Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Treatment of Aliens under Public International Law

The treatment of aliens under Public International Law is governed by principles aimed at balancing the sovereignty of states with the need to ensure fair and equitable treatment for foreign nationals (aliens). These principles regulate the entry, stay, and rights of aliens within a state's territory while ensuring that states retain the right to control their borders and the conduct of non-citizens within their jurisdiction. Below is a meticulous outline of the key legal doctrines, customary international law principles, and relevant treaties and jurisprudence governing the treatment of aliens.

1. Sovereignty and Control Over Aliens

States possess the inherent right to control their borders and regulate the entry and stay of foreigners. This right includes:

• Admission: States are generally free to determine who may enter their territory, subject to international obligations (e.g., non-refoulement under refugee law).
• Expulsion: States may deport or expel aliens but must adhere to international legal standards.
• Jurisdiction: Aliens are subject to the territorial and personal jurisdiction of the host state.

2. Standard of Treatment

The treatment of aliens is governed by two key standards under international law:

1. National Treatment Standard: Aliens must be treated at least as favorably as nationals in similar circumstances.
2. International Minimum Standard (IMS): Regardless of how a state treats its own citizens, it must treat aliens in accordance with a minimum standard of fairness, decency, and justice recognized by international law.

a. National Treatment Standard

• This principle obligates states to ensure that aliens are not treated less favorably than their own citizens in certain areas, including property rights, access to justice, and commercial activity.
• However, national treatment is not absolute, and states may distinguish between citizens and aliens in areas such as political rights (e.g., voting and holding office) or military service.

b. International Minimum Standard (IMS)

• Customary Law: The IMS is a customary rule that requires states to provide basic protections for aliens, regardless of their domestic laws or policies.
• Core Elements of IMS:
  • Denial of Justice: The IMS prohibits the denial of access to courts or the administration of justice in a manner that violates fundamental principles of due process.
  • Arbitrary Detention: Aliens must not be arbitrarily detained or imprisoned without due process.
  • Protection from Abuse: States must protect aliens from harm, including physical violence, discriminatory treatment, and torture.

3. Protection of Aliens’ Rights

International law recognizes that aliens possess certain fundamental rights which must be respected by the host state. These rights include:

a. Right to Life, Liberty, and Security

• Universal Declaration of Human Rights (UDHR): Aliens, like all individuals, are entitled to life, liberty, and security of person.
• International Covenant on Civil and Political Rights (ICCPR): This treaty ensures that aliens have the right to life and freedom from arbitrary detention, among other rights.

b. Right to Due Process

• Aliens are entitled to due process under both national and international law. This includes the right to be informed of charges, the right to a fair trial, and protection from arbitrary arrest or deportation.
• Non-Refoulement Principle: Under international refugee law (as codified in the 1951 Refugee Convention and its 1967 Protocol), a state is prohibited from returning an alien to a country where they may face persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

c. Right to Property

• International law protects the right of aliens to own property in the host state, subject to local laws. States must not expropriate an alien's property without providing prompt, adequate, and effective compensation (as per the customary rule on expropriation and international investment agreements).
• Bilateral Investment Treaties (BITs): Many BITs contain provisions that protect foreign investors and their property from arbitrary seizure by the host state.

d. Right to Compensation for Expropriation

• States may expropriate the property of aliens for public purposes, but this must be done in accordance with international law. The key principles are:
  • Public Purpose: Expropriation must be for a legitimate public interest.
  • Non-discrimination: The expropriation must not target aliens on the basis of their nationality.
  • Adequate Compensation: States are obligated to provide full, prompt, and effective compensation, often referred to as the "Hull formula."

4. Customary International Law Protections

The customary international law principles governing the treatment of aliens include:

• Protection of Aliens Abroad: States are responsible for ensuring that their citizens (aliens in another state) are treated fairly, and may invoke diplomatic protection if their rights are violated.
• Diplomatic Protection: A state may intervene on behalf of its nationals when they suffer an injury that constitutes a breach of international law by another state. However, certain conditions apply, such as the exhaustion of local remedies by the alien.
• Right to Access to Justice: Aliens have the right to fair and accessible legal processes, including access to courts and protection against bias or discriminatory judicial procedures.

