Update – February 15, 2020

See the following exchange in Parliament – this is riveting!

While the US continues to deny justice to Harry Dunn, will the Prime Minister commit today to seek an equal and balanced extradition relationship with the US? pic.twitter.com/uBcFgV5Fzu

— Jeremy Corbyn (@jeremycorbyn) February 13, 2020

Prologue

I have urged the Home Secretary to delay the extradition of Mike Lynch until his UK civil trial has finished. In the long term, we need to re-balance our extradition treaty with the US. We need to give British citizens the protection, certainty and the justice that they deserve. pic.twitter.com/fm1Mklq5f2

— David Davis (@DavidDavisMP) January 23, 2020

David Davis is a British MP – with an interesting career. The video referenced in the above captures him speaking to an almost empty (how can this be) House of Commons about:

1. The imbalance in the UK US Extradition Treaty**

2. The inappropriateness of the imbalance

3. The need to “rein in” the US extraterritorial tendencies.

If you go his Official Site, you will find a link an article written by him discussing the treaty in the context of UK Businessman Michael Lynch.* I highly recommend the article to: (1) Freedom loving individuals everywhere as an example how international agreements and treaties can restrict opportunities and freedom and (2) Individuals the world over who want to understand how international agreements (which appear to be for the purposes of preventing terrorism practised by individuals) can be used as (instruments to promote terrorism by governments).

About the Lynch case

The US-UK extradition treaty is a bad treaty. Last week's arrest of Dr Mike Lynch for his potential extradition to America is a vivid example of the problematic nature of our extradition arrangements with the United States. https://t.co/HSrSAIcdHB

— David Davis (@DavidDavisMP) February 10, 2020

To quote David Davis:

And yet, in Westminster Magistrates Court last week, we saw a vivid example of Britain already surrendering its sovereignty, this time over its justice system, with the formal arrest of Dr Mike Lynch for potential extradition to America.

Dr Lynch is one of this country’s most successful entrepreneurs. He founded an innovative British company, Autonomy, which in 2011 was bought by Hewlett-Packard. Now American prosecutors are claiming that he should be tried in America on charges about the way he ran that company, and how it was sold to HP, which has accused him of fraud.

But British justice is in motion. The Serious Fraud Office investigated the allegations against him and decided that there was no case for prosecution in 2015.

HP also brought a civil case against Dr Lynch in the English High Court. It has just concluded after ten months of exhaustive testimony and the judge will rule in due course. That case reviewed millions of documents and heard dozens of witnesses in open court.

Dr Lynch himself was on the witness stand for more than a month, one of the longest cross-examinations on record.

There can be no doubt that Dr Lynch has faced justice in the UK, and that whatever the outcome, our system is working.

Yet before the judge can deliver a verdict, the Home Secretary has certified that Dr Lynch should be spirited away to America.

It strikes me that (as is being done in the Meng Wanzhou Canadian extradition case) the United States is using an extradition treaty to further U.S. business interests. (This leads me to think that the recently signed USMCA trade agreement should include provisions that prevent extradition in the context of international trade – but that is the subject of another post.)

The US UK Extradition Treaty And The Lack Of Reciprocity

In explaining the lack of reciprocity in the treaty, Mr. Davis notes:

The fact that he was arrested at all brings into sharp relief the problems with our relationship with the United States. When the US Department of Justice requests the extradition of a UK citizen, we effectively have no choice but to cough them up. The UK-US extradition treaty of 2003 says that the Home Secretary ‘must’ process the request.

The US prosecutors have no requirement to prove their case beyond stating ‘reasonable suspicion’, and there is no prima facie consideration of the charges in the UK.

Conversely, for the UK to extradite from the US, we have to clear a higher burden of demonstrating ‘probable cause’, which – unlike in the UK – can be challenged in the courts. After that, the US Secretary of State ‘may’ process the request.

