6. Territorial Jurisdiction, Extradition And Asylum Flashcards
Introduction of territorial jurisdiction
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 )
Basis of state jurisdiction
- Territorial - on all persons and things within territory. Irrespective of domicile or residence. Includes maritime belt, ship bearing national flag, ships entering ports etc
- 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 - Protective principle- j over crimes against it’s security, integrity or vital economic interests
- Universality principle- crime against international community like piracy
Limitation - head of the state immune ( arrest warrant case) - Jurisdiction wrt aircraft acc to hague, tokyo and montreal
Entities that have been exempted from TJ
- Diplomatic agents
- Embassies
- Foreign soverign
- International org
- Extradition treaties
- Foreign troops ( pointed out in schoone exchange vs Macfaddeon
- Warship and crew
Diplomatic immunity
Sheilds diplomat from jurisdiction of foreign state
- Vienna convention on diplomatic relation 1961 art 29- diplomatic agent shall be inviolable
- Tax, witness, bag check
- Principle of non grata - if she abuses the privilege alloted
- Need - representative character theory, functional necessity theory, international peace theory
Extradition
- Formal process, fugitive offender, sureendered, was allegedly committed
- Aut dedre aut judicare- prosecute persons when no country requests extradition
- Why - protective principle, territorial principle, evidence
- Extraditable crimes - serious crimes, don’t extradite - political, millitary, religious
- Position of E under IL- extradition treaty required.
Fair balance between sovereignty and individual FR
- Essentials of extradition-
Essentials of extradition
- Principle of reciprocity
- Criminal offence
- Capability - jurisdiction, evidence
- Double criminality
- Rule of specialty
Indian provision for extradition
Extradition act 1962.
Sec 4 - CG
SEC 31- restrictions- political crime, some other crime in India etc
Rule of specuality
43 countries
Difficulty faced by India wrt extradition
- Dual criminality- dowry
- Double jeopardy- David hadely 26/11
- Proportionality- capital punishment
- Prison - kim davy
5 poor image - Portugal - principle of specialty- abu saleem - Un convention against torture
2 cases wrt political extradition
- 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
Law related to asylum
- Udhr art 14 - rt to seek asylum in any country to escape persecution
- Unga 1967 resolution- doctrine of non refoulement, already entered - no deportation, ,, not for crimes against humanity or war crime
Extra territorial asylum
- Asylum in consulates - temporary- mob disorders, extreme political corruption
2 premises of international institution - Asylum in warships- on grounds of humanity
- Asylum in merchant ships -not competent