Place of Individual in International Law and Extradition and Asylum

Place of Individual in International Law and Extradition and Asylum

  • Individuals in International Law: Individual, in a legal sense, is a broader term and in international law, individuals include human beings, foundations, and legal commercial enterprises. Though not all individuals have the same rights, it is considered in a broader sense. Before 1945, international law could recognize individuals as a subject but still didn’t provide rights and duties as a direct individual. In an overview, International law did not consider Individuals other than in an abstract sense for centuries and the reason was that international laws are laws between states, and individuals are the citizens of states, therefore, individuals were seen as objects rather than subjects. They were not considered competent to have rights and duties under international law. However, after the first and second World wars, the international community contemplated the need and possibility of recognizing an individual’s legal responsibility under international law and to make them subjects of international law in some respect. Even today, individuals are seen as only partial subjects of international law as states still remain the dominant subject of international law.

  • Following are the rights and duties given to individuals under international law:
  1. Right of Individuals under rules of International law:

By adopting international conventions many rights have been given to the individuals.

They are as under-

  1. Human rights: the universal declaration of human rights adopted by the general assembly in 1948, gave rights to individuals. But, the states were not legally bound to give effect to the provisions of the Universal Declaration of Human Rights.
  2. By adopting the following conventions and protocols the contracting states agree to provide the rights to individuals as stipulated in the conventions and protocols.

The Conventions and protocols are-

  1. International Convention on Civil and Political Rights;
  2. International COnvention on Economic, social and cultural Rights;
  3. Optional protocol to the International Court on Civil and Political Rights.

These were adopted in 1966 . A child below the age of 18 years were given rights by the International convention on the rights of the child. 

It was adopted on 20th November, 1989. 

Women were given rights by adoption of Convention on the elimination of all forms of discrimination against Women (CEDAW). 

It was adopted by a general assembly on 18th December, 1979.

2) Right to make Petitions:

The Individuals have been given the rights to make a petition, if their rights are violated. Such a petition can be filed before the forum. This right to make a petition is available at the instance of the state only. Thus, if the state is not a party to convention, which has given rights to individuals, then the individual cannot file the petition against the state before an international forum.

Conventions and Protocols which have given rights to individuals are as follows-

  1. Optional Protocol to the convention on civil and political Rights, 1966.
  2. Convention on the Elimination of all forms of Racial Discrimination,1966.
  3. Conventions against Torture and other Cruel inhuman or degrading Treatment or Punishment, 19984.
  4. International Convention on the Protection of the Rights of all Migrant Workers and Members of their families, 1990.

All the above Conventions gave rights to individuals to file a petition against their own state if their rights are violated.

3) Rights to Conciliation and Arbitration Proceedings:

Private foreign investors were given rights to settle disputes with investment receiving states, by way of conciliation and arbitration. Both the states must have consent to settle the dispute by arbitration and conciliation before the dispute is referred for arbitration and conciliation. This Right to settle dispute by arbitration and conciliation has been given by the convention for the settlement of disputes between states and nationals of other states, 1965.

These were the rights given to individuals under the rules of International law.

Duties of Individuals:

Rights of international law impose certain duties upon the individuals. If the individuals commit an offence, they shall be directly responsible for it.

There are many crimes for which individuals can be held responsible under the rules of International law. 

Some of them are as under-

  1. Offence of Piracy
  2. Violation of the rules of warfare
  3. Offence of Espionage
  4. Crime of Genocide
  5. Aircraft hijacking
  6. Offence of kidnapping of diplomatic personnel and other persons
  7. Offence of apartheid
  • Current status of the place of individuals in International Law

After the overview of these trends, some of the conclusions are. First, it is normally accepted that the capacity of states and individuals are of a different character and degree. Secondly, It is also conceded by the majority, even by those who consider individuals as international persons, that individual capacity is based on a treaty which requires the consent of states and it only exists for some exceptional and special cases. There are many instances which shows that individual legal capacity is alleged to be the background of the individual’s international personality such as:

