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Distinguish bet
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Discuss Different type of
Asylum with reference to some landmark cases
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Territorial and Extra territorial
Asylum
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It has been derived from a Greek word

whose Latin counterpart is ‘Asylon’ and it means ‘freedom from seizure’
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It is a possibility to remain in a
country either permanently or for a temporary period
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e
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Asylum, in international law, the protection granted by a state to a foreign citizen against his own state
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The process is that an individual has to apply for asylum in a particular country, while
their application is pending, they are made to stay in a detention camp
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e
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Article 14 of the Universal Declaration of Human Rights provides the right to an individual to seek asylum
in any country to protect them from persecution
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It is considered as the
fundamental law
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New York Declaration for Refugees and Migrants by the UN General Assembly in 2016 also reaffirms the
‘right to seek asylum’ and freedom of an individual to leave or return to their country
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However, the articulation of the law of the right to asylum signifies that it is not the right of an individual,
but rather is a right of the state to grant asylum
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The decision of the state must be respected by all the other states
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‘Right to Asylum is a right to seek and not to receive
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Extradition:
 These two terms are extreme poles of each other i
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, totally opposite to each other
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On the other hand, extradition is the
process of sending back a fugitive by one country to another, the main purpose is to criminally
prosecute the fugitive
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 Extradition is the process to make sure that the fugitives are punished and justice is served and
criminal cooperation is strengthened between sovereign states
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If Asylum has been granted to the person,
then the court of law will not hear the expedition case and similarly, if a case of the expedition is
pending against an individual, he/she would not be granted asylum
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It is decided by the court whether the person should be extradited

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or not
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Different types of Asylums:


Territorial asylum - Territorial Asylum is granted by a State on its Territory, it is called Territorial
Asylum
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The grant of
territorial asylum therefore depends upon the discretion of a State which is not under a legal
obligation to grant asylum to fugitive, As no precise rules as to grant of territorial asylum
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This Declaration provides that
the right to seek and enjoy asylum may not be invoked by any person with respect to whom there are
serious reasons for considering that he has committed a crime against peace, a war crimes and crimes
against humanity
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From the above provisions of the declaration, it is clear that State does
not have absolute right to grant asylum
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Reference with cases: Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great
Britain
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Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by Pakistan
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

Extra- Territorial asylum - Active protection is given outside the territory not belonging to the state
granting it
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It is called
extra-territorial Asylum’
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Thus, Asylum
is given at legation, consular premises and warships are the instances of extra-territorial asylum
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But asylum may be granted in the legation premises in
the following exceptional cases
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2) Where there is well established and binding local custom
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Asylum in consular premises 2
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As far as an asylum Warship is concerned, it may be granted
on the ground of humanity, in cases if extreme danger to the individual seeking it
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Thus, if a person after committing a crime on
shore seeks asylum on board a foreign merchant ship he may be asserted by the local police, either before
the ship leaves the port or when it comes into another port of the same State
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However, State may grant asylum if they conclude a treaty to this
effect
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Asylum in the premises of international Institutions: Whether a person taking refugee in the premises
of an international institution or organisation would be granted asylum is a question which cannot be given
with certainty in the absence of any rule in this regard and also because of lack of practice
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Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is
necessary to establish legal basis in each particular case
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The Swedish Prosecution Authority
The recent case that has captured a lot of media attention is of Julian Assange
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The Sweden government had filed for the extradition of Assange and the UK Supreme Court had
ordered his extradition to Sweden in May 2012
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The reason was given that his human rights would be violated if he is sent to Sweden
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In February 2012, the UN declared that he had been ‘arbitrarily detained’ by the
Ecuador embassy
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He has also been accused of committing a crime against the United States of America by releasing confidential
documents of the United States of America on his website named ‘WikiLeaks’
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Territorial vs
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The exclusive
control of every sovereign state over its territory backs up the right of a state to grant territorial asylum
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Illustration: If an individual, ‘A’ from Syria comes to Turkey and applies for asylum due to the horrifying
condition in Syria and apprehension of danger to his life
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e
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The term extra-territorial means beyond
the jurisdiction of the authorities of the state where such establishment is i
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, the local authorities
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The local authorities are not
allowed to enter the Embassy of any country situated in their country without having special orders
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

