¹ See Elman, P., “The Retroactivity of the U.S.-Israel Extradition Treaty” (1966) 1 Is. L.R. 356.Google Scholar The writer gratefully acknowledges the kindness of Mr. Elman in making his MS. available to him in advance, a kindness which made possible the present helpful exchange of views.

² See to this effect Schultz, , Das Schweizerische Auslieferungsrecht, 1953, 98.Google Scholar See also Mercier, , “L'Extradition” (1930–III) 33 Recueil des cours 171 at 188–89.Google Scholar

³ Cf. Moore, , Digest of International Law vol. IV, 1906, p. 269.Google Scholar

⁴ Seven out of the eleven published extradition treaties concluded by Israel.

⁵ Elman, loc. cit., 362.

⁶ Article 23 of the Israeli-Swedish Extradition Treaty of 10 September 1963, which came into force on 2 September 1964 and was published in Kitvei Amana (hereinafter referred to as K.A.) No. 510 of 20 July, 1965, vol. 15, p. 28 at 37.

⁷ See to this effect Schultz, op. cit. 99.

⁸ K.A. No. 360 of 23 November 1960, vol. 11, p. 65 at 73; 377 United Nations Treaty Series (hereinafter referred to as “UNTS”) 331 at 350.

⁹ K.A. vol. 15, p. 37.

¹⁰ Those concluded with Italy, France, Switzerland, South Africa and Austria; it might be added that at the time of writing—March 1966—the treaty with France has not yet come into force.

¹¹ K.A. No. 354 of 31 March 1960, vol. 10, p. 649 at 659, and 373 UNTS 47 at 67. Cf. also article 34 of the treaty with Italy (K.A. No. 232 of 28 April 1957, vol. 7, p. 667 at 678; 316 UNTS, 97 at 135), article 23 of the treaty with France (K.A. No. 308 of 13 October 1959, vol. 10, p. 379 at 387), article 18(2) of the treaty with Switzerland (K.A. No. 309 of 8 October 1959, vol. 10, p. 391 at 398; 377 UNTS, 305 at 323) and article 21(2) of the treaty with Austria (K.A. No. 454 of 10 July 1962, vol. 13, p. 1 at 13; 448 UNTS, 161 at 190).

¹² See McNair, , The Law of Treaties, 1961, p. 194 ff.Google Scholar See also Moore, op. cit., vol. V, p. 244. It has been stated by Jones that “a large number of writers… have argued that ratification is retroactive to the date of signature.” (Jones, , Full Powers and Ratification, 1949, p. 92.Google Scholar) Among the exponents of this view Jones mentions Westlake, Hall and Hyde (ibid. 93, n. 1).

¹³ McNair, op. cit. 194. See also the commentary to article 11 of the Harvard Research Draft on the law of treaties, stating that “the doctrine of retroactivity is well established in American jurisprudence” (1935) 29 A.J.I.L. Supplement, 803.

¹⁴ See e.g. article 11 of the Harvard Research Draft stipulating that “unless otherwise provided in the treaty itself, a treaty which comes into force subsequently to the time of signature shall not be deemed to have effect as from the time of signature.” (Ibid. 799). Similarly, article 21(1) (c) of the first report on the law of treaties submitted by Sir Humphrey Waldock, Special Rapporteur, to the 14th session of the International Law Commission (1962) it is stated that “unless the treaty itself shall expressly provide for the retrospective operation of all or any of its clauses, the rights and obligations laid down in the treaty shall come into operation for each party only from the date of entry into force of the treaty with respect to that particular treaty.” (Yearbook of the International Law Commission 1962, vol. II, p. 71.) In the commentary to article 21(1) (c) of his draft, the Special Rapporteur points out that the principle enunciated therein “is generally considered today to be an unquestionable principle.” (Ibid.)

At the 657th meeting of the Commission of 5 June 1962 the Special Rapporteur raised the question “whether it was necessary to include the provision of [article 21] paragraph 1(c).” (Ibid., vol. I, p. 179.) Although no member of the Commission referred in the discussion to this point, the said provision was deleted from article 23 of the Commission's draft of 1962, which corresponds to article 21 of the Special Rapporteur's draft. (Ibid., 182.) See also article 23 of the draft articles adopted by the Commission in 1965 (Report of the International Law Commission on the Work of its 17th Session, 1965, U.N. Doc. A/6009, p. 9). In the light of these proceedings it must be assumed that the Commission regarded the principle of non-retroactivity of treaties as so well established that it did not deem it necessary to include in the draft article an express provision to that end.

¹⁵ Dissenting Opinion of JudgeMoore, in the Mavrommatis Palestine Concessions case, Permanent Court of International Justice, Series A, No. 2, p. 57.Google Scholar (Written in 1924.)

¹⁶ Cf. Waldock, , Special Rapporteur in his first report on the law of treaties: “…even in 1935 it was regarded in the Harvard Research Draft as requiring extended discussion.” (Yearbook of the International Law Commission 1962, vol. II, p. 71.Google Scholar) The change that has taken place on this point is explained by the fact that in the past “ratification was regarded as a confirmation of signature” (Jones, , “The Retroactive Effect of the Ratification of Treaties” (1935) 29 A.J.I.L. 51 at 64Google Scholar; my italics), while it is now regarded “as being this formal acceptance”. (Ibid. 65; emphasis in original.)

¹⁷ For the treaties with France see K.A. No. 31 of 18 November 1951, vol. 2, p. 1, and 219 UNTS, 215; K.A. No. 82 of 21 April 1953 vol. 3, p. 361, and 219 UNTS, 221; K.A. No. 131 of 18 February 1954, vol. 4, p. 139, and 219 UNTS, 225; K.A. No. 160 of 9 January 1955, vol. 5, p. 51, and 219 UNTS, 229.

For the treaties with Belgium see K.A. No. 159 of 2 January 1955, vol. 5, p. 39, and 188 UNTS, 251; K.A. No. 204 of 30 December 1956, vol. 7, p. 373, and 207 UNTS, 367; K.A. No. 214 of 26 February 1957, vol. 7, p. 549, and 234 UNTS, 367.

¹⁸ 67 British and Foreign State Papers (hereinafter referred to as “BFSP”) 5.

¹⁹ 94 BFSP, 7; 100 BFSP, 472; 104 BFSP, 131.

²⁰ 67 BFSP, 16.

²¹ 94 BFSP, 19. This article differs from article XI of the Anglo-French Extradition Treaty in that it makes the prescription exemption dependent on the laws of the requested State, as distinct from those of the requesting State.

²² Though conceivably it could be argued that, despite the immediate technical one-year limit of legal operation, the Parties, in fact, envisaged its renewal for subsequent periods. Since, however, the periods of limitation of the relevant penal prescriptions are usually of the order of 15 years and upwards, this argument is difficult to sustain.

²³ See Schultz, op. cit. 99.