(non return provision)pertaining to national security.

A proposed Convention on Territorial Asylum, which never materialised.

DEVELOPMENT OF “ASYLUM”

In ancient time’s asylum designate a place of sanctuary or protection from which a person could
not be remove forcibly without sacriled.Later it came to signify an institution for the protection
or relief of some class of destitute or unfortunate persons. In its current context, it gained pre-
eminence after the World War Two, where there was a large influx of refugees in Europe and
United States.

EXTRADITION.

Extradition is the formal process of one sate surrendering an individual to another state for
prosecution or punishment for crimes committed in the requesting countrys jurisdiction.Can also
be defined as an action wherein one jurisdiction delivers a person acused or convicted of
committing crom in another jurisdiction.

Extradition,in International Law,is the process by which one state,upon the requesr of
another,effect the return of a person for a trial for a crime punishable by the laws of the
requesting state and committed outside the state of refuge.Extradition persons include those
charged with a crime but not yet tried,those tried and convicted in absentia.The request
distinguishes extradition from other measures-such as banishment,expulsion and deportation-
which also result in forcible removal of undesirable persons.Its is a cooperative law enforcement
between the two jurisdiction and depends on arrangement made between them through a treaty.In
addition to legal aspects of the process,extradition also involves the physical transfer of custody
of the person being extradited to the legal authority of the requesting jurisdiction.

Extradition is enabled by a Bilateral or Multilateral Treaty. Treaties signed in recent decades

tend to the a “Dual Criminality” approach, classifying as extraditable all the crimes that are
punishable in both jurisdiction. Treaties also define instances when extradition is to be denied.
For instance, authorities generally cannot extradite individual for military poor political
offenses, with the exceptions for terrorism and other violent acts. Some states will never
extradite to jurisdictions with capital punishment or life imprisonment under any circumstances,
or unless the requesting authority pledges not to impose those penalties. Other common
provisions deal with nationality (many states will not extradite their own citizens, or will only do
so on a limited basis), double jeopardy, statutes of limitations, administrating expenses, legal
representation and transfer of evidence.

In an extradition process, one sovereign jurisdiction makes a formal request to another sovereign
jurisdiction (“the requesting states”).If the fugitive is found within the territory of a requested
state, may arrest the fugitive and subject him or her to its extradition process. The extradition
procedure to which the fugitive will be subjected are dependent on the law and practise of the
requested state and the treaty agreed.

Generally, an extradition treaty requires that a country seeking extradition be able to show that:

The relevant crime is sufficiently serious.

There exists a prima facie (base on the first impression)case against the individual sought.

The event in question qualifies as a crime in both countries.

The extradited person can reasonably expect a fair trial in the recipient country

The likely penalty will be proportionate to the crime.

Distinction between Asylum and Extradition.

1. Extradition is the formal surrender of a person by one State (the “requested State”)
to the authorities of another (the “requesting State”) for the purpose of criminal prosecution
or the enforcement of a sentence. It is a form of legal assistance between States, granted on
the basis of a bilateral or multilateral treaty, or by ad hoc agreement. Asylum means
offering sanctuary to those at risk and in danger, in compliance with States’ obligations
under international refugee law, human rights law and customary international law.

2. Extradition and asylum are not mutually exclusive. The institution of asylum is not
intended to shield fugitives from legitimate criminal prosecution. However, where the
extradition of a refugee or an asylum-seeker is sought, or where an asylum application is
filed after the individual concerned learns that a request for his or her extradition has been
made, the special protection needs of the wanted person must be taken into consideration.
From the point of view of international refugee protection, the principal concern in such
situations is to ensure that those fleeing persecution rather than prosecution are adequately
protected against refoulement – that is, removal to a country where their life, freedom or
physical integrity would be at risk.

3. The interplay between extradition and asylum must be examined against the
background of extradition law and practice as it evolves under the influence of various,
sometimes conflicting factors. Long regarded as the prerogative of sovereign rulers, subject
entirely to their discretion, extradition has emerged as a concept in law in the 18th century1.
On the one hand, a shared interest of States in the availability of an effective means of
obtaining jurisdiction over fugitive offenders and the widely recognised need for
international cooperation in matters of criminal justice have led to the development of a
body of legal rules and a general acceptance that the extradition process is subject to certain
legal requirements and conditions. For the most part, these reflect a consensus among
States, without necessarily constituting binding principles of international law.

4. Extradition law is not static. Over time, the need to respond to new types of crime
and security concerns has brought about significant modifications. Since the 1970s, in
particular, increased efforts to counter threats posed by international terrorism and other forms of
transnational crime have led to restrictions on some of the traditionally accepted
grounds for the refusal of extradition and the establishment of simplified and accelerated
extradition procedures. Within the European Union, these developments will, as of 1st
January 2004, culminate in the abolition of extradition and its replacement with a system of
mutually accepted arrest warrants.

5. On the other hand, the international legal framework within which States determine
whether or not to extradite has undergone fundamental changes. With respect to a number
of particularly serious crimes, developments in international criminal law, humanitarian and
human rights law since 1945 have provided States with a basis for extradition in the absence
of pre-existing extradition agreements and in some cases established an obligation to
extradite and/or prosecute the alleged perpetrators of such crimes.

6. Evolving international standards of human rights and the establishment of

increasingly effective mechanisms for their implementation have also resulted in much
greater emphasis being placed on the rights of the individual in the extradition process, both
with regard to the treatment he or she is likely to face upon surrender and during extradition
procedures in the requested State. The emergence of an absolute prohibition under
international and regional human rights law of torture, cruel, inhuman or degrading
treatment, continuing progress towards the abolition of capital punishment and, in
particular, the consolidation of the principle of non-refoulement into a norm of customary
international law which is binding on all States have been particularly important in this
regard.
7. At the same time, however, it is still common for States to regard extradition as a
matter very close to their sovereignty. Political considerations continue to play an important
role in extradition relations between States and in practice may override concerns for the
human rights of the individual affected.