Double criminality in international extradition law

[摘要] ENGLISH ABSTRACT:The object of the thesis is to examine the content and status of the double criminality principlein international extradition law. The double criminality principle says a fugitive c annat beextradited unless the conduct for which his extradition is sought is criminal in both therequesting state and the requested state. This thesis is based on a study of sources ofinternational law and domestic law and ideas presented in legal literature.The double criminality principle has developed over several centuries and it has beenembraced by most states in one form or the other. The principle serves several purposes, ofwhich the most dominant is the notion of state sovereignty. States apply the doublecriminality principle differently due to its multiple rationale. Legal literature has distinguishedtwo main methods of interpretation, called interpretation in abstracto and in concreto.Whereas the in abstracto method focuses on the theoretical punishability of the conduct, thein concreto method attaches importance to all factual, personal and legal aspects. There arealso ways of interpretation that are a combination of these two methods. Most states can beclassified into one of the two main groups of interpretation, but in general most states haveadopted a specific method of interpretation that is unique to each particular state. There is thusno uniform method of interpretation in international extradition law.This thesis attempts to determine whether the double criminality principle has become a ruleof customary international law. Though most instruments on international or domesticextradition law include the double criminality principle, the strong disagreement among legalscholars as to the legal status of the principle leads to the conclusion that the doublecriminality principle is not a rule of international law today.This thesis contains an examination of whether the principle of double criminality can beclassified as an international human rights norm. Though the principle of double criminalityhas striking similarities with human rights as it partly aims at protecting individuals facingextradition, there are also a number of aspects that distinguish the principle from traditionalhuman rights. This is partly attributable to the fact that international extradition law is not thearena where general international human rights have developed. It is therefore concluded thatthe double criminality principle does not form part of international human rights law.

[发布机构] Stellenbosch University