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Published online by Cambridge University Press: 28 March 2017
1 The author is indebted to Mr. Frederick Smith, Jr., Attorney, Office of the Legal Adviser, Department of State, for his comments about technical features of the extradition treaties recently concluded by the United States, and to Mrs. Helen L. Clagett, Chief of the Hispanic Law Division, Library of Congress, for Brazilian legal materials. The views expressed are those of the author. The term “general treaty of extradition” applies to an agreement which sets forth in detail the relations of the contracting parties with respect to extradition, as opposed to extradition clauses included in treaties of general content, e.g., Art. 10 of the Webster-Ashburton Treaty of 1842, 8 Stat. 572, or to rendition clauses designed for the enforcement of the particular subject matter of a treaty, e.g., Art. VII(5) of the NATO Status of Forces Agreement of 1951, 4 U. S. Treaties 1792. It may be noted that since 1945, three agreements supplementing earlier extradition treaties have been concluded by the United States: Agreement with Italy, 1946, 61 Stat. 3687; Supplementary Convention with Canada, 1951, 3 U. S. Treaties 2826; Supplementary Convention with Belgium, 1963, entered into force Dec. 25, 1964, T.I.A.S. No. 5715. Unless otherwise indicated, all agreements to which reference is made are listed in United States Department of State, Treaties in Force (January 1, 1964). Specific references to the three new treaties will be identified by country and article.
2 S. Res. of May 3, 1922, 67th Cong., 2d Sess., 62 Cong. Rec. 6269 (1922). Actually the Webster-Ashburton Treaty of 1842 may claim priority for its Art. 10, which lists certain extraditable offenses and sets forth the procedure of extradition to be followed, still binds the United States with Canada, New Zealand, and with Ireland.
3 In addition to the 58 bilateral general treaties of extradition, there are 41 supplementary agreements in force.
4 The figure is actually 40, including the application of the 1931 Treaty with the United Kingdom to 13 of its former Dominions and dependencies. 13 of the unrevised treaties are with Latin American states.
5 Iceland, Congo Republic (Brazzaville), Malagasy Republic, Indonesia, Australia, Burma, Canada, Ceylon, Cyprus, Ghana, India, Ireland, Jamaica, Malaysia, New Zealand, Nigeria, Pakistan, Sierra Leone, United Republic of Tanganyika and Zanzibar, Trinidad and Tobago. The Dutch treaties of 1887 and 1904 are “deemed to be in force” with Indonesia. Treaties in Force 93. The Malagasy Republic is bound by the agreements with France, including the extradition treaties of 1909, 1929, and 1936, until an “affirmative decision” is made regarding each agreement. Ibid. 124. Tanganyika notified the U.N. Secretary General in 1961 that valid treaties with the Unitéd Kingdom would continue in force for two years. Certain of these are being renegotiated with the United States. Ibid. 180. Extradition relations with some 30 other new states are unsettled.
6 Ibid. 191, note 1.
7 Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962), cert, denied, 373 U. S. 914 (1963); 49 Dept. of State Bulletin 364 (1963); digested in 57 A.J.I.L. 670 (1963).
8 Extradition Treaty of 1897, 33 Stat. 2091. Law No. 2.416, June 28, 1911, 1 Collecçáo das Leis da Repŭblica dos Estados Unidos do Brasil de 1911, 27; Decree No. 10355, July 23, 1913, ibid., 1913, Vol. I l l , p. 165.
9 1913 U. S. Foreign Relations 25-37; Extradition Treaty of Jan. 13, 1961, T.I.A.S. No. 5691. Additional Protocol of June 18, 1962, ibid.
10 Extradition Treaty of 1893, 27 Stat. 972; Supplementary Treaty of 1934, 49 Stat. 2688; Law No. 668, Extradition of Criminals, approved Dec. 6, 1957, effective Jan. 1, 1958, 1957. Nr. 668. Svensk Författningssamling.
11 Interview with Mr. Smith, July 31, 1964. The treaty was signed on Dec. 10, 1962; ratifications were exchanged on Dec. 5, 1963.
