[Senate Report 105-101]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 196
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-101
_______________________________________________________________________


 
            EXTRADITION TREATIES INTERPRETATION ACT OF 1997

                                _______
                                

                October 7, 1997.--Ordered to be printed

_______________________________________________________________________


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

                              R E P O R T

                         [To accompany S. 1266]

    The Committee on Foreign Relations having had under 
consideration an original bill to interpret the term 
``kidnaping'' in extradition treaties to which the United 
States is a party, reports favorably thereon and recommends 
that the bill do pass.

                         I. Purpose of the Bill

    The purpose of the bill is to authorize, for the purposes 
of any extradition treaty to which the United States is a 
party, the interpretation of the terms ``kidnaping'' and 
``kidnapping'' to include parental kidnapping. It is designed 
to remedy a disparity in U.S. extradition law--as it relates to 
the crime of parental abduction--that has arisen in several 
dozen extradition treaties to which the United States is a 
party.

                             II. Background

    The criminalization of parental abduction--where one parent 
takes a child in violation of law, a custody order, or other 
legally binding agreement (and against the wishes of the other 
parent)--is a relatively recent development in U.S. criminal 
law. Prior to the mid-1970s, parental abduction was generally 
considered a family law matter not covered by criminal law. In 
the last two decades or so, U.S. criminal law has evolved 
significantly. Every State in the Union as well as the District 
of Columbia now makes the act of parental abduction a crime. 
Congress recognized the need to combat this crime by passing 
the International Parental Kidnapping Crime Act of 1993 (Pub. 
L. 103-173; 107 Stat. 1998; 18 U.S.C. 1204). There, Congress 
provided for imprisonment of up to 3 years, and fines of up to 
$250,000, whenever someone removes a child from the United 
States, or retains a child (who has been in the United States) 
outside the United States with intent to obstruct the lawful 
exercise of parental rights.
    As a consequence of this development in the law, a 
disparity has been created in U.S. extradition law. The 
disparity occurs in a subset of extradition treaties referred 
to as ``list'' treaties--so named because they specifically 
enumerate, or list, the crimes under the treaty that are 
considered extraditable offenses. (The more recent trend in 
U.S. treaty practice is the ``dual criminality'' treaty, which 
avoids the limiting nature of the ``list'' treaties by allowing 
extradition in any case where both countries make a practice a 
felony. By coincidence, the shift from list treaties to dual 
criminality treaties roughly coincides with the evolution of 
U.S. criminal law described in the foregoing paragraph; that 
is, since the late 1970s, most U.S. extradition treaties have 
contained a ``dual criminality'' provision.).
    The standard ``list'' treaty includes, among the offenses 
that are considered extraditable, the following crimes: 
``kidnapping; child stealing; abduction, and false 
imprisonment.'' But because the act of ``parental abduction'' 
was not considered a crime when the list treaties were 
negotiated, and consented to by the Senate, it has been the 
consistent practice of the United States to interpret the list 
treaties so as to exclude parental abduction. Indeed, this has 
been the practice of the Department of State for at least the 
past two decades, from Presidents Ford through Clinton. The 
following examples illustrate the point.
    In 1976, in promulgating a model ``list'' treaty, the State 
Department listed the aforementioned crimes (i.e., kidnapping, 
child stealing) as among those extraditable. In accompanying 
comments, the State Department Legal Adviser specifically noted 
that `` * * * . extradition is an instrument of criminal law 
enforcement, and it is believed that it might be frequently 
misused if applied to domestic relations problems such as 
custody disputes.'' 41 Fed. Reg. 51897 (Nov. 24, 1976).
    In 1978, in a letter to the Governor of California, the 
State Department stated that ``[e]ven when the act of the 
parent is in possible contempt of court and is considered to 
constitute a felony such as kidnapping or child stealing, it is 
not considered kidnapping or child stealing within the meaning 
of these terms in extradition treaties. These terms are 
intended to reach abduction by persons other than a parent of 
the person kidnaped.'' 1978 Digest of United States Practice in 
International Law 391.
    In 1986, the Reagan Administration applied this rule in a 
specific extradition case requested by Canada. In rejecting the 
Canadian request, the State Department concluded that:

        The terms of the [U.S.-Canada] treaty (negotiated in 
        1971) do not and were not intended to encompass 
        parental child abductions. It is worth noting * * * 
        that the United States has not to date granted any 
        foreign extradition requests for the offense of 
        parental child abduction.

