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Part V. Limitations Upon the Requesting State

Published online by Cambridge University Press:  12 April 2017

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Type
Extradition
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American Journal of International Law , Volume 29 , Issue S1: Supplement. Research in International Law Parts I & II , 1935 , pp. 213 - 219
Copyright
Copyright © American Society of International Law 1935

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References

page 213 note 1 See Moore, Extradition (1891), I,§148–177, pp. 194–259, and authorities there cited; Billot, Traité de l’Extradition (1874), pp. 308–317, 341–346. See also the Resolutions of Oxford (Institut de Droit International), Art. 22, Appendix IV, No. 2, declaring that a government which obtains extradition for a specific act is bound, in the absence of a treaty to the contrary, not to allow the surrendered person to be tried or punished except for that act.

page 214 note 1 E.g. (references are to Appendix VI): Canada, §33, No. 4; France, Art. 7, No. 6; Germany, Art. 6, No. 7; Great Britain, §3 (2), No. 8; Italy, Code of Criminal Procedure, Art. 661, No. 10; Switzerland, Art. 7, No. 13.

page 214 note 2 United States v. Rancher (1889), 119 U. S. 407.

page 214 note 3 Thus the German Supreme Court allowed an appeal from the conviction for the unlawful export of horses when the person was surrendered, without a treaty, by Czechoslovakia for larceny and theft. Reichsgericht decision of April 4, 1921. Entscheidungen des Reichsgerichts in Strafsachen, 55, 284; Annual Digest of Public International Law Cases, 1919–1922, p. 259, Case 182.

page 214 note 4 Appendices III, IV, V.

page 214 note 5 The following treaties do not provide for trial and punishment with the consent of the surrendering State for offenses other than that for which extradition is granted (references are to Appendix I): The treaties of the United States with: Siam, No. 7; Venezuela, No. 13; Latvia, No. 14; Estonia, No. 15; Finland, No. 23; Bulgaria, No. 24; Lithuania, No. 26; Czechoslovakia, No. 31; Poland, No. 57.—(It should be noted, however, that consent of the surrendering State is provided for in the treaties of the United States with Germany, Art. 5, No. 70; and with Austria, Art. 4, No. 71); the treaties of Great Britain with: Latvia, No. 20; Finland, No. 25; Czechoslovakia, No. 26; Estonia, No. 30; Lithuania, No. 46; Albania, No. 47; Iraq, No. 93; Brazil-Paraguay, No. 8; Latvia-Denmark, No. 79. See also the South American Convention of 1911, Appendix III, No. 4; Field's Code, Appendix IV, No. 1; International Law Association Draft, Appendix IV, No. 5; International Penal and Prison Commission Draft, Appendix IV, No. 6; the extradition statutes of Canada, Appendix VI, No. 4, and of Great Britain, Appendix VI, No. 8.

page 214 note 6 (References are to Appendix I): Finland-Latvia, Art. 8, No. 21; Rumania-Czechoslovakia, Art. 12, No. 36; Estonia-Czechoslovakia, Art. 13, No. 37; Latvia-Czechoslovakia, Art. 13, No. 38; Bulgaria-Czechoslovakia, Art. 13, No. 39; Greece-Czechoslovakia, Art. 13, No. 50; Spain-Czechoslovakia, Art. 14, No. 51; Portugal-Czechoslovakia, Art. 14, No. 52; Hungary-Yugoslavia, Art. 6, No. 61; Bulgaria-Greece, Art. 13, No. 62; Bulgaria-Spain, Art. 14, No. 73; Latvia-Spain, Art. 14, No. 74; Denmark-Czechoslovakia, Art. 12, No. 89.

page 215 note 1 (References are to Appendix I): Finland-Sweden, Art. 6, No. 17; Finland-Denmark, Art. 8, No. 18; Switzerland-Uruguay, Art. 6, No. 19; France-Poland, Art. 5, No. 32; Austria-Norway, Art. 6, No. 34; Finland-Norway, Art. 6, No. 35; Belgium-Paraguay, Art. 4, No. 40; Belgium-Estonia, Art. 5, No. 41; France-San Marino, Art. 3, No. 43; Liberia-Monaco, Art. 4, No. 48; Belgium-Czechoslovakia, Art. 13, No. 53; Belgium-Lithuania, Art. 5, No. 56; Belgium-Finland, Art. 5, No. 58; Bulgaria-Turkey, Art. 12, No. 65; Turkey-Czechoslovakia, Art. 16, No. 69; Austria-Sweden, Art. 7, No. 72; Estonia-Denmark, Art. 8, No. 77; Estonia- Sweden, Art. 7, No. 80; Belgium-Poland, Art. 13, No. 85; Belgium-Austria, Art. 10, No. 90; Iraq-Turkey, Art. 13, No. 91. Similar provisions can be found in some of the national extradition statutes, see e.g., Sweden, Art. 11, Appendix VI, No. 12; Switzerland, Art. 7, Appendix VI, No. 13. The only exception to the rule of specialty provided for in the Montevideo Convention of 1934, is the express consent of the surrendered person, Art. 17 (a), Appendix III, No. 6.

