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 Wright’s 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. Protector’s 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. 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.
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