I believe Welfare and Institutions Code section 738 does not authorize San Diego County to negotiate and implement an agreement with the juvenile court of Tijuana, Mexico, relating to juvenile court dispositional orders which involve Mexican nationals. I also conclude the Border Youth Project as implemented here violated Manuel’s rights of due process. I reach these conclusions even though the Border Youth Project undoubtedly reflects the conscientious efforts of local governments to resolve the problem of border crime and may actually be a salutary alternative to juvenile court dispositions.
Under our form of government there are times when courts must declare governmental action unconstitutional—even action perceived to be benign. I am satisfied that this is such a time. What occurred to Manuel here and what can occur to similarly situated Mexican juveniles is contrary to our basic notions of federalism and the requirements of due process of law. The majority’s holding sanctioning governmental units large and small throughout this state and the United States to negotiate with their counterparts in foreign countries for the disposition of juvenile offenders ignores well-recognized principles governing our federal structure which require that such arrangements be negotiated at the national, not local, level.
I
Before discussing these points in greater detail I first comment on the majority’s characterization of this case.
While the opinion may correctly describe Manuel’s involvement with the California juvenile justice system, the opinion suggests each procedural step was nothing more than an innocuous event occurring within a generally beneficial scheme designed to assist Mexican alien juvenile offenders. The court proceedings and later dispositional order directing Manuel’s delivery to the officials of the Tijuana, Mexico juvenile court appear to be almost irrelevant. This kindly paternalism is manifested in the opinion in a number of ways including language such as Manuel was “released” to federal Immigration and Naturalization Service (INS) officials (maj. opn., ante, p., 54), as if California had relinquished its hold on him and he was free to do as he pleased. In effect the majority would have us believe the juvenile court’s involvement in this and similar cases is solely to obtain information about Mexican juveniles so that when they are returned to Mexico the authorities there will be better informed and render a more enlightened disposition.
If the majority were correct in describing what happened to Manuel and what now happens to similarly situated minors, one would seriously *77question the need for formal juvenile court proceedings here and the complex negotiated, structured relationship between San Diego and Tijuana. All that would be necessary would be a telephone call by the juvenile authorities to the INS or to their counterparts in Mexico for delivery of the juvenile to that country. There would be no need for a trial in the juvenile court to prove the petition’s allegations beyond a reasonable doubt. It is remarkable to think that the juvenile court in this county would use its resources solely to develop information for transmittal purposes to a foreign country. The legal efforts in this case and the different views of this panel reflect that much more is involved than an ad hoc process in which juveniles are returned to Mexico.
It is undisputed that pursuant to the Border Youth Project one judge and one social worker from Mexico are now assigned to this project. In addition to their duties in Mexico, they come to the United States to assist San Diego County probation officers in identifying the Mexican youth and obtaining other necessary information. Following initial screening to determine the identity of the undocumented juvenile offender, Volunteers in Probation (VIP), the project contractor, attempts to contact the juvenile’s parents. VIP then assists the probation officer in the completion of a social study which outlines the juvenile’s prior criminal record, if any.
At this point the authorities use a two-tier procedure following an initial decision whether to prosecute the undocumented juvenile offender. The decision to prosecute, based on the social study and recommendation submitted by the probation department under Welfare and Institutions Code section 725, involves consideration of the juvenile’s age, prior record and seriousness of the current offense.
Tier One cases are those in which a decision is made not to prosecute. In these cases the juvenile is delivered to the INS where processing normally involves obtaining the juvenile’s written consent to voluntarily return to Mexico. The juvenile is then delivered by INS to Tijuana juvenile authorities for further disposition. If the juvenile refuses to voluntarily return to Mexico and requests a deportation hearing, he or she is immediately placed in custody by INS and a formal hearing is scheduled.
Tier Two cases are those in which San Diego County authorities decide to prosecute the juvenile offender. Following disposition by the juvenile court, the undocumented Mexican juvenile is delivered to INS for processing. It is unclear whether INS or the probation officer delivers the minor to Tijuana juvenile authorities for reunion with his or her family, supervision and rehabilitation through the Tijuana juvenile court or institutionalization for more serious offenders.
