Journal of Liberty and International Affairs | Vol. 2, No.

1, 2016 | UDC 327 | eISSN 1857-9760

Published online by the Institute for Research and European Studies – Bitola at www.e-jlia.com
www.e

© 2016 Vesna Stefanovska

This is an open access article distributed under the CC-BY
CC 3.0 License.
Date of acceptance: April 25, 2016
Date of publication: June 15, 2016
Review article
UDC 341.232:343.85(100)

EXTRADITION AS A TOOL FOR INTER-STATE

INTER STATE
COOPERATION: RESOLVING ISSUES ABOUT THE
OBLIGATION TO EXTRADITE
Vesna Stefanovska, PhD Student
South East European University,
University Republic of Macedonia
vs11087[at]seeu.edu.mk

Abstract

Extradition as an act of international cooperation for the repression of criminal activities of the criminal
offenders is one of the various models whereby one sovereign state delivers up the alleged accused criminals
found within its jurisdiction, on demand, to another
another sovereign state, so that they might be dealt with
according to the penal laws. Extradition has evolved among states because they are vitally interested in the
repression of crimes and punishment of criminals who violate their national laws and thus disturb
dist the general
peace of the society. This article aims to describe the problems with which extradition is faced, especially
with the obligation to extradite and with the obligation to take care of her own citizens in situations when the
Constitution does not allow extradition of own nationals and in the absence of an extradition treaty.

Key words: extradition; nationals; extradition treaty; criminal offenders

INTRODUCTION

With the increase of globalization we are witnesses that the criminality, even
common crime, has lost its primarily territorial nature and we are faced with the problem of
international or transnational crime. With criminals acting and moving across borders, a
need and a common practice for exercise of extraterritorial criminal jurisdiction
juris have
arisen. Due to the increased mobility of individuals including criminals, extradition is often
indispensable to bringing the accused to justice in a foreign jurisdiction.
Extradition presents an act of international legal cooperation for suppressing
suppr
criminal activities and consists of handing over individual who is accused or convicted of a
criminal offence by one state to another which intends to prosecute or punish him in
accordance with its laws (Aust 2007). The law of extradition, which is a branch of
international criminal law, is based on the assumption that the requesting state is acting in
good faith and that the fugitive will receive a fair trial in the courts of the requesting state.
In the absence of any supranational authority over the the states, however, they, like
individuals, have to work among themselves through mutual support and assistance for the
protection of the person and property of the subjects.

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It is evident that the concept of extradition it is not a new idea, it is one of the
oldest institutions whose origin can be traced to the bygone civilizations, however it is
arduous to discover when it did come up as such in the course of history. The historical
evolution of the practice of extradition explicitly demonstrates that in earlier centuries, it
was not ordinarily a tool of international cooperation for the preservation of world societal
interests but to preserve the political and religious interests of states (Blakesley 1981). It
gradually developed, however passing through various stages of feudalism, absolute
monarchism, and the growth of parliamentary institutions through which the political
organization of the state itself has passed. Finally it evolved in an institution of genuine
public criminal law for the suppression of common criminality of subjects.
Hence, it must be admitted that extradition proceedings face with crucial problems
concerned, first of all with extradition of citizens and then with the duty to extradite under
international law which may not be exercised in all circumstances. Because of that reason,
in this article will be explained some of the major issues concerning the procedure of
extradition and the obligations by the states taken from the ratified international
conventions and signed bilateral extradition treaties.

