July 8-14, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
Constitutional Court of South Africa:
Juergen Harksen v. President of the Republic of South
Africa, CCT 41/99 (March 30, 2000)
In the absence of a German-South African extradition
agreement, the President of South Africa consented to
a German request for the extradition of Mr. Juergen
Harksen ("Appellant"), a German citizen residing in
South Africa, pursuant to Section 3(2) of the South
African Extradition Act 1962 ("Act"). Paras. 1, 5-7.
The Appellant was arrested and subsequently initiated
a number of court proceedings to delay or terminate
extradition proceedings. Paras. 2, 7.
On appeal to the Constitutional Court of South Africa
("Court"), the Appellant argued inter alia that
the president's consent constituted an international
agreement made in violation of constitutional provisions
requiring legislative involvement. Paras. 10, 13, 16.
The Court noted that in South Africa extradition is
governed domestically by the provisions of the Act,
(Para. 5), and concluded that while presidential consent
under Section 3(2) of the Act could eventually have
"international resonance," such consent served merely
to bring the Appellant within the purview of the Act.
Paras. 14, 21. The Court further noted that presidential
consent under Section 3(2) neither initiates nor concludes
extradition, in that inter alia arrest, enquiry,
a finding of sufficient evidence, and the application
of the Minister of Justice's discretion must necessarily
follow. Para. 14.
The Court concluded that the Act was never intended
to create international legal rights and obligations,
(Para. 21), and was not an "agreement at all: neither
an international agreement . . . nor an 'informal agreement.'"
The Court accordingly dismissed the appeal without an
order as to costs. MF
U.K. House of Lords: In Re Burke
(A.P.) (June 15, 2000)
Mr. Burke ("Appellant"), an American citizen, was arrested
in the United Kingdom pursuant to an extradition warrant
from the United States. The Appellant had arrived in
the U.K. after serving a prison sentence in the U.S.,
but before completing four and a half years of supervised
release. After appealing unsuccessfully to the metropolitan
magistrate and Divisional Court, the Appellant appealed
to the U.K. House of Lords ("House"), arguing that as
the custodial sentence had been completed extradition
could not be based merely on the alleged breach of a
condition of supervised release.
The House dismissed the appeal, holding that the supervised
release: 1) was a part of the sentence imposed by the
U.S. District Court; and 2) rendered the Appellant liable
to extradition. The House noted that the general intention
of extradition treaties is to "ensure that persons who
are convicted and sentenced in one country do not escape
punishment by fleeing to another country before they
have satisfied the sentence imposed by the court."
The House concluded that while Article VII(4) of the
1972 U.K.-U.S. extradition treaty establishes that an
extradition request must be accompanied by interalia "evidence of the sentence imposed and a
statement showing to what extent the sentence has not
been carried out," the word "sentence" refers to the
whole sentence imposed by the court, including penalties
additional to a custodial sentence. The House determined
that it would be inappropriate to separate out the custodial
element from the other elements of the sentence, such
as supervised release.
In dissent, Lords Hutton and Hobhouse argued that interpreting
the treaty to allow the extradition of a convicted person
who had served a prison sentence would be "contrary
to the language, object and intent of the treaty." The
dissenting Lords contended that the word "sentence"
used in Article VII(4) related to a sentence of imprisonment
or detention, and that a convicted person who had served
the entirety of an imposed sentence could not be extradited
for not satisfying other forms of punishment. AC
The Warsaw Declaration: Towards
a Community of Democracies (June 27, 2000)
Foreign Ministers and other representatives of more
than one-hundred countries ("Participants") issued the
Warsaw Declaration ("Declaration") at the Community
of Democracies Conference for circulation as an official
document of the U.N. Millennium Assembly.
Recognizing the universality of democratic values,
the Participants expressed their common adherence to
the purposes and principles set forth in the U.N. Charter
and the Universal Declaration of Human Rights. The Participants
also reaffirmed their commitment to respect for relevant
instruments of international law, and agreed to respect
and uphold core democratic principles and practices,
such as: 1) democratic government elected through free
and fair elections monitored by independent electoral
authorities; 2) equal protection of the law; 3) freedom
of opinion, expression, thought, conscience and religion;
4) respect for private family life, home and correspondence,
including electronic communications.
The Participants affirmed their determination to work
together to promote and strengthen democracy, while
recognizing their differing stages of democratic development.
The Participants also agreed to consolidate and strengthen
democratic institutions, with due respect for sovereignty
and the principle of non-interference in internal affairs.
The Participants pledged to encourage political leaders
to uphold the values of tolerance and compromise, and
expressed readiness to promote people-to-people and
government-to-government linkages, civic education,
and mutual assistance in economic and social development.
The Participants further agreed to strengthen cooperation
in facing terrorism, organized crime, corruption, traffic
in drugs, illegal arms and human beings, and money laundering.
MF
The ASIL has issued a new Insight,
authored by Leopoldo Lovelace, Jr., entitled
"Armed Activities on the Territory of the Congo:
The International Court of Justice Orders the Parties
to Refrain from Armed Action and to Ensure Respect for
Human Rights," and available at http://www.asil.org/insigh48.htm
To international law professors: the International
Law In Brief makes a very useful (and free)
class supplement. Subscription information is
available at /ilibsub.htm
Please note that students are encouraged to use personal
rather than school e-mail addresses.
The ASIL's International Legal Materials
Office is looking for law students in their
second year or higher to assist as Fall 2000 interns.
Very strong writing and English skills are required,
as well as the ability to work under fast-paced conditions
involving highly varied material. Internships are located
in Washington, DC, and are unpaid. Academic credit may,
however, be available for students who qualify. For
more information, please refer to http://www.asil.org/interns.htm
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Peter C. Hansen, Esq., Branislav
A. Maric Interns: Amit Chugh, Marina Fedorova, Marianne
Schulze
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
For membership information, visit us on the Internet http://www.asil.org