*78Between July 1987 and May 1988 the San Diego County Juvenile Court handled over 300 delinquency cases involving undocumented Mexican youth. Of this number, 47 were referred to the Tijuana juvenile court. “The remainder have been ‘deported’ by the INS to some unknown fate, sent to the Juvenile Ranch Facility, or committed to the California Youth Authority.” Program statistics gathered at the end of the Border Youth Project’s first year show that 57 Mexican nationals were ordered transported to the juvenile court in Mexico, of which 54 were actually returned. The discrepancy is due to the fact that one juvenile escaped from juvenile hall awaiting placement, a second was discovered to be an adult and a United States citizen, and the third refused to go to the Mexican official and was processed through INS. The information furnished to us also shows the following alternatives used in disposing of the cases ordered returned to the juvenile court authorities in Mexico.
“A) Number of wards transported to their legal place of residence in the interior of Mexico and released to their families. 28
“B) Number of wards placed on probation and supervised in Tijuana and Ensenada. 14
“C) Number of wards placed in Mexican juvenile camp facility in Mexicali. 2
“D) 1 ward placed in Mexico state prison, as he was an adult and had an outstanding warrant for his arrest.
“E) 1 ward placed in a Catholic group home for boys.
“F) 1 ward was delivered to Mexico Immigration for return to his legal place of residence in San Salvador.
“G) 1 ward escaped from the juvenile facility in Tijuana, Mexico.
“H) Number of wards presently detained in the juvenile facility in Tijuana, Mexico. 6
“I) Number of Mexican nationals placed in this program and re-arrested in the United States. 3”
Because of adverse publicity describing conditions at the Tijuana juvenile jail during the first year of the program’s operation (see McDonnell, Migrant Youths Face Trip to Crowded Tijuana Jail; Tales of Beatings, Torture, Fights Greet Minors Returned by Border Patrol, Los Angeles Times (Apr. *7910, 1988) Metro, part 2A, p. 1, col. 3) the probation department investigated treatment of participants in the Border Youth Project. It determined that none of the wards detained in the Tijuana juvenile facility reported mistreatment. At the end of April 1988 the probation department stated its only concern was overcrowding.
The purpose of the foregoing is to emphasize that I see this case as one involving an organized ongoing program in which the juvenile authorities in San Diego decide cases and then use specified criteria to determine whether they should prosecute, and if so, whether their dispositional orders should include transfer of the minor determined to be a ward of the California court to the juvenile court in Tijuana, Mexico, leaving to that jurisdiction the scope of the punishment to be imposed. To say the least I find the notion of “trial here, punishment there” to be startling, particularly where the punishment “there” is open ended. For obvious reasons, aside from macabre speculation, I can take no solace from the majority’s inference that the project must be beneficial because “only eight of over one hundred such youths returned to Mexico had reentered the United States illegally.” (maj. opn., ante, p. 60.)
I have similar feelings with the majority’s treatment of Manuel’s due process rights. It is indeed unusual for a silent record to support a waiver of such rights and to conclude those rights, specifically the right to appeal, can be protected only if the affected individual has the foresight to seek supersedeas pending the appeal. One must not only question the constitutional validity of such a novel solution in this type of case where appellate rights are traditionally unconditional, but also its practicality when the majority also decide it was the federal government, not the San Diego authorities, which deported Manuel, (maj. opn., ante, p. 54.) Under the majority’s premise a state court-issued supersedeas would have no effect on federal deportation actions and consequently supersedeas would have been ineffective.
The majority’s desire to approve what occurred here is also reflected in its decision near the conclusion of its lengthy opinion to limit the scope of its legal analysis and factual inquiry regarding the Border Youth Project to June 1987, the time Manuel was returned to Mexico. Using this technique to conclude there was no “agreement” between San Diego and Tijuana (a factually unsupported conclusion) and thus no constitutional impediment, it is surprising the majority did not merely say this case was moot. One cannot square the majority’s earlier statement that “this case involves a question of public interest which is likely to recur yet evade review” (see maj. opn., ante, fn. 2, p. 53) with its later decision to decline comment on the validity of the Border Youth Project (see maj. opn., ante, p. 70) as it existed shortly after Manuel’s case and continues to exist as presented to us *80in the supplemental material furnished at our request. The only inference to be drawn from our several requests was that we intended to decide the constitutional validity of the program as formally constituted. To avoid confronting that issue at this stage of the proceedings is an affront to those many persons who graciously furnished that information and the lawyers who briefed this case with the expectation that we would decide whether the program as it actually exists meets constitutional standards. But rather than ponder on the motivations of the majority and point out other numerous inconsistencies in the majority opinion, I set forth the reasons I believe warrant a reversal.
