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United States Courts

Published online by Cambridge University Press:  28 March 2017

John R. Stevenson
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Extract

Wacker V. Bisson. 348 P. 2d 602.

U.S. Ct. App., 5th Cir., June 23,1965.

The appellant, J. Samuel Wacker, awaiting extradition to Canada, brings this off-beat declaratory judgment action attacking the validity of an unappealable extradition order. Since Wacker is in custody, he might just as well have cast the action in the form of an application for habeas corpus. Wacker, however, has twice tried that approach without success. In the complaint and on appeal, the plaintiff advances on all fronts, attacking the constitutionality of numerous international treaties anil conventions, challenging the extradition statute (as written and as applied), and making other contentions based on all possible, and some impossible, reasons for the invalidity of the extradition. Wacker names as defendant the Consul General of Canada, the demanding state. The District Court dismissed the complaint for lack of jurisdiction over the subject matter and over the person of the defendant. We reverse and remand, taking the view that the District Court has jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §2201 ff., to review collaterally the validity of the extradition proceeding.

Keywords

Sovereign immunitywaiver of immunity extends to separate action for declaratory judgment seeking collateral review of extradition hearing in which demanding government intervened
Type
Judicial Decisions Involving Questions of International Law
Information
American Journal of International Law , Volume 60 , Issue 2 , April 1966 , pp. 400 - 405
Copyright
Copyright © American Society of International Law 1966 

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Footnotes

*

Assisted by John E. Donnelly, Cornelius B. Prior, Jr., and William J. Williams, Jr., of the New York Bar.

References

1 A consul is not a diplomatic officer. Normally a consul cannot assert the immunity of a sovereign state. Restatement, Foreign Relations Law sec. 74(2) (a) and Comment a. But the Canadian consul has consular immunity for all acts within his official capacity, including the initiation of extradition proceedings. Restatement, Foreign Relations Law sec. 85(1). In the hearing and the prior habeas corpus suits, the nominal party was the Canadian Government, not the consul general. The consul general has acted throughout on behalf of the Canadian Government. For purposes of this opinion we see no reason to distinguish between the personal immunity of the consul and the sovereign immunity of the Dominion of Canada.