The Litvinenko Extradition Spat: How Much Protection Does Citizenship Buy?

by Peter Spiro

Britain’s upping the ante with the expulsion of four Russian diplomats (more details here and here) had me wondering whether Russia’s refusal to extradite alleged poison plotter Alexander Lugovoi comprises a violation of international law.

It looks to me like Russia is pretty clearly within its formal IL rights here. There’s no bilateral extradition treaty in force between the two countries. Both countries are party to the 1957 European Convention on Extradition. Article 6 of the convention provides that parties “shall have the right to refuse extradition of its nationals.” When the “requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate.” Apparently pursuant to this provision, Russia has offered to try Lugovoi in Russia.

There’s also a longstanding practice of countries not extraditing their own nationals. But perhaps the affair evidences slippage in that tradition, which has long been lamented (those of you who have access to Hein OnLine — which has now put many of the old IL classics in a searchable pdf database — can find one critique in chapter V of this 1891 treatise on extradition by John Bassett Moore). A more recent EU extradition pact switches the default rule to eliminate the citizen exception, except where parties enter an appropriate reservation (which reservation must be renewed every five years). My sense is that fewer bilateral extradition pacts allow parties to refuse the extradition of nationals. The Litvinenko episode aside, this may be another context in which citizenship used to mean more than it does now.

UPDATE: Jacob Cogan has this on the subject over at his extremely useful International Law Reporter blog. His take: there has been some trending away from the non-extradition of nationals, but not dramatically enough for anyone (including the US) to assert a rule disallowing it.

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