R v DPP and Another, ex parte Schwartz
| Jurisdiction | Jamaica |
| Judgment Date | 01 December 1976 |
| Date | 01 December 1976 |
| Court | Supreme Court (Jamaica) |
(Melville, Rowe and Wright JJ.)
States as international persons State succession International conventions United Kingdom-United States Extradition Treaty, 1931 made applicable to Colony of Jamaica Whether continued as part of laws of Jamaica after independence Clean slate theory Application of Whether a customary rule of international law Conduct of parties concerned Jamaican Constitution 1962 The law of Jamaica
The individual in international law Extradition Extraditable crimes Enumerative method of characterization Conspiracy to commit crime Whether separate from attempt Extradition Act 1870 The law of Jamaica
Treaties Termination of By operation of law In general United Kingdom-United States Extradition Treaty, 1931 made applicable to Jamaican colony Whether continued as part of laws of Jamaica after independence Clean slate theory Application of Whether predecessor States treaties can ever be revived Express agreement or conduct The law of Jamaica
States as international persons State succession In matters of extradition United Kingdom-United States Extradition Treaty, 1931 made applicable to Colony of Jamaica Whether continued as part of laws of Jamaica after independence Clean slate theory Application of Whether a customary rule of international law Incorporation into municipal law Whether contrary to statutes Jamaican Constitution 1962 Conduct of parties concerned Extraditable crimes Enumerative method of characterization Conspiracy to commit crime Whether separate from attempt Extradition Act 1870 The law of Jamaica
Summary: The facts:The applicant, a Jamaican national, had been convicted by a United States court of conspiring to import, sell and transport dangerous drugs within the jurisdiction of the United States. The applicant returned to Jamaica where she was detained pending extradition. She applied for a writ of habeas corpus, contending inter alia that there was no valid extradition treaty between the two countries and that conspiracy was not an extraditable crime under the Extradition Act 1870 as amended. She contended that under the theory that a new State commenced life with a clean slate as regards treaty obligations, the Extradition Treaty of 1931 between the United Kingdom and the United States, which had been made applicable to Jamaica when it was a British colony, had ceased to have effect when Jamaica became independent in 1962.
Held (unanimously):The application was granted.
(1) It was a moot point whether the clean slate theory had become part of customary international law. If not, then it ought not to be adopted in Jamaican municipal law. On the assumption that the theory was a customary rule of international law, it had to be considered whether it could be incorporated into municipal law. While, in general, customary rules of international law formed part of municipal law, the clean slate theory was inconsistent with the Constitution of Jamaica which provided that all laws enacted prior to independence continued thereafter. Jamaica and the United States had furthermore acted in reliance on the continued existence of the Treaty which had therefore continued to subsist between the two countries.
(2) Since 1794 Britain had followed the enumerative method of characterizing extraditable crimes, i.e. each crime was specifically named in the treaty. It was clear that attempts to commit some named crimes and conspiracy to commit such crimes were each expressly listed in the Extradition Act. However, since the Act only made attempts to commit offences related to dangerous drugs an extraditable crime, it followed that the conspiracy crime for which the applicant's return was sought was not an extraditable crime.
Per Rowe J.: It was incorrect to say that by applying the clean slate theory, at the instant of time when Jamaica became independent, Jamaica was automatically freed from its predecessor State's treaties in such a way that those treaties could never be revived by express agreement of the States or by their conduct.
The following is the text of the judgments delivered in the Supreme Court:
Melville, J.: Mrs. Dafney Schwartz, the applicant, was committed under extradition proceedings by a resident magistrate for the Parish of Saint Andrew on April 5, 1976, to the Half Way Tree Lock-up to await her return to the United States of America where it is alleged d she had been convicted of Conspiring with others to import and to sell and transport dangerous drugs within the jurisdiction of the United States District Court Eastern District of New York.
She applied to this court for a writ of habeas corpus which, after a hearing lasting four days, was granted. We promised to put our reasons in writing and this I now proceed to do.
Briefly, the facts are that the applicant, a Jamaican by birth, and her husband, apparently an American citizen, were put on trial for conspiracy in the Eastern District court of New York on March 24, 1975. Preliminary hearings before the selection of a jury seem to be a part of the proceedings in the New York courts and the beginning of the preliminary hearings is, apparently, the start of the trial. The applicant was present at those hearings on March 24 and 25, but on the 26th she was absent. The trial continued in her absence and a conviction was subsequently recorded against her. In the meantime the applicant sought refuge in her native land to flee the injustice and oppression of the United States of America according to her affidavit. Proceedings were subsequently launched by the Government of the United States of America under the Extradition Acts 18701932 for the return of the applicant culminating in the application before this court.
Mr. Ramsay, on behalf of the applicant, argued a number of grounds some of which I need not refer to having regard to the conclusion at which I have arrived. These had mainly to do with what transpired, or did not transpire, at the hearing in the New York court, and to the allegedly oppressive manner in which those proceedings were held thereby resulting in a breach of natural justice. Suffice it to say that although some of the procedural methods of the New York court may not have evoked much sympathy in our courts there was ample evidence before the resident magistrate to justify the conclusion that those proceedings were properly conducted.
Although I propose to deal with the arguments advanced by Mr. Ramsay in a different order from that in which he advanced them, I trust it will not be thought that I attached any less importance to the one than to the other.
Turning first to his submission that there was no valid, legal, modern Extradition Treaty between the United States and Sovereign Jamaica, he argued that at the stroke of midnight on August 5, 1962, when Jamaica became an independent nation, all former treaties entered into by the United Kingdom as a high contracting party on behalf of Jamaica died. In international law, said he, the relations between states are governed by treaties and, as before independence, Jamaica was not and could not have been a high contracting party, generally all treaties undertaken for her as a subject territory expired at independence as they could not bind the new Juristic creature (Jamaica). Although he was prepared to concede that certain treaties in rem may continue after independence, unless they were expressly denounced, there was no such concept in so far as treaties in personam, of which an extradition treaty is an example, are concerned. This concept sometimes finds expression as the clean slate theory, that is, that a newly independent State begins its life with a clean slate, except in regard to local or real obligations. That this is so finds expression in the Report of International Law Commission on the work of its twenty-sixth Session (to be published as the official records of the General Assembly twenty-ninth. Supplement No. 10 (A/9610/Rev. 1)), art. 15 of which recommends that:
A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.
The devolution agreement or Exchange of Letters between the newly independent State (Jamaica) and its predecessor (the United Kingdom)see the Jamaica Gazette of April 25, 1963did not, argued Mr. Ramsay, constitute any agreement in relation to the Extradition Treaty of 1931 between the United Kingdom and the United States, and between Jamaica and the United States for the reason that it purported to assume treaty rights and obligations which had already expired so that there would be nothing to assume. Alternatively, and in any event, the devolution agreement did not take in the United States as a third party so as to constitute a novation of the rights and obligations to be placed on a third party. As a further alternative even if the third party (i.e. the United States) were willing, or even tacitly accepted those rights and obligations, that would not amount to a formal actus so as to create treaty relations in international law. Lastly, submitted Mr. Ramsay, even if the...
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