What the US ‘may’ choose to do was made crystal clear in the recent case of Anne Sacoolas and the death of Harry Dunn.

The US-UK extradition treaty is a bad treaty. It was negotiated in secret by Tony Blair’s Labour Government, debated in haste and enacted unilaterally by Blair over strenuous objections from all sides of the Houses of Parliament. Its rapid passage was intended to enable the fast-track processing of potential terrorists after 9/11, yet that is not how it has been used.

The proof of the imbalance is in the numbers. Since 2007, the UK has surrendered 135 UK nationals to the US, 99 of which were for non-violent crimes. During the same period the US has surrendered only 11 to Britain. This cannot be the outcome of a fair system being properly applied.

It seems clear that from an American perspective the purpose of an Extradition treaty is to encroach on the sovereignty of other nations and protect U.S. sovereignty from other nations. In other words: A U.S. extradition treaty is a way for the United States to plant “Old Glory” in the treaty partner country. (You send us your citizens and we won’t send you our citizens!)

Interestingly, in the cases of both Dr. Lynch and Meng Wanzhou, the conduct that the US is complaining about did NOT take place on US soil. In other words, these are NOT cases of crimes having been committed in Homeland America and perpatrators fleeing the United States to avoid the US legal system. Yet, the United States claims the right, under extradition treaties with Canada and Britain to demand those government deliver these individuals to the United States.

Interestingly, in the case of Anne Sacoolas, a US citizen who killed British teenager Harry Dunn (while driving on the American side of the road while in Britain), who then fled the UK for the specific purpose of avoiding the UK legal system, the Trump administration has refused to agree to the UK extradition request.

Anne Sacoolas who is wanted over the death of Harry Dunn was a CIA spy https://t.co/sZMXqvO20u via @MailOnline

— U.S. Citizen Abroad (@USCitizenAbroad) February 11, 2020

Does this mean that US citizens (in general) have the right to violate the laws of other nations, flee and expect that they will not be extradited? Is this an incident of US citizenship? Is protection from extradition something that could justify US citizenship-based taxation?

Reciprocity aside, should Canada, the UK or any country that respects human rights have an extradition treaty with the United States at all?

A larger and more complicated question is that we should not have an extradition treaty with the United States at all." Conrad Black: Why should Canada extradite anyone to a prosecutocracy? https://t.co/2QVl6p1U5N via @nationalpost

— U.S. Citizen Abroad (@USCitizenAbroad) February 11, 2020

David Davis focuses on the lack of reciprocity in the agreement. But, the reciprocity issues matters only if one has determined that it is appropriate to enter into an extradition treaty with the United States. In interesting commentary (generally supportive of the United States), Conrad Black opines that:

A larger and more complicated question is that we should not have an extradition treaty with the United States at all. The manipulation of the plea bargain system, where prosecutors charge someone, catechize him to make fraudulent allegations of wrongdoing against someone targeted by a prosecutor, in exchange for non-prosecution or a light sentence, and with a guaranty of immunity from perjury charges, has produced America’s North Korean levels of prosecution success: a 99 per cent conviction rate, 95 per cent of those without a trial. The Bill of Rights’ Fifth, Sixth and Eighth Constitutional Amendment guaranties of a grand jury to avoid capricious prosecution, due process, no seizure of property without just compensation, access to counsel, prompt justice and reasonable bail, were all put to the shredder decades ago while the Supreme Court sat in perfect inertia, even before every nomination to its bench became a fierce struggle between exponents of a literal interpretation of the text of the Constitution, and those who wish to expand its meaning to give greater authority to the executive branch in response to modern conditions. The United States is not, by Canada’s standards, in criminal matters, a society of laws at all. It is a prosecutocracy and a carceral state which has six to 12 times as many imprisoned people per capita as other comparable wealthy democratic countries: Australia, Canada, France, Germany, Japan and the United Kingdom. We should revoke the extradition treaty and cease to send people compulsorily to any country with an inadequate assurance of due process for the accused. As long as there is the Canada-U.S. treaty, we must honour it, as we have with Meng, whatever China (where the concept of rights scarcely exists), says about it. But we were right to bail her.

