Original version by John Henry Dingfelder Stone January 2009; reviewed by John Henry Dingfelder Stone November 2024.

A.  Factual Background

1  Vinayak Damodar Savarkar (‘Savarkar’) was an Indian law student accused of various political offences in India. After being located by British authorities in London, Savarkar was given a hearing and ordered extradited to India to stand trial (Extradition). On 1 July 1910, Savarkar was placed on board the Morea, a British merchant vessel, for the trip to India.

2  Having been notified by British officials that the Morea and Savarkar would be stopping in Marseilles, the French Minister for the Interior informed the local authorities on 4 July 1910 of Savarkar’s expected arrival and requested that they take all measures necessary to guard against Indian revolutionaries attempting to effect Savarkar’s escape. The Morea arrived in Marseilles on 7 July 1910 as planned. Shortly afterwards, a Commissaire of the French Police came aboard the Morea and placed himself at the ship’s disposal during its stay in port.

3  In the early morning hours of 8 July 1910, Savarkar broke out through a porthole, swam ashore, and attempted to escape. Three men from the Morea—two Indian police officers and a crewman—began shouting and gesticulating before running ashore after Savarkar. A brigadier of the French maritime gendarmerie saw Savarkar escape, heard the yelling, and apprehended Savarkar after a roughly 500 metre chase. With the help of the three Morea men, the French brigadier escorted Savarkar back to the ship and turned him over to the British officers. Savarkar went peacefully and the entire incident lasted no more than a few minutes. The Morea sailed from Marseilles the next day with Savarkar on board.

4  Shortly thereafter, France demanded that the United Kingdom (‘UK’) return Savarkar to French custody and file an official formal request for extradition under the 1876 Treaty on Extradition. Since Savarkar was necessarily a political offender, pursuant to Article 5 Treaty on Extradition, his formal extradition to the UK would likely have been refused. As such, the UK refused to comply with France’s demand. However, on 25 October 1910, France and the UK agreed by compromis to submit the issue to the Permanent Court of Arbitration (PCA).

B.  Arguments on the Law and the PCA Decision

5  In arguments before the PCA, France maintained that the UK had no right to bring a political fugitive into their jurisdiction without prior consent and that the UK lost its jurisdiction over Savarkar upon entering French waters (Jurisdiction of States). They further argued that the release of Savarkar to British authorities was too irregular an extradition to be binding upon France. The UK countered that Savarkar was in their lawful custody and that a difference existed between the transit of a political fugitive through the actual territory of a sovereign state and simply stopping at a port while on a sea journey. They further maintained that even though custody of Savarkar was lost due to his escape attempt, and that technically the French brigadier should have handed Savarkar over to the harbour authorities, the brigadier in fact handed Savarkar over to British authorities and that any irregularity by the brigadier in this regard was a matter of French concern, not British.

6  On 24 February 1911, the PCA handed down its decision in the Savarkar Case. The PCA found that there was no ‘recourse to fraud or force in order to obtain possession of’ Savarkar, that there was no violation of French sovereignty by the British officials, and that ‘all those who took part in the matter certainly acted in good faith and had no thought of doing anything unlawful’ (Savarkar Case at 254; Good Faith (Bona fide)). The PCA also held that even though the arrest and handing over of Savarkar to the British authorities was irregular, there existed no rule of international law imposing an obligation on the UK to return custody of the fugitive to France because of a mistake by a French official. Thus, the UK was entitled to retain Savarkar.

C.  Relevance to Contemporary International Law

7  The decision of the PCA in the Savarkar Case was met with harsh criticism from a variety of sources. One British scholar wrote at the time of the decision that he had ‘heard no lawyer in this country approve it’ and that the decision amounted ‘to the proposition that any violation of territory is permissible if it is exercised in the supposed interests of society and obtains the countenance of a policeman’ (Current Notes on International Law: The Savarkar Case (1910–11) 328). Van Hamel argued that the PCA had asked the wrong question and should have instead focused on whether Savarkar would have been extradited if the process had been formalized (van Hamel (1911) at 398–403). Kohler also strongly favoured the French position, maintaining that the informal and irregular extradition that took place should not have been upheld where a formal process under the Treaty on Extradition would not have allowed such an extradition to occur (Kohler (1914) at 113). He further argued that any consent inferred from the brigadier’s actions could not be imputed to France since the brigadier was a civil servant acting without authority in an unofficial process (ibid. at 111–13).

8  However forcefully argued at the time and logically coherent in retrospect, the criticisms levelled at the decision have failed to undermine the importance of the Savarkar Case to contemporary international law. In spite of both Van Hamel and Kohler’s concern over the legitimacy of the irregular extradition, the Savarkar Case is commonly cited in current scholarly literature as a prominent favourable example of such extraditions (Legitimacy in International Law). As such, it is often used to draw a distinction between those informal or abnormal renditions which are legal under international law and the increasing number of state-sponsored forcible abductions or kidnappings which are not (for example see Bassiouni (1973–74) 28; Abduction, Transboundary).

9  Similarly, contemporaneous concerns over the finding of consent (as given by a lower-level official) in the decision have also been largely ignored. The Savarkar Case is frequently cited for the (now) generally accepted proposition that any collaboration or cooperation in an otherwise illegal rendition (under international law as well as any applicable domestic laws of the territorial state) by even the lowest of governmental actors from the territorial state will be interpreted as constructive consent and simultaneously deprive that state of any colourable claim that its territorial sovereignty was violated and undermine any allegation of state responsibility (for example see UN ILC Special Rapporteur R Ago ‘Eighth Report on State Responsibility’ (1979) 33–35; Gluck (1994) 623; United States ex rel. Lujan v Gengler (1975) 67). This principle has been extended by some to the concept of ‘protection of nationals abroad’, citing the Savarkar Case for the idea that any cooperation by local authorities during a rescue attempt would necessarily constitute evidence of consent to the use of military forces for non-combatant evacuation operations on their territory (Alcala and Nasu (2023) 5). Furthermore, the decision has also been produced as authority for the assertion that no rule of international law exists obligating a state ‘which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up’ to that state (Savarkar Case at 254). In this regard, the Savarkar Case has been applied by scholars to a variety of cases, ranging from the Eichmann Case to the case of a Lithuanian defector who was mistakenly handed over to Soviet officials by the United States Coast Guard in 1970 (Fawcett (1962) 194–96; Nelson (1971) at 389–90).

10  Notwithstanding its prominence in these particular niches of international law, and in spite of (rather than because of) the harsh criticism it encountered upon its promulgation, the overall importance of the Savarkar Case appears to have diminished with time. This is likely due in large part to the peculiar facts of the case, which circumscribe somewhat its application to current issues of international law.