Human Rights and International Mutual Legal Assistance: Resolving the Tension

Robert J. Currie

Abstract


If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", 1 then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the standards for the protection of the individual to which their national system subscribes can be given effect in a situation where the norms, views and obligations of another sovereign State are directly engaged.2 A disparity in human rights protection between two jurisdictions may leave States in the difficult position of being unable or unwilling to co-operate in an international criminal investigation, and possibly in violation of an obligation to do so.

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