International Law and Justice Working Papers - IILJ

countries, pointing out that the Great Britain and the US offered an almost unlimited asylum and
almost never extradited refugees and fugitives to other countries. 84 In contrast, most German
states did not recognize the right to asylum and extradited refugees to their countries of origin. 85
Most other countries adopted in their practice a line somewhere in between those two
opposites. 86 Due to the lack of unanimity in the practice it was no wonder that there was a
disagreement among writers of international law about whether international law foresees a right
to grant asylum or, conversely, prescribes a duty to extradite.
Mohl’s approach was nuanced – while he criticized Britain’s expansive approach to asylum, he
also observed that if a country would in general fail to accept foreigners and refugees, it would
make itself co-responsible in cases of “irresponsible suppression”. 87
According to Mohl, one
could take a cosmopolitan and an egoistic view about the right to asylum (remarkably, Mohl
argued that it was precisely Britain that had taken the egoistic view). 88 However, the right to
asylum was needed already for the reason that no one could be sure that he would himself not
need asylum one day in the cases of violence. The purpose was not to help mean criminals who
had deserved their punishment but to offer refuge to those who were unjustly prosecuted. 89
Reasoning not so much on the basis of history (as Bulmerincq) or international treaties (which
anyway contained contradictory principles), Mohl argued more or less on the ground of a
philosophy based on common sense, offering a compromise solution that is accepted in
international law doctrine until our days. A State should not grant asylum and should extradite
criminals who have violated State’s usual criminal law (citizens’ rights primarily vis-à-vis each
84 Mohl, p. 476-480.
85 Mohl, p. 486-490.
86 About Russia, see Witte, Die Rechtsverhältnisse der Ausländer in Russland, Dorpat, 1847.
87 Mohl, p. 527-528.
88 Mohl, p. 532-535.
89 Mohl, p. 528.