  1. The international Law rules can be directly applied to the legal relationships and conducts of the individual.
  2. Rights and duties of individuals under international law.
  3. Along with private transnational corporations, individuals can participate in international law-making.
  4. Individuals being competent to stand before judicial and quasi-judicial international institutions for protection of their rights.
  5. Under some conditions, in some breach cases of international law, trials can be started against individuals by international law and they can be held liable, by the international judicial Courts, irrespective of the state’s will and its domestic law.
  • The issue of direct applicability of International Law to individuals

This issue about the direct applicability of International Law on Individuals has a substantial role for answering whether an Individual is a subject of International law. Arguments for the side that International law directly govern individuals have been monistic doctrine and the overall structure of treaty obligations made for the preservations of Human rights which shows the superiority of international law in comparison to domestic law and also the aim and objective of such treaties is to safeguard the individual rather than to protect the states. Though U.N Convention against torture, Human rights treaties have the objective to protect individual human beings and to develop common enforcement mechanisms for this motive, the human rights treaties make rights and further impose obligations on states, which is also clear from their general obligations.

The analysis of these obligations shows that these instruments do not have direct governance over the individuals. Further, they also give freedom to the state to choose the means by which they will guarantee the individuals to exercise their rights guaranteed in these instruments including the freedom to decide whether to allow the applicability of these instruments directly. Only if the constitutional legislation of the concerned state recognizes the primacy of international treaties over domestic law and therefore permits their direct governance over individuals then only these international human rights instruments can directly govern individual rights but if there is no such clause in the constitution of the state, individuals cannot be directly governed by these institutions. Both of these cases show that there is no predetermination by international law whether international rules can directly affect individuals. Basically, the decisive point is the domestic law of the state and the status of these instruments falls within the hands of the domestic legislator.

Even in those legal systems which recognize the direct applicability of treaties in domestic legal order, this phenomenon exists in the virtue of domestic law and not of international law. Lauterpacht confirms that the rules of international law providing the rights for individuals are not directly applicable. He says that indeed international laws are the background of these rights as duty to grant is imposed on states by international law. So, these rights are in conformity with international laws but it should be remembered that it could not have been enforceable before national courts if states had not created them with their municipal laws. The treaty which confers the rights on individuals might impact them only if the direct applicability of the international treaty is possible within the domestic legal order of the State concerned.

Some arguments which say international human rights treaties directly provide the rights for individuals, the language of some instruments, are invoked. The substantive provisions of the European Convention of Human Rights, and the American Convention on Human Rights, the Covenant on Civil and Political Rights, does not describe the obligations of States, but the rights of individuals. This circumstance does not make the instruments mentioned self-governing if they are not made so according to the domestic law of States. Another group of human rights instruments, including the Genocide Convention; Convention on Elimination of All forms of Racial Discrimination; Convention Against Torture; the Covenant on Economic, Social and Cultural Rights; and the Convention on the Rights of the Child, use different language in their substantive provisions. They do not mention immediately the rights of individuals, but the obligations of States to respect and to ensure these rights. No conclusion can be made on that basis that these two groups of documents differ from each other due to the nature, reach and objective of the obligations. All of these instruments create obligations and rights also for States. The latter reserves the freedom to regulate how these instruments will reach individual human beings.

  • Extradition:

Extradition is the process of bringing back a criminal to the state where he has committed the crime when he has absconded from such a country. 

Many may ask the question of why it is important to bring him back to the country where he has committed the crime. Why can’t he just be tried in the country he has been caught in? The reason it is important to bring him back is because there are different legal proceedings in different countries.

The country in which he has committed the crime may try him differently. It may also be the case that he had absconded or run away in the middle of legal proceedings. Thus it is essential to bring him back in order to finish the trial. The evidence and the witnesses are also present in that country.

This is also to prevent the trend of international criminals. Some criminals hop from country to country committing crimes. Through extraditions, justice can be brought by bringing them back to the countries they have committed the crime and punishing them.

