For Law Students

SOURCES OF INTERNATIONAL LAW

 

CHAPTER 11
SOURCES OF INTERNATIONAL LAW

WHAT IS MEANT BY THE TERMS SOURCES
 Sources of international law are the materials and processes out of
which the rules and principles regulating the international community
are developed. They have been influenced by a range of political and
legal theories.  In Simple words , it means methods or procedures by
which International is created. During the 19th century, it was
recognised by legal positivists that a sovereign could limit its
authority to act by consenting to an agreement according to the
principle pacta sunt servanda. UN Charter under Article 38(1) gives us
a picture of what is meant by sources of International .following are
important sources

1) INTERNATIONAL CUSTOM

International customs have been regarded as one of  the important
source of International Law since long time. It is only in the modern
time that the importance of customs suffered a reversal due to
emergence of treaties as  source,  However, even today it is regarded
as one of the important sources of the International Law. Customary
rules of International Law are the rules which have been developed in
the long process of historical development.Article 38.1(b) of the ICJ
Statute refers to “international custom” as a source of international
law, specifically emphasizing the two requirements of state practice
plus acceptance of the practice as obligatory known as opinio juris.

ESSENTIALS OF CUSTOM:-
1) ANTIQUITY:- Antiquity or long duration is essential ingredient of
custom. In Municipal law a custom is required to be ancient and
immemorial but this is not necessary for International Law wherein
customs are applied by world court though they may not be repeated for
a very long time. What is necessary is the general acceptance of
states of a custom.

2)  UNIFORMITY AND CONSISTENCY:- A valid custom should be uniform and
consistent  however, complete uniformity is not possible to achieve.

3) GENERALITY:- the customary  practice should have been repeated
generally by numerous states. It should be the evidence of the of
general practice i.e. accepted by all States  thereby that there must
be a general recognition of custom among the states,  thus in Westrend
Central Gold mining company ltd versus R. the world court observed
that for validity of international custom it is necessary that it
should be proved by satisfactory evidence that custom is  of such a
nature  that it has received general consent of states and no
civilized state shall oppose it  this is called as Principle of Jus
cogens.  Customary rules are evolved by a long historical  process-

In order to drive home the meanings of custom, a little understanding
of meaning of word usage is advantageous. No doubt the word ” custom “
 and ” usage ” have been regarded synonymous but if seen deeply one
could discern a deep difference dividing the two. By the terms usage
is meant those habits which have been repeated and frequently used by
states.  Usage is the early stage of a custom. As pointed out by Stark
where custom begins , usage ends. In other words,  usage is an
international habit which has not yet assumed the force of law. It is
yet to receive full legal attestation.
Usage may be inconsistent and opposed to each other which is never the
case of custom. When states in international relations start behaving
each other in a particular  way in certain circumstances then one
expects rightly that given the similar circumstances they will act in
the same way. This is called usage. But a degree further a usage
receives general recognition by the states then a conception develops
that behavior or habit has become right as well as obligation of
states and in this way usage becomes a custom.

It must be borne in mind that it is not necessary that a usage should
always result in custom .   Following important points in this respect
are worth noting :-

1)      Although usage may give rise to International but there is no
yardstick in International which helps one to know when this happens.
2)      Custom together with factors like State interest , general opinion
and historical events etc collectively contribute to the creation of
custom but there may be cases when custom can arise even without any
usage

DIFFERENCE BETWEEN CUSTOMS AND USAGE
1)      Though both are used interchangeably bur  are  as different day and
night as  the usage is the initial stage of custom, it may crystallize
into a customary rules of international law.
2)      Custom begins where usage ends.
3)      Usage may be conflicting but customs may not be.

WHEN USAGE BECOMES CUSTOM?
A usage becomes a custom when it is constantly being observed without
exception by the international community as  a habit a source of
convenience. It must satisfy two tests namely :-
1) MATERIAL TEST :-means recurrence or repetition of the acts giving
birth to the rule- frequency of recurrence and length of time are
relevant .
2) PSYCHOLOGICAL TEST (OPINIO JURIS SIVE NECESSITATES)—reurrance
creating customary rule must be backed by the conviction that there is
a compulsory rule behind such recurrence. This conviction is called as
opinion juris is convenient yardstick.