II
Preemption, the Treaty Clause and Prisoner Transfers
The supremacy clause of the United States Constitution, article VI, states: “This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”
When federal and state statutes regulate the same area, the validity of the state law turns on whether the federal government is exercising exclusive or concurrent power. Where the power exercised is reserved exclusively for the federal government, all state laws on the subject are per se invalid. (Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, 209 [61 L.Ed. 1086, 1095, 37 S.Ct. 524, 529].) In areas of concurrent power, federal law preempts state law where 1) the issue regulated requires national uniformity in its application, 2) Congress has through its action intended to preempt the field, and 3) the state law presents a serious danger of conflict with the administration of the federal program. (Pennsylvania v. Nelson (1956) 350 U.S. 497, 502-505 [100 L.Ed. 640, 652-654, 76 S.Ct. 477, 480-482]; Dolores Canning Co. v. Howard (1974) 40 Cal.App.3d 673, 679, 681 [115 Cal.Rptr. 435].)
In one form or another it has been frequently stated that “the federal government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties.” (Hines v. Davidowitz (1941) 312 U.S. 52, 63 [85 L.Ed. 581, 584, 61 S.Ct. 399, 402].) “Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.” (Id. at p. 63 [85 L.Ed.2d at p. 585].) Thus it is clear that *81where the relations between the United States and other sovereign nations are involved, concurrent state power is defined narrowly. (Id. at p. 68 [85 L.Ed.2d at p. 587].)
The United States Constitution contains two separate clauses barring states from entering into treaties, compacts and agreements with foreign nations. The treaty clause states that “No State shall enter into any treaty, alliance or confederation . . . .” (Art. I, § 10.) Although the word “treaty” has more than one meaning in international parlance, under our Constitution the term refers specifically to an international agreement concluded by the President with the advice and consent of two-thirds of the Senate. (Weinberger v. Rossi (1982) 456 U.S. 25, 29 [71 L.Ed.2d 715, 720, 102 S.Ct. 1510].) It is clear that the informal arrangement between the County of San Diego and Tijuana juvenile authorities does not come within the constitutional definition of “treaty.”
It should be equally clear that when a California city or county negotiates an agreement with its counterpart in Mexico for the transfer of juveniles and the execution of juvenile court dispositional orders, this amounts to negotiations with a foreign country for the transfer of “offenders” to that foreign country for the execution of penal sentences.1 However, “the courts of no country execute the penal laws of another” (Chief Justice Marshall in The Antelope (1825) 23 U.S. 66, 123 [6 L.Ed. 268]) except when the sovereign power chooses to do so through a treaty or other mutual obligation. (Rosado v. Civiletti (2d Cir. 1980) 621 F.2d 1179, 1192.) “Unless required to do so by treaty, no state [country] enforces the penal judgments of other states [countries].” (Rest.3d Foreign Relations Law (1987) § 483, p. 614.) Pursuant to that power, “[t]he United States has entered into treaties with several states, including Mexico and Canada, that provide for the repatriation of prisoners to complete their sentences in their home state.” (Ibid.)
The need for the federal government—and not the several states—to negotiate such treaties should be obvious. One need not ponder long to appreciate the chaos that would develop if representatives from every city, county and state in the United States were authorized to negotiate with foreign countries for the enforcement of their penal laws and the transfer of persons incarcerated within the geographical limits of such state, county, or city. The notion is entirely contrary to the principal of federalism which governs us. (See Holmes v. Jennison (1840) 39 U.S. 540, 578 [10 L.Ed. 579, 598] (with respect to extradition “[t]he confusion and disorder which would arise from the exercise of this power by the several States, is too obvious to need comment”).)
*82 Welfare and Institutions Code Section 738
Thus I begin my analysis of the constitutionality of Welfare and Institutions Code section 738 by viewing it within the framework provided by the supremacy clause and narrow definition of concurrent state power in foreign affairs.
Even if I were to speculate and interpret the United States Constitution as permitting the federal government to delegate to some or all of the states the authority to negotiate agreements with foreign countries to resolve local problems, there is no suggestion that California was given that authority here. The Attorney General concedes that section 738 was adopted without reference to express treaty authorization or federal legislation.