It is also imperative for that country to get rid of that certain individual for security. 

  • Case law:

It was the case of Hans Muller of Nuremberg vs. Superintendent Presidency jail Calcutta and others (1955) that stated extradition and expulsion are two different processes. The courts also held that the government has the right to reject a request for extradition. I also have the right to choose the less cumbrous process of expulsion to remove a foreigner from the country.  

  • No extradition of a Political Criminal

The trend of no extradition of political criminals started during the French revolution. After that, other countries followed suit.

No commission or organization has defined what a political crime is. This word is also not defined under international law. But in our own words, we can say that if a person commits a crime with political motives, then that crime can be said to be a political crime.

In the case of Re Castioni case (1891), a prisoner was charged with the murder of Luigi Rossi. The murderer escaped from Switzerland to England. The government of England rejected Switzerland’s request for extradition. The court held that the accused murdered in order to cause political disturbance and is thus a crime of political nature. Due to the fact, he was a political criminal and England was not obliged to extradite him. 

But on the contrary, In Re Meunier 1894, a fugitive who blasted a bomb in a public place in Paris, fled to England. Paris wanted him back but England refused their request for extradition. The court ruled his intentions were not purely political and he had thus not committed a political crime. 

  • D’attentat clause:

The d’attentat or the clause Belge states that murders of heads of governments or states will not be considered as a political crime and they can be extradited for such a crime. 

  •  Rule of Speciality:

The doctrine of speciality is a doctrine under international law. It states that a person who is extradited to a country to stand trial for certain criminal offences may be tried only for those offences and not for any other pre-extradition offences.

This principle was restated in the case of U.S. vs Rauscher (1886), which stated that he can only be tried for offences which have been criminalised by the treaty and/or the offence for which extradition has been requested for. 

  • Double criminality 

Double criminality is a principle that states that a criminal can only be extradited to another country if the offence he has committed is criminalized by the laws of both the countries involved. For example, if a murderer has run away from Bangladesh and is hiding in India, he can be extradited as the laws of both the countries criminalize murder. 

  • Position of the State in International Law

It must be noted that the state has no duty to extradite an individual. But, there can be a treaty that states that they will extradite any criminals that run away to their country and vice versa. They can also voluntarily extradite a person without any treaty. States should keep in mind that during extradition, they should not violate their own municipal laws i.e- the laws of their own countries and international conventions. 

However, countries do not have to give the fugitive back if proper extradition procedure was not followed. In the case of Sarvarkar (1911), Mr Vinayak Donador Savarkar was under French navy custody. He was then extradited to England, but England obtained him through incorrect extradition procedures. Due to the violation of procedures, the French wanted him back. The court held that there is no provision under international law that states if extradition procedures are not followed then the country must return him back.

The state can also not extradite citizens of their own state. So, if a citizen of England comes to India and commits a crime and then runs off to England then it is very difficult to get the citizen back. They usually ensure that they will punish the criminal according to their own laws.

In Regina vs Wilson (1878), a treaty can happen between the two states, states will not extradite people and the fugitive will be punished according to their own laws.

India

Usually, each country has its own laws regarding the process of extradition. In India, The Extradition Act of 1962 governs the process of extradition. It was amended in 1993 by Act 66. 

Section 2(d) of the Act talks about treaties of extradition and allows foreign states to make such arrangements with India. 

These treaties are usually bilateral in nature i.e- they are between two countries, not more. These treaties embody five principles-

  • Extradition of a fugitive will happen for offences set down by the treaty.
  • The offence must be criminalized under the laws of both countries, not just one.
  • There must be a prima facie case made.
  • The country should try the criminal for only the offence he was extradited for. 
  • He must be tried under a fair trial. 

Usually, requests for extradition on behalf of India can only be made by the Ministry of External Affairs and not anyone in the public.

Countries who have a treaty with India can request for extradition of someone from India. A non- treaty country must follow the procedures set down by Section 3(4) of the Extradition Act of 1962. 

