The opinion of the court was delivered by: WEINSTEIN
A writ of habeas corpus is sought to obtain the release of Hu Yau-Leung, a minor, being held for extradition to Hong Kong pursuant to a treaty between this country and the United Kingdom. He is a British subject and former Hong Kong resident living in the United States with his parents, who are permanent resident aliens. The Treaty on Extradition requires that the acts committed abroad constitute a felony under both American and Hong Kong law. Extradition is opposed on the ground that the petitioner would not be subject to a felony prosecution in the federal courts had the alleged acts been committed here, but that he could only be adjudicated a juvenile delinquent. In this proceeding of apparent first impression, petitioner's contentions are sustained.
Hu Yau-Leung, now seventeen years old, left Hong Kong for the United States on February 15, 1980. On June 13, 1980, in response to a request by the United Kingdom, he was arrested in the United States in anticipation of his extradition. 18 U.S.C. §§ 3184, 3187.
At an extradition hearing before a magistrate it was established that a warrant of arrest was issued in Hong Kong on June 2, 1980, charging Hu Yau-Leung with participation in two robberies in violation of Section 10(1) of the Theft Ordinance of Hong Kong, denominating such activities as felonies. Cap. 210, Laws of Hong Kong. The robberies are said to have involved forcible entry into residential apartments, the brandishing of knives and the binding and gagging of the victims. At the time of the alleged robberies, petitioner was sixteen years old. A Certification of Extraditability and Order of Commitment was issued on July 24, 1980; it provided for petitioner's return to Hong Kong upon the issuance of an extradition warrant by the Secretary of State. 18 U.S.C. § 3184.
Petitioner's parents have been living in this country for some years employed steadily as servants by employers who speak highly of them and describe a close and loving relationship among Hu, his sister and their father and mother. Since coming to this country the boy has lived with his parents and sister, has gone to public school where his adjustment is good, and has made friends among his contemporaries. He is a well built, handsome young man, mature for his age, who appears to have superior intelligence and who has, obedient to the wishes of his parents, concentrated on school, returning home each evening to study. There is no hint of any delinquency on his part since he arrived in this country.
A district court's power to review the extradition decision of the magistrate is limited to three issues: (1) whether the magistrate had jurisdiction; (2) whether the offense on which extradition has been sought is within the terms of the applicable treaty; and (3) whether the evidence warranted a finding that there was reasonable ground to believe the accused guilty of the offense charged. See, e.g., Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L. Ed. 970 (1925); Shapiro v. Ferrandina, 355 F. Supp. 563, 567 (S.D.N.Y.), mod. and aff'd, 478 F.2d 894 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S. Ct. 204, 38 L. Ed. 2d 133 (1973). This petition raises the second of those questions-whether the offense on which extradition has been sought is within the terms of the Treaty on Extradition between the United States and the United Kingdom.
The Treaty on Extradition between the United States and the United Kingdom was signed in London in 1972 and in Washington in 1976; it entered into force in 1977. 28 U.S.T. 227, T.I.A.S. 8468. Following the pattern of most of our extradition treaties, this Treaty enumerates those offenses which will be deemed sufficient to support extradition and requires that both countries regard the offenses as criminal. The principle is known to international law as "double criminality"; it was explicitly endorsed by the negotiators of this treaty in the minutes of their negotiations. Feb. 5, 1970 Minutes, p. 3. Thus, Article III provides that:
(1) Extradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of this Treaty, or any other offense, if:
(a) the offense is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;
(b) the offense is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1)(a) of Article II; and
(c) the offense constitutes a felony under the law of the United States of America.
Since a felony is defined by United States law as "Any offense punishable by death or imprisonment for a term exceeding one year" (18 U.S.C. § 1), some analysis of the history and purpose of subsection (c) of Article III is required if it is to have a meaning that is not merely duplicative of that of subsection (a).
Extradition treaties between sovereign nations have been negotiated with regularity since the eighteenth century, though such "international cooperation in the suppression of crime" can be traced as far back as the peace treaty signed by the Hittite ruler, Hattusili III and Rameses II of Egypt in the thirteenth century B.C. I. A. Shearer, Extradition in International Law 5, 7, 16, 23 (1971). Throughout history, such treaties have typically reflected what extradition scholars have called "the basic rule" and an "essential ingredient" of extradition, the double criminality principle. S. D. Bedi, Extradition in International Law and Practice 179 (1966); Shearer at 137. This rule, embodied in Article III of this Treaty between the United States and the United Kingdom,
requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested States.... (I)t serves the most important function of ensuring that a person's liberty is not restricted as a consequence of offenses not recognized as criminal by the requested State.
Shearer at 137-38 (footnote omitted).
The Second Circuit has emphasized the centrality of double criminality to proper extradition practice. Shapiro v. Ferrandina, 478 F.2d 894, 911 (2d Cir. 1973), modifying and aff'g 355 F. Supp. 563 (S.D.N.Y.1973). It has phrased the requirement as demanding that "the offense for which a person is extradited ... be punishable as such under the laws of both the requesting and the requested nation...." 478 F.2d at 906 n. 12.
An examination of other treaties of the United States throws little light on the issue before us of how juveniles should be treated. Some, like the treaty with the United Kingdom, contain no explicit reference to the age of the person sought to be extradited. See, e.g., Mexico (1978) 15 I.L.M. 634; Australia (1976) T.I.A.S. 8234; Bahamas (1978) T.I.A.S. 9185. Others do refer specifically to the ...