CEFT-GB-
DRILLS~ I. IDHODI
7.06
erefore, it is directly detachable from the carrying out of the international relations.
Now, whether with respect of a foreign State or with respect to any other person, the Administration is bound by the rules of French internal law; it cannot breach its own regulations and the fundamental principles governing the functioning of the institutions, such as the separation between the administrative authorities and the judicial authorities, which is at stake in this case.
The Government could have placed itself on the level of the international relations. It did not do it and cannot, now, change the discussion.
It cannot, as has already been said, refuse an extradition for reasons which legally are inaccurate. wrongly believing itself to be bound to refuse it under the rules governing the preliminary stage of the extradition.
Its decision is, therefore, in this respect and to that extent, capable of contentious recourse.
Thus, the interesting discussion started by Mr. Saniman is irrelevant.
2. To justify, indeed, the different regime which would be reserved to extraditions and refusals to extradite, he says that the existence of recourses is due to the fact that individual liberties would be at stake, which is not challenged but does not apply only to the person to be extradited, as a breach of the principle of separation of power vis-a-vis any plaintiff is strictly of the same order (see Constitutional Council, 12th January 1977, Rec page 33, and 22nd July 1980, Rec page 46).
The argument thus proves nothing.
3. It is also in vain that Mr. Saniman contends that the international Courts would have exclusive jurisdiction to commit the international responsibility of France.
This is not the problem in the case at stake, and the plaintiffs have presently no such intention. But, independently of the unoperative nature of the argument relating to the jurisdiction of the Permanent Court of International Justice, long ago disappeared, one will only observe that invoking this responsibility is dependent, before any suit in responsibility can be started, on whether "every possibility to correct the behaviour which was initially not conform to the result sought" was tried (N'Guyen Quoc Dinh, Daillier, Pellet, n° 501).
It is only after "the internal recourses have been exhausted" that the State becomes liable for international sanctions (Dubuis).
If the observations [of Mr. Saniman] were upheld, it would paradoxically result in the recourse being entertainable.
4. In reality, the essential part of the arguments of Mr. Saniman is the contention that "treaties do not normally form a part of the internal legal order of the States, save to extent that they decide otherwise" (pleadings page 14 paragraph 4).
In other words, for Mr. Saniman, the refusal to extradite would not be capable of a recourse because the rule applied and possibly breached would be only an international rule.
This strange contention still deserves to be examined.
a)
It could seem challengeable even before the Fifth Republic (see below the quotation by Heumann, EDCE 1953) but it has become fully irrelevant since the constitution of 1957, whose article 55 inserts necessarily treaties within the French legal order by giving them an authority superior to that of the statutes, which was acknowledged in the decisions Société des Cafés Jacques Vabre (Cass. Ch. Mixte 24th May 1975) and Nicolo (Conseil D'Etat 3rd October 1989). It is quite interesting to see that this part of the pleadings of Mr. Saniman refer to ancient legal authors in international public law.
· 4 ·