5. There has been no protest lodged by the Government of Senegal with reference to the departure of Mr. Orsini from Senegal to the United States. 424 F. Supp. 235.

The extradition documents described in the fifth finding of fact are described in the following note which the U.S. Embassy in Dakar presented to the Ministry of Foreign Affairs of the Republic of Senegal:

As requested by the Ministry of Foreign Affairs in conversations with the chargé d'affaires a.i. of the Embassy on August 21, 1975, the United States Government has prepared and delivered to the Embassy the following attached documentation which it hopes will meet the requirements of the Senegalese Government for the extradition of Dominique Orsini: warrants, indictments, affidavits concerning crimes committed and laws violated, and affidavits on the background of the acts done by the fugitive upon which the warrants and indictments are based. The foregoing documentation has been authenticated by the Attorney General and by the Secretary of State of the United States and has been translated into the French language. It was delivered to the Embassy on this date by the Assistant Legal Adviser of the United States Department of State, Mr. Louis G. Fields, Jr. Mr. Fields is presently in Dakar and would be available to respond to any legal questions or possible requests for further information from the Government of Senegal. Mr. Fields is accompanied by a representative from the United States Drug Enforcement Agency, Mr. Anthony Bocchichio, who has served as agent for the Orsini Case and is fully conversant with the facts of the prosecution of Orsini. Mr. Fields and Mr. Bocchichio would also be available to serve as escort in the event that the Government of Senegal decides to extradite Orsini to the United States.

The Government of the United States again expresses its appreciation for the assistance and cooperation of the Government of Senegal and reiterates its earlier assurances of its desire to cooperate fully with the Senegalese Government in providing any further information which might be required in connection with its request for the extradition or expulsion of Dominique Orsini to the United States.

Dept. of State File No. P77 0123-639.

The United States did not have an extradition treaty with Senegal at the time of the expulsion of Mr. Orsini.

Subsequent to the arrest of Mr. Orsini, the Embassy of France sent a note to the Dept. of State requesting the return to France of Mr. Orsini. The Dept. of State response indicating that Mr. Orsini might be returned to the country whence he came after his release by U.S. officials follows:

Mr. Orsini, who was indicted on July 24, 1974, by a Grand Jury of the United States District Court for the Eastern District of New York for conspiracy to import into the United States large quantities of heroin and cocaine in violation of United States law, entered a plea of guilty to this charge in a hearing before United States District Judge Henry Bramwell on September 28, 1976. Judge Bramwell is expected to sentence Mr. Orsini in approximately five weeks, whereupon Mr. Orsini will be delivered into the custody of the Attorney General or his authorized representative to serve whatever term of imprisonment permitted by law the Court may prescribe. The offense to which Mr. Orsini has pled guilty carries a maximum term of imprisonment of up to twenty-five years.

In view of Mr. Orsini's plea and the fact that he is thus subject to the penalty required by law, the Department regrets that it is unable to consider the request of the Embassy of France at this time. Upon the expiration of such term of imprisonment affixed by the Court or his earlier release by the U.S. Parole Board. Mr. Orsini will automatically be subjected to an exclusion hearing under Section 1226, Title 8 of United States Code since he was paroled into the United States for the purpose of a Federal prosecution. It is usual to re

turn persons excluded pursuant to the provisions of United States law to the country whence he came, which in this case is the Republic of Senegal. Dept. of State File No. P76 0158-1506.

For discussion of United States v. Toscanino, supra, see the 1974 Digest at Ch. 6, § 1, pp. 251-254, the 1975 Digest at Ch. 6, § 1, pp. 333-339, and the 1976 Digest at Ch. 3, § 2, p. 71, Ch. 6, § 1, pp. 280, 287, 288.