GENERAL FRAMEWORK OF EXTRADITION

The principal rules and practices of international extradition constitute a

significant body of international law. It is noteworthy that this body of international law
was derived almost wholly from treaty sources and grew to recognize stature before treaties
had overtaken custom as the most important source of international law (Shearer 1971,18).
As a result, in certain important matters there is a considerable uniformity in bilateral
treaties and municipal extradition statutes. In many other respects, however, extradition
treaties and legislation present a complex and varying picture throughout the world, and
there is a great need for further development and harmonization.
Extradition treaties and legislation not only supply the broad principles and the
detailed rules of extradition but also dictate the very existence of the obligation to surrender
fugitive criminals. It is clear that states do not extradite criminals in the absence of a treaty
or a municipal law which empowers them to do so (Bassiouni 2008). Hence the existence
of a treaty commitment to extradition in the United States, United Kingdom and the
countries of the Commonwealth whose extradition laws are modeled on those of the United
Kingdom. In some other countries, extradition may take place in the absence of a treaty but
as an act of grace rather than of obligation, and in accordance with the provisions of
municipal statutes operating in the absence of a treaty. In many countries extradition by
statute is dependent upon an ad hoc guarantee of reciprocity which is tantamount to a
treaty. In addition to bilateral extradition arrangements, whether by way of treaty or of
reciprocal application of laws, there is a growing number of multilateral extradition
arrangements among groups of states having some geographical or political links (Shearer
1971, 18).
The framework of international co-operation in the suppression of crime thus
consists very largely of binding international commitments, whether of a bilateral or a
multilateral nature. Extradition is one element in those systems, designed to stop fugitives
using borders as a means of escaping justice. The object of extradition is to ensure that

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those accused or convicted of serious crime do not escape from justice by crossing
international boundaries (Bradley 2007, 466).
Extradition has a role to play in enforcing international criminal law and in
assisting states to prosecute violations of purely domestic legislation. Away from criminal
law, extradition has another function and that function consists of protecting the fugitive
rights. Part of the problem with extradition is in trying to achieve the correct balance
between allowing the free flow of fugitive criminals to states where they may be prosecuted
for their crimes, and in safeguarding the fugitive from oppressive punishment or from
persecution on account of his personal characteristics, beliefs and opinions. (Gilbert 1998).
Even where the system is being properly used to affect the return of a fugitive criminal, it is
still guaranteeing the fugitive’s rights, because extradition is the specific means designed
by states for that purpose, alternative methods, such as exclusion, deportation or abduction,
lack the built-in safeguards of extradition arrangements, thereby allowing the fugitive’s
rights to be ignored. The viability of these instruments is of the utmost importance in the
present state of extradition law and practice. Just as divergent rules and confusing
procedures resulting from such a large number of instruments have prompted a number of
international bodies at various times to canvass the possibility of concluding a single
convention or a model code of extradition, so too the need for a common obligation to
extradite would be well served by a single instrument having world wide application
(Shearer 1971,23). But from all this we can see that all such attempts, have so far met with
no success. In the meantime the very existence of the present bases of obligation is being
threatened.

PROBLEMS CONNECTED WITH THE ISSUE OF

EXTRADITION OF NATIONALS

Broadly speaking when a state enters into an extradition treaty relationship with
another state based on reciprocity, it seems to imply an understanding that the parties view
as more or less equivalent their respective conceptions of the fundamentals of criminal
justice. On this basis, is it in keeping this perceived mutual confidence and respect, for the
requested state to refuse to extradite its own citizens and nationals, on one hand, but also to
be amenable to surrender non-citizen permanent residents or other aliens on the other.
If the criminal law safeguards at trial and other guarantees for the fair trial of the
fugitive, once extradited are more or less equivalent in both states, then should not
extradition off all offenders be viewed in the same way or permitted (Shearer 1971, 107).
Many civil law states prefer to exercise criminal jurisdiction over their citizens
whether an offence was committed on their own territory or abroad. The rationale for this
exception is linked to sovereignty, and in some states it is considered to be a fundamental
right. Indeed, in some states it is enshrined in national constitutions. In order to determine
whether a person is citizen, reference should be made to the relevant national law on
nationality. For example Nordic states consider all registered residents as citizens, raising
concern that suspected terrorist seeking refuge in one of these states could avoid extradition
on the grounds of residency (Bantecas and Nash 2007,308).
There is a big dilemma should a state allow extradition of their own citizens, or
should it be avoided? For example Hungarian Criminal Code says “A citizen of Hungary
cannot be extradited to another State except if otherwise provided for in an international

