these countries were not willing to conclude treaties which might appear to require extradition of nationals. U.S. treaties with many such countries state that neither state is bound or obligated to extradite nationals.13 The U.S. practice under these treaties is to grant extradition of our citizens even if the other nation did not extradite its citizens to us in return. The Supreme Court ruled in , 299 U.S. 5 (1936), that this “not bound” language failed to provide sufficient legal basis for the U.S. to extradite U.S. citizens, so treaties negotiated after 1936 with States that do not extradite nationals often provide that neither party is bound to extradite nationals but the requested state (or the executive authority of the requested state) may do so if, in its discretion, it deems it appropriate.14 This language permits the U.S. to continue the pre- policy of extraditing our citizens even if the treaty partner is unwilling or legally unable to reciprocate.
In a third group of treaties, the extradition of nationals is discretionary under the terms of the relevant treaty, but in practice the foreign country involved can and does surrender its nationals.15
Finally, in recent years many of our treaties have included language that explicitly bars each party from denying extradition on nationality grounds in some or all circumstances.16
13 These include treaties with Albania, Bosnia, Bulgaria, Chile, Congo (Brazzaville), Croatia, Cuba, Czech Republic, Dominican Republic, Egypt, El Salvador, Estonia, Guatemala, Haiti, Honduras, Iceland, Iraq, Latvia, Lithuania, Luxembourg, Macedonia, Monaco, Panama, Peru, Portugal, Romania, San Marino, Serbia-Montenegro, Slovak Republic, Slovenia, Suriname, and Venezuela. Treaties with three countries (Liberia, Liechtenstein, and Greece) say neither state is bound unless the fugitive was naturalized after the crime occurred.
14 These include treaties with Argentina, Austria, Belgium, Cyprus, Poland, Finland, Paraguay, Denmark, Germany, Mexico, Spain, Sweden, Turkey, Colombia, Norway, France, Hungary, and Greece. With respect to treaties with a discretionary formulation, we note that Congress amended U.S. domestic extradition law in 1990 to provide that a U.S. national may be extradited even “[i]f the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country,” as long as the other obligations of the treaty are met. 18 U.S.C. § 3196.
15 These include treaties with Australia, Jamaica, Japan, Malaysia, New Zealand, South Korea, and Thailand.
16 These include treaties with Antigua and Barbuda, Bahamas, Barbados, Bolivia, Grenada, Hong Kong, India, Ireland, Israel, Italy, Jordan, the Netherlands, the Philippines, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and Uruguay. The new treaty with Argentina, signed in June 1997 and pending an exchange of instruments of ratification before it enters into force, contains such a provision, as does the new treaty with Belize, which was signed on April 4, 2000, and will be transmitted to the Senate in the near future for advice and consent to ratification.