Human Rights Considerations in Extradition

AuthorFrédéric Mégret
ProfessionFull Professor and Dawson Scholar, Co-director Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University
Human Rights Considerations in
Extradition is traditionally conceived as an inter-state process designed to
deal with the problem of fugitives. It is only relatively recently that human
rights concerns have come to the foreground. is is particularly the case
in Canada where the Charter has arguably signicantly transformed the
framing of extradition, albeit with occasionally limited practical impact.
e constraints that weigh on the desirability of extradition are
multifaceted. States are evidently interested in enforcing their laws and
asserting their criminal jurisdiction, and so have a strong interest in
addressing the problem of fugitives. ere are also certain inbuilt inter-
national limitations to any extradition scheme. States can only expect
other states to accept their extradition requests to the extent that they
are willing to honour similar requests. is is the basic quid pro quo of
international law. States that do not comply with their extradition treaty
* Full Professor and Dawson Scholar, Co-director Centre for Human Rights and
Legal Pluralism, Faculty of Law, McGill University. anks to Isabella Spano for
her invaluable assistance.
John D ugard& Christine Van den Wyngaert, “Reconciling Extradition with Human
Rights” () : American Journal of International Law .
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act  (UK), , c  [Charter].
 
obligations will also nd that their treaty partners will be disinclined
to respect theirs. In other words, states’ interest in extradition is based
on their own, homegrown interest in securing custody over criminal
suspects abroad, reinforced by the necessarily reciprocal nature of inter-
national treaty arrangements. To make matters more complicated, extra-
dition regimes have increasingly been mandated through international
law. is turn to international law occurs especially in relation to what
one might broadly characterize as transnational or supranational crimes
(a reality spectacularly illustrated by simplied regimes of surrender to
international criminal tribunals, but also in eorts to deal with terrorism).
ese domestic and international factors suggest that, all other things
being equal, states have a strong interest in implementation of and com-
pliance with extradition obligations.
At the same time, there is no denying that extradition implicates
human and Charter rights. It threatens those who are targeted with
both forced removal from Canadian territory and prosecution (as well
as, possibly, punishment) in a foreign land. is sort of judicial uprooting
has severe consequences on all aspects of persons’ lives, implicating, for
example, sections , , or . Just as it has often been said that the Charter
has profoundly reshaped criminal justice in Canada in general, it has also
had an impact on extradition proceedings, which are a complex and unique
mix of executive discretion, judicial scrutiny, and international comity.
is chapter rst describes the basic conceptual framework wherein
Charter and human rights claims in relation to extradition arise in Canada.
It then looks more specically at the sort of rights concerns that arise at
various stages of the extradition process.
1) The Constitutional Equation
Extradition is based on principles of comity and mutual cooperation that
are central to international law as well as to Canadian foreign policy. e
Canadian government freely negotiates and raties extradition treaties,
susceptible to a range of limitations often associated with treaty-making
in Canada, including limited involvement of Parliament or the provinces.
It is important to stress that in complying with its extradition obligations,
Canada is not doing other states’ bidding, but participating in the very

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