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Individual and State

Table of Contents

QUESTION BANK

What is extradition? Explain the requirements of the extradition process.
.
Discuss the concepts of ‘Extradition’ and ‘Asylum’.
What do you mean by ‘Extradition’ and ‘Asylum’? What are the forms of asylum?
What do you understand by the terms ‘Extradition’ and ‘Asylum’?
Distinguish between ‘Extradition’ and ‘Asylum’. Explain International Law concerning extradition.
What do you mean by ‘Nationality’? What are the modes of acquiring nationality?

Short Notes

Individuals as subject of International Law.
Place of individual under International Law.
Expulsion of aliens.

I. Place of an individual in international law-

International law regulates relations between the States. The state is a primary subject of international law. In conventional international law, individuals were regarded as objects, not subjects of international law. Therefore, an individual had no place in international law. However, this position of the individual has changed in international law after the establishment of the United Nations Organisation. UN[1] charter offers some rights and imposes some duties upon individuals.

II. Conventions at the international level-

There are several covenants which confer rights and impose duties upon an individual, for example, the Universal Declaration of Human Rights, 1948; the Covenant on Economic, Social and Cultural Rights and Covenant on Civil and Political Rights, 1966; Genocide Convention, 1948, Convention relating to the Status of Refugees 1951, Convention on Political Rights of Women 1953, Convention on Elimination of All Forms of Discrimination again Woman 1979, Convention against Torture 1984, Convention on the Rights of Child 1989, etc. There are numrous of such declarations, resolutions and conventions adopted by the United Nations since its incorporation.

In addition to the above conventions, there are conventions at regional levels, such as the European Convention on Human Rights 1950, the European Social Charter 1961, and the American Convention on Human Rights 1969, etc.

From the above conventions, we may lay down the following rights and duties of individuals at the International level-

A. Rights of individuals-

Following are the rights conferred upon individuals by international law.

(1). Human rights-

The protection of human rights and fundamental freedoms of individuals are important objects of the United Nations Organisation. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948, provides various rights to individuals. Thereafter, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights 1966 also provide different rights to individuals. Moreover, the International Convention on the Rights of Children 1989 provides a number of rights to children below 18 years, Convention on the Elimination of all Forms of Discrimination against Women 1979 provide a number of rights to women and helps them in the eradication of discrimination against them.

(2) Right to make petitions-

Several conventions offer the right to individuals to make petitions before International forums for violation of their rights; for example, (i) Optional Protocol to the Covenant on Civil and Political Rights 1966 provides for the petitions by individuals before the Human Rights Commission against its own state, (ii) the Convention on the Elimination of all Forms of Racial Discrimination 1966, provides for the petition by the individuals’ before Committee for Racial Discrimination against them etc.

Some regional conventions, such as the European Convention on the Protection of Human Rights 1950 and the American Convention on the Rights 1969, give individuals the right to file a petition for violation of rights mentioned in these conventions.

(3) Right to Conciliation and Arbitration Proceedings-

The Convention for the Settlement of International Disputes between States and Nationals of Other States 1965 establishes the machinery of conciliation and arbitration on a consensual basis to resolve disputes regarding foreign investment.

B. Duties of individuals-

International law imposes duties upon individuals of any nation for violation of international law. These duties are specifically of a criminal nature.

(1) Offence of piracy[2]–

The offence of piracy is regarded as a crime against International law. Therefore, any state can arrest, try and punish pirates. The state can also seize vessels involved in the act of piracy. Article 101 of the Convention on the Law of the Sea 1982 lays down the circumstances of piracy. It lays down that piracy consists of any of the following acts-

(1) Any illegal act of violence or detention, or any act of depreciation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed- (i) on the high Seas, against another ship or aircraft, or against persons or property on board, ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a private ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The convention requires all states to cooperate fully in repressing piracy on the high seas.

(2) Violation of rules of warfare[3]–

Individual members of the armed forces of the belligerent state are criminally liable for violating the rules of warfare. The state having custody of such individuals can punish them under domestic or international law.

As per the Charter of the International Military Tribunal, the jurisdiction of the Tribunal extends to punish individuals for crimes against peace, war crimes and crimes against humanity. Such individuals may not have committed an offence against their state’s law, but they may be punished under international law for their crimes.

