Extradition and Asylum: Principles, Differences & Case Laws

The concepts of extradition and asylum in international law represent two opposite principles. Extradition is the formal transfer of a criminal suspect or convicted person from one country to another for prosecution or punishment, usually based on a treaty obligation. In contrast, asylum is the protection granted by a state to someone fleeing persecution or harm in their home country. It is rooted in humanitarian principles and supported by international conventions like the 1951 Refugee Convention.

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The difference between asylum and extradition creates a unique conflict. While extradition ensures that fugitives do not find a safe haven, asylum provides exactly that. Sometimes, this leads to disputes—where a person may be granted asylum to avoid extradition, or conversely, face extradition even after receiving asylum. Understanding extradition and asylum in international law is therefore essential for balancing human rights with the global fight against crime.

Extradition and Asylum in International Law PDF Download

Students can download concise notes on asylum and extradition in international law for exam preparation. The PDF includes:

• Meaning of extradition and asylum in international law
• Difference between asylum and extradition in international law
• Key provisions under international law
• Landmark cases and examples of asylum and extradition in international law

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Extradition in International Law

What is extradition and asylum in international law ? Extradition in International Law is the formal procedure by which a person accused or convicted of an offence is surrendered by one state to another so they can stand trial or serve a sentence. The term Extradition in International Law is derived from the Latin terms ex (out) and tradium (to hand over). It is based on the legal principle aut dedere aut judicare which means “either extradite or to prosecute.”

The fundamental idea is that criminals should not evade justice merely by fleeing across borders. The term Extradition in International Law demonstrates the responsibility of states to assist each other in prosecuting and punishing offenders and also ensures the integrity of criminal justice and maintenance of international peace and order.

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Define Extradition?

What is extradition and asylum in international law ?The following eminent jurists have clearly explained what extradition in International Law means:

• Chief Justice Fuller of the U.S. Supreme Court defined it as: “The surrender by one nation to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other.”
• Similarly, Oppenheim described “Extradition as the delivery of an accused or convicted person to the state where the crime was committed.”
• Starke describes “Extradition is the process by which, either through a treaty or mutual understanding, one state hands over to another upon request a person who has been charged with or convicted of an offence under the laws of the requesting state.”

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Importance of International Extradition

What is extradition and asylum in international law ? Extradition in International Law is a basis of international cooperation against crime. There is no universal obligation under customary International Law to extradite. It relies on treaties and reciprocal agreements. The growing mobility of offenders has led states to increasingly adopt bilateral and multilateral arrangements.

For example:

• The United States mainly uses bilateral treaties.
• European states often rely on multilateral conventions such as the European Extradition Convention.

The practice of Extradition is the foundation of reciprocity, mutual respect and shared commitment to suppress serious crime.

Historical Background of Extradition in International Law

The concept of Extradition has ancient roots. The first known treaty was concluded around 1280 BC between Egypt (Rameses II) and the Hittites (Hattusili III) regarding political offenders.

In medieval Europe:

• England and Scotland concluded a treaty addressing extradition in 1174.
• France entered similar agreements as early as 1376.
• By the 18th and 19th centuries, extradition treaties multiplied across Europe particularly as modern nation-states emerged.

France was particularly influential which introduced important principles relating to extradition and asylum in international law such as:

• Non-extradition of nationals
• Exclusion of political offences
• The principle of specialty (limiting prosecution to the offences extradited for)

In Britain, the Jay Treaty of 1794 with the United States marked the beginning of modern extradition law which incorporated procedural safeguards still seen today.

Key Principles of Extradition

Extradition in International Law is guided by legal protections to safeguard individual rights and ensure fair cooperation between states. These principles help balance the interests of justice with respect for national sovereignty and due process. The following are the main principles that shaped the practice of extradition:

Rule of Speciality

Under this principle, when a person is extradited, they can be prosecuted or punished only for the specific offence for which extradition was granted. They cannot be charged with any other crimes committed before their surrender. The U.S. Supreme Court in Rauscher (1886) ruled that using extradition to try someone for unrelated offences violates the rule of speciality.