The similarity between the U.S. U.K. extradition and the FATCA IGAs

The FATCA IGAs and the US UK (and presumably Canadian) extradition treaty are based on the assumption that:

The agreements impose obligations on Canada and the UK and no reciprocal obligation on the United States. Through both extradition treaties and FATCA, the United States is essentially planting the US flag in other countries and extracting people and information from those countries with no reciprocity.

Interestingly, in both cases the treaties/agreements are being used in ways that are unrelated to their original stated purpose.

Extradition Treaty: According to various media sources the US UK extradition treaty was conceived as a way to fast track the extradition of “terrorists” to the United States. Well, (at least in the Lynch case), it’s now being used to fast track the extradition of British citizens for other reasons.

FATCA IGA: At the beginning it was conceived as a way for the United States to locate the accounts of Homeland Americans with offshore bank accounts. We all know what an outrageous lie that turned out to be.

Both the Extradition treaty and the FATCA IGAs are examples of the same principle:

The United States is using “Gun Boat Diplomacy” to erode the sovereignty of other nations (Canada, Britain and other countries).

David Davis is absolutely correct. It’s too bad that Parliament was empty when he made his speech. Now that Britain has left the EU, perhaps its time for it officially allow itself to be absorbed by the United States – perhaps becoming the first Official US Colony.

Oh and by the way … those who believe that it is important to (as David Davis says) “rein in” the US extraterritorial tendencies” – should consider supporting the ADCS FATCA lawsuit in Canada and Jenny’s FATCA lawsuit in the UK.

__________________________________________________________________________________________

* David Davis MP writes in the Mail on Sunday about the unjust extradition treaty between the UK and US.
As published in the Mail on Sunday:

It has been just over a week since we re-established our status as an independent, sovereign nation, pursuing our own way in the world.

And yet, in Westminster Magistrates Court last week, we saw a vivid example of Britain already surrendering its sovereignty, this time over its justice system, with the formal arrest of Dr Mike Lynch for potential extradition to America.

Dr Lynch is one of this country’s most successful entrepreneurs. He founded an innovative British company, Autonomy, which in 2011 was bought by Hewlett-Packard. Now American prosecutors are claiming that he should be tried in America on charges about the way he ran that company, and how it was sold to HP, which has accused him of fraud.

But British justice is in motion. The Serious Fraud Office investigated the allegations against him and decided that there was no case for prosecution in 2015.

HP also brought a civil case against Dr Lynch in the English High Court. It has just concluded after ten months of exhaustive testimony and the judge will rule in due course. That case reviewed millions of documents and heard dozens of witnesses in open court.

Dr Lynch himself was on the witness stand for more than a month, one of the longest cross-examinations on record.

There can be no doubt that Dr Lynch has faced justice in the UK, and that whatever the outcome, our system is working.

Yet before the judge can deliver a verdict, the Home Secretary has certified that Dr Lynch should be spirited away to America.

The fact that he was arrested at all brings into sharp relief the problems with our relationship with the United States. When the US Department of Justice requests the extradition of a UK citizen, we effectively have no choice but to cough them up. The UK-US extradition treaty of 2003 says that the Home Secretary ‘must’ process the request.

The US prosecutors have no requirement to prove their case beyond stating ‘reasonable suspicion’, and there is no prima facie consideration of the charges in the UK.

Conversely, for the UK to extradite from the US, we have to clear a higher burden of demonstrating ‘probable cause’, which – unlike in the UK – can be challenged in the courts. After that, the US Secretary of State ‘may’ process the request.

What the US ‘may’ choose to do was made crystal clear in the recent case of Anne Sacoolas and the death of Harry Dunn.

