constitutional argument . . . ." The Supreme Court affirmed the remand of the case by the Eleventh Circuit to the district court. Jean v. Nelson, 472 U.S. 846.

In an effort to halt the clandestine migration of numerous Haitians to the United States, including the recruitment of would-be migrants in Haiti by promoters exacting large sums of money for passage in unseaworthy vessels, the United States and Haiti, by an exchange of notes dated Sept. 23, 1981, at Port-au-Prince, entered upon an Agreement Relating to Establishment of a Cooperative Program of Interdiction and Selective Return of Certain Haitian Migrants and Vessels Involved in Illegal Transport of Persons Coming from Haiti. TIAS 10241; entered into force, Sept. 23, 1981. Under the agreement, the U.S. Government requested, and obtained, the consent of the Haitian Government to the boarding by U.S. Government authorities of private Haitian flag vessels, where such authorities have reason to believe that the vessels may be involved in the irregular carriage of passengers outbound from Haiti. Upon boarding a Haitian flag vessel in accordance with the agreement, U.S. Government authorities were authorized to address inquiries, examine documents and take necessary measures to establish the vessel's registry, condition and destination, and the status of those on board. When such measures would suggest that an offense against U.S. immigration laws or appropriate Haitian laws has been or is being committed, the Haitian Government consented to the detention on the high seas by the U.S. Coast Guard of the vessels and persons found on board.

The Haitian Government agreed to permit upon prior notification the return of detained vessels and persons to a Haitian port, or, circumstances permitting, their release on the high seas to Haitian Government representatives. The Haitian Government also agreed upon prior notification to permit the return to a Haitian port of a U.S. flag vessel, outbound from Haiti and engaged in such illegal trafficking. In case of detention of a Haitian flag vessel, U.S. Government authorities must inform Haitian Government authorities promptly of action taken and keep them fully informed of any subsequent developments. The U.S. Government agreed to the presence of a Haitian Naval representative as liaison aboard any U.S. vessel engaged in implementing the cooperative program.

The Government of Haiti agreed, to the extent permitted by its law, to prosecute illegal traffickers of Haitian migrants not having permission to enter the country of a vessel's destination and to confiscate its own or stateless vessels engaged in such trafficking. The U.S. Government agreed, to the extent permitted by its law, to prosecute traffickers of U.S. nationality and confiscate U.S. vessels engaging in such trafficking.

The Haitian Government gave assurances that Haitians returned to Haiti and who are not traffickers would not be subject to prosecution for illegal departure. The parties stated their understanding that under the arrangements agreed upon the United States did not intend to return to Haiti any Haitian migrants whom United States authorities determine to qualify for refugee status.

TIAS 10241; entered into force, Sept. 23, 1981.

By Proclamation 4865, “High Seas Interdiction of Illegal Aliens", dated Sept. 29, 1981, President Ronald Reagan declared that the ongoing migration of persons to the United States in violation of U.S. laws is a serious national problem detrimental to U.S. interests, and that the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States is a particularly difficult aspect of the problem. The President proclaimed, therefore, that the entry of undocumented aliens from the high seas was suspended and would be prevented by interdiction of certain vessels carrying such aliens.

See, further, Exec. Order 12324, dated Sept. 29, 1981, requiring the Secretary of State to enter into, on behalf of the United States, cooperative arrangements with foreign governments to prevent illegal migration to the United States by sea, and requiring the Secretary of the Department in which the Coast Guard is operating to

issue instructions to the Coast Guard in order to enforce the suspension of entry of undocumented aliens and the interdiction of any vessels, defined in the Order, carrying such aliens.