page 215 note 2 (References are to Appendix I): Switzerland-Uruguay, Art. 6, No. 19; Bulgaria-Rumania, Art. 5, No. 22; Hungary-Rumania, Art. 4, No. 27; Liberia-Monaco, Art. 4, No. 48; Colombia-Panama, Art. 9, No. 54; Colombia-Nicaragua, Art. 11, No. 63; Bulgaria-Turkey, Art. 12, No. 65; Austria-Belgium, Art. 10, No. 90; Iraq-Turkey, Art. 13, No. 91. To the same effect see the Central American Convention of 1934, Art. 10, Appendix III, No. 7; the extradition statutes of Sweden, Art. 11, Appendix VI, No. 12; Switzerland, Art. 7, Appendix VI, No. 13. But cf. Turkey-Czechoslovakia, Art. 15, Appendix I, No. 69, which requires the consent of the surrendering State in spite of the agreement of the extradited person.

page 215 note 3 E.g., Iraq-Turkey, Art. 13, Appendix I, No. 91; also in several of the treaties enumerated in footnote 1.

page 215 note 4 No such provision is contained in any of the treaties of the United States or Great Britain. See (references are to Appendix I) the treaties of the United States with: Siam, No. 7; Venezuela, No. 13; Latvia, No. 14; Estonia, No. 15; Finland, No. 23; Bulgaria, No. 24; Lithuania, No. 26; Czechoslovakia, No. 31; Poland, No. 57; Germany, No. 70; Austria, No. 71; Greece, No. 84; the treaties of Great Britain with: Latvia, No. 20; Finland, No. 25; Czechoslovakia, No. 28; Estonia, No. 30; Lithuania, No. 46; Albania, No. 47; Iraq, No. 93; also the following bipartite treaties: Greece-Austria-Hungary, No. 1; Germany-Greece, No. 2; Chile-Colombia, No. 3; Estonia-Latvia, No. 4; Estonia-Lithuania, No. 5; Latvia-Lithuania, No. 6; Brazil-Paraguay, No. 8; Italy-Yugoslavia, No. 10; Italy-Czechoslovakia, No. 12; Finland-Latvia, No. 21; Germany-Czechoslovakia, No. 24; France-Latvia, No. 29; Estonia-Finland, No. 33; Rumania-Czechoslovakia, No. 36; Estonia-Czechoslovakia, No. 37; Latvia-Czechoslovakia, No. 38; Bulgaria-Czechoslovakia, No. 39; Belgium-Latvia, No. 42; Austria-Estonia, No. 45; Albania-Greece, No. 49; Greece-Czechoslovakia, No. 50; Spain-Czechoslovakia, No. 51; Portugal-Czechoslovakia, No. 52; Latvia-Norway, No. 55; Austria-Finland, No. 59; France-Czechoslovakia, No. 60; Hungary-Yugoslavia, No. 61; Bulgaria-Greece, No. 62; Latvia-Hungary, No. 64; Finland-Italy, No. 66; Italy-Venezuela, No. 67; Latvia-Netherlands, No. 68; Bulgaria-Spain, No. 73; Latvia-Spain, No. 74; Germany-Turkey, No. 75; Estonia-Norway, No. 76; Latvia-Sweden, No. 78; Latvia-Denmark, No. 79; Poland-Sweden, No. 81; Italy-Panama, No. 82; Lithuania-Czechoslovakia, No. 83; Netherlands-Czechoslovakia, No. 86; Italy-Brazil, No. 87; Sweden-Czechoslovakia, No. 88; Denmark-Czechoslovakia, No. 89; Austria-Latvia, No. 92; Finland-Netherlands, No. 95. See to the same effect the Caracas Convention, Appendix III, No. 4; the following draft conventions (references are to Appendix IV): Field s Code, No. 1; Oxford Resolutions, No. 2; International Law Association, No. 5; International Penal and Prison Commission, No. 6; the following extradition statutes (references are to Appendix VI): Canada, No. 4; France, No. 6; Germany, No. 7; Great Britain, No. 8; Italy, No. 10. It may be noted that Traver’s Projet, Art. 12, Appendix IV, No. 4, expressly excludes consent of the surrendered person as an exception to the rule of specialty.