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treaty or convention”. Ireland has a rule that “extradition shall not be granted where a
person claimed is a citizen of Ireland, unless the relevant extradition provisions otherwise
provided”. The Constitution of Italy says that “Extradition of citizens is permitted only in
cases expressly provided for in international conventions” (Article 26 1948). Swiss law
similarly prohibits the extradition of Swiss citizens and provides for their prosecution in
Switzerland for crimes committed abroad (Article 25 1999). The Netherlands has a rule of
non-extradition of Netherlands citizens. Italy declares that “the rule against extradition of
citizens is required on the ground that Italy owes protection to its citizens, and cannot
abandon them to their lot, if charged with crime, to the mercy of foreign law” (Shearer
1971, 108). The EU Member States have demonstrated a reluctance to let procedural
differences restrict international co-operation. The optional clause in many extradition
treaties which permits states to refuse a request for extradition of their own citizens is seen
as a disincentive to cross-border law enforcement.
Even nowadays there are many states in the world that exercise the nationality
exceptional rule i.e. the principle of non-extradition of nationals, although the “modern
practice” which has been broadly accepted is to allow extradition of own nationals on the
basis of international conventions and bilateral extradition treaties. Extradition of nationals
under determined circumstances will allow not only concluding more bilateral extradition
treaties among states, but also will affect the battle against terrorism, organized and
transnational crime all around the world and will leave no space for the criminal offender to
hide in order to avoid justice.
Non-extradition of nationals is a principle that is well known in the extradition
practice all over the world and even thought dates from medieval times and considerable
changes in the international legal system, in international criminal law and in non-
extradition of nationals as one of extradition principles, also prescribing opportunity for the
states to clarify the complicated status of certain number of their inhabitants, by attaching a
declaration defining the meaning of the term “nationals” for the purposes of the application
of the European Convention on Extradition (Elezi, Gjorgeva and Ristoska 2010, 4).
Having in mind the fact that extradition of own citizens in many occasions is
causing a serious problems on international level, it must be mentioned that we cannot
detect any international instrument which allows extradition unconditionally without any
limitations to its application. Regarding the issue about extradition of nationals, the
European Convention on Extradition in its Article 6 prescribes:
a) Contracting Party shall have the right to refuse extradition of its nationals.
b) Each Contracting Party may, by a declaration made at the time of signature or
of deposit of its instrument of ratification or accession, define as far as it is
concerned the term "nationals" within the meaning of this Convention.
c) Nationality shall be determined as at the time of the decision concerning
extradition. If, however, the person claimed is first recognized as a national of the
requested Party during the period between the time of the decision and the time
contemplated for the surrender, the requested Party may avail itself of the
provision contained in subparagraph a of this article.

According to the above mentioned, If the requested Party does not extradite its
national, it shall at the request of the requesting Party submit the case to its competent
authorities in order that proceedings may be taken if they are considered appropriate.

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For this purpose, the files, information and exhibits relating to the offence shall be
transmitted without charge by the means provided for in Article 12, paragraph 1. The
requesting Party shall be informed of the result of its request (Article 6 1957).
The Convention relating to Extradition between Member States of the European
Union contains a provision where nationality as a refusal ground only applies for those
Member States which have made a declaration to that effect to be renewed every five years
(Article 7 1996). Subsequently Austria, Germany, Greece and Luxembourg have declared
that they will not extradite nationals. Denmark has declared that extradition of national may
be refused. Belgium, Finland, the Netherlands, Portugal, Spain and Sweden will grant the
extradition of nationals only under certain conditions (Kapferer 2003,39). As indicated
earlier, there is not general obligation to prosecute in such cases, although the possibility of
refusing to extradite citizens may be coupled with a duty to prosecute them in the courts of
the requested state. For example, the Western Balkan countries before several years were
applying the principle of non-extradition of nationals. The Constitution of the Republic of
Macedonia previously did not allow extradition of Macedonian citizens on any basis
(Article 4 1991). Because of that reason, the Assembly of the Republic of Macedonia on 12
April 2011 adopted the Amendment XXXII from the Constitution of the Republic of
Macedonia, which provides concluding agreements for transfer of own nationals to other
countries, for conducting criminal proceedings for committing crimes in the area of
organized crime and corruption. With the adopted amendment, the full text of the provision
states: “A citizen of the Republic of Macedonia may neither be deprived of citizenship, nor
expelled or extradited to another state, except on the basis of ratified international
agreements or with a court decision” (Article 4 para.2 2011).
Amendments to the Constitution in this area are conducted in order to create
preconditions for dealing with organized crime and corruption and to comply with
international agreements. Main instrument for successful dealing with trans-national
organized crime is an effective legal and judicial cooperation. The activities to be
undertaken in the forthcoming period will be focused on signing bilateral agreements on
extradition of own nationals and nationals of other states in the Republic of Macedonia for
acts of organized crime and corruption (see: www.justice.gov.mk). In relation to the above
mentioned, there is a considerable willingness by the states to grant extradition of nationals
under specific conditions, namely under ratified bilateral extradition treaties.

