US -THAI EXTRADITION TREATY:

The practice of extradition between the US and Thailand is governed by the US – Thai Extradition Treaty signed in Washington in 1983(8). Article 2 of the Treaty contains the principle of dual criminality: “An offense shall be an extraditable offense for prosecution or for the imposition of a penalty or detention order only if it is punishable under the laws of both Contracting Parties by imprisonment or other form of detention for a period of more than one year or by any greater punishment.” This dual criminality standard has at least one problem. The wordings of the offences can significantly vary to such extent that a literal application and interpretation of national laws make it impossible to identify the presence of dual criminality. In other words, when a decision maker tries to determine whether an offence is extraditable or not, he or she can reach quite a different solution depending on the kind of legal reasoning employed. A judge or a prosecutor with a formalistic legal reasoning will look for the identity of the letter in criminal laws. A decision maker with legal reasoning formed within the theory of sociological jurisprudence will look for the identity of social interest protected by the relevant laws. A judge brought up in the spirit of historical jurisprudence may find it difficult to establish dual criminality if there is no common historical roots of particular offences. Finally, a decision maker with legal reasoning based on natural law will look for certain universal moral standards which justify imposition of criminal sanctions at issue. Thus, determining whether Mr. Rosser should be extradited could have many difficulties because Thai criminal law does not contain any explicit provision similar to the US sanction up to 15 years for sending, distributing and knowingly receiving child pornography by imprisonment.

Further, the US-Thai treaty contains two types of reasons which can bar extradition. One type of reasons contains so called mandatory grounds for refusal of extradition. If those reasons are present the requested state is obliged to deny the request. The treaty, or example, excludes political and military offences out of the scope of the treaty (Article 3). It also obliges the requested states not to extradite if it is established that the motives for the extradition request are purely political. Extradition treaties, including the US-Thai Treaty, include universal principles of justice in criminal proceedings that a person cannot be brought to trial more than once for the same crime whether he was convicted or acquitted.

There is a second type of reasons under which the requested state is allowed to refuse to extradite. These are called discretionary or optional grounds for refusal of extradition. Extradition can be denied on the basis of nationality when a person whose extradition is sought is a national of the requested state, providing that the requested state submits the case to its competent authorities for prosecution(9). It can be also denied when the offense for which extradition is requested was committed in the territory of the requested State provided that the requested State proceeds against the person sought, when the person sought is being or has been proceeded against in the requested State for the same offense(10).

Part 5

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(8) The text is available at: http://www.inter.ago.go.th/UN/UN%20(E)/English/Extradition/TEX%20USA%20(E).pdf
(9) Article 7 of the Treaty.
(10) Article 4 of the Treaty.