Unfortunately there is virtually no legislative history to guide me regarding the portion of section 738 with which I am concerned. As originally enacted as part of a new Welfare and Institutions Code in 1937, section 738 dealt only with the transfer of nonresident juvenile wards between states within the United States. (Stats. 1937, ch. 369, pp. 1037-1038.) The juvenile court system was revamped in 1961 as a result of the report of the Governor’s Special Study Commission on Juvenile Justice. Although the report recommended only minor revisions to section 738 (Rep. of the Governor’s Special Study Com. on Juvenile Justice, pt. 1 (Nov. 1960) p. 79), the actual 1961 amendment to section 738 added the language authorizing transfer of juveniles to their foreign country of residence. (Stats. 1961, ch. 1616, pp. 3488-3489.) I am unable to find any express reason why the Legislature added the language under discussion here. Nonetheless, in deference to the Legislature, I believe it can be reasonably inferred that its intent was to expand the scope of interstate cooperation contemplated by the initial enactment. In light of the proximity of international borders and the increased mobility of international travel, presumably the Legislature wanted to include the lawful cooperative efforts between this country and foreign countries. Implicit in this action is the Legislature’s awareness that such efforts could only occur in the context of a valid treaty negotiated at the national level with federal legislation to implement the treaty. Accordingly, I interpret section 738 as reflecting the state’s subordinate power to permit the transfer of juvenile offenders to their country of origin only when that transfer can be accomplished in accordance with federal law.
Here the existing prisoner exchange treaty between the United States and Mexico is limited to adult offenders. It is apparent from the language of the treaty that the parties wished to reach a separate agreement on the transfer of juvenile offenders at some future time.
*83“This Treaty may also be applicable to persons subject to supervision or other measures under the laws of one of the Parties relating to youthful offenders. The Parties shall, in accordance with their laws, agree to the type of treatment to be accorded such individuals upon transfer . . . .” (United States-Mexico Treaty on the Execution of Penal Sentences (1976-1977) art. VIII, 28 U.S.T. 7399, 7407.) To date the United States and Mexico have failed to execute a treaty to deal with juveniles.2
The Border Youth Project
The Attorney General argues there is no problem with the Border Youth Project because juveniles are not “prisoners” and juvenile dispositions are not “penal sentences.” He asserts Manuel’s delivery to Tijuana juvenile authorities did not constitute a “prisoner transfer.”
However, the federal legislation which implements the transfer of prisoners to or from foreign countries pursuant to existing or future treaties (18 U.S.C. § 4100 et seq.) encompasses minors who are the subject of juvenile court dispositions. The reciprocal benefits discussed in the legislative history (see, e.g., U.S. Sen. Judiciary Com. Rep. No. 95-435, Sept. 15, 1977) include benefits available to the juvenile offender as well as the adult offender. (Hearings Before the House Subcom. on Immigration, Citizenship, and Intemat. Law, Com. on the Judiciary, on H.R. No. 7148, 95th Cong., 1st Sess., pp. 139-140.) Furthermore, the federal statute expressly defines “offender” as “a person who has been convicted of an offense or who has been adjudged to have committed an act of juvenile delinquency. ” (18 U.S.C. § 4101(e), italics added.) “ ‘Sentence’ means not only the penalty imposed but also the judgment of conviction in a criminal case or a judgment of acquittal in the same proceeding, or the adjudication of delinquency in a juvenile delinquency proceeding or dismissal of allegations of delinquency in the same proceedings.” (18 U.S.C. § 4101(h), italics supplied.) The statute also permits nonresident juvenile offenders to participate in international prisoner transfers where the finding of juvenile delinquency is based on noncriminal conduct. “Juvenile delinquency” is defined as: “(1) a violation of the laws of the United States or a State thereof or of a foreign country committed by a juvenile which would have been a crime if committed by an adult; or
“(2) noncriminal acts committed by a juvenile for which supervision or treatment by juvenile authorities of the United States, a State thereof, or of *84the foreign country concerned is authorized.” (18 U.S.C. § 4101(d).) Thus it is apparent that 18 United States Code section 4100 et seq., enacted to implement the treaty with Mexico, contemplated other treaties in which juveniles would be included.
