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Writers such as Grotius and Vattel support the proposition that extradition is a matter of "international obligation." 44 Therefore, even in the absence of a treaty a nation is obligated to extradite; or in the alternative, to prosecute the fugitive in accordance with the laws of the state of refuge. Either procedure is considered sufficient for the administration of justice. 45 Grotius believed that this obligation to extradite created a legal duty, not merely a moral duty that a state could choose to obey at a whim. 46 Thus, the bottom line for writers such as Grotius and Vattel appears to be justice. Their justice is driven by a higher sense of duty and obligation and does not require the presence of a treaty before it exists. Nations should never hesitate to extradite even in the absence of a treaty or formal request. This brand of extradition envisions nations acting out of inherent duties and legal obligations, as opposed to political necessity, tradition or custom.
The opposing, as well as currently prevailing view takes the position that "[n]o state has an absolute and perfect right to demand of another the delivery of a fugitive criminal." 47 In other words, no international obligation exists which requires the requested state to surrender the fugitive criminal, or prosecute in accordance with its laws. The duty to extradite in these circumstances is viewed as moral, not legal. For example, in Factor v.
Laubenheimer, the court held, [wihile a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, and it has been said that it is under a moral duty to do so,... the legal right to demand his extradition and the correlSee MOORE, supra note 38, at 245.
46. See id. at 245-46.
47. Commonwealth v. Deacon. 10 S. & R. 125 (1823).
ative duty to surrender him to the demanding country exists only when created by treaty.8 Accordingly, the only obligation existing in the absence of a treaty is "imperfect," creating a moral, but not legal duty to extradite. 4 The only method to create an absolute duty to extradite is through the signing of a treaty ° The dominance of this latter view has provided the necessary impetus for the increase in the formation of modern-day mutual extradition treaties.
Extradition in the absence of a treaty always hinges on the principles of "courtesy, good will, and mutual convenience." 52 Since the prevailing view fails to recognize an absolute duty or obligation in the absence of formal treaty relations, comity and common courtesy must serve as the sole basis for surrender where no treaty exists.0 On several occasions states which require a treaty before extraditing have been forced to request extradition based on courtesy with countries where no treaty of extradition exists.
For example, in 1828 the United States requested the return of a fugitive who had escaped to Mexico after committing several murders in the state of Tennessee.m Such a request is exceptional since the United States, as with most common law states, possess no authority to reciprocate in the absence of a treaty. 55 Consequently, the request requires an appeal to Mexico's discretion and sense of justice, since the United States can not promise or guarantee similar reciprocity in the future. 56
2. Why Extradite in the Absence of a Treaty?
Several reasons exist for choosing to extradite in absence of a treaty. First, some states simply prefer as a matter of principle or convenience to enter into treaties only with those countries that require such agreements before extradition can take place. If the requested state does not require a treaty before it will extradite, the requesting state may choose to avoid any
such formal obligations. 7 Second, it seems unnecessary to enter into treaties with countries where extradition is a rarity.5 Third, states do not want to become a resting place for criminals and will often enact legislation permitting extradition in the absence of a treaty as a combatant to unsuspected entry. This will enable the country of refuge to expel any unwelcome fugitives upon request regardless of the existence of a treaty with the receiving state, and without the concern of guaranteeing reciprocity to that state in the future. 9 Fourth, with certain rare exceptions, such as the Netherlands, Zaire, Ethiopia, Israel, and Turkey, extradition in civil law countries in the absence of formal treaty obligations is widely recognized. 60 Therefore, when two civil law states are involved there is little need to rely on a treaty of extradition. Finally, states with few economic ties or dependencies may prefer to avoid the binding force of a treaty. In such cases there is little need to maintain good relations for reasons of future economic self-gain. 61 Clearly, the overriding reasons for extradition in the absence of a treaty are self-interest, convenience and practicality. Extradition without a treaty adds a measure of flexibility not typically found within the confines of formalistic treaty relations. 2 Because nations not recognizing an absolute duty or obligation to extradite will not be bound to extradite in the absence of specific treaty relations, the major disadvantage to extradition in the absence of a treaty is the lack of certainty and consistency in which extradition will occur.0 While guarantees of reciprocity generally accompany a request for extradition in the absence of a treaty, these guarantees are not absolute. As a result, there is less reason to abide by a promise or guarantee that is outside the general framework of the duties and obligations created by a treaty.
B. Extradition by Treaty From its earliest inception the use of the treaty as a means extradition has remained an effective means of final surrender.
In fact, extradition by treaty is by far the most common form of this practice in existence. 6 5 For example, as of 1992 the United States had entered into more than ninety-eight bilateral treaties with other nations. 66 In addition, many states rely on treaties as the sole means of surrender, since such treaties embody more formal and binding reciprocal relationships.
Furthermore, a treaty is needed in cases of extradition not only to formally bind each nation, but also to provide due process and protect certain fundamental rights of the criminal detainee.
M. Cherif Bassiouni offers the following definition of treaty, [a] written agreement by which two or more states create or intend to create a relation between themselves operating within the sphere of international law. Though international law prescribes no special form or procedure for the making of an international agreement, yet a treaty which is an international agreement creates certain legal rights and obligations between the parties and binds them to observe the rules of conduct laid down therein as law.