According to the page of The Ministry of External Affairs, below are the following bars or restrictions to extradition- 

  • India is not ‘obliged’ to extradite someone unless there is a treaty.
  • India is not ‘obliged’ to extradite someone unless that offence constitutes a crime under the treaty. 
  • Extradition may be denied for purely political and military offences. 
  • The offence must constitute a crime in both India and the country requesting extradition. 
  • Extradition may be denied when the procedure set down by Section 3(4) of the Extradition Act of 1962 is not followed. 
  • Asylum:

Asylum is when a country gives protection to individuals who are being prosecuted by another sovereign authority. Most of the time, it is their own government. While everyone has the right to seek asylum, asylum seekers do not have the right to receive it. 

It must be noted that asylum deals with refugees (individuals who are being prosecuted by their own government).

  • Article 14 of the Universal Declaration of Human Rights:

Article 14 of the Universal Declaration of Human Rights recognises the right of individuals to seek protection from prosecutions of the sovereign authorities. Everyone can go to another country and seek asylum. This right is also available for fugitives who have committed political crimes. But this is subject to the condition that if your crime is against the principles of the UN, then you do not have the right to asylum. It also must be noted that one has the right to seek asylum but you do not have the right to receive asylum.

  • Types of asylum
  1. Territorial Asylum:

Territorial asylum is granted within the territorial boundaries of the country offering asylum. This is most commonly used for people accused of offences of political nature such as treason and sedition. It must be noted that murderers of heads of states, criminals accused of certain terrorist activities and people accused of war crimes are some examples where one can not be offered asylum.

  1. Extra-Territorial or Diplomatic Asylum:

Extraterritorial asylum refers to asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought.

International law has not recognised diplomatic asylum as a right as it can be areas for dispute.  For example, the asylum was granted to József Cardinal Mindszenty during the uprising against the communist government in 1956. He refused to allow Roman Catholic schools to be secularized which prompted him to be arrested but he got protection from the government of the United States for 15 years. This caused great controversy. 

  1. Neutral Asylum:

This type of asylum is shown by neutral states during times of war. These countries may be considered asylum places for prisoners of war. It provides asylum to troops of countries who are a part of the war. This is under the condition that they are subject to internment during the time. It is important to note that while troops may be allowed, air forces of such countries cannot land in these areas and will be subjected to interrogation.

  • Asylum in India:

Different countries have different laws about asylum-seeking. India has laws regarding immigration and asylum-seeking. The most recent law with asylum seeking that has caused the most controversy is the Citizen Amendment Act with regards to refugees.

Organisations like the UNHCR, help individuals register for asylum. People who wish to apply must come for registration with all of your family members who are present in India.

According to them, the following documents are needed-

  • Case numbers of immediate family members who have been registered with UNHCR (in India or elsewhere),
  • Passport/nationality document/identity document,
  • Birth certificates/vaccination cards for children,
  • Marriage/divorce/death certificates,
  • Any other documents you may have.

The candidate will be asked to explain why you left your country and why you cannot go back on a form. They will be interviewed by a Registration Officer. 

  • Conclusion:

It is quite evident now that International law recognizes the rights and obligations of individuals. It can be concluded that while states have proper international legal personality, individuals possess a limited locus standi in International law. However, it is also true that the individual has over a number of decades evolved from an illegitimate child to a well-accepted family member in International law which shows the extent of the transformation of the legal order. It has significantly helped in raising concern and values of Humanitarian grounds.

the difference between extradition and asylum, their processes, the various rules they are subjected to, and how they are executed in India. These processes play a great part in international relationships. The topics discussed above are also very essential to understand international law.

  • References:
  1. S.K. Verma- Public International law
  2. S.K. avasthi & R.P. Kothari – Law Relating to Human Rights
  3. Articles Prof. Prakash Mokal
  4. https://blog.ipleaders.in/extradition-asylum/
  5. https://blog.ipleaders.in/place-individuals-international-law/

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