[Senate Executive Report 105-23]
[From the U.S. Government Publishing Office]



105th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      105-23
_______________________________________________________________________


 
    EXTRADITION TREATIES WITH ARGENTINA, AUSTRIA, BARBADOS, CYPRUS, 
 FRANCE, INDIA, LUXEMBOURG, MEXICO, POLAND, SPAIN, TRINIDAD & TOBAGO, 
ZIMBABWE, ANTIGUA & BARBUDA, DOMINICA, GRENADA, ST. KITTS & NEVIS, ST. 
                LUCIA, AND ST. VINCENT & THE GRENADINES

                                _______
                                

 October 14 (legislation day, October 2), 1998.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

[To accompany Treaty Docs. 105-10; 105-13; 105-14; 105-15; 105-16; 105-
    18; 105-19; 105-20; 105-21; 105-30; 105-33; 105-46; and 105-50.]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Grand Duchy of 
Luxembourg, signed at Washington on October 1, 1996 (Treaty 
Doc. 105-10); the Extradition Treaty between the United States 
of America and France, which includes an Agreed Minute, signed 
at Paris on April 23, 1996 (Treaty Doc. 105-13); the 
Extradition Treaty Between the United States of America and the 
Republic of Poland, signed at Washington on July 10, 1996 
(Treaty Doc. 105-14); the Third Supplementary Extradition 
Treaty Between the United States of America and the Kingdom of 
Spain, signed at Madrid on March 12, 1996 (Treaty Doc. 105-15); 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Republic of Cyprus, 
signed at Washington on June 17, 1996 (Treaty Doc. 105-16); the 
Extradition Treaty Between the United States of America and the 
Argentine Republic, signed at Buenos Aires on June 10, 1997 
(Treaty Doc. 105-18); the Extradition Treaties Between the 
Government of the United States of America and the Governments 
of Six Countries Comprising the Organization of Eastern 
Caribbean States (Collectively, the ``Treaties''). The Treaties 
are with: Antigua and Barbuda, signed at St. John's on June 3, 
1996; Dominica, signed at Roseau on October 10, 1996; Grenada, 
signed at St. George's on May 30, 1996; St. Lucia, signed at 
Castries on April 18, 1996; St. Kitts and Nevis, signed
at Basseterre on September 18, 1996; and St. Vincent and the 
Grenadines, signed at Kingstown on August 15, 1996 (Treaty Doc. 
105-19); Extradition Treaty Between the Government of the 
United States of America and the Government of Barbados, signed 
at Bridgetown on February 28, 1996 (Treaty Doc. 105-20); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of Trinidad and Tobago, signed at 
Port of Spain on March 4, 1996 (Treaty Doc. 105-21); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of India, signed 
at Washington on June 25, 1997 (Treaty Doc. 105-30); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Zimbabwe, 
signed at Harare on July 25, 1997 (Treaty Doc. 105-33); the 
Protocol to the Extradition Treaty Between the United States of 
America and the United Mexican States of May 4, 1978, signed at 
Washington on November 13, 1997 (Treaty Doc. 105-46); and the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Austria, 
signed at Washington on January 8, 1998 (Treaty Doc. 105-50), 
having considered the same, reports favorably thereon, each 
with one understanding, one declaration and one proviso, 
(except two Protocols with one declaration and one proviso) and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and the 
accompanying resolutions of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Summary..........................................................3
 IV. Entry Into Force and Termination.................................6
  V. Committee Action.................................................6
 VI. Committee Comments...............................................6
VII. Explanation of Proposed Treaties.................................9
VIII.Text of Resolutions of Ratification............................200


                               I. Purpose

    These Treaties obligate the Parties to extradite fugitives 
at the request of a Party subject to conditions set forth in 
the treaties.

                             II. Background

    The United States is a party to more than 100 bilateral 
extradition treaties. Of the 13 extradition treaties considered 
in this report, only the treaty with Zimbabwe represents a new 
treaty relationship. Ten of the treaties with the Caribbean 
countries, India, and Cyprus replace 1931 or 1972 Treaties 
between the United States and the United Kingdom, which 
continued to apply to these countries even after their 
independence. The other treaties modernize older treaties to 
ensure that all criminal acts punishable in both countries by 
more than one year in prison are covered by the treaties. Two 
of the treaties--those with Spain and Mexico--are Protocols to 
existing treaties.
    Extradition relationships have long been a basis of 
bilateral relationships, and represent a recognition by the 
United States of the legitimacy of a country's judicial system. 
Respect for a treaty partner's judicial system is essential 
since the treaties permit the transfer of individuals to 
another country in order to stand trial for alleged crimes. The 
treaty with Zimbabwe, therefore, signals an important 
advancement in the U.S. relationship with that country.

                              III. Summary

                               a. general

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with certain crimes against, or are fugitives from, the 
Requesting State.
    In recent years the Departments of State and Justice have 
led an effort to modernize U.S. bilateral extradition treaties 
to better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering. Modern extradition 
treaties: (1) identify the offenses for which extradition will 
be granted, (2) establish procedures to be followed in 
presenting extradition requests, (3) enumerate exceptions to 
the duty to extradite, (4) specify the evidence required to 
support a finding of a duty to extradite, and (5) set forth 
administrative provisions for bearing costs and legal 
representation.
    The importance of extradition treaties as a tool for law 
enforcement is reflected in the increase in the number of 
extraditions of individuals under treaties. Since September 
l997, 185 persons were extradited to the United States for 
prosecution for crimes committed in the United States, and the 
United States extradited 73 individuals to other countries for 
prosecution.
    In the United States, the legal procedures for extradition 
are governed by both federal statute and self-executing 
treaties. Federal statute controls the judicial process for 
making a determination to the Secretary of State that she may 
extradite an individual under an existing treaty. Courts have 
held that the following elements must exist in order for a 
court to find that the Secretary of State may extradite: (1) 
the existence of a treaty enumerating crimes with which a 
defendant is charged; (2) charges for which extradition is 
sought are actually pending against the defendant in the 
requesting nation and are extraditable under the treaty; (3) 
the defendant is the same individual sought for trial in the 
requesting nation; (4) probable cause exists to believe that 
the defendant is guilty of charges pending against him in the 
requesting nation; and (5) the acts alleged to have been 
committed by the defendant are punishable as criminal conduct 
in the requesting nation and under the criminal law of the 
United States.
    Once a court has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, she may still refrain from extraditing an 
individual on foreign policy grounds, as defined in the 
treaties themselves (or even absent express treaty provisions).

                           b. key provisions

1. Extraditable Offenses: The Dual Criminality Clause

    Each of the extradition treaties contains a standard 
definition of what constitutes an extraditable offense: an 
offense is extraditable if it is punishable under the laws of 
both parties by a prison term of more than (or at least) one 
year. Attempts and conspiracies to commit such offenses, and 
participation in the commission of such offenses, are also 
extraditable. In many of the treaties, if the extradition 
request involves a fugitive, it shall be granted only if the 
remaining sentence to be served is more than six months.
    With minor variations, this definition of an extraditable 
offense appears in each of the treaties under consideration. 
The dual criminality clause means, for example, that an offense 
is not extraditable if in the United States it constitutes a 
crime punishable by imprisonment of more than one year, but it 
is not a crime in the treaty partner or is a crime punishable 
by a prison term of less than one year. In earlier extradition 
treaties the definition of extraditable offenses consisted of a 
list of specific categories of crimes. This categorizing of 
crimes has resulted in problems when a specific crime, for 
example drug dealing, is not on the list, and is therefore not 
extraditable. The result has been that as additional offenses 
become punishable under the laws of both treaty partners the 
extradition treaties between them need to be renegotiated or 
supplemented. A dual criminality clause obviates the need to 
renegotiate or supplement a treaty when it becomes necessary to 
broaden the definition of extraditable offenses.

2. Extraterritorial Offenses

    A separate question arises as to whether offenses committed 
outside the territory of the Requesting State are extraditable 
under the treaties. To be able to extradite individuals for 
extraterritorial crimes can be an important weapon in the fight 
against international drug traffickers and terrorists. Only 
three of the pending treaties (Austria, India, and Luxembourg) 
permit extradition regardless of where the offense is 
committed. However the rest permit extradition for 
extraterritorial crimes if extradition would be permitted in 
both the Requesting and Receiving State. Even if both States do 
not permit extradition in those instances, extradition for 
crimes committed outside both territories remains a matter of 
discretion in most of the treaties.

3. Political Offense Exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. Though some of the treaties 
under consideration take a narrower view than others of the 
political offense exception, all of them give it a more limited 
scope than earlier U.S. extradition treaties.
    The exclusion of certain violent crimes, (i.e. murder, 
kidnaping, and others) from the political offense exception 
reflects the concern of the United States government and 
certain other governments with international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in each of the treaties under 
consideration.
    The multilateral international agreement exception clause 
serves to incorporate by reference certain multilateral 
agreements to which the United States is a party and which deal 
with international law enforcement in drug dealing, terrorism, 
airplane hijacking and smuggling of nuclear material. These 
agreements require that the offenses with which they deal shall 
be extraditable under any extradition treaty between countries 
that are parties to the multilateral agreements. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution.
    It should perhaps be noted that the incorporation by 
reference of multilateral international agreements that deal 
with international law enforcement can have significance only 
if the parties to an extradition treaty are also parties to 
such multilateral agreements.

4. The Death Penalty Exception

    The United States and other countries often have different 
views on capital punishment, though some countries do impose 
the death penalty for certain crimes, such as drug trafficking. 
Most of the treaties under consideration permit the countries 
to refuse extradition for an offense punishable by the death 
penalty in the Requesting State if the same offense is not 
punishable by the death penalty in the Requested State, unless 
the Requesting State gives assurances satisfactory to the 
Requested State that the death penalty will not be imposed or 
carried out.

5. The Extradition of Nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. The treaties under consideration take 
varying positions on the nationality issue.

6. Retroactivity

    Each of the treaties states that it shall apply to offenses 
committed before as well as after it enters into force. These 
retroactivity provisions do not violate the Constitution's 
prohibition against the enactment of ex post facto laws, which 
applies only to enactments making criminal acts that were 
innocent when committed, not to the extradition of a defendant 
for acts that were criminal when committed but for which no 
extradition agreement existed at the time.

7. The Rule of Speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties. The treaties include language reflecting the basic 
prohibition as well as clauses setting forth certain 
exceptions. With minor variations, the treaties express the 
basic prohibition and also include the following exceptions: an 
extradited individual may be tried by the Requesting State for 
an offense other than the one for which he was extradited if 
the Requested State (which may request the submission of 
additional supporting documents) waives the prohibition; the 
extradited individual leaves the territory of the Requesting 
State and voluntarily returns to it; the extradited individual 
does not leave the territory of the Requesting State within a 
limited period of time on which he or she is free to leave; or, 
the extradited individual voluntarily consents to being tried 
for an offense other than the one for which he was extradited. 
These exceptions to the speciality rule are designed to allow a 
Requesting State some latitude in prosecuting offenders for 
crimes other than those for which they had been specifically 
extradited.

8. Lapse of Time

    Some of the treaties include rules that preclude 
extradition of offenses barred by an applicable statute of 
limitations.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Treaties generally provide for the entry into force of 
the treaty either on the date of, or a short time after, the 
exchange of instruments of ratification.

                             b. termination

    The Treaties generally provide for the Parties to withdraw 
from the Treaty by means of written notice to the other Party. 
Termination would take place six months after the date of 
notification.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed Treaties on September 15, 1998. The Committee 
considered the proposed Treaties on October 14, 1998, and 
ordered the proposed Treaties favorably reported, with the 
recommendation that the Senate give its advice and consent to 
the ratification of each of the proposed Treaties subject to 
one understanding, one declaration, and two provisos (except 
two Protocols with one declaration and one proviso).

                         VI. Committee Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Treaties. On balance, the Committee believes that the 
proposed Treaties are in the interest of the United States and 
urges the Senate to act promptly to give its advice and consent 
to ratification. Several issues did arise in the course of the 
Committee's consideration of the Treaties, and the Committee 
believes that the following comments may be useful to the 
Senate in its consideration of the proposed Treaties and to the 
State Department.

  a. restriction on transfer of extraditees to international criminal 
                                 court

    On July 17, 1998 a majority of nations at the U.N. 
Diplomatic Conference in Rome, Italy, on the Establishment of 
an International Criminal Court voted 120-7, with 21 
abstentions, in favor of a treaty that would establish an 
international criminal court. The court is empowered to 
investigate and prosecute war crimes, crimes against humanity, 
genocide and aggression. The United States voted against the 
treaty.
    Each of the Resolutions of Ratification accompanying the 
Extradition Treaties contains an understanding relative to the 
international court. Specifically, regarding the ``Rule of 
Specialty'' the United States shall restate in its instrument 
of ratification its understanding of the provision, which 
requires that the United States consent to any retransfer of 
persons extradited to the Treaty Partner to a third 
jurisdiction. The understanding further states that future 
United States policy shall be to refuse such consent to the 
transfer of individuals to the International Criminal Court. 
This restriction is binding on the President, and would be 
vitiated only in the event that the United States ratifies the 
treaty establishing the court, pursuant to the Constitutional 
procedures as contained in Article II, section 2 of the United 
States Constitution.
    This provision makes clear that both Parties understand 
that individuals extradited to the other Party may not be 
transferred to the international court. Members of the 
Committee are concerned that these treaties could become 
conduits for transferring suspects located in the United States 
to the international criminal court, even though the United 
States has rejected the court.

   b. use of treaties to aggressively pursue international parental 
                               kidnaping

    On October 1, 1998, the Committee on Foreign Relations 
convened a hearing to consider U.S. Responses to International 
Parental Kidnaping. The Attorney General, Janet Reno, testified 
before the Committee, as did four parents whose children were 
abducted or wrongfully detained in international jurisdictions. 
The parents recounted their frustration with the current level 
of U.S. Government assistance in seeking the return of their 
children.
    Although the Attorney General pointed to limitations in the 
ability of the U.S. Government to resolve many cases of 
international parental abduction, she also recognized that the 
United States could do better in assisting in the return of 
abducted children and pledged to take steps to improve 
coordination between the Departments of State and Justice. She 
also indicated that an interagency working group, which has 
been studying this issue during the past year, will produce a 
report in January with recommendations for improvements in U.S. 
policy regarding international parental kidnaping.
    As this working group completes its work, the Committee 
expects that one area related to these treaties that the 
working group should comment upon is the current practice of 
extradition of parental kidnappers. Under current practice the 
United States does not seek extradition if they do not think 
that a country will extradite--whether because a country does 
not have an extradition treaty with the United States, does not 
extradite its nationals, or would simply be unlikely to 
extradite under the circumstances. The Committee believes that 
failure to even request extradition may create the 
misperception that the United States is not interested in 
pursuing such individuals.
    The State and Justice Departments have testified that these 
treaties are essential in order to ensure that no individual is 
able to evade the justice system by travel to a foreign 
country. This same principle should be true of parents who take 
their children from the United States in violation of the 1993 
International Parental Kidnaping Act. The Committee expects, 
therefore, that State and Justice Department officials will 
seek extradition unless it will hinder U.S. law enforcement 
efforts. The Committee also expects that State and Justice 
Department officials will raise this issue in the course of 
negotiation of all bilateral law enforcement treaties and in 
other bilateral diplomatic exchanges. The Committee 
anticipates, also, that this issue will be given great scrutiny 
in the issuance of passports, with a special eye towards 
passport or visa fraud.

                      c. extradition of nationals

    The treaties with Antigua and Barbuda, Argentina, Barbados, 
Dominica, Grenada, India, St. Kitts and Nevis, St. Lucia, St. 
Vincent and the Grenadines, Trinidad and Tobago, and Zimbabwe 
require the extradition of their nationals. Such provisions 
reflect an important trend in extradition relationships, 
particularly with countries in the Western Hemisphere. The 
Committee applauds this progress by State and Justice 
Department negotiators.
    Unfortunately, such progress has been much more difficult 
for the United States to achieve in agreements with European 
allies. Although the treaties with Austria, Cyprus, Luxembourg, 
and Poland give each party the discretion to extradite its 
nationals, each of these countries is prohibited by statute or 
constitution from doing so. The treaty with France prohibits 
extradition of nationals outright.
    The Committee supports the extradition of U.S. nationals in 
most instances. Criminal suspects should not be given safe 
haven in this country. The alternative--trying them in this 
country--is often not a realistic option, for two reasons. 
First, U.S. courts often lack jurisdiction over the crime, 
because not many crimes are subject to extraterritorial 
jurisdiction under U.S. law. Second, prosecuting such cases in 
the United States is often extremely difficult, particularly 
when the evidence and many of the witnesses are not located in 
this country, as would often be the case.
    The Committee is deeply concerned that many nations around 
the world, particularly those in Europe, do not agree to 
extradite their own nationals to the United States. The 
Committee expects that U.S. negotiators will continue to press 
other nations to agree to extradite their nationals, including 
in existing treaty relationships. The Committee urges the 
Executive Branch to emphasize, in discussing new extradition 
relationships with foreign states, that a reciprocal duty to 
extradite nationals is a key U.S. negotiating objective.
    In addition, the United States could request extradition of 
nationals in some circumstances. In response to a question for 
the record, the State Department indicated that it might 
request extradition of nationals in an effort to encourage the 
country to exercise discretion available under its domestic 
law. The Committee anticipates that the United States will err 
on the side of making requests, unless U.S. law enforcement 
efforts would be compromised, in order to continue to force 
treaty partners to respond to U.S. requests for extradition of 
nationals.

                    d. extradition treaty with india

    The Committee believes that special concerns are raised in 
the Extradition Treaty with India, as evidenced by an exchange 
of letters accompanying the Treaty (See Treaty Doc. 105-30, at 
pages 18-19). The concern arises because when the treaty was 
under negotiation, India had in effect a special law, the 
Terrorist and Disruptive (Prevention) Act, which, according to 
the Department of State, ``limited the rights of a defendant 
accorded under ordinary Indian criminal law in a number of 
important respects.'' The limits on a defendant's rights 
included permitting detention for a year without charge, trial 
proceedings in camera, permitting the court to keep secret the 
identity of witnesses, reversing the burden of proof in certain 
situations, and limiting the right to appeal. The Act lapsed on 
May 23, 1995, and has not been replaced, but it continues to 
have effect with respect to cases under investigation and trial 
as of that date.
    In an exchange of letters signed the same day as the 
Extradition Treaty, the United States and India agreed to an 
understanding that, as a general matter, persons extradited 
under the treaty will be prosecuted or punished under the 
ordinary criminal laws of the Requesting State. The Parties 
further agreed that if either party is considering prosecution 
or punishment under other laws, the ``Requesting State shall 
request consultations and shall make such a request only upon 
the agreement of the Requested State.''
    During the hearing before the Committee, Deputy Legal 
Adviser Jamison Borek testified that there would be a 
``presumption'' against extraditing a criminal suspect in the 
event that a request is made by India under this act or any 
similar law. In response to a question for the record, the 
Executive Branch indicated that while it could not ``rule out 
the possibility that a [such a request] might merit serious 
consideration'' it did not anticipate being presented with such 
a case, at least based on information currently available.
    It is evident from a brief review of the limitations set 
forth in Terrorist and Disruptive (Prevention) Act that many of 
its provisions do not accord with basic due process rights that 
are central to American notions of justice and fundamental 
fairness. It is difficult to envision a case that would warrant 
extradition under such circumstances. Accordingly, the 
Committee expects that it will be the rare case--a matter of 
the gravest consequence--in which extradition would be granted 
by the United States in matters that may be prosecuted under 
this or a similar law.

                 VII. Explanations of Proposed Treaties

    The following are the article-by-article technical analyses 
provided by the Departments of State and Justice regarding the 
extradition treaties.

Technical Analysis of the Extradition Treaty Between the United States 
                   of America and Antigua and Barbuda

    On June 3, 1996, the United States signed a treaty on 
extradition with Antigua and Barbuda (hereinafter ``the 
Treaty''), which is intended to replace the outdated treaty 
currently in force between the two countries \1\ with a modern 
agreement on the extradition of fugitives. The new extradition 
treaty is one of twelve treaties that the United States 
negotiated under the auspices of the Organization of Eastern 
Caribbean States to modernize our law enforcement relations in 
the Eastern Caribbean. It represents a major step forward in 
the United States' efforts to strengthen cooperation with 
countries in the region in combating organized crime, 
transnational terrorism, and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Antigua and Barbuda has its own internal legislation on 
extradition, \2\ which will apply to United States' requests 
under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed. \3\ The negotiators intended to make it clear 
that the Treaty applies to persons adjudged guilty who flee 
prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Antigua and Barbuda delegation 
that extradition would be possible for such high priority 
offenses as drug trafficking (including operating a continuing 
criminal enterprise, in violation of Title 21, United States 
Code, Section 848); offenses under the racketeering statutes 
(Title 18, United States Code, Section 1961--1968), if the 
predicate offense would be an extraditable offense; money 
laundering; terrorism; crimes against environmental protection 
laws; and antitrust violations punishable in both states by 
more than one year of imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Antigua and Barbuda has 
no general conspiracy statute like Title 18, United States 
Code, Section 371. Therefore, paragraph 2 creates an exception 
to the ``dual criminality'' rule of paragraph 1 by making 
conspiracy an extraditable crime if the offense which was the 
object of the conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Antigua 
and Barbuda authorities must treat United States mail fraud 
charges (Title 18, United States Code, Section 1341) in the 
same manner as fraud charges under state laws, and view the 
federal crime of interstate transportation of stolen property 
(Title 18, United States Code, Section 2314) in the same manner 
as unlawful possession of stolen property. This paragraph also 
requires a Requested State to disregard differences in the 
categorization of the offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used to define the offense under the laws of each 
country. A similar provision is contained in all recent United 
States extradition treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction. \4\ In 
Antigua and Barbuda, however, the Government's ability to 
prosecute extraterritorial offenses is much more limited. 
Therefore, Article 2(4) reflects Antigua and Barbuda's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside of the United States if Antigua and 
Barbuda's law would permit it to prosecute similar offenses 
committed outside of it in corresponding circumstances. If the 
Requested State's laws do not so provide, the final sentence of 
the paragraph states that extradition may be granted, but the 
executive authority of the Requested State has the discretion 
to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Antigua and Barbuda agrees to extradite to the United States 
a fugitive wanted for prosecution on a felony charge, the 
United States will also be permitted to obtain extradition for 
any misdemeanor offenses that have been charged, as long as 
those misdemeanors would also be recognized as criminal 
offenses in Antigua and Barbuda. Thus, the Treaty incorporates 
recent United States extradition practice by permitting 
extradition for misdemeanors committed by a fugitive when the 
fugitive's extradition is granted for a more serious 
extraditable offense. This practice is generally desirable from 
the standpoint of both the fugitive and the prosecuting country 
in that it permits all charges against the fugitive to be 
disposed of more quickly, thereby facilitating trials while 
evidence is still fresh and permitting the possibility of 
concurrent sentences. Similar provisions are found in recent 
extradition treaties with countries such as Australia, Ireland, 
Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served. This 
Treaty, like most U.S. extradition treaties in the past two 
decades, contains no such requirement. \5\ Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship, \6\ and the Antigua and Barbuda extradition law 
contains no exception for Antiguan nationals. Therefore, 
Article 3 of the Treaty provides that extradition is not to be 
refused based on the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties. \7\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses that are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances. \8\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated. \9\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation. \10\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law. \11\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition treaties. 
\12\ The parties agreed that this provision applies only if the 
offender is convicted or acquitted in the Requested State of 
exactly the same crime he is charged with in the Requesting 
State. It would not be enough that the same facts were 
involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 are met.
    Paragraph 2 outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and Antigua and Barbuda delegations agreed that Article 
6(2)(c)(iii) should require this information so that the 
Requested State would be fully informed about the charges in 
the Requesting State.
    Paragraph 3 describes the additional information required 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Antigua and Barbuda. 
The Treaty currently in force permits extradition only if ``. . 
.the evidence be found sufficient, according to the laws of the 
High Contracting Party applied to, either to justify the 
committal of the prisoner for trial, in the case the crime or 
offense had been committed in the territory of such High 
Contracting party, or to prove that the person is the identical 
person convicted by the courts of the High Contracting Party 
who makes the requisition  . . .''. \13\ Antigua and Barbuda's 
courts have interpreted this clause to require that a prima 
facie case against the defendant be shown before extradition 
will be granted. \14\ By contrast, U.S. law permits extradition 
if there is probable cause to believe that an extraditable 
offense was committed and the offender committed it. \15\ 
Antigua and Barbuda's agreement to extradite under this new 
Treaty on a ``reasonable basis'' standard eliminates this 
imbalance on the burden of proof for extradition and should 
dramatically improve the United States' ability to extradite 
from Antigua and Barbuda.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision. \16\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Antigua and Barbuda resident in the United States. 
This is intended to replace the cumbersome and complicated 
procedures for authenticating extradition documents applicable 
under the current treaty. \17\ When the request is from Antigua 
and Barbuda, the documents must be certified by the principal 
diplomatic or consular officer of the United States resident in 
Barbados accredited to Antigua and Barbuda, pursuant to United 
States extradition law. \18\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing merely because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states. \19\ The U.S. and Antiguan delegations agreed that a 
claim that the statute of limitations has expired is best 
resolved by the courts of the Requesting State after the 
fugitive has been extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting State. 
\20\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Antigua and Barbuda. The provision also 
indicates that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados. \21\
    Paragraph 5 makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States shall agree 
on a time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody and the Requested State may subsequently refuse to 
extradite for the same offense. United States law currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable, \22\ or of the conclusion of any litigation 
challenging that finding, \23\ whichever is later. The law in 
Antigua and Barbuda permits the person to apply to a judge for 
release if he has not been surrendered within two months of the 
first day on which he could have been extradited. \24\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment that has been 
imposed. \25\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary extradition proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision. \26\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested. \27\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents. \28\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained. \29\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on the detention, trial, or punishment of an extraditee 
for additional offenses, or extradition to a third State, (1) 
if the extraditee leaves and returns to the Requesting State, 
or (2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind. \30\
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested State.

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries. \31\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in Antigua and 
Barbuda, or via INTERPOL channels. The negotiators agreed that 
the diplomatic channels will be employed as much as possible 
for requests of this nature. A person may be detained in 
custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. This paragraph also permits the transit State to 
detain a fugitive and a request for transit as received and 
executed, so long as the request is received within 96 hours of 
the unscheduled landing.
    Antigua and Barbuda does not appear to have specific 
legislation on this matter, and the Antigua and Barbuda 
delegation stated that its Government would seek implementing 
legislation for this article in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Antigua and Barbuda in connection 
with a request from Antigua and Barbuda for extradition before 
the courts in this country, and that Antigua and Barbuda will 
arrange for the representation of the United States in 
connection with United States extradition requests to Antigua 
and Barbuda.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of Antigua and Barbuda has a very small 
staff, and might need to enlist outside counsel to aid in 
handling a complex, contested international extradition 
proceeding. It is anticipated that in such cases the fees of 
private counsel retained by the Requested State would be paid 
by the Requested State. The negotiators also recognized that 
cases might arise in which the Requesting State would wish to 
retain its own private counsel to advise it on extradition 
matters or even assist in presenting the case, if the Requested 
State agrees. In such cases the fees of private counsel 
retained by the Requesting State must be paid by the Requesting 
State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Antigua and Barbuda may consult with each other with regard to 
an individual extradition case or on extradition procedures in 
general. A similar provision is found in other recent U.S. 
extradition treaties. \32\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of Antigua and Barbuda, the United States delegation 
promised to recommend training and technical assistance to 
better educate and equip prosecutors and legal officials in 
Antigua and Barbuda to implement this Treaty.
    During the negotiations, the Antigua and Barbuda delegation 
also expressed concern that the United States might invoke the 
Treaty much more often than Antigua and Barbuda, resulting in 
an imbalance in the financial obligations occasioned by 
extradition proceedings. While no specific Treaty language was 
adopted, the United States agreed that consultations between 
the Parties under Article 18 could address extraordinary 
expenses arising from the execution of individual extradition 
requests or requests in general.

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language on the 
procedure for terminating the Treaty. Termination shall become 
effective six months after notice of termination is received.
    The following are the article-by-article technical analysis 
provided by the Departments of State and Justice regarding the 
mutual legal assistance treaties.

Technical Analysis of the Extradition Treaty Between The United States 
       of America and the Argentine Republic signed June 10, 1997

    On June 10, 1997, at Buenos Aires, Argentina, the United 
States signed a new extradition treaty with Argentina 
(hereinafter ``the new Treaty,'' ``the Treaty,'' or ``this 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries, as part of an 
ongoing and highly successful effort to modernize our 
international law enforcement relations. The new Treaty will 
replace the treaty currently in force between the United States 
and Argentina \33\ (hereinafter ``the 1972 treaty'') with a 
modern agreement to facilitate the extradition of serious 
offenders, including narcotics traffickers, regardless of their 
nationality.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed.
    With regard to Argentina, once the Treaty is approved by 
the Argentine Congress, a law published in the ``Official 
Bulletin'' will render the Treaty applicable under Argentine 
law and subject to implementation upon completion of the 
Treaty's requirements for entry into force (i.e., exchange of 
instruments of ratification). No additional or special 
legislation will be required in Argentina for implementation of 
the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    Article 1 of the Treaty, like the first article in every 
recent United States extradition treaty, formally obligates 
each Party to extradite to the other, pursuant to the 
provisions and conditions of the Treaty, persons ``charged 
with'' or ``found guilty'' of an extraditable offense.
    The negotiating delegations intended that the term 
``charged with'' be interpreted broadly to include those 
persons who, being the subject of an outstanding warrant of 
arrest in the Requesting State, are sought for prosecution. 
Accordingly, for fugitives from the United States, this 
provision is intended to apply to those persons for whom a 
warrant of arrest has been issued, whether the warrant was 
issued pursuant to an indictment, complaint, information, or 
other means. In addition, under Argentine criminal procedure, a 
person may not be formally indicted until after he is in 
custody and brought before a judge in Argentina. Therefore, 
this provision is also intended to apply to those fugitives 
from Argentina whose cases may not yet have reached the 
indictment stage, but for whom there are pending criminal 
proceedings and outstanding warrants of arrest. \34\
    It also was agreed by the negotiating delegations that the 
term ``found guilty'' in this Article includes instances in 
which the person has been convicted, either by trial or guilty 
plea, but a sentence has not yet been imposed. Accordingly, the 
negotiators intended to make it clear that the Treaty applies 
not only to charged and sentenced persons, but also to persons 
adjudged guilty who flee prior to sentencing. \35\
    This Article also refers to offenses ``in'' the Requesting 
State rather than ``of'' the Requesting State, since the 
obligation to extradite, in cases arising from the United 
States, would include state and local prosecutions as well as 
federal cases.

                    Article 2--Extraditable Offenses

    This Article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like other recent 
United States extradition treaties, \36\ does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of this Article permits extradition for any offense 
punishable under the laws in both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention) for a 
maximum period of more than one year, or by a more severe 
penalty (such as capital punishment). The term ``maximum'' was 
included to ensure that, in regard to offenses whose potential 
penalties are described in terms of a range (e.g. 6 months to 3 
years of imprisonment), the Requested State would look only to 
the maximum potential penalty in determining whether the 
offense meets the requirement of being punishable by ``more 
than one year'' imprisonment.
    Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity or if the list inadvertently fails to cover 
an important type of criminal activity punishable in both 
countries. For example, at this time, Argentine law 
criminalizes money laundering only as it relates to narcotics 
trafficking. However, once laws are enacted in Argentina, like 
those in the United States, to cover the laundering of proceeds 
from other types of criminal activity, such offenses will 
automatically be included as extraditable offenses under the 
dual criminality provision without having to amend the Treaty.
    During the negotiations, the Argentine delegation indicated 
that key offenses such as drug trafficking and related money 
laundering and organized criminal activity (RICO) would be 
extraditable.
    In regard to a request for a person who has already been 
sentenced in the Requesting State, paragraph 1 of this Article 
contains an additional requirement that such person must have 
more than six months of his or her sentence still to serve.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition shall also be granted 
for attempting or conspiring to commit, or otherwise 
participating in, the commission of an extraditable offense. 
Conspiracy charges are frequently used in United States 
criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the Treaty be clear on this point. For the same reasons, 
the negotiating delegations agreed that ``illicit 
association'', which is the closest analogue to conspiracy 
under Argentine law, should also be expressly included as an 
extraditable offense. \37\ Accordingly, paragraph 2(b) 
specifies that the offense of conspiracy, as defined under 
United States law, and the offense of illicit association, as 
defined under Argentine law, shall be extraditable.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this Article broadly. Paragraph 
3(a) requires the Requested State to disregard differences in 
the categorization of the offense in determining whether dual 
criminality exists and to overlook mere differences in the 
terminology used to define the offense under the laws in each 
country. Provisions similar to paragraph 3(a) are contained in 
many recent United States extradition treaties. \38\
    Paragraph 3(b) is also included to further prevent 
technical differences in Argentine and United States law from 
creating obstacles to extradition. Judges in foreign countries 
are often confused by the fact that many United States federal 
statutes require proof of certain elements (such as use of the 
mails or interstate transportation) solely to establish 
jurisdiction in the United States federal courts. Because there 
is no similar requirement in their own country's criminal law, 
foreign judges occasionally have denied the extradition of U.S. 
fugitives charged under these federal statutes on the basis of 
lack of dual criminality. Therefore, paragraph 3(b) requires 
that such elements be disregarded in applying the dual 
criminality principle. For example, Argentine authorities must 
treat United States mail fraud charges (Title 18, United States 
Code, Section 1341) in the same manner as fraud charges under 
state laws, and view the federal crime of interstate 
transportation of stolen property (Title 18, United States 
Code, Section 2314) in the same manner as unlawful possession 
of stolen property.
    Paragraph 4 ensures that extradition shall be granted for 
offenses even when the illegal acts constituting the offense 
are committed outside the territory of the Requesting State. 
United States jurisprudence recognizes jurisdiction in our 
courts to prosecute offenses committed outside of the United 
States if the crime was intended to, or did, have effects in 
this country, or if the legislative history of the statute 
shows clear Congressional intent to assert extraterritorial 
jurisdiction. \39\ Accordingly, many federal statutes 
(including drug laws) criminalize acts committed wholly outside 
United States territory, and it was very important to the U.S. 
negotiating delegation that such offenses be extraditable. The 
United States initially proposed language for this provision 
stating that extradition shall be granted for an extraditable 
offense regardless of where the act or acts constituting the 
offense were committed. \40\ During the negotiations, no U.S. 
proposal received more vehement opposition from the Argentine 
delegation, but the U.S. delegation was able to persuade the 
Argentine delegation to accept an alternative formulation. This 
alternative formulation, set forth in paragraph 4, not only 
provides for extradition for offenses committed in whole or in 
part in the territory of the Requesting State, but also for 
offenses committed outside the territory of the Requesting 
State if the offenses have effects in the territory of the 
Requesting State. \41\ In addition, paragraph 4 provides for 
the extraditability of extraterritorial offenses based on other 
theories of jurisdiction, provided that the laws of the 
Requested State would recognize jurisdiction over such an 
offense under similar circumstances. Accordingly, paragraph 4 
will greatly improve the ability of the United States to obtain 
extradition for a great number of offenses, including narcotics 
trafficking and terrorism, which frequently are initiated or 
orchestrated from abroad.
    Paragraph 5 provides that when extradition has been granted 
for an extraditable offense, it shall also be granted for other 
less serious offenses with which the person is charged, but 
which, standing alone, would not be extraditable for the sole 
reason that they are not punishable by more than one year of 
imprisonment. Thus, if Argentina agrees to extradite to the 
United States a fugitive wanted for prosecution on a felony 
charge, the United States will also be permitted to obtain 
extradition for any misdemeanor offenses that have been charged 
and specified in the request, so long as those misdemeanors 
would also be recognized as criminal offenses in Argentina, and 
all other requirements of the Treaty (except the minimum 
penalty requirement of Article 2(1)) are met. This provision, 
which is consistent with recent United States extradition 
practice, is generally desirable from the standpoint of both 
the fugitive and the prosecuting country. It permits all 
charges against the fugitive to be disposed of more quickly and 
efficiently, by facilitating either plea agreements, when 
appropriate, or trials while evidence is still fresh, and by 
permitting the possibility of concurrent sentences. Similar 
provisions are found in many recent United States extradition 
treaties. \42\

                         Article 3--Nationality

    Article 3 provides that extradition and surrender shall not 
be refused on the ground that the person sought is a national 
of the Requested Party.
    Although Argentina has no constitutional provision or 
statute which expressly prohibits the extradition of Argentine 
nationals, in our experience, securing the extradition of 
Argentine citizens from Argentina has been extremely difficult. 
The 1972 treaty does not mandate the extradition of nationals, 
and, in the absence of such an affirmative obligation to do so, 
Argentine courts have interpreted Argentine law to allow 
Argentine citizens who have been found extraditable to the 
United States to choose whether they wish to be extradited or, 
in the alternative, to stand trial in Argentina for the 
offenses committed in the United States. It is the policy of 
the United States to extradite its citizens for offenses 
committed abroad. \43\
    The Argentine delegation agreed to the U.S. proposal in 
Article 3, which clearly provides for the mandatory extradition 
of nationals with no restrictions or exceptions. \44\ This 
provision will greatly improve the ability of the United States 
to secure the extradition of Argentine citizens who violate 
state or federal criminal laws in the United States and 
thereafter seek haven in Argentina.

               Article 4--Political and Military Offenses

    Paragraph 1 of this Article contains a general rule that 
prohibits extradition for political offenses. This principle is 
commonly known as the ``political offense exception'' to 
extradition. \45\
    Notwithstanding the general rule in paragraph 1, paragraph 
2 describes several categories of offenses that shall not be 
considered to be political offenses. This is a common provision 
in United States extradition treaties. \46\
    First, paragraph 2(a) provides that the political offense 
exception shall not apply to an attack or other willful crime 
against the physical integrity of a Head of State of the United 
States or Argentina or a member of their families. This is the 
so-called ``attentat clause,'' which first began appearing in 
extradition treaties in the early 1900s in order to preclude 
lenient treatment of anarchists and assassins of Heads of 
State. Recent U.S. treaties have broadened its coverage to 
include attacks against a Head of State's family as well. The 
phrase ``attack or other willful crime against the physical 
integrity'' was used to limit this clause's coverage to violent 
crimes.
    Second, paragraph 2(b) states that the political offense 
exception shall not apply to offenses for which both Parties 
have, pursuant to a multilateral treaty, the obligation to 
extradite or prosecute. This clause is included to ensure that 
the political offense exception does not conflict with and 
frustrate international obligations that the United States and 
Argentina have undertaken, or will undertake, in other treaties 
to ensure that persons accused of certain serious, 
internationally recognized crimes are brought to justice. 
Examples of conventions to which this clause would apply at 
present include: the Convention on the Prevention and 
Punishment of Crimes Against Internationally Protected Persons, 
Including Diplomatic Agents; \47\ the International Convention 
Against the Taking of Hostages; \48\ the Convention for the 
Suppression of Unlawful Seizure of Aircraft (Hijacking); \49\ 
and the Convention for the Suppression of Unlawful Acts Against 
the Safety of Civil Aviation (Sabotage). At the instance of the 
Argentine delegation and to stress the seriousness of those 
offenses, the delegations included specific reference to 
treaties relating to genocide, acts of terrorism, and narcotics 
trafficking.
    Paragraph 4 of this Article states that the Requested State 
may refuse extradition if the request relates to an offense 
under military law which would not be an offense under ordinary 
criminal law. \50\ This also is a common provision in United 
States extradition treaties. \51\
    Finally, paragraph 2, subparagraphs (c), (d), and (e), 
states that the political offense exception shall not apply to 
an attempt to commit, a conspiracy or illicit association to 
commit, or participation in the commission of, the offenses in 
subparagraphs (a) and (b).
    Paragraph 3 states that extradition shall not be granted if 
the competent authority of the Requested State determines that 
the extradition request was politically motivated. This 
provision applies when the offense for which extradition has 
been requested does not fall within the definition of a 
political offense, but it is shown that the foreign State's 
extradition request is for the actual purpose of punishing the 
person sought for political reasons. Under U.S. law and 
practice, a claim that the extradition request was politically 
motivated, unlike a claim involving the political offense 
exception, falls outside the scope of judicial review and is 
exclusively for the executive branch (i.e., the Secretary of 
State) to consider and decide.

                      Article 5--Prior Prosecution

    Paragraph 1 of this Article prohibits extradition if the 
offender has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, \52\ and 
its language is similar to that contained in many United States 
extradition treaties. \53\ This paragraph will permit 
extradition in situations in which the activities of the 
fugitive result in his being charged with different offenses in 
both countries arising out of the same basic transaction. \54\
    Paragraph 2 of this Article makes clear that extradition 
shall not be precluded by the fact that the Requested State's 
authorities declined to prosecute the person sought for the 
same offense for which extradition is requested. Moreover, 
paragraph 2 would permit extradition in situations in which the 
Requested State instituted such criminal proceedings, but 
thereafter elected to discontinue the proceedings, provided 
that the laws of the Requested State regarding double jeopardy 
would permit their future reinstitution.\55\ This provision 
should enhance the ability to extradite criminals to the 
jurisdiction which has the better chance of a successful 
prosecution.

                        Article 6--Death Penalty

    This Article permits the Requested State to refuse 
extradition in cases where the offense for which extradition is 
sought is punishable by death in the Requesting State but not 
so punishable in the Requested State, unless the Requesting 
State provides assurances that the person sought will not be 
executed. The Argentine delegation insisted on this provision 
because Argentina has abolished the death penalty and would not 
sign a treaty that would obligate it to contravene its law and 
policy against the death penalty. Similar provisions are found 
in many recent United States extradition treaties. \56\
    If Argentina ever re-establishes the death penalty, this 
Article would not prevent the United States from securing 
extradition for a capital offense provided that the offense is 
subject to capital punishment in both States.

                        Article 7--Lapse of Time

    This Article provides that extradition shall not be denied 
on the basis that the prosecution or penalty would be barred 
under the statute of limitations of the Requested State.
    This Article embodies the U.S. preferred view that, 
provided the other conditions of the Treaty are met, 
extradition should not be barred on the technicality that the 
time period established by the statute of limitations of the 
Requested State has expired. Rather, this Article recognizes 
that statutes of limitations, which may vary greatly between 
different countries and jurisdictions, are procedural obstacles 
to prosecution, often with complicated rules for their 
interruption, and due deference should be given to the laws of 
the Requesting State and its courts in determining whether the 
time for prosecution or punishment has lapsed.
    The 1972 treaty provides that extradition may be refused if 
the statute of limitations of either the Requesting or 
Requested State has expired. The new Treaty would require that 
the Requesting State include in the documentation accompanying 
extradition requests a statement that the statute of 
limitations has not expired under the Requesting State's law. 
The Requested State will be bound to accept such statement and, 
moreover, will not be permitted to consider whether its own 
statute of limitations would have run. It is expected that this 
will prevent extradition from being refused in cases where the 
Requested State's statute of limitations is shorter than that 
in the Requesting State, or where the two States' rules 
regarding the tolling (suspension) of the statute of 
limitations are different.

        Article 8--Extradition Procedures and Required Documents

    This Article sets forth the appropriate means of 
transmitting an extradition request and the required 
documentation and evidence to be submitted in support thereof. 
Basically, this Article contains similar provisions to 
corresponding articles in the United States' most recent 
extradition treaties. \57\
    Paragraph 1 of this Article requires that all requests for 
extradition be submitted in writing through the diplomatic 
channel. Paragraph 2 outlines the information that must 
accompany every request for extradition under the Treaty. 
Paragraph 3 describes the information needed, in addition to 
the requirements of paragraph 2, when the person is sought for 
prosecution in the Requesting State. Paragraph 4 describes the 
information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been convicted 
in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
authorities of the Requested State to determine quickly whether 
extradition is appropriate under the Treaty. For example, the 
``summary of the facts of the offense'' and ``the text of the 
law or laws describing the offense for which extradition is 
requested'' called for in paragraph 2(b) and (c) enable the 
Requested State to make a preliminary determination whether 
lack of dual criminality would be a basis for denying 
extradition under Article 2. Other items, such as the physical 
description and probable location of the fugitive required 
under paragraph 2(a), assist the Requested State in locating 
and apprehending the fugitive, and in proving his identity at 
the extradition hearing.
    Paragraph 2(d) requires the Requesting State to provide a 
statement that neither the prosecution nor punishment of the 
person sought is barred by the Requesting State's statute of 
limitations. Because Article 7 of the Treaty precludes 
consideration of the Requested State's statute of limitations 
in the decision on extradition, this subparagraph was included 
to provide a minimum degree of reassurance to the Requested 
State that authorities in the Requesting State have reviewed 
their own statute of limitations, and that such statute will 
not bar prosecution or punishment once the fugitive is returned 
to the Requesting State.
    Paragraph 3 requires that if the fugitive is a person 
sought for prosecution (i.e., pre-conviction), the Requesting 
State must provide: (a) a copy of the warrant of arrest; (b) a 
copy of the charging document, if any; \58\ and (c) ``such 
information as would justify the detention of the person if the 
offense had been committed in the Requested State.'' The 
language in paragraph 3(c) is consistent with fundamental 
extradition jurisprudence in the United States, in that it will 
be interpreted to require that Argentina provide such 
information as is necessary to establish ``probable cause'' to 
believe that a crime was committed and the person sought 
committed it.\59\ The Argentine delegation assured the United 
States delegation that, under Argentine law, the evidentiary 
standard for a court to order the ``detention'' of a person for 
an alleged criminal offense in Argentina, and thus the standard 
to be applied in Argentina to extradition requests under the 
Treaty, is in fact very much akin to our probable cause 
requirement.\60\
    Paragraph 4 describes the information needed, in addition 
to that required by paragraph 2, when the person sought has 
already been convicted in the Requesting State. Recognizing 
that a person may have been found guilty but not yet sentenced, 
Paragraph 4(a) requires that the Requested State provide a copy 
of the judgment of conviction, only if available.\61\ The 
paragraph makes clear that once a finding of guilt has been 
made, no showing of probable cause is required. In essence, the 
fact of conviction speaks for itself, a position taken in 
recent United States court decisions, even without a specific 
treaty provision.\62\ Under paragraph 4(b), the Requesting 
State is merely required to provide evidence which establishes 
that the person sought is the person to whom the finding of 
guilt refers. Finally, paragraph 4(c) requires that the 
Requesting State provide information regarding the sentence 
imposed (if the person has been sentenced) and the extent to 
which the sentence has been carried out. This information is 
relevant to the Requested State's determination under Article 
2(1) whether the person sought has a sufficient portion of his 
or her sentence left to serve to justify extradition.

                         Article 9--Translation

    This Article is a standard treaty provision which requires 
that all documents submitted in support of an extradition 
request must be translated into the language of the Requested 
State. Thus, requests by Argentina to the United States will be 
translated into English and requests by the United States to 
Argentina will be translated into Spanish.

                 Article 10--Admissibility of Documents

    This Article governs the certification and authentication 
procedures for documents accompanying an extradition request. 
It states that the documents shall be accepted as evidence in 
extradition proceedings if certified or authenticated by the 
appropriate accredited diplomatic or consular officer of the 
Requested State resident in the Requesting State,\63\ or if 
certified or authenticated in any other manner accepted by the 
laws in the Requested State.

                     Article 11--Provisional Arrest

    This Article describes the process by which a person may be 
arrested and detained in the Requested State while the 
extradition documents required by Article 8 are being prepared 
and translated in the Requesting State, a process which 
normally may take a number of weeks. Similar articles are 
included in all modern U.S. extradition treaties.
    Provisional arrest serves the interests of justice by 
allowing for the apprehension of fugitives who pose a risk of 
flight or danger to the community. Fleeing fugitives often do 
not stay in one place for any significant period of time, and 
frequently for less time than it takes to prepare and translate 
formal extradition documentation. Moreover, the ability to 
immediately arrest dangerous criminals obviates risks to the 
safety of the citizenry of the requested country by denying 
such criminals the opportunity to continue to engage in illegal 
activity while the full extradition documentation is being 
prepared.
    This Article also contains certain provisions to protect 
against capricious or unjustified use of provisional arrest 
authority. For example, the Article provides that provisional 
arrest may be effected only under urgent circumstances, 
requires that a valid warrant for the fugitive's arrest be 
outstanding in the requesting country, and imposes a time limit 
within which the formal extradition documentation must be 
presented to the requested country. These provisions are 
discussed in greater detail below.
    Paragraph 1 provides that provisional arrest is reserved 
for cases of urgency and such a request shall be transmitted by 
any written means either through the diplomatic channel or 
directly between the United States Department of Justice and 
the Argentine Ministry of Foreign Relations.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of a provisional arrest request. 
This paragraph requires that the Requested State be provided 
with: (1) a description of the person sought; (2) his or her 
location, if known; (3) a brief statement of the facts of the 
case; (4) a citation to the laws allegedly violated; (5) 
statement of the existence of an arrest warrant or judgment of 
conviction; (6) an explanation of the reasons for the urgency 
of the request; and (7) a statement that the formal extradition 
request will be presented.
    Paragraph 3 states that the Requesting State must be 
promptly notified of the disposition of the provisional arrest 
request.
    Paragraph 4 provides that a fugitive who has been 
provisionally arrested may be released from custody if the 
Requested State does not receive the fully documented request 
for extradition within sixty (60) days from the date of the 
fugitive's provisional arrest.
    Finally, although the person sought may be released from 
custody if the full extradition documentation is not received 
within the sixty day period, paragraph 5 makes clear that in 
such cases the person may be taken into custody again and the 
extradition proceedings recommenced if the formal request is 
received at a later date.