(3) Offence of Espionage[4]–

‘Espionage’ is the practice of spying, specifically by governments, to obtain political and military information. Individuals committing espionage and war treason are considered war criminals. Such war criminals may be punished as per international law.

Punishment for espionage is hanging or shooting. However, less severe punishments may be awarded.

(4) Crimes of Genocide[5]–

As per the General Assembly Resolution of 1946, genocide is punishable. Moreover, the Convention on the Prevention and Punishment of the Crime of Genocide 1951 provides that the contracting States should confirm that genocide, whether committed in times of peace or in times of war, is a crime under International Law, which must be prevented and punished. The Convention further states that those who are guilty of committing genocide must be punished whether offenders are constitutionally responsible rulers, public officials or private individuals.

(5) Aircraft Hijacking (see notes)-

(6) Kidnapping of diplomatic and other persons-

Some conventions, like Conventions on Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 and Convention on Taking of Hostages 1979, provide punishment to those committing offences prohibited under it, specifically the kidnapping of diplomatic and other persons.

(7) Apartheid[6]–

‘Apartheid’ means to separate or segregate persons according to their colour, race etc. Apartheid is a crime against humanity. A convention to suppress and punish criminals practising apartheid was adopted by the General Assembly of the United Nations in 1973. The convention provides that individuals, members of organisations and institutions and representatives of States, irrespective of motive, shall be held responsible if they commit, participate, or directly abet, encourage or cooperate in the commission of the crime of Apartheid.

Several criminals, such as Augusto Pinochet, former President of Chile; Hissene Haben, former President of Chad; and Milosevic, former President of Yugoslavia, were tried for different crimes under international law.

Short notes

Aircraft hijacking[7]

I. Definition of Aircraft hijacking-

Aircraft hijacking means the unlawful seizure of aircraft. It can be defined as “an unlawful interfering with, seizure or otherwise wrongful exercising control of an aircraft in flight by a person who is on board to change its itinerary[8]”.

The offence of Aircraft hijacking consists of taking or converting an aircraft to private use as a means of transportation and forcibly changing its flight plan to a different destination.

In this sense, hijacking resembles piracy[9]. It is an offence against the safety of civil aviation. The number of aircraft hijackings has increased in recent years, so the international community has adopted some conventions to tackle the menace.

II. International Law on hijacking[10]–

There are several international conventions against unlawful interference with civil aviation. The important among them are as follows-

1. The Tokio Convention 1963-

The “Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft” were signed on 14 September 1963 and became effective in 1969.

It forbids the unlawful seizure of civil aircraft in flight. It charges the contracting states with the duty of restoring such aircraft and cargo to the rightful owners and facilitating the resumption of the interrupted flight (Art. 11).

However, it does not provide adequate preventive measures.

2. U.N. resolution on skyjacking[11]–

The UN General Assembly adopted a resolution on 25 November 1970. It condemned all acts of aerial hijacking and called upon States to take all appropriate measures to deter, prevent, or suppress acts within their jurisdiction. The State must provide for the prosecution and punishment of those who perpetrate such acts in a manner commensurate with the gravity of those crimes.

3. Hague Convention 1970-

The conference at Hague in 1970 adopted the convention for the “Suppression of Unlawful Seizure of Aircraft.” Each state party to the convention was obliged to punish aircraft hijacking with severe penalties (Art. 2). The Convention also enjoined members to prosecute offenders without extraditing.

4. Montreal Convention 1971-

The ‘Convection for the Suppression of Unlawful Acts against the Safety of Civil Aviation” was adopted in Montreal in 1971.

As per Art. 1 of the convention, any person commits an offence if he unlawfully and intentionally-

a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft.
b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or it is likely to endanger its safety in flight; or
c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy the aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it, which is likely to endanger its safety in flight; or
d) destroys or damages air navigation facilities or interferes with that operation if any such information which he knows to be false, thereby endangering the safety of an aircraft in flight.

The Article further provides for the punishment of attempts to commit the abovementioned offences and requires the punishment of an accomplice. The state parties also undertook to provide deterrent punishment for the offence of aircraft hijacking.

