The extradition and return of fugitive offenders - applicability of human rights considerations

• Author: A.R. Carnegie
• Position: Professor of Law, Executive Director, Caribbean Law Institute, University of the West Indies, Cave Hill Campus', Barbados
• Pages: 224-243

THE EXTRADITION AND RETURN OF

FUGITIVE OFFENDERS - APPLICABILITY OF

HUMAN RIGHTS CONSIDERATIONS*

A.R. CARNEGIE

The

pre-human-rights history

of

the international law

governing fugitive

offenders

The task of discussing the law governing the human rights of the

fugitive offender is rendered to a certain extent more complex by the

fact that the law relating to fugitive offenders is older than international

human rights law.

Long before international law broke out of

its

constraint of exclusive

concern with states as international persons sufficiently to generate, in

the mid-twentieth century, the present

corpus

of human rights law, the

-

fugitive offender's position had been discussed in the context of the

basic principle of territorial asylum. Within that principle, the law of

extradition developed, based on a network of treaties, which could be

seen as purely consensual limitations on the privilege of the state

granting territorial asylum.1 Questions were occasionally canvassed as

to the existence of

the

possibility of extradition in the absence of treaty

obligation.2

The fitgitive offender under the

human

rights

instruments

of

modern

international

law

The advent of human rights law in the twentieth century gave rise

to a number of multilateral human rights treaties, of which some are

more relevant than others, both by reason of subject-matter and level

A paper presented to a Seminar for Caribbean Judicial Officers on

International Human Rights Norms and the Judicial Function, sponsored by

the Inter-American Institute of Human Rights, the University of the West

Indies Faculty of Law and the Barbados Bar Association, November 26-27

1993.

Professor of Law, Executive Director, Caribbean Law Institute, University

of the West Indies, Cave Hill Campus', Barbados.

1 Whiteman, Digest of International Law, Vol. 6, 1968, pp. 727-728, 732-

733.

2 1d., p. 727.

of country participation. The leading instruments on human rights of

the civil liberties variety which have the greatest relevance to the

Caribbean region in the context of the fugitive offender are the

American Convention on Human Rights3 and the United Nations

Covenant on Civil and Political Rights,4 judged by the level of

participation in those instruments by the independent Commonwealth

Caribbean States. Barbados, Grenada, Jamaica and Trinidad and

Tobago are parties to the ACHR, while Barbados, Guyana, Jamaica,

St. Vincent and the Grenadines and Trinidad and Tobago are parties

to the CPR Covenant. None of the independent states is a party to the

European Convention on Human Rights5 or its Protocols, but the

influence of the ECHR on the drafting of the Commonwealth

Caribbean constitutions, together with the indirect impact it has on the

English common law which still nurtures that of the Commonwealth

Caribbean states and its potential relevance for the British dependent

territories which remain in the Caribbean, seems

to

justify including it

in the comparison.

Of these instruments mentioned, only the ECHR makes any express

reference to the extradition situation. Under article 5(l)(f) of the

ECHR, the lawful arrest or detention of a person against whom action

is being taken with a view to deportation or extradition is an exception

to the rule protecting against deprivation of liberty. Clearly, this is a

provision excluding the fugitive offender from a right, and not one

conferring a right on the fugitive offender, although the European

Court of Human Rights has, by focusing on the qualification of the

lawfulness of

the

arrest, shown the provision not to be empty of human

rights significance.6

In other respects, the position of the extraditee needs to be deduced

from the applicability of provisions of rather more generality. Thus

under the CPR Covenant the statement that everyone has the right to

liberty and security of person is qualified by the prescription that no

one shall be deprived of liberty except on such grounds and in

accordance with such procedures as are established by law.7 The

ACHR adopts a similar approach.8

s Hereafter ACHR.

4 Hereafter CPR Covenant.

5 HereafterECHR.

6 Contrast Bozano v. France (1986) 9 E.H.R.R. 297 and (1987) 13

E.H.R.R. 428 with Stocki v. Germany (1991) 13 E.H.R.R. 839.

7 CPR Covenant, art. 9.1.

8 ACHR, art. 7.1-2.