LEGAL NATURE OF EXTRADITION:

This BBC report on the case highlights one of the most controversial issues concerning extradition: should sympathy considerations play a role in making a decision to extradite or not? This question can be considered within a broader problem of legal nature of the obligation to extradite, or in other words, the legal basis for extradition in international law.

Extradition represents a complex legal relationship which involves at least two countries and at least one suspect or a convicted person. In this relationship, one state asks another state to deliver the person involved and who is within the jurisdiction of the second state, to the competent authorities of the first state. The first state, which asks for extradition, is called in international law a requesting state, and the second state is called a requesting state. There are many bilateral agreements on extradition the content of which varies significantly. It appears that international law on extradition is purely contractual in nature, and unless there is a treaty between the states there is no any legal obligation to extradite. There is also national legislation which regulates the process of extradition. In Thailand, there is the Act of Extradition passed in 2472 of Buddhist era (1929)(7). This legislation is generally subject to the international agreements on extradition.

Legal capacity to enter into contractual obligations in international law depends on the idea of sovereignty. According to this idea, a state has all powers and authority to prosecute and to bring to justice any person situated in its territory and accused of crime. There are, of course, important constraints on the state according to international human rights law. However, as long as the requirements of due process and procedural fairness are observed, the states have full power and authority in prosecuting suspected criminals. The idea of sovereignty also presupposes that no any other state can exercise its power and authority within the territory of another sovereign state, unless there is consent given by another state. In history, there are, nevertheless, examples when one state using its intelligence secret services would kidnap a suspect residing in another state and bring that person to face prosecution in its own borders. This is done, particularly, in political crime proceedings, because many states are unwilling to extradite persons accused in political crimes.

Part  4

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(7) See the text at: http://www.kodmhai.com/m4/m4-19/h15/M1-17.html