M v Federal Department of Justice and Police

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
Federal Department of Justice and Police

State succession Treaties Extradition Treaty between Switzerland and United Kingdom, 1880 Applicability to British Colonies Whether in force for South Africa after independence Clean slate theory Exceptions Conduct of parties concerned Tacit application of Treaty Extradition Double criminality Universal applicability Tacit acceptance in Treaty The law of Switzerland

Summary:The facts:M was a South African national whose extradition was sought by the South African authorities for offences of fraud and theft involving travel documents and travellers cheques. The extradition request was based on the Extradition Treaty between Switzerland and the United Kingdom concluded in 1880. M objected to his extradition on the ground that the Extradition Treaty was not applicable to extradition relations between South Africa and Switzerland.

Held:The Treaty was applicable and extradition was granted.

(1) The International Law Commission Final Draft Codification of the Law of State Succession with regard to Treaties (1974) reflected a considerable measure of agreement on the rules of international law governing the matter and was to be regarded as authoritative. The Draft adopted the clean slate rule under which newly independent States were not bound by treaties merely because they had been concluded by the predecessor State. State practice demonstrated, however, that there were certain categories of treaties which remained applicable following independence, although it was not possible to deduce any customary rule providing for treaties in such categories to remain in force automatically. Article 23(1) of the Draft Codification provided that bilateral treaties between the predecessor State and a third State would only be considered as being in force between the third State and the newly independent State if those two States so agreed. Such agreement could be either express or result from their conduct.

(2) A series of exchanges concerning extradition cases between 1956 and 1976, as well as a subsequent exchange of notes, clearly showed that the Swiss and South African authorities had consistently formulated extradition requests on the basis of the Treaty, without the requested State ever contesting this legal basis. They had therefore tacitly applied the Treaty which was therefore to be considered under international law as in force between the two countries.

(3) It was true that, in cases requiring the express agreement of a State, this could only be effected by the properly authorized organs of the State, such as the Ministry of Foreign Affairs. But where, as here, it was a question of the tacit further application of a treaty, this could be effected by those organs normally called upon to apply it.

(4) By reason of its universal validity, double criminality was a tacit precondition for the application of the Extradition Treaty even though it was not expressly mentioned in general form. Provided the act in question was punishable according to the criminal laws of both States it was not necessary that the facts charged were the subject of identical criminal provisions in the States concerned.

The following is the text of the judgment of the Court:

On 24 November 1977 a South African national, M, was arrested in Zurich. Using the name S, he had cashed at various banks in Zurich a number of American Express Travellers Cheques, originating from a consignment which had disappeared from a shipment from Great Britain to South Africa. He was apprehended in the act of attempting to cash further cheques at another bank. According to his own statements before the Zurich district attorney, M had obtained the cheques at a Johannesburg post office on 22 November 1977 by posing as an employee of the American Express Company...

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