12 Art. IV(1). A case in point came up four years ago in the District of Columbia concerning the embezzlement of funds belonging to the Swedish Embassy by one of its employees. Skantze v. United States, 288 F. 2d 416 (D. C. Cir., 1961), cert, denied, 371 U. S. 843 (1962).
13 Valentine v. United States ex rel. Neidecker, 299 TJ. S. 5 (1936); 31 A.J.I.L. 134 (1937).
14 1 Accioly, Tratado de Direito Internacional Pŭblico 424, note 1 (2d ed., 1956); Law No. 2.416, Art. I, note 8 above; Decree-Law No. 394, April 28, 1938, Art. 1, 2 Coleçáo das Leis da Republica dos Estados Unidos do Brasil de 1938, 68.
15 Secretary of State (Busk) to President (Kennedy), Washington, Aug. 23, 1962, S. Exec. F, 87th Cong., 2d Sess. (1962), p. 2.
16 Brazil, Art. I I (16) (24); 1897 Treaty, Art. II (14) (15), note 8 above, Sweden, Art. 11(14); 1893 Treaty, Art. 11(6), note 10 above.
17 75 Stat. 466 (1961), 49 U.S.C. $1472.
18 Among U. S. extradition treaties in force, this type of clause concerning willful destruction of means of transportation as well as buildings appears first in the Treaty of 1886 with Japan, Art. 11(13).
19 Violations of narcotics laws appear as extraditable offenses in thirty-four conventions to which the United States is party. This offense is also included in the Supplementary Convention with Belgium of 1963, Art. I, par. 4, note 1 above. “Conspiracy to commit” an offense does not usually appear in U. S. extradition treaties. It is a common charge in the prosecution of violations of narcotics laws in the United States.
20 Interview with Mr. Smith, July 31, 1964. The problem is discussed, for example, in a 1924 extradition case with Canada, Dept. of State Ms. File No. 242.11 B 15/10. The 1951 Supplementary Convention with Canada contains a clause respecting the use of mails to defraud.
21 Brazil, Art. IX; Sweden, Art. XI; Israel, Art. X. The Swedish treaty specifically requires information about the nationality and residence of the fugitive (Art. XI(2)). The Brazilian treaty permits the requesting state to send agents to the asylum state to identify the fugitive, as well as to convey him out of the country (Art. XVI).
22 A clause, similarly phrased, generally appears in U. 8. extradition treaties, e.g., treaty with Denmark, 1902, Art. XI. For an example of the financial difficulties which may arise in connection with extradition proceedings, see Dept. of State Ms. File No. 242.11 Connor, J./9 (May 8, 1942).
23 Art. 111(2). It was necessary to attach a protocol of interpretation to Art. III ( l) concerning the term of imprisonment because the Swedish Penal Code provided for two types of imprisonment, simple imprisonment and imprisonment with hard labor, the latter being the necessary penalty for an extraditable offense, according to Art. IV of the Extradition Act of 1957, note 10 above. The Penal Code and the Extradition Act have been amended so as to eliminate the penalty of imprisonment with hard labor, which amendment became effective on January 1, 1965. T.I.A.S., No. 5496, pp. 16-17.
24 Brazilian treaty conforms to the terms of Art. 12 of Decree-Law No. 394 of April 28, 1938, note 14 above. Senator Sparkman, speaking for the Foreign Relations Committee when the Brazilian treaty was presented to the Senate in 1961, noted that the prohibition against capital punishment was one factor which delayed the completion of negotiations. 107 Cong. Rec. 7950 (1961).
25 The offense is so defined in the Brazilian Extradition Treaty with Belgium of 1953. 1 Accioly, op. cit. note 14 above, at 433.
26 Brazil, Art. V(2); Sweden, Art. V(l); Israel, Art. VI(1). There is some ambiguity in the Brazilian treaty between Art. V(2) and Art. XIV, in that the latter, concerning deferment of extradition while the fugitive is being prosecuted or punished in I he asylum state, does not provide explicitly that such legal proceedings must be for an offense other than the one for which extradition is being requested. The Israeli (Art. VIII) and Swedish (Art. VI) treaties make this distinction clear.