Marine Mammal Protection Act of 1972

In the case of United States v. Mitchell, 533 F.2d 996 (1977), the U.S. Court of Appeals for the Fifth Circuit, Circuit Judge John Minor Wisdom, held that the criminal prohibitions of the Marine Mammal Protection Act of 1972 "do not reach conduct in the territorial waters of a foreign sovereignty." Id. 997. The question presented was "whether the Marine Mammal Protection Act of 1972 (MMPA), 16 U.S.C. 1361 et seq., and related regulations 50 CFR 216.11 (1974), apply to an American citizen taking dolphins within the three-mile limit of the Commonwealth of the Bahamas." Id. The Court indicated in its opinion issued on June 13, 1977, that the "parties stipulated that the defendant had a Bahamian work permit to capture the dolphins." Id.

The defendant contended that, though "Congress has the power to control the conduct of American citizens overseas, Congress did not intend to exercise its legislative authority to establish subject matter jurisdiction over takings, possessions, and sales of marine mammals in foreign countries." Id. 1001.

The Court considered two principles of statutory construction in analyzing the question of the intent of Congress "to apply the criminal prohibitions of the MMPA extraterritorially."

First, United States v. Bowman, 1922, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149, requires us to examine the nature of the law: [Some laws] are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. Id. at 98, 43 S.Ct. at 41, . . . . Second, if the nature of the law does not mandate its extraterritorial application, then a presumption arises against such application. Bowman, 260 U.S. at 98, 43 S.Ct. 39; . . . . To overcome the presumption and to apply the statute beyond the territory of the United States, the Government must show a clear expression of congressional intent. . . .

Id. 1002 (citations omitted).

As to the first proposition, the Court found that the "nature of the MMPA does not compel its application in foreign territories." Id.

When Congress considers environmental legislation, it presumably recognizes the authority of other sovereigns to protect and exploit their own resources. Other states may strike balances of interests that differ substantially from those struck by Congress. The traditional method of resolving such differences in the international community is through negotiation and agreement rather than through the imposition of one particular choice by a state imposing its law extraterritorially. With regard to the MMPA, Congress stated in section 1383 that the Act is not intended to contravene "the provisions of any existing international treaty, convention, or agreement, or any statute implementing the same, which may otherwise apply to the taking of marine mammals."

Id. 1002-1003.

As to the second proposition concerning statutory construction, the Court found no "clear expression of congressional intent for application of the Act in foreign territories" in either the statute or its legislative history. Id. 1003. Among the reasons cited by the Court were the following:

the permit system established in sections 1373 and 1374 does not seem to contemplate extraterritorial jurisdiction. No mammal may be taken without a permit under sections 1371 and 1372. Any permit issued must be consistent with regulations established under section 1373. And the regulations must be promulgated "on the basis of the best scientific evidence available and in consultation with the Marine Mammal Commission." How the Secretary of Commerce or the Commission would gather scientific evidence to promulgate regulations regarding takings in other sovereign countries is unclear. Because of the reliance on scientific data, the permit system seems designed for application in the United States and on the high seas where such data may be collected without restriction from other jurisdictions. The inference again arises that extraterritorial application beyond the high seas was not intended.

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.. It is no small matter when, in effect, this nation countermands a permit of another nation allowing the permittee to work in the territorial waters of the foreign country. We cannot say that the interests of the United States in preserving dolphins outweighs the interest of the Commonwealth of the Bahamas in preserving its character as a tourist attraction by the issuance of a limited number of permits for the capture of dolphins within its narrow band of territorial waters. If the moratorium was meant to extend the reach of the statute to the territorial waters of every country in the world, the sponsors of the amendment would certainly have recognized a duty to explain the need for such an extension on the floors of Congress and in the committee reports.

Id. 1004.

On July 21, 1977, James H. Michel, Assistant Legal Adviser for Politico-Military Affairs, Department of State, testified before the Subcommittee on Immigration, Citizenship, and International Law of the Committee on the Judiciary of the House of Representatives in support of H.R. 763 and H.R. 6148, bills introduced in the 1st Session of the 95th Congress to extend the jurisdiction of U.S. Federal courts over offenses committed outside of the United States. H.R. 763, introduced by Representative Charles E. Bennett, bears the following title:

To subject certain nationals or citizens of the United States to the jurisdiction of the United States district courts for their crimes committed outside the United States and to provide for the apprehension, restraint, removal, and delivery of such persons.

