International Law in Brief

International Law In Brief

July 8-14, 2000
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law

Judicial and Other Decisions

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

Archived at http://www.law.wits.ac.za/lawreps.html

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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 inter alia "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

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000615/burke-1.htm

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Reports and Other Documents

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

Archived at http://usinfo.state.gov/products/pdq/pdq.htm

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Briefly Noted

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

 

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