Assessing Compliance by Third States with Democratic Standards in Transnational Criminal Proceedings: Neutrality Revisited by Domestic Courts?

Abstract

Consider the following: (1) a decision of an English High Court rejecting the extradition of an individual to Rwanda due to the risk of unfair trial by the requesting State; (2) a ruling of the EU General Court annulling the listing of a terrorist group on the basis of information given by the Indian government; and (3) a judgment of the Spanish Supreme Court requiring a prosecuting judge to assess the conditions upon which a criminal complaint has been investigated in Argentina, for the purposes of exercising universal jurisdiction. While apparently unrelated, the three judgments are ‘transnational criminal proceedings’ in which domestic courts assess the ‘democratic quality’ of the legal system of a third state. In the context of long-lasting debates on the interplay between international law’s ideological neutrality, democracy and the rule of law, this work discusses eighteen domestic court decisions by identifying three main approaches to this question: ‘deference’, ‘moderate interventionism’ and ‘interventionism’. It argues that, in assessing the democratic features of the legal order of third States, domestic courts may contribute to the spread of liberal values by re-distributing overlapping claims of normative authority and de-legitimising the exercise of public authority by third States. At the same time, it considers possible geographical or ‘reputational’ imbalances between States in conducting such assessments.