Thus, for the United States and other common law countries, the existence of a treaty signifies the existence of formal obligations and legal rights which require one nation to extradite upon request. Treaties, in essence, create the underlying goals of extradition.7" This is quite contrary to the view of Grotius mentioned earlier, which states that such obligations and duties exist regardless of the presence of a treaty.
The following discussion regarding the procedures involved in bringing a request, and the various provisions and elements typically found within most treaties further illustrates the many problems currently plaguing the practice of extradition.
1. Procedure Any request for extradition by means of a treaty must follow certain specific procedures. Sources of procedure can be found
65. Buser, supra note 5, at 362.
67. See SHEARER, supra note 2, at 24-25; see also M. BASSIOUNI, supra note 2, at 13See M. BASSIOUNI, supra note 2, at 30-34.
69. Id. at 28 (emphasis added).
70. Another question is whether the treaty is self-executing, or whether it requires some form of legislation for its implementation. Id. at 30-31. For those countries that view extradition treaties as self-executing, international legal doctrine requires no 'additional convention or form of legislation before the treaty can take effect. In other countries, extradition treaties require some form of legislation before they will take effect. See id.
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in the following: (1) the treaty itself, (2) specific extradition legislation, or (3) other generally applicable municipal laws. 71 The treaty is by far the most important and logical source of proce- 72 dure since it contains the truest expression of the parties' intent.
The requesting nation must first submit a complaint in writing to a court of general jurisdiction in the requested nation stating that the individual and crime are subject to the provisions of the existing extradition treaty.7 3 This request must pass through the appropriate diplomatic channels as specified by the treaty.
In addition, it must be accompanied by supporting documents, affidavits and other evidence which allow the requesting nation to meet its burden of proof. 4 Depending on the severity of the crime and potential flight risk, this formal request may be preceded by a request for provisional detention or detainment, which provides the requesting nation with additional time to process the request.7 5 It is important for a requesting nation to strictly adhere to established procedures since some states make 76 second a inadmissible where the first request has failed.
request Once the proper procedures for submission have been followed, an extradition magistrate will then hear the evidence and determine if the request has satisfied the necessary elements of the treaty. 77 If the magistrate determines that the evidence has indeed satisfied the necessary elements, the subject is then labeled extraditable and the order is certified for approval by the Secretary, who alone has authority for final surrender. Absent such certification the Secretary has no power to surrender. 7s Assuming that the request has satisfied the necessary requirements of the treaty, the subject is then returned to the requesting country. However, if the Secretary through the use of executive discretion decides that the treaty did not require extradition in the particular case, final surrender will be denied.
71. SHEARER, supra note 2, at 195.
73. Id. at 200; see J. Richard Barnett, Extradition Treaty Improvements to Combat Drug Trafficking, 15 GA. J. INT'L. & COMP. L. 285, 300-01 (1985).
75. Id. at 200-01.
76. Id. at 207.
77. Note, Executive Discretion in Extradition, 62 COLUM. L. REV. 1313, 1314 (1962).
78. Id. at 1313-15.
79. See id. at 1314-15. See infra part IV.
HeinOnline -- 3 Regent U. L. Rev. 53 1993 REGENT UNIVERSITY LAW REVIEW [Vol. 3:43 The costs and expenses involved in bringing a request for extradition are considerable. Not only must a requesting nation hire an attorney to represent its interests, but if extradition is granted, the requesting state is typically required to provide for transportation expenses for the criminal. Such expense often create a barrier to the use of extradition.P Recent changes in documentation and presentation of evidence have somewhat reduced the financial burdens of the procedure. 81 However, many changes are still required before the burden of cost will no longer make extradition an inaccessible tool for many countries.
2. Provisions and Principles: the General Framework
As stated above, the prevailing practice of extradition is implemented through the use of bilateral treaties. Such modern treaties tend to have certain provisions and elements in common.
Each is characteristic of the tradition and history of this practice.
Most extradition treaties contain six basic provisions, each expressly agreed upon by the parties. The requesting nation must present enough evidence during the preliminary hearing to convince the magistrate that each has been fully satisfied. If the requesting nation fails to meet this burden, the magistrate may deny certification and the subject will be labeled 'not extraditable.'83 The mutual extradition treaty between Switzerland and the United States will be used to illustrate the six common treaty provisions [hereinafter referred to as the U.S. - Swiss Treaty].84
The first provision typically found is territoriality. Simply stated, territoriality requires that the offense for which extraSHEARER, supra note 2, at 210-11.
81. Barnett, supra note 73, at 310-11.
82. Wise, supra note 3, at 712.
83. See generally Note, supra note 77, at 1313-26.
84. Treaty on the Extradition of Criminals, May 14, 1900, U.S. - Switz., 31 Stat.
1928 [hereinafter U.S. - Swiss Treaty].
dition is sought be committed within the territorial boundaries of the requesting state.8 5 This provision is found in Article I of bind themselves the U.S. - Swiss Treaty: "[t]he Government[s]...
mutually to surrender such persons as, being charged with or convicted of any of the crimes or offenses enumerated hereinafter...committed in the territory of one of the contracting States, shall be found in the territory of the other State."86 Problems often arise over the question: What is territory?
Interpretation of matters such as territory of airspace and territory of waterways only adds to the confusion.8 7 Furthermore, some nations, such as France, attach criminal jurisdiction to the fugitive wherever he may be located; while others view territoriality more restrictively, recognizing jurisdiction only within their borders. 88 Additional problems arise for offenses committed outside the territory that have an effect within the territory.