The Analysis of The 1969 Vienna Convention - Essay Example

Public International Law, Problem Question No: Public International Law, Problem Question Questions:   Q.1: Is the 1969 Vienna Convention on the Law of Treaties applicable to the present case? Answer: Before commenting on 1969 Vienna Convention on the law of treaties for the case presented under reference, let us look at the Vienna convention 1969 and its scope first, before analysing its applicability on the members’ states. The Vienna convention on the law of treaty was in fact an international law on treaties between member states1. The Convention became fructuous with effective from 27th January 1980. The Convention in question had been ratified by 111 countries of the world in the year 2010. Some countries have not ratified it on account of some reservations2. The scope of the Convention is restricted. It applies only on those countries that are signatories under the Vienna convention. However, treaties under Vienna convention has nothing to do with the agreements executed between the states and the international organizations and vice versa. Further, under the said convention, unwritten agreements are not enforceable 3. In total, there are one hundred and eleven states which had signed and ratified the convention whereas 15 states though signed the convention but did not ratify it. Among those countries are Afghanistan, Bolivia, Cambodia, Ghana, El Salvador, Iran, Ivory Coast, Kenya, Madagascar, Nepal, Pakistan, Trinidad, Tobago, United States, and Zambia 4. According to Law on Treaty in Vienna Convention, no responding State can extradite a person to the requesting state for trial and punishable under the law for a period of one year or above besides more severe penalty if they are not executants of the treaties under the Vienna Convention. Moreover, no extradite agreements are in place between the requesting and the responding country5. Q.2: Taking the reservation appended by State B into account, how does the 1994 extradition treaty operate in the relations between  States B and A   States B and C   States B and D   States C and D? Under the extradition treaty of 1994 which, allows responding country to refuse extradition of a person if that offense culminates to death in the requesting country provided the requesting state assures to the responding country that the man or woman required for trial will not be executed. Further, the treaty has a standard procedure to deal with such issues e.g. the language of documents, procedure under which the documents are to be submitted to the requested country, how an individual can be handed over to the requested country and other relevant issues6. According to the definition of Article 2 of mentioned treaty “an offense is extraditable if it is punishable under the laws of both countries by a prison term of at least one year. Attempts and conspiracies to commit such offenses, and participation in the commission of such offenses, are also extraditable. If the extradition request involves a fugitive, it shall be granted only if the remaining sentence to be served is more than six months”7. The dual criminality clause means, a person who commits crime in the United States of America does not fall under the ambit of extradition treaty because a) the punishment of committed crimes in the mentioned state is imprisonment of more than one year b) it is not a crime in the member country c) crime punishable by a prison term of less than one year. Before introduction of these parameters for extradition, there was a list of classified crimes that falls under the definition of extraditable offenses8. This classification had created problems for extradition especially when a crime did not fall in the list. For example drug dealing offense, was not on that list, hence not extraditable. In the absence of any item mentioned in list under reference, both member states had no option but to rely upon the law of the land of their own country. Keeping in mind the problems in extraditing a person creates dual criminality clause to broaden the definition of extraditable offenses9. The United States and the other major countries of the world have divergent views on Capital punishment. Under the extradition treaties, the Requested State may have the right to refuse extradition of person whose offense is a) punishable by the death penalty in the Requesting State b) the same offense is not punishable in the Requested State c) unless the Requesting State gives assurances that the death penalty will not be executed10. Under the mentioned scenario, we have examined the case of state A, B, C and D and observed as under: a) State ‘A’ has no reservation on the clauses of extradition treaty 1994 in general and specially on the clauses which deals with the issue to extradite a person requested by the authorities in the requesting state for trial and punishment for the offences punishable under the laws of both requesting and the requested states by deprivation of liberty for a period of one year or more or in shape of more severe penalty11. b) The 1994 treaty does not contain a prohibition on reservations, therefore, State ‘C’ objected to this reservation, 3 months after its notification, claiming that it is incompatible with the object and the purpose of the 1994 treaty, opposing the entry into force of the treaty between itself and State ‘B’ unless the reservation is withdrawn.12 State ‘D’ issued an objection 15 months from its notification which merely criticizes the reservation. Since the reservations of States B, C and D placed their reservations on record after a lapse of 3 and 15 months respectively, hence lost it validity for those who devised the mentioned treaty. 13. c) State ‘B’ did not withdraw its reservation, hence rejected a request of extradition from State ‘D’ on the plea that Armed Forces which assumed power in State ‘D’ would not provide a fair trial and ultimately the suspect would have to face the worst form of torture. 