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declared that nations, irrespective of their political, economic, and social systems or the levels of their development, should base their cooperation, inter alia, on respect for human rights and fundamental freedoms, 3. Mindful of the Universal Declaration of Human Rights and in particular Articles 13 and 14 of that Declaration and of the International Covenant on Civil and Political Rights and in particular Articles 12 and 13 of that Covenant, 4. Conscious that asylum is a matter of concern to the international community, 5. Bearing in mind the other instruments dealing with asylum and the status of refugees and of stateless persons, 6. Recalling the Declaration on Territorial Asylum adopted by the General Assembly of the United Nations on December 14, 1967, and recognizing the important advance made by this Declaration in formulating principles upon which states should base themselves in their practices relating to territorial asylum, 7. Noting the present practice of states in granting asylum and the general acceptance of the principles of non-refoulement and the voluntary nature of repatriation, expressed in various instruments adopted on the universal and regional levels, 8. Believing that the conclusion of a convention on territorial asylum will assist states to achieve those humanitarian objectives which are the common concern of the international community and will also thereby strengthen friendly relations between states, 9. Affirming the principles of international law embodied in the Charter of the United Nations and in particular the principle of universal respect for and observance of human rights and fundamental freedoms for all, 10. Have agreed upon the following Articles:
Grant of Asylum and Non-Refoulement Article 1: Grant of Asylum
Each Contracting State, acting in the exercise of its sovereign rights, shall use its best endeavors in a humanitarian spirit to grant asylum in its territory to any person eligible for the benefits of this Convention. Article 2: Application
1. A person shall be eligible for the benefits of this Convention if he, owing to a well-founded fear of:
(a) persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion including the struggle against colonialism and apartheid or
(b) prosecution or punishment for acts directly related to the persecution as set forth in (a), is unable or unwilling to return to the country of his nationality, or, if he has no nationality, the country of his former habitual residence.
2. The provisions of paragraph 1 of this Article shall not apply to any person with respect to whom there are serious reasons for considering that he has committed
(a) a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes; or
(6) a serious common offense under the laws and regulations of the Contracting State granting asylum.
(c) acts contrary to the purposes and principles of the United Nations. Article 3: Non-Refoulement
1. No person entitled to the benefits of this Convention who is in the territory of a Contracting State shall be subjected by such Contrcting State to measures such as return or expulsion which would compel him to return to a territory where his life or freedom would be threatened. Moreover, a Contracting State shall use its best endeavors to ensure that no person is rejected at its frontiers if there are well-founded reasons for believing that such rejection would subject him to persecution, prosecution or punishment for any of the reasons stated in Article 2.
2. The benefit of the present provision may not however be claimed by a person whom there are reasons for regarding as a danger to the security of 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.
International Cooperation Article 5: International Solidarity
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.
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.
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 1)/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-0/1975) 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.)
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