Challenging Extradition: The Doctrine of Specialty in Customary International Law

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The doctrine of specialty, a fundamental feature of extradition law, provides that a state may only prosecute an extradited individual for the offenses agreed to by the sending state. The doctrine, which protects a state’s sovereign right to limit its surrender of an individual, is widely codified in bilateral extradition treaties. Absent a treaty, when extraditions take place on the basis of comity or executive agreement, U.S. and foreign courts differ on whether specialty applies as a matter of customary international law. Moreover, multilateral treaties containing an obligation to extradite do not include specialty provisions, raising the question of whether states would be bound to respect the doctrine when extraditing pursuant to such treaties.

This Note examines jurisprudence in the United States, foreign courts, and international tribunals, and demonstrates that specialty is not applied consistently as a norm of customary international law. To the contrary, while national courts have relied on national legislation or read specialty into a bilateral treaty which was silent on the matter, few courts have main- tained that the doctrine applies in the absence of a treaty, and those that have did not conduct a tradi- tional customary international law analysis. Although this conclusion comports with the historically contrac- tual nature of extradition, recent jurisprudence also shows an increased willingness to decline jurisdiction over individuals obtained illegally. This Note concludes that a customary norm of specialty would become a necessary corollary should an obligation either to refuse jurisdiction in certain circumstances, or to prosecute or extradite, emerge in customary international law.