6. Territorial Jurisdiction, Extradition And Asylum

Question 1

Introduction of territorial jurisdiction

Answer 1

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 )

Question 2

Basis of state jurisdiction

Answer 2

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

Question 3

Entities that have been exempted from TJ

Answer 3

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

Question 4

Diplomatic immunity

Answer 4

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

Question 5

Extradition

Answer 5

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

6. Essentials of extradition-

Question 6

Essentials of extradition

Answer 6

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

Question 7

Indian provision for extradition

Answer 7

Extradition act 1962.

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

Rule of specuality

43 countries

Question 8

Difficulty faced by India wrt extradition

Answer 8

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

Question 9

2 cases wrt political extradition

Answer 9

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

Question 10

Law related to asylum

Answer 10

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

Question 11

Extra territorial asylum

Answer 11

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