6. Territorial Jurisdiction, Extradition And Asylum Flashcards

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1
Q

Introduction of territorial jurisdiction

A

Right of state to exercise authority over persons and things inside and outside it’s territory. General principle of IL - unless prohibited by IL state can exercise jurisdiction w/o any limitation. (Pcij, lotus case )

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2
Q

Basis of state jurisdiction

A
  1. Territorial - on all persons and things within territory. Irrespective of domicile or residence. Includes maritime belt, ship bearing national flag, ships entering ports etc
  2. Personal jurisdiction-
    Active - when person whom jurisdiction is to be exercised is a national
    Passive - jurisdiction exercised because victim of the wrong is a national
  3. Protective principle- j over crimes against it’s security, integrity or vital economic interests
  4. Universality principle- crime against international community like piracy
    Limitation - head of the state immune ( arrest warrant case)
  5. Jurisdiction wrt aircraft acc to hague, tokyo and montreal
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3
Q

Entities that have been exempted from TJ

A
  1. Diplomatic agents
  2. Embassies
  3. Foreign soverign
  4. International org
  5. Extradition treaties
  6. Foreign troops ( pointed out in schoone exchange vs Macfaddeon
  7. Warship and crew
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4
Q

Diplomatic immunity

A

Sheilds diplomat from jurisdiction of foreign state

  1. Vienna convention on diplomatic relation 1961 art 29- diplomatic agent shall be inviolable
  2. Tax, witness, bag check
  3. Principle of non grata - if she abuses the privilege alloted
  4. Need - representative character theory, functional necessity theory, international peace theory
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5
Q

Extradition

A
  1. Formal process, fugitive offender, sureendered, was allegedly committed
  2. Aut dedre aut judicare- prosecute persons when no country requests extradition
  3. Why - protective principle, territorial principle, evidence
  4. Extraditable crimes - serious crimes, don’t extradite - political, millitary, religious
  5. Position of E under IL- extradition treaty required.

Fair balance between sovereignty and individual FR

  1. Essentials of extradition-
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6
Q

Essentials of extradition

A
  1. Principle of reciprocity
  2. Criminal offence
  3. Capability - jurisdiction, evidence
  4. Double criminality
  5. Rule of specialty
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7
Q

Indian provision for extradition

A

Extradition act 1962.

Sec 4 - CG
SEC 31- restrictions- political crime, some other crime in India etc

Rule of specuality

43 countries

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8
Q

Difficulty faced by India wrt extradition

A
  1. Dual criminality- dowry
  2. Double jeopardy- David hadely 26/11
  3. Proportionality- capital punishment
  4. Prison - kim davy
    5 poor image - Portugal - principle of specialty- abu saleem
  5. Un convention against torture
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9
Q

2 cases wrt political extradition

A
  1. Re castoni case - to be of political character it must be incidental to and form part of political disturbance

2 . De attentat clause- murder of head or govt of state - not considered as political crime

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10
Q

Law related to asylum

A
  1. Udhr art 14 - rt to seek asylum in any country to escape persecution
  2. Unga 1967 resolution- doctrine of non refoulement, already entered - no deportation, ,, not for crimes against humanity or war crime
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11
Q

Extra territorial asylum

A
  1. Asylum in consulates - temporary- mob disorders, extreme political corruption
    2 premises of international institution
  2. Asylum in warships- on grounds of humanity
  3. Asylum in merchant ships -not competent
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