The US-UK extradition treaty is a bad treaty. It was negotiated in secret by Tony Blair’s Labour Government, debated in haste and enacted unilaterally by Blair over strenuous objections from all sides of the Houses of Parliament. Its rapid passage was intended to enable the fast-track processing of potential terrorists after 9/11, yet that is not how it has been used.

The proof of the imbalance is in the numbers. Since 2007, the UK has surrendered 135 UK nationals to the US, 99 of which were for non-violent crimes. During the same period the US has surrendered only 11 to Britain. This cannot be the outcome of a fair system being properly applied.

Dr Lynch now faces the prospect of adding to these grim statistics. In his case, the alleged conduct all took place in the UK, under UK law. We are now looking at the bizarre prospect that a UK citizen could be tried and potentially acquitted by an English judge, where the burden of proof against him is lower, but find himself in a US prison facing a charge where the burden is higher, before the UK case has even been decided.

Why would we give the US justice system priority over our own?

Should Dr Lynch be extradited and denied bail, as most foreign suspects are, he will face appalling conditions that are much worse than anything found in the UK. He will likely find himself in a high-security prison in a cramped cell with gang members, drug dealers and murderers.

And by potentially selling him down that river, we will be sending him to a place where 97 per cent of cases are settled by plea bargains.

People who have previously been extradited to the US have been told that if they pleaded not guilty, they would be denied bail and get 35 years in a high-security US prison, but if they pleaded guilty, they would get only three years, possibly serving some of it in a British jail.

Prosecutors will use this practice to try to convince Dr Lynch to admit guilt to a lesser charge. If he refuses, he will face the prospect of a deliberately intimidating lengthy sentence, and the costs of the trial could run into millions.

Dr Lynch is right to resist extradition. He is standing up for all of us against this unfair system.

It will send a chill wind through ‘global Britain’ if all UK businesses are effectively forced to comply with US laws and standards, and subject to US prosecution if they do not.

It would cripple the City and Britain’s ability to determine its own future.
That is why we need to look again at our extradition arrangements. They affect our ability to set and enforce our own laws.

We need to ensure our arrangements are fair, balanced and based on reciprocity. We need to give British citizens, including our businessmen and entrepreneurs, the protection, certainty and justice that they deserve.

________________________________________________________________________________________

** Text of US UK Extradition Treaty

EXTRADITION TREATY WITH UNITED KINGDOM

__________

MESSAGE

from

THE PRESIDENT OF THE UNITED STATES

transmitting

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, AND RELATED EXCHANGES OF
LETTERS, SIGNED AT WASHINGTON ON MARCH 31, 2003

April 19, 2004.–The treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and order to be printed for the use of the Senate

LETTER OF TRANSMITTAL

———-

The White House, April 19, 2004.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Extradition
Treaty Between the United States of America and the United
Kingdom of Great Britain and Northern Ireland, and related
exchanges of letters, signed at Washington on March 31, 2003.
In addition, I transmit for the information of the Senate
the report of the Department of State with respect to the
Treaty. As the report explains, the Treaty will not require
implementing legislation.
The provisions in this Treaty follow generally the form and
content of modern extradition treaties recently concluded by
the United States and will replace the outdated extradition
treaty signed in 1972 and the supplementary treaty signed in
1985 that are currently in force between the two countries. The
Treaty will, upon entry into force, enhance cooperation between
the law enforcement communities of the two countries. It will
thereby make a significant contribution to international law
enforcement efforts against serious offenses, including
terrorism, organized crime, and money laundering offenses.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.

