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Sosa
v.
Alvarez-Machain
, where it was held that the Alien Tort Claims Act
was a jurisdictional statute creating no new causes of action and enacted
on the understanding that the common law would provide a cause of
action for the modest number of international law violations thought to
carry personal liability at the time, being offences against ambassadors,
violation of safe conducts and piracy.
205
Extradition
206
The practice of extradition enables one state to hand over to another
state suspected or convicted criminals who have fled to the territory of
the former. It is based upon bilateral treaty law and does not exist as
an obligation upon states in customary law.
207
It is usual to derive from
existing treaties on the subject certain general principles, for example
that of double criminality, i.e. that the crime involved should be a crime
in both states concerned,
208
and that of specialty, i.e. a person surren-
dered may be tried and punished only for the offence for which extra-
dition had been sought and granted.
209
In general, offences of a political
204
41 ILM, 2002, p. 130. See also the decision of 3 June 2003.
205
542 US 692, 714 ff. (2004) and see above, chapter 4, p. 160. Note that in
Rasul
v.
Bush
, the
Supreme Court held that it was immaterial that the petitioners invoking the Alien Tort
statute were being held in military custody in Guantanamo Bay, 542 US 466 (2004).
206
See e.g. I. A. Shearer,
Extradition in International Law
, Leiden, 1971; M. C. Bassiouni,
In-
ternational Extradition and World Public Order
, Leiden, 1974; C. Nicholls, C. Montgomery
and J. B. Knowles,
The Law of Extradition and Mutual Assistance
, 2nd edn, Oxford, 2007;
I. Stanbrook and C. Stanbrook,
The Law and Practice of Extradition
, 2nd edn, Oxford,
2000; M. Forde,
The Law of Extradition in the UK
, London, 1995; A. Jones and A. Doobay,
Jones and Doobay on Extradition and Mutual Assistance
, London, 2004; G. Gilbert,
Aspects
of Extradition Law
, Dordrecht, 1991, and Gilbert,
Transnational Fugitive Offenders in In-
ternational Law: Extradition and Other Mechanisms
, The Hague, 1998; L. Henkin, R. C.
Pugh, O. Schochter and H. Smit,
International Law: Cases and Materials
, 3rd edn, St Paul,
1993, p. 1111 and
Oppenheim’s International Law
, p. 958. See also Study of the Secretariat
on Succession of States in Respect of Bilateral Treaties,
Yearbook of the ILC
, 1970, vol. II,
pp. 102, 105.
207
See e.g. the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mauds-
ley, the
Lockerbie
case, ICJ Reports, 1992, pp. 3, 24; 94 ILR, pp. 478, 507 and the Dissenting
Opinion of Judge Bedjaoui, ICJ Reports, 1992, p. 38; 94 ILR, p. 521.
208
But see now the House of Lords decisions in
Government of Denmark
v.
Nielsen
[1984] 2
All ER 81; 74 ILR, p. 458 and
United States Government
v.
McCaffery
[1984] 2 All ER 570.
209
See e.g.
Oppenheim’s International Law
, p. 961.
j u r i s d i c t i o n
687
character have been excluded,
210
but this would not cover terrorist ac-
tivities.
211
As noted above, it is common for many treaties laying down
multiple bases for the exercise of jurisdiction to insist that states parties in
whose territory the alleged offender is present either prosecute or extradite
such person.
212
In addition, many treaties provide for the automatic in-
clusion within existing bilateral extradition treaties between states parties
to such treaties of the offence concerned.
213
Many states will not allow the
extradition of nationals to another state,
214
but this is usually in circum-
stances where the state concerned has wide powers to prosecute nationals
for offences committed abroad. Further, the relevance of human rights
law to the process should be noted in that extradition to a state that may
torture or inhumanely treat the person concerned would, for example,
violate the European Convention on Human Rights.
215
210
Ibid.
, p. 962.
211
See e.g. the European Convention on the Suppression of Terrorism, 1977, article 1 of which
provides a list of offences which are not to be regarded as political offences or inspired by
political motives, an approach which is also adopted in article 11 of the Convention for
the Suppression of Terrorist Bombing, 1997. See also the
McMullen
case, 74 AJIL, 1980,
p. 434; the
Eain
case,
ibid.
, p. 435;
Re Piperno, ibid.
, p. 683 and
US
v.
Mackin
668 F.2d
122 (1981); 79 ILR, p. 459. A revised directive on international extradition was issued
by the US Department of State in 1981: see 76 AJIL, 1982, pp. 154–9. Note also the view
of the British Home Secretary,
The Times
, 25 June 1985, p. 1, that the political offences
‘loophole’ as it applied to violent offences was not suitable to extradition arrangements
between the democratic countries ‘sharing the same high regard for the fundamental
principles of justice and operating similar independent judicial systems’. The UK law
relating to extradition was consolidated in the Extradition Act 1989. Note in addition the
Extradition Act 2003, providing
inter alia
for fast-track extradition procedures within the
European Union, extended by the UK in the Extradition Act 2003 (Designation of Part 2
Territories) Order 2003 to the US despite an assymetrical arrangement with the US under
the UK–US Extradition Treaty, 2003: see e.g. Nicholls
et al.
,
Law of Extradition
, pp. 10 ff.
and
Norris
v.
Secretary of State for the Home Department
[2006] UWHC 280 (Admin) and
Norris
v.
USA
[2008] UKHL 16. See also
Government of Belgium
v.
Postlethwaite
[1987] 2
All ER 985 and
R
v.
Chief Metropolitan Magistrate, ex parte Secretary of State for the Home
Department
[1988] 1 WLR 1204.
212
See above, p. 673.
213
See e.g. article 8 of the Hague Convention for the Suppression of the Unlawful Seizure
of Aircraft, 1970, article 8 of the Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, 1971, article 8 of the Internationally Protected
Persons Convention, 1973 and article 4 of the European Convention for the Suppression
of Terrorism, 1977.
214
See e.g. article 3(1) of the French Extradition Law of 1927, and article 16 of the Basic Law
of the Federal Republic of Germany.
215
See e.g. the
Soering
case, European Court of Human Rights, 1989, Series A, No. 161; 98
ILR, p. 270 and
Saadi
v.
Italy
, European Court of Human Rights, judgment of 28 February
2008.
688
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