India was a signatory to this convention. To give effect to it, the Indian Parliament passed “The Supersession of Unlawful Acts against Safety of Civil Aviation Act, 1982.”

5. Montreal Convention on control of plastic explosives 1991.-

The International Conference on Air Law adopted the Convention on the “Marking of Plastic Explosives for the Purpose of Detection” in Montreal in 1991. The Convention came into force in 1998.

The Convention requires states to prohibit and prevent the manufacturing of in their territory of unmarked explosives, as well as movements of such explosives into or out of their territory. The Contention further requires to destroy the plastic explosives not meant for the use of the military or police. The convention also established an International Explosives Technical Commission to supervise and inform the international community about plastic explosives.

The convention proved very useful in tackling the menace of aircraft hijacking.

6. Beijing Convention 2010-

The International Conference on Air Law adopted the Convention on the Suppression of Unlawful Acts relating to International Aviation in Beijing on September 10, 2010. It came into effect on July 1, 1918.

The parties to the Convention agreed to criminalise acts using civil aircraft as a weapon and using dangerous materials to attack aircraft or other targets on the ground. The Convention also criminalised the illegal transport of biological, chemical and nuclear weapons. The treaty was signed by 35 states.

III. Instances of Aircraft Hijacking in India-

At an international level, aircraft hijacking is regularly committed by terrorists and other persons to get their demands satisfied by the concerned State.

In many instances, the hijackers have succeeded in getting their demands fulfilled. However, international efforts to curb the menace of plane hijacking have reduced the incidences of hijacking to a great extent. India is the worst sufferer of plane hijacking.

The first incident of hijacking in India took place on 30^th January 1971, when a plane on a flight from Srinagar to Jammu with 28 passengers on board was hijacked by two Kashmiri separatists to Lahore.

Pakistan, instead of arresting hijackers, provoked and protected them. The passengers were returned, but the plane was burnt. Neither of the hijackers was extradited, nor were they tried in Pakistan.

The second incident took place on 10^th September 1976. A Boing aircraft on a flight from Delhi to Jaipur with 78 passengers and seven crew members on board was hijacked by six Kashmir separatists and was flown to Lahore.

The crew, passengers, and plane were returned to India. However, hijackers were neither extradited nor tried in Pakistan.

In the third incident on 29^th September 1981, an aircraft on a flight from Delhi to Srinagar with 117 passengers and crew members on board was hijacked by five Sikh extremists and taken to Lahore.

The passengers and crew were returned to India, and the hijackers were also tried and punished in Pakistan by the trial court.

In the fourth such incident, on 5^th July 1984, an Airplane on a flight from Srinagar to Bombay with 255 passengers on board was hijacked by nine persons, specifically Sikh and taken to Lahore.

The passengers and crew were returned to India, and the hijackers were also punished.

In yet another incident, on 24^th August 1984, an aircraft on a flight from Chandigarh to Jammu was hijacked and taken to Lahore, and after refuelling, the flight was flown to Karachi and then to Dubai. The United Arab Emirates Government took hijackers into custody and extradited them to India.

In a recent incident on 24^th Dec 1999, an Indian aircraft carrying 191 persons on board, including crew members, was hijacked by five passengers in a plane flying from Kathmandu to Delhi. It was taken to Kandahar airport. The Taliban Government of Afghanistan supported hijackers. The Indian Government had to release militants from its jail, including Azar Masood.

The plane and passengers were then released.

Thus, such incidences show that states like Pakistan have supported the hijackers more than India. Therefore, there is much that needs to be done to stop hijacking completely.

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[1] United Nations

[2] समुदा्रतील चाचेगीरी / लुटमार

[3] युध्द नियमांचा भंग

[4] गुप्तचर किंवा हेरगीरीबददृल गुन्हा

[5] ज्नसंहाराचा गुन्हा

[6] वर्णभेद

[7] विमाण अपहरण

[8] विमानातील व्यक्तीने विमानाचा प्रवास बदलनेसाठी त्यामधे बेकायदेषिरपने हस्तक्षेप करने, त्याचा ताबा घेने किंवा त्यावर नियंत्रन मिळविने

[9] जहाजावरील चाचेगिरी

[10] विमाण अपहरणा विरूध्द अंतराष्ट्रीय कायदे

[11] Hijacking