 Article 12--Decision on Extradition and Surrender of the Person Sought

    Paragraph 1 of this Article requires that the Requested 
State promptly notify the Requesting State of its decision on 
the extradition request.
    Paragraph 2 requires that, if extradition is denied in 
whole or in part, the Requested State must provide a reasoned 
explanation for the denial and, upon request, a copy of the 
pertinent decisions by its judicial authorities.
    Paragraph 3 provides that if, pursuant to Article 6, the 
Requested State requires assurances regarding the death 
penalty, such assurances shall be provided by the Requesting 
State prior to the surrender of the person sought.
    Paragraph 4 provides that if extradition is granted, the 
Parties shall agree on the date and place of the fugitive's 
surrender. However, if the fugitive is not removed within 
thirty (30) days of the notification described in paragraph 1 
or within the time prescribed by the law of the Requested 
State, whichever is longer,\64\ then the Requesting State risks 
the release of the person from custody and subsequent refusal 
of extradition for the same offense.

             Article 13--Temporary and Deferred Surrenders

    Occasionally, a person sought for extradition may be facing 
prosecution or serving a sentence on other charges in the 
Requested State. Article 13 provides a means for the Requested 
State to temporarily surrender the person sought to the 
Requesting State for the purpose of prosecution or, in the 
alternative, to defer extradition in such cases until the 
conclusion of the Requested State's proceedings against the 
person sought and the service of any sentence that may be 
imposed in connection therewith. Similar provisions appear in 
recent United States extradition treaties.\65\
    Paragraph 1 of Article 13 provides for the temporary 
surrender of a person wanted for prosecution in the Requesting 
State who is being prosecuted or is serving a sentence in the 
Requested State. A person temporarily transferred pursuant to 
this provision will be kept in custody while in the Requesting 
State, and will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits the Requesting State to try the person sought while 
evidence and witnesses are more likely to be available, thereby 
increasing the likelihood of successful prosecution. Such 
transfer may also be advantageous to the person sought in that: 
(1) it allows him to resolve the charges sooner; (2) subject to 
the laws of each State, it may make it possible for him to 
serve any sentence in the Requesting State concurrently with 
the sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him.
    Notwithstanding the above, temporary surrender may not 
always be feasible, especially if it would significantly 
interfere with or impede the ongoing criminal proceedings in 
the Requested State. Accordingly, paragraph 2 of this Article 
provides that the Requested State may opt to postpone the 
surrender of a person who is being prosecuted or serving a 
sentence in the Requested State until the conclusion of the 
prosecution or the completion of the service of any sentence 
imposed.\66\
    Paragraph 3 provides that, if surrender is postponed, such 
postponement shall suspend the running of the statute of 
limitations in the Requesting State for the offenses for which 
extradition is sought.\67\

                    Article 14--Concurrent Requests

    From time to time, a State will receive concurrent requests 
from two or more other States for the extradition of the same 
person, and thus the Requested State must decide to which of 
the Requesting States to surrender the person. In such 
situations where one of the Parties to this Treaty, the United 
States or Argentina, is the Requested State, and the other 
Party to this Treaty is one of the Requesting States, Article 
14 sets forth factors that the Requested State shall consider 
in determining to which country the person should be 
surrendered. Such factors include: (1) whether the requests 
were made pursuant to a treaty; (2) the place where each 
offense for which extradition is requested was committed; (3) 
the gravity of the respective offenses for which extradition is 
requested; (4) the respective interests of the Requesting 
States; (5) the possibility of further extradition between the 
Requesting States; and (6) the chronological order in which the 
requests were received from the Requesting States.
    This Article makes clear that the Requested State is not 
limited to the above enumerated factors but should consider all 
relevant factors in weighing its decision to which State to 
surrender the person sought. The enumerated factors, however, 
are intended to provide guidance to the Requested State and 
prevent arbitrary decisions. Among other things, the enumerated 
factors recognize: (1) the precedence of requests for which 
there is a treaty obligation to extradite over requests for 
which there is no such obligation; (2) the importance of 
surrendering the person to the State where the principal 
individual or societal harm was done as a result of the 
offenses, where the most serious charges are being pursued, or 
where there is otherwise the greatest interest in prosecuting 
the person sought; (3) the importance of each Requesting 
State's ability to subsequently extradite the person to another 
Requesting State for prosecution, so as to ensure that the 
person can be prosecuted to the fullest extent possible; and 
(4) the precedence of a request received first in time.
    For the United States, the Executive Branch will make the 
decision to which country the person should be surrendered in 
accordance with this Article.\68\ The Argentine delegation 
advised that, for Argentina, the competent authority would 
likely be the judicial branch.

             Article 15--Seizure and Surrender of Property

    At the time of their arrest in the Requested State for the 
purpose of extradition, persons are often in possession of 
property which may represent the proceeds, instrumentalities, 
or other evidence of the offenses of which they are accused in 
the Requesting State. As such, the Requesting State has an 
interest in having this property surrendered with the fugitive 
upon his extradition, so that the property may be used in the 
prosecution of the person sought, returned to the victims, or 
otherwise disposed of appropriately.
    Accordingly, paragraph 1 of this Article provides that, to 
the extent permitted by the law in the Requested State, all 
articles, documents, and evidence connected with the offense 
for which extradition is granted may be seized and surrendered 
to the Requesting State. Paragraph 1 further provides that the 
surrender of such property may occur even if extradition cannot 
be effected due to the death, disappearance, or escape of the 
person sought.
    Notwithstanding the above, paragraph 2 provides that the 
Requested State may condition the surrender of the property 
upon assurances from the Requesting State that the property 
will be returned to the Requested State as soon as practicable. 
Alternatively, the Requested State may defer the surrender of 
the property if it is needed as evidence in that State.
    Finally, paragraph 3 provides that the obligation to 
surrender property under this provision shall be subject to due 
respect for the rights of third parties in such property.

                     Article 16--Rule of Speciality

    This Article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Generally, the rule of speciality 
prohibits the prosecution of an extraditee for offenses other 
than those for which extradition was granted. By limiting 
prosecution to those offenses for which extradition was 
granted, the rule is intended to prevent a request for 
extradition from being used as a subterfuge to obtain custody 
of a person for trial or service of sentence on different 
charges that may not be extraditable under the Treaty or 
properly documented at the time that the request is granted. 
This Article sets forth the current formulation of the rule and 
its established exceptions.
    Paragraph 1 of this Article provides that a person 
extradited under the Treaty may not be detained, tried, or 
punished in the Requesting State except for: (1) an offense for 
which extradition was granted or a differently denominated or 
less serious offense that nonetheless is based on the same 
facts as the offense for which extradition was granted provided 
such offense is extraditable;\69\ (2) an offense committed 
after extradition\70\; or (3) any other offense for which the 
Requested State gives consent.\71\ Paragraph 1 also provides 
that, in cases where such consent is sought, the Requested 
State may require the submission of the supporting 
documentation called for in Article 8 and the State seeking the 
consent may detain the person for ninety days, or such longer 
period of time as the Requested State may authorize, while the 
request for consent is being processed.
    Paragraph 2 of this Article prohibits the Requesting State 
from surrendering the person to a third State for a crime 
committed prior to extradition under this Treaty without the 
consent of the State from which extradition was first 
obtained.\72\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on the detention, trial, or punishment of an extraditee 
for offenses other than those for which extradition was 
granted, or the extradition of that person to a third State, 
if: (1) the extraditee leaves the Requesting State and 
voluntarily returns to it; or (2) the extraditee does not leave 
the Requesting State within twenty days of being free to do 
so.\73\

                   Article 17--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State.\74\ This Article provides 
that when a fugitive consents to surrender to the Requesting 
State, the person may be returned to the Requesting State as 
expeditiously as possible without further proceedings. Such 
consent must be given before a judicial authority of the 
Requested State. The Parties anticipate that in such cases 
there would be no need for the formal documents described in 
Article 8, or further judicial or administrative proceedings of 
any kind.
    Furthermore, in the case where the person sought elects to 
return voluntarily to the Requesting State under this Article, 
it would not be deemed an ``extradition'', and therefore the 
rule of speciality in Article 16 would not apply.

                          Article 18--Transit

    At times, law enforcement authorities escorting a 
surrendered person back to the State where he is wanted for 
trial or punishment are unable to take such person directly 
from the surrendering State to the receiving State and must 
make a stop, scheduled or unscheduled, in another State. This 
Article governs those situations in which one Party to this 
Treaty is the receiving State and the other Party is the State 
through which the surrendered person must be transited.\75\
    Paragraph 1 of this Article gives each Party the power to 
authorize transit through its territory of persons being 
surrendered to the other Party by a third country. Requests for 
transit under this Article are to be transmitted through the 
diplomatic channel or directly between the United States 
Department of Justice and the Argentine Ministry of Foreign 
Relations or through the facilities of the International 
Criminal Police Organization (INTERPOL). Transit requests must 
contain a description of the person being transported and a 
brief statement of the facts of the case upon which his 
extradition is based. Paragraph 1 also provides that the person 
in transit may be detained in custody during the period of 
transit.
    Paragraph 2 states that no authorization is needed if air 
transportation is being used and no landing is scheduled in the 
territory of the other Party. If an unscheduled landing occurs 
in the territory of a Party, that Party may require a request 
as provided in paragraph 1 of this Article. If such request is 
required, it shall be provided within ninety-six hours of the 
unscheduled landing, and the person in transit may be detained 
until the transit is effected.

                Article 19--Representation and Expenses

    Paragraph 1 of this Article provides that authorized 
representatives of the Requested State shall advise, assist, 
appear in court on behalf of, and represent the interests of 
the Requesting State in any proceedings related to a request 
for extradition.\76\
    Paragraph 2 provides that the Requesting State will bear 
expenses of extradition relating to the translation of 
documents and the transportation of a fugitive to the 
Requesting State. The Requested State shall pay all other 
expenses incurred in that State by reason of the extradition 
proceedings.
    Paragraph 3 provides that neither State shall make any 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, custody, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.\77\

                    Article 20--Competent Authority

    This Article states that, for the United States, the term 
``competent authority'', as used in the Treaty, means the 
appropriate authorities of the executive branch.
    The term ``competent authority'' is used in Articles 4, 14, 
and 16 of the Treaty, and this provision was included to make 
clear that the executive branch of the United States will make 
the decisions under those Articles concerning: (1) whether an 
extradition request was politically motivated; (2) to which 
State to surrender a fugitive in the face of concurrent 
extradition requests from two or more States; and (3) whether 
to consent to a surrendered person's subsequent prosecution in 
the Requesting State for offenses other than those for which 
extradition was granted.
    Under United States law and practice, it is well-
established that the executive branch is the competent 
authority for making such decisions. Accordingly, this Article 
neither expands the power of the executive nor diminishes the 
power of the judiciary beyond that which is already recognized 
in U.S. extradition law.
    This Article was made to apply only to the United States 
because the Argentine delegation maintained that, under 
Argentine extradition practice, the ``competent authority'' as 
used in the Treaty may in some cases be the Argentine judicial 
branch.

                        Article 21--Consultation

    This Article provides that the Parties may consult with 
each other directly in connection with the processing of 
individual extradition cases and in furtherance of maintaining 
and improving procedures for the implementation of the Treaty. 
This is a standard provision in modern U.S. extradition 
treaties.\78\

                        Article 22--Application

    This Article, like its counterparts in many of the other 
United States extradition treaties negotiated in the past two 
decades,\79\ expressly makes the Treaty retroactive to cover 
offenses that occurred before as well as after it enters into 
force.
    The retroactive application of extradition treaties does 
not violate the ex post facto clause of the U.S. 
Constitution.\80\ Extradition treaties do not, of course, make 
acts crimes. They merely provide a means by which persons who 
committed acts that were criminal offenses at the time of their 
commission can be held to answer for those offenses.\81\

      Article 23--Ratification, Entry Into Force, and Termination

    This Article contains standard treaty provisions regarding 
the ratification, entry into force, and termination of the 
Treaty. Paragraph 1 provides that the Treaty shall be subject 
to ratification, and that instruments of ratification shall be 
exchanged as soon as possible. Paragraph 2 provides that the 
Treaty will enter into force the day after the date of the 
exchange of the instruments of ratification.
    Paragraph 3 of this Article provides that the 1972 treaty 
shall cease to be in effect upon entry into force of this 
Treaty. Nevertheless, the 1972 treaty shall continue to apply 
to extradition proceedings in which extradition documents have 
already been submitted to the courts when this Treaty enters 
into force. Paragraph 3 contains additional caveats, however, 
that Article 17 of this Treaty (waiver of extradition) shall 
apply to such proceedings,\82\ and Article 16 of this Treaty 
(rule of speciality) shall apply to persons found extraditable 
under the 1972 treaty.\83\
    Paragraph 4 of this Article contains standard treaty 
language for the termination of the Treaty by either Party 
through written notice to the other Party, and states that 
termination shall become effective six months after the date of 
such notice.

Technical Analysis of The Extradition Treaty Between The United States 
     of America and the Republic of Austria signed January 8, 1998

    On January 8, 1998, the United States signed a treaty on 
extradition with the Republic of Austria (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will replace the treaty now in 
force,\84\ and constitutes a major step forward in the United 
States' efforts to win the cooperation of key foreign countries 
in combating transnational organized crime, terrorism, and drug 
trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. The Republic of 
Austria has its own internal law\85\ that will apply to United 
States' requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other Contracting State persons 
charged with or found guilty of an extraditable offense, 
subject to the provisions of the Treaty. The article refers to 
authorities ``in'' the Requesting State rather than ``of'' the 
Requesting State, since the obligation to extradite, in cases 
arising from the United States, would include state and local 
authorities as well as federal cases. The term ``found guilty'' 
was used instead of ``convicted'' because in Austria a person 
is not considered convicted until a sentence has been imposed, 
whereas in the United States, a sentence is ordinarily not 
imposed on a convicted person until after a presentence report 
has been prepared and reviewed. Thus, sentencing in the United 
States may occur at some considerable time after there has been 
a finding of guilt. The negotiators intended to make it clear 
that the Treaty applies to persons adjudged guilty who flee 
prior to sentencing.\86\

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, like the 
recent United States extradition treaties with Jamaica, Jordan, 
Italy, Ireland, Thailand, Sweden (Supplementary Convention) and 
Costa Rica, does not list the offenses for which extradition 
may be granted. Instead, paragraph 1 permits extradition for 
any offense which is subject under the laws in both Contracting 
States to deprivation of liberty (i.e., imprisonment or other 
form of detention) for more than one year, or by a more severe 
penalty (such as capital punishment under the laws in the 
United States). Defining extraditable offenses in terms of 
``dual criminality'' rather than attempting to list each 
extraditable crime obviates the need to renegotiate the Treaty 
or supplement it if both Contracting States pass laws dealing 
with a new type of criminal activity, or if the list 
inadvertently fails to cover a type of criminal activity 
punishable in both nations.
    Paragraph 2 requires that if the person has already been 
convicted and sentenced, the person must have at least three 
months of that sentence still to serve. Most U.S. extradition 
treaties signed in recent years do not contain such a 
requirement, but provisions of this kind do appear in some 
recent United States extradition treaties.\87\
    Paragraph 3 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense even if the time conditions in Paragraphs 1 and 2 
do not apply, provided that all of the other requirements for 
extradition are met. For example, if Austria agrees to 
extradite to the United States a fugitive wanted for 
prosecution on a felony charge (punishable by more than one 
year of imprisonment), the United States may also obtain 
extradition for any misdemeanor offenses (punishable by a 
shorter sentence) that have been charged, as long as those 
misdemeanors are also recognized as criminal offenses in the 
Republic of Austria. Thus, the Treaty incorporates recent 
United States extradition practice by permitting extradition 
for misdemeanors committed by a fugitive when the fugitive's 
extradition is granted for a more serious extraditable offense. 
This practice is generally desirable from the standpoint of the 
Requesting State in that it permits all charges to be disposed 
of more quickly, thereby facilitating trials while evidence is 
fresh and a concurrent sentence is possible. Similar clauses 
are found in our recent extradition treaties with Australia, 
Ireland, Italy, and Costa Rica.
    Paragraph 4 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Subparagraph (A) requires the Requested State to disregard 
differences in the categorization of the offense in determining 
whether dual criminality exists, and to overlook mere 
differences in the terminology used to define the offense under 
the laws of the Contracting States. Subparagraph (B) prevents 
extradition from being denied in tax, customs duties, or import 
or export of commodities solely because the Requested State 
does not have the same taxes, currency controls, or import-
export laws. This was included to override Section 15(2) of 
Austrian Extradition Law, which would otherwise forbid 
extradition for crimes that are exclusively tax, customs, or 
import offenses. Subparagraph (C) was included because judges 
in foreign countries often are confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges know of no similar 
requirements in their own criminal law, they occasionally have 
denied the extradition of fugitives sought by the United States 
on federal charges on this basis. This paragraph requires that 
such elements be disregarded in applying the dual criminality 
principle. For example, Austria's authorities must treat United 
States mail fraud charges\88\ in the same manner as fraud 
charges under state laws, and view the federal crime of 
interstate transportation of stolen property\89\ as they would 
unlawful possession of stolen property.
    Paragraph 5 follows the practice of recent extradition 
treaties in providing that extradition be granted for 
attempting or conspiring to commit, or otherwise participating 
in the commission of an extraditable offense. As conspiracy 
charges are frequently used in United States criminal cases, 
particularly those involving complex transnational criminal 
activity, it is especially important that the Treaty be clear 
on this point. Thus, Paragraph 5 makes it clear that crimes, 
such as attempts and conspiracy, that might be considered 
inchoate are extraditable if the related offense is an 
extraditable one pursuant to paragraph 1.
    Paragraph 6 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory 
by providing that either State may grant extradition for an 
extraditable offense regardless of where the act or acts 
constituting the offense were committed. Our jurisprudence 
recognizes the jurisdiction of our courts to hear criminal 
cases involving offenses committed outside the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\90\ The 
Austrian Government's ability to prosecute extraterritorial 
offenses is also quite wide, for its law gives it extensive 
jurisdiction to prosecute for extraterritorial offenses and an 
obligation to prosecute offenses committed by Austrian 
nationals anywhere in the world provided that the acts 
constituting the offense were punishable at the place of 
commission.\91\ Paragraph 6 reflects the Parties' agreement 
that either State may grant extradition to each other for 
extraterritorial offenses regardless of where the offense was 
committed.\92\ A similar provision is contained in other recent 
U.S. extradition treaties.\93\

                         Article 3--Nationality

    Article 3 states that neither State shall be bound to 
extradite its own nationals, but the executive authority of the 
Requested State shall have the power to do so [if, in its 
discretion, it be deemed proper to do so and] provided that the 
law of the Requested State does not so preclude. The United 
States does not deny extradition on the basis of the offender's 
citizenship.\94\ Our long-standing policy is to draw no 
distinction between citizens and others for extradition 
purposes. Austria, however is specifically prohibited under its 
extradition law from extraditing its nationals.\95\ Therefore, 
it is unlikely that Austria will actually surrender its 
nationals to the United States under the Treaty unless 
Austria's law and policy changes.
    Paragraph 2 states that if the Requested State denies 
extradition solely on the basis of the nationality of the 
offender, that State must submit the case to its authorities 
for prosecution if requested to do so by the Requesting State. 
Similar provisions are in many of our extradition treaties.\96\

               Article 4--Political and Military Offenses

    Paragraph 1 prohibits extradition if the offense for which 
extradition is requested is a political offenses.\97\ This is a 
standard provision in recent United States extradition 
treaties.
    Paragraph 2 describes three categories of offenses that 
shall not be considered political offenses.
    First, the political offense exception does not apply to 
murder, against any person or under any circumstances.
    Second, the offense does not apply to any other willful 
crimes against the person of a Head of State of one of the 
Contracting States, or a member of the Head of State's family.
    Third, the political offense exception does not apply to 
offenses for which both Contracting States have an obligation 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for decision regarding prosecution, such 
as the 1988 UN Convention Against the Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\98\
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request is politically motivated.\99\ United States 
law and practice have been that the Secretary of State has the 
sole discretion to determine whether an extradition request is 
based on improper political motivation.\100\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\101\

             Article 5--Jurisdiction of the Requested State

    Paragraph 1 permits the Requested State to refuse 
extradition if the person sought is being prosecuted in the 
Requested State for the offense for which extradition is 
requested. This provision was included to keep the treaty 
consistent with Austrian law.\102\
    Paragraph 2 makes it clear that either Party may grant 
extradition where the Requested State's authorities have 
declined to prosecute the offender, or have instituted criminal 
proceedings against the offender and thereafter elected to 
discontinue the proceedings. This provision was included 
because a decision by the Requested State to forego 
prosecution, or to drop charges already filed, could be the 
result of a failure to obtain sufficient evidence or witnesses 
for trial, whereas the prosecution in the Requesting State 
might not suffer from the same impediments. This provision 
should enhance the ability to extradite to the jurisdiction 
with the better chance of a successful prosecution.\103\

                       Article 6--Non Bis in Idem

    This article permits extradition when the person sought is 
charged by each Contracting State with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or discharged with final and binding 
effect in the Requested State for the offense for which 
extradition is requested, is similar in effect to language 
present in many United States extradition treaties. This 
provision applies only when the person sought has been 
convicted or acquitted in the Requested State of exactly the 
same crime that is charged in the Requesting State. It is not 
enough that the same facts were involved. Thus, if the person 
sought is accused by one Contracting State of illegally 
smuggling narcotics into that country, and is charged by the 
other Contracting State with unlawfully exporting the same 
shipment of drugs, an acquittal or conviction in one 
Contracting State does not insulate that person from 
extradition because different crimes are involved.
    Paragraph 2 states that an acquittal or discharge for lack 
of jurisdiction is not an obstacle to extradition. This 
provision avoids the possibility of a miscarriage of justice if 
the Requested State were to attempt to prosecute a suspect over 
which it has no jurisdiction, discover that it cannot proceed, 
then use its error as a basis for shielding the suspect from 
extradition to the State that does have jurisdiction and wishes 
to prosecute.

                        Article 7--Lapse of Time

    Article 7 states that extradition shall not be granted if 
the prosecution or the carrying out of the sentence has become 
barred by lapse of time under the laws of the Requesting State. 
The reference to ``the carrying out of the sentence'' reflects 
the fact that Austria, like many civil law countries, has a 
statute of limitations relating to such matters, in addition to 
a statute of limitation on prosecutions.
    Under this provision a court in the Requested State will 
not apply the Requested State's statute of limitations under 
the erroneous belief that it should do so in order to determine 
whether dual criminality exists. The article permits 
extradition to be denied only if the Requesting State's statute 
of limitations bars prosecution or enforcement of the sentence. 
Several recent U.S. extradition treaties contain similar 
provisions.\104\

                     Article 8--Capital Punishment

    This article was the subject of extensive discussion 
between the two delegations, inasmuch as the revision of this 
provision of the 1930 Convention was an important objective for 
the Austrian delegation. Austria's Constitution forbids the 
death penalty,\105\ and Austria regards the extradition of a 
person from Austria to face execution or even the imposition of 
the death penalty in the United States as inconsistent with its 
Constitution. Austrian law explicitly requires that ``in 
respect of an offense punishable by the death penalty according 
to the law of the requesting state [extradition] shall be 
allowed only if it is guaranteed that the death penalty will 
not be pronounced. An extradition for enforcement of the death 
penalty shall not be allowed.''\106\
    Paragraph 1 permits the Requested State to refuse to 
extradite when the offense for which extradition is sought is 
punishable by death in the Requesting State but is not 
punishable by death in the Requested State, unless the 
Requesting State provides an assurance that the death penalty 
will not be imposed (in the case of a person sought for trial) 
or carried out (in the case of a person already sentenced to 
death at the time extradition is requested). The Austrian 
delegation told the United States delegation that it is 
virtually inconceivable that Austria would ever grant 
extradition without the assurances described in this paragraph, 
which is similar in spirit and effect to provisions found in 
other recent United States extradition treaties.\107\
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, extradition shall be 
granted, and the assurances shall be binding on the Requesting 
State.

                   Article 9--Convictions in Absentia

    This article states that if the person sought was convicted 
in absentia, the Requesting State's executive authority may 
refuse extradition unless the Requesting State supplies 
information demonstrating that the person has been given an 
adequate opportunity to present a defense to the charges. This 
paragraph will enable the Secretary of State to carry out the 
long-standing United States policy of extraditing persons who 
were convicted in absentia only when the person has had or will 
have a meaningful opportunity in the Requesting State to be 
heard on the issue of guilt or innocence. A similar provision 
is found in some other U.S. extradition treaties.\108\

       Article 10--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to Article 13. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided that the requirements of Article 13 
are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial in the Requesting State. Paragraph 4 describes 
the information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``the text of the law describing the essential elements of 
the offense for which extradition is requested,'' which enables 
the Requested State to determine easily whether the request 
satisfies the requirement for dual criminality.
    Paragraph 3 requires that if the fugitive has not yet been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide a copy of the arrest warrant, a 
copy of the charging document, if available, and ``documents 
setting forth sufficient information to provide a reasonable 
basis to believe that the person to be extradited committed the 
offense for which extradition is requested and is the person 
named in the warrant of arrest.'' This provision is meant to 
satisfy the standard of ``probable cause,'' under which our 
courts permit extradition if there is probable cause to believe 
that an extraditable offense was committed and that the 
fugitive committed it.\109\
    Paragraph 4 lists the information needed to extradite a 
person who has been convicted of an offense in the Requesting 
State. This paragraph makes it clear that once a conviction has 
been obtained, no showing of probable cause is required. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions even absent a 
specific treaty provision.\110\
    Paragraph 5 states that the documents transmitted through 
diplomatic channels in support of the extradition request shall 
be admissible in extradition proceedings without further 
certification, authentication, or legalization.

                 Article 11--Supplementary Information

    This article provides for the submission of additional 
evidence or information if the original request and supporting 
documentation are viewed as insufficient by the Requested 
State. This is intended to permit the Requesting State to have 
an opportunity to cure any defects in the request and to permit 
the court in the Requested State, in appropriate cases, to 
grant a reasonable continuance to obtain, translate, and 
transmit additional materials. A somewhat similar provision is 
found in other United States extradition treaties.\111\

                        Article 12--Translation

    Article 12 requires that unless otherwise agreed, all 
documents submitted in support of the request shall be 
translated by the by the Requesting State into the language of 
the Requested State. The article also states that translations 
need not be certified.

                     Article 13--Provisional Arrest

    This article describes the process by which a person in a 
Contracting State may be arrested and detained while the formal 
extradition papers are being prepared.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
Austria's Ministry of Justice. The provision also indicates 
that INTERPOL may be used to transmit such a request.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
notified without delay of the disposition of the request and 
the reasons for its denial.
    Paragraph 4 provides that a person who has been 
provisionally arrested may be released from detention if the 
Requesting State does not submit a fully documented request for 
extradition to the executive authority of the Requested State 
within 60 days of the provisional arrest. When the United 
States is the Requested State, the executive authority includes 
the Secretary of State and the United States Embassy in 
Vienna.\112\ This provision does not create a right in the 
provisionally arrested person to immediate release, but affords 
the Requested State the discretion to cause such a release.
    Although the person sought may be released from custody if 
the documents are not received within the sixty-day period or 
any extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. The final paragraph in this 
article makes it clear that the person may be taken into 
custody again, and the extradition proceedings may commence if 
the formal request is presented subsequently.

                   Article 14--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide the 
reasons for the denial.
    Paragraph 2 states that if extradition is granted, the 
authorities of the Contracting States must agree on a time and 
place for surrender of the person sought.
    Paragraph 3 states that the Requesting State must remove 
the person within the time prescribed by the law of the 
Requested State, or, if the Requested State has no such law, 
within a reasonable period of time to be determined by the 
Requested State. If not, the person may be discharged from 
custody, and the Requested State may subsequently refuse to 
extradite the person for the same offense. United States law 
provides that surrender should occur within two calendar months 
of a finding that the person is extraditable,\113\ or of the 
conclusion of any litigation challenging that finding,\114\ 
whichever is later. The law in Austria does not set a specific 
time period for removal,\115\ and Austrian authorities will 
have to prescribe a reasonable period of time in each case.
    Paragraph 4 provides that when surrender or acceptance of 
delivery of a fugitive is delayed because of circumstances 
beyond the control of one of the Parties, the Party will notify 
the other before the expiration of any time limits, and a new 
date for surrender or delivery will be set.

             Article 15--Postponed and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.
    Paragraph 1 provides that the executive authority of the 
Requested State may postpone surrender of a person who is 
serving a sentence in the Requested State until the prosecution 
has been concluded and any sentence has been served.\116\ The 
provision allows the Requested State to postpone the surrender 
of a person facing prosecution or serving a sentence in the 
Requested State.
    Paragraph 2 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State.\117\ A person temporarily transferred pursuant to the 
Treaty will be returned to the Requested State at the 
conclusion of the proceedings against that person. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of a successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
permits resolution of the charges sooner; (2) subject to the 
laws in each state, it makes it possible for any sentence to be 
served in the Requesting State concurrently with the sentence 
in the Requested State; and (3) it permits defense against the 
charges while favorable evidence is fresh and more likely to be 
available. Similar provisions are found in many recent 
extradition treaties.
    Paragraph 2 also requires that a person temporarily 
surrendered under this provision receive credit for the time 
spent in custody in the territory of the Requesting State 
toward the penalty imposed or to be imposed in the Requested 
State.

            Article 16--Deferral of Extradition Proceedings

    This article complements Article 15 by expressly permitting 
the Requested State to defer the initiation of extradition 
proceedings as well as the actual surrender of the fugitive.

      Article 17--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered;\118\ for the Republic of Austria, the decision 
is made by the Minister of Justice.\119\

             Article 18--Seizure and Surrender of Property

    Article 18(1) addresses the seizure and surrender by the 
Requested State of articles, documents and evidence connected 
with the offense for which extradition is requested. To the 
extent permitted by its laws, the Requested State may seize 
such property that is connected with an offense for which 
extradition is sought. The section also provides for objects 
seized thereunder to be surrendered to the Requested State if 
extradition is granted\120\, and it states that such items may 
be surrendered even if extradition cannot be effected due to 
the death, disappearance or escape of the person sought.
    Paragraph 2 states that the Requested State may condition 
its surrender of property upon satisfactory assurances that the 
property will be returned to the Requested State as soon as 
practicable. Paragraph 2 also permits the surrender of property 
to be deferred if it is needed as evidence in the Requested 
State.
    Paragraph 3 provides that the surrender of property under 
this provision is expressly made subject to due respect for the 
rights of third parties in such property.
    Paragraph 4 states that restrictive regulations concerning 
the import and export of articles and foreign currency shall 
not apply to items surrendered under this Treaty. This 
provision was included because Austria has strict currency 
control regulations that might otherwise block the return to 
the United States of evidence or proceeds of the offense 
located in Austria, during the extradition proceedings.\121\

                     Article 19--Rule of Specialty

    This article covers the rule of specialty, a standard 
principle of United States extradition law and practice. 
Designed to ensure that a fugitive surrendered for one offense 
is not tried for other crimes, the rule of specialty prevents a 
request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or execution of a sentence 
on different charges that are not extraditable or properly 
documented in the request.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for: 
(1) the offense for which extradition was granted or a 
differently denominated offense based on the same facts, 
provided the offense is extraditable or is a lesser included 
offense; (2) an offense committed after the extradition; or (3) 
an offense for which the executive authority of the Requested 
State consents.\122\ Paragraph 1(C)(II) also permits the 
Contracting State that is seeking consent to pursue new charges 
to detain the person extradited for 90 days or for such longer 
period as the Requested State may authorize while the Requested 
State makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state without the Requested 
State's consent.
    Paragraph 3 permits the detention, trial or punishment of 
an extradited person for additional offenses or extradition to 
a third state if: (1) the extradited person leaves the 
Requesting State after extradition and voluntarily returns, or 
is lawfully returned, to it; or (2) the extradited person does 
not leave the Requesting State within thirty days of being free 
to do so.
    Paragraph 4 states that this article does not prevent the 
Requesting State from taking measures necessary to effect the 
departure of the extradited person from its territory, or to 
prevent expiration of a right of action through lapse of time.

                   Article 20--Simplified Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a fugitive consents to surrender to the Requesting 
State, the person may be returned to the Requesting State as 
expeditiously as possible without further proceedings. The 
negotiators anticipated that in such cases there will be no 
need for the formal documentation described in Article 10 or 
further judicial or administrative proceedings of any kind. The 
second sentence states that the rule of specialty is 
inapplicable to persons who elect simplified extradition. This 
is consistent with long-standing United States policy\123\ and 
with Austrian law.\124\

                          Article 21--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting State by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person whose transit is proposed and a brief statement of 
the facts of the case with respect to which transit is sought. 
The transit request may be submitted through diplomatic 
channels, or directly between the United States Department of 
Justice and the Republic of Austria Ministry of Justice. 
INTERPOL may be used for the transmittal of such requests for 
transit.
    Paragraph 2 provides that no advance authorization is 
needed for transit pursuant to the article if travel is by 
aircraft and no landing is scheduled in the territory of the 
country being transited. Should an unscheduled landing occur, a 
request for transit may be required at that time, and the 
Requested State may grant the request if, in its discretion, it 
is deemed appropriate to do so. The Treaty ensures that the 
person will be kept in custody for up to 96 hours until a 
request for transit is received and thereafter until it is 
executed.

                  Article 22--Assistance and Expenses

    Paragraph 1 provides that the Requested State shall advise 
the Requesting State and represent its interests by all legal 
means within its power in extradition proceedings before the 
judges and officials of the Requested State. Thus, the United 
States will represent Austria in connection with requests from 
Austria for extradition before the courts in this country, and 
the Austrian Minister of Justice will represent the United 
States in connection with United States extradition requests to 
Austria.
    Paragraph 2 states that the Requesting State shall bear the 
expenses of translation and transportation of the person 
sought, and the Requested State shall pay all other expenses.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination and surrender of the person sought. This includes 
any claim by the person sought for damages, reimbursement of 
legal fees, or other expenses occasioned by the execution of 
the extradition request.

                        Article 23--Consultation

    This article provides that the United States Department of 
Justice and the Republic of Austria Ministry of Justice may 
consult with each other with regard to an individual 
extradition case or extradition procedures in general. A 
similar provision is found in other recent United States 
extradition treaties.\125\

                        Article 24--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive and covers offenses that occurred before as well as 
after the Treaty enters into force.

             Article 25--Ratification and Entry Into Force

    The first two paragraphs of this article provide that the 
treaty will become effective only after an exchange of 
instruments of ratification at Washington, and that the Treaty 
will enter into force on the first day of the third month 
following the month in which the instruments of ratification 
are exchanged.
    Paragraph 3 provides that the 1930 Treaty and 1934 
Supplementary Convention will cease to have effect upon the 
entry into force of the Treaty, but extradition requests 
pending before the courts when this Treaty enters into force 
will nevertheless be processed to conclusion under the prior 
Treaty and Supplementary Convention. Nevertheless, Article 2 of 
this Treaty (which defines extraditable offenses) shall apply 
to such proceedings, as well as Article 15 (which deals with 
temporary and deferred surrender), and Article 19 (which 
concerns the rule of specialty). Thus, persons involved in such 
proceedings may temporarily be surrendered if the Parties 
agree, and the new provision on specialty will apply.

                        Article 26--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State. Termination shall become effective six 
months after the date of such notice.

Technical Analysis of the Extradition Treaty Between the United States 
            of America and Barbados signed February 28, 1996

    On February 28, 1996, the United States signed a treaty on 
extradition with Barbados (hereinafter ``the Treaty''). In 
recent years, the United States has signed similar treaties 
with many other countries, as part of a highly successful 
effort to modernize our law enforcement relations. The new 
extradition treaty will replace the treaty now in force,\126\ 
and constitutes a major step forward in the United States' 
efforts to win the cooperation of countries in the region in 
combating organized crime, transnational terrorism, and 
international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Barbados has its own internal legislation on extradition,\127\ 
which will apply to United States' requests under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\128\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Barbados delegation that U.S. 
offenses such as operating a continuing criminal enterprise 
(Title 21, United States Code, Section 848), would be 
extraditable, and that offenses under the racketeering statutes 
(Title 18, United States Code, Section 1961-1968) would be 
extraditable if the predicate offense would be an extraditable 
offense. The Barbados delegation also stated that extradition 
would be possible for such high priority offenses as drug 
trafficking, terrorism, money laundering, tax fraud or tax 
evasion, crimes against environmental protection laws, and 
antitrust violations punishable in both states by one year of 
imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Barbados has no general 
conspiracy statute like Title 18, United States Code, Section 
371. Therefore, paragraph 2 creates an exception to the ``dual 
criminality'' rule of paragraph 1 by making conspiracy an 
extraditable crime if the offense which was the object of the 
conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Barbados 
authorities must treat United States mail fraud charges (Title 
18, United States Code, Section 1341) in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property (Title 18, United 
States Code, Section 2314) in the same manner as unlawful 
possession of stolen property. This paragraph also requires a 
Requested State to disregard differences in the categorization 
of the offense in determining whether dual criminality exists, 
and to overlook mere differences in the terminology used to 
define the offense under the laws of each country. A similar 
provision is contained in all recent United States extradition 
treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\129\ In 
Barbados, however, the Government's ability to prosecute 
extraterritorial offenses is much more limited. Therefore, 
Article 2(4) reflects Barbados' agreement to recognize United 
States jurisdiction to prosecute offenses committed outside of 
the United States if Barbados' law would permit it to prosecute 
similar offenses committed outside of it in corresponding 
circumstances. If the Requested State's laws do not so provide, 
the final sentence of the paragraph states that extradition may 
be granted, but the executive authority of the Requested State 
has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Barbados agrees to extradite to the United States a fugitive 
wanted for prosecution on a felony charge, the United States 
will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Barbados. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\130\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\131\ and the Barbados extradition law contains no 
exception for Barbadian nationals. Therefore, Article 3 of the 
Treaty provides that extradition is not to be refused based on 
the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\132\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses that are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\133\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\134\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\135\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\136\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\137\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel.\138\ A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 are met.
    Article 6(2) outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in Article 6(2) enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in Article 6(2), however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
the law describing any time limit on the prosecution,'' even 
though Article 8 of the Treaty expressly states that 
extradition may not be denied due to lapse of time for 
prosecution. The United States and Barbados delegations agreed 
that Article 6(2)(c)(iii) should require this information so 
that the Requested State would be fully informed about the 
charges in the Requesting State.
    Article 6(3) describes the additional information required 
when the person is sought for trial in the Requesting State. 
Article 6(3)(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide probable cause, according to the 
law of the Requested State, for the arrest and committal for 
trial of the person if the offense had been committed in the 
Requested State.'' This provision will alleviate one of the 
major practical problems with extradition from Barbados. The 
1931 Treaty permits extradition only if ``. . . the evidence be 
found sufficient, according to the laws of the High Contracting 
Party applied to, either to justify the committal of the 
prisoner for trial, in the case the crime or offense had been 
committed in the territory of such High Contracting party, or 
to prove that the person is the identical person convicted by 
the courts of the High Contracting Party who makes the 
requisition . . .''.\139\ Barbados' courts have interpreted 
this clause to require that a prima facie case against the 
defendant be shown before extradition will be granted. By 
contrast, U.S. law permits extradition if there is probable 
cause to believe that an extraditable offense was committed and 
the offender committed it.\140\ Barbados' agreement to 
extradite under the above standard in this Treaty eliminates 
this imbalance in the burden of proof for extradition, and 
should dramatically improve the United States' ability to 
extradite from Barbados.
    Article 6(4) lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\141\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Barbados resident in the United States. This is 
intended to replace the cumbersome and complicated procedures 
for authenticating extradition documents applicable under the 
current law in Barbados.\142\ When the request is from 
Barbados, the documents must be certified by the principal 
diplomatic or consular officer of the United States resident in 
Barbados, in accordance with United States extradition 
law.\143\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should insure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states.\144\ The U.S. and Barbadian delegations agreed that a 
claim that the statute of limitations has expired is best 
resolved by the courts of the Requesting State after the 
fugitive has been extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\145\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Barbados. The provision also indicates 
that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the fugitive may be released from 
detention if the Requesting State does not file a fully 
documented request for extradition with the executive authority 
of the Requested State within sixty days of the date on which 
the person was arrested. When the United States is the 
Requested State, it is sufficient for purposes of this 
paragraph if the documents are received by the Secretary of 
State or the U.S. Embassy in Bridgetown, Barbados.\146\
    Article 9(5) makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States agree on a 
time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable,\147\ or of the conclusion of any litigation 
challenging that finding,\148\ whichever is later. The law in 
Barbados permits the person to apply to a judge for release if 
he has not been surrendered within two months of the first day 
on which he could have been extradited.\149\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Article 11(1) provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Article 11(2) provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment that has been 
imposed.\150\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary extradition proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision;\151\ for Barbados, 
the decision would be made by the Attorney General.\152\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\153\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Article 13(2) states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Article 13(3) makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Specialty

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\54\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\55\
    Finally, Paragraph 3 removes the restrictions of paragraphs 
1 and 2 on the detention, trial, or punishment of an extraditee 
for additional offenses, or extradition to a third State, (1) 
if the extraditee leaves and returns to the Requesting State, 
or (2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested State.

                          Article 16--Transit

    Article 16(1) gives each State the power to authorize 
transit through its territory of persons being surrendered to 
the other country by third countries.\156\ Requests for transit 
are to contain a description of the person whose transit is 
proposed and a brief statement of the facts of the case with 
respect to which he is being surrendered to the Requesting 
State. The paragraph permits the request to be transmitted 
either through the diplomatic channel, or directly between the 
United States Department of Justice and the Attorney General in 
Barbados, or via INTERPOL channels. The negotiators agreed that 
the diplomatic channels will be employed as much as possible 
for requests of this nature. A person may be detained in 
custody during the period of transit.
    Article 16(2) provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. This paragraph also permits the transit State to 
detain a fugitive and a request for transit as received and 
executed, so long as the request is received within 96 hours of 
the unscheduled landing.
    Barbados does not appear to have specific legislation on 
this matter, and the Barbados delegation stated that its 
Government would seek implementing legislation for this article 
in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Barbados in connection with a 
request from Barbados for extradition before the courts in this 
country, and the Barbados' Attorney General will arrange for 
the representation of the United States in connection with 
United States extradition requests to Barbados.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State.\157\ The negotiators recognized that 
cases may arise in which the Requesting State may wish to 
retain private counsel to assist in the presentation of the 
extradition request. It is anticipated that in such cases the 
fees of private counsel retained by the Requesting State must 
be paid by the Requesting State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Barbados may consult with each other with regard to an 
individual extradition case or on extradition procedures in 
general. A similar provision is found in other recent U.S. 
extradition treaties.\158\
    During the negotiations, the Barbados delegation raised 
concerns that the United States might invoke the Treaty much 
more often than Barbados, resulting in an imbalance in the 
financial obligations occasioned by extradition proceedings. 
While no specific Treaty language was adopted, the United 
States agreed that consultations between the Parties under 
Article 18 could address extraordinary expenses arising from 
the execution of individual extradition requests or requests in 
general. At the request of Barbados, the United States 
delegation also promised to provide training and technical 
assistance to prosecutors and legal officials in Barbados, to 
better educate and equip them to implement this Treaty.

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1931 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1931 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language on the 
procedure for termination of the Treaty by either State. 
Termination shall become effective six months after notice of 
termination is received.

Technical Analysis of The Extradition Treaty Between The United States 
       of America and the Republic of Cyprus signed June 17, 1996

    On June 17, 1996, the United States signed a treaty on 
extradition with the Republic of Cyprus (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will replace the treaty now in 
force,\159\ and constitutes a major step forward in the United 
States' efforts to win the cooperation of key foreign countries 
in combating transnational organized crime, terrorism, and drug 
trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. The Republic of Cyprus 
has its own internal law,\160\ which will apply to United 
States' requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other Contracting State persons 
sought for prosecution or convicted of an extraditable offense, 
subject to the provisions of the Treaty. The negotiators agreed 
that the term ``convicted'' includes instances in which the 
person has been found guilty but the sentence has not yet been 
imposed.\161\ The negotiators intended to make it clear that 
the Treaty applies to persons adjudged guilty who flee prior to 
sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, similar 
to the recent United States extradition treaties with Jamaica, 
Jordan, Italy, Ireland, Thailand, Sweden (Supplementary 
Convention) and Costa Rica, does not list the offenses for 
which extradition may be granted. Instead, paragraph 1 permits 
extradition for any offense punishable under the laws of both 
Contracting States by deprivation of liberty (i.e., 
imprisonment or other form of detention) for more than one 
year, or by a more severe penalty such as capital punishment 
under the laws of the United States. Defining extraditable 
offenses in terms of ``dual criminality'' rather than 
attempting to list each extraditable crime obviates the need to 
renegotiate the Treaty or supplement it if both Contracting 
States pass laws dealing with a new type of criminal activity, 
or if the list inadvertently fails to cover a type of criminal 
activity punishable in both nations.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition be granted for 
attempting or conspiring to commit, aiding or abetting, 
counseling or procuring, or otherwise being an accessory to an 
extraditable offense. As conspiracy charges are frequently used 
in United States criminal cases, particularly those involving 
complex transnational criminal activity, it is especially 
important that the Treaty be clear on this point. Paragraph 2 
creates an exception to the dual criminality rule of paragraph 
1 by expressly making inchoate crimes such as conspiracy 
extraditable offenses if the object of the inchoate offense is 
an extraditable offense pursuant to paragraph 1.
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Judges in foreign countries often are confused by the fact that 
many United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges know of no similar 
requirements in their own criminal law, they occasionally have 
denied the extradition of fugitives sought by the United States 
on federal charges on this basis. This paragraph requires that 
such elements be disregarded in applying the dual criminality 
principle. For example, it will ensure that Cyprus' authorities 
treat United States mail fraud charges\162\ in the same manner 
as fraud charges under state laws, and view the federal crime 
of interstate transportation of stolen property\163\ in the 
same manner as unlawful possession of stolen property. This 
paragraph also requires the Requested State to disregard 
differences in the categorization of the offense in determining 
whether dual criminality exists, and to overlook mere 
differences in the terminology used to define the offense under 
the laws of the Contracting States. A similar provision is 
contained in all recent United States extradition treaties.
    Paragraph 4 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes the jurisdiction of our courts to 
hear criminal cases involving offenses committed outside the 
United States if the crime was intended to, or did, have 
effects in this country, or if the legislative history of the 
statute shows clear Congressional intent to assert such 
jurisdiction.\164\ In Cyprus, however, the government's ability 
to prosecute extraterritorial offenses is much more limited. 
Paragraph 4 reflects Cyprus' agreement to recognize United 
States jurisdiction to prosecute offenses committed outside the 
United States if Cyprus' law would permit the Republic of 
Cyprus to prosecute similar offenses committed abroad in 
corresponding circumstances. If the Requested State's laws do 
not so provide, the final sentence of the paragraph states that 
extradition may be granted, but the executive authority of the 
Requested State has the discretion to deny the request by not 
setting in motion the procedure for extradition.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense specified in the request, if all of the 
requirements for extradition are met, except for the 
requirement that the offense be punishable by more than one 
year of imprisonment. For example, if Cyprus agrees to 
extradite to the United States a fugitive wanted for 
prosecution on a felony charge, the United States may also 
obtain extradition for any misdemeanor offenses that have been 
charged, as long as those misdemeanors are also recognized as 
criminal offenses in the Republic of Cyprus. Thus, the Treaty 
incorporates recent United States extradition practice by 
permitting extradition for misdemeanors committed by a fugitive 
when the fugitive's extradition is granted for a more serious 
extraditable offense. This practice is generally desirable from 
the standpoint of both the fugitive and the Requesting State in 
that it permits all charges to be disposed of more quickly, 
thereby facilitating trials while evidence is fresh and 
permitting the possibility of concurrent sentences. Similar 
clauses are found in recent United States extradition treaties 
with Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\165\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                   Article 3--Treatment of Nationals

    Article 3 states that neither State shall be obligated to 
extradite its own nationals, but each may do so unless 
otherwise provided by its laws and Constitution. The United 
States does not deny extradition on the basis of the offender's 
citizenship;\166\ our long-standing policy is to draw no 
distinction between citizens and others for extradition 
purposes. However, Cyprus is specifically prohibited from 
extraditing its nationals by its extradition law\167\ and 
Constitution.\168\ Therefore, it is unlikely that Cyprus will 
actually surrender its nationals to the United States under the 
Treaty unless Cyprus' law and Constitution are amended in the 
future.
    Paragraph 2 states that if the Requested State denies 
extradition solely on the basis of the nationality of the 
offender, that State must submit the case to its authorities 
for prosecution if asked to do so by the Requesting State.\169\ 
Similar provisions are found in other U.S. extradition 
treaties.\170\

               Article 4--Political and Military Offenses

    Paragraph 1 prohibits extradition for political offenses. 
This is a standard provision in recent United States 
extradition treaties.\171\
    Paragraph 2 describes three categories of offenses that 
shall not be considered political offenses.
    First, the political offense exception does not apply to 
murder or other willful crimes against the person of one of a 
Head of State of the Contracting States, or a member of the 
Head of State's family.\172\
    Second, the political offense exception does not apply to 
offenses for which both Contracting States have an obligation 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for prosecution, such as the United 
Nations Convention Against Illicit Traffic in Narcotic Drugs 
and Psychotropic Substances.\173\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or aiding or abetting the 
commission or attempted commission of, any of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request is politically motivated.\174\ United States 
law and practice have been that the Secretary of State has the 
sole discretion to determine whether an extradition request is 
based on improper political motivation.\175\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\176\

                      Article 5--Prior Prosecution

    This article permits extradition when the person sought is 
charged by each Contracting State with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, is similar 
to language present in many United States extradition 
treaties.\177\ This provision applies only when the person 
sought has been convicted or acquitted in the Requested State 
of exactly the same crime that is charged in the Requesting 
State. It is not enough that the same facts were involved. 
Thus, if the person sought is accused by one Contracting State 
of illegally smuggling narcotics into that country, and is 
charged by the other Contracting State with unlawfully 
exporting the same shipment of drugs, an acquittal or 
conviction in one Contracting State does not insulate that 
person from extradition because different crimes are involved.
    Paragraph 2 makes it clear that neither Contracting State 
may refuse to extradite a person sought on the basis that the 
Requested State's authorities declined to prosecute the person 
or instituted and later discontinued proceedings against the 
person. This provision was included because a decision of the 
Requested State to forego prosecution or to drop charges 
previously filed could be the result of a failure to obtain 
sufficient evidence or witnesses for trial, whereas the 
Requesting State's prosecution might not suffer from the same 
impediments. This provision should enhance the ability of the 
Contracting States to extradite to the jurisdiction with the 
better chance of a successful prosecution.

