TNAG-2955-FCO40-4232-Extradition-cases-from-the-UK-and-France-to-Hong-Kong-Lorrai-1993 — Page 159

04-09-192T 12:29

BRITISH EMBASSY PARIIS

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b)

So, probably to conceal this weakness. Mr. Saniman pleads for a dismembering of the extradition treaties, some articles of which could, because they would be deemed to be within the internal legal order, be applied by the French Court, whilst others, lost in some "international ether". would escape the reach of the judge of the breach of the law -the treatment of the numerous provisions relating both to the international obligations of the State and the application of the treaty to the requested person being unsolved.

This is not the substantive law. For a long time the administrative judge has not suffered from this capitis diminutio (reduction of authority) if he ever accepted it:

"Once introduced within the internal order, the treaty, like the Constitution, the statutes, the regulations, the contractual or unilateral acts, is a part of the legal system which the judge has a natural duty to enforce. This is why the principle of the application of the treaties by the internal judges is universally recognised and complied with" (N'Guyen Quoc Dinh, Patrick Daillier, Alain Pellet, International Public Law, LGDJ, 4th edition 1992 n° 154). There is no trace of a distinction between the internal legal order and the international legal order. Neither the Constitution nor the Conseil d'Etat nor the legal authors make such a distinction.

The question consisting whether the treaty produces or not direct effects on the individual is irrelevant in substantive law: the Conseil d'Etat does not consider it.

"If the public works in question were fixed onto the continental plateau as defined in the Convention of 29th April 1958 published by the decree of 29th November 1965: it clearly appears from the provisions of this treaty that the onshore States have on the soil of such plateau only rights of exploration and exploitation:

It thus belongs to the Conseil d'Etat, by application of article 2-5 of the decree of 30th September 1953, to examine the request" (Conseil d'Etat 4th December 1970, Starr, RGDIP 1970 page 1144).

And the legal authors say "the rule is therefore the applicability of any treaty even if it does not produce direct effects on the individuals". "The ground arising from the breach of a treaty is always entertainable" (L. Dubouy, the French Administrative Judge and the Rules of the International Law, Annuaire Français de Droit International 1971, page 21).

It is therefore logical that "the Courts whether administrative or judicial should treat the ground arising from the breach of a treaty strictly in the same manner as a breach of the law" (N'Guyen Quoc Dinh, Daillier, Pellet, n® 154).

Thus, there is no obstacle to the internal courts deciding on the application of international treaties, and this is simply obvious.

The Conseil d'Etat clearly stated the rule on many occasions, and in particular on the occasion of an extradition case by saying that the plaintiff "could validiy raise against the challenged decree, the breach of an international treaty which has the force of law..." (Conseil d'Etat, 30th May 1952, Dame Kirkwood, RDP 52 page 795). The fact that there exists such a judicial control made it possible to write: "it is normal that the efforts of the nations aiming at instituting a supra national jurisdictional control to ensure the enforcement of international law should start with each of them ensuring on its territory the due compliance with the rules which it fully agreed to apply" (Heumann, the Jurisdictional control of the Conseil d'Etat on the application of diplomatic treaties ECDE 1953 page 72) which today leads the legal authors specialising in public law to teach that the French judges are "perfectly at ease to fulfil their international duties, which have for them the same force and must be carried out in the same manner as their obligation to give effect to internal law" (N'Guyen Quoc Dinh, Daillier, Pellet n°154).

The nature of the rule which was breached is not sufficient for the decision to escape the jurisdiction of the judge of the breach of the law.

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