Regulatory Design for International Transfer of Prisoners: Justification and Legal Constraints

Abstract

International prisoner transfer is a sentencing cooperation mechanism that matters for citizen protection, the effectiveness of correctional rehabilitation, and the humane treatment of foreign prisoners. Its regulation, however, cannot be reduced to an administrative policy because it directly engages the purposes of punishment, jurisdictional sovereignty, and human rights safeguards. This article addresses two core questions: (1) what philosophical and penological foundations justify regulating international prisoner transfer within the aims of sentencing and corrections; and (2) what legal obstacles may arise in practice and how the regulatory design should ensure legal certainty and protect the rights of all parties. Using a normative legal method with statutory, conceptual, and comparative approaches, the study examines relevant international instruments, selected jurisdictional practices, and Indonesia’s domestic regulatory mandate. The findings indicate that the penological rationale rests on rehabilitation and social reintegration supported by social ties (“centre of gravity”), while key legal obstacles include the finality of judgment, dual criminality, minimum remaining sentence thresholds, the quality of informed consent, post-transfer enforcement models (continued enforcement vs conversion/adaptation), the non-aggravation principle, and the need for human-rights due diligence and accountable decision-making. The article proposes a regulatory blueprint that standardizes substantive conditions, procedural due process, human-rights safeguards, and institutional governance to ensure transfers operate as a fair and legally certain correctional instrument rather than a coercive relocation.