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Modernizing the Nationality Exception: Is the Non-extradition of Residents a Better Rule?

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The equation of residents with nationals as recently envisaged under the European Arrest Warrant is – at least on paper – no novelty in international extradition. In addition, its predicted positive influence on the chances of rehabilitation of offenders provides strong moral-theoretical support for further modernizing the nonextradition of nationals in this manner. Yet, before this solution can be followed – explicitly or by implication – in other contexts, it must be considered whether international law permits states to expand the nationality exception commonly provided for in extradition treaties in this manner.

The author assumes this task. She first reviews international precedents in search of a rule of customary international law on the extension of this exemption to residents. Subsequently, she identifies the norms of international law against which the limits of such a new rule must be set. She concludes with suggestions for appropriate ways to modernize the nationality exception along the lines of the rehabilitation argument.


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