3 CFR, 1981 Comp. (1982), pp. 50-51, 180-182.

The Haitian Refugee Center again brought suit, challenging the legality of the interdiction agreement in the U.S. District Court for the District of Columbia. On Jan. 10, 1985, District Judge Charles R. Richey dismissed the complaint in Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985), for failure to state a claim upon which relief could be granted. Upholding the interdiction agreement both on constitutional and on statutory grounds, the Court ruled, among other things, that: (1) the Refugee Act and the Immigration and Nationality Act do not provide aliens outside the United States with the right to apply for "refugee" status nor with the right to "exclusion procedures"; (2) the program of interdiction does not violate due process under the Fifth Amendment; and (3) neither the 1951 U.N. Convention Relating to the Status of Refugees (and its 1967 Protocol) nor the Universal Declaration of Human Rights (1948) provides rights upon which plaintiffs might rely.

See, further, Haitian Refugee Center, Inc. v. Gracey, No. 85-5258 (D.C. Cir., appeal docketed Mar. 18, 1985).

Foreign Procedural Definition of "Charge"

In the Matter of Jan Alf Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied, 451 U.S. 938 (1981), involved the question, inter alia, whether provisions in the 1961 Convention on Extradition between the United States and Sweden, referring to the extradition of persons "charged with or convicted of" offenses enumerated in the Convention, required that a formal document, called a "charge" in the Swedish criminal code, have been filed against the individual requested.

The extradition magistrate had ordered Assarsson to be extradited to Sweden for trial on charges of arson, fraud, and attempted fraud and, subsequently denying reconsideration of the extradition order, ruled that Assarsson had been charged "under the terms of the treaty", even though the time for filing formal criminal charges against him had been extended for 2 more years by the Swedish court. The district court, after a hearing, denied Assarsson's petition for a writ of habeas corpus, upholding each of the magistrate's determinations. On appeal to the Seventh Circuit, Assarsson asserted, as he had before the magistrate and before the district court, that he could not be extradited because the formal document, the "charge", had not yet been filed against him.

The United States Court of Appeals for the Seventh Circuit held on October 31, 1980, that the existence of a formal charge was a reviewable question, only if the treaty itself conditioned extradition for the offenses therein set out upon the existence of such formal charges. The Court found that the United States-Swedish convention on

extradition did not "so condition extradition", and noted that several of its articles did place other conditions upon extradition.

Assarsson also argued that an arson in Copenhagen, Denmark, with which he had been charged by Swedish authorities was not an extraditable offense under the convention, because, he asserted, only “dual criminality" would support extradition for extraterritorial offenses and the United States generally would not prosecute for crimes committed outside its borders. The Seventh Circuit also rejected this contention, ruling that under the convention's language the executive had been given discretion to extradite for extraterritorial offenses.

In the meantime, Assarsson had obtained a stay of a 1978 order of commitment, which had been continued pending his appeal from the district court's denial of his first petition for habeas corpus on Apr. 11, 1979.

Following the Seventh Circuit's decision, Assarsson again applied for a writ of habeas corpus, arguing that the applicable U.S. 5-year statute of limitations, 18 U.S.C. 3282, had expired without having been tolled by either a grant of extradition or a Swedish "legal proceeding" sufficient to satisfy the requirements of American law. The U.S. Government moved to dismiss, arguing that the statute of limitations had been tolled by the magistrate's order of commitment, dated Oct. 20, 1978, and that the Seventh Circuit's decision barred consideration of whether Assarsson were "charged" under the provisions of the 1961 Convention on Extradition between the United States and Sweden. In addition and in the alternative, the Government contended that Assarsson was a fugitive from justice because he refused to return to Sweden, once he had knowledge of the pending criminal charges against him.

On Mar. 3, 1981, District Judge John F. Grady denied the petition for habeas corpus, holding that the stay had prevented any further action on the magistrate's order of Oct. 20, 1978, and had thus prevented it from reaching the Department of State for ruling on extradition in the normal course. The doctrine of equitable estoppel, the Court said, barred Assarsson from now raising the statute of limitations. The district court specifically rejected the Government's additional and alternative argument that Assarsson was a fugitive from justice, being unable to find, it said, that a legally resident alien who while on American soil first learned of criminal charges pending against him in his home country was a fugitive from justice. The court found "untenable" the Government's contention that mere absence from the jurisdiction made one a fugitive.

