Extradition and the death penalty : Reconsidering the margin of appreciation under Article 2 of the European Convention on Human Rights

Jia, Yuanchi and Sweeney, James and Wheatley, Steven (2020) Extradition and the death penalty : Reconsidering the margin of appreciation under Article 2 of the European Convention on Human Rights. PhD thesis, Lancaster University.

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Abstract

In today’s globalised world with much easier and more ubiquitous cross-border movement, physical state borders are becoming more ‘invisible’. States confront increasing threats, which are no longer delimited by borders. While states’ enforcement jurisdiction is essentially territorial, in order to combat transnational crime and eliminate security threats, they have to expand their national interests across borders by resorting to international judicial cooperation. Extradition is a formal legal process by which states could bring the accused or convicted criminals who have fled abroad back to justice. Nevertheless, extradition is subjected to a range of impediments among which the death penalty has been a controversial one that seems not to be reconciled. This thesis argues that by absolutely prohibiting to extradite people to face the death penalty, the European Court of Human Rights is actually exporting a non-universal abolitionist value. However, the legal basis for this standard is not tenable, nor the current approach of seeking assurances. In fact, the standard is even not fully shared by its own States Parties. This thesis offers a critical correction and reaffirmation on the lawfulness of the death penalty in international law and proposes a different relationship between extradition and the death penalty within the European Convention on Human Rights. This means, its Contracting Parties should be conferred a margin of appreciation under Article 2 to respond to the death penalty—extradition dilemma, where at present it does not seem to apply. If the margin of appreciation is allowed, extradition would be permitted to retentionist states in cases where the death penalty is ‘lawfully carried out’ and the test of proportionality is met. The underlying cause of the suggested approach is that there needs to be greater international cooperation against transnational criminality. In certain cases, the repression of transnational crime on behalf of many outweighs the rights of the one person to be extradited.