OBLIGATION TO EXTRADITE UNDER INTERNATIONAL LAW

Whether international law imposed a duty on states to extradite common criminals

was once a highly controversial issue. The fathers of international law did not dispute the
efficacy of the practice of extradition but differed as to whether a legal or merely a moral
obligation to surrender criminals existed (Boister 2012).
Admittedly, there is no justification in causing the apprehension or detention of
any person upon the application of a foreign power or, upon such application, for causing
any person to be carried from the country to be delivered over to any foreign power in the
absence of an express stipulation in a specific treaty between the two states to his being
proceeded against in a foreign country for any crime alleged to have been there committed.
It need not be taken to mean that a state is not at liberty to request such surrender, because
the extradition of criminals or alleged criminals is founded upon the comity of nations.

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Furthermore, it must be acknowledged that extradition is not an obligation created by

treaty. It is true that it has been regulated and molded in certain countries through the
medium of treaties but, properly speaking, it is founded upon the comity of nations (Bedi
2002, 15). The general practice of states confirms the observation that extradition is not
looked upon as an absolute international duty, and if a state wishes to ensure that it secures
the return of its own criminals it must enter into treaties with other states.
There is no general obligation to extradite in international law but the duty to
extradite may arise from bilateral and multilateral extradition treaties which also enshrine
exception to this duty. The constitutions of many states, including some European states,
prohibit the extradition of their own nationals, but their laws enable them to prosecute their
nationals for serious crimes committed abroad. Other states, including United Kingdom,
can extradite their own nationals and therefore their laws enable prosecution of their
nationals only for a few categories of serious crimes committed abroad (Przetcznik 1983,
138).
States generally lack the capacity or will to prosecute or punish individuals for
crimes that have occurred beyond their borders. Consequently, when a suspected or
convicted criminal flees from one state to another, some form of inter-state cooperation is
required to ensure that the fugitive is returned. The form generally favored on the
international stage is extradition, a “procedure of request and consent” which generally
reflects the willingness of states to engage in co-operative efforts aimed at the suppression
of crime (Brownlie 1998). International law, however, does not oblige a state to afford such
assistance and it imposes no legally binding duty on a state to extradite at the mere request
of another state. States may, nonetheless, assume a binding obligation to extradite under
international law by entering into a treaty, or other consent-based arrangements (Harrington
2012).
The European Convention on Extradition prescribes the obligation to extradite:
“the Contracting Parties undertake to surrender to each other, subject to the provisions and
conditions laid down in this Convention, all persons against whom the competent
authorities of the requesting Party are proceeding for an offence or who are wanted by the
said authorities for the carrying out of sentence or detention order” (Article 1 1957).
Obligation to extradite cannot be easily exercised especially if it is about
extradition to states not party to the ECHR. Regarding this issue the Committee of
Ministers recommends to Member States:
1. not to grant extradition where a request for extradition emanates from a
state not party to the European Convention on Human Rights and where
there are substantial grounds for believing that the request has been made
for the purpose of prosecuting or punishing the person concerned on
account of his race, religion, nationality or political opinion, or that his
position may be prejudiced for any of these reasons;

2. to comply with any interim measure which the European Convention on

Human Rights might indicate under Rule 36 of its Rules of Procedure, as,
for instance, a request to stay extradition proceedings pending a decision on
the matter (Recommendation No. R (80) 9 concerning extradition to states
not party to the European Convention on Human Rights).

