(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force. Set forth below are portions of H.R. 763:

§ 16. Criminial offenses committed by any member of the United States Armed Forces or by any person serving with, employed by, or accompanying the Armed Forces who is a national or citizen of the United States outside the United States, the Canal Zone, and the special maritime and territorial jurisdiction of the United States

Any national or citizen of the United States who, while serving as a member of the United States Armed Forces or serving with, employed by, accompanying the United States Armed Forces, is guilty of an act or omission committed or omitted outside the United States, the Canal Zone, and the special maritime and territorial jurisdiction of the United States

(1) while engaged in the performance of official duties; or

(2) within Armed Forces installations or the area of operations of a unit in the field; or

(3) against any member of the United States Armed Forces or any national or citizen of the United States serving with, employed by, or accompanying the United States Armed Forces

which this title expressly declares to be an offense if committed or omitted within the special maritime and territorial jurisdiction of the United States, shall, other than for petty offenses, be guilty of a like offense against the United States and subject to a like punishment as that provided by this title for offenses occurring within special maritime and territorial jurisdiction of the United States.

§ 17. Jurisdiction not exclusive

Nothing contained in this title deprives courts-martial, military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by courts-martial, military commissions, provost courts, or other military tribunals; . . .

§ 984. Delivery to authorities of foreign countries

(a) Any national or citizen of the United States serving with, employed by, or accompanying the armed forces outside the United States may be delivered to the competent authorities of the foreign country in which he is physically present and in which he is serving with, employed by, or accompanying the armed forces, if the competent authorities of that country request that he be delivered to them to be tried for an offense against the laws of that country.

§ 900. Applicability of treaties

The powers of apprehension, restraint, removal, delivery, and search and seizure authorized by sections 981, 982, 984, and 985 of this title shall, when exercised in a foreign country, be subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of customary international law;

In his prepared statement, Mr. Michel cited the following U.S. Supreme Court cases as having declared unconstitutional the trial by court-martial of Americans who are overseas in connection with the deployment of U.S. forces and who have

committed serious criminal offenses while abroad in peacetime: Kinsella v. Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278 (1960); and McElroy v. Gugliardo, 301 U.S. 281 (1960).

§3

Jurisdiction Based on Agreement With the
Territorial State

U.S.-Canada

Bilateral Agreements

On April 18, 1977, President Carter sent to the Senate with a view to receiving its advice and consent to ratification the Treaty between the United States and Canada on the Execution of Penal Sentences, which was signed on March 2, 1977. Set forth below are portions of the report with respect to the treaty submitted by Secretary Vance to President Carter on April 8, 1977:

The Treaty is essentially similar to that with the United Mexican States which was signed on November 25, 1976, and has already been submitted by you to the Senate. It would permit citizens of either nation who had been convicted in the courts of the other country to serve their sentences in their home country; in each case the consent of the offender as well as the approval of the authorities of the two Governments would be required.

The Treaty is intended both to relieve the special hardships which fall upon prisoners incarcerated far from home and to make their rehabilitation more feasible and also to relieve diplomatic and law enforcement relations between the two countries of the strains that arise from the imprisonment of substantial number of each country's nationals in the institutions of the other. It constitutes part of an ongoing effort to improve relations between the two countries. It is also part of various efforts to establish closer international cooperation in law enforcement activities. The Treaty is without a direct analogy in United States practice, except for the Status of Forces Agreement with the Republic of Korea (17 UST 1677; TIAS 6127), but there are multilateral arrangements of this kind among the Nordic countries and in the Council of Europe.

The basic terms of the Treaty are as follows. Each transfer would be contingent upon the consent both of the state which sentenced the prisoner (the Transferring State) and of the state which was to receive and confine him (the Receiving State). The decision to transfer would be made on the basis of the whole record of the prisoner and the authorities' estimate as to the likelihood that the transfer would be beneficial (article III). In each case, the express consent of the prisoner concerned would have to be obtained, there can be no involuntary transfer under this Treaty. Certain categories of prisoners are excluded from the terms of the Treaty: (1) military offenders; (2) those having less than six months to serve when processing of their

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transfer begins; and (3) offenders against the immigration laws (article II). The program is basically one between the two Federal Governments. Prisoners who are transferred become the responsibility of the Federal Government in the Receiving State. However, a state or province in either country which wishes to allow some of the prisoners which it holds to be transferred may exercise that option if it chooses.

When a prisoner has been transferred, the following procedures govern his treatment thereafter. The original sentence would carry over to his new confinement, preserving deductions for good behavior in prison, labor done by him and pretrial confinement. The Transferring State retains the power to grant pardon or amnesty. With these exceptions, the execution of the sentence is to be carried out according to the rules and practices prevailing in the state to which he is transferred (article IV (1)). In particular, the rules of the Receiving State as to parole will determine the date at which the prisoner is released from confinement. Each nation is to report to the other on the manner in which it is administering the confinement of transferred prisoners.

The Treaty provides in article II(3) that no prisoner will be transferred until the time for leave to appeal has expired and that no proceedings by way of appeal or collateral attack be pending. It further provides that any collateral attack on the sentence must proceed through the courts of the country which imposed the sentence (article V).

The Treaty will require implementing legislation to give it effect within the United States.. . .

S. Ex. H, 95th Cong., 1st Sess, V-VI.

By a vote of 95 in favor and none opposed, the Senate gave its advice and consent to ratification of this treaty on July 19, 1977. See 123 Cong. Rec. S 12269 (daily ed.). However, the United States did not exchange instruments of ratification with Canada concerning this treaty in 1977.

The Agreement under art. IV of the Mutual Defense Treaty of Oct. 1, 1953, regarding Facilities and Areas and the Status of United States Armed Forces in Korea, with agreed minutes and exchange of notes was signed on July 9, 1966 (TIAS 6127; 17 UST 1677; 674 UNTS 163; entered into force on Feb. 9, 1967).

