E/CN.7/1988/2 (Part II) Page 20
120.
Several representatives suggested that the provisions of paragraph 3 should be drafted so as to make extradition for drug-related offences mandatory between Parties which are not bound by an extradition treaty. suggested replacing the word "may" by the word "shall".
They
121. Regarding paragraph 4, one representative considered that the conditional clause at the end of the paragraph was susceptible to broad interpretation and that the European Convention on Extradition, 1957, might serve as a model for a better formulation.
122. The view was expressed by several representatives that paragraphs 5, 8 and 9 were too far-reaching and contradicted the principle that domestic law or existing treaties were to apply in the case of offences covered under the convention; there was no reason to include special requirements covering extradition for drug trafficking offences.
One
123. The opinion was expressed that the whole of paragraph 5 should be deleted. It was argued in this connection that the discretion of sovereign States to refuse extradition should be preserved. On the other hand, it was suggested that the paragraph be retained with drafting improvements. delegation noted that the political offence ground for refusing extradition is not available to Parties to the Convention on the Prevention and Punishment of the Crime of Genocide, 1948.
124. As regards the extradition of nationals envisaged in subparagraph 5(a), some representatives drew attention to the requirements of their constitution or domestic legislation which precluded the extradition of their nationals. In their view, the subparagraph should be deleted. Some other representatives suggested that in the event of the retention of the subparagraph, it should be modified to indicate that it was not only the constitution, but also the domestic law which could warrant a refusal of extradition. One representative expressed the view that extradition should not be refused on the grounds that the offender was a national of the requested State.
125.
With regard to subparagraph 5(b), several representatives suggested that it be reformulated in the sense that extradition would not be refused on the grounds that the offence was committed outside the requesting State if the offence was intended to be committed in that State.
126. The deletion of paragraph 5(c) as drafted was favoured by several representatives. It was argued that none of the offences enumerated in paragraph 1 of article 2 should in any way be construed as political. A provision formulated in that sense was suggested for inclusion. On the other hand, it was stressed that such a provision would derogate from fundamental principles of the constitution or the legal system of some States.
127. A number of representatives noted that paragraphs 6 and 7 dealt with questions of jurisdiction which would have to be considered in depth in connection with article 2 bis. One representative made the point that paragraphs 6 and 7 should not go beyond the scope of jurisdiction covered in paragraph 1 of article 2 bis. It was stressed that the principle contained in paragraphs 6 and 7, making prosecution mandatory if extradition was refused, should be retained in this article or in an appropriate place in the convention.