Jonathan W. Leeds^*
Chaninat & Leeds Co., Ltd., Thailand Attorneys

The basic problem encountered in international law enforcement efforts is the principle of national Sovereignty, which operates as a barrier to a foreign nation asserting jurisdiction outside of its borders. The principle of Sovereignty can be summarized as the government’s exclusive power within its own borders, and virtually nowhere else; and it is this doctrine that presents the greatest obstacle to the international enforcement of criminal law. According to the principle of sovereignty , the effective jurisdiction of a state law enforcement powers extends no farther than its own borders.²⁶

The primary basis for criminal jurisdiction involving bilateral treaties between states is the territorial principle which allows for jurisdiction over persons or things within a state’s territory or conduct outside the territory which has substantial effects on it (The latter variant is known as “objective territorial jurisdiction”, or the “effects” doctrine). Although a state may claim extraterritorial effect for its criminal laws, it does not have the power to enforce those laws outside its borders.²⁷ Therefore the principle of Sovereignty requires that transnational law enforcement efforts be carried out through the aid of bilateral agreements.²⁸

There are two principle bilateral treaties between the United States and Thailand controlling the role of law enforcement and the cooperation of law enforcement between the two countries. The Treaty on Mutual Assistance on Criminal Matters was signed in Bangkok on March 19, 1986, and went into force on June 10, 1993.²⁹ The second treaty is the extradition treaty.³⁰ In addition to the above, Thailand and the United states have also entered into a Memorandum of Understanding on Cooperation in the Narcotics Field.³¹

Gathering evidence in foreign jurisdictions has proved to provide a number of obstacles primarily due to differences in law enforcement systems.³² In furtherance of their goals, the United States uses a number of techniques to facilitate the collection and admissibility of evidence from abroad. One of the primary techniques used is the Mutual Legal Assistance Agreement (MLAT).

Prior to the use of MLAT’s, the United States had to rely on the process of Letters Rogatory for obtaining of evidence from abroad. However this process was considered time consuming and cumbersome.³³ When the United States first began considering the use of MLAT’s, they looked to Western Europe, where most evidentiary requests are governed by the European Convention on Mutual Assistance ion Criminal Matters.³⁴ The first US MLAT was negotiated with Switzerland in 1973, prompted by concerns that organized criminals were exploiting Swiss secrecy laws to hide illegally obtained assets.³⁵

The Thai-US MLAT, signed on March 19, 1986, and entering into force on June 10, 1993³⁶, attempts to provide a flexible framework to allow joint law enforcement, and evidence and witness transferal between the two nations. Pursuant to the treaty, each contracting State has an obligation to provide assistance in: a) taking statements and testimony, b) providing documents, records, or evidence, c) serving documents, d) executing requests for search and seizures, e) transferring persons in custody for testimonial purposes, f) locating persons, initiating proceedings upon request, and g) assisting in forfeiture proceedings.³⁷ Thus the treaty provides the framework for one government to effectively make use of the other’s police forces in carrying out its objectives. In contradistinction to the Thai-US Extradition treaty, the MLAT has no requirement of dual criminality, i.e., assistance, pursuant to the treaty, shall be provided whether or not the acts which are the subject of the investigation are prohibited by the law of the requested State.

In the United States, extradition³⁸ capabilities rely primarily upon bilateral treaties and make little use of international treaties.³⁹ Some authorities assert that the United States is the world leader in the negotiation of bilateral law enforcement treaties. There are many reasons for this, the most obvious of which is that the United States, unlike many other common law and civil law countries, lacks domestic legislation authorizing extradition in the absence of a treaty.⁴⁰

One of the greatest frustrations to the United States efforts to prosecute violators of its laws living abroad has been the refusal of most governments to extradite their own citizens. There are two views on the question of extradition of one’s own nationals, one representing the approach of common law nations, and the other reflecting the attitude of civil law states. This situation has sometimes resulted in the US taking unilateral action to abduct fugitives from a foreign country.⁴¹ The common law nations, emphasizing the strict territoriality of the crime freely extradite their nationals⁴², while the civil law states, emphasizing a citizen’s right to be protected in his homeland, and the exigencies of trial before a foreign court steadfastly deny extradition.⁴³

Thailand, in general accord with its civil law heritage, is reluctant to extradite its nationals. The applicable legislation, in the absence of a treaty, reserves the right of the Thai government to refuse extradition, based on its duty to protect its citizens, concerns regarding a fair hearing, abroad, humanitarian concerns, and issues of sovereignty.⁴⁴

