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Is Extradition a Legal Duty of State?
Extradition may be defined as surrender of an accused or a convicted person by a State on whose territory he is found to the State on whose territory he is alleged to have committed or have been convicted of a crime. The term has derived from 2 Latin words which are ‘ex’ and ‘traditum’.
According to Oppenheim, it is the delivery of an accused or a convicted individual to the State where he is accused of or has been convicted, by the Sate he is found for time being.
The centre question revolving around Extradition is, whether it is a Legal Duty of a State of refuge to deliver the criminal? Grotius is of the view that a State has a duty either to punish the offender or to surrender him to the State seeking his return. The principle of ‘prosecution or extradition’ was recognised by him as a legal duty of the State where the offender is found. The legal duty of the State according to him is based on Natural Law.
However, in practice, the principle has not been followed by the states, and therefore, it could not become a rule of International Law. In modern times, a fugitive criminal is not surrendered in the absence of extradition treaties. The Supreme Court of the United States of America in Factor v. Labubenheimer clearly stated that:
International Law recognizes no right to extradition apart from a treaty. While a government may, if agreeable to its own Constitution and laws voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled away, and it has been said that it is under a moral duty to do so…. The legal duty to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.
The general agreement in international law is that a States are not obligated to surrender an alleged criminal to a foreign state, because one principle of sovereignty is that every state has legal authority over the people within its borders.Therefore, a legal obligation to surrender a criminal or a fugitive, arises only when treaties are concluded by the States and after the formalities have taken place which are mentioned in the extradition treaties. Only in exceptional cases, a State may extradite a person on the basis of reciprocity. However, this is done not because of any legal duty on their part, but because of reciprocity or courtesy. It is to be noted that extradition of the fugitive criminals is mutually beneficial for all the States or to say the international community as a whole as it plays a major role in eliminating crimes if it works effectively through co-operations.
There exists no duty to extradite in the absence of treaty. It is some time said that asylum ends where extradition begins; that is a state has a right to grant asylum to fugitive criminals unless it has bound itself by treaty to extradite them. Presently, in the absence of any multilateral treaty or Convention, extradition is done by States on the basis of bilateral treaty wherein provisions are made in accordance with the municipal law by which they have agreed between themselves to surrender the accused to the requesting State in case such person comes under the purview of given treaty. In India, rules regarding extradition have been made in the Extradition Act 1962 and the Extradition (Amendment) Act, 1993. Extradition is done by India only when the conditions laid down in the Act are satisfied.
