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INTRODUCTION
1
J. Rikhof, „Fewer Places to hide? The impact of domestic war crimes prosecutions on international impunity‟ (2009) Crime LF
3
2
P. Sales and J. Clement, „International Law in Domestic Courts: the developing framework‟ (2008) LQR 388. As such,
matters of societal objects such as health, education and economics now fall within the ambit of international law. Individuals
are obviously not excluded from this list.
3
Forward to Shaheed Fatima, Using International Law in Domestic Courts (2005)
4
J. Howell and S. Fatima, „Using International Law in Domestic Courts‟ (2005) available on
<http://www.blackstonechambers.com/applications/dynamic/category.rm?id=1557&contentType=papers> accessed
23/11/2009.
Extradition law is an amalgamation of international and domestic law 5
with an obligation on states to extradite due to treaty obligations that
work in tandem with a state‟s domestic extradition law. 6 It involves a
complex admixture of levels and forms of regulation 7, i.e., incorporating
various levels of international and domestic laws. Here, international law
refers to public international law.
The recent extradition cases of Gary McKinnon and the NatWest Three
which have brought forth so much controversy on the international scene
also serves as a point guard to the literature underlying Extradition,
particularly the United Kingdom (UK)-United States (US) Extradition,
which is the main focus of this essay.
International law denotes those rules and norms that regulate the conduct
of states and other entities which at any time are recognised as being
endowed with international personality, e.g. international organisations
and individuals, in their relations with each other. 8 On the other hand,
domestic law refers to those rules and norms that regulate the conducts
of members of a state within the particular state.
Monism14, on the other hand, adopts a unitary concept of law and sees
both international law and domestic law as part of an integrated legal
system. Therefore, reception of international law does not require any
specific decision taken in accordance with domestic law. In the event of a
dispute between both laws, international law prevails.
In a dualist state such as the UK, international law and domestic law are
reckoned as separate legal systems, operating on different planes. 15 As
such, international law does not form part of its domestic law. 16 Although
international law may, at times, apply in domestic law, they do so based
on their adoption by the domestic law of the state.17
23/11/2009. However, Bogdandy has stated that monism and dualism should cease to exist as doctrinal and theoretical notions
for discussing the relationship between international law and domestic law, arguing that their arguments which are rather
hermetic, are not linked to contemporary theoretical debate, and as doctrines, they have proved unsatisfactory since they do
not help in solving legal issues. See A. Bogdandy, “Pluralism, direct effect and the ultimate say: on the relationship between
international and domestic constitutional law” (2008) 6 I.J.C.L. 399; and A. Bogdandy, “The past and promise of doctrinal
constructivism: a strategy for responding to the challenges facing constitutional scholarship in Europe” (2009) 7 I.J.C.L. 378.
12
Or Positivism.
13
R.M.M. Wallace and O. Martin-Ortega opcit p.38. However, if any dispute arises between the two, municipal court will apply
municipal law and vice versa.
14
Or Naturalism.
15
Jennings and Watts, Oppenheim’s International Law (9th edn, Peace, 1992) pp.54-55.
16
Apart from customary international law which is not a major part of this essay.
17
P. Sales and J. Clement opcit p.1. This classification reflects the outcome of the comprehensive review and analysis of
domestic law in this respect by the appellate committee in the International Tin Council Case, Re. See Maclaine Watson v Dept
of Trade and Industry (1988) 3 W.L.R. 1033
18
Salomon v Commissioners of Customs and excise (1967) 2 Q.B. 116, CA per Lord Diplock; Post Office v Estuary Radio Ltd
(1968) 2 Q.B. 740, CA. This is known as the Presumption of Compatibility.
“[A]n act of congress ought never to be construed to
violate the law of nations, if any other possible
construction remains....”19
19
Murray v Schooner Charming Betsy (1804) 6 US 64 at 118. See also Lauritzen v Larsen 345 US 571 at 578 (1953) as cited
in R. Wallace and O. Martin-Ortega opcit p.39
20
Fitzmaurice‟s approach denies that there is any common field of application between international and municipal law. It
provides that each is supreme in its own sphere. Therefore, only a conflict of differing obligations can occur. This approach
seems to largely mirror state practice. See R.M.M. Wallace and O. Martin-Ortega opcit p.38-39
21
Ibid opcit p.63
22
That is if it is enforced. See R. Brewster, „Unpacking the States Reputation‟ (2009) 50 Harvard International Law Journal
231.