5. Expulsion and Deportation of Aliens

While states have the sovereign right to expel aliens, certain international obligations limit this power. Expulsion must be carried out in accordance with due process and the protection of basic human rights:

• Non-Arbitrary Expulsion: States must ensure that expulsion is not carried out arbitrarily or in bad faith.
• Right to Appeal: Aliens often have the right to challenge their expulsion through administrative or judicial review.
• Collective Expulsion Prohibition: The practice of collectively expelling a group of aliens without consideration of their individual cases is prohibited under international law (e.g., Article 4 of Protocol No. 4 to the European Convention on Human Rights).

6. International Treaties Protecting Aliens

Several international treaties directly address the treatment of aliens and their rights within foreign states, including:

a. Universal Declaration of Human Rights (UDHR)

• The UDHR enshrines basic rights and freedoms for all individuals, including aliens, such as the right to life, liberty, security, and protection from discrimination.

b. International Covenant on Civil and Political Rights (ICCPR)

• This treaty protects aliens' rights to due process, freedom from arbitrary arrest, and fair treatment under the law.

c. Convention Relating to the Status of Refugees (1951 Refugee Convention)

• The Refugee Convention establishes the principle of non-refoulement and provides protections for individuals who are recognized as refugees, including the right to seek asylum and protection from return to their home country where they may face persecution.

d. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW)

• This treaty provides comprehensive protection to migrant workers and their families, ensuring their fair treatment and protection of their rights.

e. Vienna Convention on Consular Relations (1963)

• Under this treaty, when an alien is arrested or detained, they have the right to consular notification. The home country’s consulate must be informed and allowed to provide assistance to the national.

7. Case Law and Jurisprudence

Significant international case law has further clarified the obligations of states concerning the treatment of aliens:

• Neer Claim (1926): This early decision by the U.S.-Mexico Claims Commission established the standard that states violate international law when they fail to treat aliens in accordance with the international minimum standard of “outrage, bad faith, willful neglect of duty, or an insufficiency of governmental action.”
• Barcelona Traction Case (1970): The International Court of Justice emphasized the distinction between the rights of a company and the rights of shareholders (who may be aliens) when it comes to diplomatic protection.

8. Philippine Context

In the Philippines, the treatment of aliens is generally governed by domestic laws in conjunction with international obligations. The Constitution of the Philippines provides for the equal protection of the laws to all persons, including aliens, under the Bill of Rights. However, certain rights and privileges, such as land ownership and political rights, are reserved for Filipino citizens.

• Immigration Act of 1940: Governs the admission, stay, and expulsion of aliens in the Philippines.
• Philippine Refugee and Stateless Persons Protection Act: Implements the country’s obligations under the Refugee Convention, particularly the principle of non-refoulement.

Conclusion

The treatment of aliens under Public International Law seeks to strike a balance between the sovereign rights of states and the protection of fundamental rights of foreign nationals. The key obligations imposed on states include ensuring non-arbitrary treatment, access to justice, protection from expropriation without compensation, and adherence to international minimum standards. Additionally, customary international law, treaties, and jurisprudence all play critical roles in shaping the treatment of aliens across different legal systems, including in the Philippines.

Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition: A Detailed Analysis under Philippine Law and Public International Law

I. Definition of Extradition

Extradition is a process where one sovereign state surrenders an individual to another sovereign state for the purpose of prosecution or punishment for crimes committed within the jurisdiction of the requesting state. It is a means of international cooperation to combat transnational crimes and prevent fugitives from evading justice by fleeing to other countries.

Extradition is not an inherent right under international law. It is generally governed by treaties, conventions, and domestic law. In the absence of a treaty, states may also extradite individuals based on principles of reciprocity or comity.

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II. Legal Framework Governing Extradition in the Philippines

1. Constitutional Basis

   The 1987 Constitution of the Philippines provides a broad legal framework for international cooperation. Although it does not specifically mention extradition, it upholds the country’s obligations under international law, as provided under Article II, Section 2, which states:

   "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."

