Extradition

Lawrance: Lawrance defines extradition as the surrender by one state to another of an individual who is
found within the territory of the former and is accused of having committed a crime within the territory of
the latter.

L. Oppenheim: Extradition is the delivery of an accused or a convicted individual to the state on whose
territory he is alleged to have committed, to have been convicted of, a crime, by the state on whose
territory the alleged criminal happen to be for the time being.

J. G. Starke: The term extradition denotes the process whereby one state surrenders to another state
at its request a person accused or convicted of a criminal offence committed against the laws of the
requesting state, such requesting state being confined to try the alleged offender.

A criminal may take refuge in a state which has no jurisdiction to try him, or in a state which is unable or
unwilling to try him because all the evidence and witnesses are abroad. To meet this problem,
International Law has evolved the practice of extradition, individuals are extradited, i.e., handed over, by
one state to another state, in order that they may be tried in the latter state for offences against its laws.
Extradition also includes the surrender of convicted criminals who have escaped before completing their
punishment.

Object of extradition: Since extradition is the delivery of an accused or convicted individual to the state
on whose territory he is alleged to have committed, or to have been convicted of, a crime, by the state on
whose territory he happens for the time to be. The object of extradition can be any individual, whether he
is a subject of the prosecuting state, or of the state which is required to extradite him, or of a third state.

Extradition in the absence of an extradition treaty: Following rules govern extradition in the absence
of extradition treaty:

Reciprocity or courtesy: In the absence of a treaty or statute, the grant of extradition depended purely
on reciprocity or courtesy. No government is understood to be bound by positive law of nations to deliver
up criminals and fugitives from justice who have sought an asylum within its limits.

Common rules: Following are the common rules, which govern the extradition in absence of an
extradition treaty:

1. Extraditable persons: There is uniformity of state practice to the effect that the requesting state may
obtain the surrender of its own nationals or nationals of a third state. But most states usually refuse the
extradition of their own nationals who have taken refuge in their territory, although as between states who
observe absolute reciprocity of treatment in this regard, requests for surrender are sometimes acceded to.

2. Extraditable crimes: Serious crimes generally, states extraditing only for serious crimes, and there is
an obvious advantage in thus limiting the list of extradition crime since the procedure is so cumbrous
(huge, heavy) and expensive.

3. Special principle: This means that an extradited person cannot be tried for a crime other than that for
which he was extradited, until he has been given a chance to leave the country to which he was
extradited.

4. Definition of extraditable offences: Extradition is usually confined to serious crimes, which must
also be crimes under the law of both of the states concerned (double criminality principle). This object can
be met in one of two ways. First, the treaty may apply to all crimes, which are punishable in both
countries by so many months or years of imprisonment. Alternatively, the treaty may list the extraditable
offences by name.

Exempted offences: As a general rule, the following offences are not subject to extradition proceedings:

(1) Political crimes.

(2) Military offences, for example, desertion (escape).

(3) Religious offences.

5. Principle of specialty: This principle means that the requesting state is under a duty not to punish the
offender for any other offence than that for which he was extradited. This principle is approved by the
Supreme Court of the United States. In Great Britain its application is a little uncertain.

6. Rule of double criminality: As regards the character of the crime, most states follow the rule of
double criminality, i.e., that it is a condition of extradition that the crime is punishable according to the
law both of the states of asylum and of the requesting state.

7. Reasonable prima facie evidence: There must be reasonable prima facie evidence of the guilt of the
accused.

Intervention
defined by Oppenheim: Intervention is dictatorial interference by a state in the affairs of another
state for the purpose of maintaining or altering the actual condition of things.

Lawrance: Intervention is an interference with the proceedings of a sovereign state by another state or
group of states. The interfering state endeavors to compel it to do something which, if left to itself, it
would not do, or refrain from doing something which, if left to itself, it would do.

J. G. Starke: Intervention means something more than mere interference and much stronger than
mediation (reflection) or diplomatic suggestion. To fall within the terms of their prohibition, it must be
dictatorial interference, in opposition to the will of the particular state affected.

Quincy Wright: Quincy Wrights view is that intervention may be diplomatic as well as military. A
diplomatic community of threatening tone, implying possible use of military measures may constitute
intervention.

Kinds of intervention: There are three different kinds of intervention, which are as follows:

1. Internal intervention: It is the interference by one state between disputing sections of the
community in another state either for protection of the legitimate government or the insurgents (rebel).

2. External intervention: It is the intervention by one state in the relations generally of the hostile
relations of other states. It is, in other words, an intervention in the foreign affairs of another state.