23
And formation of customary international law.
24
Vienna Convention on the Law of Treaties, (signed 23 May 1969, entered into force 23 January 1980) 1155 UNTS 331,
UKTS 58 (1980), Cmnd. 7964, (1969) 8 ILM 679, Article 27. See also the Alabama Claims Arbitration (1872) Int. Arb. 495.
25
Exchange of Greek and Turkish populations case (1932) P.C.I.J. Rep., ser. A/B No. 46. See also Article 13, 1949 Draft
Declaration on Rights and Duties of States prepared by the International Law Commission. See also Applicability of the
obligation to Arbitrate under section 21 of the United Nations Headquarters Agreement of 26 th June 1947, I.C.J. Rep., 1988, 12.
This means that a State should not seek to evade fulfilling an international obligation because of either the presence or
absence of a municipal legislative provision. This, as suggested by Wallace, must be the standpoint at the international level if
international law is to succeed and maintain credibility. See R. Wallace and O. Ortega opcit p.40.
26
Ibid.
with international obligations. 27 In the Alabama Claims Arbitration,28
the tribunal concluded that neither municipal law nor the absence of them
could be pleaded as a defence for non-compliance with international
obligations.
There are various forms by which a treaty can form part of the law of the
domestic law of a State31. A State can expressly adopt international law
into its domestic law32. Thus, there is a transformation of international
law into domestic law by, for example, Act of Parliament 33. There is no
written constitution defining the internal status within UK of international
law.34Treaties only form part of English law if an enabling Act of
Parliament has been passed35.
EXTRADITION
Extradition Law
The Treaty
The treaty has only been in force between the UK and US since April 2007
even though the UK has been acting in accordance with its terms since
40
R.M.M. Wallace and O. Martin-Ortega opcit p.65.
41
R. Wallace International Law. (5th edn. Sweet and Maxwell, London, 2005)
42
R. Wallace and O. Martin-Ortega opcit p.135
43
R. O‟Keefe, “Double-plus good or double trouble” case comment (2009) 68 C.L.J. 9. See also A. Doobay, “The non-taxing
weekly for top practitioners” (2006) 8 Tax Journal. Extradition is also the handing over of an alleged offender (or convicted
criminal who has escaped before completing his prison term) by one state to another.
44
C. Bamford, “Extradition and the Commercial World (2007) 28 Comp. Law. 97.
45
See for example treaty of April 2004, between US and UK (Treaty No. 108-23). The treaty replaces the 1972 Extradition
Treaty and the 1985 supplementary treaty. See also convention on extradition between the member states of the European
Union 1996 and incorporated into UK law by the European Union (EU) reg. 2002, pursuant to the anti-terrorism, crime and
security act 2001. There is no duty to extradite in the absence of a treaty. The ILC‟s draft code of crimes, above n 23 seeks to
impose an obligation on a state to extradite an individual alleged to have committed crimes to humanity (art. 6).
46
50 of such treaties are cited on the Foreign and Commonwealth website available on
<http://www.fco.gov.uk/resources/en/pdf/3706546/Bilatextradition>
47
P. Arnell and A. Reid, “Hackers beware: the cautionary story of Gary Mckinnon” (2009) 18 Information and Communications
Technology Law 3.
the 2003 Extradition Act entered into force on 1 January 2004 48. As such,
requests for extradition to the UK from the US were considered under the
1972 Extradition Treaty49 while those to the US from the UK were
considered under the 2003 Treaty.
One of the reasons given for the 2003 Treaty was the need for the fast-
track extradition of terrorists. Although terrorism may not have been the
genesis for the 2003 Treaty, it may be right to assume that the
negotiations were accelerated by the attacks54. Also, why the UK sought
48
The US senate only ratified the Treaty on 29 September 2006 even though the only the UK applied it in its extradition cases
to the US.
49
This Treaty the US-UK Extradition Treaty of 1972 which preceded the 2003 Treaty.
