CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … that Indonesia’s Minister of Internal Security issues an order extending application of the Extradition Act to the requesting party), New Zealand (Section 16 of the Extradition Act 96 ; it is, however, required that application of Part 3 of the Extradition Act is extended to the requesting party by an Order in Council issued by New Zealand’s Governor-General), Portugal (Article 4 of the Act on International Judicial Co-operation in Criminal Matters 97 ), South Africa 98 (Section 3(2) of the Extradition Act 99 ) and the UK (while Part 2 of the Extradition Act 100 applies only to “category 2 territories”, i.e. states or territories with which the UK has extradition “arrangements” (treaties), the UK’s Home Secretary may decide to enter into “special extradition arrangement” with the requesting party under Section 194 of the Extradition Act). Extradition without treaty is not possible under domestic laws of India (Section 3(4) of the Extradition Act 101 makes extradition with states that have no bilateral extradition treaty with India possible only if there is a multilateral convention), the Netherlands (Article 2 of the Extradition Act 102 ), the Philippines (Section 4(1) of the Presidential Decree No. 1069 103 ), Singapore (Section 4(1) of the Extradition Act 104 ), Sri Lanka (Section 3 of the Extradition Act 105 ) and the USA 106 (18 U.S.C. § 3184 107 ). However, as explained above, extradition (and extradition proceedings) in some of these states is possible on the basis of multilateral conventions. C. Custody Pending Extradition Arrest and custody of the person sought pending decision on extradition is entirely independent of the existence of treaty basis for the extradition. Indeed, persons sought are often arrested before request for their extradition is received and, therefore, it is unknown whether and, if so, on what treaty the requesting party will base its request. Such arrest may follow obtaining information from INTERPOL notices (typically, Red Notice or Blue Notice) or INTERPOL “diffusions” (less formal alert mechanism) 108 or from direct police- 96 http://www.legislation.govt.nz/act/public/1999/0055/latest/whole.html. 97 Portuguesetextisavailableonlineathttps://dre.pt/web/guest/legislacao-consolidada/-/lc/73177396/200910120100/ exportPdf/normal/1/cacheLevelPage?_LegislacaoConsolidada_WAR_drefrontofficeportlet_rp=indice. 98 See also A. Katz and E. Cohen, Legal extradition could still take place even if South Africa suspended its treaty with Hong Kong (Daily Maverick), available online at https://www.dailymaverick.co.za/article/2020-07-21-legal- extradition-could-still-take-place-even-if-south-africa-suspended-its-treaty-with-hong-kong/. 99 https://www.gov.za/sites/default/files/gcis_document/201505/act-67-1962.pdf. 100 https://www.legislation.gov.uk/ukpga/2003/41/contents. 101 https://www.indiacode.nic.in/bitstream/123456789/1440/1/196234.pdf. 102 Dutch text is available online at https://wetten.overheid.nl/BWBR0002559/2020-01-01. 103 English translation is available online at http://www.oecd.org/site/adboecdanti-corruptioninitiative/39368242. pdf. 104 https://sso.agc.gov.sg/Act/EA1968. 105 https://www.refworld.org/docid/3ae6b5048.html. 106 According to the website of the United States Department of Justice (https://www.justice.gov/jm/jm-9-15000- international-extradition-and-related-matters), extradition is in fact possible without treaty basis in case of “persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries.” 107 https://uscode.house.gov/view.xhtml?path=/prelim@title18/part2/chapter209&edition=prelim. 108 For more information about various types of INTERPOL notices and diffusion, see the INTERPOL website (https://www.interpol.int/How-we-work/Notices/About-Notices). INTERPOL, in accordance with Article 3 of its Constitution, will not publish a notice or process a diffusion if it concerns activities of a political, military, religious or racial character ( Repository of Practice: Application of Article 3 of INTERPOL’s Constitution in the

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