II. | Substantive International Law - Second Part |
15. | EXTRADITION |
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Questions of Interpretation and Application
of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya / United Kingdom),
Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 3
[pp. 24-25 J. Decl. Evensen, Tarassov, Guillaume and Mawdsley 1]
2. In so far as general international law is concerned, extradition is a
sovereign decision of the requested State, which is never under an obligation to
carry it out. Moreover, in general international law there is no obligation to
prosecute in default of extradition. Although since the days of Covarruvias and
Grotius such a formula has been advocated by some legal scholars, it has never
been part of positive law. This being so, every State is at liberty to request
extradition and every State is free to refuse it. Should it refuse, a State is
not obliged to prosecute.
3. Ten international conventions adopted under the aegis of the United
Nations or the specialized agencies since 1970 have nevertheless modified the
legal situation between the parties to those conventions.
The Montreal Convention of 23 September 1971 for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation is one of the conventions mentioned.
Libya, the United Kingdom and the United States are parties to it.
The Convention provides, in Article 7, that
"The Contracting State in the territory of which the alleged offender
is found shall, if it does not extradite him, be obliged, without exception
whatsoever and whether or not the offence was committed in its territory, to
submit the case to its competent authorities for the purpose of prosecution."
In Article 5 the Convention deals with jurisdictional questions for the
purpose of facilitating prosecution. In Article 8 the Convention makes
extradition easier, but without creating any obligation in that regard.
Thus, the Montreal Convention, which in our opinion was applicable in this
case, did not prohibit Libya from refusing to extradite the accused to the
United Kingdom or the United States. It implied merely that, in the absence of
extradition, Libya had to submit the case to its competent authorities for the
purpose of prosecution.
[p. 38 D.O. Bedjaoui 2] 12. ... Article 7 of the 1971 Montreal
Convention, the provision that gave rise to the most discussion and is at the
heart of the Libyan Application, categorically imposes on every State party to
the Convention the obligation either to extradite or to prosecute before its
courts the alleged perpetrators of an offence, in keeping with the traditional
option to which the maxim aut dedere aut judicare refers. Without
entering into the merits of the case, I would point out that, as is well known,
there does not exist in international law any rule that prohibits, or, on the
contrary, imposes the extradition of nationals. All that the régime laid
down by the Montreal Convention does is to complement general international law
by, on the one hand, rendering the various national laws applicable and, on the
other hand, imposing on States an "obligation to take action", in
accordance with their internal law, by either extraditing or arranging for
prosecution before their own courts. This option is now valid, if not under
general international law at least between all the States parties to the 1971
Montreal Convention.
[p. 72 D.O. Ranjeva] 2. On the basis of general international law,
confirmed by the Montreal Convention, the Applicant enjoys the right to choose
expressed in the traditional adage: aut dedere aut judicare; this right
is opposable erga omnes and creates the obligation to effectively carry
through, in normal conditions, proceedings for the establishment of criminal
responsibility in the Lockerbie bombing.
[p. 109 D.O. El-Kosheri 3] 55. Without going into details which
are at present not needed in the light of the Order rendered by the Court, the
principles underlining the adoption of the Montreal Convention include the rule
aut dedere, aut judicare (or aut dedere, aut punire, as the case
may be in view of the stage reached, which has been explained by Judge Guillaume
in his course at the Hague Academy of International Law, RCADI, op. cit.,
Chap. IV, pp. 354-371). The rule in question necessarily implies confirmation of
the deeply rooted principle of general international law according to which no
State can be obliged to extradite any persons, particularly its own citizens, in
the absence of a treaty explicitly providing for such extradition. In
particular, the provisions of Article 7 read with Article 8 (2) of the Montreal
Convention entitle any Contracting State to refuse extradition in all cases not
subject to an existing extradition treaty. This has been confirmed, through
approval by more than 130 Contracting States, as a sovereign right recognized by
general public international law. Accordingly, under the Montreal Convention, no
other State or group of States can be considered entitled to force another State
to extradite, and this applies particularly with regard to its own citizens when
their extradition is prohibited under the State's domestic legal system.
1 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, pp. 136-137. |
2 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 148. |
3 | Cf. Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
/ United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 214. |