[Federal Register: January 25, 1999 (Volume 64, Number 15)]
[Notices]               
[Page 3735-3736]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja99-112]

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DEPARTMENT OF STATE

[Public Notice 2960]

 
Office of the Legal Adviser; Application of Certain United States 
Extradition Treaties to Parental Kidnapping

AGENCY: Department of State.

ACTION: Notice.

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SUMMARY: On October 31, 1998, President Clinton signed into law the

[[Page 3736]]

Extradition Treaties Interpretation Act of 1998 (Title II of Public Law 
105-323). That Act authorizes the interpretation of the word 
``kidnapping'' in international extradition treaties of the United 
States to include parental kidnapping. An earlier Federal Register 
notice issued by the State Department's Legal Adviser reflected a more 
limited interpretation of the word kidnapping in extradition treaties. 
This Notice explains the change in U.S. policy in this area, including 
the context of Public Law 105-323.

EFFECTIVE DATE: October 31, 1998.

FOR FURTHER INFORMATION CONTACT: Samuel M. Witten, Office of the Legal 
Adviser, Department of State (202-647-7324).

SUPPLEMENTARY INFORMATION: Title II of Public Law 105-323, the 
``Extradition Treaties Interpretation Act of 1998,'' addresses a unique 
issue that has arisen in the last twenty years of U.S. extradition 
practice. The U.S. Government's international extradition treaties 
negotiated prior to the late 1970's typically limit extradition to 
specific listed offenses and include the word ``kidnapping'' in the 
negotiated lists of those offenses. About 75 of the U.S. Government's 
approximately 110 extradition treaty relationships fall in this 
category of ``list'' treaties that include the word ``kidnapping''.
    At the time these list extradition treaties were negotiated, the 
term ``kidnapping'' was generally understood in U.S. criminal law to 
exclude abductions or wrongful retentions of minors by their parents. 
In keeping with this narrow interpretation, on November 24, 1976 the 
State Department Legal Adviser issued a Federal Register Notice with a 
model ``Bilateral Treaty on Mutual Extradition of Fugitives'' which 
included the offense of ``kidnapping'' in the list of extraditable 
offenses while simultaneously noting that the model treaty would not 
reach ``domestic relations problems such as custody disputes.'' See 
Federal Register, Vol. 141, No. 228, page 51897. Subsequently, the 
State Department has not interpreted such ``list'' treaties to permit 
extradition requests that would have construed the word ``kidnapping'' 
to include parental kidnapping.
    U.S. law on this subject has evolved dramatically since most of 
these list treaties were negotiated. Parental kidnappings are now 
crimes at the federal level (see United States Code, Title 18, Section 
1204), in all of the 50 states, and in the District of Columbia. Both 
in the context of abductions and wrongful retention of children from 
the United States in violation of these laws and, more generally, in 
the interest of enhanced international law enforcement cooperation 
under our extradition treaties, this narrow interpretation became the 
subject of concern on the part of the U.S. Departments of Justice and 
State, state and local prosecutors, and parents who would like the 
greatest possible flexibility in dealing with parental kidnapping 
situations.
    In addition, as U.S. extradition practice evolved, the practice of 
including lists of extraditable offenses in extradition treaties was 
gradually abandoned in favor of generally permitting extradition for 
any crime that is punishable in both the requesting and requested 
States by more than one year's imprisonment. This advance in treaty 
practice made the list treaty situation particularly anomalous because 
parental kidnapping was typically an extraditable offense under the 
modern extradition treaties that rely on ``dual criminality'' rather 
than lists of offenses, so long as the relevant treaty partner has also 
criminalized the offense and all other conditions of the treaties are 
met.
    Normally, the interpretation of ``list'' treaty offenses would 
simply evolve to reflect the evolution of new aspects of crimes that 
are identified in the list treaties. In this instance, however, the 
U.S. view had been widely disseminated, including by publication in the 
Federal Register in 1976, as a fixed policy of the U.S. Government. 
Therefore, in 1997 the State and Justice Departments brought this issue 
to the attention of the Congress. These consultations led to Public law 
105-323, which addresses the matter by clarifying that ``kidnapping'' 
in extradition list treaties may include parental kidnapping, thus 
reflecting the major changes that have occurred in this area of 
criminal law in the last 20 years. With this clarification, the 
Executive Branch is now in a stronger position to make and act upon the 
full range of possible extradition requests dealing with parental 
kidnapping under list treaties that include the word ``kidnapping'' on 
such lists. This will help achieve the goal of enhancing international 
law enforcement cooperation in this area. The United States would, 
however, adopt this broader interpretation only once it has confirmed 
with respect to a given treaty that this would be a shared 
understanding of the parties regarding the interpretation of the treaty 
in question.
    This change in the interpretation of ``kidnapping'' for purposes of 
extradition treaties is entirely unrelated to and would have no effect 
whatsoever on the use of civil means for the return of children, in 
particular under the Hague Convention on the Civil Aspects of 
International Parental Child Abduction. It addresses only countries 
with which we have ``list'' extradition treaties and would have no 
effect with respect to countries with which the United States has no 
extradition relationship or countries where we have a dual criminality 
treaty.
    The adoption of this expanded interpretation with respect to each 
specific treaty, however, will depend of course on the views of the 
other country in question, as the interpretation of terms in a 
bilateral treaty must depend on a shared understanding between the two 
parties. The United States recognizes that not all countries have 
criminalized parental kidnapping, and many continue to treaty custody 
of children as a civil or family law matter that is not an appropriate 
subject for criminal action. We also recognize that this is an evolving 
area of criminal law and that some countries which do not currently 
criminalize this conduct may decide to do so in future years. For this 
reason, we will consult with our list treaty partners and will adopt 
the expanded interpretation only where there is a shared understanding 
to this effect between the parties.

    Dated: January 11, 1999.
David R. Andrews,
The Legal Adviser, U.S. Department of State.
[FR Doc. 99-1585 Filed 1-22-99; 8:45 am]
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