The Department also rejected an argument, proffered by Canada, 
that because the law was evolving in the United States--that 
is,because it had by then become a felony in several states--
the treaty terms could now be construed as encompassing parental child 
abduction. I Cumulative Digest of United States Practice in 
International Law, 1981-1988 700-01 (1993).
    The interpretation was recently reaffirmed by the Clinton 
Administration. In an October, 1996 diplomatic note, the State 
Department, in rejecting an extradition request, stated that 
the terms in the bilateral extradition treaty at issue did not 
``at the time the treaty was concluded encompass parental child 
abduction.''
    This interpretation is limited to the list treaties. No 
such limitation is imposed upon dual criminality treaties, 
because, as stated previously, such treaties provide for 
extradition whenever both parties make the offense a felony.
    The changes in U.S. criminal law as to parental kidnapping 
have thus created a disparity in U.S. extradition law and 
practice. Parental abduction is considered to be an 
extraditable offense under dual criminality treaties (as long 
as the other party treats the act as a felony offense), but it 
is not considered to be an extraditable offense in the list 
treaties. The disparity, several state attorneys general have 
written, ``results in a legal atmosphere that encourages 
parents to remove their children from this country to avoid 
prosecution.'' \1\
---------------------------------------------------------------------------
    \1\ Letter from Attorneys General of California, Florida, and 
Texas, on behalf of National Assoc. of Attorneys General, to the U.S. 
Attorney General, Mar. 4, 1997.
---------------------------------------------------------------------------
    Seeking to remove this disparity, the Clinton 
Administration has requested authority to adopt a new 
interpretation of the term ``kidnapping'' in the list treaties 
so that it encompasses parental abduction. The Committee 
strongly supports this request in order to harmonize U.S. 
extradition law and practice, and to protect the interests of 
children and parents who are victims of this crime.

                         III. Committee Action

    The Committee considered the bill on September 24, 1997. 
With a majority of the members present, the Committee voted 
unanimously, by voice vote, to report the bill favorably.

                         IV. Committee Comments

Scope of Executive Power

    Any proposal regarding the adoption of a new treaty 
interpretation implicates the scope of the Executive's power to 
interpret treaties. The Committee, and the full Senate, 
exhaustively reviewed this important question nearly a decade 
ago during consideration of the Treaty on Intermediate Nuclear 
Forces, known as the INF Treaty. See Exec. Rept. 100-15 
(hereafter ``INF Treaty Rept.'' ).
    Under the U.S. Constitutional system, the treaty-making 
power is shared between the President and the Senate. (Article 
II, section 2, clause 2). Once a treaty is consented to by the 
Senate, and ratified by the President, the President is charged 
with ``faithfully executing'' it. In this role, the President 
has the responsibility--absent adjudication--to interpret 
treaties. But as the Committee stated in its report on the INF 
Treaty, ``the Constitution permits the President, acting alone, 
only to interpret existing treaties--not to make new ones. To 
remain within the scope of his constitutional power, the 
President must genuinely be engaged in the act of treaty 
interpretation.'' INF Treaty Rept., at 438.
    The principles of treaty interpretation, necessarily 
derived from the Constitution, were embraced by the Senate in 
1988, and reaffirmed by the Senate on several occasions 
since,\2\ are set forth in Condition (1) in the Resolution of 
Ratification of the INF Treaty. In brief, it states that the 
United States shall interpret treaties ``in accordance with the 
understanding of the Treaty shared by the Executive and the 
Senate at the time of Senate consent to ratification.'' Such 
``common understanding'' is based, first, on the text of the 
treaty and, second, the ``authoritative representations'' 
provided by the Executive to the Senate during consideration of 
the treaty. Any new interpretation that departs from this 
common understanding shall only be adopted ``pursuant to a 
subsequent treaty or protocol, or the enactment of a statute.'' 
\3\ The Executive has previously affirmed its acceptance of 
these principles.\4\ These principles apply regardless of 
whether the Senate chooses to say so in its consideration of 
any particular treaty.
---------------------------------------------------------------------------
    \2\ The Senate has reaffirmed these principles during consideration 
of the CFE, START I and START II, and Open Skies Treaties, the Chemical 
Weapons Convention, and the CFE Flank Agreement. See Exec. Rept. 102-
22, at 81 (CFE Treaty); Exec. Rept. 102-53, at 96, 101-02 (START I 
Treaty); Exec. Rept. 103-5, at 18 (Open Skies Treaty), Exec. Rept. 104-
10, at 45, 49 (START II Treaty); 143 Cong. Rec. S3651-57 (daily ed. 
Apr. 24, 1997) (Chemical Weapons Convention); 143 Cong. Rec. S4476-78 
(daily ed. May 14, 1997) (CFE Flank Agreement).
    \3\ The full text of the Condition is set forth at 134 Cong. Rec. 
S12849 (daily ed. May 26, 1988).
    \4\ See The START Treaty, Hearings before the Senate Comm. on 
Foreign Relations, 102d Cong., 2d Sess., Part 1, at 506-07 (1992); Open 
Skies Treaty, Exec. Rept. 103-5, at 16.
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    It cannot be disputed that the adoption of an 
interpretation of the term ``kidnapping'' in the list 
treaties--so as to include parental abduction--represents a 
departure from settled U.S. practice. As described above, it 
has been the consistent practice of the Executive Branch to 
interpret the list treaties to exclude parental abduction.
    The Executive was almost certainly correct in reaching this 
interpretation. In presenting the various list treaties to the 
Senate in the period before the 1970s, it is undoubtedly the 
case that both the Executive and the Senate understood the term 
``kidnapping'' to exclude parental abduction. No exhaustive 
research of the ratification debate of every treaty at issue is 
necessary. Instead, resort to the text, and standard 
interpretive methods, will suffice.
    Congress is presumed to know the existing body of law when 
it enacts a statute. (The same presumption applies when the 
Senate consents to a treaty). Statutory terms are ``generally 
presumed to have [their] common law meaning.'' Taylor v. United 
States, 495 U.S. 575, 592 (1990). In other words, when:

        Congress borrows terms of art in which are accumulated 
        the legal tradition and meaning of centuries of 
        practice, it presumably knows and adopts the cluster of 
        ideas that were attached to each borrowed word in the 
        body of learning from which it was taken and the 
        meaning its use will convey to the judicial mind unless 
        otherwise instructed. In such case, absence of contrary 
        direction may be taken as satisfaction with widely 
        accepted definitions, not as a departure from them.

Morissette v. United States, 342 U.S. 246, 263 (1952).
    Therefore, because parental child abduction was not 
generally considered to be an either common law or statutory 
crime when the list treaties were approved, then it must be 
concluded that the term ``kidnapping,'' as used in the list 
treaties, at the time of consent by the Senate, did not cover 
parental child abduction. And it is the moment of the Senate's 
consent, not a subsequent moment, that must be examined in 
discerning the meaning of treaty terms and whether a shared 
understanding exists. As the Committee said in its report on 
the INF Treaty, ``the meaning of the treaty that the President 
ratifies is the meaning on which there existed a meeting of the 
minds between the President and the Senate at the time of 
Senate consent.'' INF Treaty Rept., at 438.
    The absence of any discussion regarding the meaning of the 
term ``kidnapping'' in a ratification record is of no 
consequence. Indeed, the lack of discussion would hardly be 
surprising; when a term is well understood, there is no reason 
for the Senate and the Executive to engage in a dialogue about 
its meaning. Otherwise, the Senate would be required to conduct 
an exhaustive exchange with the Executive about the meaning of 
every term in a treaty. \5\
---------------------------------------------------------------------------
    \5\ See The START Treaty, Hearings before the Senate Comm. on 
Foreign Relations, 102d Cong., 2d Sess., Part 1, at 506-07 (1992). 
(Executive Branch agrees that it is unnecessary for the Senate to 
question Executive Branch witnesses with respect to each clause in a 
treaty in order to establish shared understanding of treaty's meaning.)
---------------------------------------------------------------------------
    The foregoing may be summarized as follows. In proposing to 
adopt a new interpretation of the term ``kidnapping'' in the 
list treaties, the Executive seeks to make a 180 degree turn. 
In so doing, it effectively seeks to revise the common 
understanding of a treaty term--an understanding which the 
Executive clearly embraced, given the two decades of Executive 
practice described previously. Such a new construction of a 
treaty term would not be within the bounds of 
``interpretation.'' The Committee believes that, absent 
authorization by the Senate (or in this case, Congress as a 
whole), the Executive is without the power to so construe the 
treaty term.
    The Committee commends the Executive for promptly 
consulting with the Committee when this issue arose, and for 
its cooperation and assistance in drafting this legislation. 
The Constitution provides that the Executive and the Senate are 
partners in the treaty-making process; the cooperation followed 
in this instance is a model of how this partnership should work 
in practice.

