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Transfer of Persons for Law Enforcement Purposes Outside the Context of Extradition Treaties

Finally, we note that extradition pursuant to a treaty, while being the most typical way a fugitive is returned for trial or punishment, is not the exclusive means persons are returned across national borders.  If the person sought is not a national of the requested country, that country may be able to expel or deport persons to the United States under its immigration law.  Similarly, non U.S.-nationals located in the United States and sought by other countries might in some circumstances be removable from U.S. territory under our immigration laws.  In some countries, unlike the United States, persons may be expelled by the executive authority of the foreign government without resort to formal proceedings.  Also, in a number of countries, unlike the general rule in United States, extradition proceedings may be initiated under general provisions of domestic law even where there is no treaty relationship in place.   Finally, of course, a fugitive may voluntarily choose for his or her own reasons to return to a country for trial or punishment.  These possibilities are less certain and predictable than extradition pursuant to treaty, and are discretionary as opposed to being derived from a treaty commitment under international law.

Response to Section 211 (b)(3) of Public Law 106-113:

“Identify those bilateral extradition treaties to which the United States is a party which do not require the extradition of nationals, and the reason such treaties contain such a provision”

The U.S. as a matter of policy draws no distinction between nationals and non-nationals in extradition.  Our numerous extradition treaties reflect this policy to the extent possible in four general approaches.  The following discussion incorporates the results of the U.S. Department of Justice’s recent survey of the nationality provisions of our extradition treaties in force and the policies of our treaty partners as of May 15, 2000, and is subject to change as new treaties enter into force for the United States or the policies of our treaty partners change.  

First, our treaties with a large number of countries are silent on the issue of extradition of nationals.12  These treaties require the extradition of all persons without regard to nationality if the requirements of the treaty are otherwise met.  

A number of the countries in the world do not allow their nationals to be extradited as a result of their constitutions, domestic law or long standing policy, and

12 These include our treaties with Belize, Burma, Canada, Dominica, Ecuador, Fiji, Gambia, Ghana, Guyana, Kenya, Kiribati, Lesotho, Malawi, Malta, Mauritius, Nauru, Nigeria, Pakistan, Papua New Guinea, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Tanzania, Tonga, Tuvalu, United Kingdom, and Zambia.  The lists of countries in footnotes 12-16 of this report were prepared by the Department of Justice based on its research on the relevant treaties and the nationality laws and policies of the countries mentioned therein.

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