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Botting proposes changes to international extradition treaties

published September 29, 2016

British Columbia extradition lawyer Dr. Gary Botting has proposed to an international think tank at the University of Oxford that a Unified Multilateral Extradition Treaty (UMET) should replace the various existing international extradition treaties and the European Arrest Warrant (EAW) system to reflect the new realities of interstate co-operation.

“Current extradition procedure reflects outmoded and variable approaches to extradition that are expensive and time-consuming,” he told the International Extradition Law Conference at Oxford’s Centre of Criminology.

Lawyers and law school professors from around the world congregated to brainstorm alternative methods of extradition in light of the possible exit of the United Kingdom from the European Union.

A poll of participants indicated that virtually all considered the two-day conference a “complete success,” said Botting, a widely published expert on extradition law who has written several books on the subject, including the standard Canadian text Canadian Extradition Law Practice (LexisNexis.)

Delegates to the inaugural conference came from the United States, Canada, Australia, the United Kingdom and continental Europe. High on the agenda was an examination of the comparative merits of multilateral and bilateral extradition treaties, the EAW, and the Interpol Red Notice methods of extradition, organizer Stephano Maffei, of the University of Parma, Italy, said in a news release about the conference. Over the course of two days, delegates focused on the theory and practice of extradition laws in a number of jurisdictions.

Co-organizer Cristina Saenz Perez from Spain noted that few universities, law societies and bar associations focus on extradition as a significant area of legal practice. “No university in the world offers programs or even courses in international extradition,” she said. “Despite the sharp increase of high-profile extradition cases in recent years, international extradition is still not taught as an independent subject in undergraduate and graduate courses in law schools across the world. As a result, with the exception of the UK, no established class of extradition lawyers exists in most countries."

U.S. law professor David Sonenshein of Temple Law School in Philadelphia opened the conference with a short history of extradition and the origin of the related area of interstate rendition in the United States. The initial seminar drew parallels between rendition, extradition, Canada-wide or Australia-wide warrants that have interprovincial or interstate effect, and the EAW system.

U.K. barrister Mark Summers of Matrix Chambers in London, counsel in Assange v. Sweden in 2012, focused on the adjustments made by the British process of incorporating the EAW in its domestic system despite the continued existence of many bilateral treaties. This introduced confusion, he said.

British solicitor Jasvinder Nakhwal, president of the Extradition Lawyers Association, reported on the difficulties of removing Interpol Red Notices once they have (often arbitrarily) been put in place — even once extradition proceedings have concluded.

Australian academic and lawyer Ned Aughterson highlighted the peculiarities of that country's rules of extradition and its “special relationship” with New Zealand, drawing parallels with bilateral extradition practice between the U.S. and Canada, and Britain and the rest of the European Union. German extradition experts Adrian Haase and Thamas Wahl analyzed the traditional jurisdiction of the German Constitutional Court to determine the legitimacy of EAW rules where they contradict core aspects of German Basic Law.

Professor Maffei discussed the importance of expert witnesses in extradition hearings, especially for establishing foreign law, which almost universally is considered a question of fact rather than law.

Botting focused on the importance of reaching agreement on the wording of a draft multilateral treaty on extradition, which would supplant all the problematic alternatives to international extradition.

Canada currently has bilateral extradition treaties with 51 of 195 countries, and in addition, has 31 non-treaty agreements with other countries, most of them are members of the British Commonwealth, he told the conference. The U.S. has more than 100 different bilateral treaties in effect. Several multilateral treaties also include provisions for extradition.

“The European Arrest Warrant has 28 subscribers, but usage is wildly variable,” he said. “For example, Poland has issued 64,000 warrants through the EAW system in the past six years, and has succeeded in just over 1,000 of those requests. By contrast, the U.K. made just over 1,000 requests in the past six years, and three-quarters of them have resulted in extradition.

“Like extradition generally, the EAW has become a bit of a crapshoot,” Botting said.

The solution to all this confusion?

“A Unified Multilateral Extradition Treaty,” said Dr. Botting unambiguously.

“Half the countries of the world would already qualify to ‘sign on’ by virtue of being signatories to current treaty arrangements,” he pointed out to the delegates. "The other half, including most Islamic and African nations, would be considered to qualify to sign onto the new UMET, individually, once they met certain minimal standards of justice, including protection of human rights and fundamental freedoms.”

Botting suggested that the UMET could be brought under the auspices of the United Nations (which currently has 193 members.)

“I first advanced this proposal to the United Nations in 2008 in an application for SSHRC funding for the establishment of a research program at the Faculty of Law at UBC when I was a post-doctoral research fellow there,” he said. His proposal fell on deaf ears in Ottawa, he added.

“I reintroduced the idea at the recent International Extradition Law Conference in Oxford convened by extradition lawyers, prosecutors and law professors to discuss the future of international extradition and the EAW in light of Britain potentially withdrawing from the European Union,” he told AdvocateDaily.

"The identified shortcomings of ‘regional’ instruments of surrender for extradition such as the EAW and bilateral extradition treaties demonstrate that a multilateral treaty approach to extradition would be the ideal way to secure uniformity across the globe,” he said. “A single multilateral treaty, endorsed by the United Nations, would establish a minimum standard level of protection of the rights of individuals subjected to extradition procedures.”

The second International Extradition Law Conference will be held in Oxford at the end of August 2017. The third is scheduled for Rome, Italy, in 2018.