Double Criminality

The rule requires that the alleged act must be considered as an offence in both the requesting and the requested countries.
For Example: If a person commits murder in Sri Lanka and escapes to India extradition can proceed because murder is an offence in both jurisdictions.
It is to be noted that between 2019 and 2024, India sent 178 extradition requests. However, only 23 fugitives were successfully extradited. High-profile cases like Vijay Mallya, Lalit Modi and Khalistani Militants Lakhbir Singh and Arshdeep Gill remain unresolved.

Reciprocity

Extradition in International Law based on the idea of mutual cooperation between countries. Here one state agrees to surrender fugitives with the expectation that the other state will reciprocate in the future.
For Example: India may extradite an offender to the UK, trusting that the UK will do the same if India makes a request.

Double Jeopardy

The principle of Double Jeopardy safeguard ensures that no one can be extradited for an offence they have already been tried and either acquitted or punished for.
For Example: If an individual was acquitted of an offence in India and the UK later requests extradition for the same act, India must refuse under the principle of double jeopardy and protection against being tried twice for the same crime.

Extradition and Expulsion Differences

The terms Expulsion and Extradition in International Law both result in a person being removed from a country but they serve different purposes and follow separate legal structures. The following table highlights the differences between Expulsion and Extradition:

The case Hans Muller of Nuremberg vs. Superintendent, Presidency Jail, Calcutta (1955) illustrated the difference between the Expulsion and Extradition in International Law. In this case, the Supreme Court held that the government has the authority to refuse an extradition request and may choose to expel the person instead if it considers expulsion more suitable.

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When Can India Refuse an Extradition Request?

Section 31 of the Extradition Act 1962 outlines situations when India may refuse to extradite someone. The following is an overview of these conditions:

• Political Offences: India will not extradite someone if the alleged offence is political in nature. If the person shows that the request is actually an attempt to punish them for their political views or actions then in such a case, extradition can be refused.
• A political offence typically involves acts initiated against the state like treason, sedition or rebellion with a clear political motive. 
• The following are some of the examples:

• Re Castioni (1891): Castioni was charged with murder during a political uprising in Switzerland. The English court decided it was a political offence. Thus, extradition was denied.
• Re Meunier (1894): In this, Meunier had set off bombs in Paris but the acts were not seen as purely political, so he was not safeguarded by the political offence exception.

• Time-Barred Offences: If the offence cannot be prosecuted in the requesting country because the limitation period has expired then in such case India can decline to extradite.
• No Assurance of the Rule of Speciality: If the requesting state does not guarantee that the person will be tried only for the specified offence (not unrelated earlier offences) India can refuse surrender. It prevents abuse of the extradition process.
• Pending Prosecution or Sentence in India: If the person is already facing trial or undergoing a sentence for a different offence in India, extradition will be deferred until their case is concluded or their sentence is complete.
• 15-Day Waiting Period: Once a Magistrate orders the custody of the person, there must be a minimum waiting period of 15 days before extradition can take place.

The Burmese Hijacking Case

In 1990, two Burmese students hijacked a Thai Airways plane and landed it in Kolkata to highlight Burma’s pro-democracy struggle. India refused to extradite them to Thailand or Burma, considering the political nature of their act. However, they were still prosecuted in India under the Anti-Hijacking Act, 1982 and other criminal laws.

Example of Extradition

Vijay Mallya, former head of Kingfisher Airlines allegedly defrauded Indian banks of over Rs. 9,000 crores. As investigations closed in, he fled to the UK in March 2016. India revoked his passport and formally requested his extradition.

In April 2017, Scotland Yard arrested Mallya who was later released on bail. After lengthy proceedings, UK courts approved his extradition. Though delays continue, recent UK rulings support India’s efforts to bring him back and seize his assets to recover dues.
In India, the Ministry of External Affairs (Consular, Passport and Visa Division) acts as the central authority handling extradition matters.

Extradition in International Law Case Laws

The following are some of the important cases that show how extradition and asylum in international law requests can be granted or refused depending on the evidence, adherence to treaty obligations and respect for the rights of the accused.

The Nadeem Saifi Case: Music, Murder and Failed Extradition

Nadeem Saifi who was a prominent music composer. He was accused of conspiring in the 1997 murder of Gulshan Kumar. Before Indian authorities could apprehend him, he escaped to the United Kingdom.