3. Punitive intervention: It is a punitive measures falling short of war and it in the nature of a reprisal
(revenge) for an injury suffered at the hands of another state.
When intervention can be permitted - general rule: General rule is that intervention is not allowed
under International Law. Use of force by one state against another state, is always unlawful.

Article 2 of the Charter of the United Nations clearly condemns intervention when it provides that all
members shall refrain in their relations from the threat or use of force against the territorial integrity or
political independence of any state.

Exceptional cases: There are, however, exceptional cases in which a state has at International Law a
legitimate right of intervention.

Grounds of intervention: The intervention can be permitted upon following grounds:

1. Self-protection: The supreme interest of the state overrides law. A state has a right to interfere in the
affairs of another state where the security and immediate interests of the former are compromised.

2. Enforcement of Treaty Rights: A state is justified in interfering in the affairs of another state if the
provisions of any treaty oblige the former to preserve the independence or neutralists of the latter.

3. Invitational intervention: As regards invitation by the lawful government of the state to intervene in
its international affair, the matter is not free from difficult. It is again highly controversial whether the
invitation from the government could be legitimately regarded as from the lawful government in such
cases.

4. Grounds of humanity: Another justification for intervention is based on the ground of humanity.
Lawrance observes that in the opinion of many writers such interventions are legal, but they can not be
brought within the ordinary rules of International Law.

5. Balance of power: Preservation of the balance of power has been as undoubted maxim of European
diplomacy from the middle of the seventeenth century. But the intervention on this ground has been
condemned by jurists of all ages.

6. Protection of persons and property: Protections of the persons, property and interests of its
nationals may provide justification for intervention. The necessity for protection may arise due to gross
injustice or due to injury caused by unfair discriminations.

7. Intervention in civil war: With the establishment of the United Nations there is not justification for
intervention by individual states in the civil wars of other states.

8. Protectors affairs: A state has at International Law a legitimate right of intervention in the affairs of
a protectorate (colonial state) under its dominion.

9. Removal of international nuisance: An intervening state may justify its intervention on the ground
of removal of international nuisance.

10. Collective intervention: Collective intervention at the present time is in pursuance of the provisions
of the United Nations that is the enforcement action under the authority of the United Nations
Organization.
State servitude (slavery)

-J. G. Starke: Stake defines an international servitude as an exceptional restriction imposed by treaty on
the territorial sovereignty of a particular state whereby the territory of that state is put under conditions or
restrictions serving the interest of another state.

M. P. Tandon: It is a right whereby the territory of one state is made liable to permanent use by another
state for some specified purpose. For example, by agreement a state may be obliged to allow the passage
of troops of a neighboring state or may be prevented to fortify its frontiers in the interest of the
neighboring state.

L. Oppenheim: International servitude is that exceptional restrictions through which a state may exercise
certain rights over the territory of another state. State servitudes are those exceptional restrictions made
by treaty on the territorial supremacy of a states by which a part or the whole of its territory is in a limited
way made perpetually to serve a certain purpose or interest of another state.

Rights in rem: The right arising out of servitude is one in rem(is a legal term describing the power a
court may exercise over property (either real or personal) or a "status" against a person over whom the
court does not have in personam jurisdiction). It follows that the servitude remains in force whatever
happens to the territory of the state bound by the servitude, for example, if it be annexed or merged in
another state.

Object of state servitude: The object of state servitude is always the whole or a part of the territory of
the state the territorial supremacy of which is restricted by any such servitude.

Subjects of state servitude: Subjects of the state servitude are states only and exclusively, since state
servitude can exist between states only.

Kinds of servitude: Oppenheim mentions four kinds of servitude, which are as follows:

1. Military servitude: Military servitude is a servitude acquired for military purposes, such as, the right
to keep troops in foreign territory or to send an armed forces through foreign territory.

2. Economic servitude: Economic servitude is a servitude which is acquired for the purpose of
commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign territorial
waters, or to enjoy the advantages of a free zone for custom purpose, to built a railway-line on foreign
territory.

3. Positive servitude: Positive servitude means that a state has to perform certain acts on the territory
of another state. For example,

(1) Building and operating a railway in a certain territory.

(2) Construction of a customhouse.

(3) Having fishery rights in the territorial waters of another state.

(4) Lay down telegraph cable through foreign territory and such like.

Positive servitude is also termed as active or affirmative servitude.

4. Negative servitude: Negative servitude connotes that the state is bound by the servitude must refrain
from doing something on that territory or abstain from exercising its territorial rights in some ways. For
instance, it may permit a state to demand that a neighboring state shall not fortify its frontiers or increase
its naval on land armament beyond a certain limit.