George W. Bush.
LETTER OF SUBMITTAL

———-

Department of State,
Washington, October 3, 2003.
The President,
The White House.
The President: I have the honor to submit to you the
Extradition Treaty Between the United States of America and the
United Kingdom of Great Britain and Northern Ireland (“the
Treaty”), and related exchanges of letters, signed at
Washington on March 31, 2003. Upon its entry into force, the
Treaty would replace the outdated extradition treaty signed in
1972 and the supplementary treaty signed in 1985 that are now
in force between the two countries. I recommend that the
Treaty, with related exchanges of letters, be transmitted to
the Senate for its advice and consent to ratification.
The Treaty follows generally the form and content of other
extradition treaties recently concluded by the United States.
The Treaty represents a major step forward in U.S. efforts to
strengthen cooperation with countries in the region in
combating terrorism, organized crime, money laundering, and
other offenses. It is an important part of a concerted effort
by the Department of State and the Department of Justice to
modernize the legal tools available for the extradition of
serious offenders.
The Treaty is designed to be self-executing and will not
require implementing legislation.
Article 1 obligates each State to extradite to the other,
pursuant to the provisions of the Treaty, persons sought by the
authorities in the Requesting State for trial or punishment for
extraditable offenses.
Article 2 concerns extraditable offenses. Article 2(1)
defines an offense as extraditable if the conduct on which the
offense is based is punishable under the laws in both States by
deprivation of liberty for a period of one year or more or by a
more severe penalty. Use of a pure “dual criminality” clause,
rather than categories of offenses listed in the Treaty plus
other offenses that are listed in relevant UK extradition law
and are considered felonies under U.S. law, as in the 1972
extradition treaty, obviates the need to renegotiate or
supplement the Treaty as additional offenses become punishable
under the laws in both States. Under the 1972 extradition
treaty, extradition is to be granted if the offense is defined
as extraditable under UK law and as a felony under U.S. law, in
addition to the requirement that the offense be punishable by
imprisonment or other form of detention for more than one year
or by the death penalty.
Article 2(2) further defines an extraditable offense as
including an attempt or a conspiracy to commit, participation
in the commission of, aiding or abetting, counseling or
procuring the commission of, or being an accessory before or
after the fact to any offense described in paragraph 1 of
Article 2.
Additional flexibility is provided by Article 2(3), which
provides that an offense shall be an extraditable offense (a)
whether or not the laws in the Requesting and Requested States
place the offense within the same category of offenses or
describe the offense by the same terminology; or (b) whether or
not the offense is one for which United States federal law
requires the showing of such matters as interstate
transportation, or use of the mails or of other facilities
affecting interstate or foreign commerce, such matters being
jurisdictional only.
With regard to offenses committed outside the territory of
the Requesting State, Article 2(4) provides that extradition
shall be granted in accordance with the provisions of the
Treaty if the laws in the Requested State provide for the
punishment of such conduct committed outside its territory in
similar circumstances. If the laws in the Requested State do
not provide for the punishment of such conduct committed
outside of its territory in similar circumstances, the
executive authority of the Requested State, in its discretion,
may grant extradition provided that all other requirements of
the Treaty are met.
Finally, Article 2(5) provides that if extradition is
granted for an extraditable offense, it may also be granted for
any other offense specified in the request if the latter
offense is punishable by less than one year’s deprivation of
liberty, provided that all other requirements for extradition
are met.
Article 3 provides that extradition shall not be refused
based on the nationality of the person sought.
Article 4 sets forth bases for the denial of extradition.
As is customary in extradition treaties, paragraph 1 provides
that extradition shall not be granted if the offense for which
extradition is requested constitutes a political offense.
Article 4(2) specifies seven categories of offenses that
shall not be considered to be political offenses: (a) an
offense for which both Parties have the obligation pursuant to
a multilateral international agreement to extradite the person
sought or to submit the case to their competent authorities for
decision as to prosecution; (b) a murder or other violent crime
against the person of a Head of State of one of the Parties, or
of a member of the Head of State’s family; (c) murder,
manslaughter, malicious wounding, or inflicting grievous bodily
harm; (d) an offense involving kidnaping, abduction, or any
