Buttes non-justiciability
Posted: Sun Apr 06, 2025 9:04 am
Dr. O’Keefe is, however, critical towards applying this argument to Khurts Bat: he found it “unclear how it could be said to be [a breach of the duty of non-assistance], in fulfilment of an international obligation to extradite or the equivalent, to surrender a defendant to the requesting State in circumstances where the requesting prosecuting authority no more than asserts that the defendant is not entitled to procedural immunity before the requesting State’s courts, the latter being a question for eventual determination by those courts.” (82 BYIL, p. 625); he found “also unclear by what domestic legal route it would be open to an English court to decline to exercise a statutory jurisdiction for fear of placing the UK in breach of its international obligations” (ibid.); finally, as phone number library developed in his Oxford talk, he considered that, unless denial of immunity by Germany were a “flagrant breach of international law” in accordance with Kuwait Airways Corporation v.
Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883, “” and act of State doctrines would most likely not have allowed English courts to inquire into whether prosecution of Mr. Khurts Bat by German courts would be contrary to international law (ibid.). The first difficulty concerns international law; the other two are strictly problems of domestic law.
There might, indeed, be practical difficulties in applying Article 16 ARSIWA in extradition cases. One of these difficulties is for States seized of an extradition request against a foreign official to establish, in view of the often unknown functioning of another State’s domestic law, whether the foreign official will ultimately be denied immunity. To the extent only international law is concerned, however, the answer to this question is a matter of fact. If facts are such that they render the duty of non-assistance altogether unworkable, the result would be that the question of immunity ratione materiae should not feature at all in extradition cases.
Iraqi Airways Co [2002] UKHL 19, [2002] 2 AC 883, “” and act of State doctrines would most likely not have allowed English courts to inquire into whether prosecution of Mr. Khurts Bat by German courts would be contrary to international law (ibid.). The first difficulty concerns international law; the other two are strictly problems of domestic law.
There might, indeed, be practical difficulties in applying Article 16 ARSIWA in extradition cases. One of these difficulties is for States seized of an extradition request against a foreign official to establish, in view of the often unknown functioning of another State’s domestic law, whether the foreign official will ultimately be denied immunity. To the extent only international law is concerned, however, the answer to this question is a matter of fact. If facts are such that they render the duty of non-assistance altogether unworkable, the result would be that the question of immunity ratione materiae should not feature at all in extradition cases.