EXAMPLES OF CUSTOMARY RULES CRYSTALLIZING FROM USAGE OR PRACTICE
a)      Diplomatic relations between the states .
b)      Practice of international organs.
c)      State laws , State Military and Administrative Practices.:-
repeated performance of certain practices by the State may give birth
to the International law.
2) TREATIES
In modern times International treaties are the most important source
of International Law  as Article 38 of the statute of International
Court of justice(ICJ) enlists ICS as the first source of International
Law.The word convention according to Hudson  is used in general sense
and therefore, apply to any treaty , convention ,protocol or agreement
regardless of tilte.A convention may either be general because of
large of parties or vast character of its contents or it may be
particular because of the limited number of parties or limited
character of its contents.
Whenever an international Tribunal decides a dispute its first
endeavor is to find out whether there is an international treaty on
the point or not in case there is such a treaty on the point, the
decision of the court would follow it, a treaty has been defined by
Vienna convention 1969 as an agreement whereby two or more states
establish a relationship between them, governed by International Law .
KINDS OF TREATY
International treaties are of two kinds :-
d)      LAW MAKING TREATY:- law making treaties are the direct source of
International Law. The development of law making treaties started
during the middle of the present century.The main reason behind this
was the customs hitherto though an important source of law were
proving to be inadequate because of their stagnant character. Law
making treaties may either be treaties laying down rules i.e.
universal International Law e.g. United Nations Charter or treaties
enunciating general principal of International Law e.g. The Geneva
convention on law of sea of 1958 , 1960 and Vienna convention on the
law of treaties 1961.
e)      TREATIES CONTRACTS :- Treaty contracts as compared to law making
treaties are entered into by two or more states only, the provision of
such treaties is unlike law making treaties binding only on the
parties to the treaty. Such treaties also help the formation of
International Law when a treaty entered into by few states may be
subsequently accepted other states.
CIRCUMSTANCES UNDER WHICH THE  TREATIES LAY DOWN RULES OF INTERNATIONAL LAW
 Though they are not the  sources of international law but they may
crystallized as such under following circumstances:-
1)      Series of repetition of  treaty contract containing a principle
which may crystallize into a International law.
2)      Original Treaty may be entered into between limited States but
subsequently it may be accepted or imitated by many other States. For
example, a Treaty may be agreed upon between two States on subject of
fishing rights in their respective territorial waters in a particular
region of the world. If other States on studying it  find the same to
be  convenient may adopt it.

