Extradition and the Question of Sovereignty
- A state's decision not to apply its laws to a case that occurred, even though it can do so, and instead extradite those involved, may be perceived as a dissolution of sovereignty
and as an expression of distrust in the local legal system and its ability to deal with the case in its own way. This is undoubtedly contrary to the public policy of that country, which requires that the legal system not be deterred from applying its basic concepts and dealing with offenses in its own way.
But as already stated, public policy in extradition laws is "external" public policy. Not every decision regarding the non-application of local law is tantamount to a waiver of sovereignty. Not every act of extradition means rejecting the basic principles of the system. On the contrary: insofar as the decision to extradite a person is an expression of the purposes that we have discussed thus far, the decision is not only consistent with the foundations of the legal system, it also advances them. The very waiver of the applicability of the law in certain circumstances gives further validity to the principle of state sovereignty. The power to withdraw the law where it is justified derives directly from this principle. After all, this is done of free will and without external coercion. Acting President Justice Landau noted this:
"... []Reciprocity in extradition is not - or is not yet - a duty imposed on states as a matter of international law, but rather it is a matter of policy that is subordinate to the will of the state, and this will can be legally expressed in the provisions of a bilateral treaty that the state has concluded or in a multilateral treaty to which it has acceded..." (Parashat Peschowitz [14], at p. 452; my emphasis - A. A. 30).
Prof. Feller added to this:
"There is no rule in popular law that imposes a duty on states to extradite criminals who are within the territory of their sovereignty. There is no obligation to turn in when the state has not expressed its willingness to do so... We find that in practice there is no room to speak of a 'right to extradition' or even a 'right to extradition', by virtue of the law of nations. No state is entitled to demand that its company, by virtue of this law, hand over an offender to whom it wishes to receive, since the law of nations has not formulated - at least not yet - any general obligation imposed on states to extradite criminals at the request of another state... As a result, each and every country is sovereign to decide, without any unconsensual restriction or restriction, whether it will extradite criminals at all, and if it does - on what basis... Yes, each country is sovereign to decide in each and every case, at its discretion... In this way, extradition constitutes a clear sovereign act externally as well" (Feller Law of Extradition [125], at p. 22; My emphases - A, A, L).