TNAG-0410-FCO40-456-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 140

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EXTRADITION IN INTERNATIONAL LAW

conscience of a State is also not embarrassed by an obligation to extradite a person who would not, according to its own standards, be guilty of acts deserving punishment. So far as the reciprocity principle is concerned, the rule ensures that a State is not required to extradite categories of offenders for which it, in return, would never have occasion to make demand. The point is by no means an academic one even in these days of growing uniformity of standards; in Western Europe alone sharp variations are found among the criminal laws relating to such matters as abortion, adultery, euthanasia, homosexual behaviour, and suicide.

In 'no list' treaties the incorporation of the double criminality rule is normally express, since it is one of the two most vital qualifications of an extraditable offence. The rule seems so universally established by practice, however, that it could without much doubt be regarded as a customary rule of international law, should the question ever arise as a result of some chance omission in the wording of a treaty.1 Although the rule often appears expressis verbis in the treaties employing the enumerative method, its use is superfluous, not only because it has a sure basis in custom but also because it is implicit in the precise specification of offences. In the case of those treaties which require the establish- ment of a prima facie case of guilt according to the laws of the requested State, a further indirect importation of the rule is to be seen. A recent innovation in some treaties is that the offence for which extradition may be demanded must be extraditable by the laws of both parties.2 The notion of 'double extraditability' necessarily subsumes the principle of double criminality.

Whether under the title of 'double extraditability' or of double criminality, an unfortunate interpretation can be placed on the formulation which would refer the question of characterization to the laws of both requesting and requested States. Does the wording of articles such as article 2 of the European Convention, set out above, direct a court in the requested State to enquire whether the clements of the offence are established not only according to the lex fori but also according to the lex loci delicti? Or is the essential purpose of the double criminality rule better served by a provision which would require reference only to the

1It was not accepted, however, by the United States Supreme Court in Factor v. Laubenheimer, 290 U.S. 276 (1933). See further infra, p. 144.

'E.g. Great Britain-Israel, 1960, 377 U.N.T.S. 331.