The United States has devoted increasing energy to the re-negotiation of outdated extradition treaties.⁴⁵ Thailand’s original extradition treaty with the United States dates back to December 30,1922. The current extradition treaty between the United States and Thailand was signed on December 14,1983, and entered into force on May 17,1991.⁴⁶

The US-Thai treaty allows for non-extradition of a requested state’s own nationals in certain exceptional cases, such as political and military offenses,⁴⁷ and also provides that a state may refuse to extradite a person for an offense which was committed in whole or in part within its territory. The Treaty does however include a vicarious prosecution clause that requires the State that refuses extradition to proceed against that person according to its own laws.⁴⁸

Part 3

26) Research in International law under Auspices of the Faculty of the Harvard Law School, Jurisdiction with Respect to Crime, 29 AM. J. INT’L L 435 (Supp. 1935); see also Zagaris & Rosenthal, United States Jurisdictional Considerations in International Criminal Law, 15 CAL.W. INT’L L.J. 303, 305-310 (1985).  
27) Nadelmann, supra note 1, at 41.  
28) Id. at 41  
29) Treaty on Mutual Assistance in Criminal Matters, March 19, 1986, US-Thail., Hein’s No. KAV 1941, (entered into force on June 10, 1993).  
30) Extradition Treaty, December 14, 1983, US-Thail., Hein’s KAV 1940, (entered into force May 17, 1991). 
31) Memorandum of Understanding on Cooperation in the Narcotics Field, US-Thail., September 28, 1971, T.I.A.S. 7185 (entered into force September 28, 1971).
32) Nadelmann, supra note 1, at 57
33) See Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 554 (1953). 
34) European Convention on Mutual assistance in Criminal Matters, Apr. 20, 1959, Europ. T.S. No. 30; see also Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Mar 17, 1978, Europ. T.S. No. 99.  
35) Treaty on Mutual Assistance in Criminal Matters, May 25, 1973, United States-Switzerland 27 U.S.T. 2019, T.I.A.S. No . 8302 For an analysis of the treaty negotiation process, see Nadelmann, Negotiations in Criminal Law Assistance Treaties, 33 AM. J. COMP. L. 467, 470-81 (1985) ; see also Ellis & Pisani, The Unite States Treaties on Mutual Assistance in Criminal Matters, in 2 INTERNATIONAL CRIMINAL LAW; PROCEDURE 151 (M. Bassiouni ed. 1986).  
36) Extradition Treaty, US-Thai supra note 29.  
37) Treaty between the Government of the Kingdom of Thailand and the Government of the United States of America on Mutual Assistance in Criminal Matters, supra, Note 28, arts. 1, 2
38) The classic definition of extradition is found in Terlinden v. Ames, 184 US 270, 289 (1902): Extradition may be sufficiently defined to be the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and punish him, demands the surrender. See also Ortega v. Kansas City, Kan., 875 F.2d 1497, 199-1500 (10th Cir. 1989)  
39) Nadlemann, supra Note 1 at 65  
40) Id. at 65  
41) Pursuant to the Ker-Frisbie rule, under certain circumstances, the United states may abduct fugitives from a foreign country without first obtaining the foreign state’s consent. See Ker v. Illinois, 119 US 436, 7 S.Ct 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 US 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952) However, if the United States has an extradition treaty with the foreign country, it is necessary either to obtain the foreign state’s cooperation or consent prior to apprehension, or for the foreign state not to protest the apprehension. See United States v. Verdugo-Urquidez, 939 F.2d 1341 (9th Cir. 1991).
42) SHEARER, EXTRADITION IN INTERNATIONAL LAW 42 at 102(1971).  
43) Id. at 118 
44) Prarachabanyat song poo rai kam dan (The Statute Concerning Extradition in the Thai Kingdom (B.E. 2472) arts 2.3-2.5, states that: “If there is no treaty or bilateral convention or contract, Thailand is not bound to extradite its citizens to a requesting country based on the following considerations:
           2.2. A nation has a duty to protect its citizens, and look after their well-being, and extradition may violate that duty;
           2.3. There is concern that the extradited Thai national may not receive a fair hearing, particularly if the requesting country is an enemy of Thailand, or there is a political dispute between Thailand and that country.
           2.4. Extradition of one’s own nationals violates the principle that citizens have a right to live in their own country, and may indirectly amount to banishment from one’s own homeland
           2.5 The extradition of one’s own nationals is an affront too the sovereignty of the nation. “
45) Evans, The New Extradition Treaties of the United States, 59 AM. J. INT’L. L. 351, 352 (1965)
46) Extradition Treaty, US -Thail. supra Note 29.  
47) Extradition Treaty US-Thai supra note 29 at art. 3.  
48) Id. at art. 4