2. The Philippine Extradition Law (Presidential Decree No. 1069)

   The main piece of legislation governing extradition in the Philippines is Presidential Decree No. 1069, or the "Philippine Extradition Law," promulgated in 1977. It provides a detailed procedure for the extradition of individuals between the Philippines and other states, based on an extradition treaty.

   Key provisions of PD No. 1069 include:

   • Sec. 2: Defines the purpose of the law, which is to "prescribe the procedure for the extradition of persons who have committed crimes in a foreign country."
   • Sec. 3: Limits extradition only to cases where a treaty exists between the Philippines and the requesting state, except when reciprocity can be invoked.
   • Sec. 6: Details the formal requirements for an extradition request, which must include official documents such as warrants of arrest, indictments, or statements of the offense.
   • Sec. 9: Provides for a summary extradition procedure, limiting judicial review primarily to the sufficiency of the documents submitted and the legality of the arrest.

3. Extradition Treaties

   The Philippines has bilateral extradition treaties with several countries, including the United States, Canada, Australia, the United Kingdom, and Spain, among others. These treaties establish the legal basis for the surrender of fugitives between the signatory states.

4. International Agreements

   In addition to bilateral treaties, the Philippines is also a signatory to multilateral agreements that provide frameworks for extradition or mutual legal assistance, such as:

   • The United Nations Convention against Transnational Organized Crime (UNTOC)
   • The United Nations Convention against Corruption (UNCAC)
   • Various regional conventions within the Association of Southeast Asian Nations (ASEAN).

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III. Substantive and Procedural Requirements for Extradition

1. Principle of Double Criminality

   A fundamental requirement for extradition is the principle of double criminality. This means that the act for which extradition is sought must be a crime in both the requesting and requested states. The offense must be punishable under the laws of both states, usually by a significant penalty (often imprisonment for a year or more).

2. Extraditable Offenses

   Not all crimes are extraditable. Treaties often contain a list of extraditable offenses. Extraditable crimes typically include:

   • Serious offenses such as murder, rape, drug trafficking, and terrorism.
   • Economic crimes like fraud, embezzlement, and money laundering.
   • In recent years, certain cybercrimes have also been included in extradition treaties.

3. Non-Extraditable Offenses

   Certain offenses are generally not subject to extradition, including:

   • Political Offenses: Extradition is typically not allowed for purely political crimes, such as sedition, rebellion, or treason. The rationale is that states should not intervene in another country’s internal political disputes.
   • Military Offenses: Offenses under military law that do not constitute crimes under ordinary criminal law are also typically excluded.
   • Religious Offenses: Acts solely based on religious beliefs or practices are generally non-extraditable.

4. The Rule of Specialty

   The Rule of Specialty is an important safeguard for individuals being extradited. It mandates that the individual may only be tried or punished for the offense for which extradition was granted. If the requesting state seeks to prosecute the person for a different crime, it must seek the permission of the extraditing state.

5. Extradition Procedure under PD No. 1069

   The procedure for extradition in the Philippines is primarily executive in nature, with limited judicial involvement. The Department of Foreign Affairs (DFA) and the Department of Justice (DOJ) play pivotal roles.

   a. Filing of the Request: The request for extradition is made by the diplomatic or consular representative of the requesting state, through the DFA, to the DOJ.

   b. Evaluation by the DOJ: The DOJ reviews the documents submitted to determine if they comply with the requirements of the extradition treaty or PD No. 1069. If the request is in order, the DOJ files a petition for extradition with the Regional Trial Court (RTC) of the place where the person is found.

   c. Judicial Hearing: The RTC conducts a summary extradition hearing, where the court determines the sufficiency of the evidence submitted by the requesting state. The court does not adjudicate on the guilt or innocence of the person sought, only on whether the documents justify extradition.

   d. Issuance of a Warrant of Arrest: If the court finds that the evidence is sufficient, it may issue a warrant of arrest and order the person’s detention pending the final decision on extradition.

   e. Appeals: Decisions of the RTC in extradition cases are appealable to higher courts, although the scope of review is limited to legal issues rather than factual determinations.