H.R. 6148, introduced by Representative Dale Milford for himself and Representative Olin E. Teague, is entitled as follows:

To amend title 18 of the United States Code to discourage certain criminal conduct in Antarctica by United States nationals and certain foreign nationals and to clarify the application of United States criminal law to such conduct.

The Subcommittee also received for the record a written statement by Ambassador Robert C. Brewster, Deputy Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, concerning H.R. 6148. The statement of Ambassador Brewster appears in part below:

H.R. 6148, by adding a new section, section 16, to title 18 of the United States Code would extend Federal criminal law relating to the special maritime and territorial jurisdiction of the United States to Antarctica. The bill covers acts and omissions of U.S. nationals and, in limited instances, foreign nationals. The legislation would also add a new section 3062 to title 18, permitting the President to authorize any member of a United States expedition in Antarctica to perform various law enforcement functions to implement the provisions of the new section 16.

. . [W]e support enactment of . . . H.R. 6148 . .

We believe that such legislation is needed to fill a gap which currently exists in our criminal legislation regarding criminal offenses committed in Antarctica. United States military personnel in Antarctica are adequately covered by the United States Uniform Code of Military Justice, but there is a gap in the coverage of our criminal legislation with respect to civilians. This is becoming increasingly significant as more and more civilians are taking part in the

United States Antarctic program. Moreover, increasing tourist activity in Antarctica involves a significant number of United States citizens, and some foreign nationals visit U.S. stations in the course of visits to Antarctica.

The United States has not made, and does not recognize territorial claims by any state in Antarctica. Accordingly, we believe that no state may assert criminal jurisdiction over persons committing crimes in Antarctica on the basis of territorial sovereignty. We believe, however, that, apart from relying on the territorial principle, United States legislation could, consistently with international law, prescribe law for crimes committed by United States citizens in Antarctica or by non-U.S. citizens in Antarctica who are either accompanying a United States expedition or committing crimes against United States citizens or United States Government property. We also believe that United States courts can try such persons alleged to have committed the crimes prescribed. But in the case of a foreign national, we believe it desirable to refrain, as . . . H.R. 6148. . . [has] done, from criminal prosecution if the country of his or her nationality asserts jurisdiction before trial has begun.

We believe that this proposed legislation is needed to assure that United States citizens committing crimes in Antarctica will be prosecuted, while providing them with due process of law and other protections to which they are entitled under the United States Constitution. We also believe that it will be a deterrent to possible criminal conduct in Antarctica and will thus serve to protect members of American expeditions.

From the foreign affairs standpoint, such legislation will give assurance to the other parties to the Antarctic Treaty that prosecution can and will take place in cases where their nationals are the victims of criminal actions by our citizens. This, in turn, will strengthen the United States position in resisting possible attempts by other Antarctic states to exercise jurisdiction over United States citizens committing a crime within territory claimed by that state. Such an attempt could undermine our position with respect to nonrecognition of territorial claims. On this point, I should point out that the largest U.S. base in Antarctica, McMurdo Station, is in a sector of the continent claimed by New Zealand.

In conclusion, may I reiterate the Department of State's support of H.R. 6148 and our hope that legislation such as this be enacted soon in order to fill this very real gap with respect to potential criminal conduct in Antarctica.

Statement of Robert C. Brewster before the House Judiciary Committee Subcommittee on Immigration, Citizenship and International Law, July 21, 1977. The Antarctic Treaty (TIAS 4780; 12 UST 794; 402 UNTS 71; entered into force for the United States on June 23, 1961) was signed on Dec. 1, 1959. Portions of the text of H.R. 6148 as introduced on Apr. 6, 1977, appear below:

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