For further information concerning the Treaty between the United States and Mexico on the Execution of Penal Sentences, see the 1976 Digest, Ch. 6, § 3, pp. 282-292.

U.S.-Mexico

On July 21, 1977, the Senate by a vote of 90 in favor and none opposed gave its advice and consent to ratification of the Treaty between the United States and Mexico on the Execution of Penal Sentences signed on November 25, 1976. On October 31, 1977, Deputy Secretary of State Warren Christopher exchanged instruments of

ratification for this treaty with Mexican Ambassador Hugo B. Margain. The treaty entered into force on November 30, 1977.

123 Cong. Rec. S 12553 (daily ed. July 21, 1977).

For further information concerning this treaty, see the 1976 Digest, Ch. 6, § 3, pp. 282-292.

Legislation on Prisoner Exchange Treaties

On October 28, 1977, President Carter signed into law an act to provide for the implementation of treaties for the transfer of offenders to or from foreign countries (Public Law 95-144; 91 Stat. 1212). Portions of President Carter's remarks on signing this act follow:

We have about 2,000 American prisoners incarcerated in foreign lands. Historically we've had an arrangement with the Scandanavian countries that when we have their prisoners in our jails or when they have our prisoners in their jails, that we exchange those American citizens and their citizens. And now we are extending this principle to Mexico and also to Canada.

We have 575 Americans in Mexican prisons, and we have 250 Americans in Canadian prisons. And after negotiating these treaties, we now have implemented that process legally by which these prisoners might be exchanged.

If they so desire, Mexican and Canadian prisoners in our jails can go back to their own lands to serve out their terms, and vice versa concerning our own American citizens in Mexican and Canadian prisons.

13 Weekly Comp. of Pres. Doc. 1673 (Oct. 31, 1977).

The text of the Act on Treaties for the Transfer of Offenders to or from Foreign Countries, which amends 18 U.S.C. 4100 et seq., appears below:

§ 4100. Scope and limitation of chapter

(a) The provisions of this chapter relating to the transfer of offenders shall be applicable only when a treaty providing for such a transfer is in force, and shall only be applicable to transfers of offenders to and from a foreign country pursuant to such a treaty. A sentence imposed by a foreign country upon an offender who is subsequently transferred to the United States pursuant to a treaty shall be subject to being fully executed in the United States even though the treaty under which the offender was transferred is no longer in force.

(b) An offender may be transferred from the United States pursuant to this chapter only to a country of which the offender is a citizen or national. Only an offender who is a citizen or national of the United States may be transferred to the United States. An offender may be transferred to or from the United States only with the offender's consent, and only if the offense for which the offender was sentenced satisfies the requirement of double criminality as defined in this chapter. Once an offender's consent to transfer has been verified by a verifying officer, that consent shall be irrevocable. If at the time of transfer the offender is under eighteen years of age the transfer shall not be accomplished unless consent to the transfer be given by a parent or guardian or by an appropriate court of the sentencing country.

(c) An offender shall not be transferred to or from the United States if a proceeding by way of appeal or of collateral attack upon the conviction or sentence be pending.

(d) The United States upon receiving notice from the country which imposed the sentence that the offender has been granted a pardon, commutation, or amnesty, or that there has been an ameliorating modification or a revocation of the sentence shall give the offender the benefit of the action taken by the sentencing country.

84101. Definitions

As used in this chapter the term

(a) "double criminality" means that at the time of transfer of an offender the offense for which he has been sentenced is still an offense in the transferring country and is also an offense in the receiving country. With regard to a country which has a federal form of government, an act shall be deemed to be an offense in that country if it is an offense under the federal laws or the laws of any state or province thereof;

(b) "imprisonment" means a penalty imposed by a court under which the individual is confined to an institution;

(c) "Juvenile" means

(1) a person who is under eighteen years of age; or

(2) for the purpose of proceedings and disposition under chapter 403 of this title because of an act of juvenile delinquency, a person who is under twentyone years of age;

(d) "juvenile delinquency" means

(1) a violation of the laws of the United States or a State thereof or of a foreign country committed by a juvenile which would have been a crime if committed by an adult; or

(2) noncriminal acts committed by a juvenile for which supervision or treatment by juvenile authorities of the United States, a State thereof, or of the foreign country concerned is authorized;

(e) "offender" means a person who has been convicted of an offense or who has been adjudged to have committed an act of juvenile delinquency;

(f) "parole" means any form of release of an offender from imprisonment to the community by a releasing authority prior to the expiration of his sentence, subject to conditions imposed by the releasing authority and to its supervision;

(g) "probation" means any form of a sentence to a penalty of imprisonment the execution of which is suspended and the offender is permitted to remain at liberty under supervision and subject to conditions for the breach of which the suspended penalty of imprisonment may be ordered executed;

(h) "sentence" means not only the penalty imposed but also the judgment of conviction in a criminal case or a judgment of acquittal in the same proceeding, or the adjudication of delinquency in a juvenile delinquency proceeding or dismissal of allegations of delinquency in the same proceedings;

(i) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

(1) "transfer" means a transfer of an individual for the purpose of the execution in one country of a sentence imposed by the courts of another country; and

(k) "treaty" means a treaty under which an offender sentenced in the courts of one country may be transferred to the country of which he is a citizen or national for the purpose of serving the sentence.

§ 4105. Transfer of offenders serving sentence of imprisonment

(a) Except as provided elsewhere in this section, an offender serving a sentence of imprisonment in a foreign country transferred to the custody of the Attorney General shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who had been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing court.

(b) The transferred offender shall be given credit toward service of the sentence for any days, prior to the date of commencement of the sentence, spent