                     Article 6--Capital Punishment

    Paragraph 1 permits the Requested State to refuse 
extradition in cases in which the offense for which extradition 
is sought is punishable by death in the Requesting State, but 
is not punishable by death in the Requested State, unless the 
Requesting State provides assurances that the death penalty, if 
imposed, will not be carried out. Similar provisions are found 
in many recent United States extradition treaties.\178\
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, the assurances shall 
be respected, and the death penalty, if imposed, shall not be 
carried out.
    The Cyprus delegation insisted on this provision because 
its extradition law gives the Minister of Justice the explicit 
discretion to deny extradition for crimes not punishable by 
death in Cyprus if the person sought ``could be or has been 
sentenced to death for that offense in the country by which the 
request for his return is made.''\179\ However, while Cyprus 
itself has abolished the death penalty, the Cyprus delegation 
assured the United States delegation that in a particularly 
aggravated case, Cyprus might grant extradition without 
requiring assurances under this paragraph.

                        Article 7--Lapse of Time

    Article 6 states that extradition shall not be barred 
because of the prescriptive laws of either the Requesting State 
or the Requested State.\180\ The U.S. and Cypriot delegations 
agreed that a claim that the statute of limitations has expired 
is best resolved by the courts of the Requesting State after 
the fugitive has been extradited.

        Article 8--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to Article 11. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided that the requirements of Article 11 
are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial in the Requesting State. Paragraph 4 describes 
the information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``a copy of the law or a statement of the provisions of the 
law describing the essential elements of the offense for which 
extradition is requested,'' which enables the Requested State 
to determine easily whether the request satisfies the 
requirement for dual criminality under Article 2.
    Paragraph 3 requires that if the fugitive has not yet been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide a copy of the arrest warrant, a 
copy of the charging document, if available, and ``a statement 
of the facts summarizing the testimony of witnesses and 
describing physical and documentary evidence and disclosing 
reasonable grounds to believe that an offense was committed and 
the person sought committed it. For this purpose, the actual 
affidavits or testimony of witnesses need not be forwarded.'' 
This is consistent with extradition law in the United States, 
and is similar to language in other United States extradition 
treaties. It is meant to satisfy the standard of ``probable 
cause,'' under which our courts permit extradition if there is 
probable cause to believe that an extraditable offense was 
committed and that the fugitive committed it.\181\
    This provision should alleviate one of the major practical 
problems with extradition from Cyprus. The Treaty currently in 
force permits extradition only if ``. . . the evidence be found 
sufficient, according to the laws of the High Contracting State 
applied to, either to justify the committal of the prisoner for 
trial, in the case the crime or offense had been committed in 
the territory of such High Contracting party, or to prove that 
the person is the identical person convicted by the courts of 
the High Contracting State who makes the requisition . . .''. 
Cyprus' courts have interpreted this clause to require that a 
prima facie case against the defendant be shown before 
extradition will be granted. By contrast, U.S. courts interpret 
the same language to permit extradition if there is probable 
cause to believe that an extraditable offense was committed and 
the offender committed it.\182\ The language of Cyprus' 
agreement to have extradition under the new Treaty based on a 
``reasonable grounds to believe'' standard, rather than a prima 
facie case standard, equalizes the burden of proof for 
extradition and should improve the United States' ability to 
extradite from Cyprus. In Cyprus, as in many European nations, 
the law permits extradition without review of any evidence at 
all (provided that the arrest warrant and other documents are 
presented). Cyprus offered to include this in the new Treaty, 
but the U.S. delegation declined because of our Constitutional 
requirements.
    Paragraph 4 lists the information required to extradite a 
person who has been convicted of an offense in the Requesting 
State. This paragraph makes it clear that once a conviction has 
been obtained, no showing of probable cause is required. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions even absent a 
specific treaty provision.\183\ Subsection (c) states that if 
the person sought was found guilty in absentia, the 
documentation required for extradition includes both proof of 
conviction and the same documentation required in cases in 
which no conviction has been obtained. This is consistent with 
the long-standing United States policy of requiring such 
documentation in the extradition of persons convicted in 
absentia.
    Paragraph 5 states that if the information communicated by 
the Requesting State is insufficient, the Requested State shall 
request the necessary supplemental information, and may fix a 
time limit for producing such information. This article is 
intended to permit the Requesting State to cure any defects in 
the request and accompanying materials which are found by a 
court in the Requested State or by the attorney acting on 
behalf of the Requesting State, and to permit the court, in 
appropriate cases, to grant a reasonable continuance to obtain, 
translate, and transmit additional materials. A somewhat 
similar provision is found in other United States extradition 
treaties.\184\
    Paragraph 6 states that if the person sought was convicted 
in absentia, the Requesting State's executive authority may 
refuse extradition unless the Requesting State supplies 
information demonstrating that the person has been given an 
adequate opportunity to present a defense to the charges. This 
paragraph will enable the Secretary of State to carry out the 
long-standing United States policy of extraditing persons who 
were convicted in absentia only when the person has had or will 
have a meaningful opportunity in the Requesting State to be 
heard on the issue of guilt or innocence.
    Paragraph 7 states that the extradition procedures of the 
Requested State shall govern except when this treaty provides 
otherwise. This clause was requested by the Government of 
Cyprus, and carries forward a principle contained in the treaty 
now in force between the United States and Cyprus.\185\

                 Article 9--Admissibility of Documents

    Article 9 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be admitted into evidence if they purport to be certified by a 
judge, magistrate or officer of the U.S. to be the original or 
true copies of such documents and they are authenticated by the 
oath of a witness or the seal of the Secretary of State. This 
is intended to replace the cumbersome and complicated 
procedures for authenticating extradition documents applicable 
under the current treaty.\186\
    When the request is from the Republic of Cyprus, the 
documents must be admitted into evidence if they are certified 
by the principal diplomatic or consular officer of the United 
States resident in the Republic of Cyprus, in accordance with 
United States extradition law.\187\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 10--Translation

    Article 10 requires that all documents submitted in support 
of the request shall be in the language of either the 
Requesting State or the Requested State, but that the Requested 
State has the right to insist upon a translation into its own 
language.

                     Article 11--Provisional Arrest

    This article describes the process by which a person in one 
Contracting State may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting State.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
Cyprus' Ministry of Justice and Public Order. The provision 
also indicates that INTERPOL may be used to transmit such a 
request.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
notified without delay of the disposition of the request and 
the reasons for any denial.
    Paragraph 4 provides that a person who has been 
provisionally arrested may be released from detention if the 
Requesting State does not submit a fully documented request for 
extradition to the executive authority of the Requested State 
within 60 days of the provisional arrest. When the United 
States is the Requested State, the executive authority includes 
the Secretary of State and the United States Embassy in 
Nicosia.\188\
    Although the person sought may be released from custody if 
the documents are not received within the sixty-day period or 
any extension thereof, the final paragraph in this article 
makes clear that the person may be taken into custody again, 
and the extradition proceedings may commence, if the formal 
request is presented subsequently.

                   Article 12--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide the 
reasons for the denial. If extradition is granted, this article 
provides that authorities of the Contracting States shall agree 
on a time and place for surrender of the person sought. The 
Requesting State must remove the person within the time 
prescribed by the law of the Requested State or the person may 
be discharged from custody, and the Requested State may 
subsequently refuse to extradite the person for the same 
offense. United States law requires that surrender occur within 
two calendar months of a finding that the person is 
extraditable,\189\ or of the conclusion of any litigation 
challenging that finding,\190\ whichever is later. The law in 
the Republic of Cyprus permits the person to apply to a judge 
for release if he has not been surrendered within two months of 
the first day on which he could have been extradited.\191\

              Article 13--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
will be returned to the Requested State at the conclusion of 
the proceedings in the Requesting State. Such temporary 
surrender furthers the interests of justice in that it permits 
trial of the person sought while evidence and witnesses are 
more likely to be available, thereby increasing the likelihood 
of a successful prosecution. Such transfer may also be 
advantageous to the person sought in that: (1) it permits 
resolution of the charges sooner; (2) subject to the laws in 
each state, it makes it possible for any sentence to be served 
in the Requesting State concurrently with the sentence in the 
Requested State; and (3) it permits defense against the charges 
while favorable evidence is fresh and more likely to be 
available. Similar provisions are found in many recent 
extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of any punishment that has been 
imposed.\192\ The wording of the provision also allows the 
Requested State to postpone the surrender of a person facing 
prosecution or serving a sentence even if all necessary 
extradition proceedings have been completed.

    Article 14--Requests for Extradition Made by More Than One State

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered;\193\ for the Republic of Cyprus, the decision 
is made by the Minister of Justice and Public Order.\194\

             Article 15--Seizure and Surrender of Property

    This article permits the seizure by the Requested State of 
all property--articles, documents and other evidence--connected 
with the offense for which extradition is requested to the 
extent permitted by the Requested State's internal law. The 
article also provides that these objects may be surrendered to 
the Requesting State upon the granting of the extradition or 
even if extradition cannot be effected due to the death, 
disappearance or escape of the person sought. Paragraph 2 
states that the Requested State may condition its surrender of 
property upon satisfactory assurances that the property will be 
returned to the Requested State as soon as practicable. 
Paragraph 2 also permits the surrender of property to be 
deferred if it is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties in such 
property.

                     Article 16--Rule of Speciality

    This article covers the rule of speciality, a standard 
principle of United States extradition law and practice. 
Designed to ensure that a fugitive surrendered for one offense 
is not tried for other crimes, the rule of speciality prevents 
a request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or execution of a sentence 
on different charges that are not extraditable or properly 
documented in the request.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for: 
(1) the offense for which extradition was granted or a 
differently denominated offense based on the same facts, 
provided the offense is extraditable or is a lesser included 
offense; (2) an offense committed after the extradition; or (3) 
an offense for which the executive authority of the Requested 
State consents.\195\ Paragraph 1(c)(ii) permits the Contracting 
State that is seeking consent to pursue new charges to detain 
the person extradited for 90 days or for such longer period as 
the Requested State may authorize while the Requested State 
makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state for a crime committed 
prior to his extradition under this Treaty without the consent 
of the Requested State.
    Paragraph 3 removes the restrictions of paragraphs 1 and 2 
on the detention, trial or punishment of an extradited person 
for additional offenses or extradition to a third state if: (1) 
the extradited person leaves the Requesting State after 
extradition and voluntarily returns to it; or (2) the 
extradited person does not leave the Requesting State within 
ten days of being free to do so.

                   Article 17--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a fugitive consents to surrender to the Requesting 
State, the person may be returned to the Requesting State as 
expeditiously as possible without further proceedings. The 
negotiators anticipated that in such cases, there will be no 
need for the formal documentation described in Article 8, or 
further judicial or administrative proceedings of any kind.
    If the United States is the Requested State and the person 
sought elects to return voluntarily to the Republic of Cyprus 
before the United States Secretary of State signs a surrender 
warrant, the United States does not deem the process an 
``extradition.'' Long-standing United States policy has been 
that the rule of speciality as described in Article 17 does not 
apply to such cases.\196\

                          Article 18--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting State by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person whose transit is proposed and a brief statement of 
the facts of the case with respect to which transit is sought. 
The transit request may be submitted through diplomatic 
channels, or directly between the United States Department of 
Justice and the Republic of Cyprus Ministry of Justice and 
Public Order, or the facilities of INTERPOL may be used. A 
person may be detained in custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Contracting States and is traveling by aircraft and no landing 
is scheduled in the territory of the other. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours.

                Article 19--Representation and Expenses

    Paragraph 1 provides that the United States represents the 
Republic of Cyprus in connection with requests from the 
Republic of Cyprus for extradition before the courts in this 
country, and the Republic of Cyprus Attorney General arranges 
for the representation of the United States in connection with 
United States extradition requests to the Republic of Cyprus.
    Paragraph 2 states that the Requesting State shall bear the 
expenses of translation and transportation of the person 
sought, and the Requested State shall pay all other expenses.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the person sought. This includes 
any claim by the person sought for damages, reimbursement of 
legal fees, or other expenses occasioned by the execution of 
the extradition request.

                        Article 20--Consultation

    This article provides that the United States Department of 
Justice and the Republic of Cyprus Ministry of Justice and 
Public Order may consult with each other with regard to an 
individual extradition case or extradition procedures in 
general. A similar provision is found in other recent United 
States extradition treaties.\197\

                        Article 21--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive and accordingly covers offenses that occurred 
before as well as after the Treaty enters into force.

             Article 22--Ratification and Entry Into Force

    The first two paragraphs of this article contain standard 
treaty language providing for the exchange of instruments of 
ratification at Nicosia, and indicating that the Treaty will 
enter into force immediately upon the exchange.
    Paragraph 3 provides that the 1931 Treaty will cease to 
have effect upon the entry into force of the Treaty, but 
extradition requests pending before the courts when the Treaty 
enters into force will nevertheless be processed to conclusion 
under the 1931 Treaty. However, Article 16 of this Treaty, 
which concerns the rule of speciality, and Article 17, which 
deals with simplified extradition, will apply in such 
extradition proceedings. This means that persons involved in 
such proceedings may waive extradition if they wish, and the 
Government of the Requested State will be able to waive the 
application of the rule of speciality if it is persuaded that 
it is in the interests of justice to do so.

                        Article 23--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State. Termination shall become effective six 
months after the date of such notice.

Technical Analysis of the Extradition Treaty Between the United States 
            of America and Dominica Signed October 10, 1996

    On October 10, 1996, the United States signed a treaty on 
extradition with Dominica (hereinafter ``the Treaty''), which 
is intended to replace the outdated treaty currently in force 
between the two countries\198\ with a modern agreement on the 
extradition of fugitives. The new extradition treaty is one of 
twelve treaties that the United States negotiated under the 
auspices of the Organization of Eastern Caribbean States to 
modernize our law enforcement relations in the Eastern 
Caribbean. It represents a major step forward in the United 
States' efforts to strengthen cooperation with countries in the 
region in combating organized crime, transnational terrorism, 
and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Dominica has its own internal legislation on extradition,\199\ 
which will apply to United States' requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\200\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offense are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from Dominica that extradition would be 
possible for such high priority offenses as drug trafficking 
(including operating a continuing criminal enterprise, in 
violation of Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968), provided the predicate offense 
would be an extraditable offense; money laundering; terrorism; 
tax fraud and tax evasion; crimes against environmental 
protection laws; and any antitrust violations punishable in 
both states by more than one year of imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Dominica has no general 
conspiracy statute like Title 18, United States Code, Section 
371. Therefore, paragraph 2 creates an exception to the ``dual 
criminality'' rule of paragraph 1 by making conspiracy an 
extraditable crime if the offense which was the object of the 
conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Dominica 
authorities must treat United States mail fraud charges (Title 
18, United States Code, Section 1341) in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property (Title 18, United 
States Code, Section 2314) in the same manner as unlawful 
possession of stolen property. This paragraph also requires a 
Requested State to disregard differences in the categorization 
of the offense in determining whether dual criminality exists, 
and to overlook mere differences in the terminology used to 
define the offense under the laws of each country. A similar 
provision is contained in all recent United States extradition 
treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\201\ In 
Dominica, however, the Government's ability to prosecute 
extraterritorial offenses is much more limited. Therefore, 
Article 2(4) reflects Dominica's agreement to recognize United 
States jurisdiction to prosecute offenses committed outside of 
the United States if Dominica's law would permit it to 
prosecute similar offenses committed outside of it in 
corresponding circumstances. If the Requested State's laws do 
not so provide, the final sentence of the paragraph states that 
extradition may be granted, but the executive authority of the 
Requested State has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Dominica agrees to extradite to the United States a fugitive 
wanted for prosecution on a felony charge, the United States 
will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Dominica. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\202\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\203\ and the Dominican extradition law contains no 
exception for Dominica's nationals. Therefore, Article 3 of the 
Treaty provides that extradition is not to be refused based on 
the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\204\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses which are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\205\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\206\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\207\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\208\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\209\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 have been satisfied.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and Dominica delegations agreed that Article 
6(2)(c)(iii) should require this information so that the 
Requested State would be fully informed about the charges in 
the Requesting State.
    Paragraph 3 describes the additional information required 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Dominica. The Treaty 
currently in force permits extradition only if ``. . . the 
evidence be found sufficient, according to the law of the 
Requested Party . . . to justify the committal for trial of the 
person sought if the offense of which he is accused had been 
committed in the territory of the requested Party. . .''\210\ 
Dominica's courts have interpreted this clause to require that 
a prima facie case against the defendant be shown before 
extradition will be granted.\211\ By contrast, U.S. law permits 
extradition if there is probable cause to believe that an 
extraditable offense was committed and the offender committed 
it.\212\ Dominica's agreement to extradite under this new 
Treaty based on a ``reasonable basis'' standard eliminates this 
imbalance in the burden of proof for extradition and should 
significantly improve the United States' ability to extradite 
from Dominica.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions even 
absent a specific treaty provision.\213\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Dominica resident in the United States. This is 
intended to replace the cumbersome and complicated procedures 
for authenticating extradition documents applicable under the 
current treaty.\214\ When the request is from Dominica, the 
documents must be certified by the principal diplomatic or 
consular officer of the United States resident in Barbados 
accredited to Dominica, in accordance with United States 
extradition law.\215\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should insure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states. The U.S. and Dominican delegations agreed that a claim 
that the statute of limitations has expired is best resolved by 
the courts of the Requesting State after the fugitive has been 
extradited.\216\

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\217\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Dominica. The provision also indicates 
that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados.\218\
    Paragraph 5 makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article requires that the two States agree on a 
time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable,\219\ or of the conclusion of any litigation 
challenging that finding,\220\ whichever is later. The law in 
Dominica permits the person to apply to a judge for release if 
he has not been surrendered within two months of the first day 
on which he could have been extradited.\221\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment that has been 
imposed.\222\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary extradition proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision;\223\ for Dominica, 
the decision would be made by the Attorney General.\224\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\225\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\226\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\227\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on the detention, trial, or punishment of an extraditee 
for additional offenses, or extradition to a third State, (1) 
if the extraditee leaves and returns to the Requesting State, 
or (2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings and to expedite their 
return to the Requesting State. This article provides that when 
a fugitive consents to return to the Requesting State, the 
person may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested State.

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries.\228\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in Dominica, or 
via INTERPOL channels. The negotiators agreed that the 
diplomatic channels will be employed as much as possible for 
requests of this nature. Under this provision a person may be 
detained in custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. This paragraph also permits the transit State to 
detain a fugitive until a request is received and executed, so 
long as the request is received within 96 hours of the 
unscheduled landing.
    Dominica does not appear to have specific legislation on 
this matter, and the Dominica delegation stated that its 
Government would seek implementing legislation for this article 
in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Dominica in connection with a 
request from Dominica for extradition before the courts in this 
country, and the Dominica Attorney General will arrange for the 
representation of the United States in connection with United 
States extradition requests to Dominica.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of Dominica has a very small staff, and 
might need to enlist outside counsel to aid in handling a 
complex, contested international extradition proceeding. It is 
anticipated that in such cases the fees of private counsel 
retained by the Requested State would be paid by the Requested 
State. The negotiators also recognized that cases might arise 
in which the Requesting State would wish to retain its own 
private counsel to advise it on extradition matters or even 
assist in presenting the case, if the Requested State agrees. 
In such cases the fees of private counsel retained by the 
Requesting State must be paid by the Requesting State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Dominica may consult with one another with regard to an 
individual extradition case or on extradition procedures in 
general. A similar provision is found in other recent U.S. 
extradition treaties.\229\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of Dominica, the United States delegation promised to 
recommend training and technical assistance to better educate 
and equip prosecutors and legal officials in Dominica to 
implement this treaty.
    During the negotiations, the Dominica delegation also 
expressed concern that the United States might invoke the 
Treaty much more often than Dominica, resulting in an imbalance 
in the financial obligations occasioned by extradition 
proceedings. While no specific Treaty language was adopted, the 
United States agreed that consultations between the Parties 
under Article 18 could address extraordinary expenses arising 
from the execution of individual extradition requests or 
requests in general.

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State. 
Termination shall become effective six months after notice of 
termination is received.

Technical Analysis of The Extradition Treaty Between The United States 
      of America and the Republic of France signed April 23, 1996

    On April 23, 1996, as the result of negotiations first 
undertaken in 1981, the United States signed a new treaty on 
extradition with the Republic of France (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The Treaty will replace the old treaty and supplementary 
convention now in force.\230\ It constitutes a major step 
forward in efforts by the United States to win the cooperation 
of our major European allies in combating transnational 
organized crime, terrorism, and drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. The Republic of France 
has its own internal law\231\ that will apply to requests by 
the United States under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other Contracting State persons 
charged with or found guilty of extraditable offenses, subject 
to the provisions of the Treaty.
    Article 1 refers to charges brought by authorities ``in'' 
the Requesting State rather than ``of'' the Requesting State. 
It thereby obligates France to extradite fugitives to the 
United States in state and local cases as well as federal 
cases. The term ``found guilty'' is used instead of 
``convicted'' to make clear that the Treaty applies to persons 
adjudged guilty who flee the jurisdiction prior to 
sentencing.\232\

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, like the 
recent United States extradition treaties with Costa Rica, 
Ireland, Italy, Jamaica, Jordan, Sweden (Supplementary 
Convention), and Thailand, does not list the offenses for which 
extradition may be granted. Instead, paragraph 1 permits 
extradition for any offense punishable under the laws of both 
Contracting States by deprivation of liberty (i.e., 
imprisonment or other form of detention) for a term of one year 
or more, or by a more severe penalty such as capital punishment 
(under the laws of the United States). This ``dual 
criminality'' approach to defining extraditable offenses 
obviates the need to renegotiate the Treaty or to supplement it 
if both Contracting States pass laws dealing with a new type of 
criminal activity. It also avoids problems resulting if a 
treaty list of extraditable offenses inadvertently fails to 
cover a type of criminal activity punishable in both nations.
    Paragraph 1 also provides that persons who have been 
convicted of an extraditable offense and sentenced to 
imprisonment may be extradited only if at least six months of 
the sentence remain to be served. Most U.S. extradition 
treaties signed in recent years do not contain such a 
requirement, but provisions of this kind do appear in some 
recent United States extradition treaties.\233\
    Paragraph 2 follows the practice of recent extradition 
treaties in making extraditable both the attempt to commit an 
extraditable offense, and otherwise participating in the 
commission of an extraditable offense.
    It was important to the United States that conspiracy be 
extraditable. U.S. criminal cases, particularly those involving 
complex transnational criminal activity, frequently use 
conspiracy charges. However, many foreign laws on concerted 
criminal activity differ from the U.S. offense of conspiracy. 
Some U.S. extradition treaties handle this problem by creating 
an exception to the dual criminality requirement and expressly 
making extraditable both conspiracy and its closest analogue in 
the law of our treaty partner.\234\ That approach ultimately 
proved unnecessary in this Treaty. The French delegation 
assured the U.S. delegation that France would not deny 
extradition for U.S. conspiracy charges on dual criminality 
grounds if ``conspiracy'' were used in the English and 
``complicite'' in the French language text. That accordingly is 
what was done.
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Judges in France have sometimes been confused by United States 
federal offenses whose elements include use of the mails or 
interstate transportation solely to establish federal 
jurisdiction. Because there are no similar jurisdictional 
requirements in French law, French judges have occasionally 
denied extradition on such charges. This paragraph requires 
that such U.S. federal jurisdictional elements be disregarded 
in applying the dual criminality principle. For example, it 
will ensure that French authorities treat United States mail 
fraud charges\235\ in the same manner as fraud charges under 
state laws, and that they view the federal crime of interstate 
transportation of stolen property\236\ in the same manner as 
unlawful possession of stolen property. This paragraph also 
requires the Requested State to disregard differences in the 
categorization of an offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used in the laws of the respective Contracting 
States to define the offense. Article II of the Supplementary 
Convention of 1970 and all recent United States extradition 
treaties have similar provisions.
    Paragraph 4 deals with crimes committed wholly outside the 
territory of a Contracting Party. U.S. jurisprudence recognizes 
the jurisdiction of U.S. courts in criminal cases involving 
offenses committed outside the United States if (1) they were 
intended to have, or did have, effects in this country, or if 
(2) the legislative history of the statute shows clear 
Congressional intent to assert such jurisdiction.\237\ French 
jurisprudence, however, has a different basis for prosecuting 
extraterritorial offenses.\238\ Paragraph 4 embodies France's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside the United States if French law 
would permit France to prosecute similar offenses committed 
abroad in corresponding circumstances.
    Paragraph 5 provides that when extradition is requested for 
distinct acts, only some of which satisfy the requirements of 
paragraphs 1 or 2 of this article, the Requested State shall 
extradite both for offenses punishable by a period of 
deprivation of liberty of one year or more, and for any other 
offense that meets all of the requirements for extradition 
except that the offense be punishable by one year or more of 
imprisonment. For example, if France agrees to extradite to the 
United States a fugitive wanted for prosecution on a felony 
charge, the United States can also obtain extradition for 
misdemeanor offenses, as long as those misdemeanors are also 
recognized as criminal offenses in France. Thus, the Treaty 
incorporates recent United States extradition practice by 
permitting extradition also for misdemeanors when a fugitive is 
extradited for another offense. This practice is generally 
desirable both for the prosecuting country and for the 
fugitive. It permits all charges against a fugitive to be 
disposed of while evidence is fresh and witnesses are 
available. It also permits the possibility of concurrent 
sentences. Similar provisions are found in recent extradition 
treaties with Australia, Costa Rica, Ireland, and Italy.
    Paragraph 6 provides that extradition shall be granted, in 
accordance with the terms of the Treaty, in matters concerning 
tax, customs duty, and foreign exchange offenses if a given 
offense satisfies the requirements of Paragraphs 1 and 2 of 
this article.

                         Article 3--Nationality

    Paragraph 1 specifically states that neither Contracting 
State shall be obliged to extradite its own nationals, but that 
the executive authority of the United States shall have the 
power to do so if it deems this proper. The United States does 
not deny extradition on the basis of a fugitive's 
citizenship.\239\ Our long-standing policy is to draw no 
distinction between U.S. citizens and others for extradition 
purposes. French internal law, however, forbids France to 
extradite French nationals.\240\ The French delegation insisted 
that the language of the Treaty not suggest in any way that 
France would extradite its nationals to the United States 
unless French law is amended in the future.
    Paragraph 2 requires that if the Requested State refuses 
extradition solely on the basis of nationality, it submit the 
case to its authorities for prosecution if the Requesting State 
asks it to. This provision is critical to the fair 
administration of justice. At present, France has no obligation 
to prosecute French nationals whose extradition to the United 
States it refuses.
    Provisions similar to paragraph 2 are found in many other 
recent United States extradition treaties.\241\

                     Article 4--Political Offenses

    Paragraph 1 prohibits extradition for political offenses. 
This is a common provision in United States extradition 
treaties.
    The jurisprudence on political offenses in the United 
States is quite different from that in France, a fact that has 
sometimes caused problems in our extradition relationship over 
the years.\242\ The language of the paragraph reflects those 
differences by articulating the political offense exception as 
it has developed in each system. Specifically it provides that 
when France is the Requested State, extradition will be denied 
if the offense is a political offense or an offense connected 
with a political offense, or if it is an offense inspired by 
political motives. When the United States is the Requested 
State, extradition will be denied if the offense is a political 
offense.
    Paragraph 2 describes several categories of offenses that 
will not be considered to be political offenses.
    Paragraph 2(a) provides that the political offense 
exception to extradition does not apply to a murder or other 
willful crime against the life of a Head of State of a 
Contracting Party or a member of the family of the Head of 
State.
    Paragraph 2(b) states that the political offense exception 
does not apply to offenses for which both Contracting States 
have the obligation, pursuant to a multilateral treaty, 
convention, or international agreement, either to extradite a 
fugitive or to submit the matter for prosecution, such as the 
United Nations Convention Against the Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\243\
    Subparagraphs 2(c), (d), (e), and (f) specify that the 
Requested State shall not consider any of the following crimes 
to be political offenses: a serious offense involving an attack 
on the life, physical integrity, or liberty of internationally 
protected persons, including diplomatic agents;\244\ an offense 
involving kidnapping, the taking of a hostage, or any other 
form of unlawful detention;\245\ an offense involving the use 
of a bomb, grenade, rocket, automatic firearm, or letter or 
parcel bomb, if its use endangers persons; or conspiracy to 
commit any of these offenses. Thus, these subparagraphs of the 
Treaty create a regime similar to that of the 1977 European 
Convention on Terrorism under which certain very serious crimes 
often committed by terrorists cannot be deemed political 
offenses. This language is similar also to provisions in recent 
United States extradition treaties with Canada, Germany, Spain, 
and the United Kingdom in each of which the scope of the 
political offense exception was substantially narrowed to 
eliminate its application to certain crimes.
    While Paragraph 2 narrows the ambit of the political 
offense exception, Paragraph 3 reaffirms the ability of the 
Requested State in limited circumstances to deny extradition 
for crimes falling within the Requested State's definition of a 
political offense, even if the offense falls within one of the 
categories in Paragraph 2. In evaluating the character of the 
offense, the Requested State is to take into consideration the 
particularly serious nature of the offenses listed in 
paragraph2. The factors to be taken into consideration include 
(a) that a crime created a collective danger to the life, 
physical integrity, or liberty of persons; (b) that it affected 
persons foreign to the motives behind it; and (c) that cruel or 
treacherous means have been used in the commission of the 
offense.\246\
    Paragraph 4, which is based on a similar provision in the 
U.S.-Ireland Treaty,\247\ states that extradition will not be 
granted if there are substantial grounds for believing that the 
request was made for the purpose of prosecuting or punishing a 
fugitive on account of that fugitive's race, religion, 
nationality, or political opinion. When the United States is 
the Requested State, this determination will be made by the 
executive authorities, i.e., the Secretary of State.\248\ When 
France is the Requested State, the determination will be made 
by the competent authorities, including the courts.

                      Article 5--Military Offenses

    Article 5 is based on a similar article in the U.S.-Germany 
Extradition Treaty.\249\ It provides that the executive 
authority of the Requested State may deny extradition if a 
request relates to an offense under military law that is not an 
offense under ordinary criminal law.\250\

                 Article 6--Humanitarian Considerations

    This article provides that the executive authority of the 
United States or the competent authorities in France may refuse 
to surrender a fugitive when surrender might entail 
exceptionally serious consequences related to age or health.

                     Article 7--Capital Punishment

    Paragraph 1 permits the Requested State to refuse 
extradition in cases in which the offense for which extradition 
is sought is punishable by death in the Requesting State, but 
not in the Requested State, unless the Requesting State 
provides assurances that the death penalty will not be imposed, 
or, if imposed, will not be carried out.\251\ Similar 
provisions are found in many recent United States extradition 
treaties.\252\
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, it shall respect the 
assurances and the death penalty, if imposed, shall not be 
carried out. This provision was included because French 
authorities have previously questioned whether assurances by 
the United States Government that the death penalty will not be 
imposed on a fugitive whose extradition the United States seeks 
for a capital crime are enforceable in United States courts, 
particularly in state capital murder cases. Since the treaty is 
unquestionably the law of the land in the United States, this 
provision settles such questions.

                      Article 8--Prior Prosecution

    This article will permit extradition when each Contracting 
State has charged a fugitive with different offenses arising 
out of the same acts.
    Paragraph 1 prohibits extradition if the fugitive has been 
finally convicted or acquitted in the Requested State for the 
offense for which extradition is requested. This is similar to 
language found in many United States extradition treaties. It 
should be noted that the Treaty does not carry forward the 
provision in Article IV of the Supplementary Extradition 
Convention that entitled the fugitive to avoid extradition if 
already tried and acquitted, or punished, for the same acts in 
a third state.
    Paragraph 2 makes it clear that neither Contracting State 
can refuse extradition on the ground that the Requested State's 
authorities declined to prosecute the fugitive, or that it 
instituted criminal proceedings against the fugitive and 
thereafter dismissed them. This provision was included because 
the Requested State's decision to forego prosecution, or to 
drop charges already filed, could result from unanticipated 
unavailability of trial witnesses or other similar factors, 
whereas the Requesting State's prosecution might not suffer 
from similar impediments. This provision should enhance the 
ability of each Contracting State to extradite to the 
jurisdiction with the better chance of a successful 
prosecution.

                        Article 9--Lapse of Time

    Paragraph 1 states that the Requested State must deny 
extradition if, at the time it receives the extradition 
request, prosecution of the offense or execution of the penalty 
is barred by lapse of time under its law.\253\
    Paragraph 2 states that acts committed in the Requesting 
State that would interrupt or suspend the so-called 
``prescriptive period'' in that state should be taken into 
account by the Requested State to the extent possible. A 
similar provision is found in Article 2 of the recent 
extradition treaty with Belgium.
    In the United States, the statute of limitations becomes 
irrelevant when criminal charges are filed. In France, however, 
the ``period of prescription'' for prosecution continues to run 
even when charges have been filed.\254\ In addition, a period 
of prescription applies in France to the incarceration of an 
offender after sentencing or after escape from incarceration. 
The second period of prescription is the same as that for the 
underlying offense. Thus, the period of prescription in France 
for prosecuting a rape is 10 years. Thereafter, a convicted 
rapist must be incarcerated within 10 years of being sentenced.
    In the United States, moreover, the statute of limitations 
is tolled during the period that a defendant is a fugitive. In 
France, however, the flight of a defendant or escape of a 
convict does not toll the applicable period of prescription. 
Instead, each official act by the prosecution evidencing an 
intent to prosecute the defendant or to re-incarcerate an 
escaped prisoner ``interrupts'' the period of prescription by 
restarting the applicable period of prescription. Thus, if the 
United States seeks the extradition of a fugitive for a crime 
committed more than three or 10 years previously, as the case 
may be, it must demonstrate to France that the U.S. prosecution 
effected sufficient ``interruptive acts'' that the period of 
prescription would not have expired if the crime and the 
``interruptive acts'' had taken place in France. Paragraph 2 
obliges the Requested State to take account of such 
``interruptive acts'' to the extent possible under its laws.

       Article 10--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request 
pursuant to Article 13 for the provisional arrest of the 
fugitive. Provisional arrest requests need not be initiated 
through the diplomatic channel provided that they meet the 
requirements of Article 13.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the fugitive 
is sought for trial in the Requesting State. Paragraph 4 
describes the information needed, in addition to that specified 
in paragraph 2, when the fugitive has already been tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``the text of the provisions describing the offense for 
which extradition is requested.'' This enables the Requested 
State to determine whether the request satisfies the 
requirement for dual criminality under Article 2.
    Paragraph 3 requires that if the fugitive is sought for 
prosecution, when the Requesting State is the United States, 
copies must be provided of the arrest warrant and the charging 
document; when the Requesting State is France, the original or 
a copy of the warrant or order of arrest must be submitted, as 
well as ``such information as would justify the committal for 
trial of the person if the offense had been committed in the 
United States.'' It should be noted that this provision is 
consistent with long-standing U.S. jurisprudence under which 
our courts permit extradition if there is probable cause to 
believe that an extraditable offense was committed and the 
fugitive committed it.\255\ The provision also reflects a 
concession by France, where, as in many European nations, the 
evidence against the accused is usually not weighed in 
determining whether or not to grant extradition.\256\ France 
offered to extradite to the United States without evidence if 
the United States would accord it reciprocity. The U.S. 
delegation declined, however, because of our Constitutional 
requirements.
    Paragraph 4 lists the information needed to extradite a 
fugitive who has been convicted of an offense in the Requesting 
State. This paragraph makes it clear that once a conviction has 
been obtained, no showing of probable cause is required. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions even absent a 
specific treaty provision.\257\ Subsection (d) states that if 
the person sought was found guilty in absentia, the 
documentation required for extradition includes both proof of 
conviction and the same documentation required when extradition 
is sought for prosecution. This is consistent with the long-
standing United States policy of requiring such documentation 
for the extradition of persons convicted in absentia.

                 Article 11--Admissibility of Documents

    Article 11 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article provides that when the United States is the 
Requesting State, the documents in support of extradition must 
be admitted into evidence if they are transmitted through 
diplomatic channels. No further authentication is required.
    When the request is from the Republic of France, the 
documents must be admitted into evidence if they are certified 
by the principal diplomatic or consular officer of the United 
States resident in the Republic of France, in accordance with 
United States extradition law,\258\ or if they are 
authenticated in any other manner acceptable by the law of the 
United States.

                        Article 12--Translation

    Article 12 requires that all documents submitted in support 
of the request shall be translated into the language of the 
Requested State.

                     Article 13--Provisional Arrest

    This article describes the process by which a fugitive may 
be arrested and detained in a case of urgency while the formal 
extradition papers are being prepared by the Requesting State. 
Paragraph 1 expressly provides that a request for provisional 
arrest may be made directly between the Department of Justice 
in the United States and the Ministry of Justice in France, 
through the diplomatic channel, or via INTERPOL.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 provides that the Requesting State must be 
notified without delay of the disposition of the application 
and the reasons for any denial.
    Paragraph 4 provides that a person who has been 
provisionally arrested may be released from detention if the 
Requesting State does not submit a fully documented request for 
extradition to the executive authority of the Requested State 
within 60 days of the date of provisional arrest. When the 
United States is the Requested State, the Requested State 
includes the Secretary of State and the United States Embassy 
in Paris.\259\
    Although the fugitive may be released from custody if the 
documents are not received within the sixty day period or any 
extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. The final paragraph in this 
article makes it clear that the person may be rearrested, and 
the extradition proceedings may commence, if the formal request 
and supporting documents are received at a later date.

                   Article 14--Additional Information

    Article 14 states that if the information communicated by 
the Requesting State is insufficient, the Requested State shall 
request the necessary supplemental information and may fix a 
time limit for producing such information. This article is 
intended to permit the Requesting State to cure any defects in 
the request and accompanying materials found either by the 
attorney representing the Requesting State or by a court in the 
Requested State. It permits the court, in appropriate cases, to 
grant a reasonable continuance so that the Requesting State may 
obtain, translate, and transmit additional materials. A 
somewhat similar provision is found in other United States 
extradition treaties.\260\ To expedite delivery of the 
additional materials, they may be transmitted directly between 
the French Ministry of Justice and the U.S. Department of 
Justice, as well as through the diplomatic channel.

                   Article 15--Decision and Surrender

    Paragraph 1 requires that the Requested State promptly 
notify the Requesting State of its decision on the extradition 
request.
    Paragraph 2 provides that if extradition is denied in whole 
or in part, the Requested State must provide the reasons for 
the denial and, upon request, supply copies of any pertinent 
judicial decisions.
    Paragraph 3 provides that if extradition is granted, 
authorities of the Contracting States must agree on a date and 
place for surrender of the fugitive. The Requested State must 
also notify the Requesting State of the time that the fugitive 
has been in custody pending extradition so that he or she may 
be given credit for time served against any sentence imposed 
for the offense if the law of the Requesting State so provides.
    Paragraph 4 provides that a fugitive may be discharged from 
custody if not removed from the territory of the United States 
within the time prescribed by U.S. law, which is two calendar 
months, of a finding that the fugitive is extraditable,\261\ or 
of the conclusion of any litigation challenging that finding, 
whichever is later. When France is the Requested State, the 
person must be removed within 30 days of the date set for 
surrender pursuant to Paragraph 3.\262\
    Paragraph 5 provides that if circumstances beyond the 
control of either State prevent the surrender of the fugitive, 
the Contracting States shall agree on a new date for surrender, 
and the provisions of paragraph 4 shall apply anew.

              Article 16--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution in the Requested State or serving a 
sentence there on other charges. This article allows the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the fugitive 
and the full execution of any punishment imposed.
    Paragraph 1 provides for the temporary surrender of a 
fugitive wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
will be returned to the Requested State at the conclusion of 
the proceedings in the Requesting State. Such temporary 
surrender furthers the interests of justice in that it permits 
trial of the fugitive while evidence and witnesses are more 
likely to be available, thereby increasing the likelihood of a 
successful prosecution. It may also be advantageous to the 
fugitive in that it permits (1) more rapid resolution of the 
charges; (2) concurrent service of sentences received in the 
Requesting and Requested States; and (3) a more effective 
defense while favorable evidence is fresh and more likely to be 
available. Similar provisions are found in many recent 
extradition treaties.
    Paragraph 2 provides that the Requested State may postpone 
the extradition proceedings against a fugitive who is being 
prosecuted or serving a sentence there until the fugitive has 
finished serving any applicable sentence.\263\ The provision 
also allows the Requested State to postpone the surrender of 
such a fugitive, even if all necessary extradition proceedings 
have been completed.

      Article 17--Requests for Extradition Made by Several States

    This article, like similar provisions in many recent United 
States extradition treaties, lists some of the factors that the 
executive authority of the Requested State must consider when 
reviewing requests from two or more countries for the 
extradition of the same fugitive. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered.\264\ For the Republic of France, the court 
makes this decision.\265\

             Article 18--Seizure and Surrender of Property

    This article allows the Requested State to seize all 
property--articles, documents and other evidence--connected 
with the offense for which extradition is requested, to the 
extent that its internal law permits. The article also provides 
that the Requested State may surrender these objects to the 
Requesting State when extradition is granted, or even if 
extradition cannot be effected due to the fugitive's death, 
disappearance, or escape.
    Paragraph 2 allows the Requested State to condition its 
surrender of property upon satisfactory assurances that the 
property will be returned to the Requested State as soon as 
practicable. Paragraph 2 also permits the surrender of property 
to be deferred if it is needed as evidence in the Requested 
State.
    Paragraph 3 makes the surrender of property under this 
provision expressly subject to due respect for the rights of 
third parties in such property.

                     Article 19--Rule of Speciality

    This article covers the rule of speciality, a standard 
principle of United States extradition law and practice. 
Designed to ensure that a fugitive surrendered for one offense 
is not tried for additional crimes, the rule of speciality 
prevents a request for extradition from being used as a 
subterfuge to obtain custody of a fugitive for trial or for 
execution of a sentence on charges that are not extraditable or 
were not properly documented in the request.
    This article codifies the current formulation of the rule. 
Paragraph 1 of this article provides that a person extradited 
under the Treaty may not be detained, tried, punished, or 
subjected to any restrictions of freedom in the Requesting 
State for any act prior to surrender, other than the offense 
for which extradition was granted, except (1) when the 
Requested State has given its consent, or (2) when the person 
extradited had the opportunity to leave the Requesting State 
and did not do so within 30 days of release, or left and 
returned to it. Paragraph 1 also provides that a request for 
the Requested State's waiver of the rule of speciality shall be 
accompanied by the documents listed in Article 10 and any 
statement of the person extradited regarding the offense for 
which consent of the Requested State is requested.
    Paragraph 2 states that if the denomination of the offense 
for which extradition has been granted is altered after the 
extradition or the fugitive is then charged with a differently 
denominated offense, prosecution or sentencing shall proceed if 
the offense under its new legal description is based on the 
same facts contained in the extradition request, and if the 
maximum penalty is the same as or less than that described in 
the extradition request.

               Article 20--Reextradition to a Third State

    Persons extradited to either Contracting State cannot be 
extradited to a third State unless the Requested State 
consents, or unless the person extradited had the opportunity 
to leave the Requesting State and failed to do so within 30 
days of release, or left and returned to it.
    The second paragraph states that the Requested State may 
request the documents described in Article 10, as well as any 
statements of the extradited person with respect to the offense 
for which the Requested State's consent is requested.

                          Article 21--Transit

    Paragraph 1 enables each Contracting State to authorize the 
transit through its territory of persons whom a third state is 
surrendering to the other Contracting Party. A person in 
transit may be held in custody during the transit period. A 
request for transit is to contain a description of the person 
whose transit is proposed and a brief statement of the facts of 
the case. The transit request may be submitted through 
diplomatic channels or directly between the United States 
Department of Justice and the French Ministry of Justice, or 
via INTERPOL.
    Paragraph 2 sets forth the procedure for a Contracting 
State that seeks to transport a person in custody through the 
territory of the other. Under this provision, no authorization 
is needed if the person in custody is in transit by aircraft 
and no landing is scheduled in the territory of a Contracting 
Party. If an unscheduled landing occurs, however, the 
Contracting State on whose territory this happens may require a 
request for transit and is required to detain the person to be 
transported until the request is received and the transit is 
effected, so long as the request is received within 96 hours of 
the unscheduled landing.

                Article 22--Representation and Expenses

    One major problem in U.S.-French extradition relations has 
been the U.S. government's inability at times to obtain full 
information and advice from France in individual extradition 
cases and adequate legal representation for U.S. interests 
during French judicial proceedings in extradition cases. Under 
French law, the French public prosecutor appears in the 
proceedings, but as the representative of French interests and 
``ordre publique,'' not as the representative of the requesting 
state.
    To remedy this situation, Paragraph 1 provides that the 
Requested State shall advise and assist the Requesting State in 
connection with an extradition request, and that such advice 
and assistance shall be provided in accordance with the agreed 
minute included in the Treaty.
    In the agreed minute, each State agrees to provide legal 
representation and legal advice to the other to the greatest 
degree permitted by its constitution and laws. While France did 
not agree to provide legal representation in its courts, it did 
agree to supply ``legal advice and representation (including 
representation in court) at least equal to that given any other 
country pursuant to an extradition relationship whether 
existing at the present time or entered into in the future.'' 
France also promised to make ten significant improvements in 
the nature of its assistance. It will:

      (1) include in the file presented to the chambre 
        d'accusation (competent court) any memorandum or 
        document that the United States transmits in support of 
        its extradition request. This will enable the United 
        States to provide the French court with its own legal 
        arguments for granting the U.S. extradition request if 
        the French public prosecutor for some reason is 
        unwilling to support the request;
      (2) ask the United States for supplementary information 
        or explanations if necessary for the request to 
        succeed. Thus, if the French Government feels that 
        critical information is missing from the request, it 
        will ask us for that information, and give us an 
        opportunity to supplement the request, rather than 
        merely advising its court to deny the request based on 
        the perceived defect;
      (3) notify the United States when an extradition request 
        has been transmitted to the French courts for action;
      (4) seek to postpone judicial action on the request, if 
        necessary, to allow the United States to argue its 
        position and to submit additional memoranda in response 
        to oral arguments by the defense;
      (5) accept communications from representatives of the 
        U.S. Embassy or the U.S. Department of Justice's Office 
        of International Affairs regarding the case. The French 
        Ministry of Justice and, if necessary, the individual 
        public prosecutor handling the case, will be given the 
        names of the appropriate U.S. officials;
      (6) provide representatives of the U.S. Embassy or 
        Department of Justice with an opportunity to furnish a 
        note to the Ministry of Justice on useful legal or 
        factual data to support the request;
      (7) notify the United States when the request has been 
        transmitted to the appropriate public prosecutor's 
        office for action;
      (8) notify the United States (through the U.S. Embassy in 
        Paris) of the date when the extradition request may be 
        heard by the French court;
      (9) provide the representatives of the United States with 
        an opportunity to furnish an additional note to be 
        included in the file before the hearing; and
      (10) provide U.S. Government representatives with an 
        opportunity to communicate through the Ministry of 
        Justice with the court prior to the hearing ``to the 
        same degree permitted to the Ministry of Justice.''

    It is hoped that these measures will go far toward 
improving the administration of justice in U.S. extradition 
requests to France.
    Paragraph 2 requires the Requesting State to bear the 
expenses of translation and transportation of the fugitive. The 
Requested State shall pay all other expenses in that State.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement of legal fees, 
or other expenses occasioned by execution of the extradition 
request.