Relying on the 1992 extradition treaty with the UK, India submitted a chargesheet via the British Crown Prosecution Service. However, the UK court held that merely filing a chargesheet was insufficient. India was required to present substantial evidence showing a prima facie case against Nadeem. As this evidentiary standard was not met, the UK denied the extradition request. Nadeem remained in Britain and was never sent back to face prosecution in India.

Abu Salem Case: Landmark Extradition from Portugal

Abu Salem, an important figure in the 1993 Mumbai bomb blasts, was eventually located in Portugal. India formally requested his extradition, triggering a protracted legal process in Portuguese courts.

In January 2005, the Supreme Court of Portugal approved extradition with a clear condition: Abu Salem would not be subjected to capital punishment. He was extradited to India and stood trial. His associate Monica Bedi was also extradited but later acquitted due to lack of evidence. In 2022, Abu Salem was sentenced to life imprisonment. India upheld its assurance to Portugal by not pursuing the death penalty.

What is Asylum in International Law?

What is extradition and asylum in international law ? Asylum in International Law has existed since the earliest days of human society. The term Asylum is derived from the Latin word which itself is derived from the Greek word Asylon. It means “a place which shall not be violated.” Historically, Asylum has referred to a place of refuge where individuals could be protected by a state willing to grant shelter.

Asylum in Public International Law refers to the safeguard a state provides to individuals from other countries who have fled because they fear persecution on grounds such as: 

• Race
• Religion
• Nationality
• Belonging to a particular social group or
• Holding certain political views

The concept of Asylum in International Law is fundamentally connected to the principle of non-refoulement which forbids returning someone to a place where their life or freedom would be in serious danger. Non-refoulement forms the foundation of the 1951 Refugee Convention and its 1967 Protocol, the key international agreements outlining refugee rights and state obligations.

To seek Asylum, a person must apply for protection under the asylum laws of the country where they hope to stay. If their claim is approved, they gain the legal right to remain either on a temporary or permanent basis. They are granted several protections including access to social services and in some cases eligibility for citizenship.

A right of the state to grant asylum originates from the principle of sovereignty i.e., the power to control everything within its borders. This is known as territorial jurisdiction which means a state holds both civil and criminal authority over all people and property inside its territory. Exercising this jurisdiction reflects the sovereign powers of the state.

The Draft Declaration on the Rights and Duties of States prepared by the International Law Commission in 1949 recognized that every state has the right to exercise jurisdiction within its territory. Similarly, the Draft Convention on Territorial Asylum adopted by the UN General Assembly in 1974 affirmed that granting asylum is a sovereign right.

Territorial jurisdiction also extends to embassies, legations, vessels and aircraft. However, states can agree to limit this jurisdiction through treaties such as extradition agreements obligating them not to grant asylum to certain fugitives.

Article 14 of the Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948, plays a central role in protecting individuals from oppression. Article 14 of the UDHR directly addresses the right to seek asylum.

It states:

1. Everyone has the right to seek and enjoy asylum from persecution in other countries.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations.

This provision highlights that asylum is not an absolute right. While individuals can seek protection, states are not always obligated to grant it, especially if the person is accused of serious non-political crimes like murder, terrorism, or drug trafficking.

Thus, Article 14 sets the foundation for asylum in international law, while balancing it with global peace and security concerns.

Types of Asylum in International Law

Asylum in International Law takes different forms depending on where and how it is granted. These types reflect whether protection is provided within a state's own territory or in spaces under its control beyond its borders. The main types of asylum in International Law include:

• Territorial Asylum – Granted within a state’s own territory
• Extra Territorial Asylum – Granted in locations beyond the territory of state such as embassies, consular premises, international headquarters or warships.

Territorial Asylum

When a state provides asylum within its own borders, it exercises its sovereign right to admit or expel any person. States have full discretion in deciding whether to grant asylum unless bound by legal obligations. The Declaration on Territorial Asylum was adopted by the UN General Assembly on 14th December 1967 and laid out principles regarding the granting and refusal of asylum.

Example: Influx of Refugees from Bangladesh (1971)

During the Bangladesh Liberation War, the military regime of General Yahya Khan carried out genocide, forcing millions from East Pakistan (now Bangladesh) to flee to India. India received and cared for these refugees, showing exceptional humanitarian commitment. This response was consistent with the Draft Convention on Territorial Asylum, 1951 Refugee Convention and the Universal Declaration of Human Rights.

