Between Asylum and Extradition: The Case for Regional Extradition Framework in South Asia

Abstract

The states of South Asia have found it unusually difficult to secure the surrender of fugitives, whether from one another or from the Western states in which many of their wanted persons reside. This article argues that the difficulty is rooted in the close relationship between extradition and asylum, and in particular in the political offence exception, which allows a requested state to refuse surrender where the offence or the request is regarded as political. Using a doctrinal method, the article first sets out the international principles governing extradition, namely the treaty basis of surrender, double criminality, the political offence exception, the rule of specialty, the non-extradition of nationals and the duty to extradite or prosecute, and explains their relationship with territorial and diplomatic asylum. It then examines the position in South Asia, where political instability, mutual distrust and the absence of a regional law enforcement framework have made the line between asylum and extradition particularly thin. Recent episodes, including the request of Bangladesh for the return of its former Prime Minister from India, are used to illustrate the problem. The article compares the South Asian position with the European framework of the European Arrest Warrant and with the instruments adopted by the South Asian Association for Regional Cooperation, which remain largely unimplemented. It concludes that South Asian states can improve their prospects only by reducing the appearance of political motivation in their requests, building regional institutions for police and judicial cooperation and adopting a shared, human rights-compliant model of extradition.