                        Article 23--Consultation

    This article provides that the United States Department of 
Justice and the French Ministry of Justice may consult with 
each other, directly or via INTERPOL, with regard to either an 
individual extradition case or extradition procedures in 
general. A similar provision is found in other recent United 
States extradition treaties.\266\

                        Article 24--Application

    Paragraph 1 states that this Treaty, like most United 
States extradition treaties negotiated in the past two decades, 
is expressly made retroactive and covers offenses that occurred 
before as well as after the Treaty enters into force.
    Paragraph 2 states that the 1909 Treaty and the 1970 
Supplementary Convention will cease to have effect upon the 
entry into force of the Treaty, but that extradition requests 
pending before the courts when the Treaty enters into force 
will nevertheless be processed to conclusion under the earlier 
agreements.

             Article 25--Ratification and Entry Into Force

    This article provides for the entry into force of the 
treaty on the first day of the second month following the date 
on which both Contracting States have notified one another of 
the completion of the constitutional procedures for 
ratification.

                        Article 26--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting Party. Termination shall become effective six 
months after the date of receipt of such notice.

Technical Analysis of the Extradition Treaty Between the United States 
               of America and Grenada Signed May 30, 1996

    On May 30, 1996, the United States signed a treaty on 
extradition with Grenada (hereinafter ``the Treaty''), which is 
intended to replace the outdated treaty currently in force 
between the two countries\267\ with a modern agreement on the 
extradition of fugitives. The new extradition treaty is one of 
twelve treaties that the United States negotiated under the 
auspices of the Organization of Eastern Caribbean States to 
modernize our law enforcement relations in the Eastern 
Caribbean. It represents a major step forward in the United 
States' efforts to strengthen cooperation with countries in the 
region in combating organized crime, transnational terrorism, 
and international drug trafficking.
    It is anticipated that the treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Grenada has its own internal legislation on extradition,\268\ 
which will apply to United States' requests under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\269\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from Grenada that extradition would be 
possible for such high priority offenses as drug trafficking 
(including operating a continuing criminal enterprise, in 
violation of Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968), provided that the predicate 
offense is an extraditable offense; money laundering; 
terrorism; tax fraud and tax evasion; crimes against 
environmental protection laws; and any antitrust violations 
punishable in both states by more than one year of 
imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Grenada has no general 
conspiracy statute like Title 18, United States Code, Section 
371. Therefore, paragraph 2 creates an exception to the ``dual 
criminality'' rule of paragraph 1 by making conspiracy an 
extraditable crime if the offense which was the object of the 
conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Grenada 
authorities must treat United States mail fraud charges (Title 
18, United States Code, Section 1341) in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property (Title 18, United 
States Code, Section 2314) in the same manner as unlawful 
possession of stolen property. This paragraph also requires a 
Requested State to disregard differences in the categorization 
of the offense in determining whether dual criminality exists, 
and to overlook mere differences in the terminology used to 
define the offense under the laws of each country. A similar 
provision is contained in all recent United States extradition 
treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\270\ In 
Grenada, however, the Government's ability to prosecute 
extraterritorial offenses is much more limited. Therefore, 
Article 2(4) reflects Grenada's agreement to recognize United 
States jurisdiction to prosecute offenses committed outside of 
the United States if Grenada's law would permit it to prosecute 
similar offenses committed outside of it in corresponding 
circumstances. If the Requested State's laws do not so provide, 
the final sentence of the paragraph states that extradition may 
be granted, but the executive authority of the Requested State 
has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Grenada agrees to extradite to the United States a fugitive 
wanted for prosecution on a felony charge, the United States 
will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Grenada. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\271\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\272\ and Grenada's extradition law contains no 
exception for Grenada's nationals. Therefore, Article 3 of the 
Treaty provides that extradition is not to be refused based on 
the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.\273\
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses that are included in a multilateral treaty, 
convention, or international agreement, which requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\274\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\275\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\276\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\277\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\278\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 have been satisfied.
    Paragraph 2 outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and Grenada delegations agreed that Article 6(2)(c)(iii) 
should require this information so that the Requested State 
would be fully informed about the charges in the Requesting 
State.
    Paragraph 3 describes the additional information requested 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Grenada. The Treaty 
currently in force permits extradition only if ``. . . the 
evidence be found sufficient, according to the laws of the High 
Contracting Party applied to, either to justify the committal 
of the prisoner for trial, in the case the crime or offense had 
been committed in the territory of such High Contracting party, 
or to prove that the person is the identical person convicted 
by the courts of the High Contracting Party who makes the 
requisition . . .''.\279\ Grenada's courts have interpreted 
this clause to require that a prima facie case against the 
defendant be shown before extradition will be granted. \280\ By 
contrast, U.S. law permits extradition if there is probable 
cause to believe that an extraditable offense was committed and 
the offender committed it.\281\ Grenada's agreement to 
extradite under the new Treaty based on probable cause 
eliminates this imbalance in the burden of proof for 
extradition, and should dramatically improve the United States' 
ability to extradite from Grenada.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\282\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents must be received and admitted 
in evidence at extradition proceedings if they are 
authenticated by an officer of the United States Department of 
State and certified by the principal diplomatic or consular 
officer of Grenada resident in the United States. This is 
intended to replace the cumbersome and complicated procedures 
for authenticating extradition documents applicable under the 
current law in Grenada.\283\ When the request is from Grenada, 
the documents must be certified by the principal diplomatic or 
consular officer of the United States resident in Barbados 
accredited to Grenada, in accordance with United States 
extradition law.\284\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states.\285\ The U.S. and Grenadan delegations agreed that a 
claim that the statute of limitations has expired is best 
resolved by the courts of the Requesting State after the 
fugitive has been extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\286\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Grenada. The provision also indicates 
that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados.\287\
    Paragraph 5 makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States shall agree 
on a time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable,\288\ or of the conclusion of any litigation 
challenging that finding,\289\ whichever is later. The law in 
Grenada permits the person to apply to a judge for release if 
he has not been surrendered within two months of the first day 
on which he could have been extradited.\290\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed. Similar provisions appear in our recent extradition 
treaties with countries such as Jordan, the Bahamas, and 
Australia.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment which has been 
imposed.\291\ The provision's wording makes it clear that the 
Requested State may postpone the surrender of a person facing 
prosecution or serving a sentence in that State, even if all 
necessary extradition proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision.\292\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\293\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to insure that the 
rights of third parties are protected and that the property is 
returned as soon as practicable. This paragraph also permits 
the Requested State to defer surrender altogether if the 
property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
specialty, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\294\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\295\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on detention, trial, or punishment of an extraditee for 
additional offenses, or extradition to a third State, (1) if 
the extraditee leaves and returns to the Requesting State, or 
(2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested 
State.\296\

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries.\297\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in Grenada, or 
via INTERPOL channels. The negotiators agreed that the 
diplomatic channels will be employed as much as possible for 
requests of this nature. A person may be detained in custody 
during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.
    Grenada does not appear to have specific legislation on 
this matter, and the Grenada delegation stated that its 
Government would seek implementing legislation for this article 
in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Grenada in connection with a 
request from Grenada for extradition before the courts in this 
country, and that Grenada will arrange for the representation 
of the United States in connection with United States 
extradition requests to Grenada.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and Requesting the translation of documents, which expenses are 
to be paid by the State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of Grenada has a very small staff, and 
might need to enlist outside counsel to aid in handling a 
complex, contested international extradition proceeding. It is 
anticipated that in such cases the fees of private counsel 
retained by the Requested State would be paid by the Requested 
State. The negotiators also recognized that cases might arise 
in which the Requesting State would wish to retain its own 
private counsel to advise it on extradition matters or even 
assist in presenting the case, if the Requested State agrees. 
In such cases the fees of private counsel retained by the 
Requesting State must be paid by the Requesting State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Grenada may consult with each other with regard to an 
individual extradition case or on extradition procedures in 
general. A similar provision is found in other recent U.S. 
extradition treaties.\298\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of Grenada, the United States delegation promised to 
recommend training and technical assistance to better educate 
and equip prosecutors and legal officials in Grenada to 
implement this treaty.
    During the negotiations, the Grenada delegation also 
expressed concern than the United States might invoke the 
Treaty much more often than Grenada, resulting in an imbalance 
in the financial obligations occasioned by extradition 
proceedings. While no specific Treaty language was adopted, the 
United States agreed that consultations between the Parties 
under Article 18 could address extraordinary expenses arising 
from the execution of individual extradition requests or 
requests in general.

                        Article 19--Application

    This Treaty, like most other United States extradition 
treaties negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1931 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1931 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State, 
and the termination shall become effective six months after 
notice of termination is received.

Technical Analysis of The Extradition Treaty Between The Government of 
  the United States of America and the Government of the Republic of 
                       India Signed June 25, 1997

    On June 25, 1997, the United States signed a treaty on 
extradition with the Republic of India (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of an 
ongoing effort to modernize our law enforcement relations. In 
addition, the Treaty will be an important catalyst in providing 
more effective cooperation against terrorism, including narco-
terrorism, and drug trafficking. The Treaty is intended to 
replace the current extradition treaty in force with respect to 
both countries. That treaty, the Treaty for the Mutual 
Extradition of Criminals between the United States of America 
and Great Britain, signed at London December 22, 1931 
(hereinafter ``the 1931 Treaty''), became applicable to India 
at the time it gained independence by virtue of the Schedule to 
the Indian Independence (International Arrangements) Orders, 
1947.\299\ On the same day, there was an exchange of letters 
reflecting an understanding concerning the use of the Treaty 
for prosecution or punishment only with respect to the ordinary 
criminal laws of the Requested State.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18 U.S. Code, Section 3184 et seq; implementing 
legislation will not be needed. India has extradition 
legislation\300\ that will apply to U.S. requests under the 
Treaty. According to the Indian delegation which negotiated the 
Treaty, Indian constitutional law provides that pre-existing 
domestic law takes precedence over a treaty; however it was not 
anticipated that any provision of India's domestic law was 
inconsistent with the provisions of the Treaty.\301\
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates both parties to 
the Treaty, referred to therein as the Contracting States, to 
extradite to the other, persons formally accused of, charged 
with, or convicted of extraditable offenses, subject to the 
provisions of the Treaty. The reference to ``formally accused 
of'' was included to recognize that in Indian criminal law 
practice a person is accused of certain offenses in the 
document known as a First Information Report and that reaching 
such a stage would be the equivalent, for purposes of this 
article, of charging an individual in an indictment under U.S. 
practice.
    Article 1 refers to persons formally accused of, charged 
with, or convicted of an offense by the authorities ``in'' the 
Requesting State rather than ``of'' the Requesting State, 
thereby obligating each Contracting State to extradite a 
fugitive to the other with respect to a prosecution or 
conviction in any political subdivision as well as in national 
cases. The term ``convicted'' includes instances in which the 
person has been found guilty but the sentence has not yet been 
imposed.\302\ The Treaty applies to persons adjudged guilty who 
flee the jurisdiction prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. The Treaty, like most recent 
U.S. extradition treaties, including those with Jamaica, 
Jordan, Italy, Ireland, Thailand, Sweden (Supplementary 
Convention), and Costa Rica, does not list the offenses for 
which extradition may be granted. Instead, paragraph 1 of 
Article 2 permits extradition for any offense punishable under 
the laws of both Contracting States by deprivation of liberty 
(i.e., imprisonment, or other form of detention) for a period 
exceeding one year, or by a more severe penalty. Defining 
extraditable offenses in terms of ``dual criminality'' rather 
than attempting to list each extraditable crime obviates the 
need to renegotiate the Treaty or supplement it if both 
Contracting Parties pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable by both Contracting Parties.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for an attempt or a conspiracy to commit, aiding or abetting, 
counseling or procuring the commission of, or being an 
accessory before or after the fact to, any extraditable 
offense. This is significant because conspiracy charges are 
frequently used in U.S. criminal prosecutions, particularly 
those involving complex transnational criminal activity. An 
offense which falls within one of these categories under 
American law is extraditable even if India does not have such a 
provision, so long as the underlying offense is extraditable. 
Therefore, paragraph 2 creates a basis for extradition, in 
addition to the ``dual criminality'' rule of paragraph 1, by 
making conspiracy and the other enumerated similar actions an 
extraditable crime if the offense, which was the object of the 
conspiracy or other action, an extraditable offense.
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Similar provisions to those in subparagraphs (a) and (b) are 
contained in all recent U.S. extradition treaties.
    Paragraph 3(a) requires a Requested State to disregard 
differences in the categorization of the offense in determining 
whether dual criminality exists, and to overlook mere 
differences in the terminology used to define the offense under 
the laws of each Contracting Party.
    Paragraph 3(b) addresses the concerns sometimes raised by 
foreign authorities regarding jurisdictional elements, such as 
use of the mails or interstate transportation, of certain 
federal offenses, which are used solely to establish 
jurisdiction in federal courts. Because foreign authorities 
know of no similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Indian 
authorities must treat United States mail fraud charges (18 
U.S.C. Sec. 1341) in the same manner as fraud charges under 
state laws, and view the federal crime of interstate 
transportation of stolen property (18 U.S.C. Sec. 2314) in the 
same manner as unlawful possession of stolen property.
    Paragraph 3(c) was included in the treaty to make it 
unambiguous that criminal tax offenses are extraditable if they 
meet the test of dual criminality.
    Paragraph 4 recognizes that extraditable crimes can involve 
acts committed wholly outside the territory of the Requesting 
State. United States jurisprudence recognizes jurisdiction in 
our courts to prosecute offenses committed outside of the 
United States if the crime was intended to, or did, have 
effects in this country, or if the legislative history of the 
statute shows clear Congressional intent to assert such 
jurisdiction.\303\ In India, an Indian national can be 
prosecuted for any crime he commits abroad as if he had 
committed the crime in India.\304\ If the dual criminality and 
other requirements of the Treaty are satisfied, extradition 
shall be granted for a crime or offense, regardless of where 
the act or acts constituting the offense occurred.
    Paragraph 5 provides that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if India agrees to extradite to the United States a fugitive 
wanted for prosecution on a felony charge, the United States 
will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, so long as those 
misdemeanors would also be recognized as criminal offenses in 
India. Thus, the Treaty incorporates recent U.S. extradition 
practice by permitting extradition for misdemeanors committed 
by a fugitive when the fugitive's extradition is granted for a 
more serious extraditable offense. This practice is generally 
desirable from the standpoint of both the fugitive and the 
prosecuting country in that it permits all charges against the 
fugitive to be disposed of more quickly, thereby facilitating 
trials while evidence is still fresh and permitting the 
possibility of concurrent sentences.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\305\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Authorities in some countries, because of statutory or 
constitutional prohibitions or as a matter of policy, will not 
extradite a national to another country. Neither the United 
States\306\ nor India\307\ denies extradition on the basis of 
the fugitive's nationality. Therefore, Article 3 of the Treaty 
provides that extradition is not to be refused based on the 
nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in U.S. 
extradition treaties and is incorporated in the Indian 
Extradition Act.\308\
    Paragraph 2, in its eight subparagraphs, describe certain 
categories of offenses which, for purposes of the Treaty, shall 
not be considered to be political offenses. These categories 
include offenses that are the subject of multilateral treaties 
to which the Contracting States are parties, pursuant to which 
there is an obligation to extradite. By specifically excluding 
such offenses from the definition of political offense, the 
Contracting States have established a binding bilateral 
extradition commitment with respect to such crimes. The 
categories are as follows:
    Murder or other willful crime against the person of a Head 
of State or Government of a Contracting State, or a member of 
the family of such Head of State or Government;
    Aircraft hijacking offenses, as described in the Convention 
on the Suppression of Unlawful Seizures of Aircraft;\309\
    Aviation sabotage, as described in the Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil 
Aviation;\310\
    Any crime against an internationally protected person, as 
described in the Convention on the Prevention and Punishment of 
Crimes Against Internationally Protected Persons, including 
Diplomatic Agents;\311\
    Hostage taking, as described in the International 
Convention against the Taking of Hostages;\312\
    Offenses related to illegal drugs, as described in the 
Single Convention on Narcotic Drugs,\313\ the Amending Protocol 
to the Single Convention,\314\ and the United Nations 
Convention Against the Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances;\315\
    Offenses which obligate the Contracting States to extradite 
the person sought or submit the matter for prosecution, 
pursuant to any multilateral treaty, convention, or 
international agreement to which they are parties; or
    Conspiring or attempting to commit, or for aiding and 
abetting the commission or attempted commission of any of the 
foregoing offenses.

 Article 5--Military Offenses and Other Bases for Denial of Extradition

    Paragraph 1 provides that the extradition may be denied by 
the Requested State if the request relates to a matter that 
constitutes an offense only under military, and not criminal, 
law.\316\ The paragraph would not bar extradition to stand 
trial in a military tribunal for an ordinary criminal offense.
    Paragraph 2 of the article provides that extradition shall 
not be granted if the executive authority of the Requested 
State finds that the request was politically motivated.\317\ 
This is consistent with the long-standing law and practice of 
the United States, under which the Secretary of State alone has 
the discretion to determine whether an extradition request is 
based on improper political motivation.\318\ Indian law 
currently provides for the denial of extradition either if the 
offense is of a political character (see Article 4) or if the 
fugitive proves, to the satisfaction of the court or the 
government, that the request was, in fact, made ``with a view 
to try or punish him for an offense of a political 
character.''\319\

                      Article 6--Prior Prosecution

    This article permits extradition when the person sought is 
charged by each Contracting State with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, is similar 
to language present in many U.S. extradition treaties.\320\ 
This provision applies only when the person sought has been 
convicted or acquitted in the Requested State of exactly the 
same crime that is charged in the Requesting State. It is not 
enough that the same facts were involved. This article will not 
preclude extradition in situations in which the fugitive is 
charged with different offenses in both countries arising out 
of the same basic transaction. Thus, if the person sought is 
accused by one Contracting State of illegally smuggling 
narcotics into that country, and is charged by the other 
Contracting State with conspiring to illegally export the same 
shipment of drugs, an acquittal or conviction in one 
Contracting State does not insulate that person from 
extradition because different crimes are involved.
    Paragraph 2 makes it clear that neither Contracting State 
can refuse to extradite an offender on the ground that the 
Requested State's authorities formally declined to prosecute 
the offender, or instituted criminal proceedings against the 
offender and thereafter elected to discontinue the proceedings. 
This provision was included because, for example, the Requested 
State might have decided to forego prosecution or to dismiss 
charges because of a failure to obtain sufficient evidence for 
trial. Such declination or discontinuance should not be a bar 
to prosecution in the Requesting State, where substantial 
evidence might be available. This provision should enhance the 
ability of the Contracting States to extradite to the 
jurisdiction with the better chance of a successful 
prosecution.

                        Article 7--Lapse of Time

    Article 7 states that extradition shall not be granted when 
the prosecution has become barred by lapse of time according to 
the laws of the Requesting State.\321\ Thus, if the Requesting 
State has a lapse of time provision which has run for the 
offense for which extradition is being requested, the Requested 
State shall not extradite the fugitive.\322\

                     Article 8--Capital Punishment

    Paragraph 1 permits the Requested State to refuse to 
extradite a fugitive in cases in which the offense for which 
extradition is sought is punishable by death in the Requesting 
State, but is not punishable by death in the Requested State. 
This paragraph provides two exceptions to this general rule, 
if:
    Under subparagraph (a), the extraditable offense 
constitutes murder under the laws of the Requested State; or
    Under subparagraph (b), the Requesting State provides 
assurances that the death penalty, if imposed, will not be 
carried out.
    Similar provisions are found in many recent U.S. 
extradition treaties.\323\
    Paragraph 2 of this article provides that when the 
Requesting State gives assurances in accordance with paragraph 
1, the death penalty, if imposed, shall not be carried out.

        Article 9--Extradition Procedures and Required Documents

    This article sets out the procedural, documentary and 
evidentiary requirements to support an extradition request, and 
is generally similar to corresponding articles in recently 
concluded U.S. extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 12, which need not be 
initiated through diplomatic channels.
    Paragraph 2 delineates the information that should 
accompany a request for extradition. Most of the items listed 
in Article 9(2) enable the Requested State to determine quickly 
whether extradition is appropriate. For example, Article 
9(2)(c) calls for ``a statement of the provisions of the law 
describing the essential elements of the offense for which 
extradition is requested,'' such information should enable the 
Requested State to determine easily whether the request 
satisfies the requirement for dual criminality under Article 2. 
Moreover, Article 9(2)(d) specifies that the extradition 
request must be accompanied by ``a statement of the provisions 
of the law describing the punishment for the offense,'' 
enabling the Requested State to determine whether there is a 
basis for denying extradition for insufficient punishment under 
Article 2. Other requirements listed in Article 9(2), are 
needed for informational purposes. These include information 
describing the identity and probable location of the person 
sought, the facts of the offense and procedural history of the 
offense, and other documents, statements and information.
    Paragraph 3 requires that, if the fugitive is being sought 
for prosecution, the Requesting State must provide a copy of 
the warrant or arrest order,\324\ any charging document, and 
``such information as would justify the committal for trial of 
the person if the offense had been committed in the Requested 
State.'' This provision is meant to satisfy the standard of 
``probable cause,'' under which our courts permit extradition 
if there is probable cause to believe that an extraditable 
offense was committed and that the fugitive committed it.\325\ 
The delegation of India advised the U.S. delegation that under 
current Indian law the somewhat higher prima facie standard of 
evidence would need to be met for India to extradite under the 
Treaty.\326\
    Paragraph 4 lists the additional information required to 
support a judicial finding of extraditability of a person 
convicted of an offense in the Requesting State. This paragraph 
makes it clear that once a conviction has been obtained, no 
showing of the relevant burden of proof as described in 
paragraph 3 is required. In essence, the fact of conviction 
speaks for itself, a position taken in recent United States 
court decisions even absent a specific treaty provision.\327\
    Subsection (d) of paragraph 4 states that if the person 
sought was found guilty in absentia, the documentation and 
information required under paragraph 3 must be submitted with 
the extradition request. This provision is consistent with the 
long-standing United States policy of requiring such 
documentation in the extradition of persons convicted in 
absentia.

                 Article 10--Admissibility of Documents

    Article 10 sets forth the authentication procedures for 
receiving and admitting into evidence extradition documents.
    Subparagraph (a) states that evidence intended for use in 
extradition proceedings in India shall be admissible if 
certified by the principal diplomatic or consular officer of 
India resident in the United States.\328\
    Subparagraph (b) states that evidence intended for use in 
extradition proceedings in the United States shall be 
admissible if certified by the principal diplomatic or consular 
officer of the United States resident in India, in accordance 
with U.S. extradition laws.\329\
    Subparagraph (c) provides an alternative method for 
authenticating evidence in an extradition proceeding, by 
permitting such evidence to be admitted if it is authenticated 
in any manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition. The Requested 
State is free under subsection (c) to utilize that information 
if it is admissible under the ordinary rules of evidence in the 
Requested State. Moreover, subparagraph (c) should ensure that 
relevant evidence, which would normally satisfy the evidentiary 
rules of the Requested State, is not excluded at the 
extradition hearing simply because of an inadvertent error or 
omission in the authentication process.

                        Article 11--Translation

    All documents submitted by either Requesting State in 
support of an extradition request shall be in the English 
language. If any document in support of a request is written in 
another language, it must be accompanied by an English 
translation.

                     Article 12--Provisional Arrest

    This article describes the process, known as provisional 
arrest, by which a fugitive in one country may be arrested and 
detained before a formal extradition request is completed and 
submitted by the Requesting State.\330\
    Paragraph 1 provides that, ``in a case of urgency,'' a 
request for provisional arrest may be made. It provides that 
such a request may be made through the diplomatic channel. 
INTERPOL facilities may also be used to transmit such a 
request.
    Paragraph 2 lists the information that the Requesting State 
must provide in its request for provisional arrest. The 
application needs to set forth identification and location 
information, the facts of the case, and a description of the 
laws violated and, in addition, include statements that an 
arrest warrant and a finding of guilt or judgment of conviction 
exists and that the formal extradition request will follow.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the fugitive may be discharged 
from custody if the executive authority of the Requested State 
does not receive a fully documented extradition request within 
sixty days of the provisional arrest. When the United States is 
the Requested State, the ``executive authority'' for purposes 
of paragraph 4 would include the Secretary of State or the U.S. 
Embassy in New Delhi, India.\331\
    Although the person arrested may be released from custody 
if the documents are not received within the sixty-day period, 
the proceedings against the fugitive need not be dismissed. 
Paragraph 5 makes it clear that the fugitive may be rearrested 
and the extradition proceedings may commence if the formal, 
documented request is presented at a later date.

                   Article 13--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through the diplomatic channel of 
its decision on the extradition request. If extradition is 
denied in whole or in part, the Requested State must provide 
the reasons for the denial. The Requested State shall also 
provide any pertinent judicial opinions if the Requesting State 
so requests. If the extradition request is granted, the article 
provides that the Contracting States shall agree on a time and 
place for the surrender of the fugitive.
    According to Paragraph 4, if the fugitive is not removed 
from the territory of the Requested State within the time 
prescribed by the law of the Requested State, the person may be 
discharged from custody and the Requested State may 
subsequently refuse to extradite for the same offense. U.S. law 
requires that surrender occur within two calendar months of the 
finding that the offender is extraditable,\332\ or of the 
conclusion of any litigation challenging that finding,\333\ 
whichever is later. India has a similar law, which provides 
that a fugitive, in custody for more than two months following 
a determination of extraditability, may be discharged by the 
High Court, unless sufficient cause is shown to the 
contrary.\334\

              Article 14--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.\335\
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
shall be kept in custody and returned to the Requested State at 
the conclusion of the proceedings in the Requesting State. The 
Contracting States shall determine the conditions of the 
fugitive's return to the Requested State. Such temporary 
surrender furthers the interests of justice in that it permits 
a trial of the person sought while evidence and witnesses are 
more likely to be available, thereby increasing the likelihood 
of a successful prosecution. Such a transfer may also be 
advantageous to the person sought in that: (1) it permits 
resolution of the charges sooner; (2) it makes it possible for 
any sentence to be served in the Requesting State concurrently 
with the sentence in the Requested State; and (3) it permits 
defense against the charges while favorable evidence is fresh 
and more likely to be available.
    Paragraph 2 provides that the Requested State may postpone 
the extradition proceedings against a person who is being 
prosecuted or serving a sentence in the Requested State until 
the conclusion of the prosecution or the full execution of the 
punishment that has been imposed.\336\ The wording of this 
provision also makes clear that the Requested State may 
postpone the surrender of the person facing prosecution or 
serving a sentence even if all necessary extradition 
proceedings have been completed.

      Article 15--Requests for Extradition Made by Several States

    This article, which is also included in many recent U.S. 
extradition treaties, lists some of the factors that the 
executive authority of the Requested State must consider in 
determining to which country to surrender a person whose 
extradition has been requested by two or more countries. This 
article is invoked when multiple extradition requests are made 
for a person either for the same offense or for different 
extraditable offenses. For the United States, the Secretary of 
State makes this decision;\337\ for India, the decision is made 
by the Central Government.\338\

             Article 16--Seizure and Surrender of Property

    This article provides for the seizure by the Requested 
State, and surrender to the Requesting State, of all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\339\ Such actions are subject to the laws of the 
Requested State. The article also provides that these objects 
shall be so surrendered upon the granting of the extradition, 
or even if extradition cannot be effected due to the death, 
disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property upon satisfactory assurances that the 
objects will be returned as soon as practicable. The Requested 
State may defer surrender altogether if the property is needed 
as evidence in the Requested State. Pursuant to paragraph 3, 
the obligation to surrender property under this article is 
expressly made subject to due respect for the rights of third 
parties in such property.

                     Article 17--Rule of Speciality

    This article incorporates the principle known as the rule 
of speciality, which is a standard component of U.S. and 
international extradition practice. Designed to ensure that a 
fugitive surrendered for one offense is not tried for other 
crimes, the rule of speciality prevents an extradition request 
from being used as a subterfuge to obtain custody of a person 
for trial or service of sentence on different charges that may 
not be extraditable or properly documented at the time that the 
request is granted.
    This article codifies the current formulation of the rule. 
Paragraph 1 provides that a person extradited under the Treaty 
may not be detained, tried, or punished in the Requesting State 
except for (a) the offense for which extradition was granted, 
or a differently denominated offense based on the same facts, 
provided the offense is extraditable or is a lesser included 
offense;
    (b) an offense committed after the extradition; or
    (c) an offense for which the executive authority of the 
Requested State consents.\340\
    Paragraph 1(c)(i) provides that before giving such consent, 
the Requested State may require the Requesting State to 
document its request as if it were an ordinary extradition 
request under the Treaty. Paragraph 1(c)(ii) permits the 
Requesting State to detain the extraditee for 90 days, or for a 
longer period authorized by the Requested State, while the 
Requested State makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his surrender under this Treaty, without the consent 
of the Requested State.\341\
    Finally, Paragraph 3 removes the restrictions of paragraphs 
1 and 2 on detention, trial, or punishment of an extraditee for 
additional offenses, or extradition to a third State, if the 
extraditee (1) leaves and returns to the Requesting State, or 
(2) does not leave the Requesting State within fifteen days of 
being free to do so.

                   Article 18--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings and to expedite their 
return to the Requesting State. This article provides that when 
a fugitive consents to return to the Requesting State, the 
person may be returned to the Requesting State without further 
proceedings, subject to the laws of the Requested State. In 
such cases there would be no need for any further formal 
documentation or judicial proceedings.
    If a person sought for extradition from the United States 
returns to the Requesting State before the signing of a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this Article as an 
``extradition.'' U.S. practice has long been that the rule of 
speciality does not apply when a fugitive waives extradition 
and voluntarily returns to the Requested State.

                          Article 19--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting State by third States, and 
to hold such persons in custody during the period of 
transit.\342\ Requests for transit are to contain a description 
of the person whose transit is proposed and a brief statement 
of the facts of the case with respect to which he is being 
surrendered to the Requesting State. The paragraph provides 
that the request should be transmitted through the diplomatic 
channel. It also permits the use of INTERPOL facilities to 
transmit the request.
    Paragraph 2 provides that no authorization is needed if the 
person in custody is being moved by air and no landing is 
scheduled in the territory of the other Contracting State. 
Should an unscheduled landing occur, a request for transit may 
be required at that time, and the Requested State may grant 
such a request. It also requires the transit State to detain a 
fugitive until a request for transit is received and executed, 
so long as the request is received within 96 hours of the 
unscheduled landing.

                Article 20--Representation and Expenses

    Paragraph 1 provides that in extradition proceedings under 
the Treaty, the Requested State shall advise, assist, and 
appear in court on behalf of the Requesting State. This is 
consistent with other U.S. extradition treaties and U.S. law on 
the subject.\343\ Thus, the Department of Justice attorneys 
will represent the Government of India in connection with a 
request from India for extradition before U.S. courts, and 
counsel designated by the Indian Government will perform 
reciprocal services on behalf of the United States before 
Indian courts.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which are paid by the 
Requesting State.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other arising out of the 
arrest, detention, examination, or surrender of any fugitive. 
This includes any claim brought on behalf of the fugitive for 
damages, reimbursement, or legal fees, or other expenses 
occasioned by the execution of the extradition request.

                        Article 21--Consultation

    Article 21 of the treaty provides that the competent 
authorities of the United States and India may consult with 
each other with regard to an individual extradition case or 
extradition procedures in general. Such consultation may occur 
directly between the competent authorities or through the 
facilities of INTERPOL. A similar provision is found in other 
recent U.S. extradition treaties.\344\

           Article 22--Mutual Legal Assistance in Extradition

    This article provides that each Contracting State shall, to 
the extent permitted under its laws, afford the other the 
widest measure of mutual assistance in criminal matters in 
connection with offenses for which extradition has been 
requested.

             Article 23--Ratification and Entry into Force

    This article contains standard treaty language providing 
for ratification and the exchange of instruments of 
ratification as soon as possible. The Treaty is to enter into 
force immediately upon the exchange.
    Paragraph 3 provides that when the Treaty enters into 
force, the 1931 Treaty will cease to have effect between the 
Contracting States. However, if extradition documents have 
already been submitted to the courts of the Requested State at 
the time the Treaty enters into force, the 1931 treaty will 
remain applicable to such proceedings, although Article 17 of 
the Treaty (addressing the Rule of Speciality) will apply.

                        Article 24--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State. Either Contracting State may terminate the 
Treaty at any time after its entry into force by giving written 
notice to the other Contracting State. Termination becomes 
effective six months after the date of such notice.\345\

Technical Analysis of the Extradition Treaty Between the United States 
   of America and St. Christopher and Nevis Signed September 18, 1996

    On September 18, 1996, the United States signed a treaty on 
extradition with St. Christopher and Nevis (hereinafter ``the 
Treaty''), which is intended to replace the outdated treaty 
currently in force between the two countries\346\ with a modern 
agreement on the extradition of fugitives. The new extradition 
treaty is one of twelve treaties that the United States 
negotiated under the auspices of the Organization of Eastern 
Caribbean States to modernize our law enforcement relations in 
the Eastern Caribbean. It represents a major step forward in 
the United States' efforts to strengthen cooperation with 
countries in the region in combating organized crime, 
transnational terrorism, and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
St. Christopher and Nevis has its own internal legislation on 
extradition,\347\ which will apply to United States' requests 
under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\348\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. This treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from St. Christopher and Nevis that 
extradition would be possible for such high priority offenses 
as drug trafficking (including operating a continuing criminal 
enterprise, in violation of Title 21, United States Code, 
Section 848); offenses under the racketeering statutes (Title 
18, United States Code, Section 1961-1968); money laundering; 
terrorism; crimes against environmental protection laws; and 
any antitrust violations punishable in both states by more than 
one year of imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. St. Christopher and 
Nevis has no general conspiracy statute like Title 18, United 
States Code, Section 371. Therefore, paragraph 2 creates an 
exception to the ``dual criminality'' rule of paragraph 1 by 
making conspiracy an extraditable crime if the offense which 
was the object of the conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, St. 
Christopher and Nevis authorities must treat United States mail 
fraud charges (Title 18, United States Code, Section 1341) in 
the same manner as fraud charges under state laws, and view the 
federal crime of interstate transportation of stolen property 
(Title 18, United States Code, Section 2314) in the same manner 
as unlawful possession of stolen property. This paragraph also 
requires a Requested State to disregard differences in the 
categorization of the offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used to define the offense under the laws of each 
country. A similar provision is contained in all recent United 
States extradition treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\349\ In 
St. Christopher and Nevis, however, the Government's ability to 
prosecute extraterritorial offenses is much more limited. 
Therefore, Article 2(4) reflects St. Christopher and Nevis's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside of the United States if St. 
Christopher and Nevis's law would permit it to prosecute 
similar offenses committed outside of it in corresponding 
circumstances. If the Requested State's laws do not so provide, 
the final sentence of the paragraph states that extradition may 
be granted, but the executive authority of the Requested State 
has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if St. Christopher and Nevis agrees to extradite to the United 
States a fugitive wanted for prosecution on a felony charge, 
the United States will also be permitted to obtain extradition 
for any misdemeanor offenses that have been charged, as long as 
those misdemeanors would also be recognized as criminal 
offenses in St. Christopher and Nevis. Thus, the Treaty 
incorporates recent United States extradition practice by 
permitting extradition for misdemeanors committed by a fugitive 
when the fugitive's extradition is granted for a more serious 
extraditable offense. This practice is generally desirable from 
the standpoint of both the fugitive and the prosecuting country 
in that it permits all charges against the fugitive to be 
disposed of more quickly, thereby facilitating trials while 
evidence is still fresh and permitting the possibility of 
concurrent sentences. Similar provisions are found in recent 
extradition treaties with countries such as Australia, Ireland, 
Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\350\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\351\ and the St. Christopher and Nevis' 
extradition law contains no exception for St. Christopher and 
Nevis's nationals. Therefore, Article 3 of the Treaty provides 
that extradition is not to be refused based on the nationality 
of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\352\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses that are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\353\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\354\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\355\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\356\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\357\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 have been satisfied.
    Paragraph 2 outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and St. Christopher and Nevis delegations agreed that 
Article 6(2)(c)(iii) should require this information so that 
the Requested State would be fully informed about the charges 
in the Requesting State.
    Paragraph 3 describes the additional information required 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from St. Christopher and 
Nevis. The Treaty currently in force permits extradition only 
if ``...the evidence be found sufficient, according to the law 
of the Requested Party... to justify the committal for trial of 
the person sought if the offense of which he is accused had 
been committed in the territory of the requested 
Party...''\358\ St. Christopher and Nevis's courts have 
interpreted this clause to require that a prima facie case 
against the defendant be shown before extradition will be 
granted.\359\ By contrast, U.S. law permits extradition if 
there is probable cause to believe that an extraditable offense 
was committed and the offender committed it.\360\ St. 
Christopher and Nevis's agreement to extradite under the new 
Treaty based on a reasonable basis standard eliminates this 
imbalance in the burden of proof for extradition, and should 
dramatically improve the United States' ability to extradite 
from St. Christopher and Nevis.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of reasonable basis is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\361\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents must be received and admitted 
in evidence at extradition proceedings if they are 
authenticated by an officer of the United States Department of 
State and certified by the principal diplomatic or consular 
officer of St. Christopher and Nevis resident in the United 
States. This is intended to replace the cumbersome and 
complicated procedures for authenticating extradition documents 
applicable under the current treaty.\362\ When the request is 
from St. Christopher and Nevis, the documents must be certified 
by the principal diplomatic or consular officer of the United 
States resident in Barbados accredited to St. Christopher and 
Nevis, in accordance with United States extradition law.\363\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states.\364\ The delegations agreed that a claim that the 
statute of limitations has expired is best resolved by the 
courts of the Requesting State after the fugitive has been 
extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\365\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in St. Christopher and Nevis. The 
provision also indicates that INTERPOL may be used to transmit 
such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados.\366\
    Paragraph 5 makes it clear that in such a case the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States shall agree 
on a time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable,\367\ or of the conclusion of any litigation 
challenging that finding,\368\ whichever is later. The law in 
St. Christopher and Nevis permits the person to apply to a 
judge for release if he has not been surrendered within two 
months of the first day on which he could have been 
extradited.\369\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment which has been 
imposed.\370\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision.\371\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\372\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. The paragraph also 
permits the Requested State to defer surrender altogether if 
the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of specialty prevents a request for extradition from being 
used as a subterfuge to obtain custody of a person for trial or 
service of sentence on different charges which may not be 
extraditable under the Treaty or properly documented at the 
time that the request is granted.
    Since a variety of exceptions to the rule have developed 
over the years, this article codifies the current formulation 
of the rule by providing that a person extradited under the 
Treaty may only be detained, tried, or punished in the 
Requesting State for (1) the offense for which extradition was 
granted, or a differently denominated offense based on the same 
facts, provided the offense is extraditable or is a lesser 
included offense; (2) for offenses committed after the 
extradition; and (3) for other offenses for which the executive 
authority of the Requested State consents.\373\ Article 
14(1)(c)(ii) permits the State which is seeking consent to 
pursue new charges to detain the defendant for 90 days while 
the Requested State makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty without the consent 
of the State from which extradition was first obtained.\374\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on detention, trial, or punishment of an extraditee for 
additional offenses, or extradition to a third State, (1) if 
the extraditee leaves and returns to the Requesting State, or 
(2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested 
State.\375\

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries.\376\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in St. 
Christopher and Nevis, or via INTERPOL channels. The 
negotiators agreed that the diplomatic channels will be 
employed as much as possible for requests of this nature. A 
person may be detained in custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.
    St. Christopher and Nevis does not appear to have specific 
legislation on this matter, and the St. Christopher and Nevis 
delegation stated that its Government would seek implementing 
legislation for this article in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent St. Christopher and Nevis in 
connection with a request from St. Christopher and Nevis for 
extradition before the courts in this country, and the St. 
Christopher and Nevis Attorney General will arrange for the 
representation of the United States in connection with United 
States extradition requests to St. Christopher and Nevis.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of St. Christopher and Nevis has a very 
small staff, and might need to enlist outside counsel to aid in 
handling a complex, contested international extradition 
proceeding. It is anticipated that in such cases the fees of 
private counsel retained by the Requested State would be paid 
by the Requested State. The negotiators also recognized that 
cases might arise in which the Requesting State would wish to 
retain its own private counsel to advise it on extradition 
matters or even assist in presenting the case, if the Requested 
State agrees. In such cases the fees of private counsel 
retained by the Requesting State must be paid by the Requesting 
State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General in St. 
Christopher and Nevis may consult with one another with regard 
to an individual extradition case or on extradition procedures 
in general. A similar provision is found in other recent U.S. 
extradition treaties.\377\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of St. Christopher and Nevis, the United States 
delegation promised to recommend training and technical 
assistance to better educate and equip prosecutors and legal 
officials in St. Christopher and Nevis to implement this 
treaty.
    During the negotiations, the St. Christopher and Nevis 
delegation also expressed concern that the United States might 
invoke the Treaty much more often than St. Christopher and 
Nevis, resulting in an imbalance in the financial obligations 
occasioned by extradition proceedings. While no specific Treaty 
language was adopted, the United States agreed that 
consultations between the Parties under Article 18 could 
address extraordinary expenses arising from the execution of 
individual extradition requests or requests in general.

                        Article 19--Application

    This Treaty, like most other United States extradition 
treaties negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State. 
Termination shall become effective six months after notice of 
termination is received.

Technical Analysis of the Extradition Treaty Between the United States 
            of America and Saint Lucia Signed April 18, 1996

    On April, 18, 1996, the United States signed a treaty on 
extradition with Saint Lucia (hereinafter ``the Treaty''), 
which is intended to replace the outdated treaty currently in 
force between the two countries\378\ with a modern agreement on 
the extradition of fugitives. The new extradition treaty is one 
of twelve treaties that the United States negotiated under the 
auspices of the Organization of Eastern Caribbean States to 
modernize our law enforcement relations in the Eastern 
Caribbean. It represents a major step forward in the United 
States' efforts to strengthen cooperation with countries in the 
region in combating organized crime, transnational terrorism, 
and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Saint Lucia has its own internal legislation on 
extradition,\379\ which will apply to United States' requests 
under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\380\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from Saint Lucia that extradition would be 
possible for such high priority offenses as drug trafficking 
(including operating a continuing criminal enterprise, in 
violation of Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968) provided that the predicate 
offense is an extraditable offense; money laundering; 
terrorism; tax fraud and tax evasion; crimes against 
environmental protection laws; and any antitrust violations 
punishable in both states by more than one year of 
imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Saint Lucia has no 
general conspiracy statute like Title 18, United States Code, 
Section 371. Therefore, paragraph 2 creates an exception to the 
``dual criminality'' rule of paragraph 1 by making conspiracy 
an extraditable crime if the offense which was the object of 
the conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Saint 
Lucia authorities must treat United States mail fraud charges 
(Title 18, United States Code, Section 1341) in the same manner 
as fraud charges under state laws, and view the federal crime 
of interstate transportation of stolen property (Title 18, 
United States Code, Section 2314) in the same manner as 
unlawful possession of stolen property. This paragraph also 
requires a Requested State to disregard differences in the 
categorization of the offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used to define the offense under the laws of each 
country. A similar provision is contained in all recent United 
States extradition treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\381\ In 
Saint Lucia, however, the Government's ability to prosecute 
extraterritorial offenses is much more limited. Therefore, 
Article 2(4) reflects Saint Lucia's agreement to recognize 
United States jurisdiction to prosecute offenses committed 
outside of the United States if Saint Lucia's law would permit 
it to prosecute similar offenses committed outside of it in 
corresponding circumstances. If the Requested State's laws do 
not so provide, the final sentence of the paragraph states that 
extradition may be granted, but the executive authority of the 
Requested State has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Saint Lucia agrees to extradite to the United States a 
fugitive wanted for prosecution on a felony charge, the United 
States will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Saint Lucia. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\382\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\383\ and Saint Lucia's extradition law contains no 
exception for Saint Lucian nationals. Therefore, Article 3 of 
the Treaty provides that extradition is not to be refused based 
on the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\384\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses which are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\385\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\386\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\387\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\388\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\389\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 are met.
    Paragraph 2 outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and Saint Lucia delegations agreed that Article 
6(2)(c)(iii) should require this information so that the 
Requested State would be fully informed about the charges in 
the Requesting State.
    Paragraph 3 describes the additional information required 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Saint Lucia. The 
Treaty currently in force permits extradition only if ``...the 
evidence be found sufficient, according to the law of the 
Requested Party... to justify the committal for trial of the 
person sought if the offense of which he is accused had been 
committed in the territory of the requested Party...''\390\ The 
courts in many countries interpret this to require that 
sufficient evidence to convict the fugitive be shown before 
extradition will be granted.\391\ By contrast, U.S. law permits 
extradition if there is probable cause to believe that an 
extraditable offense was committed and the offender committed 
it.\392\ Saint Lucia's agreement to extradite under the new 
Treaty based on a ``reasonable basis'' standard eliminates this 
imbalance in the burden of proof for extradition, and should 
dramatically improve the United States' ability to extradite 
from Saint Lucia. It also will be a useful precedent in dealing 
with other former British colonies.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\393\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Saint Lucia resident in the United States. This is 
intended to replace the cumbersome and complicated procedures 
for authenticating extradition documents applicable under the 
current treaty.\394\ When the request is from Saint Lucia, the 
documents must be certified by the principal diplomatic or 
consular officer of the United States resident in Barbados 
accredited to Saint Lucia, in accordance with United States 
extradition law.\395\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states.\396\ The United States and Saint Lucian delegations 
agreed that a claim that the statute of limitations has expired 
is best resolved by the courts of the Requesting State after 
the fugitive has been extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\397\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Saint Lucia. The provision also 
indicates that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados.\398\
    Paragraph 5 makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States should agree 
on a time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law permits 
the person to request release if he has not been surrendered 
within two calendar months of having been found 
extraditable,\399\ or of the conclusion of any litigation 
challenging that finding,\400\ whichever is later. The law in 
Saint Lucia permits the person to apply to a judge for release 
if he has not been surrendered within two months of the first 
day on which he could have been extradited.\401\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws of each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment which has been 
imposed. The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence even if all necessary 
extradition proceedings have been completed.\402\

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision;\403\ for Saint 
Lucia, the decision would be made by the Attorney-General.\404\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\405\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to insure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\406\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\407\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on detention, trial, or punishment of an extraditee for 
additional offenses, or extradition a third State, (1) if the 
extraditee leaves and returns to the Requesting State, or (2) 
if the extraditee does not leave the Requesting State within 
ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested 
State.\408\

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries.\409\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in Saint Lucia, 
or via INTERPOL channels. The negotiators agreed that the 
diplomatic channels will be employed as much as possible for 
requests of this nature. A person may be detained in custody 
during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.
    Saint Lucia does not appear to have specific legislation on 
this matter, and the Saint Lucia delegation stated that its 
Government would seek implementing legislation for this article 
in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Saint Lucia in connection with a 
request from Saint Lucia for extradition before the courts in 
this country, and the Saint Lucia Attorney General will arrange 
for the representation of the United States in connection with 
United States extradition requests to Saint Lucia.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of Saint Lucia has a very small staff, and 
might need to enlist outside counsel to aid in handling a 
complex, contested international extradition proceeding. It is 
anticipated that in such cases the fees of private counsel 
retained by the Requested State would be paid by the Requested 
State. The negotiators also recognized that cases might arise 
in which the Requesting State would wish to retain its own 
private counsel to advise it on extradition matters or even 
assist in presenting the case, if the Requested State agrees. 
In such cases the fees of private counsel retained by the 
Requesting State must be paid by the Requesting State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Saint Lucia may consult with each other with regard to an 
individual extradition case or on extradition procedures in 
general. A similar provision is found in other recent U.S. 
extradition treaties.\410\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of Saint Lucia, the United States delegation promised 
to recommend training and technical assistance to better 
educate and equip prosecutors and legal officials in St. Lucia 
to implement this treaty.
    During the negotiations, the Saint Lucia delegation 
expressed concern that the United States might invoke the 
Treaty much more often than St. Lucia, resulting in an 
imbalance in the financial obligations occasioned by 
extradition proceedings. While no specific Treaty language was 
adopted, the United States agreed that consultations between 
the Parties under Article 18 could address extraordinary 
expenses arising from the execution of individual extradition 
requests or requests in general.

                        Article 19--Application

    This Treaty, like most other United States extradition 
treaties negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State. 
Termination shall become effective six months after notice of 
termination is received.