Dept. of State File No. P82 0033-2022.

On appeal, the Seventh Circuit on Feb. 10, 1982, affirmed the district court's ruling on the basis of equitable estoppel. In the Matter of Jan Alf Assarsson, 670 F.2d 722 (1982). Following denial of Assarsson's application for rehearing and rehearing en banc on June 8, 1982, Assarsson's extradition to Sweden was carried out on June 18, 1982.

The Convention between the United States of America and the Kingdom of Sweden on Extradition, with Protocol, signed at Washington, Oct. 24, 1961, is at TIAS 5496; 14 UST 1845; entered into force, Dec. 3, 1963 (the Protocol terminated Jan. 1, 1965).

A continuing lack of success in obtaining extraditions from Sweden led the Department of Justice to request the Department of State to arrange discussions with appropriate Swedish Embassy officials at Washington. See, Attorney Murray R. Stein, Department of Justice, to Assistant Legal Adviser for Management Knute E. Malmborg, letter, Jan. 9, 1979, Dept. of State File No. P84 0113-1072.

Further consultations with officials from the Swedish Ministries of Foreign Affairs and Justice in Oct. 1979 at Stockholm indicated that Swedish courts had been applying an evidentiary standard higher than that required for probable cause and that, moreover, in some cases they appeared to have conducted minitrials as to the guilt or innocence of a requested fugitive. The discussions indicated a desire on both sides to modernize the 1961 Convention in other important areas, and in Feb. 1980 negotiations were resumed at Washington, which concluded with the initialing of a Supplementary Convention on Extradition on Feb. 29, 1980.

The Supplementary Convention, signed at Washington on May 27, 1981, would have amended, inter alia, Art. I, to clarify that the obligation to extradite includes those persons "who are sought for the purpose of prosecution, who have been found guilty of committing an offense, or who are wanted for the enforcement of a sentence, in respect of any offense specified or described in Article II . . . committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article IV. . . .”

See, the report on the Supplementary Convention on Extradition from Acting Secretary of State William Clark to President Reagan, dated July 15, 1981, transmitted by the President with his letter to the Senate, dated July 28, 1981, requesting its advice and consent to ratification of the Supplementary Convention. S. Treaty Doc. 97-15, 97th Cong., 1st sess. (1981).

The Supplementary Convention would have provided in Art. XI that a request for extradition in the case of a person sought for the purpose of prosecution must be supported by a certified copy of the warrant or decision of arrest (häktningsbeslut) and by "such evidence as would provide probable cause to believe, according to the laws of the requested State, that the person sought has committed the offense for which extradition is requested."

After the Supplementary Convention had been signed, however, a decision rendered by the Swedish Supreme Court led experts of both governments to conclude that the problem in obtaining orders of extradition from Sweden to the United States had been caused not only by the evidentiary standard applied by Swedish courts but also by their practice of “looking behind” the requests and conducting minitrials, at which the fugitive was permitted to contradict documentary evidence submitted by the United States with live testimony that was not, however, subject to cross-examination on behalf of the United States. In consequence, conflicts in the evidence were resolved in favor of the fugitive, and the extradition request would be denied. (U.S. courts, on the contrary, do not permit fugitives to contradict the documentary evidence submitted by a requesting country.)

The Department of State thereupon asked the Senate to defer consideration of the 1981 Supplementary Convention, for which it negotiated a replacement, initialed at Stockholm on Nov. 3, 1981, and signed at Stockholm on June 22, 1982. The replacement would have provided, inter alia, in Art. XI that a warrant or decision of arrest and "such supplementary evidence as would provide probable cause to believe that the person sought committed the offense for which extradition is requested. . . shall be recognized as sufficient grounds for extradition, unless, in a specific case, it appears that the warrant or decision of arrest is manifestly ill-founded."