I also reject the Attorney General’s contention that transfers under the Border Youth Project are merely procedures by which undocumented Mexican youth are reunited with their families and cannot be viewed as prisoner transfers. The federal statute defines prisoner transfers as a “transfer of an individual for the purpose of the execution in one country of a sentence imposed by the courts of another country.” (18 U.S.C. § 4101(j).) Since juvenile dispositions are “sentences” within the meaning of 18 United States Code section 4101(h), a disposition which includes assignment to the Border Youth Project for return to Mexico is a prisoner transfer.
The Attorney General concedes the purpose of the Border Youth Project is “to facilitate an appropriate disposition of undocumented alien-minor offenders.”
“Such dispositions include reuniting the alien minor with his or her family thereby facilitating the minor’s rehabilitation in his or her country and culture; or providing for appropriate institutionalization of more serious offenders and recidivists again in his or her own native country and culture.” {Ibid.) Many of the juveniles transferred under the Border Youth Project are placed on probation by the Tijuana juvenile court and this continued supervision by Mexican authorities must be viewed as the execution of the juvenile disposition imposed under California law. Manuel was transferred as a juvenile offender with the recommendation he receive “second level treatment” in Mexico.3 He was detained in the Tijuana juvenile facility before being reunited with his family.
The treaty with Mexico for the transfer of adult prisoners states:
“Nothing in the Treaty shall be interpreted to limit the ability which the Parties may have, independent of the present Treaty, to grant or accept the transfer of youthful or other offenders.” (United States-Mexico Treaty on the Execution of Penal Sentences, supra, art. VIII, 28 U.S.T. at p. 7407.) The Los Angeles County Counsel, amicus curiae on behalf of the Los Angeles County Juvenile Court and Probation Department, argues without citation to legislative history that this clause “clearly envisioned” the Border Youth Project “without the necessity of a formal agreement.” The *85amicus argument ignores the fact that only the sovereign states of Mexico and the United States were parties to the Treaty on the Execution of Penal Sentences. Thus any reference to transfers between the parties cannot have envisioned the informal arrangement between the County of San Diego and the government of Tijuana, Baja California, which is at issue in this appeal.
I therefore conclude that in the absence of a federal treaty authorizing the transfer of juvenile offenders between the United States and Mexico, the order directing that Manuel be delivered to the officials of the Tijuana juvenile court pursuant to the Border Youth Project is invalid. Should the United States and Mexico negotiate a treaty for the transfer of juvenile offenders in the future, 18 United States Code section 4100 et seq. would control the extent of state and local involvement in the actual transfers.4
III
Preemption and the Compact Clause
The compact clause sets forth the second constitutional bar to states entering into international agreements.5
“No State shall, without the consent of Congress . . . enter into any agreement or compact with another State, or with a foreign power.” (Art. I, § 10.) In Holmes v. Jennison, supra, 39 U.S. 540, the Supreme Court was evenly divided on the question of jurisdiction to review the Vermont Supreme Court’s denial of Holmes’s petition for a writ of habeas corpus. However, Chief Justice Taney and three others addressed the merits of Holmes’s claim that Vermont’s informal agreement to surrender him to Canadian authorities violated the compact clause. Chief Justice Taney read the compact clause broadly.
“When, therefore, the second clause declares that no State shall enter into ‘any agreement or compact’ with a foreign power without the assent of Congress, the words ‘agreement’ and ‘compact’ cannot be construed as synonymous with one another; and still less can either of them be held to mean the same thing with the word ‘treaty’ in the preceding clause, into which the States are positively and unconditionally forbidden to enter, and which even the consent of Congress could not authorize.” (39 U.S. at p. 571 [10 L.Ed. at p. 594].) After briefly reviewing writings on the law of nations, Taney concluded that “[t]he word ‘agreement’ does not necessarily import *86any direct and express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding to which both parties have assented, and upon which both are acting, it is an ‘agreement.’ ” (Id at p. 572 [10 L.Ed. at p. 595]; see also Rest.3d Foreign Relations, supra, § 301, com. b, p. 149.) He also concluded it was the intention of the framers of the Constitution to use the most comprehensive terms in order to cut off all connection and communication between states and foreign powers. “. . . [W]e shall fail to execute that evident intention, unless we give to the word ‘agreement’ its most extended signification, and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties.” (39 U.S. at p. 572.)