Extra Territorial Asylum

The Extra Territorial Asylum in International Law occurs when protection is offered outside the physical territory of the state. According to McNair, extra territorial asylum applies in cases where a person is not on the territory of the state but is present on its public ship in foreign waters or within its diplomatic premises abroad. The following are some of the examples of extra territorial asylum:

• Asylum in Legation (Diplomatic Asylum):
  Granted within an embassy in a foreign country based on the principle of extra territoriality i.e., the idea that diplomatic premises represent an extension of the sending state’s territory. However, even legation immunities do not create a general right to grant asylum.
• Asylum in Consular Premises:
  Similar principles apply to consulates but consular premises do not enjoy the same level of immunities as embassies.
• Asylum on Warships:
  Warships are often regarded as floating extensions of their flag state. Oppenheim describes a public ship as a “floating portion of the flag state” which means a person and goods aboard remain under its jurisdiction even in foreign ports. However, they must still respect local laws.
• Asylum on Merchant Vessels:
  Merchant ships do not enjoy immunities similar to warships and remain under local jurisdiction. Generally, they cannot offer asylum to fugitives fleeing local authorities though exceptional treaties like agreements among certain Central American states may create such rights.
• Asylum in International Institutions:
  The UN Headquarters Agreement of 1946 recognizes the immunity of the headquarters area but prohibits its use as a refuge for individuals evading arrest or extradition. International organizations do not enjoy a general right to grant asylum though temporary refuge may be allowed in emergencies.

Example: József Cardinal Mindszenty Case

During the 1956 Hungarian uprising, Cardinal Mindszenty, persecuted for opposing the communist regime policies, took refuge in the U.S. Embassy in Budapest. The U.S. granted him asylum where he stayed for almost 15 years. The case sparked controversy and strained diplomatic ties and highlighted the complexities of diplomatic asylum.

Neutral Asylum

Neutral asylum in International Law is the protection offered by a neutral state to individuals, often political refugees or fugitives, for escaping conflict or persecution in their own countries. When two states are at war or a person faces political persecution, a third country that remains uninvolved in the conflict can provide asylum purely on humanitarian grounds. 

For example: if a political activist flees civil war and seeks safety in a neutral country like Switzerland, that country may grant neutral asylum to protect the individual without taking sides.

Asylum in India

The Indian Constitution does not expressly refer to the right to asylum, the judiciary has played an important role in extending protections to refugees. The Supreme Court has interpreted Article 21 which guarantees the right to life and personal liberty as applicable to all persons irrespective of citizenship. This interpretation has provided an important legal foundation for safeguarding the rights of asylum seekers within India.

One of the important examples is the case of the Chakma refugees from present-day Bangladesh, who began arriving in India in the 1960s. In 2015, the Supreme Court directed the authorities to grant citizenship to the Chakma and Hajong communities and reinforced India’s humanitarian approach.

International Commitments of India

India has not signed the 1951 Refugee Convention or its 1967 Protocol, it has consistently respected the essential principle of non-refoulement which prohibits returning individuals to places where they risk persecution. This commitment is reflected in India’s long-standing policy of providing refuge to large displaced populations, including Tibetan exiles, Sri Lankan Tamils, and Bangladeshi refugees.

Difference Between Asylum and Extradition Under International Law

Although asylum and extradition both deal with individuals crossing borders, their purposes are entirely opposite.

Before presenting the difference between asylum and extradition in a comparative table, it is important to understand that asylum focuses on protecting individuals, while extradition focuses on delivering justice by handing over fugitives.

Comparison Between Asylum and Extradition in International Law

This shows the difference between asylum and extradition in a clear and structured manner

Conclusion

The study of asylum and extradition in international law shows how states handle competing interests of humanitarian protection and legal cooperation. Asylum serves as a shield for the oppressed, while extradition ensures criminals do not escape justice.

The difference between asylum and extradition lies in their purpose: one protects, the other prosecutes. Yet both are vital to maintaining global order. For law students, policymakers, and UPSC aspirants, these concepts provide insight into how international law adapts to modern challenges like terrorism, migration, and political conflict.

As the world becomes more interconnected, the balance between granting asylum and fulfilling extradition obligations will remain one of the most debated issues in international relations.

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