form of unlawful detention, including the taking of a hostage;
(e) placing or using, or threatening the placement or use of,
an explosive, incendiary, or destructive device or firearm
capable of endangering life, of causing grievous bodily harm,
or of causing substantial property damage; (f) possession of an
explosive, incendiary, or destructive device capable of
endangering life, of causing grievous bodily harm, or of
causing substantial property damage; and (g) an attempt or a
conspiracy to commit, participation in the commission of,
aiding or abetting, counseling or procuring the commission of,
or being an accessory before or after the fact to any of the
foregoing offenses.
Article 4(3) requires that, notwithstanding the terms of
paragraph 2, extradition shall not be granted if the competent
authority of the Requested State determines that the request is
politically motivated. In the United States, the executive
branch is the competent authority for the purposes of the
Article. Under the 1985 supplementary treaty, the judicial
branch has the authority to consider whether an extradition
request is motivated by a desire to punish the person sought on
account of race, religion, nationality, or political opinions,
or if the person sought would be subject to unfair treatment in
UK courts or prisons after extradition. Like all other modern
extradition treaties, the new Treaty grants the executive
branch rather than the judiciary the authority to determine
whether a request is politically motivated.
Article 4(4) provides that the competent authority of the
Requested State may also refuse extradition for offenses under
military law that are not offenses under ordinary criminal law
(e.g., desertion). In the United States, the executive branch
is the competent authority for the purposes of the Article.
Article 5(1) provides that extradition shall not be granted
when the person sought has been convicted or acquitted in the
Requested State for the offense for which extradition is
requested. Additionally, under paragraph 2, the Requested State
may refuse extradition when the person sought has been
convicted or acquitted in a third state in respect of the
conduct for which extradition is sought. Article 5(3) provides
that extradition shall not be precluded by the fact that the
competent authorities of the Requested State: (a) have decided
not to prosecute the person sought for the acts for which
extradition is requested; (b) have decided to discontinue any
criminal proceedings that have been instituted against the
person sought for those acts; or (c) are still investigating
the person sought for the same acts for which extradition is
sought.
Article 6 provides that the decision by the Requested State
whether to grant the request for extradition shall be made
without regard to any statute of limitations in either State.
Article 7 concerns capital punishment. Under Article 7,
when an offense for which extradition is sought is punishable
by death under the laws in the Requesting State but not under
the laws in the Requested State, the executive authority in the
Requested State may refuse extradition unless the Requesting
State provides an assurance that the death penalty will not be
imposed or, if imposed, will not be carried out. The United
States has agreed to similar formulations in other modern
extradition treaties (e.g., those with France, Poland,
Argentina, the Republic of Korea, India, and Peru).
Article 8 establishes the procedures and describes the
documents that are required to support a request for
extradition. All requests for extradition shall be submitted
through the diplomatic channel. Among other requirements,
Article 8(3) provides that a request for the extradition of a
person sought for prosecution must be supported by: (a) a copy
of the warrant or order of arrest issued by a judge or other
competent authority; (b) a copy of the charging document, if
any; and (c) for requests to the United States, such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is sought. The Treaty will not change the evidentiary burden
required for extradition requests to the United States, but the
Treaty’s entry into force will allow the United States to take
advantage of the United Kingdom Extradition Act of 1989, which
applies only to treaties that enter into force after 1989.
Under the 1989 Act, the evidentiary requirements for
extradition from the United Kingdom are lowered from a “prima
facie” standard to “evidence sufficient for issuance of a
warrant,” which is analogous to the U.S. probable cause
standard.
Article 9 establishes the procedures under which documents
submitted to support an extradition request shall be deemed to
be authentic and received in evidence.
Under Article 10, if the Requested State requires
additional information to enable a decision to be taken on the
request for extradition, the Requesting State shall respond to
the request within such time as the Requested State requires.
Article 11 provides that all documents submitted under the
Treaty by the Requesting State shall be in English or
accompanied by a translation into English.