Technical Analysis of The Extradition Treaty Between The United States 
  of America and the Grand Duchy of Luxembourg signed October 1, 1996

    On October 1, 1996, the United States signed a treaty on 
extradition with the Grand Duchy of Luxembourg (hereinafter 
``the Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will replace the treaty now in 
force,\411\ and it constitutes an important step forward in the 
United States' efforts to win the cooperation of foreign 
nations in combating crime.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. Luxembourg has its own 
extradition legislation that will apply to U.S. requests under 
the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other Contracting State persons 
charged with, found guilty of, or convicted of an extraditable 
offense, subject to the provisions of the Treaty.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, like most 
recent United States extradition treaties, including those with 
Costa Rica, Ireland, Italy, Jamaica, Jordan, Sweden 
(Supplementary Convention) and Thailand, does not list the 
offenses for which extradition may be granted.
    Paragraph 1 permits extradition for an offense punishable 
under the laws of both Contracting States by deprivation of 
liberty (i.e., imprisonment or other form of detention) for a 
maximum period of more than one year or by a more severe 
penalty. As Luxembourg law provides for maximum and minimum 
sentences, the term ``maximum'' was included to make clear that 
the Requested State is to look only to the upper limit of the 
potential penalty when determining whether an offense meets 
that requirement of being punishable by more than one year. By 
defining extraditable offenses in terms of ``dual criminality'' 
and the requirement of being a felony rather than listing each 
extraditable crime, the Treaty obviates the need to renegotiate 
or supplement it should the Contracting States pass laws 
dealing with a new type of criminal activity or if the list 
inadvertently fails to cover an important type of criminal 
activity punishable in both nations.
    Paragraph 1(a) makes clear that attempts to commit and 
participation as an accomplice or accessory to the commission 
of an extraditable offense are also extraditable offenses if 
the dual criminality and minimum penalty provisions of 
paragraph 1 are met. Paragraph 1(b) follows the practice of 
recent extradition treaties in providing that offenses under 
paragraph 1 include conspiring to commit an offense, or in the 
case of Luxembourg, being a member of an association of 
wrongdoers, the equivalent in Luxembourg of a U.S. conspiracy 
offense.
    Paragraph 2 provides that a person who has already been 
sentenced in the Requesting State may be extradited only if 
more than six months of his or her sentence remains to be 
served. Most U.S. extradition treaties signed in recent years 
do not contain such a requirement, but provisions of this kind 
do appear in some recent United States extradition 
treaties.\412\
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Judges in foreign countries often are confused by the fact that 
many United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges know of no similar 
requirements in their own criminal law, they occasionally have 
denied the extradition of fugitives sought by the United States 
on this basis. This paragraph requires that such elements be 
disregarded in applying the dual criminality principle. For 
example, it will ensure that Luxembourg authorities treat 
United States mail fraud charges in the same manner as fraud 
charges under state laws, and view the federal crime of 
interstate transportation of stolen property in the same manner 
as unlawful possession of stolen property. This paragraph also 
requires the Requested State to disregard differences in the 
categorization of an offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used to describe the offense in the laws of each 
country. A similar provision is included in all recent United 
States extradition treaties.
    Paragraph 4 states that an offense will be extraditable 
regardless of where the act constituting the offense was 
committed. This provision deals with the fact that federal 
crimes may involve acts committed wholly outside United States 
territory. American jurisprudence recognizes the jurisdiction 
of United States courts to hear criminal cases involving 
offenses committed outside the United States if the crime was 
intended to, or did, have effects in the United States, or if 
the legislative history of the statute shows clear 
congressional intent to assert such jurisdiction.\413\ The 
Contracting States agreed that this provision does not mean 
that the Requested State loses jurisdiction to prosecute an 
offense committed within its territory if the Requesting State 
transmits a request prior to the Requested State's prosecution. 
The Requested State could postpone extradition under provisions 
relating to temporary and deferred surrender, and if 
prosecution in the Requested State occurs, extradition shall 
occur consistent with other provisions of the Treaty.
    Paragraph 5 provides that if a request includes, in 
addition to an offense extraditable under the Treaty, an 
offense that would be extraditable but for the condition 
regarding the amount of punishment that may be imposed, the 
Requested State shall grant extradition for the latter offense. 
The wording of the article is based on Article 3(2) of the 
Council of Europe Convention on Extradition, and the 
contracting parties agreed that it meant that once extradition 
is granted for an extraditable offense, it shall also be 
granted for any other offense set forth even if the latter 
offense is punishable by deprivation of liberty for a period 
shorter than that set forth in the Treaty, as long as all other 
requirements for extradition are met. Thus, if Luxembourg 
agrees to extradite to the United States a fugitive wanted for 
prosecution on an offense punishable by more than a year, the 
United States may also obtain extradition for misdemeanor 
offenses, specifically offenses punishable by a year or less, 
as long as those offenses are also recognized as criminal 
offenses in Luxembourg. Thus, the Treaty incorporates recent 
United States extradition practice by permitting extradition 
for misdemeanors committed by a fugitive when extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the Requesting State in that it permits all charges to be 
disposed of more quickly, thereby facilitating trials while 
evidence is fresh and permitting the possibility of concurrent 
sentences. Provisions addressing this issue are also found in 
recent United States extradition treaties with Australia, Costa 
Rica, Ireland and Italy.
    Paragraph 6 permits the Requested State to deny extradition 
if prosecution of the offense or execution of the penalty would 
be barred by the Requested State's statute of limitations. 
Other treaties have similar provisions which permit or require 
denial of a request if the statute of limitations would have 
run in the Requested State had the offense been committed in 
that state.\414\ The practical effect of the provision is to 
permit the Requested State to oblige the Requesting State to 
comply with the prescriptive laws of the Requested State. Even 
if the statute of limitations has expired in the Requested 
State, the denial of extradition is not automatic. In the 
United States, the decision whether to grant or deny 
extradition would be made by the Secretary of State. In 
Luxembourg, a court has the power to recommend a grant or 
denial of extradition to the government, with all relevant 
factors considered in the decision-making process. The 
negotiators agreed that one important consideration is whether 
there has been any tolling, interruption or suspension of the 
statute of limitations in the Requesting State. The last 
sentence of paragraph 6 requires the parties, insofar as 
possible, to take into consideration whether the statute has 
been tolled in the Requesting State.

                         Article 3--Nationality

    Article 3 provides that neither State shall be required to 
extradite its own nationals, but the Executive Authority of the 
United States may do so at its discretion. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\415\ and our long-standing policy is to draw no 
distinction between citizens and others for extradition 
purposes. Luxembourg, like a number of other European 
jurisdictions, indicated that it could not agree to extradition 
of a national under any circumstances.
    Paragraph 2 provides that if the Requested State refuses 
extradition solely on the basis of the nationality of the 
offender, that State must submit the case to its authorities 
for prosecution if asked by the Requesting State. Similar 
provisions are found in many United States extradition 
treaties.\416\

               Article 4--Political and Military Offenses

    Paragraph 1 prohibits extradition for political offenses. 
This is a standard provision in recent United States 
extradition treaties.
    Paragraph 2 describes seven categories of offenses that, 
for the purposes of the Treaty, shall not be considered to be 
political offenses.
    First, the political offense exception does not apply to a 
murder or willful crime against the person of a Head of State 
of the Contracting States or a member of the Head of State's 
family.
    Second, the political offense exception does not apply to 
an offense for which both Contracting States are obligated 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for decision regarding prosecution, such 
as the United Nations Convention Against the Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\417\
    Third, as set forth in Article 4(2)(c), the parties agreed 
that the political offense exception does not apply to murder, 
manslaughter, malicious wounding or inflicting grievous bodily 
harm.
    Fourth, as set forth in Article 4(2)(d), the parties agreed 
that the political offense exception does not apply to offenses 
involving kidnapping, abduction, or unlawful detention, 
including hostage taking.
    Fifth, as set forth in Article 4(2)(e), the parties agreed 
that the political offense exception does not apply to the 
placement or use of an explosive, incendiary or destructive 
device or substance capable of endangering life or doing 
grievous bodily harm. Articles 4(2)(c), (d) and (e) narrow the 
scope of the political offense exception to exclude terrorist-
type offenses and ensure that extradition will be mandatory 
under the Treaty for such offenses.
    The sixth and seventh exceptions set forth in Articles 
4(2)(f) and (g) ensure that attempts to commit, participation 
in the commission of, an ``association of wrongdoers'' under 
Luxembourg law and a conspiracy under U.S. law are not 
considered political offenses under the Treaty when they relate 
to an offense covered by Articles 4(2)(a)-(e).
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated.\418\ The 
negotiators agreed that under paragraph 3 the executive 
authority may refuse extradition when a request is not made in 
good faith or when, in the executive's judgment, the fugitive 
will not be able to obtain a fair trial in the Requesting 
State. Under United States law and practice, the Secretary of 
State has the sole discretion to determine whether an 
extradition request is based on improper political 
motivation.\419\
    Paragraph 4 states that the executive authority of the 
Requested State shall refuse extradition for offenses under 
military law that are not punishable under ordinary criminal 
law.\420\

                       Article 5--Fiscal Offenses

    Some United States extradition treaties contain provisions 
permitting extradition for fiscal offenses. Article 5 balances 
the interests of the united States in prosecuting major 
offenders for all offenses, including tax offenses, and the 
interests of Luxembourg, which has generally refused to assist 
other nations enforce their tax laws. This article allows 
extradition if a fugitive has engaged in other serious criminal 
activity, for instance drug trafficking or organized criminal 
activity, even if the admissible evidence of the other activity 
is insufficient to assure a conviction.
    Paragraph 1 provides that the executive authority of the 
Requested State shall have discretion to deny extradition when 
the offense for which extradition is requested is a fiscal 
offense.
    Paragraphs 2(a) and (b) define fiscal offenses for purposes 
of the Treaty as offenses relating to the reporting and payment 
of taxes or customs duties and offenses relating to currency 
exchange laws.
    Paragraph 3 provides that an offense that would otherwise 
be a fiscal offense under Article 5(2) may nonetheless be 
considered not to be a fiscal offense if it relates to drug 
trafficking, a crime of violence, or other criminal acts of a 
particularly serious nature. The parties agreed that the drug 
trafficking offense, crime of violence, or other crime must be 
particularly serious to fall within this paragraph. It was also 
agreed that the offense may nonetheless be considered not to be 
a fiscal offense even though extradition is not sought for the 
other criminal activity, e.g., for drug trafficking or violent 
criminal activity.

                      Article 6--Prior Prosecution

    This article, while prohibiting extradition if a person has 
been prosecuted in the Requested State for the same offense, 
permits extradition when the person sought is charged by each 
Contracting State with different offenses arising out of the 
same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, is similar 
to language present in many United States extradition treaties. 
This provision applies only when the person sought has been 
convicted or acquitted in the Requested State of exactly the 
same crime that is charged in the Requesting State. It is not 
enough that the same facts were involved. Thus, if the person 
sought is accused by one Contracting State of illegally 
smuggling narcotics into that country and is charged by the 
other Contracting State with unlawfully exporting the same 
shipment of drugs, an acquittal or conviction in one 
Contracting State does not insulate that person from 
extradition because different crimes are involved. The 
negotiators agreed that extradition is not to be denied on the 
basis that a fugitive has been prosecuted in a third state for 
the same offense.
    Paragraph 2 makes it clear that neither Contracting State 
may refuse to extradite a person sought on the basis that the 
Requested State's authorities declined to prosecute the person 
or instituted and later discontinued proceedings against the 
person. This provision was included because a decision of the 
Requested State to forego prosecution or to drop charges 
previously filed could be the result of a failure to obtain 
sufficient evidence or witnesses for trial, whereas the 
Requesting State's prosecution might not suffer from the same 
impediments. This provision should enhance the ability of the 
Contracting States to extradite to the jurisdiction with the 
better chance of a successful prosecution.

        Article 7--Capital Punishment and Humanitarian Concerns

    Paragraph 1 requires the Requested State to refuse 
extradition when the offense for which extradition is sought is 
punishable by death in the Requesting State, but not in the 
Requested State, unless the Requesting State provides 
sufficient assurances that the death penalty will not be 
imposed or, if imposed, will not be carried out. Similar 
provisions are found in many recent United States extradition 
treaties.\421\
    The Luxembourg delegation insisted on this provision, 
noting that Luxembourg would not accept a treaty that suggested 
it had discretion to allow a person to be extradited who might 
receive a death penalty.
    Paragraph 2 permits the executive authority of the 
Requested State to refuse extradition on humanitarian grounds. 
Under current Luxembourg law, the only humanitarian factors to 
be taken into consideration are youth, old age or health. 
Luxembourg insisted on having a provision similar to those 
included in other Benelux treaties, specifically, treaties 
signed with Belgium and the Netherlands\422\. Similar 
provisions are found in many extradition treaties.\423\ When a 
case presents compelling humanitarian concerns, the Requested 
State is to contact the Requesting State to determine whether 
there is a method for handling the case that will alleviate the 
humanitarian concerns. If so, assurances may be provided and 
the extradition may proceed.

        Article 8--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
found in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be made through the diplomatic channel. A formal 
extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to Article 12. 
Provisional arrest requests need not be made through the 
diplomatic channel provided that the requirements of Article 12 
are met.
    Paragraph 2 specifies the information that must accompany 
each request for extradition under the Treaty. Most of the 
items listed in paragraph 2 enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, paragraph 2(c) calls for ``the text of the 
law describing the essential elements of the offense for which 
extradition is requested,'' which enables the Requested State 
to determine easily whether a lack of dual criminality is an 
appropriate basis for denying extradition. Paragraph 2(e) 
facilitates the determination regarding the statute of 
limitations under Article 1(6) by requiring information both on 
the time limit for prosecution and on interruption or 
suspension of the time limit.
    Paragraph 3 lists the additional information required when 
the person is sought for trial in the Requesting State. 
Paragraph 3 (c) requires that if the person sought has not been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide, in addition to a copy of the 
arrest warrant and charging document, ``such information as 
would justify the committal for trial of the person if the 
offense had been committed in the Requested State.'' In 
Luxembourg, as in many European nations, the law permits 
extradition without review of any evidence, provided the arrest 
warrant and formal documents are presented. Under U.S. law, 
there must be an examination of the facts to establish probable 
cause to believe that an offense was committed and that the 
fugitive committed it.\424\ This provision requires that the 
Requesting State submit such information as meets the 
requirements of the Requested State.
    Paragraph 4 lists the information needed, in addition to 
the requirements of paragraph 2, when the person sought has 
already been found guilty of an offense in the Requesting 
State. It clarifies that once a conviction has been obtained, 
no showing of probable cause is required. In essence, the fact 
of conviction speaks for itself, a position taken in recent 
United States court decisions even absent a specific treaty 
provision.\425\ Paragraph 4(d) requires that if a person has 
been convicted but not yet sentenced, the Requesting State must 
provide a copy of the warrant for the arrest of the person 
sought and affirm an intention to impose a sentence.
    Paragraph 4(e) provides that if a person sought was found 
guilty in absentia, the documentation required includes both 
proof of conviction and the same documentation as in cases in 
which no conviction has been obtained. This provision is 
consistent with the long-standing United States policy of 
requiring such documentation in the extradition of persons 
convicted in absentia. Convictions in absentia are extremely 
rare under Luxembourg law.

                  Article 9--Supplementary Information

    This article states that if the Requested State considers 
the information furnished in support of the request for 
extradition insufficient under its law with respect to 
extradition, it may ask that the Requesting State submit 
supplementary information and fix a time limit for receipt of 
this information. This article is intended to permit the 
Requesting State to cure defects in the request and 
accompanying materials that are found by a court in the 
Requesting State or by the attorney acting on behalf of the 
Requesting State, and to permit the court, in appropriate 
cases, to grant a reasonable continuance to obtain, translate, 
and transmit additional materials. A similar provision is found 
in other United States extradition treaties.\426\
    Paragraph 2 indicates that if the person whose extradition 
is requested is under arrest and the supplementary information 
requested is not sufficient or does not arrive within the time 
specified, the person may be released from custody, but the 
Requesting State may, nonetheless, make a new request for 
extradition.
    Paragraph 3 requires that when a person so held is 
released, the Requested State shall notify the Requesting State 
as soon as practicable.

                 Article 10--Admissibility of Documents

    Article 10 pertains to the authentication procedures for 
the documents provided by the Requesting State so that the 
documents are received and admitted in the Requested State's 
extradition proceeding.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be admitted into evidence if they are authenticated by the U.S. 
Department of State. When Luxembourg is the Requesting State, 
the documents are to be admitted into evidence in the U.S. 
extradition proceeding if they have been certified by the 
principal diplomatic or consular officer of the United States 
resident in Luxembourg, as is provided under United States 
extradition law.\427\
    Paragraph (c) provides that documents shall also be 
admitted into evidence if authenticated in any other manner 
accepted by the law of the Requested State. For example, there 
may be information in the Requested State itself which is 
relevant and probative to extradition, and the Requested State 
itself is free under (c) to utilize that information if the 
information satisfies the ordinary rules of evidence in that 
state. This ensures that evidence that is acceptable under the 
evidentiary rules of the Requested State may be used in 
extradition proceedings even if it is not otherwise 
authenticated pursuant to the Treaty. This paragraph also 
should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 11--Translation

    This article requires that all documents submitted by 
Luxembourg be translated into English and that all documents 
submitted by the United States be translated into French.

                     Article 12--Provisional Arrest

    This article describes the process by which a person sought 
in one Contracting State may be arrested and detained in the 
other while the formal extradition documentation is prepared by 
the Requesting State.
    Paragraph 1 provides that a request for provisional arrest 
may be made through the diplomatic channel or directly between 
the United States Department of Justice and the Ministry of 
Justice of Luxembourg. The provision also specifies that 
INTERPOL may be used to transmit such a request.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 requires that the Requested State notify the 
Requesting State without delay of the disposition of its 
application for provisional arrest and the reasons for any 
denial.
    Paragraph 4 provides that the person who is provisionally 
arrested may be released from detention if the Requesting State 
does not submit a fully documented request for extradition to 
the executive authority of the Requested State within 60 days 
of the provisional arrest. When the United States is the 
Requested State, it is sufficient for purposes of this 
paragraph if the documents are received by the Secretary of 
State or the U.S. Embassy in Luxembourg.\428\
    Although the person sought may be released from custody if 
the documents are not received within the 60-day period or any 
extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. The final paragraph in this 
article makes it clear that the person may be taken into 
custody again, and the extradition proceedings may commence, if 
the formal request and supporting documents are presented 
subsequently.

                   Article 13--Decision and Surrender

    This article provides that the Requested State promptly 
notify the Requesting State of its decision on the request for 
extradition. The delegations agreed the notification could be 
through informal channels, such as the respective Justice 
Ministries, and that formal notice in the form of a diplomatic 
note should follow. If the request is denied in whole or in 
part, the Requested State must explain the reasons for the 
denial. If extradition is granted, this article requires 
authorities of the Contracting States to agree on a time and 
place for the surrender of the person sought. The Requesting 
State must remove the person within such time as may be 
prescribed by the law of the Requested State or the person may 
be discharged from custody, and the Requested State may 
subsequently refuse to extradite the person for the same 
offense. United States law requires that surrender occur within 
two calendar months of a finding that the person is 
extraditable,\429\ or of the conclusion of any litigation 
challenging that finding,\430\ whichever is later. The law in 
Luxembourg does not specify a time by which a person must be 
removed.
    In addition, paragraph 5 requires that the period of time 
spent in custody in the Requested State pursuant to the 
Requesting State's extradition request be subtracted from the 
period of detention to be served in the Requesting State. 
Providing credit for time in detention awaiting extradition is 
in accordance with current U.S. policy and practice.

              Article 14--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.
    Paragraph 1 provides for the temporary surrender of a 
person sought for prosecution in the Requesting State who is 
being proceeded against or serving a sentence in the Requested 
State. A person thus surrendered shall be returned to the 
Requested State at the conclusion of the proceedings in the 
Requesting State. The time spent in detention in the territory 
of the Requesting State is to be deducted from the time 
remaining to be served in the Requested State. Such temporary 
surrender furthers the interests of justice in that it permits 
trial of the person sought while evidence and witnesses are 
more likely to be available, thereby increasing the probability 
of a successful prosecution. Such transfer may also be 
advantageous to the person sought in that it: (1) permits 
resolution of the charges sooner; (2) may make it possible for 
any sentence to be served in the Requesting State concurrently 
with the sentence in the Requested State; and (3) permits a 
defense against the charges while favorable evidence is fresh 
and more likely to be available. Such provisions are found in 
many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the initiation of extradition 
proceedings against a person who is serving a sentence in the 
Requested State until the full execution of any punishment that 
has been imposed.\431\ The wording of the provision also allows 
the Requested State to postpone the surrender of a person 
facing prosecution or serving a sentence even if all necessary 
extradition proceedings have been completed.

      Article 15--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered.\432\

             Article 16--Seizure and Surrender of Property

    This article permits the seizure by the Requested State of 
all items including articles, documents and other evidence 
connected with the offense for which extradition is requested 
to the extent permitted by the Requested State's internal law. 
The article also provides that these items may be surrendered 
to the Requesting State upon the granting of the extradition or 
even if extradition cannot be effected due to the death, 
disappearance or escape of the person sought.
    Paragraph 2 states that the Requested State may condition 
its surrender of items upon satisfactory assurances that the 
items will be returned to the Requested State as soon as 
practicable. Paragraph 2 also permits the surrender of items to 
be deferred if they are needed as evidence in the Requested 
State.
    In Paragraph 3, surrender of items under this provision is 
expressly made subject to due respect for the rights of third 
parties in such property.

                     Article 17--Rule of Speciality

    This article deals with the principle known as the rule of 
speciality, a standard aspect of United States extradition 
practice. Designed to ensure that a fugitive surrendered for 
one offense is not tried for other crimes, the rule of 
speciality prevents a request for extradition from being used 
as a subterfuge to obtain custody of a person for trial or 
execution of a sentence on different charges that are not 
extraditable or properly documented in the request.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for: 
(1) the offense for which extradition was granted or a 
differently denominated offense based on the same facts, 
provided the offense is extraditable or is a lesser included 
offense; (2) an offense committed after the extradition; or (3) 
an offense for which the executive authority of the Requested 
State consents.\433\ The Contracting Parties agreed that the 
lesser included offense need not be a felony.
    Paragraph 1(c) permits the Requested State to require the 
Requesting State seeking consent to prosecute for new charges 
to submit documents identified in Article 8 and a statement of 
the position of the person whose extradition is sought. The 
contracting parties agreed that a statement from the attorney 
representing the fugitive would be sufficient and that the 
Requesting State may, in appropriate circumstances, submit a 
statement that the fugitive declined to make a statement. 
Paragraph 1(c) permits the Requesting State to detain the 
person extradited for 75 days or for such longer period as the 
Requested State may authorize while the Requested State makes 
its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state without the consent of 
the Requested State.
    Paragraph 3 removes the restrictions of paragraphs 1 and 2 
on detention, trial, or punishment of an extradited person for 
additional offenses or extradition to a third state if: (1) the 
extradited person leaves the Requesting State after extradition 
and voluntarily returns to it; or (2) the extradited person 
does not leave the Requesting State within 15 days of being 
free to do so.

                   Article 18--Simplified Extradition

    Persons sought for extradition often elect to waive their 
right to extradition proceedings in order to expedite their 
return to the Requesting State. This article provides that when 
a fugitive waives extradition in accordance with the laws of 
the Requested State, the person may be returned to the 
Requesting State as expeditiously as possible without further 
proceedings.
    United States practice dictates that when a fugitive waives 
extradition and voluntarily returns to the Requesting State, 
the rule of speciality does not apply. However, under 
Luxembourg law, the rule of speciality does apply in such 
cases. The United States agreed to recognize such application 
upon the receipt of an accompanying diplomatic note indicating 
that the rule of specialty is applicable to the extradition.

                          Article 19--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of a person being 
surrendered to the other Contracting State by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person being transported and a brief statement of the facts 
of the case for which the person is sought. Requests for 
transit may be made through the diplomatic channel, directly 
between the United States Department of Justice and the 
Ministry of Justice of Luxembourg, or through the facilities of 
INTERPOL. Requests for transit may be denied for a national of 
the Requested State or for a person sought for prosecution or 
to serve a sentence in the Requested State.
    Paragraph 2 describes the procedure each Contracting State 
should follow when seeking to transport a person in custody 
through the territory of the other. Under this provision, no 
advance authorization is needed if the person in custody is in 
transit to one of the Contracting States and is traveling by 
aircraft and no landing is scheduled in the territory of the 
other. Should an unscheduled landing occur, a request for 
transit may be required at that time, and the Requested State 
may grant such a request. It also provides for the transit 
State to detain a fugitive until a request for transit is 
received and executed, so long as the request is received 
within 96 hours of the unscheduled landing.

                Article 20--Representation and Expenses

    Paragraph 1 provides that the Requested State shall, by all 
legal means within its power, advise, assist, appear in court 
for and represent the interests of the Requesting State in 
extradition request proceedings. Thus, the United States will 
provide complete representation for Luxembourg. As Luxembourg 
law prohibits either a government attorney or private counsel 
from representing the United States before its courts in an 
extradition proceeding, Luxembourg is not able to represent the 
United States in a reciprocal fashion. Luxembourg also 
indicated that communications between the Public Prosecutor and 
representatives of the United States regarding a request for 
extradition may be improper. The Luxembourg Ministry of Justice 
will review requests for extradition and communicate with 
United States authorities.
    Paragraph 2 states that the Requesting State shall bear the 
expenses of translation and transportation of the person 
sought, and that the Requested State shall pay all other 
expenses.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination and surrender of the person sought. This includes 
any claim by the person sought for damages, reimbursement of 
legal fees, or other expenses occasioned by the execution of 
the extradition request.

                        Article 21--Consultation

    This article provides that the United States Department of 
Justice and the Ministry of Justice of Luxembourg may consult 
with each other, directly or through INTERPOL, regarding an 
individual extradition case or extradition procedures in 
general. A similar provision is found in other recent United 
States extradition treaties.\434\

                        Article 22--Application

    This Treaty, like most United States extradition treaties 
negotiated in the last two decades, is expressly made 
retroactive to cover offenses that occurred before as well as 
after the Treaty enters into force. The negotiators agreed that 
for this provision to apply, the conduct had to have been 
criminal in both the Requesting and Requested States at the 
time it occurred.

             Article 23--Ratification and Entry into Force

    The first two paragraphs of this article contain standard 
treaty language providing for the exchange of instruments of 
ratification and specifies the day on which the Treaty will 
enter into force after the exchange.
    Paragraph 3 provides that the 1883 Treaty and the 
Supplementary Convention of 1935 will cease to have any effect 
upon the entry into force of the Treaty, but extradition 
requests pending when the Treaty enters into force will 
nevertheless be processed to conclusion under the 1883 Treaty 
and the 1935 Supplementary Convention. Nonetheless, Article 2 
of this Treaty becomes applicable. This assures that such a 
case may proceed if the dual criminality requirements of this 
Treaty are met. In addition, Article 14 of this Treaty, which 
addresses temporary and deferred surrender, and Article 17, 
which concerns the rule of speciality, will apply in such 
extradition proceedings. This means that if a person found 
extraditable under the 1883 Treaty and Supplementary Convention 
of 1935 is serving a sentence in the Requested State when this 
Treaty enters into force, the Requested State has discretion to 
grant temporary surrender. The Requested State may also waive 
the application of the rule of speciality if it is persuaded 
that it is in the interests of justice to do so.

                        Article 24--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State. Termination becomes effective six months 
after the date of such notice.

 Technical Analysis of The Protocol to the Extradition Treaty Between 
 the United States of America and the United Mexican States of May 4, 
                     1978 Signed September 2, 1998

    The Protocol to the Extradition Treaty between the United 
States of America and the United Mexican States of May 4, 1978 
(``the Protocol'') was signed in Washington, D.C., on November 
13, 1997. The Protocol authorizes the temporary extradition to 
the Requesting Party of individuals charged with crimes there 
who are serving penal sentences in the Requested Party. Absent 
the authorization provided by the Protocol, surrender through 
the extradition process of persons already convicted and 
sentenced in the country from which extradition is sought must 
generally be deferred until the completion of their sentences, 
by which time the evidence in the other country may no longer 
be compelling or available. Pursuant to the Protocol, such 
individuals, after the Requested Party has granted a request 
for their extradition, can be temporarily surrendered to the 
Requesting Party for purposes of immediate prosecution and then 
returned to the Requested Party for the completion of their 
original sentences.
    The Protocol serves as a supplement to, and is incorporated 
as a part of, the existing Extradition Treaty between the 
United States of America and the United Mexican States, which 
was signed at Mexico on May 4, 1978, and entered into force on 
January 25, 1980 (``the Treaty'').\435\ The mechanism 
established by the Protocol is a standard feature in treaties 
concluded between the United States and other countries in 
recent years.\436\ The addition of this mechanism to the U.S.-
Mexico Treaty serves to improve the bilateral extradition 
process in light of modern treaty practice and modern patterns 
of chronic criminal behavior. It is in accordance with 
Declaration of the Mexican-U.S. Alliance Against Drugs, signed 
at Mexico City on May 6, 1997, in which Presidents Clinton and 
Zedillo stated their intention to ``ensure that fugitives are 
expeditiously and with due legal process brought to justice and 
are unable to evade justice in one of our countries by fleeing 
to or remaining in the other.''
    The following technical analysis of the Protocol was 
prepared by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                               Article 1

    Article 1, paragraph 1, of the Protocol changes the title 
of Article 15 of the Treaty from ``Delayed Surrender'' to 
``Delayed and Temporary Surrender.''
    Paragraph 2 of Article 1 describes the new mechanism of 
temporary extradition for individuals serving sentences in the 
Requested Party. It adds two new paragraphs to Article 15 of 
the Treaty. The first new provision, new Article 15(2), sets 
forth the substantive authorization for the Requested Party to 
allow the temporary surrender to the Requesting Party of 
individuals who have been found extraditable, but have already 
been convicted and sentenced in the Requested Party. Prior to 
this amendment, Article 15 of the Treaty provided only that the 
surrender of such individuals (or of persons against whom 
charges had been initiated) could be deferred until the 
punishment imposed against them had been fully executed. To 
prevent the injustice potentially created by prolonged delays 
prior to surrender, the expedited transfer procedure of the new 
Article 15(2) provides another option to assist both 
governments in the effective pursuit and prosecution of 
criminal fugitives.
    The mechanism of temporary surrender applies only to those 
who have been sentenced in the Requested Party. It does not 
encompass persons who are simply facing charges in the 
Requested Party or against whom proceedings have been 
initiated, but not completed, because Mexican law does not 
permit the absence of defendants or the transfer of 
jurisdiction over them prior to sentencing. Similarly, as in 
analogous provisions of other extradition treaties to which the 
United States is a party, the Protocol does not apply to those 
being sought by the Requesting Party for service of a 
previously-imposed sentence, because the rationale for the 
mechanism--the prosecution of the extraditee while the case is 
still viable--is not implicated for those individuals who have 
already been convicted.
    New Article 15(2) further states that the surrendered 
person ``shall be kept in custody in the Requesting State, and 
shall be returned to the Requested State after conclusion of 
the proceedings, in accordance with conditions to be determined 
by agreement of the Parties.'' It is anticipated that 
extradition authorities in Mexico and the United States will 
consult to develop case-specific agreements between the two 
governments, which will be transmitted through diplomatic 
channels and based on formal, written commitments by the 
pertinent federal and/or state officials with jurisdiction and 
the authority to make such commitments. The agreements will 
typically address arrangements for the transfer and maintenance 
of custody of the prisoners and their return to the Requested 
Party, as well as any extraordinary matters that may be 
relevant, such as the proper handling of individuals requiring 
medical treatment or the appropriate disposition of a prisoner 
who commits new crimes in the Requesting Party during the 
period of temporary surrender.
    The negotiators agreed that the new temporary surrender 
mechanism established by the Protocol will be reserved for 
exceptional situations, in which the interests of justice 
cannot or may not otherwise be served. To further that 
understanding, the negotiators further agreed that each request 
for temporary surrender should be justified by evidence of the 
dangerousness of the requested person and the seriousness of 
the offense charged in the Requesting Party (as generally 
provided in the Requesting Party's extradition request), as 
well as an explanation of the loss of evidence or witness 
testimony likely or certainly to result from deferred 
extradition.
    The second provision added to Article 15 of the Treaty, new 
Article 15(3), states that a temporarily surrendered person who 
is acquitted in the Requesting Party shall receive credit in 
the Requested Party for the time spent in custody in the 
Requesting Party. This provision is included to ensure that, 
regardless of the laws or regulations generally applicable to 
persons in custody elsewhere, no individual will lose custodial 
credit for time spent in such status in a jurisdiction in which 
a conviction is not obtained.

                               Article 2

    Paragraph 1 of Article 2, provides that the provisions of 
the Protocol are to be viewed as integral parts of the Treaty, 
and their interpretation governed by principles therein.
    Paragraph 2 of the Article, which states that the 
requirements of the prisoner transfer treaty between Mexico and 
the United States\437\ do not apply to temporary surrenders 
under the Protocol, was included to make it clear that the 
consent of the individual being temporarily surrendered is not 
required. Under the Protocol, the person being surrendered will 
already have been found extraditable, a process not involving 
consent, and will be transferred to face prosecution. The 
prisoner transfer treaty, on the other hand, requires the 
consent of the prisoner and results in the service of a 
sentence in the receiving country.
    Paragraph 3 contains standard treaty language providing 
that the Protocol shall be subject to ratification and that it 
will enter in force on the date of exchange of instruments of 
ratification between the Parties. It will terminate upon 
termination of the Treaty as provided in Article 23 of that 
instrument.

Technical Analysis of The Extradition Treaty Between The United States 
       of America and the Republic of Poland signed July 10, 1996

    On July 10, 1996, the United States signed a treaty on 
extradition with the Republic of Poland (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will replace the treaty now in 
force,\438\ and constitutes an important step forward in the 
United States' efforts to win the cooperation of foreign 
nations in combating crime.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. The Republic of Poland 
has its own internal legislation\439\ that will apply to the 
United States' requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, as with the first article in every recent 
United States extradition treaty, formally obligates each 
Contracting State to extradite to the other Contracting State 
persons charged with, found guilty of, or convicted of an 
extraditable offense, subject to the provisions of the Treaty. 
The article refers to prosecution ``in'' the Requesting State 
rather than ``of'' the Requesting State, since the obligation 
to extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, similar 
to recent United States extradition treaties with Costa Rica, 
Ireland, Italy, Jamaica, Jordan, Sweden (Supplementary 
Convention), and Thailand, does not list the offenses for which 
extradition may be granted.
    Paragraph 1 permits extradition for an offense punishable 
under the laws of both Contracting States by deprivation of 
liberty (i.e., imprisonment or other form of detention) for a 
maximum period of more than one year or by a more severe 
penalty. As Polish law provides for maximum and minimum 
sentences, the term ``maximum'' was included to make clear that 
the Requested State is to look only to the upper limit of the 
potential penalty when determining whether an offense meets 
that requirement of being punishable by more than one year. By 
defining extraditable offenses in terms of ``dual criminality'' 
and the requirement of being a felony rather than listing each 
extraditable crime, the Treaty obviates the need to renegotiate 
or supplement it should the Contracting States pass laws 
dealing with a new type of criminal activity or if the list 
inadvertently fails to cover an important type of criminal 
activity punishable in both nations.
    During the negotiations, the Polish delegation stated that 
key offenses such as drug trafficking, including operating a 
continuing criminal enterprise\440\, money laundering\441\ and 
offenses under the RICO statutes\442\, are considered 
extraditable under the Treaty.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting to commit, conspiring to commit, or otherwise 
participating in, an extraditable offense. Conspiracy charges 
are frequently used in United States criminal cases, 
particularly those involving complex transnational criminal 
activity, so it is especially important that the Treaty be 
clear on this point. Poland has no general conspiracy statue 
like Title 18, United States Code, Section 371. Therefore, 
paragraph 2 creates an exception to the ``dual criminality'' 
rule of paragraph 1 by expressly making conspiracy an 
extraditable crime. Similarly, this paragraph makes the Polish 
offense of association to commit an offense an extraditable 
offense.
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Judges in foreign countries often are confused by the fact that 
many United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges have not found 
similar requirements in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the Unites States on this basis. This paragraph requires that 
such elements be disregarded in applying the dual criminality 
principle. For example, it will ensure that Polish authorities 
treat United States mail fraud charges in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property in the same manner 
as unlawful possession of stolen property. This paragraph also 
requires the Requested State to disregard differences in the 
categorization of an offense in determining whether dual 
criminality exists, and to overlook mere differences in the 
terminology used to describe the offense under the laws of the 
Contracting States. A similar provision is included in all 
recent United States extradition treaties.
    Paragraph 4 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory. 
American jurisprudence recognizes the jurisdiction of United 
States courts to hear criminal cases involving offenses 
committed outside the United States if the crime was intended 
to, or did, have effects in the United States, or if the 
legislative history of the statute shows clear congressional 
intent to assert such jurisdiction.\443\ In Poland, however, 
the government's ability to prosecute extraterritorial offenses 
is very different.\444\ Paragraph 4, therefore, reflects 
Poland's agreement to recognize United States jurisdiction to 
prosecute offenses committed outside the United States if 
Polish law permits it to prosecute similar offenses committed 
outside Poland in corresponding circumstances. If the law of 
the Requested States does not provide for such prosecution, 
paragraph 4 nevertheless permits the executive authority of the 
Requested State to decide, at its discretion, to grant the 
extradition. For the United States, this decision is made by 
the Secretary of State; for Poland the decision is made by the 
Minister of Justice/Attorney General. A similar provision 
appears in several recent United States treaties.\445\
    The Contracting States agreed that paragraph 4 does not 
mean that the Requested State loses jurisdiction to prosecute 
an offense committed within its territory if the Requesting 
State transmits a request prior to the Requested State's 
prosecution. The Requested State could postpone extradition 
under provisions relating to temporary and deferred surrender 
and if prosecution in the Requested State occurs, extradition 
shall occur consistent with other provisions of the Treaty.
    Paragraph 5 provides that if a request includes, in 
addition to an offense extraditable under the Treaty, an 
offense that would be extraditable but for the condition 
regarding the amount of punishment that may be imposed, the 
Requested State shall grant extradition for the latter offense. 
For example, if Poland agrees to extradite to the United States 
a fugitive wanted for prosecution on an offense punishable by 
more than a year, the United States may also obtain extradition 
for misdemeanor offenses, specifically offenses punishable by a 
year or less, as long as the offenses are also recognized as 
criminal offenses in Poland. Thus, the Treaty incorporates 
recent United States extradition practice by permitting 
extradition for misdemeanors committed by a fugitive when 
extradition is granted for a more serious extraditable offense. 
This practice is generally desirable from the standpoint of 
both the fugitive and the Requesting State in that it permits 
all charges to be disposed of more quickly, thereby 
facilitating trials while evidence is fresh and permitting the 
possibility of concurrent sentences. Provisions addressing this 
issue are also found in recent United States extradition 
treaties with Australia, Costa Rica, Ireland, and Italy.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\446\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                       Article 3--Fiscal Offenses

    This provision provides that the executive authority of the 
Requested State shall grant extradition when the offense for 
which extradition is requested is an offense connected with 
taxes, duties, international transfers of funds, and 
importation, exportation, and transit of goods. This is true 
even if the law of the Requested State does not require the 
same type of fee or tax or does not regulate fees, taxes, 
duties, transit of goods, and currency transactions in the same 
manner as the law of the Requesting State. A similar provision 
exists in other United States extradition treaties.
    The Polish delegation stated that a fiscal provision was 
essential to ensure that extradition would be granted for 
fiscal offenses. This provision makes it clear that a Requested 
State must find a fiscal offense an extraditable offense even 
though the fiscal offenses are not identical under the laws of 
the United States and Poland. For example, a law requiring 
payment of a particular type of tax, such as an inheritance 
tax, may exist in the Requesting State and not in the Requested 
State; nevertheless, the Requested State would be obligated to 
find the failure to pay an inheritance tax in the Requesting 
State an extraditable offense.

                         Article 4--Nationality

    Article 4 provides that neither State shall be required to 
extradite its own nationals, but the Executive Authority of the 
United States may do so in its discretion. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\447\ and our long-standing policy is to draw no 
distinction between citizens and others for extradition 
purposes.
    The U.S. and Polish delegations discussed this provision at 
great length. In Poland, the extradition of nationals is barred 
by statutory law only (not by the constitution), and statutory 
law can be amended by treaty. Thus, this treaty would create a 
possibility not currently existing for Poland to extradite one 
of its nationals. The Polish delegation was unwilling to go 
beyond simply making the extradition of nationals 
discretionary.
    According to the delegation, whether Poland will extradite 
a particular national will depend on the facts of the case and 
the political mood at the time a request for extradition is 
made.
    The delegations also discussed the issue of dual 
nationality. The Polish delegation noted that one of the 
driving forces for the Polish delegation's wanting to make 
extradition of nationals possible was the concern that Poland 
would otherwise have to provide asylum for all dual nationals 
who have no connection with the country other than possessing 
its citizenship.
    Paragraph 2 provides that if the Requested State refuses 
extradition solely on the basis of the nationality of the 
offender, that State must submit the case to its authorities 
for prosecution if asked by the Requesting State. Similar 
provisions are found in many United States extradition 
treaties.\448\

               Article 5--Political and Military Offenses

    Paragraph 1 prohibits extradition for political offenses. 
This is a standard provision in recent United States 
extradition treaties.
    Paragraph 2 describes seven categories of offenses that, 
for the purposes of the Treaty, shall not be considered to be 
political offenses.
    First, the political offense exception does not apply to a 
murder or any other offense against the person of a Head of 
State of the Contracting States or a member of the Head of 
State's family.
    Second, the political offense exception does not apply to 
an offense for which both Contracting States are obligated 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for decision regarding prosecution, such 
as the United Nations Convention Against the Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\449\
    Third, as set forth in Article 5(2)(c), the parties agreed 
that the political offense exception does not apply to murder, 
manslaughter, malicious wounding or inflicting grievous bodily 
harm or other grievous injury to health.
    Fourth, as set forth in Article 5(2)(d), the parties agreed 
that the political offense exception does not apply to offenses 
involving kidnapping, abduction, or unlawful detention, 
including hostage taking.
    Fifth, as set forth in Article 5(2)(e), the parties agreed 
the political offense exception does not apply to the placement 
or use of an explosive, incendiary or destructive device 
capable of endangering life, of causing substantial bodily 
harm, or of causing substantial property damage. Articles 
5(2)(c), (d) and (e) narrow the scope of the political offense 
exception to exclude terrorist-type offenses and ensure that 
extradition will be mandatory under the Treaty for such 
offenses.
    The sixth exception set forth in Article 5(2)(f) ensures 
that attempts to commit, or participation in the commission of, 
any of the named offenses, as well as an association to commit 
these offenses as provided by the laws of Poland, or conspiracy 
to commit these offenses as provided by the laws of the United 
States, are not considered political offenses under the Treaty 
when they relate to an offense covered by Articles 5(2)(a)-(e).
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated.\450\ The 
negotiators agreed that under paragraph 3 the executive 
authority may refuse extradition when a request is not made in 
good faith or when, in the executive's judgment, the fugitive 
will not be able to obtain a fair trial in the Requesting 
State. Under United States law and practice, the Secretary of 
State has the sole discretion to determine whether an 
extradition request is based on improper political 
motivation.\451\
    Paragraph 4 states that the executive authority of the 
Requested State shall refuse extradition for offenses under 
military law that are not punishable under ordinary criminal 
law.\452\

                     Article 6--Capital Punishment

    Paragraph 1 permits the Requested State to refuse 
extradition in cases in which the offense for which extradition 
is sought is punishable by death in the Requesting State, but 
is not punishable by death in the Requested State, unless the 
Requesting State provides assurances that the death penalty 
will not be imposed, or, if imposed, will not be carried out. 
Similar provisions are found in many recent United States 
extradition treaties.\453\
    The Polish delegation insisted on the inclusion of this 
provision. Although a small number of offenses in Poland are 
punishable by death under the law of Poland, the Polish 
Parliament has issued a moratorium against carrying out any 
death sentence imposed. This moratorium reflects the current 
political trend in Poland, which is similar to several other 
emerging democratic Eastern European countries, towards 
reconsidering its position on capital punishment.
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, the assurances shall 
be respected and the death penalty, if imposed, shall not be 
carried out.

                      Article 7--Prior Prosecution

    This article, while prohibiting extradition if a person has 
been prosecuted in the Requested State for the same offense, 
permits extradition when the person sought is charged by each 
Contracting State with different offenses arising out of the 
same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted with final binding 
effect in the Requested State for the offense for which 
extradition is requested, is similar to language present in 
many United States extradition treaties. This provision applies 
only when the person sought has been convicted or acquitted in 
the Requested State of exactly the same crime that is charged 
in the Requesting State. It is not enough that the same facts 
were involved. Thus, if the person sought is accused by one 
Contracting State of illegally smuggling narcotics into that 
country, and is charged by the other Contracting State with 
unlawfully exporting the same shipment of drugs, an acquittal 
or conviction in one Contracting State does not insulate that 
person from extradition because different crimes are involved. 
The negotiators agreed extradition is not to be denied on the 
basis that a fugitive has been prosecuted in a third state for 
the same offense.
    Paragraph 2 (a) and (b) make it clear that neither 
Contracting State may refuse to extradite a person sought on 
the basis that the Requested State's authorities declined to 
prosecute the person or instituted and later discontinued 
proceedings against the person. This provision was included 
because a decision of the Requested State to forego prosecution 
or to drop charges previously filed could be the result of a 
failure to obtain sufficient evidence or witnesses for trial, 
whereas the Requesting State's prosecution might not suffer 
from the same impediments. This provision should enhance the 
ability of the Contracting States to extradite to the 
jurisdiction with the better chance of a successful 
prosecution.

                        Article 8--Lapse of Time

    This article states that extradition must be denied if, at 
the time the extradition request is received, the prosecution 
of the offense or the enforcement of the penalty is barred by 
lapse of time under the law of the Requesting State. Similar 
provisions appear in several United States extradition 
treaties. The reference to ``enforcement of the penalty'' 
reflects the fact that Poland, like many civil law countries, 
has a statute of limitations relating to such matters in 
addition to a statute of limitation on prosecutions. The 
article indicates that the Requested State should not deny the 
request if the statute of limitations expires after the 
Requested State receives the request.

        Article 9--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
found in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be made through the diplomatic channel. A formal 
extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to Article 12. 
Provisional arrest requests need not be made through the 
diplomatic channel provided that the requirements of Article 12 
are met.
    Paragraph 2 specifies the information that must accompany 
each request for extradition under the Treaty. Most of the 
items listed in paragraph 2 enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, paragraph 2(c) calls for ``the text of the 
law describing the essential elements of the offense for which 
extradition is requested,'' which enables the Requested State 
to determine easily whether the request satisfies the 
requirement for dual criminality under Article 2. Paragraph 
2(e) facilitates the determination regarding the statute of 
limitations under Article 8 by requiring information both on 
the time limit for prosecution and on interruption or 
suspension of the time limit.
    Paragraph 3 lists the additional information needed when 
the person is sought for trial in the Requesting State. 
Paragraph 3 (c) requires that if the person sought has not been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide, in addition to a copy of the 
arrest warrant and charging document, ``such information as 
would justify the committal for trial of the person if the 
offense had been committed in the Requested State.'' In Poland, 
as in many European nations, the law permits extradition 
without review of any evidence, provided the arrest warrant and 
formal documents are presented. Under U.S. law, there must be 
an examination of the facts to establish probable cause to 
believe that an offense was committed and that the fugitive 
committed it.\454\ This provision requires that the Requesting 
State submit such information as meets the requirements of the 
Requested State.
    Paragraph 4 lists the information needed, in addition to 
the requirements of paragraph 2, when the person sought has 
already been found guilty of an offense in the Requesting 
State. It clarifies that once a conviction has been obtained, 
no showing of probable cause is required. In essence, the fact 
of conviction speaks for itself, a position taken in recent 
United States court decisions even absent a specific treaty 
provision.\455\
    Paragraph 4(a) requires that the Requesting State must 
provide a copy of a warrant or order of arrest, if any, issued 
by a judge or other competent authority.
    Paragraph 4(b) requires a copy of the judgment of 
conviction or, if such copy is not available, a statement by a 
judicial authority that the person has been found guilty.
    Paragraph 4(c) provides that the Requesting State must 
submit information establishing that the person sought is the 
person to whom the finding of guilt refers.
    Paragraph 4(d) requires a copy of the sentence imposed, if 
the person sought has been sentenced, and a statement 
establishing to what extent the sentence has been carried out.
    Paragraph 4(e) provides that if a person sought was found 
guilty in absentia, the documentation required includes both 
proof of conviction and the same documentation as in cases in 
which no conviction has been obtained. This provision is 
consistent with the long-standing United States policy of 
requiring such documentation in the extradition of persons 
convicted in absentia.

                 Article 10--Admissibility of Documents

    Article 10 pertains to the authentication procedures for 
the documents provided by the Requesting State so that the 
documents are received and admitted in the Requested State's 
extradition proceeding.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be admitted into evidence if they are authenticated by the U.S. 
Department of State. With a request from Poland, the documents 
are to be admitted into evidence in the U.S. extradition 
proceeding if they have been certified by the principal 
diplomatic or consular officer of the United States resident in 
Poland, as is provided under United States extradition 
law.\456\
    Paragraph (c) provides that documents shall also be 
admitted into evidence if authenticated in any other manner 
accepted by the law of the Requested State. For example, there 
may be information in the Requested State itself that is 
relevant and probative to extradition, and the Requested State 
itself is free under (c) to utilize that information if the 
information satisfies the ordinary rules of evidence in that 
state. This ensures that evidence that is acceptable under the 
evidentiary rules of the Requested State may be used in 
extradition proceedings even if it is not otherwise 
authenticated pursuant to the Treaty. This paragraph also 
should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                        Article 11--Translation

    This article requires that all documents submitted by the 
Requesting State shall be translated into the language of the 
Requested State. Therefore, all documents submitted by the 
United States shall be translated into Polish, and all 
documents submitted by Poland shall be translated into English.