Enactment of a Statute

    Of course, the Treaty Power is vested by the Constitution 
in the President and the Senate. Thus, the ideal course here 
would be for the Executive to renegotiate the numerous treaties 
at issue, and submit the amended treaties (or a protocol to the 
existing treaties) to the Senate for its advice and consent. 
But Condition (1) to the INF Treaty recognized the practical 
reality that the later enactment of a statute, as a matter of 
U.S. law, can provide the authority for the President to adopt 
a new interpretation of a treaty. Under the ``last in time'' 
doctrine, a later Act of Congress can prevail over an earlier 
treaty when the two conflict, e.g., The Cherokee Tobacco, 78 
U.S. (11 Wall.) 616 (1870), Whitney v. Robertson, 124 U.S. 190 
(1888), although the general rule of construction is that 
Congress must make a clear statement that it intends to modify 
or revoke treaty terms. E.g., Trans World Airlines, Inc. v. 
Franklin Mint Corp., 466 U.S. 243, 252 (1984), Weinberger v. 
Rossi, 456 U.S. 25, 32 (1982).
    Resort to enactment of a statute is necessary here, for two 
related reasons. First, it would be impractical to expect the 
Executive to renegotiate dozens of extradition treaties in 
order to address this one issue. Second, renegotiation of 
numerous treaties would necessarily delay prompt action by the 
Executive to address a problem of considerable importance.
    The Committee wishes to make it expressly clear that it 
intends for this Act to provide the authority for the Executive 
to reverse its longstanding practice of interpreting the term 
``kidnapping,'' as used in extradition treaties, to exclude 
parental abduction. The Committee believes that the term 
``kidnapping'' in such treaties should be in harmony with the 
law of each of the 50 states, and the federal government, all 
of which criminalize parental abduction. In sum, as the U.S. 
criminal law has evolved to make the act of parental abduction 
a crime, so, too, must U.S. extradition law and practice.

                     V. Section-by-Section Analysis

Section 1. Short Title

    The short title of the bill is the ``Extradition Treaties 
Interpretation Act of 1997.''

Section 2. Findings

    This section recites several findings regarding the 
evolution of U.S. criminal law as it relates to parental 
abduction and the disparity in U.S. extradition law described 
in the comments above.

Section 3. Interpretation of Extradition Treaties

    This is the operative section of the Act. It authorizes, 
for the purpose of any extradition treaty to which the United 
States is a party, the interpretation of the terms 
``kidnaping'' and ``kidnapping'' to include international 
parental kidnapping. Out of an abundance of caution, both 
possible spellings of the word are used.

Section 4. International Parental Kidnapping Defined

    The Act defines the term ``international parental 
kidnapping,'' using the definition from the International 
Parental Kidnapping Crime Act of 1993, which is codified at 18 
U.S.C. Sec. 1204.

                           VI. Cost Estimate

    In accordance with rule XXVI, paragraph 11(a) of the 
Standing Rules of the Senate, the Committee provides the 
following estimate of the cost of this legislation prepared by 
the Congressional Budget Office:
                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 7, 1997.
Hon. Jesse Helms,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for the Extradition 
Treaties Interpretation Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Joseph C. 
Whitehill.
            Sincerely,
                                           June E. O'Neill,
                                                          Director.

    Enclosure.

               congressional budget office cost estimate

    The bill would authorize the interpretation of the term 
``kidnapping'' in extradition treaties to include parental 
abduction of a child and its removal across international 
borders with intent to obstruct the lawful exercise of parental 
rights.
    Enactment of the bill could increase slightly the number of 
requests for extradition processed by the Federal government. 
Nevertheless, CBO estimates that the bill would have no 
significant impact on the Federal budget, because the 
additional expenses for processing the new workload would be 
small. Because it would not affect direct spending or receipts, 
pay-as-you-go procedures would not apply.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
and would not affect the budgets of State, local, or tribal 
governments.
    The estimate was prepared by Joseph C. Whitehill. The 
estimate was approved by Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                    Evaluation of Regulatory Impact

    In accordance with rule XXVI, paragraph 11(b) of the 
Standing Rules of the Senate, the Committee has concluded that 
there is no regulatory impact from this legislation.

                        Changes in Existing Law

    In compliance with rule XXVI, paragraph 12 of the Standing 
Rules of the Senate, the Committee notes that there are no 
changes to existing statutes made by this legislation.

                                
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