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IV. Grounds for Refusal of Extradition

1. Political Offenses Exception

   The political offense exception is a key ground for denying extradition. If the requested state determines that the offense for which extradition is sought is political in nature, it can refuse to extradite the individual.

   In Philippine jurisprudence, cases like Government of Hong Kong Special Administrative Region v. Olalia (G.R. No. 153675, April 19, 2007) have examined the application of the political offense exception.

2. Risk of Torture, Inhumane Treatment, or Death Penalty

   The Philippines, as a signatory to various human rights treaties, may refuse extradition if there is a substantial risk that the individual would face torture, inhumane treatment, or the death penalty in the requesting state.

   • Death Penalty: The Philippines abolished the death penalty in 2006, so extradition to a country where the death penalty is a potential punishment may be denied unless there are assurances that it will not be imposed.

3. Human Rights Violations

   A significant concern for the Philippine government is the protection of the individual’s human rights. If the person’s extradition would result in a violation of their basic human rights, extradition may be denied.

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V. Recent Jurisprudence and Trends in Philippine Extradition

1. Case Law

   • Government of Hong Kong Special Administrative Region v. Hon. Olalia Jr., et al. (G.R. No. 153675, April 19, 2007): The Supreme Court ruled that in extradition proceedings, the requested state cannot inquire into the political motivations behind the requesting state’s request, except where the political offense exception is invoked.
   • Secretary of Justice v. Lantion (G.R. No. 139465, January 18, 2000): This case highlights the importance of procedural due process in extradition, ruling that the prospective extraditee has a right to notice and to be heard during the evaluation of the extradition request.

2. Extradition and Terrorism

   With the rise of global terrorism, extradition has increasingly been used as a tool to combat international terrorism. The Philippines has been active in this regard, particularly through cooperation with countries in the region via ASEAN treaties and international conventions.

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VI. Conclusion

Extradition remains a critical legal process in both Philippine law and international law. The balance between respecting sovereignty, ensuring justice, and protecting individual rights is a constant challenge in extradition cases. In the Philippines, extradition is governed by a combination of treaties, domestic laws, and jurisprudence, all aimed at ensuring that the process is fair and just, while also fulfilling the country’s international obligations.

Procedure | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition Procedure under Public International Law and Philippine Law

Extradition is the legal process by which a state, at the request of another state, surrenders a person accused or convicted of a crime committed within the jurisdiction of the requesting state. It is an aspect of public international law, governed by treaties and domestic law, ensuring that justice is administered regardless of national boundaries.

I. Governing Laws on Extradition

1. Public International Law:

   • Treaties: Extradition is primarily governed by treaties between states, which create mutual obligations to surrender individuals sought for prosecution or punishment. Examples include bilateral treaties or multilateral agreements like the European Convention on Extradition (1957).
   • Principle of Reciprocity: In the absence of a treaty, extradition may be granted based on the principle of reciprocity, where states return favors of extradition on a case-by-case basis.

2. Philippine Domestic Law:

   • Presidential Decree No. 1069 (The Philippine Extradition Law): This law governs the extradition procedure in the Philippines. It incorporates relevant provisions from public international law and ensures the implementation of extradition treaties to which the Philippines is a party.
   • Department of Justice (DOJ) Circulars: The DOJ issues circulars detailing procedures, as the primary agency in charge of handling extradition requests.

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II. General Principles of Extradition

1. Dual Criminality:

   • The act for which extradition is sought must be considered a crime in both the requesting state and the requested state (Philippines).

2. Political Offense Exception:

   • Extradition may be denied if the offense is of a political nature. Crimes such as rebellion or treason may fall under this exception, unless they involve acts of terrorism or war crimes, which are excluded from the political offense doctrine in most treaties.

3. Non-Extradition of Nationals:

   • Some states refuse to extradite their nationals. The Philippines generally does not have this restriction and may extradite its citizens, subject to specific legal safeguards.

