Extradition and the Death Penalty: Reconsidering the Margin of Appreciation Under Article 2 of the European Convention on Human Rights
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Extradition and the Death Penalty: Reconsidering the Margin of Appreciation under Article 2 of the European Convention on Human Rights Yuanchi Jia This thesis is submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in the University of Lancaster September 2020 Declaration I declare that this thesis is my own work and has not been submitted in substantially the same form for the award of a higher degree elsewhere. ii Acknowledgment It had been a long journey to the completion of this thesis, which would not have been possible without the support of my supervisors and my family. I would express my gratitude to my supervisor Professor James Sweeney. I am deeply indebted to him for what he has done for me in the last four years. It was my honour to have his invaluable encouragement, illuminating supervision and all academic support. I would also like to thank my second supervisor Professor Steven Wheatley, for his significant feedback at each appraisal stage of my PhD progress. I am extremely grateful to my internal examiner Dr Noel McGuirk and external examiner Professor Kanstantsin Dzehtsiarou of the University of Liverpool, for their invaluable comments during my viva voce. The help from the staff at the Law School and the University is also greatly appreciated. I owe my sincere thanks to my mom, Li Lan, who passed away at the very early stage of this research. I would like to dedicate this thesis to her, and I believe she would be proud. I am also truly grateful to my dad, Jia Xin, who has been doing the utmost to support my study in the UK. Special thanks go to my wife, Wang Shaochen, who has always been with me over the years, and to my little daughter, Jia Qingyi, who likes picking up my ‘international law’ books at home. iii Extradition and the Death Penalty: Reconsidering the Margin of Appreciation under Article 2 of the European Convention on Human Rights This thesis is submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in the University of Lancaster Yuanchi Jia September 2020 Abstract In today’s globalised world with much easier and more ubiquitous cross-border movement, physical state borders are becoming more ‘invisible’. States confront increasing threats, which are no longer delimited by borders. While states’ enforcement jurisdiction is essentially territorial, in order to combat transnational crime and eliminate security threats, they have to expand their national interests across borders by resorting to international judicial cooperation. Extradition is a formal legal process by which states could bring the accused or convicted criminals who have fled abroad back to justice. Nevertheless, extradition is subjected to a range of impediments among which the death penalty has been a controversial one that seems not to be reconciled. This thesis argues that by absolutely prohibiting to extradite people to face the death penalty, the European Court of Human iv Rights is actually exporting a non-universal abolitionist value. However, the legal basis for this standard is not tenable, nor the current approach of seeking assurances. In fact, the standard is even not fully shared by its own States Parties. This thesis offers a critical correction and reaffirmation on the lawfulness of the death penalty in international law and proposes a different relationship between extradition and the death penalty within the European Convention on Human Rights. This means, its Contracting Parties should be conferred a margin of appreciation under Article 2 to respond to the death penalty—extradition dilemma, where at present it does not seem to apply. If the margin of appreciation is allowed, extradition would be permitted to retentionist states in cases where the death penalty is ‘lawfully carried out’ and the test of proportionality is met. The underlying cause of the suggested approach is that there needs to be greater international cooperation against transnational criminality. In certain cases, the repression of transnational crime on behalf of many outweighs the rights of the one person to be extradited. v Contents Declaration ……………………………………………………………………………ii Acknowledgment …………………………………………………………………….iii Abstract …………………………………………………………………………...….iv Contents ………………………………………………………………………..….…vi 1. Introduction …………………………………………………………..……..…….1 1.1 Extradition in states’ response to transnational criminality …..…….…………5 1.2 Human rights barriers to extradition: sketching the problems ……………….11 1.3 The arguments in favour of making the change………………..……………..18 2. The Operation of Extradition Law …………………………………………….