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