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Case#: 201-700320 Document#: 166 Filed: 12/21/2020 Page: 166 of 4
WILLIAM JULIÉ
AVOCAT À LA COUR
challenge the refusal before French courts, while such challenge could have led to a judicial review of the request, in accordance with the ordinary extradition procedure.
Secondly, in the absence of a published judicial decision, it is impossible to determine what the outcome of this case would have been if it had come before the courts.
Third, as was rightly pointed out by US Senators Richard J. Durbin and Barack Obama in their aforementioned letter to the French Minister of Foreign Affairs, which the government cites in its memorandum:
"Article 3 of the Extradition Treaty between the United States and France provides in pertinent part that "There is no obligation upon the Requested State to grant the extradition of a person who is a national of the Requested State". While this Article does not require the extradition of a national to a requesting state, it also does not appear to preclude extradition. To the extent there is discretion available in such extradition decisions, we urge the French government to exercise that discretion in favor of extradition".
I am satisfied that this is the right interpretation of Article 3, as this is exactly the conclusion I came to in my first report. To the extent that there is a discretion, there can be no absolute rule against the extradition of nationals under French law. A discretionary power is not a legal rule. Indeed, there is no constitutional principle against the extradition of nationals. For these reasons, the Peterson case does not alter my view that under the specific and unique facts of this case, it is highly unlikely that the French government would refuse to issue and execute an extradition decree against Ms. Maxwell, particularly if Ms. Maxwell has signed an irrevocable waiver in the USA.
Finally, if an extradition request were to be issued against a French citizen today, the obligations of the French government under the Extradition Treaty between the USA and France would also need to be read in light of the Agreement on extradition between the European Union and the United States of America, which came into force on February 1st, 2010, several years after the Peterson case. Article 1 of this Agreement, which enhances cooperation between Contracting Parties, provides that: "The Contracting Parties undertake, in accordance with the provisions of this Agreement, to provide for enhancements to cooperation in the context of applicable extradition relations between the Member States and the United States of America governing extradition of offenders". The existence of this Agreement would need to be taken into account by the French government in the exercise of its discretion as to whether or not to grant the extradition of a French national to the USA.
William JULIÉ
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