A Study Of The Performance Of Obligation To Extradite Or Prosecute Under Multilateral Treaties

The purpose of this thesis is analyzing the dispute over the performance of the obligation to "extradition or prosecution" in the case of "Belgium v.Senegal".Based on the investigation of the origin of the dispute,via precisely defining the source of the obligation to "extradition or prosecution" to clarify China's performance requirement,this thesis explores the feasibility and obstacles of alternative performance measures of " extradition or prosecution" obligation,seeking to answer the question of "how to properly perform the extradition or prosecution obligation".The focus of dispute in the case of "Belgium v.Senegal" in 2012 is whether Senegal's action against the former Chad President Habré had satisfied the performing requirements of the obligation to "extradite" or "prosecute" in the Convention against Torture and whether Senegal's domestic legislation amendment provided adequate guarantees for the performance of obligations.The dispute shows that the source of the obligation of "extradition or prosecution" remains controversial—the obligation to "extradition or prosecution" is basically a treaty obligation,however this obligation is often related to the protection of the international social security order and fundamental human rights,therefore,it may also have non-treaty obligations sources such as customary international law,international jus cogens,and the principle of universal jurisdiction.The source of the obligation to "extradition or prosecution" determines the basis for performance of the obligation,which in turn affects the performance requirements of the obligation in practice,so it's supposed to be clear.Explaining the performance requirements of the obligation of "extradition or prosecution" firstly needs a proper interpretation method of treaties,a correct understanding the compliance requirements of a multilateral treaty which contains "extradition or prosecution" clauses,and classification of the treaties according to specific criteria is an important link of it.China's performance of the obligation to "extradition or prosecution" in multilateral treaties should be determined in accordance with China's current extradition system.It is clear that the domestic application of multilateral treaties is the premise of performing "extradition" and "prosecution",and performing the "extradition" obligation requires adjusting China's current extradition review system,taking temporary measures in time,and reviewing the statue of the extradition principle.The "prosecution" obligation requires that the suspects must be promptly transferred to judicial organs and that the issue of criminal immunity of foreign officials have to be dealt in advance.There is a mutual transformation relationship between "extradition" and "prosecution",and the trigger condition is the other one cannot achieve substantially.When "extradition" and "prosecution" cannot be achieved,surrendering the suspect to the International Criminal Court or establishing ad hoc international criminal tribunal to prosecute the suspect are possible alternative performance measures.Since the two methods are not expressly provided in the multilateral treaty,it is necessary to assess the feasibility and necessity of the application in individual cases.The obstacle of surrendering the suspects to the International Criminal Court is that the overly broad jurisdiction remains controversial,and the ad hoc international criminal tribunal needs to carefully handle the issues of the court's legality and conflict of jurisdiction.Except for the two methods mentioned above,some other measures which fulfills the value of combating impunity-such as establishing a unified regional arrest warrant system,which can achieve the obligation of "extradition or prosecution"-may also be one of the alternative measures of performing.With the in-depth advancement of the "Belt and Road",strengthening international criminal judicial assistance and regulating international crimes such as terrorism have become a necessary action to safeguard China's national security.At the same time,China's anti-corruption pursuit can also use the obligation to "extradition or prosecution" contained in United Nations Convention against Corruption to strengthen the binding force on the suspect,but it's also necessary to stay alert to international judicial interference in the name of performance in the process of fulfilling the obligation at the same time.Combining China 's position to clarify the source of the obligation to "extradition or prosecution",clarify the performance requirements of the obligation to "extradition or prosecution",and actively explore alternative implementation methods of "extradition or prosecution",will help China maintain its international governance in peace,stability and order in international society.