Azaria, D; (2015) Written Evidence: Response to House of Lords Select Committee on Extradition Law. (House of Lords Select Committee On Extradition Law: Oral and written evidence EXL0087 ). House of Lords: London, UK.

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Abstract

EXECUTIVE SUMMARY A(I): Is the UK permitted to make a reservation to Article 12(2) of the European Convention on Extradition vis-à-vis particular States to the effect that additional documents, and more specifically prima facie evidence of the offence for which extradition is requested (i.e. signed witness statements), have to be submitted by the requesting State? The European Convention on Extradition (‘ECE’) contains a provision concerning reservations according to which reservations have to be made either upon signature or upon ratification or accession. The late formulation of a reservation would render it invalid. However, modern practice, including under the auspices of the Council of Europe, exceptionally recognises the possibility that the late formulation of a reservation can be valid, if unanimously accepted by other contracting states. A reservation by the UK concerning Article 12 to the effect that prima facie evidence of the offence for which extradition is requested (i.e. signed witness statements) has to be submitted by particular requesting States parties would be consistent with the object and purpose of the ECE, but its late formulation would not meet the narrow circumstances in which late formulations of reservations have been accepted, and in any event, such late formulation would require the unanimous acceptance of other contracting States in order to be valid. Although the formulation of a late reservation would render the reservation invalid, a number of alternative routes may be available. First, the UK may denounce the ECE (pursuant to its Article 31) with a view to immediately re-acceding to it and formulating a reservation to Article 12 when acceding. Although such an approach is controversial, there is no rule of customary international law prohibiting it. However, as at 1 January 2014, the UK is party to the Fourth Additional Protocol to the ECE (‘Fourth Protocol’). A denunciation of the ECE automatically entails the denunciation of the Fourth Protocol (pursuant to the Fourth Protocol’s Article 14(3)), and upon accession to the ECE and to the Fourth Protocol a reservation formulated to the ECE concerning prima facie evidence in relation to Article 12 of the ECE would have legal effects only in the relationship of the UK with ECE parties that are not parties to the Fourth Protocol. The UK will be unable to formulate a valid reservation to the Fourth Protocol (concerning Article 12 of the ECE) that applies to the relationship between the UK and other Fourth Protocol parties, because the Fourth Protocol permits only specified reservations but not one in relation to Article 12 to the effect examined here. Second, the UK could try to elicit the establishment of an agreement between ECE parties concerning the interpretation of Articles 12 or 13 to achieve the desired result by triggering the subsequent practice of ECE parties in the treaty’s application. EXECUTIVE SUMMARY A(II): What is the effect of doing so on the UK’s ECE treaty relations with other States party? If the late formulation of a reservation is accepted unanimously by all other contracting states, it would be subject to the opposability rules concerning reservations. Between the UK and those that accept the reservation, if they have not raised an objection to the reservation by the end of twelve months after they were notified of the reservation or by the date on which they expressed their consent to be bound by the treaty, whichever is later, the ECE would apply with the reservation. The reservation would modify Article 12 to the extent of the reservation for the reserving State in its relations with the accepting party; and would modify Article 12 to the same extent for the accepting party in its relations with the reserving State. In contrast, between the UK and those that object to the reservation, either the ECE would not enter into force between them, if the objecting states choose to oppose it, or Article 12 will not apply to the extent of the reservation. If the UK attempted to make a reservation that was in fact not permitted (for instance, because it has been formulated late without the unanimous acceptance of all other parties) and as a result was invalid, and then sought to rely on that reservation notwithstanding its invalidity, the UK would be in breach of its obligations under the ECE. EXECUTIVE SUMMARY B: Can the UK consider itself not bound by the ECE in relation to another ECE party that it regards as not performing the ECE in good faith? Assuming that an ECE (or Fourth Protocol) party is not performing the treaty in good faith, under customary international law and the VCLT the UK remains bound by the ECE or the Fourth Protocol (as applicable). The only available responses open to the UK as a result of non-performance of the ECE by another State are the following. First, under customary international law on the law of treaties, only in case of a material breach by another State party, if the UK is specially affected by that material breach, will the UK be entitled to suspend the operation in whole or in part of the ECE (or the Fourth Protocol, as applicable) in its relationship between itself and the defaulting State. The suspension of the treaty’s operation will release the UK and the defaulting State from the obligation to perform the treaty in their mutual relations during the period of the suspension, but will not otherwise affect the legal relations between the parties established by the treaty. Second, it is arguable – albeit not beyond doubt – that the UK may withhold performance of its treaty obligations until such time as the other party performs, assuming that the obligations in question are synallagmatic, in the sense that the performance of some treaty obligations may be conditioned upon performance of the same or closely linked obligations under the same treaty (under the exceptio inadimpleti contractus). This is a matter of treaty interpretation. However, it is doubtful that the obligations in the ECE (or the Fourth Protocol, as applicable) are synallagmatic in this way. Third, under customary international law on state responsibility, if the UK is injured by an internationally wrongful act pertaining to the breach (material or not) of an obligation under the ECE (or the Fourth Protocol, as applicable), it may take a countermeasure against the responsible ECE party (or party to the Fourth Protocol) in the form of suspending compliance with its international obligations under the ECE (or to the Fourth Protocol) or another international obligation owed to the responsible State. The wrongfulness of such suspension would be precluded for as long as the internationally wrongful act persists, but the obligations whose performance is suspended would remain an applicable legal standard between the responsible State and the State taking the countermeasure. However, countermeasures in order to be lawful have to fulfill a number of conditions, and hence their lawfulness will depend on the circumstances of each case. If they are not lawful, the wrongfulness of the countermeasures will not be precluded, and the UK would violate its international obligations and would engage international responsibility.

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