                     Article 12--Provisional Arrest

    This article describes the process by which a person sought 
in one Contracting State may be arrested and detained in the 
other while the formal extradition documentation is prepared by 
the Requesting State.
    Paragraph 1 provides that a request for provisional arrest 
may be made through the diplomatic channel or directly between 
the United States Department of Justice and the Ministry of 
Justice of the Republic of Poland. The provision also specifies 
that INTERPOL may be used to transmit such a request.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 requires that the Requested State notify the 
Requesting State without delay of the disposition of its 
application for provisional arrest and the reasons for any 
denial.
    Paragraph 4 provides that the person who is provisionally 
arrested may be released from detention if the Requesting State 
does not submit a fully documented request for extradition to 
the executive authority of the Requested State within 60 days 
of the provisional arrest. When the United States is the 
Requested State, it is sufficient for purposes of this 
paragraph if the documents are received by the Secretary of 
State or the U.S. Embassy in Warsaw, Poland.\457\
    Although the person sought may be released from custody if 
the documents are not received within the 60-day period or any 
extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. The final paragraph in this 
article makes it clear that in such a case the person may be 
taken into custody again, and the extradition proceedings may 
commence, if the formal request and supporting documents are 
received at a later date.

                   Article 13--Additional Information

    This article states that if the Requested State considers 
the information furnished in support of the request for 
extradition insufficient under its law with respect to 
extradition, it may ask that the Requesting State submit 
supplementary information within a reasonable length of time as 
it specifies. This article is intended to permit the Requesting 
State to cure defects in the request and accompanying materials 
that are found by a court in the Requesting State or by the 
attorney acting on behalf of the Requesting State, and to 
permit the court, in appropriate cases, to grant a reasonable 
continuance to obtain, translate, and transmit additional 
materials. A similar provision is found in other United States 
extradition treaties.\458\

                   Article 14--Decision and Surrender

    This article provides that the Requested State promptly 
notify the Requesting State of its decision on the request for 
extradition. The delegations agreed the notification could be 
through informal channels, such as the respective Justice 
Ministries, and that formal notice in the form of a diplomatic 
note should follow. If the request is denied in whole or in 
part, the Requested State must provide explanation of the 
reasons for the denial. If extradition is granted, this article 
provides that authorities of the Contracting States shall agree 
on a time and place for the surrender of the person sought. The 
Requesting State must remove the person within such time as may 
be prescribed by the law of the Requested State or, if not 
prescribed by the law of the Requested State, within 30 days 
from the date on which the Requesting State is notified of the 
extradition decision. If surrender does not occur within this 
time period, the person may be discharged from custody, and the 
Requested State may subsequently refuse to extradite the person 
for the same offense. United States law requires that surrender 
occur within two calendar months of a finding that the person 
is extraditable,\459\ or of the conclusion of any litigation 
challenging that finding,\460\ whichever is later. The law in 
Poland does not specify a time by which a person must be 
removed.
    Paragraph 6 provides that if circumstances beyond the 
control of a Contracting State prevent it from timely 
surrendering or taking delivery of the person to be extradited, 
it shall notify the other Contracting State before the 
expiration of the time limit and the Contracting States may 
agree upon a new date for the surrender.

                  Article 15--Convictions in Absentia

    This article concerns the extradition of persons who have 
been convicted in absentia. Specifically, this article provides 
that if a Contracting State applies to the other State for 
extradition of a person convicted in absentia, the executive 
authority of the Requested State may refuse to surrender the 
person if it deems that the in absentia proceedings did not 
ensure the minimum right to defense to which the charged person 
is entitled. If, however, the Requesting State guarantees, in a 
manner deemed adequate, that the case against the person whose 
extradition is requested will be reopened with a guaranteed 
right of defense, the Requested State may grant extradition.
    For Poland, a conviction in absentia means that the person 
has been both convicted and sentenced in absentia. For the 
United States, a conviction in absentia means only that the 
person has been found guilty in absentia, but not yet 
sentenced.

              Article 16--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.
    Paragraph 1 provides for the temporary surrender of a 
person sought for prosecution in the Requesting State who is 
being proceeded against or serving a sentence in the Requested 
State. A person thus surrendered shall be returned to the 
Requested State at the conclusion of the proceedings in the 
Requesting State. Such temporary surrender furthers the 
interests of justice in that it permits trial of the person 
sought while evidence and witnesses are more likely to be 
available, thereby increasing the probability of a successful 
prosecution. Such transfer may also be advantageous to the 
person sought in that it: (1) permits resolution of the charges 
sooner; (2) may make it possible for any sentence to be served 
in the Requesting State concurrently with the sentence in the 
Requested State, subject to the laws in each state; and (3) 
permits a defense against the charges while favorable evidence 
is fresh and more likely to be available. Such provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of any punishment that has been 
imposed.\461\ The wording of the provision also allows the 
Requested State to postpone the surrender of a person facing 
prosecution or serving a sentence, even if all necessary 
extradition proceedings have been completed.

      Article 17--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered.\462\

             Article 18--Seizure and Surrender of Property

    This article permits the seizure by the Requested State of 
all items--articles, documents, and other evidence, and 
proceeds--connected with the offense for which extradition is 
requested to the extent permitted by the Requested State's 
internal law. The article also provides that these items may be 
surrendered to the Requesting State upon the granting of the 
extradition or even if extradition cannot be effected due to 
the death, disappearance or escape of the person sought.
    Paragraph 2 states that the Requested State may condition 
its surrender of items upon satisfactory assurances that the 
items will be returned to the Requested State as soon as 
practicable. Paragraph 2 also permits the surrender of items to 
be deferred if they are needed as evidence in the Requested 
State.
    Paragraph 3 makes the surrender of items expressly subject 
to due respect for the rights of third parties in such 
property.

                     Article 19--Rule of Speciality

    This article deals with the principle known as the rule of 
speciality, a standard aspect of United States extradition 
practice. Designed to ensure that a fugitive surrendered for 
one offense is not tried for other crimes, the rule of 
speciality prevents a request for extradition from being used 
as a subterfuge to obtain custody of a person for trial or 
execution of a sentence on different charges that are not 
extraditable or properly documented in the request.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, prosecuted, sentenced, or punished in the 
Requesting State for: (1) the offense for which extradition was 
granted or a differently denominated offense based on the same 
facts, provided the offense is extraditable or is a lesser 
included offense; (2) an offense committed after the 
extradition; or (3) an offense for which the executive 
authority of the Requested State consents.\463\ The contracting 
parties agreed that the lesser included offense need not be a 
felony.
    Paragraph 1(c) permits the Requested State to require the 
Requesting State seeking consent to prosecute for new charges 
to submit documents identified in Article 9 and a statement of 
the position of the person whose extradition is sought. 
Paragraph 1(c)(ii) permits the Requesting State to detain the 
person extradited for 90 days or for such longer period as the 
Requested State may authorize, while the Requested State makes 
its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state for a crime committed 
prior to this extradition under this Treaty, without the 
consent of the Requested State.
    Paragraph 3 removes the restrictions of paragraphs 1 and 2 
on the detention, prosecution, sentencing, or punishment of an 
extradited person for additional offenses or extradition to a 
third state if: (1) the extradited person leaves the Requesting 
State after extradition and voluntarily returns to it; or (2) 
the extradited person does not leave the Requesting State 
within 30 days of being free to do so.

                   Article 20--Simplified Extradition

    Persons sought for extradition often elect to waive their 
right to extradition proceedings in order to expedite their 
return to the Requesting State. This article provides that if 
(1) the extradition of a person sought is not obviously 
precluded by the laws of the Requested State and (2) the person 
sought irrevocably agrees in writing to his extradition after 
personally being advised by a judge or competent magistrate of 
his rights to formal extradition proceedings and the protection 
afforded by them that he would lose, the person may be returned 
to the Requesting State without further proceedings.
    United States practice dictates that when a fugitive waives 
extradition and voluntarily returns to the Requesting State, 
the rule of speciality does not apply. The second sentence of 
this article, therefore, states that the rule of speciality in 
article 19 will not apply to cases in which this article is 
utilized.

                          Article 21--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of a person being 
surrendered to the other Contracting State by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person being transported and a brief statement of the facts 
of the case for which the person is sought. Requests for 
transit may be made through the diplomatic channel, directly 
between the United States Department of Justice and the 
Ministry of Justice of the Republic of Poland or through the 
facilities of INTERPOL. A person may be detained in custody 
during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Contracting States and is traveling by aircraft and no landing 
is scheduled in the territory of the other. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.

                Article 22--Representation and Expenses

    Paragraph 1 provides that the Requested State shall assist, 
appear in court for, and represent the interests of, the 
Requesting State in extradition request proceedings. Thus, the 
United States will provide complete representation for Poland, 
and Poland will provide complete representation for the United 
States.
    Paragraph 2 states that the Requesting State shall bear the 
expenses of translation and transportation of the person 
sought, and that the Requested State shall pay all other 
expenses.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings. The negotiators for both Poland and 
the United States agreed that the term ``extradition 
procedures'' includes, but is not limited to, proceedings 
involving arrest, detention, examination or surrender of the 
person sought. In addition, the extradition procedures include 
any claim by the fugitive for damages, reimbursement of legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 23--Consultation

    Paragraph 1 of this article provides that the United States 
Department of Justice and the Ministry of Justice of the 
Republic of Poland may consult with each other, directly or 
through INTERPOL, regarding an individual extradition case or 
extradition procedures in general. A similar provision is found 
in other recent United States extradition treaties.\464\
    Paragraph 2 provides that, upon the request of the 
Requested State, the Requesting State shall inform the 
Requested State of the status of criminal proceedings against 
persons who have been extradited, and shall provide a copy of 
the final and binding decision if one has been issued in the 
case in question.

                        Article 24--Application

    This Treaty, like most United States extradition treaties 
negotiated in the last two decades, is expressly made 
retroactive to cover offenses that occurred before as well as 
after the Treaty enters into force. This Treaty provides 
further, however, that if an offense was committed before this 
Treaty enters into force and was not an offense under the laws 
of both Contracting States at the time of its commission, then 
the executive authority of the Requested State may use its 
discretion to grant extradition.

                   Article 25--Executive Authorities

    This article defines who the executive authority is for 
each of the Contracting States. This provision provides that 
the United States executive authority shall be the Secretary of 
State or a person designated by the Secretary of State and the 
Polish executive authority shall be the Minister of Justice/
Attorney General or a person designated by the Minister of 
Justice/Attorney General. In Poland, the Public Prosecutor's 
office is a part of the Ministry of Justice; they are not two 
separate entities. Moreover, the Polish Minister of Justice/
Attorney General is the title of one person, not two separate 
people.

             Article 26--Ratification and Entry into Force

    The first paragraph of this article contain standard treaty 
language providing for the exchange of instruments of 
ratification. Paragraph two specifies the day on which the 
Treaty will enter into force after the exchange.
    Paragraph 3 provides that the 1927 Treaty and the 
Supplementary Extradition Treaty of 1935 will cease to have any 
effect upon the entry into force of the Treaty, but extradition 
requests pending when the Treaty enters into force will 
nevertheless be processed to conclusion under the 1927 Treaty 
and the 1935 Supplementary Extradition Treaty. Nevertheless, 
Articles 2 (extraditable offenses), 3 (fiscal offenses), 5 
(political and military offenses), 16 (temporary and deferred 
surrender), 19 (rule of speciality), and 20 (simplified 
extradition) of this Treaty will be available in such 
extradition proceedings. This paragraph also provides that 
Article 19 (rule of speciality) also applies to persons found 
extraditable under the prior Treaty.

                        Article 27--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting State. Termination becomes effective six months 
after the date such notice is received.

   Technical Analysis of the Third Supplementary Extradition Treaty 
 Between the United States of America and the Kingdom of Spain signed 
                             March 1, 1996

    On March 1, 1996, the United States and Spain signed the 
Third Supplementary Extradition Treaty, modifying the terms of 
the existing 1970 Treaty on Extradition, the Supplemental 
Treaty on Extradition of 1975, and the Second Supplementary 
Extradition Treaty of 1988. (Hereinafter the 1970 Treaty, with 
the Supplemental Treaty and the Second Supplementary Treaty, is 
referred to as ``the Extradition Treaty''). The Third 
Supplementary Extradition Treaty is intended to improve the 
extradition relationship between the two countries by removing 
amnesties and the application of the statute of limitations as 
impediments to extradition and by facilitating future 
extraditions by application of a simplified procedure for 
extradition.

                               Article 1

    Article 1 establishes a new Article II Bis to be added to 
the Extradition Treaty, which removes two impediments to 
extradition: expiration of the statute of limitations in either 
of the contracting parties and an amnesty promulgated in the 
Requested Party.
    Article II Bis paragraph A provides that, all other 
requirements having been met, ``extradition shall also be 
granted even if, in accordance with the laws of the Requested 
Party, the prosecution or the penalty would have been barred by 
the statute of limitations.'' By this provision, the 
negotiators intended that the expiration of the statute of 
limitations of the Requested Party not be a basis for denial of 
extradition. New Article II Bis A further states that ``[t]he 
Requested Party shall be bound by the statement of the 
Requesting Party that the statute of limitations of the 
Requesting Party does not bar the prosecution or the execution 
of the penalty.'' This provision is intended to bind the 
contracting parties to accept, without further review or 
consideration, the statement of the Requesting Party that that 
state has made the appropriate analysis of its own statute of 
limitations and has determined that prosecution or imposition 
of the penalty are not barred by its domestic law. The 
negotiators agreed that an extradition request would not be 
made in cases where the statute of limitations had already 
expired in the potential Requesting State.
    The first sentence in paragraph A is carefully worded to 
provide that extradition shall be granted ``even if'' the 
prosecution or the penalty would have been barred by the 
statute of limitations in the Requested Party. Negotiators 
opted for this language because under Spanish law, Spanish 
judicial authorities are obligated to consider the expiration 
of the Spanish statute of limitations in the context of an 
extradition hearing. By providing that the extradition shall be 
granted ``even if'' the Spanish statute of limitations has 
expired, this Article creates an obligation to extradite 
despite the possible conclusion by a court in the Requested 
Party that if the offense had been committed in the Requested 
Party, that state's statute of limitations would have expired.
    Article II Bis paragraph B provides that, ``an amnesty 
promulgated in the Requested Party shall not constitute an 
obstacle to extradition.'' This provision is intended to ensure 
that amnesties, which are sometimes promulgated in Spain, will 
not bar the extradition of fugitives sought by the United 
States and charged with committing the offense for which the 
amnesty has been promulgated in Spain. United States 
negotiators explained that amnesties are rare under United 
States law. Therefore, it is not anticipated that this 
provision will have wide application in the United States. On 
the other hand, it will work for the benefit of the United 
States in those instances in which Spain promulgates an amnesty 
applicable to the offense for which extradition is sought.

                               Article 2

    Article 2 modifies Article V(A) of the Extradition Treaty 
by deleting the provision permitting denial of extradition as a 
result of expiration of the statute of limitations of either of 
the Contracting Parties, thereby bringing Article V(A) into 
accord with new Article II Bis.

                               Article 3

    Article 3 modifies Article X(B)(3) of the Extradition 
Treaty, which defines the legal texts that should accompany the 
extradition request, by deleting the reference to providing 
legal texts on the subject of statutes of limitations. The 
modification in Article 3 now requires that the formal 
extradition documents include ``the text of the applicable laws 
of the Requesting Party including the law defining the offense 
and the law establishing the punishment.'' As Article V(A)(3) 
of the Extradition Treaty no longer permits denial of 
extradition due to expiration of the statute of limitations, 
the legal texts on limitations are no longer relevant, and 
consequently there is no need to include such texts as part of 
the formal extradition documentation.
    To meet the requirement in Article II Bis(A) that the 
Requested Party be bound by the statement of the Requesting 
Party that the prosecution or imposition of the penalty is not 
barred under the laws of the Requesting Party, Article 3 adds a 
new paragraph 4 to Article X(B), requiring the formal 
extradition documentation to include ``[a] statement that 
neither the prosecution nor the execution of the penalty are 
barred according to the legislation of the Requesting Party.''

                               Article 4

    Article 4 creates a new Article XVI Bis, permitting the 
Requested Party to surrender an individual sought for 
extradition without the production of formal extradition 
documentation required under Article X of the Extradition 
Treaty, if the individual consents to such surrender before a 
judicial authority. The individual may also consent to a waiver 
of the Rule of Speciality applicable under Article XIII of the 
Extradition Treaty.
    Article XVI Bis creates the possibility of a simplified 
extradition, which should in future expedite and facilitate the 
extradition of individuals. Rather than creating specific 
procedures for these cases, new Article XVI Bis provides that 
such cases shall be processed in accordance with the procedures 
of the Requested Party.

                               Article 5

    Article 5 provides that the Supplementary Treaty will 
constitute an integral part of the Extradition Treaty, and 
establishes the conditions for entry into force. The 
Supplementary Treaty shall be subject to ratification, exchange 
of instruments of ratification and termination in accordance 
with the provisions of the Extradition Treaty. The 
Supplementary Treaty will enter into force 30 days after 
exchange of the instruments of ratification.

Technical Analysis of The Extradition Treaty Between The United States 
      of America and the Trinidad and Tobago signed March 4, 1996

    On March 4, 1996, the United States signed a treaty on 
extradition with the Trinidad and Tobago (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will replace the treaty now in 
force,\465\ and constitutes a major step forward in the United 
States' efforts to win the cooperation of countries in the 
region in combating organized crime, transnational terrorism, 
and international drug trafficking.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. Trinidad and Tobago 
has its own internal law\466\ that will apply to United States' 
requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
Party to extradite to the other Contracting Party persons 
charged with or convicted of an extraditable offense, subject 
to the provisions of the Treaty. The article refers to charges 
brought by authorities ``in'' the Requesting State rather than 
``of'' the Requesting State, since the obligation to extradite, 
in cases arising from the United States, would include state 
and local prosecutions as well as federal cases. The 
negotiators also agreed that the term ``convicted'' includes 
instances in which the person has been found guilty but the 
sentence has not yet been imposed.\467\ The negotiators 
intended to make it clear that the Treaty applies to persons 
adjudged guilty who flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. This Treaty, similar 
to the recent United States extradition treaties with Jamaica, 
Jordan, Italy, Ireland, Thailand, Sweden (Supplementary 
Convention) and Costa Rica, does not list the offenses for 
which extradition may be granted. Instead, paragraph 1 permits 
extradition for any offense punishable under the laws of both 
Contracting Parties by deprivation of liberty (i.e., 
imprisonment or other form of detention) for more than one 
year, or by a more severe penalty such as capital punishment 
under the laws of the United States. This paragraph permits 
extradition under the laws of Trinidad and Tobago for any 
indictable offense. Defining extraditable offenses in terms of 
``dual criminality'' rather than attempting to list each 
extraditable crime obviates the need to renegotiate the Treaty 
or supplement it if both Contracting Parties pass laws dealing 
with a new type of criminal activity, or if the list 
inadvertently fails to cover an important type of criminal 
activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Trinidad and Tobago delegation 
that major United States offenses such as operating a 
continuing criminal enterprise\468\ are extraditable under the 
Treaty, and that offenses under the Racketeer Influenced and 
Corrupt Organizations (``RICO'') statutes\469\ are extraditable 
if the predicate offense is an extraditable offense. The 
Trinidad and Tobago delegation also stated that extradition is 
possible for offenses such as drug trafficking, terrorism, 
money laundering, tax fraud or tax evasion, crimes against 
environmental law, and antitrust violations punishable by both 
Contracting Parties.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition be granted for 
attempting or conspiring to commit, aiding or abetting, 
counseling, causing, or procuring, or otherwise being an 
accessory to an extraditable offense. As conspiracy charges are 
frequently used in United States criminal cases, particularly 
those involving complex transnational criminal activity, it is 
especially important that the Treaty be clear on this point. 
Trinidad and Tobago has no general conspiracy statute similar 
to Title 18, United States Code, Section 371. Therefore, 
paragraph 2 creates an exception to the dual criminality rule 
of paragraph 1 by expressly making inchoate crimes such as 
conspiracy extraditable offenses if the object of the inchoate 
offense is an extraditable offense pursuant to paragraph 1.
    Paragraph 3 reflects the intention of the Contracting 
Parties to interpret the principles of this article broadly. 
Judges in foreign countries often are confused by the fact that 
many United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges know of no similar 
requirements in their own criminal law, they occasionally have 
denied the extradition of fugitives sought by the United States 
on federal charges on this basis. This paragraph requires that 
such elements be disregarded in applying the dual criminality 
principle. For example, it will ensure that Trinidad and Tobago 
authorities treat United States mail fraud charges\470\ in the 
same manner as fraud charges under state laws, and view the 
federal crime of interstate transportation of stolen 
property\471\ in the same manner as unlawful possession of 
stolen property. This paragraph also requires the Requested 
State to disregard differences in the categorization of the 
offense in determining whether dual criminality exists, and to 
overlook mere differences in the terminology used to define the 
offense under the laws of the Contracting Parties. A similar 
provision is contained in all recent United States extradition 
treaties. Subsection (c) of this paragraph includes language 
from the UN Model Treaty on Extradition, Article 2(2)(b) and 
reflects the intention of both Parties to take tax, customs, 
and currency reporting offenses very seriously, and to 
interpret the treaty as broadly to effect extradition for such 
offenses.
    Paragraph 4 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes the jurisdiction of our courts to 
hear criminal cases involving offenses committed outside the 
United States if the crime was intended to, or did, have 
effects in this country, or if the legislative history of the 
statute shows clear Congressional intent to assert such 
jurisdiction.\472\ In Trinidad and Tobago, however, the 
government's ability to prosecute extraterritorial offenses is 
much more limited. Paragraph 4 reflects the Trinidad and Tobago 
government's agreement to recognize United States jurisdiction 
to prosecute offenses committed outside the United States if 
Trinidad and Tobago law would permit Trinidad and Tobago to 
prosecute similar offenses committed abroad in corresponding 
circumstances. If the Requested State's laws do not so provide, 
the final sentence of the paragraph states that extradition may 
be granted, but the executive authority of the Requested State 
has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense for which all of the requirements for extradition 
are met, except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Trinidad and Tobago agrees to extradite to the United States 
a fugitive wanted for prosecution on a felony charge, the 
United States may also obtain extradition for any misdemeanor 
offenses that have been charged, as long as those misdemeanors 
are also recognized as criminal offenses in Trinidad and 
Tobago. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the Requesting State in that it permits all charges to be 
disposed of more quickly, thereby facilitating trials while 
evidence is fresh and permitting the possibility of concurrent 
sentences. Similar provisions are found in recent United States 
extradition treaties with Australia, Ireland, Italy and Costa 
Rica.
    Paragraph 6 states that extradition may not be refused in 
regards to fiscal matters on the basis that the Requested State 
does not impose the same kind of fiscal law. This language 
comes from the United Nations Model Treaty on Extradition, 
Article 2(3).
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\473\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals for 
trial and/or punishment, or are prohibited from doing so by 
their statutes or constitution. The United States does not deny 
extradition on the basis of the offender's citizenship\474\ and 
neither does Trinidad and Tobago. Accordingly, this article 
provides that extradition is not to be refused based on the 
nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 prohibits extradition for offenses of a 
political character. This is a standard provision in recent 
United States extradition treaties.
    Paragraph 2 describes three categories of offenses that 
shall not be considered political offenses.
    First, the political offense exception does not apply to 
murder or other willful crimes against the person of a Head of 
State of the Contracting Parties, or a member of the Head of 
State's family.
    Second, the political offense exception does not apply to 
offenses for which both Contracting Parties have an obligation 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for prosecution, such as the United 
Nations Convention Against Illicit Traffic in Narcotic Drugs 
and Psychotropic Substances.\475\
    Paragraph 2(c) states that the political offense exception 
does not apply to conspiring or attempting to commit, or aiding 
or abetting the commission or attempted commission of, any of 
the foregoing offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request is politically motivated.\476\ United States 
law and practice have been that the Secretary of State has the 
sole discretion to determine whether an extradition request is 
based on improper political motivation.\477\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\478\

                      Article 5--Prior Prosecution

    This article permits extradition when the person sought is 
charged by each Contracting Party with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, is similar 
to language present in many United States extradition 
treaties.\479\ This provision applies only when the person 
sought has been convicted or acquitted in the Requested State 
of exactly the same crime that is charged in the Requesting 
State. It is not enough that the same facts were involved. 
Thus, if the person sought is accused by one Contracting Party 
of illegally smuggling narcotics into that country, and is 
charged by the other Contracting Party with unlawfully 
exporting the same shipment of drugs, an acquittal or 
conviction in one Contracting Party does not insulate that 
person from extradition because different crimes are involved.
    Paragraph 2 makes it clear that neither Contracting Party 
may refuse to extradite a person sought on the basis that the 
Requested State's authorities declined to prosecute the person 
or instituted and later discontinued proceedings against the 
person. This provision was included because a decision of the 
Requested State to forego prosecution or to drop charges 
previously filed could be the result of a failure to obtain 
sufficient evidence or witnesses for trial, whereas the 
Requesting State's prosecution might not suffer from the same 
impediments. This provision should enhance the ability of the 
Contracting Parties to extradite to the jurisdiction with the 
better chance of a successful prosecution.

                        Article 6--Lapse of Time

    Article 6 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states.\480\ The U.S. and Trinidad delegations agreed that a 
claim that the statute of limitations has expired is best 
resolved by the courts of the Requesting State after the 
fugitive has been extradited.

        Article 7--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to Article 9. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided that the requirements of Article 9 
are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial in the Requesting State. Paragraph 4 describes 
the information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``the text of the relevant provision of the laws of the 
Requesting State describing the offense or where necessary a 
statement of the provisions of law describing the essential 
elements of the offense for which extradition is requested,'' 
which enables the Requested State to determine easily whether 
the request satisfies the requirement for dual criminality 
under Article 2. Some of the items listed in paragraph 2, 
however, are required strictly for informational purposes. 
Thus, paragraph 2(e) calls for ``a statement of the provisions 
of law describing any time limit on prosecution or the 
execution of the punishment for the offense,'' even though the 
Treaty does not permit denial of extradition based on lapse of 
time. The United States and Trinidad delegations agreed that 
paragraph 2(e) should require this information so that the 
Requested State is fully informed about the charges brought in 
the Requesting State.
    Paragraph 3 requires that if the fugitive has not yet been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide such evidence as would justify 
the issue of a warrant for arrest if the offense had been 
committed in the Requested State. This provision will alleviate 
one of the major practical problems with extradition from 
Trinidad. The Treaty currently in force permits extradition 
only if ``. . . the evidence be found sufficient, according to 
the laws of the High Contracting Party applied to, either to 
justify the committal of the prisoner for trial, in the case 
the crime or offense had been committed in the territory of 
such High Contracting party, or to prove that the person is the 
identical person convicted by the courts of the High 
Contracting Party who makes the requisition . . .''. Trinidad's 
courts have interpreted this clause to require that a prima 
facie case against the defendant be shown before extradition 
will be granted.\481\ By contrast, U.S. law permits extradition 
if there is probable cause to believe that an extraditable 
offense was committed and the offender committed it.\482\ 
Trinidad's agreement to extradite under the new Treaty based on 
evidence that would justify the issue of an arrest warrant 
eliminates this imbalance in the burden of proof for 
extradition, and should significantly improve the United 
States' ability to extradite from Trinidad.
    Paragraph 4 lists the information required to extradite a 
person who has been convicted of an offense in the Requesting 
State. This paragraph makes it clear that once a conviction has 
been obtained, no showing of probable cause is required. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions even absent a 
specific treaty provision.\483\ Subsection (d) states that if 
the person sought was found guilty in absentia, the 
documentation required for extradition includes both proof of 
conviction and the same documentation required in cases in 
which no conviction has been obtained. This is consistent with 
the long-standing United States policy of requiring such 
documentation in the extradition of persons convicted in 
absentia.

                 Article 8--Admissibility of Documents

    Article 8 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Trinidad and Tobago resident in the United States. 
This is intended to replace the cumbersome and complicated 
procedures for authenticating extradition documents applicable 
under the current law in Trinidad.\484\ When the request is 
from Trinidad and Tobago, the documents must be certified by 
the principal diplomatic or consular officer of the United 
States resident in Trinidad and Tobago, in accordance with 
United States extradition law.\485\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
Contracting Party may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting State.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Trinidad and Tobago. The provision also 
indicates that INTERPOL may be used to transmit such a request.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised without delay of the outcome of the request and the 
reasons for its denial, if any.
    Paragraph 4 provides that a person who has been 
provisionally arrested may be released from detention if the 
Requesting State does not submit a fully documented request for 
extradition to the executive authority of the Requested State 
within 60 days of the provisional arrest. When the United 
States is the Requested State, the executive authority includes 
the Secretary of State and the United States Embassy in Port of 
Spain.\486\
    Although the person sought may be released from custody if 
the documents are not received within the sixty day period or 
any extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. Paragraph 5 makes it clear that 
the person may be taken into custody again and the extradition 
proceedings may commence if the formal request is presented 
subsequently.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide the 
reasons for the denial. If extradition is granted, this article 
provides that that authorities of the Contracting Parties shall 
agree on a time and place for surrender of the person sought. 
The Requesting State must remove the person within the time 
prescribed by the law of the Requested State or the person may 
be discharged from custody, and the Requested State may 
subsequently refuse to extradite the person for the same 
offense. United States law requires that surrender occur within 
two calendar months of a finding that the person is 
extraditable,\487\ or of the conclusion of any litigation 
challenging that finding,\488\ whichever is later. The law in 
Trinidad and Tobago permits the person to apply to a judge for 
release if he has not been surrendered within two months of the 
first day on which he could have been extradited.\489\

              Article 11--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person and 
the full execution of any punishment imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
will be returned to the Requested State at the conclusion of 
the proceedings in the Requesting State. Such temporary 
surrender furthers the interests of justice in that it permits 
trial of the person sought while evidence and witnesses are 
more likely to be available, thereby increasing the likelihood 
of a successful prosecution. Such transfer may also be 
advantageous to the person sought in that: (1) it permits 
resolution of the charges sooner; (2) subject to the laws in 
each state, it makes it possible for any sentence to be served 
in the Requesting State concurrently with the sentence in the 
Requested State; and (3) it permits defense against the charges 
while favorable evidence is fresh and more likely to be 
available. Similar provisions are found in many recent 
extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of any punishment that has been 
imposed.\490\ The wording of the provision also allows the 
Requested State to postpone the surrender of a person facing 
prosecution or serving a sentence, even if all necessary 
extradition proceedings have been completed.

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered;\491\ for Trinidad and Tobago, the decision 
would be made by the Attorney General.\492\

             Article 13--Seizure and Surrender of Property

    This article permits the seizure by the Requested State of 
all property--articles, instruments, objects of value, 
documents or other evidence--connected with the offense for 
which extradition is requested, to the extent permitted by the 
Requested State's internal law. The article also provides that 
these objects may be surrendered to the Requesting State upon 
the granting of the extradition or even if extradition cannot 
be effected due to the death, disappearance or escape of the 
person sought.
    Paragraph 2 states that the Requested State may condition 
its surrender of property upon satisfactory assurances that the 
property will be returned to the Requested State as soon as 
practicable. Paragraph 2 also permits the surrender of property 
to be deferred if it is needed as evidence in the Requested 
State.
    Paragraphs 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties in such 
property.

                     Article 14--Rule of Speciality

    This article covers the rule of specialty, a standard 
principle of United States extradition law and practice. 
Designed to ensure that a fugitive surrendered for one offense 
is not tried for other crimes, the rule of speciality prevents 
a request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or execution of a sentence 
on different charges that are not extraditable or properly 
documented in the request.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for: 
(1) the offense for which extradition was granted or a 
differently denominated offense based on the same facts, 
provided the offense is extraditable or is a lesser included 
offense; (2) an offense committed after the extradition; or (3) 
an offense for which the executive authority of the Requested 
State consents.\493\ Paragraph 1(c)(ii) permits the Contracting 
Party that is seeking consent to pursue new charges to detain 
the person extradited for 60 days or for such longer period as 
the Requested State may authorize while the Requested State 
makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state, for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the Requested State.
    Paragraph 3 removes the restrictions of paragraphs 1 and 2 
on detention, trial or punishment of an extradited person for 
additional offenses or extradition to a third state if: (1) the 
extradited person leaves the Requesting State after extradition 
and voluntarily returns to it; or (2) the extradited person 
does not leave the Requesting State within thirty days of being 
free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a fugitive consents to surrender to the Requesting 
State, the person may be returned to the Requesting State as 
expeditiously as possible without further proceedings. The 
negotiators anticipated that in such cases, there will be no 
need for the formal documentation described in Article 7, or 
further judicial or administrative proceedings of any kind.
    If the United States is the Requested State and the person 
sought elects to return voluntarily to Trinidad and Tobago 
before the United States Secretary of State signs a surrender 
warrant, the United States would not view the process as an 
``extradition.'' Long-standing United States policy has been 
that the rule of speciality as described in Article 14 does not 
apply to such cases.\494\

                          Article 16--Transit

    Paragraph 1 gives each Contracting Party the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting Party by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person whose transit is proposed and a brief statement of 
the facts of the case with respect to which transit is sought. 
The transit request may be submitted through diplomatic 
channels or directly between the United States Department of 
Justice and the Trinidad and Tobago Attorney General. The 
negotiators agreed that diplomatic channels will be employed as 
frequently as possible for requests of this nature. A person 
may be detained in custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Contracting Parties and is traveling by aircraft and no landing 
is scheduled in the territory of the other. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.

                Article 17--Representation and Expenses

    Paragraph 1 provides that the United States represents 
Trinidad and Tobago in connection with requests from Trinidad 
and Tobago for extradition before the courts in this country, 
and the Trinidad and Tobago Attorney General arranges for the 
representation of the United States in connection with United 
States extradition requests to Trinidad and Tobago.
    Paragraph 2 requires that the Requested State bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of the person surrendered to the 
Requesting State and the translation of documents, which are to 
be paid by the Requesting State. The negotiators recognized 
that cases may arise in which the Requesting State may wish to 
retain private counsel to assist in the presentation of the 
extradition request. It is anticipated that in such cases the 
fees of private counsel retained by the Requesting State must 
be paid by the Requesting State.
    Paragraph 3 provides that neither Contracting Party shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination or surrender of the person sought. This includes 
any claim by the person sought for damages, reimbursement of 
legal fees, or other expenses occasioned by the execution of 
the extradition request.

                        Article 18--Consultation

    This article provides that the United States and Trinidad 
and Tobago Departments of Justice may consult with each other 
with regard to an individual extradition case or extradition 
procedures in general. A similar provision is found in other 
recent United States extradition treaties.\495\

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive and accordingly covers offenses that occurred 
before as well as after the Treaty enters into force.

             Article 20--Ratification and Entry Into Force

    This article provides for the entry into force of the 
treaty when the parties have notified each other through an 
exchange of diplomatic notes that the requirements for entry 
into force under their respective laws have been completed. The 
instruments of ratification are to be exchanged at Washington 
D.C.
    Paragraph 3 provides that the 1931 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting Party. Termination shall become effective six 
months after notice of termination is received.

Technical Analysis of the Extradition Treaty Between the United States 
 of America and Saint Vincent and the Grenadines Signed August 15, 1996

    On August 15, 1996, the United States signed a treaty on 
extradition with Saint Vincent and the Grenadines (hereinafter 
``the Treaty''), which is intended to replace the outdated 
treaty currently in force between the two countries\496\ with a 
modern agreement on the extradition of fugitives. The new 
extradition treaty is one of twelve treaties that the United 
States negotiated under the auspices of the Organization of 
Eastern Caribbean States to modernize our law enforcement 
relations in the Eastern Caribbean. It represents a major step 
forward in the United States' efforts to strengthen cooperation 
with countries in this region in combating organized crime, 
transnational terrorism, and international drug trafficking.
    It is anticipated that the treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Saint Vincent and the Grenadines has its own internal 
legislation on extradition,\497\ which it will apply to 
requests under the Treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\498\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Saint Vincent and the Grenadines 
delegation that extradition would be possible for such high 
priority offenses as drug trafficking (including operating a 
continuing criminal enterprise, in violation of Title 21, 
United States Code, Section 848); offenses under the 
racketeering statutes (Title 18, United States Code, Section 
1961-1968), provided that the predicate offense is an 
extraditable offense; money laundering; terrorism; tax evasion 
and tax fraud; crimes against environmental protection laws; 
and antitrust violations punishable in both states by more than 
one year of imprisonment.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, an extraditable 
offense. Conspiracy charges are frequently used in United 
States criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Saint Vincent and the 
Grenadines has no general conspiracy statute like Title 18, 
United States Code, Section 371. Therefore, paragraph 2 creates 
an exception to the ``dual criminality'' rule of paragraph 1 by 
making conspiracy an extraditable crime if the offense which 
was the object of the conspiracy is an extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Saint 
Vincent and the Grenadines authorities must treat United States 
mail fraud charges (Title 18, United States Code, Section 1341) 
in the same manner as fraud charges under state laws, and view 
the federal crime of interstate transportation of stolen 
property (Title 18, United States Code, Section 2314) in the 
same manner as unlawful possession of stolen property. This 
paragraph also requires a Requested State to disregard 
differences in the categorization of the offense in determining 
whether dual criminality exists, and to overlook mere 
differences in the terminology used to define the offense under 
the laws of each country. A similar provision is contained in 
all recent United States extradition treaties.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\499\ In 
Saint Vincent and the Grenadines, however, the Government's 
ability to prosecute extraterritorial offenses is much more 
limited. Therefore, Article 2(4) reflects Saint Vincent and the 
Grenadines's agreement to recognize United States jurisdiction 
to prosecute offenses committed outside of the United States if 
Saint Vincent and the Grenadines's law would permit it to 
prosecute similar offenses committed outside of it in 
corresponding circumstances. If the Requested State's laws do 
not so provide, the final sentence of the paragraph states that 
extradition may be granted, but the executive authority of the 
Requested State has the discretion to deny the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Saint Vincent and the Grenadines agrees to extradite to the 
United States a fugitive wanted for prosecution on a felony 
charge, the United States will also be permitted to obtain 
extradition for any misdemeanor offenses that have been 
charged, as long as those misdemeanors would also be recognized 
as criminal offenses in Saint Vincent and the Grenadines. Thus, 
the Treaty incorporates recent United States extradition 
practice by permitting extradition for misdemeanors committed 
by a fugitive when the fugitive's extradition is granted for a 
more serious extraditable offense. This practice is generally 
desirable from the standpoint of both the fugitive and the 
prosecuting country in that it permits all charges against the 
fugitive to be disposed of more quickly, thereby facilitating 
trials while evidence is still fresh and permitting the 
possibility of concurrent sentences. Similar provisions are 
found in recent extradition treaties with countries such as 
Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served. This 
Treaty, like most U.S. extradition treaties in the past two 
decades, contains no such requirement.\500\ Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\501\ and the Saint Vincent and the Grenadines' 
extradition law expressly forbids denial of extradition on the 
ground of nationality.\502\ Therefore, Article 3 of the Treaty 
provides that extradition is not to be refused based on the 
nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\503\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses which are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\504\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\505\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\506\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\507\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\508\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Most of the 
items listed in this paragraph enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``information 
as to the provisions of the law describing the essential 
elements of the offense for which extradition is requested,'' 
enabling the requested state to determine easily whether the 
request satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
law describing any time limit on the prosecution,'' even though 
Article 8 of the Treaty expressly states that extradition may 
not be denied due to lapse of time for prosecution. The United 
States and Saint Vincent and the Grenadines delegations agreed 
that Article 6(2)(c)(iii) should require this information so 
that the Requested State would be fully informed about the 
charges in the Requesting State.
    Paragraph 3 describes the additional information required 
when the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Saint Vincent and the 
Grenadines. The Treaty currently in force permits extradition 
only if ``. . . the evidence be found sufficient, according to 
the law of the Requested Party . . . to justify the committal 
for trial of the person sought if the offense of which he is 
accused had been committed in the territory of the requested 
Party . . .''\509\ Saint Vincent and the Grenadines' courts 
have interpreted this clause to require that a prima facie case 
against the defendant be shown before extradition will be 
granted.\510\ By contrast, U.S. law permits extradition if 
there is probable cause to believe that an extraditable offense 
was committed and the offender committed it.\511\ Saint Vincent 
and the Grenadines' agreement to extradite under the new Treaty 
based on a ``reasonable basis'' eliminates this imbalance in 
the burden of proof for extradition, and should dramatically 
improve the United States' ability to extradite from Saint 
Vincent and the Grenadines.
    Paragraph 4 lists the information required to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\512\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Saint Vincent and the Grenadines resident in the 
United States. This is intended to replace the cumbersome and 
complicated procedures for authenticating extradition documents 
applicable under the current treaty.\513\ When the request is 
from Saint Vincent and the Grenadines, the documents must be 
certified by the principal diplomatic or consular officer of 
the United States resident in Barbados accredited to Saint 
Vincent and the Grenadines, in accordance with United States 
extradition law.\514\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or mission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states. \515\ The United States and St. Vincent and the 
Grenadines delegations agreed that a claim that the statute of 
limitations has expired is best resolved by the courts of the 
Requesting State after the fugitive has been extradited.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the requesting 
state.\516\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Saint Vincent and the Grenadines. The 
provision also indicates that INTERPOL may be used to transmit 
such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days.\517\ When the 
United States is the Requested State, it is sufficient for 
purposes of this paragraph if the documents are received by the 
Secretary of State or the U.S. Embassy in Bridgetown, 
Barbados.\518\
    Paragraph 5 makes it clear that in such a case the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is subsequently presented.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article provides that the two States shall agree 
on a time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law permits 
the person to request release if he has not been surrendered 
within two calendar months of having been found 
extraditable,\519\ or of the conclusion of any litigation 
challenging that finding,\520\ whichever is later. The law in 
Saint Vincent and the Grenadines permits the person to apply to 
a judge for release if he has not been surrendered within sixty 
days of the day on which he could have been surrendered after 
conclusion of the litigation or thirty days after the warrant 
of surrender was issued.\521\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment which has been 
imposed.\522\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary extradition proceedings have been completed.\523\

      Article 12--Requests for Extradition Made by Several States

    This article reflects the practice of many recent United 
States extradition treaties and lists some of the factors which 
the executive authority of the Requested State must consider in 
determining to which country a person should be surrendered 
when reviewing requests from two or more States for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision;\524\ for Saint 
Vincent and the Grenadines, the decision would be made by the 
Governor-General.\525\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\526\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the Treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\527\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\528\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on detention, trial, or punishment of an extraditee for 
additional offenses, or extradition to a third State, (1) if 
the extraditee leaves and returns to the Requesting State, or 
(2) if the extraditee does not leave the Requesting State 
within ten days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.\529\
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the waiver 
of proceedings under this article as an ``extradition.'' United 
States practice has long been that the rule of speciality does 
not apply when a fugitive waives extradition and voluntarily 
returns to the Requested State.\530\

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries.\531\ Requests for transit are to 
contain a description of the person whose transit is proposed 
and a brief statement of the facts of the case with respect to 
which he is being surrendered to the Requesting State. The 
paragraph permits the request to be transmitted either through 
the diplomatic channel, or directly between the United States 
Department of Justice and the Attorney General in Saint Vincent 
and the Grenadines, or via INTERPOL channels. The negotiators 
agreed that the diplomatic channels will be employed as much as 
possible for requests of this nature. A person may be detained 
in custody during the period of transit.
    Paragraph 2 provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also permits the transit State to detain a fugitive 
until a request for transit is received and executed, so long 
as the request is received within 96 hours of the unscheduled 
landing.
    Saint Vincent and the Grenadines does not appear to have 
specific legislation on this matter, and the Saint Vincent and 
the Grenadines delegation stated that its Government would seek 
implementing legislation for this article in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Saint Vincent and the Grenadines 
in connection with a request from Saint Vincent and the 
Grenadines for extradition before the courts in this country, 
and the Saint Vincent and the Grenadines Attorney General will 
arrange for the representation of the United States in 
connection with United States extradition requests to Saint 
Vincent and the Grenadines.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of St. Vincent and the Grenadines has a 
very small staff, and might need to enlist outside counsel to 
aid in handling a complex, contested international extradition 
proceeding. It is anticipated that in such cases the fees of 
private counsel retained by the Requested State would be paid 
by the Requested State. The negotiators also recognized that 
cases might arise in which the Requesting State would wish to 
retain its own private counsel to advise it on extradition 
matters or even assist in presenting the case, if the Requested 
State agrees. In such cases the fees of private counsel 
retained by the Requesting State must be paid by the Requesting 
State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Saint Vincent and the Grenadines may consult with each other 
with regard to an individual extradition case or on extradition 
procedures in general. A similar provision is found in other 
recent U.S. extradition treaties.\532\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of St. Vincent and the Grenadines, the United States 
delegation promised to recommend training and technical 
assistance to better educate and equip prosecutors and legal 
officials in St. Vincent and the Grenadines to implement this 
treaty.
    During the negotiations, the St. Vincent and the Grenadines 
delegation expressed concern that the United States might 
invoke the Treaty much more often than St. Vincent and the 
Grenadines, resulting in an imbalance in the financial 
obligations occasioned by extradition proceedings. While no 
specific Treaty language was adopted, the United States agreed 
that consultations between the Parties under Article 18 could 
address extraordinary expenses arising from the execution of 
individual extradition requests or requests in general.

                        Article 19--Application

    This Treaty, like most other United States extradition 
treaties negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State. 
Termination shall become effective six months after notice of 
termination is received.

  Technical Analysis Of The Treaty On Extradition Between the United 
          States of America and Zimbabwe Signed July 25, 1997

    On July 25, 1997, the United States signed a treaty on 
extradition with the Republic of Zimbabwe (hereinafter ``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries, as part of a highly 
successful effort to modernize our law enforcement relations. 
The new extradition treaty will be the first treaty negotiated 
between the United States and Zimbabwe since Zimbabwe became an 
independent nation,\533\ and it is the first modern extradition 
treaty that the United States has negotiated with a sub-Saharan 
African country in over fifty years. It constitutes a major 
step forward in the United States' efforts to win the 
cooperation of countries in the region in combating organized 
crime, terrorism, and drug trafficking.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed for the United States. 
Zimbabwe has its own internal legislation on extradition,\534\ 
which will apply to United States' requests under the treaty.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
notes. The technical analysis includes a discussion of U.S. law 
and relevant practice as of the date of its preparation, which 
are, of course, subject to change. Foreign law discussions 
reflect the current state of that law, to the best of the 
drafters' knowledge.

                   Article 1--Obligation to Extradite

    The first article of the Treaty, like the first article in 
every recent United States extradition treaty, formally 
obligates each Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' the Requesting State, since the obligation to 
extradite, in cases arising from the United States, would 
include state and local prosecutions as well as federal cases. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed.\535\ The negotiators intended to make it 
clear that the Treaty applies to persons adjudged guilty who 
flee prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than one year, or by a more severe penalty such as capital 
punishment. Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list each extraditable 
crime obviates the need to renegotiate the Treaty or supplement 
it if both countries pass laws dealing with a new type of 
criminal activity, or if the list inadvertently fails to cover 
a criminal activity punishable in both countries.
    Zimbabwe does not have a written criminal code, and almost 
all crimes there are defined by common law. This creates 
difficulty in identifying and defining offenses for dual 
criminality purposes. During the negotiations, the United 
States delegation received assurances from the Zimbabwe 
delegation that most U.S. offenses would be extraditable, 
including drug trafficking, including operating a continuing 
criminal enterprise (Title 21, United States Code, Section 
848), and that offenses under the racketeering statutes (Title 
18, United States Code, Section 1961-1968) would be 
extraditable if the predicate offense would be an extraditable 
offense. Zimbabwe also stated that extradition would be 
possible for such high priority offenses as terrorism, money 
laundering, tax fraud or tax evasion, and crimes against 
environmental protection laws if punishable in both states by 
one year of imprisonment or more.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or being an 
accessory before or after the fact to any extraditable offense. 
Conspiracy charges are frequently used in United States 
criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Therefore, paragraph 2 
creates an exception to the ``dual criminality'' rule of 
paragraph 1 by making conspiracy an extraditable crime if the 
offense which was the object of the conspiracy is an 
extraditable offense.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this article broadly. Judges in 
foreign countries are often confused by the fact that many 
United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in the United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements be disregarded in 
applying the dual criminality principle. For example, Zimbabwe 
authorities must treat United States mail fraud charges (Title 
18, United States Code, Section 1341) in the same manner as 
fraud charges under state laws, and view the federal crime of 
interstate transportation of stolen property (Title 18, United 
States Code, Section 2314) in the same manner as unlawful 
possession of stolen property. This paragraph also requires a 
Requested State to disregard differences in the categorization 
of the offense in determining whether dual criminality exists, 
and to overlook mere differences in the terminology used to 
define the offense under the laws of each country. A similar 
provision is contained in all recent United States extradition 
treaties.
    Article 2(3)(c) was included in the treaty because Zimbabwe 
authorities take tax, customs, and currency reporting offenses 
very seriously, and are firmly committed to extradition for 
such crimes.\536\ The Government of Zimbabwe is particularly 
concerned about its currency control statutes. Zimbabwe has a 
small currency base, and prescribes significant criminal 
penalties for the unlawful movement of currency in and out of 
the country.\537\ U.S. law does not regulate the amount of 
money that can be taken into or out of the country, although 
there are strict requirements for reporting such transactions 
if they involve more than $10,000.\538\ Thus, there may be 
instances in which conduct that is a serious economic crime in 
Zimbabwe might not be an offense in the U.S., and extradition 
would not be possible. Article 2(3)(c) reflects the firm 
commitment of the U.S. to construe the treaty broadly and to 
effect extradition whenever possible.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our courts to 
prosecute offenses committed outside of the United States if 
the crime was intended to, or did, have effects in this 
country, or if the legislative history of the statute shows 
clear Congressional intent to assert such jurisdiction.\539\ In 
Zimbabwe, however, the Government's ability to prosecute 
extraterritorial offenses is much more limited. Therefore, 
Article 2(4) reflects Zimbabwe's agreement to recognize United 
States jurisdiction to prosecute offenses committed outside of 
the United States if Zimbabwe law would permit it to prosecute 
similar offenses committed outside of Zimbabwe in corresponding 
circumstances. If the Requested State's laws do not so provide, 
the final sentence of the paragraph states that the executive 
authority of the Requested State has the discretion to grant 
the request.
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Zimbabwe agrees to extradite to the United States a fugitive 
wanted for prosecution on a felony charge, the United States 
will also be permitted to obtain extradition for any 
misdemeanor offenses that have been charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Zimbabwe. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extraditable offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
countries such as Australia, Ireland, Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served.\540\ 
This Treaty, like most U.S. extradition treaties in the past 
two decades, contains no such requirement. Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\541\ and neither does Zimbabwe.\542\ Article 3 of 
the Treaty states that extradition is not to be refused based 
on the nationality of the person sought.