…31 2.1 The rationale of extradition and realisation of its values……………………..34 2.2 The legal basis of extradition…………………………………………………39 2.2.1 Treaty-based extradition. ………………………………………………40 2.2.1.1 Comprehensive extradition treaties……………………………40 2.2.1.2 Extradition provisions in suppression conventions…………….47 2.2.1.3 Quest for a universal extradition regime……………………….49 2.2.2 Extradition in the absence of treaties …………………………………..51 2.2.2.1 Domestic legislation …………………………………………...51 2.2.2.2 Reciprocity in extradition law…………………………………53 2.3 Substantial requirements of extradition ……………………………………...57 2.3.1 Double criminality ……………………………………………………57 2.3.2 Extraditability ………………………………………………………...61 2.3.3 Specialty ……………………………………………………………...65 2.3.4 Other requirements of extradition …………………………………….67 2.4 The conflict between extradition and human rights ………………………….73 2.5 The interrelation of deportation and extradition……….. ………………..…..82 2.6 Conclusion …………………………...………………………………………88 3. The Death Penalty in International Law ………………………………………….91 3.1 Unpicking the apparent trend towards abolition……………………………... 93 3.2 Controversial issues regarding the death penalty …………………………...102 3.2.1 Deterrence …………………………………………………………….103 3.2.2 Discriminatory execution ……………………………………………..108 3.2.3 Miscarriage of justice …………………………………………………110 3.2.4 Public opinion ………………………………………………………...113 3.2.5 Conclusion to Chapter 3.2………….………………….………………118 3.3 The international lawfulness of the death penalty ………………………….120 3.3.1 Reframing the death penalty in human rights law …………………….120 3.3.1.1 Some reflections on retentionist states’ practice ……………..122 3.3.1.2 The death penalty in international human rights treaties ……...124 vi 3.3.1.3 The death penalty in human rights case law …………………..129 3.3.2 The death penalty in international custom ……………………………134 3.3.2.1 A brief note on customary international law identification …...134 3.3.2.2 The death penalty in customary international law ……………142 3.4 International regulation of the death penalty ……………………………….150 3.4.1 The most serious crimes ………………………………………………154 3.4.2 Protected categories of offenders ……………………………………..161 3.4.3 Procedural safeguards ………………………………………………...165 3.5 Conclusion ………………………………………………………………….171 4. Reconsidering the ECtHR’s Standard on the Death Penalty in Extradition ……..174 4.1 Exportation of the European standard ……………………………………...175 4.1.1 The prohibition of the death penalty in the Council of Europe ………175 4.1.2 The development of the ECtHR’s standard on the death penalty in extradition………………………………………..178 4.1.3 The use of assurances …………………………………………………192 4.1.4 Criticism of assurances ………………………………………………..199 4.2 Reconsidering states’ irreconcilable interests…………………… ………….202 4.3 Recognising the margin of appreciation in extradition law…….………….. 211 4.3.1 What the margin of appreciation is………………………….. ……… 212 4.3.2 Controversies of the margin of appreciation…………………………..218 4.3.3 Justifications of the margin of appreciation………………….………..223 4.3.4 Reconsidering the margin of appreciation under Article 2 of the ECHR ……………………………………………..……………231 4.3.5 Applying the margin of appreciation to extradition involving the death penalty…………………………………………………...…..236 4.4 Conclusion…………………………………………………………………..246 5. Concluding Remarks …………………………………………………………...248 5.1 Extradition and transnational criminality …………………………….……..249 5.2 The death penalty—extradition dilemma ………………………….………..250 5.3 Proposing a different way out ……………………………………….………256 Bibliography ………………………………………………………………………..261 Table of Cases ………………………………………………………………………305 vii Extradition and the Death Penalty: Reconsidering the Margin of Appreciation under Article 2 of the European Convention on Human Rights 1. Introduction We live in challenging times for international criminal justice. The greater international cooperation is especially needed in this new global context, which is characterised by the great availability of cross-border movement, the globalised criminality and states’ expanding interests in responding to transnational crime and safeguarding the public security and national interests. Extradition is a formal legal process by which a ‘person’1 is surrendered by one state to another to either stand a trial or serve a sentence. Generally speaking, when the ‘human rights—extradition nexus’ is concerned, it refers to the issue of whether extraditing a person to the requesting state would be consistent with the extraditee’s human rights or namely, for the requested state, whether granting the extradition complies with its human rights obligations.2 Although it is required to pursue a reconciled or balanced relation between these two aspects,3 it is a fact that 1 According to the definition of extradition, the person subjected to an extradition request formally refers to ‘extraditee’, who is either charged with committing a crime or a convicted criminal that falls within