Article 12 sets forth procedures and describes the
information that is required for the provisional arrest and
detention of the person sought, in an urgent situation, pending
presentation of the formal request for extradition. In
particular, Article 12(4) provides that if the Requested
State’s executive authority has not received the extradition
request and supporting documents required by Article 8 within
sixty (60) days from the date of provisional arrest, the person
may be discharged from custody. Article 12(5) explicitly
provides that such a discharge from custody shall not prejudice
the subsequent re-arrest and extradition of that person if the
extradition request and supporting documents are delivered at a
later date.
Article 13 specifies the procedures governing a decision on
the extradition request and the surrender of the person sought.
It requires the Requested State to promptly notify the
Requesting State of its decision regarding a request. Such
notification should be transmitted through the diplomatic
channel directly to the competent authority designated by the
Requesting State to receive such notification. If the request
is denied in whole or in part, the Requested State must provide
reasons for the denial and, upon request, copies of pertinent
judicial decisions. If extradition is granted, the States shall
agree on the time and place for the surrender of the person
sought. If the person sought is not removed from the territory
of the Requested State within the time period prescribed by the
law of that State, the person may be discharged from custody,
and the Requested State, in its discretion, may subsequently
refuse extradition for the same offense(s).
Article 14 addresses temporary and deferred surrender.
Article 14(1) provides that if a person whose extradition is
sought is being proceeded against or is serving a sentence in
the Requested State, the Requested State may temporarily
surrender the person to the Requesting State for the purpose of
prosecution. If the Requested State requests, the Requesting
State shall keep the person so surrendered in custody and shall
return that person to the Requested State after the conclusion
of the proceedings against that person, in accordance with
conditions to be determined by mutual agreement of the States.
Alternatively, under Article 14(2), the Requested State may
postpone extradition proceedings against a person who is being
prosecuted or who is serving a sentence in that State. The
postponement may continue until the prosecution of the person
sought has been concluded or until such person has served any
sentence imposed.
Article 15 provides a non-exclusive list of factors to be
considered by the executive authority of the Requested State in
determining to which State to surrender a person whose
extradition is sought by more than one State.
Article 16 provides that the Requested State may, to the
extent permitted under its law, seize and surrender to the
Requesting State all items and assets, including proceeds, that
are connected with the offense in respect of which extradition
is granted. Such items and assets may be surrendered even if
the extradition cannot be carried out due to the death,
disappearance, or escape of the person sought. The Requested
State may condition the surrender of the items upon
satisfactory assurances that the property will be returned to
the Requested State as soon as practicable. The Requested State
may also defer the surrender of such items if they are needed
as evidence in the Requested State.
Article 17 permits surrender as expeditiously as possible
and without further proceedings if the person sought waives
extradition and agrees to be surrendered to the Requesting
State.
Article 18 sets forth the rule of specialty under
international law. Paragraph 1 provides, subject to specific
exceptions set forth in paragraph 3, that a person extradited
under the Treaty may not be detained, tried, or punished in the
Requesting State except for: (a) Any offense for which
extradition was granted, or a differently denominated offense
based on the same facts as the offense for which extradition
was granted, provided such offense is extraditable, or is a
lesser included offense; (b) any offense committed after the
extradition of the person; or (c) any offense for which the
executive authority of the Requested State waives the rule of
specialty and thereby consents to the person’s detention,
trial, or punishment. The treaty currently in place does not
contain such a provision for waiver of the rule of specialty,
and the preferred practice of States is not to waive the rule
of specialty unless there is a treaty provision authorizing
them to do so.
Article 18(2) provides that a person extradited under the
Treaty may not be the subject of onward extradition or
surrender for any offense committed prior to the extradition to
the Requesting State unless the Requested State consents. The
Treaty’s use of the term “surrender” (the operable term in
the Rome Statute of the International Criminal Court) makes
explicit that the United Kingdom will not surrender to the ICC
any person extradited by the United States. The United Kingdom