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The Vienna Convention on the Law of Treaties is silent on this subject, but,
however, articles 53 and 64 relating to the issue of jus cogens could perhaps offer a possible
and acceptable solution. The text of Article 53 is about treaties conflicting with the
peremptory norm of general international law (jus cogens) as it follows:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general in international law having the same
character”.

Similar meaning has the provision from Article 64 stating that: “If a new
peremptory norm of general international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates” (Article 64 1969).
These two provisions from the Vienna Convention on the Law of Treaties can be
used only in limited number of cases, especially in the cases where possible violations of
human rights may be invoked, but not to all human rights – just those which are considered
as inviolable human rights and can be put in the group of so called jus cogens.
The international obligation not to extradite a person in some circumstances may
conflict with another international obligation and that is to extradite a person pursuant to the
applicable extradition treaty. In order to establish the existence of a rule of customary
international law there has to be widespread state practice and a belief that such practice is
required as a matter of law (opinio juris). Although it can be argued that for the ‘core
crimes’ of genocide, war crimes and crimes against humanity, there is a obligation to
extradite only for grave breaches of the Geneva Conventions and Additional Protocol I
(Zgonec-Rozej and Foakes, 2013). For the other core crimes it is questionable whether
customary international law imposes such an obligation.

WHAT HAPPENS WITH THE EXTRADITION PROCEEDINGS IN

THE ABSENCE OF A TREATY?

The traditional international law gives each state liberty to exercise absolute and
exclusive legislative, administrative, and jurisdictional power irrespective of the will of the
other states. This territorial supremacy in the absence of any supranational authority makes
a state the most powerful organism in international law which invests it with a supreme and
overriding authority over all things and persons falling within its territorial limitations. It
generally is held that “the principles of international law recognize no right to extradition
apart from treaty”. The legal right to demand his extradition and the correlative duty to
surrender him to the demanding country exists only when created by treaty. The law of
nations does not prohibit a state from surrendering a person accused of crime to another
state under the very notion of sovereignty as the reception and expulsion or exclusion of
aliens is a fundamental act of sovereignty (Bedi 2002, 19). Only a few countries in the
world possess no extradition treaties whatsoever. However, several countries possess only a
handful of such treaties, choosing not to practice extradition by treaty with certain countries
for any one of several reasons to be discussed below. Evidence for extradition in the

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absence of a treaty is found as early as 1880, in a resolution by the Institute of International