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in United 
States extradition treaties.\543\
    Paragraph 2 describes three categories of offenses which 
shall not be considered to be political offenses.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses that are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances.\544\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\545\ This is consistent 
with the long-standing law and practice of the United States, 
under which the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\546\
    The final paragraph of the article states that the 
executive authority of the Requested State may refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law.\547\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
offense for which extradition is requested, and is similar to 
language present in many United States extradition 
treaties.\548\ The parties agreed that this provision applies 
only if the offender is convicted or acquitted in the Requested 
State of exactly the same crime he is charged with in the 
Requesting State. It would not be enough that the same facts 
were involved. Thus, if an offender is accused in one State of 
illegally smuggling narcotics into the country, and is charged 
in the other State of unlawfully exporting the same shipment of 
drugs out of that State, an acquittal or conviction in one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might not 
suffer from the same impediments. Both delegations agreed that 
if the dismissal of charges takes place after the person has 
been placed in ``jeopardy'' under the laws of the Requesting 
State, the case would be governed by Paragraph 1.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is generally 
similar to corresponding articles in the United States' most 
recent extradition treaties.
    The first paragraph of the article requires that each 
formal request for extradition be submitted through the 
diplomatic channel. A formal extradition request may be 
preceded by a request for the provisional arrest of the 
fugitive pursuant to Article 9, and provisional arrest requests 
need not be initiated through diplomatic channels if the 
requirements of Article 9 are met.
    Article 6(2) outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items enable the Requested State to determine quickly whether 
extradition is appropriate under the Treaty. For example, 
Article 6(2)(c) calls for ``a statement of the provisions of 
the law describing the essential elements of the offense for 
which extradition is requested,'' enabling the requested state 
to determine easily whether the request satisfies the 
requirement for dual criminality under Article 2.
    Article 6(3) describes the additional information needed 
when the person is sought for trial in the Requesting State. 
Article 6(3)(c) requires that if the fugitive is a person who 
has not yet been convicted of the crime for which extradition 
is requested, the Requesting State must provide ``such 
information as would justify the committal for trial of the 
person if the offense had been committed in the Requested State 
or such information as would justify the committal for 
extradition of the person in accordance with the laws of the 
Requested State.''\549\ Under United States law, persons are 
committed to custody for extradition upon the same showing 
required for committal for trial: sufficient evidence to 
establish probable cause to believe that the crime for which 
extradition was requested has been committed and that the 
person sought committed it. Therefore, when Zimbabwe is the 
Requesting State, this paragraph requires the submission of 
submission of evidence to establish probable cause. However, 
Zimbabwe's delegation stated that Zimbabwe's current 
extradition law draws a distinction between the extradition of 
a Zimbabwe national and the extradition of a non-national. The 
law requires that a request for the extradition of a Zimbabwe 
national be supported by a prima facie case of guilt, but does 
not require such a showing when the request is for a non-
national.\550\ The United States delegation was assured by the 
Zimbabwe delegation that when the United States requests 
extradition of a non-Zimbabwean national, Article 6(3)(c) of 
the Treaty will be satisfied if the request is supported by 
probable cause, which can be shown by hearsay evidence. 
However, if the request is for a Zimbabwe national, the United 
States would have to make out a prima facie case of such 
evidence as would justify committal for trial in Zimbabwe. Of 
course, if Zimbabwe's law changes to permit extradition on 
probable cause for both nationals and non-nationals of 
Zimbabwe, the provision is drafted flexibly so that the United 
States would be able to take advantage of that change.
    Article 6(4) lists the information needed to extradite a 
person who has already been convicted of an offense in the 
Requesting State. This paragraph makes it clear that once a 
conviction has been obtained, no showing of probable cause is 
required. In essence, the fact of conviction speaks for itself, 
a position taken in recent United States court decisions, even 
absent a specific treaty provision.\551\

                 Article 7--Admissibility of Documents

    This article states that evidence in support of an 
extradition request shall be authenticated in one of three 
methods.
    Subparagraph (a) of this Article states that United States 
extradition requests to Zimbabwe shall be authenticated by a 
judge, magistrate, or other competent official in the United 
States and stamped with the official seal of an authority 
comparable to the Minister of Justice or other competent 
authority. The delegations agreed that these provisions, 
inspired by Section 32 of Zimbabwe Extradition Act 1982, would 
be satisfied if the documents are authenticated by the 
``competent officials'' in the Department of Justice's Office 
of International Affairs, and bear the official seal of the 
Department of Justice. The negotiators also agreed that 
affidavits from witnesses in support of a United States 
extradition request would be admissible if the oath were 
administered by a notary public in the United States.
    Subparagraph (b) describes the procedure for authenticating 
Zimbabwe requests to the United States. When the request is 
from Zimbabwe, the documents must be certified by the principal 
diplomatic or consular officer of the United States resident in 
Zimbabwe, in accordance with United States extradition 
law.\552\
    The third subparagraph of the article permits documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing simply because of an 
inadvertent error or omission in the authentication process.

                         Article 8--Translation

    We understand that there are three languages commonly used 
in the Republic of Zimbabwe: English, Shona, and Ndebele. 
Article 8 of the Treaty requires that all extradition documents 
be translated into English.

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while the formal 
extradition papers are being prepared by the Requesting 
State.\553\
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
Ministry of Home Affairs in Zimbabwe. The provision also 
indicates that INTERPOL may be used to transmit such a request.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the fugitive may be released from 
detention if the Requesting State does not file a fully 
documented request for extradition with the executive authority 
of the Requested State within sixty days of the date on which 
the person was arrested under to the Treaty. When the United 
States is the Requested State, the ``executive authority'' 
would include the Secretary of State or the U.S. Embassy in 
Harare, Zimbabwe.\554\
    Although the person sought may be released from custody if 
the documents are not received within the sixty-day period or 
any extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. Article 9(5) makes it clear 
that the person may be taken into custody again and the 
extradition proceedings may commence if the formal request is 
presented subsequently.
    One difficulty discussed by the negotiators is that under 
Zimbabwe law, the person provisionally arrested for extradition 
may seek release from custody after 28 days.\555\ The 
delegations agreed that 28 days was too short a period for 
provisional arrest given factors such as the distance between 
the two countries, and that a 60-day period is appropriate and 
reasonable. In order to reconcile the terms of the treaty with 
the current provisions of Zimbabwe law, the delegations reached 
the understanding that when the United States is the requesting 
State, the Government of Zimbabwe will request that its court 
order the person arrested to remain in custody for the full 60 
days, but it is recognized that in unusual cases the courts may 
consider setting bail for the person arrested after 28 days 
have passed and the documents have not been received. If the 
court is inclined to take this step, the Ministry of Justice 
will urge the court to set a high enough bail that the fugitive 
will remain in custody or at least be unlikely to flee the 
jurisdiction. It is also understood that if the United States 
believes that this presents an unacceptable risk of the 
fugitive's flight, the United States is free to withdraw its 
first provisional arrest request and submit a new one, and the 
28 day time period will commence again. Where Zimbabwe is the 
requesting State, the fugitive should be held in custody for 60 
days pending receipt of the documents, and there is no special 
understanding regarding release on bail.

                   Article 10--Decision and Surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide an 
explanation of the reasons for the denial. If extradition is 
granted, the article requires that the two States agree on a 
time and place for surrender of the person. The Requesting 
State must remove the fugitive within the time prescribed by 
the law of the Requested State, or the person may be discharged 
from custody, and the Requested State may subsequently refuse 
to extradite for the same offense. United States law permits a 
person to request release if he has not been surrendered within 
two calendar months of having been found extraditable,\556\ or 
of the conclusion of all litigation challenging that 
finding,\557\ whichever comes later. In Zimbabwe, that period 
is decided by the Minister of Home Affairs, in his 
discretion.\558\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence already on other 
charges in the Requested State. Article 11 provides a means for 
the Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment that may have been 
imposed.
    Article 11(1) provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to this 
provision will be returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. Such 
temporary surrender furthers the interests of justice in that 
it permits trial of the person sought while evidence and 
witnesses are more likely to be available, thereby increasing 
the likelihood of successful prosecution. Such transfer may 
also be advantageous to the person sought in that: (1) it 
allows him to resolve the charges sooner; (2) subject to the 
laws in each state, it may make it possible for him to serve 
any sentence in the Requesting State concurrently with the 
sentence in the Requested State; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar provisions are 
found in many recent extradition treaties.
    Article 11(2) provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment that has been 
imposed.\559\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence even if all necessary 
extradition proceedings have been completed.\560\

    Article 12--Requests for Extradition Made by More Than One State

    This article reflects the practice of many recent United 
States extradition treaties and lists factors which the 
Requested State must consider in determining to which country a 
person should be surrendered when reviewing requests from two 
or more States for the extradition of the same person. For the 
United States, the Secretary of State would make this 
decision;\561\ for Zimbabwe, the decision would be made by the 
Minister of Home Affairs.\562\

             Article 13--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.\563\ The article also provides that these objects 
shall be surrendered to the Requesting State upon the granting 
of the extradition, or even if extradition cannot be effected 
due to the death, disappearance, or escape of the fugitive.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
rights of third parties are protected and that the property is 
returned as soon as practicable. The paragraph also permits the 
Requested State to defer surrender altogether if the property 
is needed as evidence in the Requested State. During the 
negotiations the delegation of Zimbabwe noted that the transfer 
of property under this Article would be subject to the 
Requested State's laws and regulations on asset forfeiture and 
currency control.
    Paragraph 3 makes the obligation to surrender property 
under this provision expressly subject to due respect for the 
rights of third parties to such property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality prevents a request for extradition from 
being used as a subterfuge to obtain custody of a person for 
trial or service of sentence on different charges which may not 
be extraditable under the treaty or properly documented at the 
time that the request is granted.
    This article codifies the current formulation of the rule 
by providing that a person extradited under the Treaty may only 
be detained, tried, or punished in the Requesting State for (1) 
the offense for which extradition was granted, or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) 
for offenses committed after the extradition; and (3) for other 
offenses for which the executive authority of the Requested 
State consents.\564\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days or more while the Requested State makes 
its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained.\565\
    Finally, Paragraph 3 removes the restrictions of paragraphs 
1 and 2 on the detention, trial, or punishment of an extraditee 
for additional offenses, or extradition a third State, (1) if 
the extraditee leaves and returns voluntarily to the Requesting 
State, or (2) if the extraditee does not leave the Requesting 
State within fifteen days of being free to do so.

                   Article 15--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State the person 
may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested State. The 
negotiators agreed that the rule of speciality in Article 14 
will not apply in such cases.

                          Article 16--Transit

    Article 16(1) gives each State the power to authorize 
transit through its territory of persons being surrendered to 
the other country by third countries.\566\ Requests for transit 
are to contain a description of the person whose transit is 
proposed and a brief statement of the facts of the case with 
respect to which he is being surrendered to the Requesting 
State. The paragraph permits the request to be transmitted 
either through the diplomatic channel, or directly between the 
United States Department of Justice and the Ministry of Home 
Affairs in Zimbabwe, or via INTERPOL channels. The negotiators 
agreed that the diplomatic channels will be employed as much as 
possible for requests of this nature. A person may be detained 
in custody during the period of transit.
    Article 16(2) provides that no advance authorization is 
needed if the person in custody is in transit to one of the 
Parties and is traveling by aircraft and no landing is 
scheduled in the territory of the other Party. Should an 
unscheduled landing occur, a request for transit may be 
required at that time, and the Requested State may grant such a 
request. It also provides for the transit State to detain a 
fugitive until a request for transit is received and executed, 
so long as the request is received within 96 hours of the 
unscheduled landing.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Zimbabwe in connection with a 
request from Zimbabwe for extradition before the courts in this 
country, and that Zimbabwe will arrange for the representation 
of the United States in connection with United States 
extradition requests to Zimbabwe.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State.\567\ The negotiators recognized that 
cases may arise in which it may be necessary for the Requesting 
State to retain private counsel to assist in the presentation 
of the extradition request. It is anticipated that in such 
cases the fees of private counsel retained by the Requesting 
State must be paid by the Requesting State.
    Paragraph 3 provides that neither State shall make a 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination, or surrender of the fugitive. This includes any 
claim by the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.

                        Article 18--Consultation

    Article 18 of the treaty provides that the United States 
Department of Justice and the Zimbabwe Ministry of Home Affairs 
may consult with each other, directly or through INTERPOL, with 
regard to an individual extradition case or on extradition 
procedures in general. Similar provision is found in other 
recent U.S. extradition treaties.\568\

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive to cover offenses that occurred before the Treaty 
entered into force, provided that they were offenses under the 
laws of both States at the time that they were committed.

             Article 20--Ratification and Entry Into Force

    Article 20 contains standard treaty language providing for 
the exchange of instruments of ratification and that the Treaty 
will enter into force immediately upon the exchange.

                        Article 21--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty by either State 
upon six months' notice.

               VIII. Texts of Resolutions of Ratification

Treaty with Luxembourg:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of the Grand 
Duchy of Luxembourg, signed at Washington on October 1, 1996 
(Treaty Doc. 105-10), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 17 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Luxembourg by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with France:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty between the United 
States of America and France, which includes an Agreed Minute, 
signed at Paris on April 23, 1996 (Treaty Doc. 105-13), subject 
to the understanding of subsection (a), the declaration of 
subsection (b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Articles 19 and 20 concerning 
        the Rule of Specialty would preclude the resurrender of 
        any person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to France by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Poland:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the United 
States of America and the Republic of Poland, signed at 
Washington on July 10, 1996 (Treaty Doc. 105-14), subject to 
the understanding of subsection (a), the declaration of 
subsection (b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 19 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Poland by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Protocol with Spain:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Third Supplementary Extradition Treaty 
Between the United States of America and the Kingdom of Spain, 
signed at Madrid on March 12, 1996 (Treaty Doc. 105-15), 
subject to the declaration of subsection (a), and the proviso 
of subsection (b).
    (a) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (b) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Cyprus:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of the 
Republic of Cyprus, signed at Washington on June 17, 1996 
(Treaty Doc. 105-16), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 16 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Cyprus by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Argentina:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the United 
States of America and the Argentine Republic, signed at Buenos 
Aires on June 10, 1997 (Treaty Doc. 105-18), subject to the 
understanding of subsection (a), the declaration of subsection 
(b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 16 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Argentina by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Antigua and Barbuda:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Antigua 
and Barbuda, signed at St. John's on June 3, 1996 (Treaty Doc. 
105-19), subject to the understanding of subsection (a), the 
declaration of subsection (b), and the proviso of subsection 
(c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Antigua and 
        Barbuda by the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the treaty establishing that Court has 
        entered into force for the United States by and with 
        the advice and consent of the Senate, as required by 
        Article II, section 2 of the United States 
        Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Dominica:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Dominica, 
signed at Roseau on October 10, 1996 (Treaty Doc. 105-19), 
subject to the understanding of subsection (a), the declaration 
of subsection (b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Dominica by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Grenada:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Grenada, 
signed at St. George's on May 30, 1996 (Treaty Doc. 105-19), 
subject to the understanding of subsection (a), the declaration 
of subsection (b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited Grenada by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Saint Lucia:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Saint 
Lucia, signed at Castries on April 18, 1996 (Treaty Doc. 105-
19), subject to the understanding of subsection (a), the 
declaration of subsection (b), and the proviso of subsection 
(c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Saint Lucia by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Saint Kitts and Nevis:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Saint 
Kitts and Nevis, signed at Basseterre on September 18, 1996 
(Treaty Doc. 105-19), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Saint Kitts 
        and Nevis by the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the treaty establishing that Court has 
        entered into force for the United States by and with 
        the advice and consent of the Senate, as required by 
        Article II, section 2 of the United States 
        Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Saint Vincent and the Grenadines:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Saint 
Vincent and the Grenadines, signed at Kingstown on August 15, 
1996 (Treaty Doc. 105-19), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Saint Vincent 
        by the United States to the International Criminal 
        Court agreed to in Rome, Italy, on July 17, 1998, 
        unless the treaty establishing that Court has entered 
        into force for the United States by and with the advice 
        and consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Barbados:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Barbados, 
signed at Bridgetown on February 28, 1996 (Treaty Doc. 105-20), 
subject to the understanding of subsection (a), the declaration 
of subsection (b), and the proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Barbados by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Trinidad and Tobago:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of Trinidad 
and Tobago, signed at Port of Spain on March 4, 1996 (Treaty 
Doc. 105-21), subject to the understanding of subsection (a), 
the declaration of subsection (b), and the proviso of 
subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Trinidad and 
        Tobago by the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the treaty establishing that Court has 
        entered into force for the United States by and with 
        the advice and consent of the Senate, as required by 
        Article II, section 2 of the United States 
        Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with India:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of the 
Republic of India, signed at Washington on June 25, 1997 
(Treaty Doc. 105-30), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 17 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to India by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Zimbabwe:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of the 
Republic of Zimbabwe, signed at Harare on July 25, 1997 (Treaty 
Doc. 105-33), subject to the understanding of subsection (a), 
the declaration of subsection (b), and the proviso of 
subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Zimbabwe by 
        the United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATIONS.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Protocol with Mexico:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Protocol to the Extradition Treaty Between 
the United States of America and the United Mexican States of 
May 4, 1978, signed at Washington on November 13, 1997 (Treaty 
Doc. 105-46), subject to the declaration of subsection (a), and 
the proviso of subsection (b).
    (a) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (b) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.

Treaty with Austria:

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the Government 
of the United States of America and the Government of the 
Republic of Austria, signed at Washington on January 8, 1998 
(Treaty Doc. 105-50), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification:
      PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL 
        COURT.--The United States understands that the 
        protections contained in Article 19 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person from the United States to the International 
        Criminal Court agreed to in Rome, Italy, on July 17, 
        1998, unless the United States consents to such 
        resurrender; and the United States shall not consent to 
        the transfer of any person extradited to Austria by the 
        United States to the International Criminal Court 
        agreed to in Rome, Italy, on July 17, 1998, unless the 
        treaty establishing that Court has entered into force 
        for the United States by and with the advice and 
        consent of the Senate, as required by Article II, 
        section 2 of the United States Constitution.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:
      SUPREMACY OF THE CONSTITUTION.--Nothing in the Treaty 
        requires or authorizes legislation or other action by 
        the United States of America that is prohibited by the 
        Constitution of the United States as interpreted by the 
        United States.
                                 NOTES

