When is a State Acting “Pursuant” to a Treaty

Last month the Eleventh Circuit in Valencia-Trujillo v. United States rendered an unusual decision that required the court to decide whether a state was acting “pursuant” to a treaty. If it was, the defendant had standing to pursue the action. If it was not, then he had no such standing.

In extradition jurisprudence, the so-called “specialty rule” provides that “a person who has been brought within the jurisdiction of the court, by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition.” The rule is grounded in principles of international comity, recognizing that “[b]ecause the surrender of the defendant requires the cooperation of the surrendering state, preservation of the institution of extradition requires that the petitioning state live up to whatever promises it made in order to obtain extradition.”

A defendant only has standing to challenge an extradition for violating the specialty rule if the extradition occurred pursuant to a treaty. The Eleventh Circuit ruled that with respect to Valencia-Trujillo’s extradition from Colombia, his extradition did not occur pursuant to the United States-Colombia Extradition Treaty, but rather pursuant to an informal extradition agreement between the two countries. Here is the key excerpt:

Valencia-Trujillo’s theory of standing is based on his assertion that he was extradited under the United States-Colombia treaty of 1979, which expressly provides for the rule of specialty…. The parties agree that if Valencia-Trujillo was extradited under that treaty, he would have a private right to enforce the rule of specialty.

The problem for Valencia-Trujillo is that he has not established that he was extradited under a United States-Colombia extradition treaty. In asserting that he was, Valencia-Trujillo relies heavily on a 1999 State Department Memorandum from the American Embassy in Colombia to the United States Secretary of State and Department of Justice. That memorandum states that most extraditions from Colombia to the United States occur by treaty and are done according to a particular set of procedures…. Those procedures for the “well-established, treaty-based extradition of Colombian citizens to the United States” mirror the procedures followed during Valencia-Trujillo’s extradition….

Although the State Department memorandum says that it is “unlikely” that the Colombian government would use different procedures from those it describes, it does contemplate that extraditions can occur outside of the 1979 treaty. The most that the State Department memorandum establishes is that extraditions from Colombia to the United States are generally governed by the 1979 extradition treaty, and that Valencia-Trujillo was extradited through procedures consistent with those used under the treaty. The memorandum does not, however, establish that Valencia-Trujillo was actually extradited under the treaty. The diplomatic note that was sent by the American Embassy to Colombia invokes the Colombian Constitutional amendment, the Criminal Procedure Code and applicable international law principles. It conspicuously does not invoke or even mention the 1979 Colombia-United States treaty, and Valencia-Trujillo has pointed to no part of his extradition documents that does.

Unless extradition conditions or restrictions are grounded in self-executing provisions of a treaty, they do not have “the force and effect of a legislative enactment” that the defendant has standing to assert in the courts of this country. Because Colombia’s extradition of Valencia-Trujillo to the United States was not based on an extradition treaty between the two countries Valencia-Trujillo lacks standing to assert the rule of specialty.

The court’s standing analysis seems strange. The correspondence between the two countries does not mention the treaty, but the two countries followed well-established procedures required under the treaty. The defendant alleges a treaty violation with respect to one particular aspect of the extradition process, but there is no dispute that in all other relevant respects the treaty procedures were followed. But the court holds that he cannot invoke the treaty because he could not establish that the treaty was being followed. Under this reasoning all a country has to do to avoid a treaty obligation is to avoid any mention of the treaty in fulfilling its obligations. Only if the treaty is expressly referenced does it have any teeth.

I suppose the one consolation is that if the specialty rule reflects concerns for international comity, then it really is Colombia’s interests that are being protected. If so, then Colombia can protect those interests by insisting that the extradition occurs pursuant to the treaty. This would create standing for the defendant to challenge an extradition treaty violation.