3) JUDICIAL AND ARBITRATION AS SOURCE OF INTERNATIONAL LAW

a) JUDICIAL DECISIONS :- In modern times International Court of
justice(ICJ) is the main international tribunal which was established
as a successor of the permanent court of justice, it is worth noticing
that the decisions of  International Court of justice(ICJ) aren’t
binding on the court itself and the court is free to deviate from the
earlier decisions  and it does so in rare exceptional cases.Thus, in
theory as statute of International Court of justice(ICJ) provides it
doesn’t  follow the doctrine of precedents in practice it follows the
doctrine.
So far as the advisory opinion to the court is concerned it is not
binding on all, but it clarifies the rule of International Court of
justice(ICJ) on a particular  Article 38 of the statute of
International Court of justice(ICJ) provides that judicial decisions
are subsidiary means for disposal of rules of law.Thus, judicial
decisions unlike customs and treaties are not direct source but
subsidiary source of International Law.
 PERMANENT COURT OF INTERNATIONAL JUSTICE :- The Treaty of Versailles
incorporating the Covenant of the League of Nations, signed June
28,1919 established the Permanent Court of Justice (PCIJ) vide ARTICLE
14 which laid down that ” The Council shall formulate and submit to
the Members of the League for adoption plans for the establishment of
a Permanent Court of International Justice ” . The PCIJ was still in
existence at the end of the war when the San Francisco Conference,
1945, proposed a new court, the International Court of Justice (ICJ)
provision for which was made in the Charter of the United Nations,
June 26 1945 vide Article 92 reading as ” The International Court of
Justice shall be the principal judicial organ of the United Nations “
.It shall function in accordance with the annexed Statute, which is
based upon the Statute of the Permanent Court of International Justice
and forms an integral part of the present Charter.The members of the
ICJ were elected on January 6,1946 at the first session of the United
nations General Assembly. The first session was held on April 18,1946
in the Peace Palace in The Hague. Comprised of 15 judges, the
principal task of the ICJ is to settle legal disputes submitted to it
by sovereign (see, sovereignty) states in accordance with the rules of
public international law.
B) ARBITRATION :- To some jurists the decisions of International
Arbitration tribunals can’t be treated as a source of International
Law. These jurists have rightly pointed out that in most of the
Arbitration cases arbitrators act as diplomats  rather than as judges.
Consequently, their decisions can’t be treated  as source of
International Law but it must be taken into account that some of the
decisions of permanent court of Arbitration are treated as weightly
precedents as can be regarded as a source of International Law. A
noted jurist  has  rightly written down one of the reasons for
inadequacy of permanent court of arbitration was that award rendered
by it were not legal in form as they tend to confuse diplomatic
solutions with law pleasing both parties in the controversy  by
however, an analysis of awards of Permanent Court of Arbitration
before WW1 reveals that these awards were legal in form and substance.
The Hague Convention for the Pacific Settlement of International
Disputes, 1899, established the Permanent Court of Arbitration. It is
not really a court since it is not composed of a fixed body of judges
but a panel of jurists designated by each country acceding to the
Convention (Shaw,p137) At the second Hague Peace Conference, 1907 a
joint proposal for a permanent court was submitted. However, the
Conference was unable to reach agreement upon it. Although this court
was never in fact to see the light of day, the draft convention that
was to have given birth to it enshrined certain fundamental ideas that
some years later were to serve as a source of inspiration for the
drafting of the Statute of the Permanent Court of International
Justice.
4) JUSTISTIC WORKS :- Though they can’t be treated as a absolute
source of International Law but,  may help in the development of
International Law , they are not the direct source Article 38 of the
stature of International Court of justice(ICJ) provides that works of
highly qualified jurists are subsidiary means for determination of
International Law. The importance of juristic works have been stressed
 upon by Judge Gray in Piquet Hobbana in the words that where there is
no executive , legislative or precedents resort must be held the
custom of civilized nations and to the works of jurists and
commentators who by the use of labor , research and experience have
made themselves peculiarly well acquainted with subjects.
5) DECISIONS OF INTERNATIONAL INSTITUTIONS :- In modern times the
decisions of the International institutions have also been treated as
a source of International Law. According to stark they may lead to the
development of International Law in following ways:-
3)      In institutional matters the decisions of International
institutions  are final in the development of customary rules . for
example, it was ruled by the Security Council of United Nations
organization that if any member absents from its meeting it would not
help him in exercise of right of veto.
4)      Sometimes some organs of International institutions are empowered
to give quasi-judicial decisions.
5)      The resolutions of organs to International institutions may be
binding on members with matters of their institution.

IMPORTANT CASE LAW RELATING TO SOURCES OF INTERNATIONAL LAW

WEST RAND CENTRAL GOLD MINING COMPANY, LIMITED V. THE KING, 2 K.B. 391 [1905]