page 216 note 1 E.g. (references are to Appendix I): the treaties of the United States with: Siam, No. 7; Venezuela, No. 13; Latvia, No. 14; Estonia, No. 15; Finland, No. 23; Bulgaria, No. 24; Lithuania, No. 26; Czechoslovakia, No. 31; Austria, No. 71; Greece, No. 84; (but there is provision for re-extradition with the consent of the surrendering State in the treaty with Germany, Art. 5, No. 70); the treaties of Great Britain with: Latvia, No. 20; Finland, No. 25; Czechoslovakia, No. 28; Estonia, No. 30; Lithuania, No. 46; Albania, No. 47; Iraq, No. 93; Greece-Austria-Hungary, No. 1; Brazil-Paraguay, No. 8; Italy-Yugoslavia, No. 10; Italy-Czechoslovakia, No. 12; Bulgaria-Yugoslavia, No. 16; France-San Marino, No. 43; Albania-Yugoslavia, No. 44; Albania-Greece, No. 49; Italy-Venezuela, No. 67; Italy-Panama, No. 81; See to the same effect the Bustamante Code, Appendix III, No. 5; the Montevideo Convention of 1933, Appendix III, No. 6; Field’s Code, Appendix IV, No. 1; The Draft of the International Law Association, Appendix IV, No. 5; also the following statutes (references are to Appendix VI): Canada, No. 4; Great Britain, No. 8; Italy, No. 10.

It is interesting that in United States ex rel. Donnelly v. Mulligan (1934), 74 F. (2d), 220, the Circuit Court of Appeals held that the United States-French treaty, which expressly forbade the trying of an extradited person for a different crime from that for which ne was extradited, but which said nothing about re-extradition, by implication prohibited re-extradition since the person claimed was extradited only to be tried for the crime specified. Donnelly was therefore discharged. (However, permission for his re-extradition was obtained from France, and his extradition was then upheld. United States ex. rel. Donnelly v. Mulligan, U. S. Cir. Ct. of App., April 1, 1935.) See Note in Cornell Law Quarterly for April, 1935.

page 217 note 1 Art. 3, Appendix III, No. 6.

page 217 note 2 The United States in ratifying this Convention made reservation to this article.

page 217 note 3 (References are to Appendix I): Finland-Sweden, Art. 6, No. 17; Denmark-Finland, Art. 8, No. 18; Switzerland-Uruguay, Art. 7, No. 19; Estonia-Finland, Art. 7. No. 33; Belgium-Paraguay, Art. 6, No. 40; Austria-Estonia, Art. 6, No. 45; Latvia-Norway, Art. 1, No. 55; Austria-Finland, Art. 6, No. 59; Latvia-Hungary, Art. 7, No. 64; Estonia-Norway, Art. 1, No. 76; Denmark-Estonia. Art. 8, No. 77; Latvia-Spain, Art. 3 (h), No. 74; Latvia-Sweden, Art. 7 (3), No. 78; Poland-Sweden, Art. 10, No. 81; Brazil-Italy, Art. 6, No. 87, also in Appendix V, No. 4; Austria-Latvia, Art. 6, No. 92; Brazil-Switzerland, Art. 3-d, No. 94; Finland-Netherlands, Art. 7, No. 95, also in Appendix V, No. 8.

page 218 note 1 Code of Criminal Procedure, Art. 859(9).

page 218 note 2 The Law of Feb. 11,1922, Art. 9(3).

page 218 note 3 Penal Code, Art. 852(8).

page 218 note 4 4 Code of Criminal Procedure, Art. 854.

page 218 note 5 Art. 11(3), Appendix VI, No. 12.

page 218 note 6 Art. 9, Appendix VI, No. 13.