In 1893 the Supreme Court softened Chief Justice Taney’s interpretation in Virginia v. Tennessee (1893) 148 U.S. 503 [37 L.Ed. 537, 13 S.Ct. 728], The court held that Congress had impliedly consented to the 1803 boundary between the two states. It then discussed the compact clause in dictum, concluding that the framers of the Constitution could not have intended the prohibition to reach every agreement with another state or foreign power. The court reasoned that the compact clause was directed only to “the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” (Id at p. 519 [37 L.Ed. at p. 543, 13 S.Ct. at p. 734]; accord Northeast Bancorp v. Board of Governors, FRS (1985) 472 U.S. 159, 175-176 [86 L.Ed.2d 112, 126, 105 S.Ct. 2545].)
In light of these principles, the question before me is twofold. First, does the Border Youth Project involve an “agreement” between the County of San Diego and Mexican juvenile authorities? If so, does that agreement “encroach upon or interfere with the just supremacy of the United States”?
Based on my review of the documents supplied by the Attorney General and amici curiae, I conclude the Border Youth Project was based on a verbal agreement between the San Diego County Probation Department and Board of Supervisors on one side and the Consul General of Mexico and the Tijuana juvenile court on the other. Pursuant to this agreement the board of supervisors, through VIP, paid a judge and a social worker from the Tijuana juvenile court to assist the department of probation in processing Spanish-speaking juveniles believed to be undocumented aliens. Specifically, staff from the Tijuana juvenile court help determine the name, age and nationality of these youth and attempt to locate their parents. Those selected for Tier Two6 are prosecuted in the juvenile court system and returned to Mexico pursuant to a juvenile court dispositional order. The *87agreement benefits San Diego County by significantly reducing the cost of caring for undocumented alien youth. Mexico is benefitted by the opportunity to punish, counsel or reunite these youth with their families.
I have already outlined the manner in which the Border Youth Project encroaches on the supremacy of the federal government in foreign relations and prisoner exchange. In Holmes v. Jennison, supra, 39 U.S. 540, Chief Justice Taney distinguished between a state’s exercise of the police power involving only internal concerns and acts which constitute an unconstitutional encroachment in an area preempted by the federal government. The distinction is instructive here. A state’s power to enter into agreements with foreign nations for the surrender of prisoners “is ... in no degree connected with their police powers; and they can, undoubtedly, remove from their territory every description of offenders who, in the judgment of the Legislature, are dangerous to the peace of the State. It may, indeed, be supposed that along the borderline which separates the Canadas from the United States, the facility of escape into another jurisdiction is a temptation to crime, and that an arrangement between the authorities of the province and the States which adjoin them, for the mutual delivery of offenders, would be advantageous to both. If such an arrangement is deemed desirable, the foresight of the framers of the Constitution have provided the way for doing it, without interfering with the powers of foreign intercourse committed to the general government, or endangering the peace of the Union. Under the [compact clause] any State, with the consent of Congress, may enter into such an agreement with the Canadian authorities.” {Id. at p. 578 [10 L.Ed. at p. 598].) Applying this distinction to the Border Youth Project, the return of Tier One juveniles to Mexico without prosecution should be viewed as a valid exercise of California’s police power. However, the agreement with Mexican juvenile authorities which permits the return of Tier Two undocumented alien youth to Mexico pursuant to a juvenile court dispositional order clearly violates the compact clause. If such an agreement is deemed desirable, the consent of Congress is essential.
IV
Due Process
The juvenile law has undergone dramatic changes in recent years. It is no longer a simple and informal system but an interesting mix of formal due process requirements and informal procedures developed in an effort to rehabilitate young people by dealing promptly and directly with problems during their formative years. The trade-offs which impact the traditional juvenile law system are the result of balancing the constitutional protections *88to which children are entitled against the potential benefits of the earlier approach.
The government’s power to punish, including the power to punish both juveniles and aliens, must be exercised in accordance with due process of law. (Rosado v. Civiletti, supra, 621 F.2d 1179, 1194; Plyler v. Doe (1982) 457 U.S. 202, 213 [72 L.Ed.2d 786, 797, 102 S.Ct. 2382]; Shaughnessy v. Mezei (1953) 345 U.S. 206, 212 [97 L.Ed. 956, 963, 72 S.Ct. 625, 629]; Wong Wing v. United States (1896) 163 U.S. 228, 238 [41 L.Ed. 140, 143, 16 S.Ct. 977, 983]; In re Winship (1970) 397 U.S. 358, 367 [25 L.Ed.2d 368, 377, 90 S.Ct. 1068]; In re Gault (1967) 387 U.S. 1, 30-31 [18 L.Ed.2d 527, 547-548, 87 S.Ct. 1428].) This due process protection extends to juvenile court hearings and the imposition of a “term of disposition” and other sanctions imposed by the juvenile court judge. (In re Winship, supra, 397 U.S. at p. 368 [25 L.Ed.2d at pp. 377-378]; In re Gault, supra, 387 U.S. at pp. 30-31 [18 L.Ed.2d at pp. 547-548].)