FACTS
The Petitioner was a Gold mining company having business in South
African Republic in 1904. officials of Government  seized two parcels
of gold while on transition from Johannesburg to Cape Town. While
negotiations were going on between Petitioner and Government of South
Africa, war was declared by the Government of UK and as a result of
Proclamation of 01/09/1900 whole of the territory of South African
came under the control of UK. The Petitioner moved before competent
court in UK raising point that  by reason of the conquest and
annexation Her Majesty succeeded to the sovereignty of the Government
of South Africa, and became entitled to its property; and that the
obligation which vested in the Government was binding upon His present
Majesty the King. The case  was rejected and become a guiding
principle  relating to  nature of international law , opinion of
jurist as a source of international , difference between  and  state
succession. Points decided by case
1)      DIFFERENCE BETWEEN INTERNATIONAL AND MUNICIPAL LAW :-There is an
essential difference, as to certainty and definiteness, between
municipal law and “international law ”  which  rests upon a consensus
of civilized States, not expressed in any code or pact, nor
possessing, in case of dispute, any authorized or authoritative
interpreter; and capable, indeed, of proof, in the absence of some
express international agreement, only by evidence of usage to be
obtained from the action of nations in similar cases in the course of
their history
2)      OPINION OF JURISTS AS SOURCE OF LAW :- The mere opinions of
jurists, however eminent or learned, that it ought to be so
recognized, are not in themselves sufficient to prove existence of
international and can’t be considered as source of international .They
must have received the express sanction of international agreement, or
gradually have grown to be part of international law by their frequent
practical recognition in dealings between various nations The views
expressed by learned writers on international law have done in the
past, and will do in the future, valuable service in helping to create
the opinion by which the range of the consensus of civilized nations
is enlarged. But in many instances their pronouncements must be
regarded their views as to what ought to be, from an ethical
standpoint, the conduct of nations inter se, than the enunciation of a
rule or practice so universally approved or assented to as to be
fairly termed, even in the qualified sense in which that word can be
understood in reference to the relations between independent political
communities, “law.
3)      STATE RESPONSIBILITY  :- That conquering state is not bound to
assume responsibility in international law of conquered state as the
latter might have due to its illegal and wrongful acts like declaring
war etc. might have acted irrationally.The conquering state on the
touchstone of doctrine of state sovereignty is entitled to declare
what responsibility are undertaken by it of former state and  may
impose what terms he thinks fit in respect of the obligations of the
conquered territory, and that he alone must be the judge in such a
matter, is clearly recognized by Grotius: in his book “War and Peace,”
4)      RELATIONS BETWEEN INTERNATIONAL LAW AND LAW OF ENGLAND :-
International law forms part of the law of England, and  that whatever
has received the common consent of civilized nations must have
received the assent of our country, and that to which we have assented
along with other nations in general may properly be called
international law, and as such will be acknowledged and applied by our
municipal tribunals when legitimate occasion arises for those
tribunals to decide questions to which doctrines of international law
may be relevant, but, before it is considered as law of England the
international law sought to be applied must, like anything else, be
proved by satisfactory evidence, which must show either that the
particular proposition put forward has been recognized and acted upon
by our own country, or that it is of such a nature, and has been so
widely and generally accepted, that it can hardly be supposed that any
civilized State would repudiate it.
5)      ESSENTIAL INTERNATIONAL CUSTOM :- The court observed that for
validity of international custom it is necessary that it should be
proved by satisfactory evidence that custom is  of such a nature  that
it has received general consent of states and no civilized state shall
oppose it  this is called as Principle of Jus cogens.
___________________
THE STEAMSHIP LOTUS CASE (FRANCE V. TURKEY) (1927) PCIJ
THE FACTS
The Lotus case concerns a criminal trial which was the result of the 2
August 1926 collision between S.S. Lotus, a French steamship (or
steamer), and the S.S. Boz-Kourt, a Turkish on high seas A French
ship, the Lotus, hit a Turkish ship, the Boz Kourt at high seas as a
result thereof  8 people were drowned. The French lieutenant of the
Lotus, and the Turkish captain of the Boz Kourt, were arrested upon
docking in Turkey and was subsequently prosecuted and imprisoned for
involuntary manslaughter under Turkish law. The question to answer was
whether Turkey had acted within the principles of international law
regarding jurisdiction by instigating criminal proceedings against the
French lieutenant?
FRENCH ARGUMENTS
1)       According to international law, jurisdiction for prosecuting the
French Lieutenant of the French ship for the collision belonged
exclusively to France under the flag principle. (ie the territorial
principle), Since the collision occurred on the high seas, France
claimed that only the state whose flag the vessel flew had exclusive
jurisdiction over the matter. France proffered case law, through which
it attempted to show at least state practice in support of its
position and also customary rule of international law in support of
its position.
2)      Under international law, a State is not entitled (apart from by
agreement) to extend its criminal liability to acts of foreigners
committed abroad in consequence of the fact that its nationals had
been the victims of the crime. (ie the passive personality principle)
TURKEY ARGUMENT
Vessels on the high seas form part of the territory of the state whose
flag they fly. The offence committed happened on the Turkish ship
thereby allowing Turkish jurisdiction.
PCIJ JUDGMENT
1)      Customary rule of international law must have been observed
consistently by members of international community before it is
considered as binding and of universal application.
2)      Even though the French Lieutenant was outside Turkey’s territory
when the offence was committed, the effects of the offence were felt
within Turkey’s territory (on the Boz Kourt) thereby allowing its
jurisdiction.
3)      Jurisdiction based on the flag principle is not exclusive and
therefore Turkey wasn’t prohibited from prosecuting the French
Lieutenant (i.e. concurrent jurisdiction was permitted). This case
extended the territoriality principle to cover cases that happen
outside a state’s boundaries, but have a substantial effect on the
state’s interests or involve its citizens
___________________

