This morning's case highlights that even well-considered treaties, crafted by sophisticated international lawyers on both side, may still be totally ambiguous. The ambiguity here is from an extradition treaty with South Korea that says that if the statute of limitations in the receiving party for the crime has already expired, that party "may" refuse to extradite the requested person.
So imagine, as here, that South Korea asks the U.S. to extradite someone for second degree murder, but the statute of limitations for this crime here -- five years -- has already expired. Does that mean that (1) the request should be denied, (2) that the judiciary can decide whether to deny the request, or (3) that only the State Department gets to decide whether to deny the request.
The Ninth Circuit says it's (3).
Which is exactly my view of the language as well. "May" means may. The U.S. can extradite the person if it wants. But it need not, pursuant to the treaty, if it doesn't feel like it.
The only problem with this view is that there's a fair amount of legislative history that suggests that the relevant decision makers thought that "may" meant "shall". In other words, that if the limitations period had expired, there'd be no extradition. Notwithstanding what the Ninth Circuit holds today.
I agree with Judge Fletcher that this history isn't crystal clear, and that contrary arguments can be made. So it makes sense to go with what the actual language naturally says.
But it's far from a no-brainer. Notwithstanding the substantial intellectual firepower than undoubtedly went into drafting the treaty in the first place.
