the country in which he is, or who having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community in that country.

3. Where a Contracting State decides that an exception should be made on the basis of the preceding paragraph, it shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity of going to another state.

Article 4: Provisional Stay Pending Consideration of Request

A person seeking asylum at the frontier or in the territory of a Contracting State shall be admitted provisionally to or permitted to remain in the territory of that state pending a determination of his request, which shall be considered by a competent authority.

Whenever a Contracting State experiences difficulties in the case of a sudden or mass influx, or for other compelling reasons, in granting, or continuing to grant, the benefits of this Convention, each Contracting State shall, at the request of that state, through the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, or by any other means considered suitable, take such measures as it deems appropriate, in conjunction with other states or individually, to share equitably the burden of that state.

Article 6: Voluntary Repatriation

If an asylee should, of his own free will, express his desire to return to the territory of the state of his nationality or former habitual residence, neither the Contracting State granting asylum nor any other Contracting State shall place any obstacles in the way of his repatriation.

Article 7: Cooperation with the United Nations

The Contracting States shall cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may be created for the purpose, as regards the application of the provisions of this Convention. The Contracting States shall permit persons seeking asylum if they so desire, to make contact with the Office of the United Nations High Commissioner for Refugees.

CHAPTER III

Characterization of Asylum

Article 8: Peaceful Character of Asylum

The grant of territorial asylum in accordance with Article 1, or the application of other articles of this Convention, is a peaceful and humanitarian act. It shall not be regarded as an act unfriendly to any other state and shall be respected by all states.

Article 9: Right of Qualification

Qualification of the grounds for granting asylum or applying the provisions of this Convention appertains to the Contracting State whose territory the person concerned has entered or seeks to enter and seeks asylum.

Article 10: (Note: No title for this additional article was adopted or

considered)

Nothing in this Convention shall prevent a Contracting State from granting asylum to persons referred to in Article 2, paragraph 1 under conditions more favorable than those laid down in this Convention or from granting asylum to persons other than those covered by this Convention, it being understood that in the latter case the provisions of this Convention shall not apply.

Diplomatic Asylum

On September 8, 1975, the United States communicated its views on the question of diplomatic asylum to the Secretary-General of the United Nations, pursuant to operative paragraph 1 of General

Assembly Resolution 3321 (XXIX). The United States statement follows:

The question of diplomatic asylum was addressed in some detail at the twenty-ninth session of the General Assembly by the United States Representative to the Sixth Committee during its consideration of the item entitled "Diplomatic asylum." The comments of the United States Representative may be found in the provisional summary records of the Sixth Committee (A/C.6/SR.1510 of December 3, 1974).

The Government of the United States maintains the basic propositions put forward in that statement, namely: (1) that diplomatic and territorial asylum are two completely different notions; (2) that the principles asserted as underlying the concept of diplomatic asylum are numerous, are not always articulated in a consistent manner by advocates of the concept, and do not, in fundamental regards, comport with universally accepted norms of international law; and (3) that the noteworthy practice of diplomatic asylum which has existed in Latin America has operated in large measure not merely through treaties, but by common unarticulated understandings.

As a consequence, the Government of the United States does not consider that the practice of diplomatic asylum in Latin America should be viewed as providing a basis for confidence that the practice could usefully be generalized to the international community. Accordingly, the Government of the United States, while considering that the past discussion of this item has resulted in a fruitful exchange of views and elucidation of issues, share the doubts of those governments which question the utility of further discussion of this item at the thirtieth session of the General Assembly.

U.N. Doc. A/10139 (Part I)/Add. 1, Oct. 9, 1975. For the comments of the U.S. Representative in the Sixth Committee on Nov. 29, 1974, and G.A. Res. 3321 (XXIX) of Dec. 14, 1974, see the 1974 Digest, pp. 115-119.

In Jhirad v. Ferrandina, 401 F. Supp. 1215 (1975), the U.S. District Court for the Southern District of New York, upon remand from the Court of Appeals, 486 F.2d 442, considered the question of whether Jhirad, the former Judge Advocate General of the Indian Navy charged with embezzlement, had left India with the "intent to flee from justice," thus tolling the statute of limitations. Otherwise the statute of limitations would have expired on September 27, 1966, and would have barred extradition.

The Court, on July 17, 1975, denied the petition for a writ of habeas corpus. It held that there was evidence of intent to flee where before petitioner and his wife left India in July 1966 to go on

"vacation," they disposed of various articles of personalty and left Jhirad's cases in the control of an associate; that the intent to flee could have matured when the supposed vacation exceeded by 150 percent their longest prior vacation; and that it was not necessary in international extradition proceedings to prove each element of the case beyond a reasonable doubt. Quoting from his earlier opinion in the same case, 362 F. Supp. 1060, Judge Kevin T. Duffy said:

This is an extradition case, involving activity which has taken place halfway around the world. The extradition procedures afforded by statute seek to preserve an element of judicial surveillance over a procedure which is basically an action of international comity. . . . In fact, the procedures fall strikingly short of a full trial.

Regarding the District Court's still earlier decision in this case, 355 F. Supp. 1155 (1973), see the 1973 Digest, pp. 8-10, 111–113.