SCOTIA CASE
 FACTS :- United States of America  ship Scotia collided with Britain
ship Berkshire on high , latter was not carrying on requisite lights
etc required according to series of regulations adopted by the both
countries law making bodies. The question whether ship was required to
carry the requisite lights attracted the attention of the court and
damage was declined by the USA  Supreme Court held that by the
concurrence of these State laws such lights were mandatory – it shows
how State practice might give birth to usage and subsequently to
custom.
___________________
THE CORFU CHANNEL CASE
(UNITED KINGDOM V. ALBANIA)
1949 I.C.J. 4 (APR. 9)
The Corfu Channel separated the Greek Island of Corfu from the
Albanian and as the Channel was narrow ships passing through had to
move closer than 12 miles near the Albanian Waters. At that time there
was civil war in Greeks for which UK needed vital intelligence through
its naval ships passing through the channel.The Corfu Channel Incident
refers to three separate events involving Royal Navy ships in the
Channel of Corfu which took place in 1946, and it is considered an
early episode of the Cold War. During the first incident, Royal Navy
ships came under fire from Albanian fortifications. The second
incident involved Royal Navy ships striking mines and the third
incident occurred when the Royal Navy conducted mine-clearing
operations in the Corfu Channel, but in Albanian territorial waters.
The UK Government demanded reparation from Government of UK which
denied on the ground that the whole affair was the work of countries
which did not wish to see a normalization of relations between Albania
and Britain and in fact vessels from Greece and other countries had
trespassed recently in the area where the mines were discovered. The
British government did not find this response satisfactory and it
eventually brought its case to the International Court of Justice(
which  was the first case adjudicated by the it ) having failed in its
attempt to involve the Security Council in the matter.UK claimed their
ships were involved in an innocent passage. On the other hand, Albania
claimed that sending warships through the channel was meant to be
intimidating and thus was not ‘innocent’ as in order to count as an
innocent passage under customary international law, the passage must
not be intended to be threatening
JUDGMENT OF INTERNATIONAL COURT OF JUSTICE (ICJ)
1)      USE OF CUSTOMARY INTERNATIONAL LAW :- This case was decided based
on customary international law, as it occurred prior to the Convention
on the Law of the Sea (1833 U.N.T.S. 3 (1982) which would now be
controlling.
2)      RIGHT OF INNOCENT PASSAGE EXPLAINED Ships can use narrow channels
for innocent passage, even if that meant they had to enter the 12 mile
territorial waters of a coastal country and he UK did have a right to
traverse the Channel but, reminded the UK that they could only use the
Channel for innocent passage.
3)      ENOUGH EVIDENCE OF UK WRONG DOING :- The Court wasn’t ready to find
that the UK was sending ships into the Channel to threaten Albania,
but noted that there was evidence that’s what they were doing.
4)      NO MINING WITHOUT PRIOR NOTICE :- Since  the Channel could be used
for innocent passage, Albania could not mine it without giving notice
5)      MINESWEEPING IS NOT INNOCENT PASSAGE  :- The Court also found that
the UK couldn’t sweep the Channel for mines, since minesweeping was
outside of the definition of innocent passage.
AFTERMATH  :- With the end of the Cold War, the People’s Socialist
Republic of Albania ceased to exist in 1991.Diplomatic relations
between the two countries were established on 29 May 1991. Soon after,
on 8 May 1992, Britain and Albania announced that they had come to an
agreement over the Corfu Channel case, jointly announcing that “Both
sides expressed their regret at the Corfu Channel Incident of 22
October 1946″. Only in 1996 following lengthy negotiations UK  agreed
to pay U.S.$2,000,000 in delayed reparations
___________________
ALABAMA CLAIMS TRIBUNAL
America was in civil wars in the period of 1860’s over the issue of
slavery. The Country was divided along two regions Southern and
Northern.The states lying in the Southern region  known as
confederates were against abolition of slavery as it had agricultural
economy depending upon slaves labor, ,whereas, States lying on the
Northern regions being Industrial needed slaves free from Southern
feudal monopoly to be employed in their industry. On 13 May 1861,
shortly after the commencement of hostilities in the American Civil
War, the British government issued a proclamation recognizing the
Confederates as belligerents and declaring British neutrality in the
conflict. However, during the war, the United States believed that
Britain was in breach of its obligations as a neutral power, most
notably by allowing the Confederate Navy to be supplied with warships
like Alabama , which wreaked havoc on American shipping and trade. It
captured 58 Northern merchant ships before it was sunk in June 1864 by
a U.S. warship off the coast of France.After the war had ended,
several outstanding disputes between America and Britain threatened to
bring the two nations into conflict however, the main dispute between
them was the damage inflicted by Alabama to American interest at high
seas which could have been avoided had Britain strictly adhered to its
declaration of neutrality. In 1871 the Treaty of Washington was signed
between the United States and Great Britain resolving most of these
disputes. However, it was decided by the treaty negotiators to refer
the Alabama Claims to an international tribunal for arbitration. It
remains a case study in arbitration. The United States claimed direct
and collateral damage against Britain, to the tune  $2 billion, or
alternatively the ceding of Canada to the United States Britain stand
was that the Confederates had managed to disguise as merchant vessels
ships  which were actually Commerce raiders during their construction
in order to circumvent British neutrality laws. The Arbitration Judges
composed of one each from Britain, USA and representatives from Italy,
Switzerland and Brazil. After arbitration, in 1872 Britain paid the
U.S. $15.5 million for damages done by warships built in Britain and
sold to the Confederacy, thus ending the dispute and ensuring friendly
relations. The main sticking point in the Arbitration proceedings was
insistence of America for claim for indirect damages it suffered.
LEGACY OF ALABAMA CLAIMS
1)      This established the principle of international arbitration, and
launched a movement to codify public international law with hopes for
finding peaceful solutions to international disputes.
2)      The arbitration of the Alabama claims was thus a precursor to the
Hague Convention, the League of Nations, the World Court, and the
United Nations.
3)      Britain expressed official regret at the damage done by the
vessels; new guidelines were established for maritime neutrality
(later accepted as international law at the second Hague Conference in
1907)
4)      American and Canadian fishermen were given ten-year access to the
other’s territorial waters, from which they could ship home fish
duty-free;
5)      It crystallized rules of neutrality which were helpful in
development of laws of neutrality.
___________________