50
Article 1 of the Treaty
51
Article 2 of the Treaty. Its subsection 4 interestingly states: “If the offence has been committed outside the territory of the
Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State
provide for the punishment of such conduct committed outside its territory in similar circumstance. If the laws in the Requested
State do not provide for the punishment of such conduct committed outside its territory in similar circumstances, the executive
authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are
met”.
52
This runs contrary to the provision of the 1972 Treaty in this regard under which the UK and US can each insist that the
other‟s authorities show a prima facie case (known in the US as the „probable cause‟) on evidence before granting extradition to
the other.
53
The then Prime Minister Tony Blair commented that the Treaty was “justified in a Post September 11 context”. See B.
Hayes, “The new UK-US Extradition Treaty” Statewatch analysis no 17 available on
<http://www.statewatch.org/news/2003/jul/25ukus.htm> accessed 1/12/2009.
54
A. Doobay, “United Kingdom: The US/UK 2003 Extradition Treaty- An American Perspective?” (2006) Peters & Peters,
available on <http://www.mondaq.com/article.asp?articleid=37284&login=true> accessed on 1/12/2009.
fit to lower the evidential threshold is not explained and there are
suggestions that the Treaty was negotiated in secret55.
EA 2003
The former deals with extradition within the 27 Category 1 territories that
have implemented the Council Framework Decision of 13 June, 2002 on
the European Arrest Warrant (EAW) 61. However, this will not be dealt on
much as it is not relevant to this essay.
The later generally covers „Category 2 States‟ with which the UK has
regular extradition dealings, including the US. 62 It retains a limited role
for ministers who have the final say and preserves the role of the judge
but on information only, not probable cause, in the case of category 2
states.
GARY MCKINNON67
65
On the basis of the rule against double jeopardy, the passage of time, political factors and Human rights grounds.
66
See A. Doobay, „Extradition‟ opcit p.1.
67
McKinnon v United States (2007) EWHC 762 (Admin); (2007) 157 N.L.J. 554.
68
Asperger‟s Syndrome is not a mental illness per se, but a development disorder on thee Autism Spectrum. This was
diagnosed by Cambridge Professor Simon Baron-Cohen, a well known expert on adult Asperger Syndrome who believes that
McKinnon should not be treated as an ordinary criminal but as someone with a disability.
69
Otherwise known as NASA
70
McKinnon v United States (2007) EWHC 762 (Admin); (2007) 157 N.L.J. 554
71
McKinnon v Government of the USA, [2008] U.K.H.L. 59, at para. 15
72
R. (on the application of Bermingham) v Director of the Serious Fraud Office and Bermingham and others v the Government
of the United States of America and the Secretary of State for the Home Department [2006] E.W.H.C. 200 (Admin); [2007] Q.B.
727; [2007] 2 W.L.R. 635 (herein after “Bermingham”)
73
Enron was a US Company who was a client of the UK Bank
74
A UK bank
The appellants were alleged to have caused the bank to sell its interests
in a limited partnership for US$1m to an entity which they controlled
knowing that it was worth much more. It was argued that each received
in excess of US$ 2.4m on sale of the partnership while the Enron
conspirators allegedly made US$10m75. They pleaded guilty to conspiracy
in Texas and gave evidence against the NatWest Three which was used to
indict the men in Texas on charges of wire fraud and aiding and abetting
wire fraud76.
75
K. Thomas opcit p.333
76
Bermingham.
77
G. Davies, „Extradition post the NatWest Three‟ (2006) 156 NLJ 1542. Article 8, paragraph 3 (c) of the Treaty. This runs
contrary to the provision of the 1972 Treaty in this regard under which the UK and US can each insist that the other‟s
authorities show a prima facie case (known in the US as the „probable cause‟) on evidence before granting extradition to the
other.
78
S. Alegre , Justice briefing on extradition to the USA The UK-US Treaty of March 2003 and the EU-US Agreement of June
2003, July 2003, available on <http://www.justice.org.uk/images/pdfs/extraditionusa2.pdf> accessed on 2/12/2009. Probable
cause is a requirement in the US Bill of rights which cannot be amended. See C. Warbrick, “Recent Developments in UK
Extradition Law (2007) 56 I.C.L.Q. 199 at 204. This originated in the Fourth Amendment to the United States Constitution. See
K. Thomas as cited in P. Arnell and A. Reid, “Hackers beware: the cautionary story of Gary McKinnon” (2009) 18 Information
and Communications Technology Law 1 at p.8
Total reciprocity in extradition relations is however not possible because
of the difference between legal systems, rules of evidence and case law79.