Secretary of State George P. Shultz submitted the replacement convention to President Reagan in a report dated Aug. 17, 1982, recommending its transmittal to the Senate for advice and consent to ratification. Dept. of State File No. P83 0145-0534. Subsequently, the Swedish Government requested certain textual revisions in the replacement Supplementary Convention, that it believed would more clearly express the intent of the parties, and the Department of State requested that transmittal of the substitute Supplementary Convention, signed June 22, 1982, be postponed. See, Deputy Legal Adviser Daniel W. McGovern to Richard G. Darman, Assistant to the

President and Deputy to the Chief of Staff, memorandum, Sept. 10, 1982, ibid., No. P84 0117-2220.

On Mar. 14, 1983, another substitute Supplementary Convention on Extradition between the United States and Sweden was signed at Stockholm. President Reagan transmitted it to the Senate for advice and consent to ratification in a letter dated May 24, 1983, in which he withdrew the Supplementary Convention signed at Washington on May 27, 1981, transmitted earlier. S. Treaty Doc. 98-4, 98th Cong., 1st sess. (1983). A minor change in the language of Art. I from the 1981 Supplementary Convention corresponded to a major change in Art. II, carried forward from the 1982 replacement Supplementary Convention; viz., instead of listing specific offenses for which extradition might be granted, Art. II "follows the more modern practice of making an offense extraditable if it is punishable under the laws of both states by deprivation of liberty for at least 2 years or, in the case of a sentenced offender, at least 6 months of the sentence remain to be served." Ibid., p. vi.

Art. XI(3) read:

(3) A request for extradition relating to a person who is sought for prosecution also shall be accompanied by:

(a) evidence providing probable cause to believe that the person sought is the person to whom the warrant or decision of arrest refers;

(b) a certified copy of the warrant of arrest, issued by a judge or other competent judicial officer with respect to a request emanating from the United States, or a certified copy of the decísion of arrest (häktningsbeslut) issued by a judge or other competent judicial officer with respect to a request emanating from Sweden, and such supplementary documentation as provides probable cause to believe that the person sought committed the offense for which extradition is requested. Such a warrant or decision of arrest and supplementary documentation shall be recognized as sufficient grounds for extradition, unless, in a specific case, it appears that the warrant or decision of arrest is manifestly ill-founded.

A memorandum by Michael E. Abbell, Associate Director, Office of International Affairs, Department of Justice, forwarded to Deputy Legal Adviser Daniel W. McGovern under date of Apr. 14, 1983, states:

The change of the word "evidence" to the word "documentation" has been made for the purpose of making it clear to the courts of both countries that evidence in the form of affidavits, depositions, and other documents is all that is required for the courts to find persons extraditable under the Treaty. . .

Dept. of State File No. P84 0113-1071.

See, also, S. Ex. Rept. 98-27, 98th Cong., 2d sess. (1984), p. 5.

The Senate Committee on Foreign Relations reported favorably upon the Supplementary Convention on Extradition, signed at Stockholm, Mar. 14, 1983. On June 28, 1984, the Senate by a vote of 100-0 gave its advice and consent to ratification of the Supplementary Convention on Extradition. Cong. Rec., Vol. 130, No. 91 (daily ed. June 28, 1984), p. S8574.

TIAS 10812; entered into force, Sept. 24, 1984.

Provisional Arrest

In Caltagirone v. Grant, 629 F.2d 730 (2d Cir. 1980), the United States Court of Appeals for the Second Circuit, reversing the district court's denial of a petition for writ of habeas corpus, held on June 26, 1980, that the Treaty on Extradition between the United States and Italy, signed at Rome, January 18, 1973 (TIAS 8052; 26 UST 493; entered into force March 11, 1975), required a showing of probable cause not only on requests to the United States for formal extradition, but also on requests to the United States for provisional arrest pending submission of a formal extradition demand.