page 218 note 7 The exception is not provided for in the following treaties (references are to Appendix I): the treaties of the United States with: Siam, No. 7; Venezuela, No. 13; Latvia, No. 14; Estonia, No. 15; Finland, No. 23; Bulgaria, No. 24; Lithuania, No. 26; Czechoslovakia, No. 31; (but in the treaties with Poland, Art. 4, No. 57, Germany, Art. 5, No. 70, Austria, Art. 4, No. 71, and Greece, No. 84, there is such a proviso); Greece-Austria-Hungary, No. 1; Germany-Greece, No. 2; Italy-Yugoslavia, No. 10; Italy-Czechoslovakia, No. 12; France-Latvia, No. 29; Albania-Greece, No. 49; Finland-Italy, No. 66; Italy-Panama, No. 82. See also the Montevideo Convention of 1933, Appendix III, No. 6; Field's Code, Appendix IV, No. 1; the Oxford Resolutions of the Institut de Droit International, Appendix IV, No. 2; Italy, Code of Criminal Procedure, Appendix VI, No. 10.

page 218 note 8 Forty-eight hours in the following treaties (references are to Appendix I): Estonia-Czechoslovakia, Art. 13, No. 37; Latvia-Czechoslovakia, Art. 13, No. 38; Greece-Czechoslovakia, Art. 13, No. 50; Bulgaria-Greece, Art. 13, No. 62. Travers’ Draft, Art. 13, Appendix IV, No. 4, provides for five days. The following three treaties provide for one week (references are to Appendix I): Spain-Czechoslovakia, Art. 14, No. 51; Portugal-Czechoslovakia, Art. 14, No. 52; Latvia-Spain, Art. 14, No. 74. The draft of the International Penal and Prison Commission, Art. 15, Appendix IV, No. 6, provides for fourteen days. The treaty between Denmark and Czechoslovakia, Art. 12, Appendix I, No. 89, provides for four weeks. The following treaties provide for three months (references are to Appendix I): Chile-Colombia, Art. 7, No. 3; Switzerland-Uruguay, Art. 6, No. 19; Liberia-Monaco, Art. 4, No. 48; United States-Poland, Art. 4, No. 57. Three months are also provided in the Bustamante Code, Art. 377, Appendix III, No. 5; and in the extradition statutes of Argentina, Art. 6, Appendix VI, No. 1; Switzerland, Art. 7, Appendix VI, No. 13.

page 218 note 9 See the treaties of Great Britain with (references are to Appendix I): Latvia, No. 20; Finland, No. 25; Czechoslovakia, No. 28; Estonia, No. 30; Lithuania, No. 45; Albania, No. 47; Iraq, No. 93; Iraq-Turkey, No. 91. See also the draft of the International Law Association, Appendix IV, No. 5; and the extradition statutes of Canada, Appendix VI, No. 4; Great Britain, Appendix VI, No. 8.

page 219 note 1 Montevideo Convention of 1933, Art. 15, Appendix III, No. 6; Travers’ Draft of 1928, Art. 10, Appendix IV, No. 4; Draft of International Penal and Prison Commission of 1931, Art. 19, Appendix IV, No. 6; German-Turkish treaty, Art. 16, Appendix V, No. 3; Brazilian-Italian treaty, Art. 13, Appendix V, No. 4; French-Czeehoslovakian treaty, Art. 22, Appendix V, No. 5; Belgian-Polish treaty, Art. 11, Appendix V, No. 6; Colombian-Panama treaty, Art. 15, Appendix V, No. 7; French statute of 1927, Art. 29, Appendix VI, No. 6.

page 219 note 2 See, for example, the multipartite conventions in Appendix III, the United States-British treaty, Art. 12, Appendix V, No. 1; German-Turkish treaty, Art. 14, Appendix V, No. 3. But French-Czeehoslovakian treaty, Art. 22, Appendix V, No. 5, and Belgian-Polish treaty, Art. 11, Appendix V, No. 6, call for a request.

page 219 note 3 Article 12.

page 219 note 4 Article 15.

page 219 note 5 Pan American Convention of 1902, Art. 10, Appendix III, No. 3; South American Convention of 1911, Art. 12, Appendix III, No. 4; Bustamante Code of 1928, Art. 370, Appendix III, No. 5; Montevideo Convention of 1933, Art. 15, Appendix III, No. 6; Central American 47; Iraq, No. 93; Iraq-Turkey, No. 91. See also the draft of the International Law Association, Appendix IV, No. 5; and the extradition statutes of Canada, Appendix VI, No. 4; Great Britain, Appendix VI, No. 8.