It was against this backdrop that the NatWest Three fought their
extradition battle and the case highlights the imbalance in the countries‟
extradition arrangements81. “It is this asymmetry which has led to the
accusation that the NatWest Three... have been harshly treated82.
DOUBLE CRIMINALITY
The Treaty83 sets out the new extradition procedures between the two
countries. As with the old treaty84, the offences in question must satisfy
„dual criminality‟85 and be punishable in both states by a minimum
custodial sentence of one year or more86.
79
C. Warbrick, “Recent Developments in UK Extradition Law (2007) 56 I.C.L.Q. 199 at 204. This reciprocity was lost when the
UK ratified the Treaty and the US to do so which they later did. This means that while the UK had to show probable cause in a
US court to seek the extradition of an individual from the US, the US only had to provide information- usually in the form of an
affidavit, setting out the charges against the suspect and relevant arrest warrant.
80
The Home Secretary‟s reply to David Burrowes‟s (Member representing Enfield Southgate)question of why he doesn‟t want
to intervene on Gary‟s extradition to the US. This is available on <http://news.bbc.co.uk/1/hi/uk/8389310.stm> accessed
3/12/2009. This was criticised by Damian Green, Shadow Immigration Minister who said the above statement entails that the
Home Secretary disagreed with the Attorney General, Baroness Scotland who in 2003 expressed that there was an imbalance
in the evidential threshold provisions of the treaty against the UK.
81
G. Davies opcit p.1542
82
K. Thomas opcit p.331
83
Article 8 of the 2003 Treaty
84
The 1972 UK-US Treaty
85
Extradition treaties normally relate only to serious crimes and impose the same obligations on both the parties concerned,
e.g. the offence must be designated a crime under the domestic laws of both countries.
86
Article 1 of the 2003 Treaty.
87
In terms of sections 137 and 138 of the EA 2003
88
P. Arnell, “The long arm of the United States law” (2007) 37 S.L.T. 267.
89
Entitled „Fraud and related activity in connection with computers‟ (the code)He was specifically charged with seven counts of
violating subsections (a)(5)(A)(i), (a)(5)(B)(i) and (a)(5)(B)(v) of the Section 1030 of the code.
knowingly cause electronic transmissions that intentionally cause
unauthorised damage to a protected computer90.
The equivalent United Kingdom cases are found in the Computer Misuse
Act 1990 with the additional possibility of liability arising under the
Aviation and Maritime Security Act 1990. At the relevant time, the
Computer Misuse Act 1990 provided for three principal offences:
„unauthorised access‟91, „unauthorised access with intent92 and
„unauthorised modification‟.93
HUMAN RIGHTS
When an extradition request has been made, the judge in the requesting
state must consider whether the extradition would be compatible with the
European Convention on Human Rights (ECHR)94.
The judge will start from the presumption that all countries which have
general extradition arrangements with the UK 95, will have systems of
justice which afford rights to a defendant which are equivalent to those
guaranteed by the ECHR96.
90
This is contained in the first provision of the code. A protected computer is defined as one used exclusively by the US
Government, by subsection (e)(2) of section 1030. It is another offence to knowingly cause such a transmission, intentionally
access a protected computer without authorisation and thereby recklessly or otherwise cause damage that either causes a
financial loss greater than US$5000 or causes damage to governmental computer systems used in national defence, national
security or administration of justice purposes. This is contained in the second provision of the code. Conviction under section
(a)(5)(A)(i) carries with it the risk of a fine and a period of imprisonment of up to ten years. This is contained in section
1030(c)(4)(A)
91
Section 1 commonly referred to as hacking offence. This offence attracts a maximum jail term of ten years as increased by
the Police and Justice Act 2006 from the previous provision in the 1990 Act.
92
Section 2. This also attracts a maximum jail term of ten years.
93
Section 3. This was later known as „unauthorised acts‟ offence which has been in force in Scotland since the 1 st of October
2007 and is principally designed to attack activities impairing the operation of computer systems. The Police and Justice Act
2006 also created the new ancillary offence under Section 3A of making adapting, supplying or obtaining articles used to
commit offences under the 1990 Act. the unauthorised offence attracts a maximum twelve-month sentence . See P. Arnell and
A. Reid opcit p.3. The Aviation and Maritime Security Act 1990 created the offence of endangering ship navigation which
suffices by a serious interference of a person with the operation of the apparatus or navigation used for maritime navigation.