Territorial Asylum- Article 1(1) of the Declaration on Territorial Asylum states that a state can grant asylum by
exercising its sovereign power to an individual who invokes his/her right under Article 14 of UDHR
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Article 1(3) provides the power to the state to evaluate based
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It is granted on a temporary basis and ends once the emergency is over
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Providing
asylum in such cases, to an extent deprive the local country’s jurisdiction over all the individuals present on its
territory
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

Territorial Asylum- Article 2 provides that if any state feels overburdened in providing asylum to the people,
then States shall either individually or through the United Nations help that particular to lighten the burden
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Article 3(2) and 3(3) act as exceptions to Article 3(1)
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Article 31, 32, and 33 of the Refugee Convention of
1951 support the said principle
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In
case of an extradition treaty between two countries, the countries are bound to extradite the offender in terms
of the other country’s law
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Extra territorial asylum- The Convention on Asylum held in Havana in 1928 to which only a very few countries
have ratified, provides that it is not allowed for states to grant asylum to people who are accused of common
crimes or deserters from the navy or army in their legations, military camps, warships or military aircraft
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Salman Rushdie, a writer who was in controversy for his novel ‘Satanic Verses’ was given Asylum by the
United Kingdom
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Discus the principles of International Law relating to the amicable means of settlement of international
disputes
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It is developed on Principles of International Law concerning Friendly Relations and Co-operation
among States and formulated per se in the UN Charter
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It exists whenever a
disagreement involves government, jurist persons, institutions, corporations or private individuals in
distinctive parts of the world
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Mechanisms of Peaceful Settlement of Disputes in International Law
1
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The dictionary defines negotiation as a discussion aimed at reaching an
agreement
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Since it is a bilateral and
voluntary, it is considered the most satisfactory means of settling disputes
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However,
negotiations do not always succeed as it has been seen that it becomes difficult to reach a consensus
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For instance, Indian and Sri Lanka had settled their boundary dispute by means of negotiation in the
year 1974
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2
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Where in mediation,
the mediator is required to be present in the process, good offices is basically where the third party
suggests settlement without participating in the discussion or process
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There are no specific rules of procedure of
International Law to carry out good offices
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The mediator is
expected to be just, fair and unbiased
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In a case of mediation, the third party can participate in the
negotiation process on the request of the disputed parties or by own will
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In 1966, the Soviet Premier Kosygin resolved the dispute between India and Pakistan by signing the
Tashkent Agreement
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Where such committee makes proposals to the parties for
settlement of dispute
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Conciliation procedures are instituted by parties who agree to refer their
dispute to an established organ, body, board, commission or a single arbitrator
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Under Articles 10 and 14 the General Assembly

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has the power to appoint a commission to settle disputes
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The most important ones among the various treaties signed through the Conciliation Commission
are: Pacific Settlement (1948), Pact of Bogota (1948), The Vienna Convention on Protection of the
Ozone layer
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Arbitration: In case of Arbitration, the decision is made by a single arbitrator or arbitral tribunal
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This method is considered the most effective means of dispute resolution as it
consists of both diplomatic and judicial aspects
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The best-known rules of arbitration include those of the London Court of International Arbitration,
the International Chamber of Commerce, the Singapore International Arbitration Centre, the
International Centre for Dispute Resolution of the American Arbitration Association, and the Hong
Kong International Arbitration Centre
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Define Nationality
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Distinguish between
nationality and domicile
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Discuss the nationality of a married woman
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E
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American Indians were referred to as non-citizen nationals before the Native
American Citizenship of 1924 was passed
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Individual
persons, corporations, ships, and aircraft, all have a nationality but are for legal purposes only
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It is a nationality that brings all individuals under the purview
of international laws
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This is usually referred to
as Jus Soli
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The states which follow the principle of jus
soli, allow the individual to acquire the citizenship of that particular state on the virtue of being born on the
state’s territory
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By descent from a State’s National
This is known as the principle of Jus Sanguinis
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It literally translates to “Right
of Blood”
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The
countries which follow this principle provide citizenship on the basis of birth provided that the individual’s
parents were legally settled citizens of the respective country
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By Naturalization
The process by which a foreign citizen becomes eligible to acquire the nationality or citizenship of any
country
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The rules and protocols for naturalization vary from country to country
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Nationality by Marriage
Individuals need not keep renewing their visa and burning a hole into their pockets for the sake of love
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This is known as a citizenship marriage
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Chapter 3 of the same talks about the Nationality of married women
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