14. d) State ‘D’ blames State ‘B’’s significant breach of 1994 extradition treaty, forced ‘D’ to disassociate its participation to the treaty though it does not find any specific provision on the withdrawal of treaty. State ‘D’ further argued that the conclusion of 1994 treaty linked with the dire consequences of economic and military sanctions from the United Nations Security Council, therefore binding consent is invalid15. Q.3: On what legal grounds can State D terminate its participation to the 1994 extradition treaty? Answer: According to the case, State D only issued a notification criticizing State’s B move to include a reservation which is notably provided by the Vienna Convention on the Law of Treatise under Section 2, Article 19. This was not enough to prompt withdrawal of the State from the 1994 extradition treaty. However, a State may seek to withdraw if it invokes any of the provisions highlighted under Section 3, Article 54 of the Vienna Convention on the Law of Treatise16. This Article provides the legal basis for a party to a treaty to withdraw. It cites that a party to a treaty may withdraw if it conforms to the provisions on withdrawal as highlighted in the treaty. In this case, the 1994 treaty to extradition did not provide for withdrawal. In such a case, the Convention provides that State D may withdraw. According to this provision, State D would have to seek the consent of States A, C, and B in order to withdraw and seize being party to the 1994 treaty extradition treaty. A treat can be terminated can be terminated if there is a material breach or coercion. There are some compulsions that each party has to adhere to. When one party breaches the compulsions imposed then other parties have the right to breach the compulsions as well. In such cases, a material breach is there. In case, a treaty is breached in terms of compulsions, the other party or parties can go to the international tribunal for decision making instead of terminating the treaty as a treaty is not terminated in such manner. Both parties breach the compulsions as a result to breach by one party. There are some treaties that are usually held for a restricted time or are dependent on certain conditions. This kinds of treaties get terminated themselves at their set times or when the required conditions are not fulfilled. Hence, termination of treaties depends on many factors17. The law enforcing agencies considered international extradition process as complicated, expensive and time consuming. They face criticism to bring fugitives to justice. As a result, the United States of America have turned to abduct a fugitive to be tried though its legality questionable. Take the case of General Noriega of Panama who brought to the United States to face drug trafficking charges. The then President justified the above action of American agencies18. In the case of United States v. Noriega, the court rejected the contention that Noriega could be tried in the United States on the grounds that UN recognized head of state lacked the legal right to challenge the invasion of American Intelligence Forces as violation of international law in the absence of legitimate government of Panama19. In the case of United States v. Alvarez, the Supreme Court held that Alvarez abduction did not prohibit his criminal trial in the United States. Alvarez, a Mexican by origin and a physician by profession, accused of kidnapping, torturing and murder of U.S. Drug Enforcement Administration agent20. Alvarez was later on kidnapped and flown to Texas. The Mexican government objected to the abduction and treated it violation of extradition treaty between the United States and the Mexico. The Mexican government requested for extradition of law enforcement agents to Mexico, responsible for abduction which United States of America refused to comply with21. The American Court of Appeals is of the opinion that abduction amounts to disrespect the agreement executed between the states. On an appeal against impugned order of the lower judiciary, the Supreme Court held that the treaty provisions did not address the issue of abduction22. The Justice further observed that the treaty was "not the only way in which one country may gain custody of a national of the other country for the purposes of prosecution." Therefore, the abduction did not prevent the court to try Alvarez in a U.S. court on criminal charges. The dissenting view of brother judges is that Alvarez abduction was a gross violation of international law and disrespects the boundaries of the member states23. In case no extradition treaty exists between the two countries or two states, then a country has two options either to surrender the fugitive to the requested country or to grant him asylum in their own country. However, countries like France, Germany, Japan and China refused to hand over their nationals to a requesting country to face trial and subsequent punishment24. Majority countries, who do not believe in granting capital punishment, are not in favor of handing over the suspect individual to the United States of America if there is a possibility that the requested country will award death sentence to the deportee25. In the case of Einhorn, who took refuge in France, whose extradition request by the USA was turned down by the French Court of Appeal keeping in mind the threat of his execution in the United States of America. To overcome this problem, the United States of America assured France that the man under reference will not seek death penalty. The French court later on found itself incompetent to pass a judgment on the issue a) whether a foreign law was constitutional under foreign constitution and b) whether the Einhorn to be extradited to the USA26. The State ‘D’ due to significant changes / breach of 1994 extradition treaty, decides to disassociate its participation to the treaty though it does not find any specific provision in the mentioned treaty with regard to withdrawal of its participation to the treaty27. State ‘D’ further argued that the conclusion of the 1994 treaty linked with the dire consequences of economic and military sanctions from the United Nations Security Council on the countries who do not comply with the provisions of said treaty. Therefore, countries of small weight age have no other option but to comply with the whims and fancies of the super powers which we had witnessed in the past with the citizens of Panama and Mexico. Under the mentioned scenario the binding consent proved ineffective as far as the weaken countries are concerned28. Bibliography AMERASINGHE, C. F. (2005). Principles of the institutional law of international organizations. Cambridge [u.a.], Cambridge Univ. Press. AUST, A. (2010). Handbook of international law. Cambridge [etc.], Cambridge University Press. BANKAS, E. K. (2005). The state immunity controversy in international law private suits against sovereign states in domestic courts. Berlin, Springer. BEDJAOUI, M. (1991). 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