Sections of Restatement of the Law Fourth, The Foreign Relations Law of the United States, Jurisdiction, Sovereign Immunity, and Treaties, are on this year’s Annual Meeting Agenda.  With member approval, these three portions of the project will be completed this year.

Section 312 covers Extradition, which is the principal means by which the United States acquires the presence of a defendant who is not already in the United States as well as the process by which the United States sends criminal suspects located in the United States to others countries for trial.

The ALI Adviser regularly shares content of ALI drafts. This is the first Section of the Foreign Relations Law project that will be presented here.

Black Letter and Comment from Tentative Draft No. 3:

§ 312. Extradition

Extraditions to and from the United States typically occur pursuant to treaties that specify the offenses for which extradition may be sought, the grounds on which extradition may be refused, and the offenses for which a person may be tried and punished following extradition.

(1) Extradition to the United States. Upon proper application by the U.S. Department of Justice or a State, the U.S. Department of State may seek the extradition of a person from a foreign state for trial or punishment.

(2) Extradition from the United States. A foreign state may seek the extradition of a person for trial or punishment through an application transmitted to the U.S. Department of State. Upon application by a U.S. Attorney, a U.S. court may issue a certificate determining that the person is subject to extradition only after a hearing in which that person has an opportunity to participate, and only on the basis of a treaty or statute authorizing the requested extradition and a finding of extraditability. The Secretary of State in turn may issue a warrant for surrender of the person to authorities of the requesting state or, in appropriate cases, may decline to do so and order the person released.

Comment:

a. Treaties governing extradition. The United States is a party to extradition treaties with a majority of the world’s states. See 18 U.S.C. § 3181 note (listing treaties of extradition). Customary international law does not require extradition, and many states do not extradite except as bound to do so by treaty. The United States generally extradites only pursuant to treaties. A narrow statutory exception to this practice authorizes the extradition of persons other than citizens, nationals, or permanent residents of the United States who have committed crimes of violence against U.S. nationals in foreign countries, upon certification by the Attorney General. See 18 U.S.C. § 3181(b). A state seeking to obtain custody of a person through extradition commonly is referred to as a requesting state, and the state that is asked to extradite a person is referred to as a requested state. The United States may also extradite to an international criminal tribunal if authorized by statute or legislative-executive agreement.

b. Offenses for which extradition may be sought. U.S. extradition treaties specify the offenses for which extradition to or from the United States may be sought. Extradition is generally authorized only for offenses punishable under the laws of both parties to the treaty by a deprivation of liberty for more than one year. Older treaties sometimes set forth a list of extraditable offenses instead.

c. Grounds on which extradition may be refused. U.S. extradition treaties also specify grounds on which extradition may be refused, including that the accused is charged with a political offense, that the trial in the requesting state might give rise to duplicative liability (non bis in idem), or that the relevant statute of limitations has expired. The Convention Against Torture forbids extradition if it would put the person in danger of being subjected to torture.

d. Doctrine of specialty. Once a person has been extradited pursuant to a treaty, the prosecution may not include charges or penalties that go beyond those specified in the request for extradition without the consent of the rendering state. The doctrine of specialty does not preclude bringing charges arising from conduct of the extradited person that occurs after extradition.

e. Procedure for extradition to the United States. Requests for international extradition originate with federal or State prosecutors but must be conveyed to other states by the U.S. Department of State.

f. Procedure for extradition from the United States. U.S. legislation provides for extradition from the United States to states with which the U.S. has an extradition treaty in force. See 18 U.S.C. § 3181(a). It also provides, in a narrow set of circumstances as an exercise of comity, for the extradition of specified person without a treaty. See 18 U.S.C. § 3181(b); Comment a.

The Department of State transmits extradition requests from foreign states to the Department of Justice, which, upon determining that the request complies with the relevant legal authorities, applies to a federal court for an arrest warrant for the person subject to the request. Following arrest, the court will hold a hearing to determine whether the person is extraditable. See 18 U.S.C. § 3184. Issues at the extradition hearing are limited to questions such as whether the person arrested is the person sought, whether the charged offense is extraditable, and whether there is probable cause to believe that the person committed the offense in question.

If the court issues a certificate of extraditability, the Department of State makes the final decision as to extradition. See 18 U.S.C. § 3186. In determining whether to extradite a person, the Department of State may consider all relevant information and must determine that its decision will comply with its international legal obligation not to extradite if the person would be in danger of being subjected to torture.

g. Judicial review of extradition. There is no right to appeal the issuance or denial of a certificate of extraditability, but federal courts have habeas jurisdiction to review the grant of a certificate.

h. Alternatives to extradition. Many treaties allow a person to waive extradition and agree to be surrendered to the requesting country without further proceedings.

William S. Dodge

William S. Dodge specializes in international law, international transactions, and international dispute resolution. He currently serves as a member of the State Department’s Advisory Committee on International Law. From 2011 to 2012, he was Counselor on International Law to the Legal Adviser at the State Department. He is a co-author of the casebook Transnational Business Problems (5th ed. Foundation Press 2014) and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge University Press 2011), which won the American Society of International Law’s 2012 certificate of merit.

Anthea Roberts

Reporter, Restatement of U.S. Foreign Relations Law: Jurisdiction

Anthea Roberts is a specialist in public international law, investment treaty law and arbitration and comparative international law. She has served as a testifying and consulting legal expert in international law cases, including those before national courts and international tribunals, on issues such as the interpretation of Chinese investment treaties and the availability of sovereign immunity. She is currently serving as an international arbitrator.

Paul B. Stephan

Coordinating Reporter, Restatement of U.S. Foreign Relations Law

Paul B. Stephan is an expert on international business, international dispute resolution and comparative law, with an emphasis on Soviet and post-Soviet legal systems. In addition to writing prolifically in these fields, Stephan has advised governments and international organizations, taken part in cases in the Supreme Court of the United States, the federal courts, and various foreign judicial and arbitral proceedings, and lectured to professionals and scholarly groups around the world on issues raised by the globalization of the world economy. During 2006-07, he served as counselor on international law in the U.S. Department of State.

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