Section 12 (1)(b) and (2) of the Act. the offence of endangering ship navigation attracts a life sentence.
94
A. Doobay, “Extradition” (2006) 8 Tax Journal Issue 849 p.6
95
Such as the USA
96
A. Doobay, “Extradition” opcit
97
Interestingly, the substantive arguments put forward were not akin to those made in the House of Lords to the effect that
plea bargaining system entailed a breach of his fundamental rights.
Novel arguments were made that he would suffer torture or inhuman
degrading treatment due to the conditions in which he would be detained
if convicted in the US.98 This argument is partly based on his suffering
from Aspergers Syndrome, a form of autism. At the ECTHR, McKinnon‟s
lawyers first requested and were granted interim relief to the effect that
McKinnon would not be extradited until ECTHR heard the arguments
which it did and refused them99.
The ECHR established the non-refoulement principle 100 within the scope of
its Article 3, that the extradition of a person from an ECHR state party to
another country where there is a serious risk that this person could be
subjected to torture or to inhuman or degrading treatment or punishment
would amount to a violation of Article 3101.
Alan, in his response in the House of Commons stated that this issue has
been brought before the courts102 and they have decided that McKinnon‟s
condition does not suffice for a protection under Article 3 of the ECHR
based on all the evidence that his lawyers have put up on his behalf103.
Summarily, Alan told the Commons the extradition would not breach
human rights but accepted there were concerns over Mr McKinnon's
health. "The reality is that he hadn't stood up for a UK citizen who's
extremely vulnerable to the point where he is suicidal, and should be
physically contained because of the extent of his mental illness, aligned to
his Asperger's Syndrome."104
98
This is in line with article 3 of the ECHR.
99
See „Hacker loses extradition appeal‟, 28 August 2008, available at <http://news.bbc.co.uk/1/hi/uk/7585861.stm> accessed
2/12/2009
100
Soering v United Kingdom (1989) 11 E.H.R.R. 439
101
In R (Wellington) v Secretary of State for the Home Department (2008) U.K.H.L. 72, (2009) 1 A.C. 335, the House of Lords
grappled with the difficult question whether a sentence of life imprisonment imposed by the state seeking extradition raises an
issue under Article 3 ECHR. See also M. Milanovic, “Extradition and life imprisonment” (2009) 68 C.L.J. 248.
102
From the Lower courts to the House of Lords
103
This was a response to the question posed to him by ,inter alia, Chris Huhne, the Liberal Democrats Home Affairs
Spokesman who asked him if, given the worsening situation of his medical condition, the Home Secretary cannot intervene in
that regard based on his powers to halt extradition and if it was not a breach of his rights to extradite to him to the US where he
stands a risk of over 60 years imprisonment and suicide based on his condition.
104
David Burrowes criticism on the McKinnon‟s extradition order, available on <http://news.bbc.co.uk/1/hi/uk/8389310.stm>
accessed 3/12/2009.
105
European Convention on Human Rights, 1950, Article 6.
106
Ibid Article 8.
107
K. Thomas opcit
CONCLUSION
It is axiomatic that municipal courts have not and cannot have the
competence to adjudicate upon or enforce the rights arising out of
transactions entered into by independent sovereign states between
themselves on the plane of international law 109. Coupled with the partial
enforcement mechanism which States offer to international law, it is
obvious that both laws have to co-exist to give birth to an ideal world
community where laws are not threaded.
108
J. Howell and S. Fatima opcit p.1
109
JH Rayner (Mincing Lane) ltd v DTI [1990] 2 AC 418 as cited in the International Tin Council case opcit, per Lord Oliver.
This is known as the principle of non-justiciability.
BIBLIOGRAPHY
Books
Legislations
Others: Internet
http://news.bbc.co.uk/1/hi/uk/8389310.stm
http://www.fco.gov.uk/resources/en/pdf/3706546/Bilatextradition
http://police.homeoffice.gov.uk/operational-policing/extradition-
intro1/extrad-part-2/>