EXTRADITION

It is a well settled that we are living in the era of global village
where world is no longer an entity living in isolation with other
states.The technological explosion and the growth of transnational
organized crime and the response of the international community to it,
has created many new challenges. Organizations which orchestrate
transnational crime and which then disperse and conceal the proceeds
of their illicit activities the world over, have no regard for
national borders. Gone are the days when criminals taking shelter of
the doctrine of territorial intergrity and sovereignty could take  as
presently we are seeing the cases where crime committed in one country
is tried in other state. The concept of extradition takes care of
problem of transatlantice nature of crime.
DEFINITION AND HISTORY
Extradition is the surrender by one state, at the request of another,
of a person who is accused or has been convicted of a crime committed
within the jurisdiction of the requesting state
For example,  “A”  a citizen of Pakistan murders “B” in India and
subsequently resides in Pakistan, on the request of India he can be
handed to India for his trial.Historically, Extradition is the best
known and certainly the oldest component of international cooperation
in criminal matters. It is a concept which originated in ancient
societies such as the Egyptian, Chinese, Chaldean, and
Assyro-Babylonian. Since the time of its origin the concept has seen
change from Political to common serious crime as in the old times it
was maily utilized by state for surrender of Political prisoner but
subsequently it  was changed to other categories like drug trafficking
etc.Despite its long history and ancient roots, the practice of
extradition has seen its most radical development in the last 50
years.

DIFFERENCE BETWEEN EXTRADITION AND EXTRAORDINARY RENDITION
Extraordinary rendition” is an extrajudicial procedure and policy of
the United States in which criminal suspects, generally suspected
terrorists or supporters of terrorist organizations, are sent to
countries for imprisonment and interrogation. The procedure differs
from extradition as the purpose of the rendition is to extract
information from suspects, while extradition is used to return
fugitives so that they can stand trial or fulfill their sentence.
Critics of the procedure have accused the CIA of rendering suspects to
other countries in order to circumvent U.S. laws prescribing due
process and prohibiting torture.

