New Trends in the Law of Extradition and Asylum
| Author | Edvard Hambro |
| Published date | 01 March 1952 |
| Date | 01 March 1952 |
| DOI | http://doi.org/10.1177/106591295200500101 |
| Subject Matter | Articles |
1
The
Western
Political
Quarterly
VOL.
V
MARCH,
1952
No.
1
NEW
TRENDS
IN
THE
LAW
OF
EXTRADITION
AND
ASYLUM
EDVARD
HAMBRO
1
International
Court
of
Justice
1
This
article
is
written
by
the
author
in
his
personal
capacity
and
represents
in
no
way
the
authorized
opinion
of
any
organization
with
which
he
is
connected.
2
This
is
shown
clearly
by
the
International
Court
of
Justice,
particularly
in
the
Advisory
Opinion
on
Reparation
for
Injuries
(International
Court
of
Justice,
Reports,
174
[1947]).
See
also,
the
dissenting
opinions
as
well
as
the
writings
of
Judge
Alvarez.
3
See,
Franz
v.
Holtzendorff,
Die
Auslieferung
der
Verbrecher
und
das
Asylrecht
(Berlin,
1881);
Lammasch,
Auslieferungspflicht
und
Asylrecht
(Leipzig,
1887),
and Das
Recht
der
Auslieferung
wegen
politischer
Verbrechen
(Wien,
1884).
See
also,
Mercier
in
33
(Recueil
des
Cours
de
l’Académie
de
La
Haye);
Moore,
Extradition
and
Interstate
Rendition
(Boston,
1891);
A.
Rolin,
in
1
Recueil
des
Cours
(The
Hague).
An
exhaustive
bibliography
may
be
found
in
the
draft
of
the
Harvard
Research
Group
(29
American
Journal
of
International
Law,
Supplement,
51-65
[1935]),
as
well
as
in
Oppen-
heim
(Lauterpacht),
International
Law
(7th
ed.;
London:
Longmans,
Green
and
Co.,
1948),
I,
643.
4
See,
American
Journal
of
International
Law,
Supplement,
41-46
(1935).
5
Gt.
Britain,
Queen’s
Bench
Division,
1890,
L.R.
ff.
6
Ibid.,
1894,
L.R.
[1894]
2
Q.B.
415.
7
Annual
Digest
of
Public
International
Law
Cases,
292-93
(1929-30),
hereinafter
cited
as
Digest.
8
Ibid.,
295
(1929-30).
9
Ibid
.,
412
(1938-40).
INTRODUCTION
NTERNATIONAL
TRIBUNALS
as
well
as
individual
writers
gen,
erally
admit
that
public
international
law
is
not
a
static
body
of
rules
but
a
dynamic
concept
which
must
be
developed
with
the
growth
of
the
international
community.2
The
law
of
extradition,
which
has
been
amply
and
ably
treated
by
some
of
the
most
learned
writers
in
the
history
of
the
science
of
law,3
constitutes
no
exception
to
this
rule.
The
question
of
extradition
lies
in
the
shadowy
borderland
between
international
and
municipal
law,
and
its
most
burning
problem
concerns
extradition
of
political
offenders,
or
asylum
granted
to
them.
The
history
of
this
problem
can
hardly
be
sketched
in
an
article
of
this
kind.4
It
is
enough
to
remind
the
reader
of
the
most
famous
cases
like
In
re
Castione5
and
In
re
Meunier,6
as
well
as
the
more
recent
cases
of
In
re
Kaphengst,7
In
re
Richard
Eckermann,8
and
In
re
Barratini.9
The
question
has
been
treated
on
several
occasions
by
1’Institut
de
Droit
2
Internationals
and
the
International
Law
Association,li
as
well
as
by
national
organizations
like
the
American
Society
of
International
Law. 12
Problems
of
extradition
were
also
debated
by
the
League
of
Nations
in
view
of
the
Codification
Conference
in
1930, 13
and
more
recently,
in
1935,
by
the
International
Conference
on
Unification
of
Penal
Law
at
Copen,
hagen.~4
Conflicts
are
possible
not
only
between
international
and
municipal
law,
but
also
between
different
classes
of
international
obligations
such
as
the
international
repression
of
crimes
on
the
one
hand
and
the
desire
to
protect
the
individual
on
the
other. In
these
cases
sharp
differences
may
arise
between
the
right
to
grant
asylum
and
the
duty
to
extradite.15
This
has
been
brought
into
focus
by
the
Universal
Declaration
of
Human
Rights,
which
states
in
Article
12:
1)
Everyone
has the
right
to
seek
and
be
granted,
in
other
countries,
asylum
from
persecution.
2)
Prosecutions
genuinely
arising
from
non-political
crimes
or
from
acts
contrary
to
the
purposes
and
principles
of
the
United
Nations
do
not
constitute
persecution.
The
American
Declaration
of
the
Rights
and
Duties
of
Man
contains
a
similar
provision
in
Article
27:
Every
person
has
the
right,
in
case
of
pursuit
not
resulting
from
ordinary
crimes,
to
seek
and
receive
asylum
in
foreign
territory
in
accordance
with
the
laws
of
each
country
and
with
international
agreements.
The
bitter
debate
in
the
United
Nations
and
other
organizations
concerning
the
protection
of
refugees,
on
the
one
hand,
and
international
repression
of
war
criminals,
traitors,
and
quislings
on
the
other
demon,
strates
the
conflict
between
these
two
ideals.
The
question
of
extradition
is
so
closely
linked
with
the
political
climate
of
the
world
and
is,
to
such
a
large
extent,
a
function
of
confidence
and
good
faith,
that
it
is
convenient
to
restate
the
principles
and
to
re-examine
the
problems
of
extradition
as
they
present
themselves
after
World
War
II.
It
is
true
that
the
Universal
Declaration
of
Human
Rights
seems
to
herald
a
new
era
where
human
values
will
be
protected
more
than
ever
before.
But
this
new
flower
comes
from
a
sensitive
plant
and
might
die
in
a
harsh
climate.
The
background
of
the
last
few
years
is
not
pleasant.
The
prosecution
of
political
offenders
has
never
been
more
ruthless
than
10
The
questions
were
particularly
treated
in
1880
and
1892,
and
touched
upon
in
1936
in
connection
with
stateless
persons,
and
in
1950
in
connection
with
the
right
of
asylum.
11
At
the
27th,
34th,
and
36th
conferences.
12
See,
Proceedings
of the
American
Society
of International
Law,
1906.
13
League
of
Nations,
Doc.
C.51.
M.28
(1926),
V.
14
Extraits
des
Actes
... (Paris:
Pedone,
1938),
p.
417.
15
This
was
illustrated
in
the
Asylum
Case
(International
Court
of
Justice,
Reports
[1950],
266
ff.).
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