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have been convicted of the crime. Until the nineteenth Laubenheimer, 59 the Court approved extradition to
century, the extradition of fugitives was rare and was a Great Britain for the crime of receiving money, knowing it
matter of sovereign discretion rather than of obligation. to have been fraudulently obtained, although the law of Il-
With the dramatic improvements in transportation in the linois, where the fugitive was found, did not make such an
nineteenth century, however, the number of criminals act criminal. The Court felt that the extradition treaty be-
fleeing to foreign states increased, and states began to con- tween the United States and Great Britain did not require
clude bilateral treaties providing for their extradition. In "double criminality" for the particular offense and
Factor v. Laubenheimer, 54 the court noted that stressed the fact that the offense was criminal under the
. . . the principles of international law recognize no right to extradition laws of several of the States. 60 The principle of "double
apart from treaty. While a government may, if agreeable to its om con- criminality" would also require that the act be criminal in
stitution and laws, voluntarily exercise the power to surrender a fugitive both states when it was committed. 61
from justice to the country from which he has fled . . .the legal right to (3) Treaties frequently provide that extradition shall
demand his extradition and the correlative duty to surrender him to the
demanding country exist only when created by treaty. not take place if the prosecution of the fugitive is barred by
a statute of limitations in either the asylum state or requisi-
In fact, the municipal law of many states prevents arrest tioning state. 62 Moreover, according to the principle of
and extradition of a fugitive except pursuant to a treaty specialty, the requisitioning state may not, without the
operating as internal law or a statute providing for extradi- permission of the asylum state, try or punish the fugitive
tion. 55 In the United States, international extradition is for any crimes committed before the extradition except
governed by Federal law. 56 The States have no power to the crimes for which he was extradited. The permission of
extradite fUgitives to foreign countries.
the asylum state is also required for the requisitioning state
(1) Since most instances of extradition arise under to re-extradite the fugitive to a third state. 63
bilateral or multilateral treaties, many of the problems (4) The majority of extradition treaties contain pro-
raised by extradition are questions of treaty interpretation. visions exempting nationals of the asylum state from ex-
Most bilateral treaties contain a list of acts for which a fugi- tradition. The usual provision is that neither party shall be
tive may be extradited. Multilateral and some bilateral obligatedto surrender its nationals, thusleaving the matterin
treaties merely stipulate that the act for which extradition the discretion of the asylum state. The policy, which is most
is sought be a crime in both the asylum and requisitioning commonly reflected in civil law jurisdictions, ap-
states, punishable by a certain minimum penalty, usually parently stems from a feeling that individuals should not
imprisonment for at least one year. be withdrawn from the jurisdiction of their own courts. 64
(2) Difficult problems arise under the treaties that However, the courts in many civil law countries have
list extraditable crimes when the act committed by the broad jurisdiction to try and punish their nationals for
fbgitive is punishable in the requisitioning state and listed crimes committed in other countries. 65 Most common
in the treaty, but not punishable in the asylum state law states, including the U.S., limit their jurisdiction over
because the law of the latter defines the crime a crime to the location of the offense. 66 The United States
differently. 57 In such a situation, if the asylum state ap- has not adopted a criminal code that generally provides for
plies its own law to define the crime, it may violate its punishment of its own nationals for ordinary crimes com-
obligations under the treaty. If the asylum state applies the mitted in other states. 67 me U.C.M.J. is, of course, an
law of the requisitioning state, it would be extraditing the
59. 290 U.S. 276, 54 S.Q. 191, 78 L.Ed. 315 (1933).
fugitive for an act that was not an offense under its own 60. For a critical analysis of this case, see Hudson, The Factor Case
law. The solution to the problem may be found in the re- andDouble Criminaliw in Extradition, 28 Am. J. Int'l L. 274 (1934); c$,
quirement of "double criminality,"i.e., that extradition Borchard, The Factor Extradition Case, 28 Am. J. Int'l L. 742 (1934).
is available only when the act is punishable under the law 61. But see U.S. ex rel. Oppenheirn v. Hecht, 16 F.2d 955 (1927),
granting extradition for an act which was made criminal in the United
of both states. The name of the offense and the elements States after it had been committed.
that make it criminal need not be precisely the same, pro- 62. See, e.g., Extradition Treaty between the United States and
viding that the fugitive could be punished for the act in Great Britain, Dec. 22, 1931, art. 5, 47 Stat. 2122, T.S. 849, 163
both states. 58 Under the requirement of "double crimi- L.N.T.S. 59.
63. U.S. ex rel. Domefly v. Mulligan, 74 F.2d 220 (1934). See
nality," the act must be characterized as a crime by the also, U.S. v. Rauscher, 119 U.S. 407,7 S.Ct. 234,30L.Ed. 425 (1886).
law of the asylum state. However, in Factor v. 64. See Havard Research, Criminal Jurisdiction, supra, note 51 at
125.
54. 290 U.S. 276, 287, 54 S.Ct. 191, 193 78 L.Ed. 315 (1933). 65. I. Shearer, Extradition in International Law 15-16 (1971)
55. See 2 D. O'Connell, International Law 793-94 (2d ed. 1970) (hereinafter cited as I. Shearer).
(hereinafter cited as 2 D. O'Connell). Valentine v. U.S. ex re]. 66. See, e.g., U.S. Const., Art. m,5 2, cl. 3.
Neidecker, 299 U.S. 5, 9, 57 S.Ct. 100, 102, 81 L.Ed.5 (1936). 67. If criminal conduct by American citizens abroad were con-
56. 18 U.S.C.A.58 3184-3195. sidered an offense against the law of nations, Congress could defme and
57. See Note, The Eisler Extradition Case, 43 Am. J. Int'l L. 487 provide for the punishment thereof. U.S. Const., Art. I, 5 8, cl. 10. See
(1 949). Blackmer v. U.S., 284 U.S. 421,436-37 (1931); Steelev. Bulova Watch
$8. See Harvard Research in International Law, Drqft Convention Co., 344 U.S. 280, 285-86 (1952); c$ herican kana Co. v. United
on Extradition, 29 Am. J. In17 L. Spec. Supp. 81-86 (1935). Fruit Co., 213 U.S. 347, 353-57 (1909).