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p The rising number of acts of terrorism committed on the American continent led to the Inter-American Commission on Human Rights adopting a resolution in April 1970 concerning terrorism for political or ideological purposes in which it condemned acts of political terrorism and urban or rural guerrillas as being grave violations of human rights and fundamental freedoms  [114•2  having “forgotten”, however, to point to violations of the same freedoms in Latin American countries under dictatorial regimes.

p The Permanent Council of the Organisation of American States (OAS), meeting on May 15, 1970, approved a resolution, based on a report submitted by its Legal-Political Committee, which, inter alia, condemned acts of terrorism and in particular the kidnapping of persons and extortion in connection therewith as crimes against humanity.  [114•3  On June 30, 1970, the General Assembly of the OAS adopted a resolution entitled "General Action and Policy of the Organisation with regard to Acts of Terrorism and, especially, the Kidnapping of Persons and 115 Extortion in connection with that Crime”. The General Assembly charged the Inter-American Juridical Committee with preparing, within 60 days, one or more draft interAmerican instruments on kidnapping, extortion, and assaults against persons in cases in which these acts may have repercussions on international relations.  [115•1  The Third Special Session of the OAS General Assembly, meeting in Washington from January 25 to February 2, 1971, adopted a “Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion That Are of International Significance".

p Structurally, the Convention consists of a Preamble and 13 Articles. The Preamble emphasises that the General Assembly of the Organisation of American States, in Resolution 4, of 30 June 1970, strongly condemned acts of terrorism, especially the kidnapping of persons and extortion in connection with that crime, which it declared to be serious common crimes, pointing out that criminal acts against persons entitled to special protection (emphasis added) under international law are occurring frequently, and those acts are of international significance because of the consequences that may flow from them for relations among states. The object of the Convention, the Preamble said, is to adopt general standards that will progressively develop international law as regards cooperation in the prevention and punishment of such acts.

p Art. 1 stipulates the undertaking of the Contracting States to cooperate among themselves by taking all the measures that they may consider effective, under their own laws, and 116 especially those established in this Convention, to prevent and punish acts of terrorism, especially kidnapping, murder and other assaults against the life or physical integrity of those persons to whom the State has the duty according to international law to give special protection, as well as extortion in connexion with those crimes.  [116•1 

p Art. 2 qualifies the above-mentioned crimes as common crimes of international significance, regardless of motive [emphasis added].

p It would seem that the present list of offences punishable under this Convention, presupposes establishing special protection from them and the range of persons to be thus protected: however, there are no such provisions in the Convention.

p Although Art. 3 does say that persons who have been charged or convicted for any of the crimes referred to in Art. 2 shall be subject to extradition under the extradition treaties in force between the parties or, in the case of States that do not make extradition dependent on the existence of a treaty, in accordance with their own laws, its subsequent provision virtually ignores the very fact of this Convention having been drafted: ”... in any case it is the exclusive responsibility of the State under whose jurisdiction or protection such persons are located to determine the nature of the acts and decide whether the standards of this Convention are applicable..." (emphasis added). This means, as a matter of fact, that the State will itself establish whether the given case shall be treated under the Convention or not.

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p Art. 4 reads that any person deprived of his freedom through the application of this Convention shall enjoy the legal guarantees of due process.

p Art. 5 formalises the principle of aut dedere aut judicare since when extradition requested is refused, the requested State is obliged to submit the case to its competent authorities for prosecution as if the act had been committed in its territory. This provision is very important for the purposes of the Convention as it does not impair the right of the State to refuse to extradite a person guilty of having committed offences falling under the Convention because he is a national of the requested State or because of some other legal or constitutional impediment.

p Since the legislation of the countries of Latin America is known to provide for political and diplomatic asylum, there is a special Art. 6 which says that none of the provisions of this Convention shall be interpreted so as to impair the right of asylum. In fact, this means that the nation that recognises, in full measure, the right of political and diplomatic asylum, may not grant extradition, if it does not want to.

p To refuse extradition would, however, be contrary to the purposes and objectives of the Convention under consideration, therefore Art. 7 requires the Contracting States to recognise the offences referred to in Art. 2 as extradition crimes. Art. 7 has two more provisions which may be interpreted to produce quite opposite conclusions:

p —extradition in virtue of the participation in the Convention or adoption of Art. 7; 

p —refusal to grant extradition because of the legislation of the requested State containing some conditions implying refusal of extradition in this particular case as well as in virtue of the provisions of Art. 6 which, by its substance, 118 leaves intact the institution of asylum and does not relate to other provisions of the Convention.

p The wording of Art. 5 is wider than the formula “ according to the conditions established by the laws of the requested State" contained in Art. 7. The conditions for the refusal of extradition shall be liable to identical legal interpretation, to preclude avoidance of the Convention.

p There are two points, (c) and (d) of Art. 8 of procedural interest, as they contain the obligation of the States to cooperate in the prevention and punishment of the offences referred to in Art. 2 by: 

p (a) taking all measures within their power, and in conformity with their own laws; 

p (b) exchange of information and effective administrative measures for the purpose of protecting the persons to whom Art. 2 of this Convention refers; 

p (c) assuring every person deprived of his freedom through the application of this Convention every right to defend himself; 

p (d) having the criminal acts contemplated in this Convention included in their penal laws [emphasis added]; 

p (e) most expeditiously complying with the requests for extradition concerning the criminal acts contemplated in this Convention.

p As we have already pointed out, the standards having identical substance from the standpoint of their inclusion in the Convention must not be scattered even through the paragraphs of one Article so as to avoid divergent interpretation and application of the Convention.

p One positive aspect of this wording of the Article is the compulsory nature of the provision it has for national penal 119 laws to incorporate the corpa delicti falling within this Convention.

p Although this Convention has been signed within the framework of the Organisation of American States, the text of its Art. 9 warrants the assumption that the Convention contemplates a wider range of Contracting States as it is open to for signature by: 

p 1) member States of the Organisation of American States; 

p 2) members of the United Nations or any of its specialised agencies or any State that is a party to the Statute of the International Court of Justice; 

p 3) any other State that may be invited by the General Assembly of the Organisation of American States to sign the Convention.

p To sum up this review of the Convention, the following conclusions can be made: 

p 1) the Convention does not indicate the corpa delicti falling within it; 

p 2) while mentioning the term “special protection" in Art. 2, the Convention does not specify the juridical substance of this notion; 

p 3) the Convention contains no list of persons (not even the principle of drawing up one), to be granted “special protection”; 

p 4) it does not contain any clear distinction between the obligations of the State arising from its recognition of the right of asylum, its commitments under the Convention and the proper consideration for the constitutional and related provisions of domestic, legislation of the State (Arts. 5, 6, 7).

p Other positive aspects of the Convention, in our view, are:

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p 1) the presence of the aut dedere aut judicare principle which must keynote any Convention whose purpose is to suppress acts of terrorism of international significance (Art. 5); 

p 2) formulation of the commitment of the States to include in their respective penal laws criminal acts falling within the Convention (Art. 8, paragraph d); 

p 3) an attempt to make the Convention universal through the wording of Art. 9.

However, even considering all these positive elements of the wording of the Articles of the Convention, one can hardly expect it to become universal on account of essential shortcomings in its provisions.