Law. Furthermore, certain legal scholars recognize an obligation to extradite fugitive
criminals regardless of the presence of a treaty. Today, most civil law states add support to
this position and recognize final surrender absent a treaty as a valid form of extradition.
Common law countries such as the United States and Great Britain show greater reluctance
in granting extradition in the absence of a treaty. According to their view, no absolute duty
to extradite exists absent a specific treaty obligation (Woods 1993, 46). However there are
some exceptions. For example, the Constitution of the Netherlands requires the existence of
a treaty before extradition may be conceded. The laws of the Congo, Ethiopia, Israel and
Turkey also depend on the existence of treaty arrangements. Although there is no specific
prohibition in Norwegian law, in practice a treaty is regarded as indispensable for the
surrender of fugitive criminals from Norway to countries outside the Nordic Treaty
(Shearer 1971, 30). Extradition in the absence of treaties in the nineteenth century has long
been sanctioned by the practice of most civil law countries.
In the absence of an agreement creating the obligation to surrender the fugitive
criminals, no such obligation exists under international law. Under international law, the
right of a requesting state to demand the surrender of a claimed person accused of a crime,
and the correlative duty to surrender such a person, exists only when created by extradition
treaty.
Accordingly in the absence of such a treaty, there is no obligation to surrender
criminals to another country. Where, however, in the absence of an extradition treaty
imposing such right and duty, surrender of a claimed person is made, it is on the principle
of comity, founded on the principle that it is not in the interest of the international
community that serious crimes of international significance should go unpunished. Under
such circumstances the Government of the requested state may exercise its discretion and
investigate the charge on which the surrender is demanded (Shearer 1971, 32).
For example United States belongs to the group of states which do not surrender
fugitive criminals in the absence of an extradition treaty. Its practice is to decline to request
extradition from the requested state with which there is no treaty providing for surrender,
although there are isolated cases in which the Government of United States has requested of
foreign Governments the surrender of fugitive criminals as an act of comity: in these cases,
however, the request has always been accompanied by the statement that under the law of
this country reciprocity cannot be granted (Przetcznik 1983, 137).
The practice of the civil law countries has demonstrated a greater willingness to
grant extradition in the absence of treaties, but in few instances has the view been espoused
that extradition in such circumstances was based on anything more than comity and an act
of grace. For example in France there was no duty to extradite a person from one state to
another, or this duty was not recognized, only that such cases could be regulated in
individual circumstances by the respective governments. In 1872 year French Minister of
Justice stated that “on the basis of reciprocity” extradition might take place in the absence
of a treaty, in which case the rules applicable were within the province of international law.
Only in parts of South America, it would seem, has a legal duty to extradite in the absence
of treaty been accepted at times (de Than and Shorts 2003).
A request for the arrest and surrender of a fugitive criminal could not be made in
the absence of a extradition treaty. But taking into consideration the gravity and seriousness
of the crime and its detrimental effect upon a society, a state, in conformity with the public

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law of nations or in accordance with the general principles of international law, in the
absence of an extradition treaty invoking the principles of comity or morality between the
states concerned, can extend an extradition request for the fugitive offender who has
crossed its borders for escaping from trial or punishment awaiting him in the forum delicti
commissi. This is because all states are interested in the preservation of peace, order and
tranquility within their domains and in promotion of justice in cooperation with other states
(Bedi 2002). Accordingly, the only obligation existing in the absence of a treaty is
“imperfect”, creating a moral, but not legal duty to extradite. The only method to create an
absolute duty to extradite is through the signing of a treaty. The dominance of this latter
view has provided the necessary impetus for the increase in the formation of modern-day
mutual extradition treaties. Extradition in the absence of a treaty always hinges on the
principles of “courtesy, good will, and mutual convenience.” (Woods 1993, 49). Since the
prevailing view fails to recognize an absolute duty or obligation in the absence of formal
treaty relations, comity and common courtesy must serve as the sole basis for surrender
where no treaty exists.
As a closure to this issue about possible extradition in the absence of a treaty, there
are several reasons for choosing to extradite in absence of a treaty. First, some states simply
prefer as a matter of principle or convenience to enter into treaties only with those countries
that require such agreements before extradition can take place. Second, it seems
unnecessary to enter into treaties with countries where extradition is a rarity. Third, states
do not want to become a resting place for criminals and will often enact legislation
permitting extradition in the absence of a treaty as a combatant to unsuspected entry (Wise
1969, 705).

CONCLUSION

Criminal offenders often misuse of the lack of extradition treaties with other states
to decide which state to flee after committing crimes. The very nature of crime has been
evolving, and the failure to bring fugitives to justice represents an acute problem to the
party which has been wronged. However, there is no general rule of international law that
requires a state to surrender fugitive offenders. The increase in the mobility of suspects has
resulted in the increased willingness of states to use this form of mutual legal assistance to
enforce their domestic criminal law. As it was elaborated before, the principle of non-
extradition of citizens is a right of a state to refuse extradition of own nationals, but also
this issue leaves a space for a very dangerous opportunity where fugitives are using this
principle and also the fact that some states are not willing to grant extradition in absence of
a treaty.

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