4. Rule of Specialty:

   • The person extradited can only be tried or punished for the offense for which extradition was granted. If the requesting state wishes to try the individual for a different crime, further consent is required.

5. No Extradition for Certain Punishments:

   • Extradition may be refused if the requesting state seeks to impose a punishment deemed unacceptable by the requested state, such as the death penalty or torture. In the Philippines, extradition is prohibited if the requesting state will impose the death penalty, unless it provides assurances that the sentence will not be carried out.

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III. Extradition Procedure in the Philippines

1. Initiation of the Process:

   • Extradition begins with a formal request from a foreign state, typically through diplomatic channels, either by treaty obligation or through reciprocity. The request is received by the Department of Foreign Affairs (DFA), which endorses it to the Department of Justice (DOJ) for evaluation.

2. Evaluation by the Department of Justice (DOJ):

   • The DOJ assesses whether the extradition request complies with the applicable treaty or law. Key considerations include:
     • Whether the offense is punishable in both countries (dual criminality).
     • Whether the offense is political in nature.
     • Whether the accused will receive fair treatment and trial in the requesting state.

   If the DOJ finds the request sufficient, it forwards the request to the Regional Trial Court (RTC) of the jurisdiction where the fugitive resides.

3. Filing of a Petition for Extradition:

   • The DOJ, acting for the requesting state, files a petition for extradition in the RTC. This is a non-criminal proceeding and is handled under civil procedure rules.

4. Issuance of Provisional Arrest Warrant:

   • Pending the determination of the petition, the court may issue a provisional warrant of arrest to prevent the fugitive from absconding. This can also be requested if the requesting state has asked for the temporary detention of the fugitive while the extradition request is being processed.

5. Hearings and Determination by the Regional Trial Court:

   • The RTC schedules hearings to determine whether the individual should be extradited based on the evidence presented. The court ensures that due process is observed, and the fugitive is allowed to present defenses.
   • Defenses that may be raised include:
     • The absence of dual criminality.
     • Political offense exemption.
     • Risk of cruel and unusual punishment (e.g., death penalty, torture).
     • Non-compliance with treaty requirements.

   The court’s decision focuses on the legal sufficiency of the extradition request, not the guilt or innocence of the fugitive.

6. Appeal Process:

   • The fugitive may appeal the RTC's decision to the Court of Appeals and ultimately to the Supreme Court. However, appeals are generally limited to questions of law rather than factual determinations.

7. Surrender of the Fugitive:

   • If the RTC grants the petition, the fugitive is turned over to the requesting state. The process of surrender is coordinated between the DOJ, the Bureau of Immigration, and the requesting state's authorities.

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IV. Provisional Arrest Without Formal Request

In urgent situations, where the requesting state needs immediate action, the Philippines may provisionally arrest an individual even before receiving a formal request for extradition. This typically occurs when the fugitive is likely to flee, but there must be assurances that the formal request will follow within a stipulated period (usually 60 days).

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V. Safeguards in Extradition

1. Protection of Human Rights:

   • Extradition may be refused if the fugitive's human rights are likely to be violated in the requesting state. For instance, if there is a credible risk of torture, inhuman treatment, or denial of due process, extradition may be denied.

2. Double Jeopardy:

   • Extradition may also be refused if the person has already been tried or convicted for the same offense in the Philippines (or another state), protecting them from double jeopardy.

3. Prescription of Offense:

   • If the offense is no longer punishable due to the lapse of the statute of limitations under Philippine law or the law of the requesting state, extradition will not be granted.

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VI. Relation to International Criminal Law

Extradition also plays a key role in the enforcement of international criminal law, particularly for crimes like genocide, war crimes, and crimes against humanity. States are often required to either extradite or prosecute individuals accused of such crimes under principles like aut dedere aut judicare.

For example, under the Rome Statute of the International Criminal Court (ICC), although the ICC has its own mechanisms for securing the surrender of individuals, extradition can complement efforts to bring perpetrators of international crimes to justice.

