In view of the existence of a conventional obligation to extradite, as Dr. O’Keefe seemed to suggest, extradition could certainly not be resisted on this ground. On the other hand, if there were a competing international obligation not to extradite because of Article 16 ARSIWA, no doubt the answer would be far less obvious. Does it, in itself, vitiate the application of this provision? I guess not. The problem would be similar to resisting extradition under a European Arrest Warrant on grounds of competing international human rights law obligations.
The list of specific grounds for non-execution provided by the of June 2002 does not expressly include broader grounds derived from human rights. Yet, UK courts, under the Extradition Act 2003, have phone number library on some occasions considered the compatibility with the European Convention of Human Rights of extradition to certain States (for a comment on two recent cases before UK courts, see here).
My final reaction concerns the relationship between international law and domestic law, notably English law: at the end of the day, if English courts cannot give effect to an international obligation, either to extradite or to withhold extradition, or decide to consider the issue of immunity ratione materiae as a merits defence of an extradition request, even if they are not strictly required to do so, it does not mean that what they do is or should be international law. If the International Law Commission is going to have a look at the problems here discussed, and I think it should, I suppose it will have to be mindful of this relationship.