LOGIC BEHIND EXTRADITION

1)      CRIME MUST NOT GO UNPUNISHED:-The world is now a global village and
it is the desire to all members of International law community that
crime must not go unpunished. If the state in which fugitive is
present can’t punish him on ground like lack of proper evidence etc.
he is to be surrendered to the state where he committed the crime.
2)      GREATER  INTEREST PRINCIPLE :- The state where the crime has been
committed is the best place to try the criminal on account of all
available evidence there.

CONDITIONS NECESSARY FOR EXTRADITION
1)      OBJECT OF  EXTRADITION :- It means the accused who is to be handed
over to the requesting state to face music for his acts there. In
other words , he is the person who has committed crime and is sought
for his trial by the state wherein crime has been committed. For
example, Government of Pakistan handed over Aimal Kansi when a request
of his extradition was made by the United States of America over his
killing of CIA employees there. Similarly, in the recent case Himesh
Khan who was wanted by law in  Pakistan for his role in Bank of Punjab
case was extradited from USA It is to be noted down that object of
extradition may be person of requesting or requested state or even of
third country. Some states like France and Germany have made it their
policy of not extraditing their nationals whereas Great Britain make
no such distinction as national or non national.
2)      SERIOUS  CRIME: – It means that crime for which extradition is
sought must be a serious one and not a minor one. For example, Panama
Ex Army Chief  Noriega was extradited for serious crime of drug
trafficking to USA in the end of 1980’s.
3)      PRINCIPLE OF SPECIALITY :- It means that a person can only be
extradited for the offence to another state which he has committed not
for any other offence. For example,  “A” commits an offence of murder
in United States of America and resides in Pakistan like in case of
Aimal kansi who was accused of killing CIA employees in USA . He can
only be extradited the said crime of murder and not for any other
crime. Similarly,  Himesh recently extradited from USA for crime of
Bank of Punjab fraud  on the direction of Supreme Court of  Pakistan
can only be tried for the said offence and not for murder of Mr. A, B
or “C”.
4)      PRINCIPLE OF DOUBLE CRIMINALITY :- It means the crime for which the
person sought to be extradited must be crime in both requesting and
requested states. For example,  “A” commits a crime of  forgery in a
Pakistan and subsequently takes refuge in The UK , if his extradition
is sought from The UK by the Government of Pakistan it must be shown
that the act committed by him must also be a crime in  The UK.The
concept of dual criminality is a fundamental aspect of modern
extradition law. For extradition to be possible the act in question
must be a crime in both the requesting and requested states. The scope
of the Principle of double criminality has been laid down by USA
Supreme Court in famous Jacob factor case.

EXCEPTIONAL CASES WHEN EXTRADITION CAN’T BE GRANTED

1)      POLITICAL CRIME ETC :- 1) Political 2) religious and 3) Military
offence etc are grounds  of refusal of extradition. The concept of
Political crime was unknown in theory and practice of International
law before the French revolution but has come to assumed certain and
definite term after it.Article 120 of the French Constitution framed
after revolution of 1793 granted Asylum on the ground of Political
crime. In fact the said concept assumed after new importance in 19tth
century when people raised the banner of revolution and liberalism
against kingship and absolutism.Similarly, Holy Prophet Muhammad
(PBUH) was granted by Government of Abyssinya during Muslims first
migration on ground of religious persecution back in Mecca.The term
has been variously defined by various writer to some it is one which
is committed for Political  purposes and to some it is one which
against the state only.The test of Political crime was discussed in
Castioni case of 1890 by English court.
2)      JURISDICTION – Jurisdiction over a crime can be invoked to refuse
extradition. In particular, the fact that the person in question is
own citizen causes a country to have jurisdiction. For example, Libyan
refusal of hand over its citizen to be tried in USA when  two Libyans,
Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, were
accused of blowing up of Pan Am Flight 103 on 21 December 1988
similarly, ,  Pakistan Government stand of handing over Ajmal Kasab
accused in Bombay attack to be tried in  Pakistan instead of being
tried in Bombay also a case in point.
3)      CITIZENSHIP OF THE PERSON IN QUESTION :- Some countries refuse
extradition of own citizens, holding trials for the persons
themselves. In some cases, such as that of Hafiz Muhammad Saeed, the
suspect will not face criminal charges at all.