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Conclusion

Extradition is a vital legal mechanism for international cooperation in criminal matters, ensuring that individuals accused of crimes cannot evade justice by fleeing across borders. In the Philippines, extradition is governed by a complex framework that balances the need for international cooperation with the protection of human rights and domestic legal safeguards. It involves coordination between international treaties, domestic law, and various government agencies, ensuring that due process is followed at every stage of the procedure.

Distinguished from Deportation | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition vs Deportation under Philippine Law and Public International Law

1. Extradition: Definition and Key Concepts

Extradition is the formal process by which one state surrenders an individual to another state where the person is accused or convicted of committing a crime. This process typically follows an official request made through diplomatic channels and is governed by treaties or international agreements.

In the Philippines, extradition is primarily governed by:

• Extradition treaties between the Philippines and other countries, such as the RP-US Extradition Treaty (signed in 1981 and ratified in 1994).
• Presidential Decree No. 1069 or the "Philippine Extradition Law," which provides for the process of extradition within the country.

Key Elements of Extradition:

• Judicial Process: In the Philippines, an extradition request is filed before the Department of Justice (DOJ) and proceeds with a hearing in a Regional Trial Court (RTC). The individual can challenge the request on several grounds, including issues of human rights and procedural errors.
• Diplomatic Nature: Extradition requests are state-to-state communications, handled at the highest levels of government. The requesting country typically sends its request through diplomatic channels.
• Existence of a Treaty: Extradition is generally based on a treaty between two states. Without such a treaty, extradition may still occur under the principle of comity, but this is less common.
• Dual Criminality: For an individual to be extradited, the alleged act must be considered a crime in both the requesting and requested states. This ensures that extradition is not used for politically motivated prosecutions.
• Non-refoulement of Political Offenders: An individual cannot be extradited for crimes that are political in nature, as outlined in Article 3 of the Philippine Extradition Law and under international conventions like the 1951 Refugee Convention.

2. Deportation: Definition and Key Concepts

Deportation is the administrative act of removing an alien from a country for violating immigration laws, and it is not based on criminal offenses that are subject to international cooperation, unlike extradition. In the Philippines, deportation is governed by:

• Commonwealth Act No. 613, or the Philippine Immigration Act of 1940, as amended.
• Regulations from the Bureau of Immigration (BI), which oversees deportation procedures.

Key Elements of Deportation:

• Administrative Process: Deportation is handled administratively by the BI. The individual is notified of the charge and can present evidence to challenge the deportation order. Appeals can be made to the Office of the President or judicially through courts.
• Immigration Violations: Common grounds for deportation include overstaying, engaging in activities contrary to the purposes of their visa, committing acts detrimental to public welfare, or involvement in criminal activity within the country.
• Immediate Removal: Once ordered for deportation, the alien is removed from the country without the need for a diplomatic request from the alien’s home state.
• No Need for Treaty: Unlike extradition, deportation does not require an international treaty. It is solely based on the state’s immigration laws and policies.
• Sovereign Right: Deportation is considered a right of a sovereign state to maintain its internal order and protect national security.

3. Differences between Extradition and Deportation

Aspect	Extradition	Deportation
Purpose	Surrender a person to another state for criminal prosecution or execution of a sentence.	Remove an alien from the country for violating immigration laws.
Legal Basis	Governed by extradition treaties and domestic law (PD 1069).	Governed by immigration law (Commonwealth Act No. 613).
Process	Judicial process initiated by a foreign state’s request.	Administrative process initiated by the host country.
Grounds	Criminal charges or convictions in the requesting state.	Violation of immigration laws, overstaying, or public safety threats.
Dual Criminality	Required. Crime must be recognized in both states.	Not required. Grounds for deportation depend on local immigration laws.
Role of Treaties	Requires an extradition treaty or agreement between states.	No treaty required. Based on sovereign right to regulate immigration.
Nature of Crime	Involves criminal offenses.	Primarily administrative in nature, dealing with immigration status.
Grounds for Refusal	Political crimes, persecution, or inhumane treatment.	Discretion of immigration authorities, often based on security concerns or law violations.