Inter-American Draft Convention

On October 7, 1975, the United States Government transmitted to the Secretary General of the Organization of American States (OAS) its observations on the draft extradition convention approved by the Inter-American Juridical Committee in 1973, reserving its rights to make additional comments, if advisable, on the draft or any revised draft. The General Assembly of the OAS by Resolution 183 (V-O/1975) had requested the comments of governments so that they might be taken into account by the InterAmerican Juridical Committee in a study that Committee was instructed to make. Set forth below are the texts of the articles of the draft convention on extradition and the comments on certain of those articles made by the United States:

DRAFT INTER-AMERICAN CONVENTION ON EXTRADITION Approved by the Inter-American Juridical Committee on February 7, 1973

Article 1

The contracting states bind themselves, in accordance with the provisions of this Convention, to surrender persons who are under indictment for or judicially charged with, are being tried for, or have been convicted of an offense by another contracting state that requests their extradition.

Article 2

1 For extradition to be granted, the offense for which the person sought is under indictment or with which he is judicially charged, for which he is being tried, or of which he has been convicted must have been committed within the

jurisdiction of the requesting state according to its legislation in force at the time of the offense.

2. When the offense for which extradition is requested has been committed outside the territory of the requesting state, extradition may be granted provided the requesting state has jurisdiction to take cognizance of the offense that gave rise to the request for extradition and to pronounce judgment thereon.

Article 2, paragraph 1: This provision could be a cause of confusion or controversy if a requesting state asserts a jurisdictional basis which is not recognized by the requested state, e.g., jurisdiction over crimes committed beyond normally recognized limits or within 200 miles of the requesting state's coastline. Moreover, although the provision appears to contemplate extraterritorial jurisdiction, as recognized by the requesting state, that coverage should, in our view, be made explicit. We also suggest that where extraterritorial jurisdiction is asserted such jurisdiction must be recognized under the laws of the requested, as well as the requesting state. The article should also include specific references to jurisdiction over persons who have committed offenses under the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague December 16, 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971, and the 1971 OAS Convention on Terrorism. (Such crimes should also be included in the lists referred to in the Convention.)

Article 3

1. To determine whether extradition should be granted, the following rules shall also be applied:

a. If the extradition is to be carried out between states that, within the terms of this Convention, accept as the legal basis for extradition the length of the punishment applicable to the offense for which the person sought is under indictment or with which he is judicially charged, for which he is being tried, or of which he has been convicted, it shall be necessary that the offense, by reason of the acts that constitute it, disregarding extenuating circumstances and the denomination of the offense, be punishable, at the time of its commission, by imprisonment for at least one year under the laws of both the requesting and the requested state.

b. If the extradition is to be carried out between states that, within the terms of paragraphs 2, 3, and 4 of this article, have presented lists of offenses that are to be the basis for requesting or granting extradition, the offense for which the person sought is under indictment or with which he is judicially charged, for which he is being tried, or of which he has been convicted, must be included in the lists presented by both states, prior to the time the aforesaid punishable act was committed.

c. If the extradition is to be carried out between states of which one has accepted the length of the punishment and the other the list of offenses as the basis for requesting or granting extradition, the offense must be included in the list of the requesting or the requested state and likewise be punishable under the laws of both states by imprisonment for at least one year.

d. If the extradition is to be carried out between states whose laws establish minimum and maximum penalties, it shall be necessary that the offense

for which extradition is requested be punishable, under the laws of the requesting and the requested state, by imprisonment for a term averaging at least two years. Average penalty is understood to be one half of the sum of the minimum and maximum terms of each penalty of imprisonment. 2. The lists mentioned in this article shall be added to this Convention as an annex at the time it is signed or when the ratification of the Convention is deposited.

3. Any state may at any time change its position with respect to the legal bases set forth under (a) and (b) of paragraph 1 of this article, communicating the fact to the Organization of American States and submitting or withdrawing its lists as the case may be, so that the Organization may issue appropriate notification to the parties to the Convention. This change shall not have effect retroactively except when it would benefit the person sought, and it shall be understood that it is to become effective from the date of the aforementioned notification.

4. The lists may also be changed at any time by the state that has submitted them, communicating this fact to the Organization of American States, so that it may issue the appropriate notification to the parties to the Convention. This change shall not have effect retroactively except when it would benefit the person sought, and it shall be understood that it is to become effective from the date of the aforementioned notification.

Article 3, paragraph 1(d): While we see the advantages of the averaging of penalties provided for in this subparagraph, we wonder how a life sentence is to be treated.

Article 4

The request for extradition shall be made by the diplomatic agent of the requesting state, or, if none is present, by its consular officer, or, when appropriate, by the diplomatic agent of a third state to whom is entrusted, with the consent of the government of the requested state, the representation and protection of the interests of the requesting state. The request may also be made directly from government to government, in accordance with such procedure as the governments concerned may agree upon.

Article 5

1. The request for extradition shall be accompanied by the documents listed below, duly certified in the manner prescribed by the laws of the requesting state and completed with the legalization or other means of authentication required by the laws of the requested state:

a. A certification of the order holding him for trial or the warrant for arrest, or other document of equal legal force, issued by a competent judicial authority, as well as the evidence that, according to the legislation of the requested state, is sufficient for the arrest and trial of the person sought; b. A certified verbatim copy of the final judgment; when the person has been convicted of the offense by the courts of the requesting state.

C. The text of the legal provisions that define and penalize the alleged crime, as well as those of the statute of limitations governing the trial and the punishment.

2. The request for extradition shall also be accompanied by the translation into the language of the requested state, if appropriate, of the documents enumerated in the previous paragraph, as well as by personal data that will permit identification of the person sought and indication of his nationality, and