The Functions of Discretion in Extradition Treaties

Abstract Extradition treaties grant the parties considerable discretion: why? What are the functions of this treaty design? Discretion can help bridge differences between treaty parties that might otherwise not agree to cooperate in criminal matters. Factors such as the level of trust at the time the treaty was concluded and the political relationship between the parties therefore affect the degree of discretion in extradition treaties. Moreover, discretion enables states to balance competing treaty obligations and competing extradition requests without risking a breach of their obligations towards the party whose request is ultimately considered subordinate. However, discretion is not without costs. These costs stem from the uncertainty inherent in discretionary decision-making processes. Discretion can generate conflict when states are unsure whether their treaty partners will exercise their discretion in accordance with the treaty or when they refuse to accept decisions that do not meet their expectations.