4. Similarities Between Extradition and Deportation

While extradition and deportation are distinct in many respects, they share certain similarities, particularly in how they deal with non-citizens and the enforcement of legal measures aimed at removing an individual from the state:

• Involves Foreign Nationals: Both extradition and deportation primarily deal with the removal of aliens (foreign nationals) from the host country.
• Due Process Considerations: Both processes provide some form of due process protection to the individual, although the standards and procedures may differ. In extradition, courts play a larger role, while in deportation, administrative processes are predominant.
• International Implications: Both can have significant international consequences, as they involve the treatment of foreign nationals and the interplay between domestic and international law.

5. Grounds for Refusing Extradition

The Philippines, like many other states, can refuse extradition based on certain grounds:

• Political Crimes: Article 3 of the Philippine Extradition Law prohibits the extradition of individuals for offenses of a political nature. This is a common principle in international law to prevent the abuse of extradition for political persecution.
• Human Rights Concerns: Extradition may also be refused if the individual is likely to face torture, inhumane treatment, or a denial of a fair trial in the requesting state, in line with international human rights standards, such as the International Covenant on Civil and Political Rights (ICCPR).
• Death Penalty: The Philippines may refuse to extradite an individual to a state where they may face the death penalty unless assurances are given that the death sentence will not be carried out, as the Philippines is a party to the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty.

6. Practical Implications in the Philippines

In the Philippines, extradition and deportation are often confused due to their overlapping nature of removing foreign nationals. However, the key distinction lies in the purpose (extradition is for criminal prosecution, while deportation is for immigration law violations). The processes are handled by different authorities, with extradition involving the DOJ and courts, while deportation is managed administratively by the BI.

In conclusion, extradition and deportation, while both dealing with the removal of foreign nationals, serve different legal purposes and follow different procedures. Extradition is a formal, treaty-based judicial process aimed at criminal prosecution or punishment in another state, whereas deportation is an administrative action based on immigration law violations. Understanding these distinctions is crucial for addressing legal challenges related to the treatment of aliens under Philippine law and public international law.

Fundamental Principles | Extradition | Treatment of Aliens | PUBLIC INTERNATIONAL LAW

Extradition: Fundamental Principles in Public International Law and Treatment of Aliens

Extradition is the legal process by which one jurisdiction (usually a State) formally requests another jurisdiction to surrender a person accused or convicted of a crime for the purposes of facing trial or serving a sentence. Extradition is governed by treaties, national laws, and customary international law principles. It is a crucial tool for combatting transnational crime, while balancing state sovereignty and the rights of the individual being extradited.

Here is an in-depth analysis of the fundamental principles governing extradition:

1. Principle of Reciprocity

The principle of reciprocity refers to the understanding that extradition between states is often premised on a reciprocal agreement. Under this principle, one state agrees to extradite a person to another state if the other state agrees to reciprocate in similar circumstances. This is typically formalized through extradition treaties.

• No treaty, no obligation: In the absence of a treaty, there is generally no obligation under international law for one state to extradite a person to another state. However, states may still choose to extradite based on comity or bilateral relations.

2. Double Criminality Principle

The principle of double criminality dictates that extradition will only be granted if the act for which extradition is requested constitutes a crime in both the requesting and the requested states. In other words, the alleged offense must be punishable under the laws of both states. This ensures that no state is compelled to extradite for an offense that it does not recognize as criminal.

• Application in practice: The elements of the crime need not be identical between the two states, but the underlying conduct must be punishable in both jurisdictions.

3. Specialty Principle (Rule of Specialty)

The specialty principle provides that once a person is extradited, they can only be prosecuted, punished, or detained for the specific offenses for which extradition was granted. The extraditing state must agree to the prosecution or punishment of any other crimes committed prior to extradition. This principle protects the individual from being extradited for one offense and subsequently tried for another without the consent of the requested state.

• Consent of the requested state: If the requesting state wishes to prosecute the individual for additional offenses, it must seek further consent from the requested state.

4. Non-Extradition of Nationals

Many states, particularly civil law countries, adhere to the principle that they will not extradite their own nationals. Instead, they may opt to prosecute their citizens for crimes committed abroad (under the principle of active personality). Some states include this provision in their constitutions or national laws, while others reserve the right to refuse extradition on this ground even if an extradition treaty exists.

• Exceptions and trends: While traditionally, states refused to extradite their nationals, modern treaties may allow for exceptions or mutual agreements, particularly in cases of serious transnational crimes like terrorism, human trafficking, or drug trafficking.

5. Human Rights and Fair Trial Standards

Extradition should not occur if it would violate the fundamental human rights of the individual, as guaranteed under international human rights law. This is rooted in the non-refoulement principle, which prohibits the transfer of individuals to a state where they face a real risk of torture, inhuman or degrading treatment, or punishment.

• Prohibition against extradition where the death penalty may be imposed: Many states refuse to extradite individuals to countries where they could face the death penalty unless assurances are provided that the death penalty will not be imposed or carried out.
• Fair trial guarantees: Extradition may be denied if there are serious concerns that the individual will not receive a fair trial in the requesting state, particularly in cases where the judicial system is corrupt or compromised.

6. Non-Political Offense Exception

States generally refuse to extradite individuals if the offense for which extradition is requested is political in nature. This is known as the political offense exception. Crimes such as rebellion, sedition, and treason are often considered political offenses. The rationale behind this exception is the protection of individuals involved in political struggles from persecution.

• Limitations: Crimes such as terrorism, war crimes, and crimes against humanity are generally excluded from the definition of "political offenses" under most modern extradition treaties and conventions.

7. Evidentiary Requirements

Extradition often requires that the requesting state provide sufficient evidence to establish probable cause or a prima facie case that the individual committed the offense. The specific evidentiary standard depends on the terms of the applicable treaty and the laws of the requested state.

• Varying standards: Some states require the same level of proof as for domestic arrest warrants, while others may require more rigorous evidence to avoid abuses of the extradition process.

8. Extradition Treaty Framework

Extradition typically operates within a formal treaty framework. These treaties outline the specific procedures, obligations, and exceptions that apply between two states. Key provisions typically include:

• A list of extraditable offenses (usually serious crimes punishable by imprisonment).
• Procedures for requesting extradition, including submission of documents such as arrest warrants, indictments, and evidence.
• Time limits within which the requested state must respond.
• Provisions regarding the custody and transportation of the extradited individual.

9. Lapse of Time/Statute of Limitations

Many extradition treaties or national laws stipulate that extradition will not be granted if the statute of limitations for the offense has expired under either the law of the requesting or requested state. This prevents the extradition of individuals for old offenses that no longer merit prosecution.

10. Political Discretion and Diplomacy

Even when all legal requirements are met, the final decision on whether to extradite an individual often involves a degree of political discretion. States may consider the broader diplomatic and international relations implications of extradition requests.

• High-profile cases: In some cases, states may refuse to extradite individuals for political reasons, including asylum claims, or as a result of international tensions.

11. Extraterritorial Offenses

Some extradition treaties cover extraterritorial offenses, i.e., offenses committed outside the territory of the requesting state. These include crimes like human trafficking, terrorism, and organized crime that transcend national borders.

12. Asylum and Refugee Status

Extradition may be denied if the person being requested has been granted asylum or refugee status in the requested state. This is based on the principle of non-refoulement, which prohibits the return of refugees to a state where they may face persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.

• Refugee status as a defense: If a person is granted refugee status in the requested state, they may invoke this as a defense against extradition if the requesting state is the state from which they fled.

Conclusion

Extradition is a complex legal mechanism governed by the interplay of national laws, international treaties, and customary international law. It seeks to strike a balance between enforcing criminal justice across borders, safeguarding individual rights, and maintaining state sovereignty. The fundamental principles of extradition — such as reciprocity, double criminality, specialty, protection against political persecution, and human rights considerations — ensure that the process is fair and respectful of international legal norms. The implementation of these principles depends largely on treaty obligations, national legal frameworks, and, at times, diplomatic considerations.