    \1\ Extradition between the U.S. and Antigua and Barbuda is 
currently governed by the U.S.-U.K. Extradition Treaty (hereinafter 
``the 1972 Treaty''), signed June 8, 1972, entered into force January 
21, 1977 (28 UST 227, TIAS 8468), which continued in force after 
Antigua and Barbuda became an independent nation November 1, 1981.
    \2\ Antigua and Barbuda Extradition Act, 1993, of 17th June 1993 
(hereinafter ``Extradition Act 1993''). The key sections of the 
Extradition Act which are germane to the interpretation and 
implementation of the Treaty are discussed in more detail in this 
Technical Analysis. The Antiguan delegation stated that in Antigua and 
Barbuda, treaties do not take priority over statutes. Antigua and 
Barbuda's delegation assured the United States delegation, however, 
that the terms of this Treaty would be given full effect, since, under 
Section 6(1), Extradition Act 1993, Antigua's Minister of Justice may 
embody the terms of this Treaty in an Order published in the Gazette 
and direct that Antigua and Barbuda's extradition law apply ``as 
between Antigua and Barbuda and [the United States] subject to the 
limitations, restrictions, exceptions and qualifications, if any, 
contained in the Order.''
    \3\ See Stanbrook and Stanbrook, Extradition: The Law and Practice, 
25-26 (1979).
    \4\ Restatement (Third) of the Foreign Relations Law of the United 
States Sec.  402 (1987); Blakesley, United States Jurisdiction over 
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109 
(1982).
    \5\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \6\ See generally Shearer, Extradition in International Law 110-114 
(1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \7\ Section 8(1), Extradition Act 1993, provides that extradition 
shall be denied if the crime is an offense ``of a political 
character.'' The Antigua and Barbuda delegation assured the United 
States that this is identical to the political offense defense. Similar 
provisions appear in all recent U.S. extradition treaties.
    \8\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \9\ There are similar provisions in many U.S. extradition treaties. 
See Article III(3), US-Jamaica Extradition Treaty, signed at Kingston 
June 14, 1983, entered into force July 7, 1991; Article 5(4), US-Spain 
Extradition Treaty, signed at Madrid May 29, 1970, entered into force 
June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 4, US-
Netherlands Extradition Treaty, signed at The Hague June 24, 1980, 
entered into force September 15, 1983 (TIAS 10733); and Article IV(c), 
US-Ireland Extradition Treaty, signed at Washington July 13, 1983, 
entered into force Dec. 15, 1984 (TIAS 10813).
    \10\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \11\ An example of such a crime is desertion. Matter of Extradition 
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988).
    \12\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \13\ Extradition Act 1993, Section 11(7).
    \14\ See Extradition Act 1980, Section 17(1).
    \15\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \16\  See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \17\ See Article VII(5) of the 1972 Treaty.
    \18\ This provision is consistent with requirements imposed by U.S. 
law. See Title 18, United States Code, Section 3190.
    \19\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \20\ Similar provisions appear in all recent U.S. extradition 
treaties. The topic of provisional arrest is dealt with in the 
Extradition Act 1993, Section 10(3).
    \21\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \22\ Title 18, United States Code, Section 3188.
    \23\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \24\ Extradition Act 1993, Section 18.
    \25\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \26\ Cheng Na-Yuet v. Hueston, 734 F. Supp 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \27\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \28\ In the United States, the Secretary of State has the authority 
to grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195, 1199 
(D.D.C. 1979).
    \29\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \30\ See Extradition Act 1993, Section 16
    \31\ A similar provision is in all recent U.S. extradition 
treaties.
    \32\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 17; 
Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels April 
27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997 ; Article 18, U.S.-Philippines 
Extradition Treaty, signed at Manila Nov. 13, 1994, entered into force 
November 22, 1996; Article 21, U.S.-Hungary Extradition Treaty, signed 
at Budapest Dec. 1, 1994, entered into force March 18, 1997.
    \33\ Signed January 21, 1972, entered into force September 15, 1972 
(23 UST 3501; TIAS 7510).
    \34\ Although this provision is intended to enable extradition from 
the United States to Argentina of a person who is the subject of an 
Argentine warrant of arrest and whose appearance in Argentina is sought 
as a necessary step for subjecting such person to criminal prosecution, 
it is not intended to enable extradition of a person whose appearance 
has been ordered for the sole purpose of giving testimony.
    \35\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \36\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, Ireland, Jamaica, Jordan, the Philippines, and Thailand.
    \37\ Like the U.S. concept of conspiracy, the crime of illicit 
association involves the confederation of persons for a criminal 
purpose; however, while a conspiracy under U.S. law may involve as few 
as two persons, Argentine law requires at least three persons to form 
an illicit association.
    \38\ See, e.g., United States extradition treaties with the 
Bahamas, Bolivia, Ireland, Jamaica, Jordan, and Thailand. See also 
Collins v. Loisel, 259 U.S. 309 (1922) (``the law does not require that 
the name by which the crime is described in the two countries shall be 
the same; nor that the scope of liability shall be coextensive, or, in 
other respects, the same in the two countries. It is enough if the 
particular act charged is criminal in both jurisdictions.'')
    \39\ Restatement (Third) of the Foreign Relations Law of the United 
States Sec.  402 (1987); Blakesley, United States Jurisdiction Over 
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109 
(1982). Like U.S. law, Argentine law recognizes the effects principle 
of jurisdiction. See Article 1, Argentine Penal Code.
    \40\ A similar provision is contained in other recent U.S. treaties 
(e.g., extradition treaties with Bolivia and Jordan).
    \41\ The Argentine delegation insisted that the term ``territory'' 
be defined with respect to the Requesting State, for they wished to 
ensure that ``the Requesting State's territory'', for the purposes of 
this Article, would encompass the territorial airspace and territorial 
waters of that State. Such a provision exists in the 1972 treaty. In 
the new Treaty, the formula agreed upon--``all places subject to [the 
Requesting] State's criminal jurisdiction''--was deemed by the 
negotiators to capture the intended meaning in a less wordy and 
cumbersome fashion than the equivalent provision in the 1972 treaty.
    \42\ See, e.g., U.S. extradition treaties with Bolivia and Jordan.
    \43\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and nationals of other countries in extradition matters has been 
underscored by Congress in legislation. Title 18, United States Code, 
Section 3196 authorizes the Secretary of State to extradite United 
States citizens pursuant to a treaty which permits but does not 
expressly require surrender of citizens, as long as the other 
requirements of the treaty have been met.
    \44\ This Article states that ``the extradition and surrender'' of 
the person sought shall not be refused on the basis of nationality. As 
noted above, under the 1972 treaty, Argentine courts have granted 
``extradition'' of Argentine citizens, but, in the absence of an 
affirmative obligation to surrender them, has proceeded to allow the 
person to request trial in Argentina. The phrase ``extradition and 
surrender'' is designed to ensure that the Requested State actually 
turns over custody of its citizens to the Requesting State when 
extradition has been granted.
    \45\ Provisions barring extradition for political offenses are 
included in every U.S. extradition treaty. The provision in this 
article is typical in that it does not attempt to define what 
constitutes a political offense (although paragraph 2 of this article 
sets forth certain offenses that are not political offenses). As a 
result, the requested country must determine, based solely on its 
domestic law, whether a given extradition request should be denied on 
this basis. Because the Treaty does not provide otherwise, the 
judiciary decides whether the political offense exception will bar 
extradition in a particular case. Eain v. Wilkes, 641 F.2d 504, 513 
(7th Cir. 1981).
    \46\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, Mexico, and the Philippines.
    \47\ Done at New York, December 14, 1973; entered into force 
February 20, 1977 (28 UST 1975; TIAS 8532; 1035 UNTS 167).
    \48\ Done at New York December 17, 1979; entered into force June 3, 
1983 (TIAS 11081).
    \49\ Done at the Hague December 16, 1970; entered into force 
October 14, 1971 (22 UST 1641; TIAS 7192).
    \50\Examples of such offenses are desertion and disobedience of 
orders. See Matter of Suarez-Mason, 694 F. Supp. 676, 703 (N.D.Cal. 
1988).
    \51\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, Ireland, Italy, Jamaica, the Netherlands, the Philippines, and 
Thailand.
    \52\ The express use of the phrase ``convicted or acquitted'' in 
this paragraph prevents the Requested State from refusing extradition 
on the basis that it has unilaterally immunized the fugitive from 
prosecution by pardon or granting of clemency. Moreover, nothing in 
this provision enables the Requested State to bar extradition on the 
grounds that the person sought has been convicted or acquitted in a 
third State.
    \53\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, Jordan, and the Philippines.
    \54\ The term ``offense'' in this provision means the crime, not 
``the act'' for which extradition is requested. A single set of facts 
may result in several different offenses being charged in different 
jurisdictions, and prosecution for one such offense should not bar 
extradition for another. future reinstitution. \55\ This provision 
should enhance the ability to extradite criminals to the jurisdiction 
which has the better chance of a successful prosecution.
    \55\ This provision is intended to make clear that extradition 
shall not be precluded by the mere fact that the fugitive is being 
proceeded against in the Requested State. If the Requested State is 
prosecuting the fugitive for the same offense for which extradition is 
requested, the Requested State should, pursuant to Article 13 of this 
Treaty, defer its decision on extradition until the proceedings are 
over. Then, the Requested State can decide whether to deny extradition 
because of conviction or acquittal, or grant extradition if the charges 
were resolved in a manner that does not implicate double jeopardy (such 
as dismissal without prejudice). Otherwise, a Requested State could 
charge the fugitive with the same offense that is the subject of the 
extradition request, then deny the extradition request due to a pending 
prosecution in the Requested State, and finally dismiss its domestic 
case--allowing the fugitive to escape prosecution altogether.
    \56\ See, e.g., recent United States extradition treaties with The 
Bahamas, Bolivia, Germany, Ireland, Italy, Jamaica, Jordan, and 
Thailand.
    \57\ See, e.g., extradition treaties with The Bahamas, Bolivia, 
Jamaica, Jordan, and Thailand.
    \58\ As noted in the analysis of Article 1 above, under Argentine 
criminal procedure, a formal indictment may not be filed in Argentina 
until the fugitive is brought before an Argentine court. In recognition 
of those instances in which Argentina might seek the extradition of a 
person for whom an indictment has not yet been filed, the negotiating 
delegations agreed to include the phrase, ``if any.''
    \59\ Courts considering foreign extradition requests in accordance 
with Title 18, United States Code, Section 3184, have long required 
probable cause for international extradition. Ex Parte Bryant, 167 U.S. 
104, 105 (1897); Restatement (Third) of the Foreign Relations Law of 
the United States Sec.  476, comment b (1987).
    \60\ Many other U.S. extradition treaties include language 
requiring information that would justify the ``committal for trial'' of 
the person sought, rather than his or her ``detention''. Under U.S. 
jurisprudence, the terms ``committal for trial'' and ``detention'' are 
interchangeable in this context, in as much as they both require a 
finding of probable cause. The Argentine delegation advised, however, 
that their courts could interpret the term ``committal for trial'' to 
require a much higher standard of proof, i.e., a prima facie showing of 
guilt. Accordingly, the delegations agreed to include ``detention'' 
rather that ``committal for trial'' to ensure that the courts of both 
the United States and Argentina will apply a similar standard of proof 
in extradition cases.
    \61\ Under U.S. practice, a judgment of conviction is not 
ordinarily entered until after a person is sentenced. Accordingly, in 
cases where a person has been found guilty but not yet sentenced, this 
provision allows the requesting state to provide, in lieu of the 
judgment of conviction, a statement from a judicial authority that the 
person has been found guilty.
    \62\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D.Vt. 1979).
    \63\ This provision is consistent with requirements imposed by 
United States law. For the United States the ``appropriate'' diplomatic 
or consular officer would be the ``principal'' diplomatic or consular 
officer of the U.S. Embassy in Argentina. See Title 18, United States 
Code, Section 3190. Since Argentine law does not require that the 
diplomatic or consular officer be the ``principal'' one, the term 
``appropriate'' was included. This will render less onerous for U.S. 
officials the task of preparing extradition requests to Argentina.
    \64\ Current United States law provides that such surrender should 
occur within two calendar months from the finding that the offender is 
extraditable, or from the conclusion of any litigation challenging that 
finding, whichever is later. See Title 18, United States Code, Section 
3188. See also Jimenez v. United States District Court, 84 S.Ct. 14 
(1963) (decided by Goldberg, J., in chambers); Liberto v. Emery, 724 
F.2d 23 (2d Cir. 1983); and In Re United States, 713 F.2d 105 (5th Cir. 
1983); and Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    Argentine law requires that the Requesting State take custody of 
the person sought within 30 calendar days of the formal notification by 
the Argentine Government to the Requesting State that the person is 
available for transfer of custody. See Art. 30, Law No. 24,767 
(Criminal Procedure Code) (1997). The 30-day period may be extended for 
an additional 10 days upon request by the Requesting State. See id.
    \65\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, and the Philippines.
    \66\ Under United States law and practice, the Secretary of State 
would make the decision to temporarily surrender the fugitive or to 
defer the surrender. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \67\ This provision was included at the request of Argentina, whose 
negotiating delegation wished to ensure that the postponement of the 
surrender of Argentine fugitives by the United States would not 
jeopardize Argentina's ability to prosecute those fugitives upon their 
eventual surrender to Argentina. Under United States law, in contrast, 
the statute of limitations is suspended upon the filing of an 
indictment or other charging document. See, e.g., Title 18, United 
States Code, section 3282. Because, in any case in which the United 
States requests extradition of a fugitive from Argentina, the fugitive 
will have already been charged and the statute of limitations 
suspended, this provision will not have any legal effect for the United 
States above and beyond that which is already provided by U.S. law.
    \68\ Under U.S. law, the appropriate authority within the executive 
branch is the Secretary of State. Cheng Na-Yuet v. Hueston, 734 F. 
Supp. 988 (S.D.Fla. 1990), aff'd, 932 F.2d 977 (11th Cir. 1991).
    \69\ Allowing the Requesting State to proceed on a ``differently 
denominated or less serious offense'' provides both the prosecution and 
defense with a measure of post-extradition flexibility to resolve the 
charges. For example, it allows the defendant to plead to or be 
convicted at trial of a lesser included offense, or it allows the 
prosecution to supersede the original charges with different charges 
that, because of a change in circumstances, may be more readily 
provable, so long as they are based on the same facts as the offenses 
for which extradition was granted. Proceeding on differently 
denominated or lesser included offenses does not offend the purpose of 
the rule of speciality, since the Requested State will have already 
considered the facts upon which both the original and the new charges 
are based and determined that the acts constituting the offenses are 
extraditable.
    \70\ From its inception, the rule of speciality has applied only to 
those illegal acts committed prior to extradition. It does not provide 
the defendant with any immunity for offenses committed after his or her 
surrender to the Requesting State.
    \71\ The consent exception to the rule of specialty recognizes 
that, as a Party to the Treaty, the Requested State has a right to 
waive certain of its benefits or privileges under the Treaty. In the 
United States, the Secretary of State has the authority to consent. See 
Berenguer v. Vance, 473 F.Supp. 1195, 1199 (D.D.C. 1979).
    \72\ This provision prohibiting re-extradition is intended to 
prevent the State to which a person is extradited from subsequently 
extraditing the person to a third state to which the Requested State 
would not have agreed to extradite. This provision thus enables the 
Requested State to retain a measure of control over the ultimate 
destination of the person surrendered. A similar provision is contained 
in all recent U.S. extradition treaties.
    \73\ The policy behind paragraph 3 is that an extraditee should not 
be allowed to benefit from the rule of speciality indefinitely and 
remain in or return to the Requesting State with impunity. Under this 
paragraph, if the extraditee chooses to return to or remain in the 
Requesting State, he or she effectively relinquishes the benefits of 
the rule. Generally, the United States prefers that the time period 
afforded to the fugitive to leave the Requesting State be as short as 
practicable in order to avoid law enforcement and public frustration 
over having such a person at large in the community.
    \74\ Waiver of extradition benefits the fugitive in that it allows 
him to return forthwith to resolve the charges against him in the 
Requesting State and to spend as little time as possible in custody in 
the Requested State. It also saves the judicial and law enforcement 
authorities of the Requested State the significant expense associated 
with a prolonged extradition process.
    \75\ A similar provision is in all recent U.S. extradition 
treaties.
    \76\ The Parties' representation of each other in extradition 
proceedings ensures that the Parties abide by their obligation under 
the Treaty to secure the return of every extraditable criminal to the 
Requesting State. By participating in the extradition proceedings, the 
Parties also have the opportunity to shape extradition law and practice 
in a way that is beneficial to both themselves and their treaty 
partners. In accordance with established practice, the Department of 
Justice will represent Argentina in extradition proceedings in the 
United States. Likewise, Argentine federal prosecutors will represent 
the United States in such proceedings in Argentina. In fact, the United 
States and Argentina already provide representation to each other in 
extradition cases under the 1972 Treaty, and, with this provision, the 
Parties intend to continue the current practice.
    \77\ This is a standard provision in all modern U.S. extradition 
treaties.
    \78\ See, e.g., U.S. extradition treaties with Bolivia, Jordan, and 
the Philippines.
    \79\ See, e.g., U.S. extradition treaties with The Bahamas, 
Bolivia, Ireland, Italy, Jamaica, and Thailand.
    \80\ U.S. Const., art. I, Sec.  9, cl. 3.
    \81\ See In re De Giacomo, 7 F.Cas. 366 (C.C.N.Y. 1874); See also 4 
Moore, A Digest of International Law 268 (1906).
    \82\ The 1972 treaty does not contain an express provision 
authorizing the waiver of extradition, and the application of Article 
17 of this Treaty to pending proceedings under the 1972 treaty will 
allow fugitives to utilize Article 17 to facilitate their return to the 
Requesting State.
    \83\ The application of Article 16 of this Treaty to persons 
extradited under the prior treaty will allow the parties to take 
advantage of improved provisions in Article 16, such as the ability to 
detain a person while a request for consent is being considered.
    \84\ Extradition between the U.S. and Austria is governed by the 
Convention for the Extradition of Fugitives from Justice, with exchange 
of notes concerning the Death Penalty (hereinafter the ``1930 
Convention''), signed at Vienna January 31, 1930 (46 Stat. 2779; TS 
822; 5 Bevans 358) (entered into force Sept. 11, 1930), and the 
Supplementary Convention on Extradition signed at Vienna May 19, 1934, 
(49 Stat. 2710; TS 873; 5 Bevans 378) (entered into force Sept. 5, 
1934).
    \85\ ``Federal Law of December 4, 1979, Regarding Extradition and 
Judicial Assistance in Criminal Matters,'' Bundesgesetzblatt No. 529/
1979 (hereinafter ``Austrian Extradition Law''). Section 1 of the law 
states that ``The provisions of this Federal Law shall be applicable 
only to the extent that international agreements do not provide 
otherwise.'' Thus, in case of conflict between the treaty and Austrian 
statutory law, the treaty controls.
    \86\  See Stanbrook and Stanbrook, Extradition: The Law and 
Practice 25-26 (1979).
    \87\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \88\ See 18 U.S.C. Sec.  1341.
    \89\ See 18 U.S.C. Sec.  2314.
    \90\ Restatement (Third) of the Foreign Relations Law of the United 
States Sec.  402 (1987); Blakesley, United States Jurisdiction over 
Extraterritorial Crime, 73 J. Crim. L. & Criminology 1109 (1982).
    \91\ Palmer, The Austrian Law of Extradition and Mutual Assistance 
64-65, Library of Congress Law Library (1983).
    \92\ The English text of the Treaty as originally signed 
incorrectly read, ``Extradition shall be granted. . .'' By way of an 
exchange of notes between the Parties, ``may'' has been substituted in 
this paragraph and reflects the true intent of the negotiators.
    \93\ U.S.-Costa Rica Extradition Treaty, Dec. 4, 1982, art. 3; Cf. 
U.S.-Bolivia Extradition Treaty, June 29, 1995, art. II(3)(b); U.S.-
Ireland Extradition Treaty, July 13, 1983, art. III(1) (TIAS 10813).
    \94\ Our policy of drawing no distinction between United States 
nationals and others in extradition matters is underscored by Title 18, 
United States Code, Section 3196, which authorizes the Secretary of 
State to extradite United States citizens pursuant to a treaty that 
permits but does not expressly require surrender of citizens as long as 
the other requirements of the treaty have been met. 18 U.S.C. Sec.  
3196.
    \95\ Section 12, Austrian Extradition Law.
    \96\ See, e.g., Article 3, U.S.-Hungary Extradition Treaty, 
December 1, 1994; Article 8, U.S.-Costa Rica Extradition Treaty, 
December 4, 1982.
    \97\ Cf. Section 14, Austrian Extradition Law.
    \98\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \99\ There are similar provisions in many recent treaties. See 
Article III(3), U.S.-Jamaica Extradition Treaty, June 14, 1983; Article 
5(4), U.S.-Spain Extradition Treaty, May 29, 1970, (22 UST 737, TIAS 
7136, 796 UNTS 245); Article 4, U.S.-Netherlands Extradition Treaty, 
June 24, 1980 (TIAS 10733).
    \100\ See Eain v. Wilkes, 641 F.2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \101\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
    \102\ See Section 16(1), Austrian Extradition Law.
    \103\ Many recent U.S. treaties provide that extradition shall not 
be denied on the ground that the Requested State declined to prosecute 
or discontinued proceedings against the person sought. Austria would 
not agree to such a provision because Section 16(1) of Austrian 
Extradition Law requires denial of extradition in such cases. The 
discretionary wording of this article was designed to avoid impeding 
the United States' ability to grant extradition in such cases.
    \104\ See, e.g., Article 4(1)(ii), U.S.-Canada Extradition Treaty, 
signed December 3, 1971, entered into force March 22, 1976 (3 UST 2826, 
TIAS 8237). It is settled law in the United States that lapse of time 
is not a defense to extradition unless the treaty specifically provides 
to the contrary. Freedman v. United States, 437 F. Supp. 1252 (D. Ga. 
1977); United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977). By 
contrast, Austrian law requires that extradition be denied if the 
statute of limitations or other provisions on lapse of time have 
expired in either the requesting or the requested state. Section 18, 
Austrian Extradition Law. Thus, Article 7 represents a reasonable 
compromise between the two positions.
    \105\ Article 85, Austrian Federal Constitution.
    \106\ Section 20, Austrian Extradition Law.
    \107\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, 
December 1, 1994; Article 6, U.S.-Netherlands Extradition Treaty, June 
24, 1980 (TIAS 10733); Article 6, U.S.-Ireland Extradition Treaty, July 
13, 1983 (TIAS 10813).
    \108\ Article 8(6), U.S.-Cyprus Extradition Treaty, signed June 17, 
1996.
    \109\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec.  476 comment b (1987).
    \110\ See Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D. Vt. 1979).
    \111\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty, 
Dec. 4, 1982; Article 11, U.S.-Italy Extradition Treaty, Oct. 13, 1983 
(TIAS 10837); Article I(2), U.S.-Jamaica Extradition Treaty, June 14, 
1983.
    \112\ United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \113\ 18 U.S.C. Sec.  3188.
    \114\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963) 
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724 
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir. 
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    \115\ Section 29(3), Austrian Extradition Law.
    \116\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \117\ Section 12(2), Austrian Extradition Law, permits Austria to 
return one of its citizens who was temporarily surrendered to it by the 
United States.
    \118\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \119\ Section 24, Austrian Extradition Law.
    \120\ While the text of the second sentence of Article 18(1) 
standing alone appears to be mandatory, the negotiators intended and 
understood the sentence to be read with the first sentence and 
therefore to be discretionary, since there are circumstances (e.g., a 
related prosecution in the Requested State) where the Requested State 
might view it as appropriate to decline surrender of such items to the 
Requesting State, or delay or condition such surrender.
    \121\ Section 6, Austrian Extradition Law, states that this 
provision shall not preclude the handing over, transportation, and 
delivery of property in connection with the extradition, so that this 
provision will give Austria reciprocal benefits when it requests 
extradition from the United States.
    \122\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of specialty. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979). It is 
unclear who in the executive authority in Austria will give consent. 
See generally Palmer, supra note 10, at 69-71. This was intended to 
preserve intact each Party's right to arrest the extradited person for 
deportation at the conclusion of the sentence, or to file charges 
against the extradited person solely to toll the statute of 
limitations.
    \123\ If the United States is the Requested State and the person 
sought elects to return voluntarily to the Republic of Austria before 
the United States Secretary of State signs a surrender warrant, the 
process would be deemed to be a voluntary return rather than an 
``extradition.''
    \124\ Section 32, Austrian Extradition Law.
    \125\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty, Apr. 
9, 1987.
    \126\ Extradition between the U.S. and Barbados is currently 
governed by the Treaty for the Mutual Extradition of Criminals between 
the United States and Great Britain (hereinafter ``the 1931 Treaty''), 
signed at London December 22, 1931, entered into force June 24, 1935, 
(47 Stat. 2122; TS 849), which continued in force after Barbados became 
an independent nation on November 30, 1966.
    \127\ Extradition Act 1980, of 2nd June 1980 (hereinafter 
``Extradition Act 1980''). The key sections of the Extradition Act 
which are germane to the interpretation and implementation of the 
Treaty are discussed in more detail in this Technical Analysis. The 
Barbados delegation stated that in Barbados treaties do not take 
priority over statutes, recognized that their extradition would have to 
be amended to avoid conflict with the Treaty, and promised to take such 
steps as are necessary to effectively carry out the obligations in this 
Treaty.
    \128\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \129\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \130\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \131\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \132\ Section 7(1)(a), Extradition Act 1980, provides that 
extradition shall be denied if the crime is an offense ``of a political 
character.'' The Barbados delegation assured the United States that 
this is identical to the political offense defense. Similar provisions 
appear in all recent U.S. extradition treaties.
    \133\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \134\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \135\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \136\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \137\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \138\ Barbados law permits requests to be made either by a U.S. 
consular officer stationed in Barbados, a request to the Attorney 
General through Barbados' diplomatic representatives stationed in the 
United States, or ``by such other person or by such other means as may 
be settled by arrangement ...'' Extradition Act 1980, Section 23.
    \139\ See Extradition Act 1980, Section 17(1).
    \140\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \141\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F.Supp. 976 (D. Vt. 1979).
    \142\ See sSection 15, Extradition Act 1980.
    \143\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \144\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \145\ Similar provisions appear in all recent U.S. extradition 
treaties. The topic of provisional arrest is dealt with in Barbados 
Extradition Act 1980, Section 23.
    \146\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \147\ Title 18, United States Code, Section 3188.
    \148\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \149\ Barbados Extradition Act 1980, Section 32.
    \150\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \151\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \152\ Extradition Act 1980, Section 25.
    \153\ Similar provisions are found in all recent U.S. extradition 
treaties, and in the Extradition Act 1980, Section 30.
    \154\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979). For Barbados, it is the Attorney General. Cf. 
Extradition Act 1980, Section 7(2)(b)(iii).
    \155\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \156\ A similar provision is in all recent U.S. extradition 
treaties.
    \157\ This provision supersedes the contrary provision in Title 18, 
United States Code, Section 3195. Barbados law requires that all 
expenses be paid by the Requesting State unless otherwise provided by 
treaty (Extradition Act 1980, Section 31), so this express treaty 
provision would take precedence.
    \158\ See Article 20, U.S.-Jordan Extradition Treaty, supra, note 
17; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997; Article 18, U.S.-Philippines Extradition 
Treaty, signed at Manila Nov. 13, 1994, entered into force November 11, 
1996; Article 21, U.S. -Hungary Extradition Treaty, signed at Budapest 
Dec. 1, 1994, entered into force March 18, 1997.
    \159\ Extradition between the U.S. and Cyprus is currently governed 
by the Treaty for the Mutual Extradition of Criminals between the 
United States and Great Britain, signed at London December 22, 1931, 
entered into force June 24, 1935, 47 Stat. 2122; TS 849, 12 Bevans 482; 
163 LNTS 59, which continued in force after Cyprus became an 
independent nation on August 16, 1960.
    \160\ Republic of Cyprus Law No. 97 of 1970 (hereinafter ``the 
Extradition of Fugitive Offenders Law 1970''). The key sections of the 
Extradition of Fugitive Offenders Law 1970 that are germane to the 
interpretation and implementation of the Treaty are discussed in more 
detail in this Technical Analysis.
    \161\: See Stanbrook and Stanbrook, Extradition: The Law and 
Practice 25-26 (1979).
    \162\ See 18 U.S.C Sec.  1341.
    \163\ See 18 U.S.C. Sec.  2314.
    \164\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 J. Crim. L. & Criminology 1109 (1982).
    \165\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \166\ See generally Shearer, Extradition in International Law 110-
14 (1970); 6 Whiteman, Digest of International Law 871-76 (1968). Our 
policy of drawing no distinction between United States nationals and 
others in extradition matters is underscored by Title 18, United States 
Code, Section 3196, which authorizes the Secretary of State to 
extradite United States citizens pursuant to a treaty that permits but 
does not expressly require surrender of citizens as long as the other 
requirements of the treaty have been met.
    \167\ Section 6(1), Extradition of Fugitive Offenders Law 1970.
    \168\ ``This constitutional provision (the reason for which will be 
clear to anyone familiar with the communal problems on the island) was 
interpreted in 1961 by the Supreme Court of Cyprus as preventing even 
the surrender of a Cypriot to Great Britain . . .'' Shearer, 
Extradition in International Law 102 (1971). See also Stanbrook, 
Extradition: the Law and Practice 39 (1980). Cyprus has never 
extradited one of its citizens to the United States or to any other 
nation.
    \169\ Cyprus has jurisdiction to prosecute its citizens for crimes 
committed outside its territory if the offense is one punishable in 
Cyprus with death or imprisonment exceeding two years and is also 
punishable by the law of the country where it was committed and for any 
offense committed while the citizen is in the service of Cyprus. 
Article 5 of the Cyprus Criminal Code, Chapter 154, as amended. In 
fact, the Cyprus delegation assured the U.S. that few crimes for which 
extradition would be sought have a penalty of less than two years in 
Cyprus. Thus, virtually all offenses that are extraditable under the 
treaty could form the basis for a domestic prosecution in Cyprus.
    \170\ See, e.g., Article 3, U.S.-Hungary Extradition Treaty, signed 
at Budapest December 1, 1994; Article 8, U.S.-Costa Rica Extradition 
Treaty, signed December 4, 1982; U.S.-Mexico Extradition Treaty, signed 
May 4, 1978.
    \171\ Similar provisions appear in all recent U.S. extradition 
treaties. Section 6(1)(a), Extradition of Fugitive Offenders Law 1970, 
provides that extradition shall be denied if the crime is an offense 
``of a political character.'' The Cyprus delegation assured the United 
States that this is identical to the political offense defense.
    \172\ Section 6(5) of the Extradition of Fugitive Offenders Law 
1970 states that a crime cannot be an offense of a political character 
if it involves an attempt on the life or person of ``the head of the 
Commonwealth'' or involves conspiring, attempting, or participating in 
a crime listed in the Schedule to the Law, or impeding the arrest or 
prosecution of others guilty of such crimes.
    \173\ Done at Vienna, December 20, 1988, entered into force 
November 11, 1990.
    \174\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force Jul 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \175\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \176\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \177\ It also resembles Section 6(2) of the Extradition of Fugitive 
Offenders Law 1970, which prohibits extradition of a person ``if it 
appears . . . that if charged with the offence in the Republic [of 
Cyprus] he would be entitled to be discharged under any rule of law 
relating to previous acquittal or conviction.''
    \178\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, supra 
note 11; Article 7, U.S.-Netherlands Extradition Treaty, supra note 19; 
Article 6, U.S.-Ireland Extradition Treaty, supra note 21.
    \179\ Section 11(4), Extradition of Fugitive Offenders Law 1970.
    \180\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \181\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. See 
Restatement (Third) of the Foreign Relations Law of the United States, 
section 476, comment b (1987).
    \182\ Courts applying Title 18, United States Code, Section 3184 
long have required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec.  476 comment b (1987).
    \183\ See Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D. Vt. 1979).
    \184\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty, 
supra note 12; Article 11, U.S.-Italy Extradition Treaty, signed Oct. 
13, 1983. However, the Cyprus Treaty differs from these two in that it 
does not provide specifically for the release of the person sought if 
the additional information is not supplied within the specified 
deadline.
    \185\ Article 8 of the treaty states: ``The extradition of fugitive 
criminals under the provisions of this Treaty shall be carried out in 
the United States and in the territory of His Britannic Majesty 
respectively, in conformity with the laws regulating extradition for 
the time being in force in the territory from which the surrender of 
the fugitive criminal is claimed.''
    \186\ Section 13, Extradition of Fugitive Offenders Law 1970.
    \187\ Title 18, United States Code, Section 3190.
    \188\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
    \189\ 18 U.S.C. Sec.  3188.
    \190\ See Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L. Ed. 
2d 30 (1963) (decided by Goldberg, J., in chambers); see also Liberto 
v. Emery, 724 F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 
(5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 
1978).
    \191\ Section 12, Extradition of Fugitive Offenders Law 1970.
    \192\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \193\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \194\ Section 11(5), Extradition of Fugitive Offenders Law 1970.
    \195\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of specialty. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979). In Cyprus, 
it is the Minister of Justice. Section 6(3)(c), Extradition of Fugitive 
Offenders Law 1970.
    \196\ Cf. Article 16, U.S.-Netherlands Extradition Treaty, supra 
note 21.
    \197\ See, e.g., Article 20, U.S.-Jordan Extradition Treaty, signed 
at Washington March 28, 1995, July 29, 1995; Article 19, U.S.-Belgium 
Extradition Treaty, signed at Brussels April 27, 1987, entered into 
force September 1, 1997; Article 24, U.S.-Switzerland Extradition 
Treaty, signed at Bern Nov. 14, 1990, entered into force September 10, 
1997; Article 18, U.S.-Philippines Extradition Treaty, signed at Manila 
Nov. 13, 1994, entered into force November 22, 1996; Article 21, U.S.-
Hungary Extradition Treaty, signed at Budapest Dec. 1, 1994, entered 
into force March 18, 1997.
    \198\ Extradition between the U.S. and Dominica is currently 
governed by the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972 
Treaty''), signed June 8, 1972, entered into force January 21, 1977 (28 
UST 227, TIAS 8468), which continued in force after Dominica became an 
independent nation on November 3, 1978.
    \199\ Chapter 12:04, Laws of Dominica, Extradition Act 1981. The 
key sections of the Extradition Act 1981 which are germane to the 
interpretation and implementation of the Treaty are discussed in more 
detail in this Technical Analysis. The Dominica delegation stated that 
in general in Dominica treaties do not take priority over statutes, and 
that the courts are bound by the Act, though the Government is bound by 
the Treaty. The application of Dominica's extradition law, however, is 
``subject to any limitations, conditions, exceptions, or qualifications 
as are necessary to give effect to [the] treaty. . .'' Section 39(2), 
Extradition Act 1981, so Dominica's delegation assured the United 
States that the terms of this Treaty would be given full effect.
    \200\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \201\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec. s 402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \202\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \203\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \204\ Section 7(1), Extradition Act 1981, provides that extradition 
shall be denied if the crime is an offense ``of a political 
character.'' The Dominica delegation assured the United States that 
this is identical to the political offense defense. Similar provisions 
appear in all recent U.S. extradition treaties.
    \205\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \206\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, and entered into force July 7, 1991; Article 
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970, 
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); 
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June 
24, 1980, entered into force September 15, 1983 (TIAS 10733); and 
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July 
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \207\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \208\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \209\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \210\ Article IX(1), 1972 Treaty.
    \211\ See Extradition Act 1980, Section 17(1).
    \212\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \213\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \214\ See Article VII(5) of the 1972 Treaty.
    \215\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \216\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \217\ Similar provisions appear in all recent U.S. extradition 
treaties.
    \218\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \219\ Title 18, United States Code, Section 3188.
    \220\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \221\ Section 32, Extradition Act 1981.
    \222\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \223\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \224\ Section 24, Extradition Act 1981.
    \225\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \226\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979). For Dominica, it is the Attorney General. See 
Section 7(2)(b)(3), Extradition Act 1981.
    \227\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \228\ A similar provision is in all recent U.S. extradition 
treaties.
    \229\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 
12; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997; Article 18, U.S.-Philippines Extradition 
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22, 
1996; Article 21, U.S. -Hungary Extradition Treaty, signed at Budapest 
Dec. 1, 1994, entered into force March 18, 1997.
    \230\ The Extradition Treaty signed at Paris January 6, 1909, 
entered into force July 27, 1911, (37 Stat. 1526; TS 561; 7 Bevans 
872). The Supplementary Extradition Convention signed at Paris February 
12, 1970, entered into force April 3, 1971 (22 UST 407; TIAS 7075; 791 
UNTS 273).
    \231\ Loi reglant les conditions, la procedure, et les effets de 
l'extradition, decret du 11 mars 1927 (hereinafter ``Extradition Law 
1927''). This Technical Analysis discusses key sections of the 
Extradition Law 1927 that are germane to the interpretation and 
implementation of the Treaty.
    \232\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice 25-26 (1979).
    \233\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \234\ Shearer, Extradition in International Law 74 (1971); Article 
23, Extradition Law 1927.
    \235\ See 18 U.S.C Sec.  1341.
    \236\ See 18 U.S.C. Sec.  2314.
    \237\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 J. Crim. L. & Criminology 1109 (1982).
    \238\ French jurisprudence divides offenses into three categories: 
crimes (major felonies), delits (lesser felonies), and contraventions 
(petty offenses). See Kock, Criminal Proceedings in France, 9 American 
Journal of Int'l Law 253 (1960). France asserts an extraterritorial 
criminal jurisdiction over its nationals for major felonies committed 
anywhere in the world, and for lesser felonies if punishable at the 
place where committed. France also asserts criminal jurisdiction over 
aliens located in France whose acts, though committed outside of 
France, endanger the safety or financial credit of the French state. 
Delaume, Jurisdiction over Crimes Committed Abroad: French and American 
Law 21 Geo. Wash. Crim. Rev. 173 (1952). France also asserts 
jurisdiction over aliens who commit offenses against French nationals 
outside of France.
    \239\ See generally Shearer, Extradition in International Law 110-
14 (1971); 6 Whiteman, Digest of International Law 871-76 (1968). Our 
policy of drawing no distinction between United States and other 
nationals in extradition matters is underscored by Title 18, United 
States Code, Section 3196. This authorizes the Secretary of State to 
extradite United States citizens pursuant to a treaty that permits but 
does not expressly require surrender of citizens as long as the other 
requirements of the treaty have been met.
    \240\ See Act 5(1), Extradition Law 1927. See 6 Whiteman Digest of 
International Law 871 (1968). Indeed, France is one of the originators 
and staunchest defenders of the practice of not extraditing nationals. 
Shearer, Extradition in International Law 95, 96, 104 (1971).
    \241\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty, 
Dec. 4, 1982; Article 9, U.S.-Mexico Extradition Treaty, May 4, 1978 
(31 UST 5059, TIAS 9656).
    \242\ For a detailed description of French jurisprudence, see 
Carbonneau, French Judicial Perspectives on the Extradition of 
Transnational Terrorists and the Political Offense Exception (1981); 
Goldie, The Political Offense Exception and Extradition Between 
Democratic States, 13 Ohio N.U. L. Rev. 53 (1986); Comment, The 
Political Offense Exemption to Extradition; Protecting the Right of 
Rebellion in an Era of International Political Violence, 66 Or. L. Rev. 
405 (1987); Comment, Revolutionaries Beware: The Erosion of the 
Political Offense Exception under the 1986 United States-United Kingdom 
Supplementary Extradition Treaty, 136 U. Pa. L. Rev. 1515 (1988); 
Comment, The Political Offense Exception: An Historical Analysis and 
Model for the Future, 64 Tul. L. Rev. 1195 (1990); Taulbee, Political 
Crimes, Human Rights, and Contemporary International Practice, 4 Emory 
Int'l L. Rev. 43 (1990).
    \243\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \244\ This paragraph includes offenses covered by the Convention 
for the Protection of Internationally Protected Persons, Including 
Diplomatic Agents, done at New York December 14, 1973, (28 UST 1975, 
TIAS 8532, 1035 UNTS 167). France is not a party to this Convention.
    \245\ This paragraph includes offenses under the Convention on the 
Taking of Hostages, done at New York December 17, 1979, (TIAS 11081). 
France is not a party to this convention.
    \246\ These factors are drawn directly from Art. 13(1) of the 
European Convention on the Suppression of Terrorism.
    \247\ Article IV(c), U.S.-Ireland Extradition Treaty, signed at 
Washington July 13, 1983, entered into force December 15, 1984 (TIAS 
10813).
    \248\ The long-standing U.S. law and practice have been that the 
Secretary of State alone has the discretion to determine whether an 
extradition request is based on improper motivation. Eain v. Wilkes, 
641 F.2d 504, 513-18)(7th Cir.), cert. denied, 454 U.S. 894 (1981); 
Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 1990), aff'd, 931 F.2d 
169 (1st Cir. 1991).
    \249\ Article 5, U.S.-Germany Extradition Treaty, signed at Bonn 
June 20, 1978, entered into force August 29, 1980 (TIAS 9785).
    \250\ An example of such a crime is desertion. See, e.g., In re 
Suarez-Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
    \251\ The French delegation wanted the provision to read ``unless 
the Requesting State provides sufficient assurances . . .'' in order to 
maximize the Requested State's discretion. After extensive discussion, 
the French delegation agreed to drop the term ``sufficient,'' but 
reserved France's right to decide on a case-by-case basis whether to 
accept assurances offered to it.
    \252\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, 
December 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, July 13, 
1983 (TIAS 10813); Article 7, U.S.-Netherlands Extradition Treaty, June 
24, 1980 (TIAS 10733).
    \253\ This is consistent with some other U.S. extradition treaties 
that require denial of the request if the statute of limitations would 
have run in the Requested State had the offense been committed in that 
state. See, e.g., Article 4, U.S.-Japan Extradition Treaty, signed 
March 3, 1978, and entered into force March 26, 1980 (31 UST 892, TIAS 
9625); Article 6, U.S.-Netherlands Extradition Treaty, supra note 29. 
The Treaty provides slightly more flexibility for the United States 
than the current Supplementary Extradition Convention, which bars 
extradition if the statute of limitations has expired in either the 
Requesting or Requested State. It is consistent with settled law in the 
United States, which holds that lapse of time is not a defense to 
extradition at all unless the treaty specifically provides to the 
contrary. Freedman v. United States, 437 F. Supp. 1252 (D. Ga. 1977); 
United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977).
    \254\ The statute of limitations in France is currently ten years 
for major felonies (crimes) and three years for lesser felonies 
(delits). Note, Statute of Limitations: Penetrable Barrier to 
Prosecution, 102 U. Pa. L. Rev. 630 (1954); Note, 50 Prescription of 
Crime, Scottish L. Rev. at 261 (1934).
    \255\ Courts applying Title 18, United States Code, Section 3184 
long have required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec.  476 comment b (1987).
    \256\ Shearer, supra note 5, at 157-165.
    \257\ See Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D. Vt. 1979).
    \258\ This provision is consistent with requirements imposed by 
U.S. Law. See Title 18, United States Code, Section 3190.
    \259\ Cf. Clark, supra note 34.
    \260\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty, 
December 4, 1982; Article 11, U.S.-Italy Extradition Treaty, October 
13, 1983 (TIAS 10837).
    \261\ U.S. law currently permits a person to request release if he 
has not been surrendered within two calendar months of having been 
found extraditable, or of the conclusion of any litigation challenging 
that finding, whichever is later. See 18 U.S.C. Sec.  3188; Jimenez v. 
U.S. District Court, 84 S. Ct. 14 (1963) (decided by Goldberg, J., in 
chambers). See also Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In re 
United States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States, 
590 F.2d 624 (6th Cir. 1978).
    \262\ See Article 18, Extradition Act 1927.
    \263\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \264\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \265\ Article 6, Extradition Act 1927.
    \266\ See, e.g., See Article 19, U.S.-Belgium Extradition Treaty, 
signed at Brussels April 27, 1987, entered into force September 1, 
1997; Article 24, U.S.-Switzerland Extradition Treaty, signed at Bern 
Nov. 14, 1990, entered into force September 10, 1997.
    \267\ Extradition between the U.S. and Grenada is currently 
governed by the Treaty for the Mutual Extradition of Criminals between 
the United States and Great Britain (hereinafter the ``1931 Treaty''), 
signed at London December 22, 1931, entered into force June 24, 1935, 
47 Stat. 2122; TS 849, which continued in force after Grenada became an 
independent nation on February 7, 1974.
    \268\ Extradition Act 1870, 33 & 34 Vict., c. 52 (hereinafter 
``Extradition Act 1870''). This British statute governed extradition at 
the time Grenada became independent from the United Kingdom in 1974, 
and continues to be the law in effect on this topic. The key sections 
of the Extradition Act 1870 that are germane to the interpretation and 
implementation of the Treaty are discussed in more detail in this 
Technical Analysis. The Grenada delegation stated that in Grenada 
treaties do not take priority over statutes, recognized that their 
extradition law would have to be amended to avoid conflict with the 
Treaty, and promised to take such steps as are necessary to effectively 
carry out the obligations in this Treaty.
    \269\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \270\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \271\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \272\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \273\ Section 3(1), Extradition Act 1870, provides that extradition 
shall be denied if the crime is an offense ``of a political 
character.'' The Grenada delegation assured the United States that this 
is identical to the political offense defense. Similar provisions 
appear in all recent U.S. extradition treaties.
    \274\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \275\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \276\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \277\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \278\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \279\ Article 9, 1931 Treaty.
    \280\ See Extradition Act 1980, Section 17(1).
    \281\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \282\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \283\ See Sections 14-15, Extradition Act 1870.
    \284\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \285\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215,1224 (D. Conn. 1977).
    \286\ Similar provisions appear in all recent U.S. extradition 
treaties.
    \287\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
    \288\ Title 18, United States Code, Section 3188.
    \289\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963) (decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \290\ Extradition Act 1870, Section 12.
    \291\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \292\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \293\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \294\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979).
    \295\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \296\ Cf. Article 16, US-Netherlands Treaty, supra note 13.
    \297\ A similar provision is in all recent U.S. extradition 
treaties.
    \298\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 
16; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997; Article 18, U.S.-Philippines Extradition 
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22, 
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest 
Dec. 1, 1994, entered into force March 18, 1997.
    \299\ See 47 Stat. 2122; TS 849; 12 Bevans 482; 163 LNTS 59.
    \300\ See Extradition Act, 1962, as amended by the Extradition 
(Amendment) Act, 1993 Sec.  3184 (hereinafter the Indian Extradition 
Act).
    \301\ See, e.g., Article 2 of the Indian Extradition Act, providing 
that an ``extradition offense'' in relation to another Contracting 
State is ``an offense provided for in the extradition treaty with that 
State.''
    \302\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice 25-26 (1979).
    \303\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \304\ Indian Penal Code of 1860 Sec. Sec.  3,4.
    \305\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \306\ See generally Shearer, Extradition in International Law 110-
14 (1970); 6 Whiteman, Digest of International Law 871-76 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18 U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \307\ See Commentary to Chapter I(1)(1), Indian Extradition Act.
    \308\ Section 31(a) of the Indian Extradition Act provides that 
extradition shall be denied if the offense for which a fugitive is 
sought is ``of a political character.''
    \309\ Done at the Hague December 16, 1970, entered into force 
October 14, 1971 (22 UST 1641, TIAS 7192).
    \310\ Done at Montreal September 23, 1971, entered into force 
January 26, 1973 (24 UST 564, TIAS 7570).
    \311\ Done at New York December 14, 1973, entered into force 
February 20, 1977 (28 UST 1975, TIAS 8532, 1035 UNTS 167).
    \312\ Done at New York December 17, 1979, entered into force June 
3, 1983 (TIAS 11081).
    \313\ Done at New York March 30, 1961, entered into force December 
13, 1964, for the United States June 24, 1967 (18 UST 1407, TIAS 6298, 
520 UNTS 204).
    \314\ Done at Geneva March 25, 1972, entered into force August 8, 
1975 (26 UST 1439, TIAS 8118, 976 UNTS 3).
    \315\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \316\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-03 (N.D. Cal. 1988).
    \317\ There are similar provisions in many U.S. extradition 
treaties. See, e.g., Article III(3) U.S.-Jamaica Extradition Treaty, 
signed June 14, 1983. Article 5(4) U.S.-Spain Extradition Treaty, 
signed May 29, 1970; Article 4 U.S.-Netherlands Extradition Treaty, 
signed June 24, 1980.
    \318\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991). See also 18 U.S.C. 
Sec.  3186.
    \319\ Indian Extradition Act, Sec.  31 (a).
    \320\ See, e.g., Article 5, U.S.-Jordan Extradition Treaty, signed 
at Washington March 28, 1995, entered into force July 29, 1995.
    \321\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \322\ Other United States extradition treaties contain similar 
provisions. See, e.g., Article 4(1)(II), U.S.-Canada Extradition 
Treaty, signed at Washington Dec. 3, 1971, entered into force March 22, 
1976 (UST 983, TIAS 8273); Article 5, U.S.-Switzerland Extradition 
Treaty, signed Nov. 11, 1990.
    \323\ See, e.g., Article 7, U.S.-Netherlands Extradition Treaty, 
signed at the Hague June 24, 1980, entered into force September 15, 
1983 (TIAS 10733); Article 6, U.S.-Ireland Extradition Treaty, signed 
at Washington July 13, 1983, entered into force December 15, 1984 (TIAS 
10813).
    \324\ Such a document must be issued by a competent authority.
    \325\ Courts applying 18 U.S.C. Sec. 3184 have long required 
probable cause for international extradition. Restatement (Third) of 
the Foreign Relations Law of the United States Sec.  476, comment b 
(1987).
    \326\ See Indian Extradition Act Sec.  7(4).
    \327\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \328\ See Indian Extradition Act Sec.  10.
    \329\ See 18 U.S.C. Sec.  3190.
    \330\ Similar provisions appear in all recent U.S. extradition 
treaties.
    \331\ See United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \332\ Title 18, U.S. Code, Section 3188 provides that any U.S. 
court, upon application, may discharge from custody a person so 
committed.
    \333\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed 2d 30 (1963) (decided by Goldberg, J., in chambers). See Liberto 
v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 F.2d 105 
(5th Cir. 1983); see also Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \334\ Indian Extradition Act, Section 24.
    \335\ This is a discretionary provision exercisable by the 
Requested State only; it does not create any right which a fugitive 
might exercise.
    \336\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \337\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \338\ Indian Extradition Act Sec.  30.
    \339\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \340\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of speciality. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
    \341\ This provision is consistent with provisions in all recent 
U.S. extradition treaties.
    \342\ A similar provision exists in many recent U.S. extradition 
treaties.
    \343\ See, e.g., Article 19, U.S.-Jordan Extradition Treaty, signed 
at Washington March 28, 1995, entered into force July 29, 1995 (Treaty 
Doc. No. 102-17). See also 18 U.S.C. Sec. 3195.
    \344\ See Article 20, U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995 (Treaty Doc. No. 102-17); article 19, U.S.-
Belgium Extradition Treaty, signed at Brussels April 27, 1987 (Treaty 
Doc. No. 102-17).
    \345\ On the date the Treaty was signed, the parties expressed 
their understanding in an exchange of letters, which have been provided 
to the Senate for its information, that
    ``... as a general matter, upon extradition, a person shall be 
proceeded against or punished under the ordinary criminal laws of the 
Requesting State, and shall be subject to prosecution or punishment in 
accordance with the Requesting State's ordinary rules of criminal 
procedure. If either party is considering prosecution or punishment 
upon extradition based on other laws or other rules of criminal 
procedures, the Requesting State shall request consultations and shall 
make such a request only upon the agreement of the Requested State.''
    This understanding was developed during the negotiations after 
discussions of India's Terrorist and Disruptive (Prevention) Act 
(TADA), which was in force when the negotiations commenced in 1994 and 
has been used in connection with the detention and prosecution of 
persons charged with terrorist offenses. Although TADA lapsed on May 
23, 1995, it has continuing effect with respect to cases under 
investigation and trial on such date. TADA limits defendants' rights in 
ways that have been the subject of criticism from non-governmental 
human rights groups and the State Department's annual human rights 
report. This Understanding reflects the Parties' agreement that if 
either party is considering prosecution or punishment upon extradition 
based on laws or rules of criminal procedures such as those in TADA, 
the Requesting State shall request consultations and shall make such a 
request only upon the agreement of the Requested State.
    \346\ Extradition between the U.S. and St. Christopher and Nevis is 
governed by the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972 
Treaty''), signed June 8, 1972, entered into force January 21, 1977 (28 
UST 227, TIAS 8468), which continued in force after St. Christopher and 
Nevis became an independent nation on September 19, 1983.
    \347\ Extradition Act, 1870, 33 & 34 Vict., c. 52 (hereinafter the 
``Extradition Act 1870''). This British statute governed extradition at 
the time St. Christopher and Nevis became independent from the United 
Kingdom, and continues to be the law in effect on this topic. The key 
sections of the Extradition Act 1870 which are germane to the 
interpretation and implementation of the Treaty are discussed in more 
detail in this Technical Analysis. The St. Christopher and Nevis 
delegation stated that in St. Christopher and Nevis treaties do not 
take priority over statutes, and that the courts are bound by the Act, 
though the Government is bound by the Treaty. The United States 
delegation was assured that the terms of this Treaty would be given 
full effect, since under Section 2 of the Extradition Act 1870, the 
government of St. Christopher and Nevis may embody the terms of this 
Treaty in an Order in Council that will ``render the operation of [the 
Extradition Act 1870] subject to such conditions, exceptions, and 
qualifications as may be deemed expedient'' to implement the Treaty.
    \348\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \349\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \350\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \351\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \352\ Section 3(1), Extradition Act 1870, provides that extradition 
shall be denied if the crime is an offense ``of a political 
character.'' The St. Christopher and Nevis delegation assured the 
United States that this is identical to the political offense defense. 
Similar provisions appear in all recent U.S. extradition treaties.
    \353\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \354\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, and entered into force July 7, 1991; Article 
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970, 
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); 
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June 
24, 1980, entered into force September 15, 1983 (TIAS 10733); and 
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July 
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \355\ See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.) cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \356\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 703-703 (N.D. Cal. 
1988).
    \357\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \358\ Article IX(1), 1972 Treaty. A similar requirement is found in 
Section 10 of the Extradition Act 1870.
    \359\ See Extradition Act 1980, Section 17(1).
    \360\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \361\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \362\ See, Article VII(5) of the 1972 Treaty.
    \363\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \364\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \365\ Similar provisions appear in all recent U.S. extradition 
treaties.
    \366\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
    \367\ Title 18, United States Code, Section 3188.
    \368\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \369\ Extradition Act 1870, Section 12.
    \370\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \371\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \372\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \373\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979).
    \374\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \375\ Cf. Article 16, US-Netherlands Treaty, supra note 9.
    \376\ A similar provision is in all recent U.S. extradition 
treaties.
    \377\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 
12; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997; Article 18, U.S.-Philippines Extradition 
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22, 
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest 
Dec. 1, 1994, entered into force March 18, 1997.
    \378\ Extradition between the U.S. and Saint Lucia is governed by 
the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972 Treaty''), 
signed June 8, 1972, entered into force January 21, 1977 (28 UST 227, 
TIAS 8468), which continued in force after Saint Lucia became an 
independent nation on February 23, 1979.
    \379\ ``An Act Relating to Fugitives in Saint Lucia from the 
criminal Law of other States and to fugitives from the Criminal Law of 
Saint Lucia in other States'' of July 28, 1986 (hereinafter ``the 
Extradition Act 1986''). The key sections of the Extradition Act which 
are germane to the interpretation and implementation of the Treaty are 
discussed in more detail in this Technical Analysis. The Saint Lucia 
delegation stated that in general in Saint Lucia treaties do not take 
priority over statutes, and that the courts are bound by the Act, 
though the Government is bound by the Treaty. However, the application 
of Saint Lucia's extradition law is ``subject to such limitations, 
conditions, exceptions or qualifications as are necessary to give 
effect to [the applicable extradition] Treaty,'' Section 38(2), 
Extradition Act 1986, so Saint Lucia's delegation assured the United 
States delegation that the terms of the Treaty would be given full 
effect.
    \380\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \381\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \382\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \383\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \384\ Similar provisions appear in almost all recent U.S. 
extradition treaties. Section 6 of Saint Lucia's Extradition Act 1986 
requires that extradition be denied if the crime is ``an offense of a 
political character,'' but the delegations agreed that the two terms 
are equivalent.
    \385\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \386\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \387\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \388\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \389\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington March 28, 
1995, entered into force July 29, 1995.
    \390\ Article IX(1), 1972 Treaty. A similar requirement is found in 
Section 16(1)(b), Extradition Act 1986.
    \391\ See Extradition Act 1980, Section 17(1).
    \392\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \393\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \394\ Article VII(5), 1972 Treaty.
    \395\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \396\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \397\ Similar provisions appear in all recent U.S. extradition 
treaties.
    \398\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
    \399\ Title 18, United States Code, Section 3188.
    \400\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \401\ Section 31, Extradition Act 1986.
    \402\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \403\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 931 F.2d 977 (11th Cir. 1991).
    \404\ Section 24, Extradition Act 1986.
    \405\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \406\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979). For Saint Lucia, it is the Attorney-General. 
See Section 6(2)(b)(iii), Extradition Act 1986.
    \407\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \408\ Cf. Article 16, US-Netherlands Treaty, supra note 14.
    \409\ A similar provision is in all recent U.S. extradition 
treaties.
    \410\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 
15; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997; Article 18, U.S.-Philippines Extradition 
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22, 
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest 
Dec. 1, 1994, entered into force March 18, 1997.
    \411\ Extradition between the United States and Luxembourg is 
governed by the Treaty on Extradition signed by the two nations at 
Berlin on October 29, 1883, and the Supplementary Extradition 
Convention signed at Luxembourg on April 24, 1935.
    \412\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \413\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 J. Crim. L. & Criminology 1109 (1982).
    \414\ See, e.g., Article 4, U.S.-Japan Extradition Treaty, signed 
March 3, 1978, entered into force March 26, 1980 (31 UST 892, TIAS 
9625); Article 6, U.S.-Netherlands Extradition Treaty, signed June 24, 
1980, entered into force September 15, 1983 (TIAS 10733).
    \415\ United States policy of drawing no distinction between United 
States nationals and others in extradition matters is underscored by 
Title 18, United States Code, Section 3196, which authorizes the 
Secretary of State to extradite United States citizens pursuant to a 
treaty that permits but does not expressly require surrender of 
citizens as long as the other provisions of the treaty have been met.
    \416\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty, 
signed December 4, 1982, entered into force October 11, 1991; Article 
3, U.S.-Hungary Extradition Treaty, signed Dec. 1, 1994; U.S.-Mexico 
Extradition Treaty, signed May 4, 1978, entered into force January 25, 
1980 (31 UST 5059, TIAS 9656).
    \417\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \418\ There are similar provisions in many recent treaties. See 
Article 4(c), U.S.-Ireland Extradition Treaty, signed July 13, 1983, 
entered into force December 15, 1984 (TIAS 10813); Article 3(3), U.S.-
Jamaica Extradition Treaty, signed June 14, 1983, entered into force 
July 7, 1991; Article 4, U.S.-Netherlands Extradition Treaty, signed 
June 24, 1980, entered into force September 15, 1983 (TIAS 10733); 
Article 5(4), U.S.-Spain Extradition Treaty, signed May 29, 1970, 
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245).
    \419\ See Eain v. Wilkes, 641 F.2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990) aff'd, 931 F.2d 169 (1st Cir. 1991).
    \420\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
    \421\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, signed 
December 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, signed 
July 13, 1983, entered into force December 15, 1984, (TIAS 10813); 
Article 7, U.S.-Netherlands Extradition Treaty, signed June 24, 1980, 
entered into force September 15, 1983 (TIAS 10733).
    \422\ U.S.-Netherlands Extradition Treaty, signed June 24, 1980, 
entered into force September 15, 1983 (TIAS 10733); U.S.-Belgium 
Extradition Treaty, signed April 27, 1987, entered into force September 
2, 1997.
    \423\ Article 6, U.S.-Argentina Extradition Treaty, signed January 
21, 1972, entered into force September 15, 1972 (23 UST 3501, TIAS 
7510); Article 5, U.S.-Canada Extradition Treaty, signed December 3, 
1971, entered into force March 22, 1976 (27 UST 983, TIAS 8237); 
Article 6, U.S.-Uruguay Extradition Treaty, signed April 3, 1973, 
entered into force April 11, 1984, (TIAS 10850).
    \424\ Courts applying Title 18, United States Code, Section 3184, 
long have required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States, 
Sec.  476, comment b (1987).
    \425\ See Spatola v. United States, 741 F. Supp 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D. VT. 1979).
    \426\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty, 
signed December 4, 1982, entered into force October 11, 1991; Article 
11, U.S.-Italy Extradition Treaty, signed October 13, 1983, entered 
into force September 24, 1984 (TIAS 10837).
    \427\ Title 18, United States Code, Section 3190.
    \428\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \429\ 18 U.S.C. Sec.  3188.
    \430\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963) 
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724 
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir. 
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    \431\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \432\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \433\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of specialty. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
    \434\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty, 
signed April 9, 1987; Article 21, U.S.-Hungary Extradition Treaty, 
December 1, 1994.
    \435\ 31 U.S.T. 5059; TIAS 9656.
    \436\ For instance, clauses similar to this Protocol's provisions 
on temporary surrender are found in Art. 15, U.S.-Switzerland 
Extradition Treaty, signed Nov. 14, 1990, entered into force Sept. 10, 
1997; Art. 12, U.S.-Belgium Treaty, signed April 27, 1987, entered into 
force Sept. 1, 1997; Art. 13, U.S.-Malaysia Treaty, signed August 3, 
1995, entered into force June 2, 1997; Art. 14, U.S.-Hungary Treaty, 
signed Dec. 1, 1994, entered into force March 18, 1997; Art. 11, U.S.-
Philippines Treaty, signed Nov. 13, 1994, entered into force Nov. 22, 
1996; Art. 11, U.S.-Bolivia Treaty, signed June 27, 1995, entered into 
force Nov. 21, 1996; Art. 13, U.S.-Jordan Treaty, signed March 28, 
1995, entered into force July 29, 1995; and Art. 12, U.S.-Bahamas, 
signed March 9, 1990, entered into force Sept. 22, 1994.
    \437\ 1976 Treaty on the Execution of Penal Sentences, signed at 
Mexico November 25, 1976; 28 UST 7399, TIAS 8718.
    \438\ Extradition between the United States and the Republic of 
Poland is currently governed by the Extradition Treaty and Accompanying 
Protocol signed by the two nations at Warsaw on November 22, 1927, and 
the Supplementary Extradition Treaty signed at Warsaw on April 5, 1935.
    \439\ The 1969 Polish Code of Criminal Proceedings, Part XII, 
Articles 523-538. In addition, Article 118 of the Polish Criminal Code 
of 1969 states: ``A Polish citizen may not be extradited to another 
state,'' and Article 110 of the same states: ``An alien may not be 
extradited to another state if he enjoys the right to asylum.''
    \440\ See Title 21, United States Code, Section 848.
    \441\ See generally Title 18 and Title 31 of the United States 
Code.
    \442\ See Title 18, United States Code, Sections 1961-68.
    \443\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 J. Crim. L. & Criminology 1109 (1982).
    \444\ For example, Poland can prosecute its citizens for offenses 
committed outside Poland.
    \445\ See, e.g., Article III, Protocol Amending U.S.-Australia 
Extradition Treaty, signed Sept. 4, 1990; Article 1, Protocol Amending 
U.S.-Canada Extradition Treaty, signed Jan. 11, 1988; Article 2, U.S.-
Hungary Extradition Treaty, signed Dec. 1, 1994.
    \446\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \447\ United States policy of drawing no distinction between United 
States nationals and others in extradition matters is underscored by 
Title 18, United States Code, Section 3196, which authorizes the 
Secretary of State to extradite United States citizens pursuant to a 
treaty that permits but does not expressly require surrender of 
citizens as long as the other provisions of the treaty have been met.
    \448\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty, 
signed December 4, 1982, entered into force October 11, 1991; Article 
9, U.S.-Mexico Extradition Treaty, signed May 4, 1978, entered into 
force January 25, 1980; and Article 3, U.S.-Hungary Extradition Treaty, 
signed Dec. 1, 1994.
    \449\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \450\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force Jul 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \451\ See Eain v. Wilkes, 641 F. 2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990) aff'd, 931 F.2d 169 (1st Cir. 1991).
    \452\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
    \453\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, signed 
Dec. 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, signed July 
13, 1983; Article 7, U.S.-Netherlands Extradition Treaty, signed June 
24, 1980.
    \454\ Courts applying Title 18, United States Code, Section 3184, 
long have required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States, 
Sec.  476, comment b (1987).
    \455\ See Spatola v. United States, 741 F. Supp 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F. 2d 615 (2d Cir. 1991); U.S. v. Clark, 470 F. Supp. 
976 (D. VT. 1979).
    \456\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \457\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \458\ See, e.g., Article 10, U.S.-Colombia Extradition Treaty, 
signed September 14, 1979, entered into force March 4, 1982; Article 
10, U.S.-Costa Rica Extradition Treaty, signed December 4, 1982, 
entered into force October 11, 1991; Article 11, U.S.-Italy Extradition 
Treaty, signed October 13, 1983, entered into force September 24, 1984.
    \459\ 18 U.S.C. Sec.  3188.
    \460\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963) 
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724 
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir. 
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    \461\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \462\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \463\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of speciality. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
    \464\ See Article 20, U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995, entered into force July 29, 1995; Article 
19, U.S.-Belgium Extradition Treaty, signed at Brussels April 27, 1987, 
entered into force September 1, 1997; Article 24, U.S.-Switzerland 
Extradition Treaty, signed at Bern Nov. 14, 1990, entered into force 
September 10, 1997; Article 18, U.S.-Philippines Extradition Treaty, 
signed at Manila Nov. 13, 1994, entered into force November 22, 1996; 
Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest Dec. 1, 
1994, entered into force March 18, 1997.
    \465\ Extradition between the U.S. and Trinidad and Tobago is 
governed by the Treaty for the Mutual Extradition of Criminals between 
the United States and Great Britain (hereinafter the ``1931 Treaty''), 
signed at London December 22, 1931, entered into force June 24, 1935, 
47 Stat. 2122; TS 849, which continued in force after Trinidad became 
an independent nation on August 31, 1962.
    \466\ Republic of Trinidad and Tobago, Act No. 36 of 1985, 
Extradition (Commonwealth and Foreign Territories) Act hereinafter 
``the Extradition Act 1985''). The key sections of the Extradition Act 
1985 that are germane to the interpretation and implementation of the 
Treaty are discussed in more detail in this Technical Analysis. The 
Trinidad delegation stated that in Trinidad treaties do not take 
priority over statutes, recognized that their extradition law would 
have to be amended to avoid conflict with the Treaty, and promised to 
take such steps as are necessary to effectively carry out the 
obligations in this Treaty.
    \467\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice 25-26 (1979).
    \468\ See, e.g., 21 U.S.C. Sec.  848.
    \469\ See 18 U.S.C. Sec. Sec.  1961-68.
    \470\ See 18 U.S.C Sec.  1341.
    \471\ See 18 U.S.C. Sec.  2314.
    \472\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \473\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \474\ See generally Shearer, Extradition in International Law 110-
14 (1970); 6 Whiteman, Digest of International Law 871-76 (1968). Our 
policy of drawing no distinction between United States nationals and 
others in extradition matters is underscored by Title 18, United States 
Code, Section 3196, which authorizes the Secretary of State to 
extradite United States citizens pursuant to a treaty that permits but 
does not expressly require surrender of citizens as long as the other 
requirements of the treaty have been met. 18 U.S.C. Sec.  3196.
    \475\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \476\ There are similar provisions in many recent U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \477\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \478\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \479\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \480\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \481\  See Extradition Act 1980, Section 17(1).
    \482\  Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \483\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D.Vt. 1979).
    \484\ See Section 15, Extradition Act 1985.
    \485\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \486\ Clark, 470 F. Supp. at 976.
    \487\ 18 U.S.C. Sec.  3188.
    \488\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963) 
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724 
F.2d 23 (2d Cir. 1983); In Re United States, 713 F.2d 105 (5th Cir. 
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    \489\ Extradition Act 1985, Section 17.
    \490\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \491\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \492\ Extradition Law of 1985, Section 16(5).
    \493\ In the United States, the Secretary of State has the 
authority to consent to a waiver of the rule of specialty. See 
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
    \494\ Cf. Article 16, US-Netherlands Extradition Treaty, signed at 
the Hague June 24, 1980, entered into force September 15, 1983 (TIAS 
10733).
    \495\ See Article 20, U.S.-Jordan Extradition Treaty, done at 
Washington, March 28, 1995, entered into force July 29, 1995; Article 
19, U.S.-Belgium Extradition Treaty, signed at Brussels April 27, 1987, 
entered into force September 1, 1997; Article 24, U.S.-Switzerland 
Extradition Treaty, signed at Bern Nov. 14, 1990, entered into force 
September 10, 1997 ; Article 18, U.S.-Philippines Extradition Treaty, 
signed at Manila Nov. 13, 1994, entered into force November 22, 1996; 
Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest Dec. 1, 
1994, entered into force March 18, 1997.
    \496\ Extradition between the U.S. and St. Vincent and the 
Grenadines is governed by the U.S.-U.K. Extradition Treaty (hereinafter 
``the 1972 Treaty''), signed June 8, 1972, entered into force January 
21, 1977 (28 UST 227, TIAS 8468), which continued in force after St. 
Vincent and the Grenadines became an independent nation on October 27, 
1979.
    \497\ ``An Act to Make Provision for the return from Saint Vincent 
and the Grenadines of persons found therein who are accused or, or have 
been convicted of, offenses in other countries and whose return is 
requested by such other countries and for matters relating thereto,'' 
of December 27, 1989 (hereinafter ``the Fugitive Offenders Act 1989''). 
The key sections of the Fugitive Offenders Act 1989 that are germane to 
the interpretation and implementation of the Treaty are discussed in 
more detail in this Technical Analysis. The St. Vincent delegation 
stated that in general in St. Vincent and the Grenadines treaties do 
not take priority over statutes, and that its courts are bound by the 
Act, though the Government is bound by the Treaty. The application of 
St. Vincent's extradition law, however, is ``subject to any 
limitations, conditions, exception or qualifications as are necessary 
to give effect to [the] treaty. . .'' Section 39(2), Extradition Act 
1981, so St. Vincent's delegation assured the United States delegation 
that the terms of the Treaty would be given full effect.
    \498\ See Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \499\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \500\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \501\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \502\  Section 20, Fugitive Offenders Act 1989.
    \503\ Similar provisions appear in almost all recent U.S. 
extradition treaties. Section 7(1)(a) of the Fugitive Offenders Act 
1989 requires that extradition be denied if the crime is ``an offense 
of a political character,'' but the delegations agreed that the two 
terms are equivalent.
    \504\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \505\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4), 
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered 
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 
4, US-Netherlands Extradition Treaty, signed at The Hague June 24, 
1980, entered into force September 15, 1983 (TIAS 10733); and Article 
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13, 
1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \506\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \507\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \508\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March 
28, 1995, entered into force July 29, 1995.
    \509\ Article IX(1), 1972 Treaty. A similar requirement is found in 
Section 12(4), Fugitive Offenders Act 1989.
    \510\  See Extradition Act 1980, Section 17(1).
    \511\  Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
    \512\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \513\ See Article VII(5) of the 1972 Treaty.
    \514\ This provision is consistent with requirements imposed by 
U.S. law. See Title 18, United States Code, Section 3190.
    \515\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition unless 
the treaty specifically provides to the contrary. Freedman v. United 
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. 
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
    \516\ Similar provisions appear in all recent U.S. extradition 
treaties. The topic of provisional arrest is dealt with in section 11, 
Fugitive Offenders Act 1989.
    \517\ This is intended to provide more specificity than Section 11 
of the Fugitive Offenders Act 1989, which states that when a magistrate 
in Saint Vincent and the Grenadines has ordered a provisional arrest 
the magistrate may fix a reasonable period (of which the court shall 
give notice to the Governor General) after which [the fugitive] will be 
discharged. . . .``
    \518\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
    \519\ Title 18, United States Code, Section 3188.
    \520\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \521\ Section 17, Fugitive Offenders Act 1989.
    \522\ Thus, the treaty is consistent with Section 18(1) of the 
Fugitive Offenders Act 1989 and provides more flexibility than the 
Article VI of the 1972 Treaty, which states that extradition ``shall 
not be granted'' in these circumstances.
    \523\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \524\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \525\ Section 25, Fugitive Offenders Act 1989.
    \526\ Similar provisions are found in all recent U.S. extradition 
treaties.
    \527\ In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195, 1199 (D.D.C. 1979). For Saint Vincent and the Grenadines, it is 
the Governor-General, pursuant to Section 7(3), Fugitive Offenders Act 
1989.
    \528\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \529\ A similar provision is found in Section 13, Fugitive 
Offenders Act 1989.
    \530\ Cf. Article 16, US-Netherlands Treaty, supra note 11.
    \531\ A similar provision is in all recent U.S. extradition 
treaties.
    \532\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 
14; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels 
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered 
into force September 10, 1997 ; Article 18, U.S.-Philippines 
Extradition Treaty, signed at Manila Nov. 13, 1994, entered into force 
November 22, 1996; Article 21, U.S.-Hungary Extradition Treaty, signed 
at Budapest Dec. 1, 1994, entered into force March 18, 1997.
    \533\ Extradition between the U.S. and Zimbabwe was governed by the 
Treaty for the Mutual Extradition of Criminals between the United 
States and Great Britain, signed at London December 22, 1931, entered 
into force June 24, 1935, 47 Stat. 2122, TS 849, from 1935 until April 
18, 1980, when Zimbabwe declared its independence from the United 
Kingdom.
    \534\ Zimbabwe Extradition Act 1982 (hereinafter ``the Extradition 
Act 1982''), as amended by the Extradition Amendment Act 1990 and the 
Extradition Amendment (No. 2) Act, 1990. The key sections of the 
Extradition Act 1982 that are germane to the interpretation and 
implementation of the Treaty are discussed in more detail in this 
Technical Analysis. The Zimbabwe delegation told the United States that 
in case of conflict between the treaty and internal Zimbabwe law 
Zimbabwe courts would apply the law. There are only minor differences 
between the Treaty and the Extradition Act 1982, however, and it is 
expected that Zimbabwe officials will take the necessary legal steps to 
direct, under Sections 3 and 13 of the Extradition Act 1982, that the 
Treaty have the force of law in Zimbabwe.
    \535\ See, Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
    \536\ See Section 2, Extradition Amendment (No. 2) of 1990.
    \537\ Other types of economic activity that may have criminal 
ramifications, such as violations of the Sherman Antitrust Act, may not 
be considered criminal under Zimbabwe's laws, which has no counterpart 
legislation. Also, Zimbabwe's securities markets are not yet regulated 
by Government, so violations of our Securities and Exchange Act or 
other securities regulations may not have specific counterpart offenses 
under Zimbabwe law. However, extradition may be granted nevertheless if 
the substantive conduct alleged to have been committed would amount to 
fraud or other prohibited conduct under Zimbabwe law.
    \538\ See Title 31, U.S. Code, Sections 321, 5311-5314, 5316- 5322.
    \539\ Restatement (Third) of the Foreign Relations Law of the 
United States Sec.  402 (1987); Blakesley, United States Jurisdiction 
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 
1109 (1982).
    \540\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La 
Paz June 27, 1995, entered into force November 21, 1996.
    \541\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of 
State to extradite U.S. citizens pursuant to treaties that permit (but 
do not require) surrender of citizens, if other requirements of the 
Treaty have been met.
    \542\ See Section 3(2)(b), Extradition Act 1982.
    \543\ Similar provisions appear in all recent U.S. extradition 
treaties. Section 15(b), Extradition Act 1982, provides that 
extradition shall be denied if the crime is ``an offense of a political 
character.'' The Zimbabwe delegation assured the United States that 
this is identical to the political offense defense.
    \544\ Done at Vienna December 20, 1988, entered into force November 
11, 1990.
    \545\ There are similar provisions in many U.S. extradition 
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, and entered into force July 7, 1991; Article 
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970, 
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); 
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June 
24, 1980, entered into force September 15, 1983 (TIAS 10733); and 
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July 
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
    \546\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. 
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916 
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \547\ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 
1988).
    \548\ Similar provisions appear in many treaties, including Article 
5 of the U.S.-Jordan Extradition Treaty, signed at Washington March 28, 
1995, entered into force July 29, 1995.
    \549\ This language is similar to Article 8(3)(b) of the United 
States' extradition treaty with the Bahamas.
    \550\ Extradition Act 1982, Section 4(2)(c); see also Section 
17(1)(c).
    \551\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \552\ Title 18, United States Code, Section 3190.
    \553\ Similar provisions appear in all recent U.S. extradition 
treaties. The topic of provisional arrest is dealt with in Sections 12 
and 25 of Zimbabwe's Extradition Act 1982.
    \554\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
    \555\ Extradition Act of 1982, Section 12(6).
    \556\ Title 18, United States Code, Section 3188.
    \557\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th 
Cir. 1978).
    \558\ Section 9(2), Extradition Act 1982. The fugitive may be 
released if the foreign authorities do not take custody within 15 days 
of the date set by the Minister.
    \559\ Under United States law and practice, the Secretary of State 
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
    \560\ Thus, this provision is consistent with Section 28, 
Extradition Act of 1982.
    \561\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \562\ Extradition Act of 1982, Section 29.
    \563\ Similar provisions are found in all recent U.S. extradition 
treaties, and in the Extradition Act 1982, Sections 30-31.
    \564\ In the U.S., the Secretary of State has the authority to 
grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195, 1199 
(D.D.C. 1979). In Zimbabwe, the Minister of Home Affairs has such 
authority.
    \565\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
    \566\ A similar provision is in all recent U.S. extradition 
treaties, and is authorized by Section 23, Extradition Act 1982.
    \567\ This provision supersedes the contrary provision in Title 18, 
United States Code, Section 3195.
    \568\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty, 
signed at Brussels April 27, 1987, entered into force September 1, 
1997.

                                
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