CASE LAW ON EXTRADITION
1)      RE CASTIONI CASE (1890) :-  In the province of Switzerland trouble
started when Government refused to accept the public demand of
referendum on question of revision of the Constitution. During the
trouble Castioni a Swiss national attacked and killed Municipal
Commissioner and ran away to England to escape clutches of law. The
Swiss Government  Made request of his extradition and in the hearing
of the case the court refused extradition on the ground that the
murder was committed in furtherance of Political object and hence
request was rejected.
2)      RE MEUNIER CASE :- He was anarchist who didn’t believe in any form
of Government and was responsible for bomb explosion in France and
thereafter fled to The UK. A formal  request for his extradition was
made by the French Government  and in the court of UK he raised the
point that as  he was accused of Political crime hence, request needs
to be turned down. The court failed to be moved by his argument on the
ground that sine he didn’t believe in any form of Government hence, an
enemy of all kinds of Government and for an offence to constituted as
political one  there must be two parties each fighting for its
respective kind of Government and as he  believed in no kind of
Government hence , he is not qualified to be non extradited on account
of his crime.
3)      GOVERNMENT OF INDIA AND MUBARAK ALI AHMED (1952) :- One Mubarak
committed crime of forgery and fraud in India and after being
granted there a bail it so happened that he fled to Pakistan during
which he was declared as spy for Pakistan  and later to England where
the Government of India make request of his extradition. In the court
proceedings he raised the plea that he was victim of Political
consideration and having been treated as spy for Pakistan he was not
expected to received fair trail in India. The court rejected the plea
on the ground that he was being sought out for moral  crime of forgery
which doesn’t come within the scope of Political offence.
4)      JACOB FACTOR VERSUS LAUBEN HEIMER :- The accused in the case Jacob
fraudulently received money in England in violation of law  and
subsequently resided in state of Illinois. The extradition proceedings
started where interesting question arose owing to the federal nature
of the USA Constitution. As according  to general criminal law of USA
it  was also crime like in England but in the criminal law of state of
Illinois it was not so. But the Supreme Court on the ground of General
criminal law of USA held that the criteria of double criminality has
been satisfied and he was extradited and on the principle of
prevalence of Federal law over state’s law handed over the person to
UK.
5)      SOERING V UNITED KINGDOM :- Soering an American born German was
brought USA by his parents in and during his studies at University of
Virginia developed friendship with a Canadian national Miss Elizabeth
Haysom. This romantic relationship was not approved by parents of
girls who opposed it by tooth and nail.The situation took such an ugly
turn that both killed  them  and fled USA after taking all
precautionary measures. Soering and Elizabeth Haysom fled to Europe in
October 1985 and were arrested in England on 30 April 1986 on charges
of cheque fraud. The Government of USA filed application for
extradition of pair to face murder trial for killing parents of Miss
Elizabeth on the basis of extradition of 1872 with England. Soering
moved application before UK authorities opposing such extradition on
the basis of relevant Article of said Extradition treaty between USA
and  UK  which laid down that  extradition can be refused if offence
involved death sentence.The application was rejected by the UK
authorities and after which he moved application before European court
on the ground that he would receive inhuman treatment in USA in
violation  of Article 3 of the European Convention on Human Rights
(“the Convention”) were he to be extradited to the US. The court
accepted his refused extradition on the ground that he would face
inhuman treatment in USA by way of death  and didn’t impress by
argument of USA that inhuman treatment wouldn’t be carried out.
6)      NORIEGA CASE :- He was Panama Military leader who by way of coup
duly supported by CIA of USA become its President. At the height of
cold war he was in good books of USA but, subsequently the period of
Honey moon between him and CIA came to end and USA wanted him to be
extradited to USA for money laundering and drug trafficking to USA ,
he resisted his extradition and took refuge in Catholic Church but,
was arrested by way of rock ‘s n roll diplomacy. He was tried in USA
and of laundering illicit drugs money in 1990 and sentenced to 30
years, later reduced to 17 years for good behaviour. and when freed
from his sentence in April 2010 was extradited to France which
convicted him in his absence in 1999 for laundering money through
French banks.

Share:

Leave a Reply

%d bloggers like this: