Universal Rights, Territorial Duties: Reassessing Article 3 ECHR in Extradition Law

This article argues that the European Court of Human Rights’ jurisprudence on Article 3 in extradition cases has gone awry. The present orthodoxy is that any mistreatment which would breach Article 3 within Europe must block extradition, if there are substantial grounds to believe there is a real risk of such mistreatment in the receiving country. This has led to extradition being blocked on grounds like substandard prison conditions. The article argues that these results are unsatisfactory, rest on a mistaken interpretation of Soering v UK, and are – contrary to Strasbourg’s current thinking – not compelled by Article 3’s “absolute” nature. The article then argues that the moral doctrine of universalism in human rights does not compel these results either, drawing on a distinction between rights and duties. Reasons against placing ECHR states under duties here are outlined. A return to the original approach of Soering is proposed.