has recorded in a separate letter its understanding that the
Treaty continues the protection implicit in the current treaty
against surrender to the ICC of fugitives extradited by the
United States and states in its letter that it will contest any
request from the ICC for such surrender as being inconsistent
with Article 98(2) of the Rome Statute.
Under Article 18(3), these restrictions shall not prevent
the detention, trial, or punishment of an extradited person, or
the extradition of a person to a third State, if the extradited
person leaves the territory of the Requesting State after
extradition and voluntarily returns to it or fails to leave the
territory of the Requesting State within twenty (20) days of
being free to do so.
Article 19 governs the transit through the territory of one
State of a person being surrendered to the other State by a
third State or from the other State to a third State.
Article 20 contains provisions on representation and
expenses that are similar to those found in other modern U.S.
extradition treaties. Specifically, the Requested State is
required to advise, assist, and appear in court on behalf of
the Requesting State in any proceedings in the courts of the
Requested State arising out of a request for extradition or
make all necessary arrangements for the same. The Requested
State also bears all expenses incurred in that State in
connection with the extradition proceedings, except that the
Requesting State pays expenses related to the translation of
extradition documents and the transportation of the person
surrendered. Article 20(3) specifies that neither State shall
make any pecuniary claim against the other State arising out of
the arrest, detention, examination, or surrender of persons
under the Treaty.
Article 21 provides that the Parties may consult with each
other in connection with the processing of individual cases and
in furtherance of efficient implementation of the Treaty.
Article 22 concerns the application of the Treaty.
Paragraph 1 makes the Treaty applicable to offenses committed
before as well as after the date of entry into force.
Under paragraph Article 22(2), the Treaty shall apply to
the United States of America and, in relation to the United
Kingdom, to Great Britain and Northern Ireland, the Channel
Islands, the Isle of Man, and to any territory for whose
international relations the United Kingdom is responsible and
to which the Treaty has been extended by agreement of the
Parties. Article 22(3) provides that the application of the
Treaty to any territory in respect of which extension has been
made in accordance with paragraph 2 may be terminated by either
State giving six months’ written notice to the other through
the diplomatic channel.
Pursuant to Article 22(4), a request by the United States
for the extradition of an offender who is found in any of the
territories to which this Treaty applies in accordance with
paragraph 2 of the Article may be made to the Governor or other
competent authority of that territory. A request on the part of
any of the territories to which this Treaty applies in
accordance with paragraph 2 of the Article for the extradition
of an offender who is found in the United States of America may
be made to the Government of the United States by the Governor
or other competent authority of that territory. This paragraph
streamlines the extradition procedures regarding requests to
and from UK territories, as such requests currently must go
through the United Kingdom’s central authority in London.
Article 23 contains clauses dealing with the Treaty’s
ratification and entry into force. Paragraphs 1 and 2 provide
that the Treaty is subject to ratification and will enter into
force upon the exchange of instruments of ratification, which
is to take place as soon as possible.
Article 23(3) provides that, upon entry into force of the
Treaty, the Extradition Treaty signed at London on June 8,
1972, and the Supplementary Treaty signed at Washington on June
25, 1985, (together “the prior Treaty”) shall cease to have
any effect as between the United States and the United Kingdom,
subject to certain exceptions. The prior Treaty shall apply to
any extradition proceedings in which the extradition documents
have already been submitted to the courts of the Requested
State at the time the Treaty enters into force, except that
Article 18 of this Treaty relating to the rule of specialty
shall apply to persons found extraditable under the prior
Treaty. The prior Treaty shall also apply to any territory to
which it has been extended in accordance with Article II of
that Treaty, until such time as the provisions of this Treaty
have been extended to such a territory under Article 22(2).
Article 24 provides that either State may terminate the
Treaty at any time by giving written notice to the other State
through the diplomatic channel. Such termination shall be
effective six months after the date of receipt of such notice.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at the earliest
possible date.
Respectfully submitted.
Colin L. Powell.

 

Related thread:  Tax Treaty Discussion