Article 9: If the national laws require her to lose her nationality when she acquires the nationality
of her husband through marriage
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Article 10: If the situation where a husband is naturalized, the change in the wife’s nationality is
not possible until and unless without her full consent
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She can only do so in accordance with the respective country’s laws
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Nationality by Adoption
This is also referred to as intercountry or transnational adoption
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By the virtue of this measure, an individual or a couple can be
deemed legal parents of a child belonging to a foreign nation
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The individual or couple will have to be
eligible
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The child must be under 18 years of age
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The child must be under the legal custody of some guardian in his/her state
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When we talk about nationality
by cessation, we refer to the cessation clauses which were expressed in the conference of
Plenipotentiaries held in 1951
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This had to come to a halt in accordance with the terms and conditions
of the statues
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Article 1F of the convention
addresses these conditions in which an individual is no longer eligible to enjoy the benefits of refugee
protection
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The prime focus here is on the voluntary part
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There are countries which
do not allow that as well, they tend to trap their nationals in an endless loop of administrative red-tapism
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If a citizen fails to adhere to these then his/her citizenship
can be cancelled
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However
involuntarily losing one’s citizenship, is not immediate, it has to undergo a series of actions to revoke
someone’s citizenship
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

This article states that any Indian citizen by naturalisation or by the virtue of Article 5 of the
Constitution or by registration under any other circumstances other than clause (b)
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When the nationalisation or the registration certificates were obtained by unlawful means- fraud,
false representation, hiding any piece of evidence related to these
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That citizen by means of his expression is proven to be disloyal towards the spirit of the Indian
Constitution and the established laws itself
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If a citizen, during a war, tried or tries to or unlawfully communicate with an enemy or was by any
means related to them
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Associated in any business or under his senses assisted an enemy
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If within five years of the period after naturalisation, the individual had been sentenced for a period
of at least two years
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The citizen has been a foreign Indian National, for a continuous period of seven years
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This must be in writing
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Then this case has to be referred to a committee of Inquiry under this section
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The Central Government must refer this case to the Committee of Inquiry, which must have a
chairman (a person who has held a judicial office for at least a decade) in collaboration with two
other members appointed by the Central Government
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The Inquiry Committee must submit its report to the Central Government
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By Expatriation
An expatriate refers to a person who is residing in any other country rather than his native country
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It means
renouncing the nationality and allegiance of a country without any constitutional consequences
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The main theme here is that it is voluntary, and the decision rests on the conscience of the citizen
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It
simply means to give up
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There can be a lot of reasons for people to renounce their citizenship
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The field of law is humongous and so is the world
population
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Thus there can be sections of people unhappy with some laws
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The respective countries might
be engaged in a war
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If the taxation system extracts too much from its
people, the citizens might want to renounce their citizenship
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S citizens for their tax laws
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This
happens when an individual loses the nationality of one state (his nation) and is able to attain the citizenship
of another state
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Some states will cancel your citizenship if you acquire a job in a
foreign nation without following government sanctions
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Your
citizenship might expire when you stay in a foreign nation for too long
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Domicile
It is common in private international law practice for the court to face some setbacks in determination of
whether domicile or nationality is a determining factor as to the question of which law should be applied
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Domicile indicates his civil status … a country in which a person has established his permanent home
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The concept of Double Nationality or Dual Nationality
Dual nationality means that a person is a national of two countries at the same time
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” Nationals don’t have the same rights as citizens, but they
are under the protection of that country
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(a) It is for each State to determine who are its nationals, and if this should lead to a person possessing two
nationalities it does not mean half of one nationality and half of another
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For example, an English court has stated that
there is no such thing as a German national by English law
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I could
mention two instances when an international body has been confronted with this, though both are concerned
with reinstatement of an earlier existing nationality
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The principal facts of this case were as
follows: Friedrich Nottebohm was born in Hamburg, Germany, in 1881 and under German law was a German
national
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In 1939,
shortly before the outbreak of the Second World War, Nottebohm went to Liechtenstein and there acquired
Liechtenstein nationality within a matter of weeks, before returning to Guatemala
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He then lost German nationality
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Here Liechtenstein exercised its right to diplomatic
protection of one of its nationals
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12 Before that,
the Court had stated that “nationality is a legal bond having as its basis a social fact of attachment, a genuine
connection of existence…”
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This is clear in that the Court goes on
to state that Liechtenstein was “not entitled to extend its protection to Nottebohm vis-à-vis Guatemala

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