My review of this record and the procedures established by the Border Youth Project raises numerous due process concerns. The criteria used by the juvenile court in selecting Manuel and others for participation in the Border Youth Project are vague at best. Whether the selection process is uniformly applied is unknown.
More serious is the arrangement’s lack of specificity. The juvenile court’s actions are particularly egregious here because there was no federal treaty or legislation to permit Mexico to enforce the California dispositional order. Given the Mexican authorities’ total discretion in deciding what type of rehabilitation is required in Mexico,7 there is no guaranty that Manuel or any other participant in the Border Youth Project will receive the sentence ordered by the juvenile court.8 If Manuel had been incarcerated in Mexico rather than reunited with his parents, the juvenile court would be powerless to effect his release after 240 days in custody. A juvenile has a liberty interest in not being punished beyond the time permitted under California law. The process used here does not protect that interest.
I am particularly concerned with the Border Youth Project’s failure to provide for consent, effective appeal or postappeal rights including habeas *89corpus relief. I have already described various provisions of 18 United States Code section 4100 et seq. which pertain to juvenile offenders. This legislation reflects congressional intent to implement prisoner exchange treaties in a manner consistent with constitutional requirements of due process. The implementing statute requires the offender’s verified consent before transfer. (18 U.S.C. § 4100(b).) None was obtained or required under the Border Youth Project.
The federal statute also prohibits any transfer from the United States while an appeal is pending. (18 U.S.C. § 4100(c).) As noted earlier, Manuel was returned to Mexico only two days after he signed his notice of appeal. The juvenile court later terminated jurisdiction. Thus Manuel has been denied an effective remedy before the court which ordered his disposition. Although Manuel’s appellate counsel has pursued his appeal with imagination and vigor before this court, no court in this country—either state or federal—can provide an effective remedy because none has the power to order Manuel’s return to California for a new disposition.
At oral argument the deputy attorney general acknowledged that comity9 was the only basis on which the Tijuana juvenile court would honor a California appellate court decision reversing a juvenile court judgment. His statement merely recognizes that a city in a foreign country need not give full faith and credit to a California appellate judgment. This fact underscores my concern. Surely due process mandates a procedure which permits meaningful review of juvenile court orders.
I believe due process requires that transfer be accomplished only after informed consent to the transfer after all rights of appeal have been exhausted. I therefore conclude the Border Youth Project as implemented in Manuel’s case violated fundamental rights of due process—rights to which he was unquestionably entitled as a juvenile and alien. And where, as here, the juvenile court disposition involves not only removal from the jurisdiction, but also the loss of federal constitutional protections, it is invalid.
My discussion of the due process issues complements my earlier discussion of the unconstitutionality of the Border Youth Project and underscores the need for a treaty between the United States and Mexico for the transfer of juvenile offenders. The federal treaties and statute implementing the transfer of offenders to foreign countries cover the due process issues with which I am concerned. These due process concerns only highlight the *90important and complex issues which must be negotiated at the federal level with a full understanding of the impact of prisoner transfer on individual constitutional rights and the relations between sovereign nations. Based upon the foregoing I would therefore reverse the order.
A petition for a rehearing was denied November 16, 1989. Wiener, J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied February 21, 1990. Broussard, J., was of the opinion that the petition should be granted.
See discussion of statutory definitions of “offenders” for purposes of international prisoner transfer, post, at page 83.
In contrast, United States prisoner exchange treaties with Canada and Bolivia expressly include juvenile offenders. (United States-Canada Treaty on the Execution of Penal Sentences (1978-1979) art. I, 30 U.S.T. 6263, 6266; United States-Bolivia Treaty on the Execution of Penal Sentences (1978-1979) art. VIII, 30 U.S.T. 796, 803.) We presume section 738 authorizes the transfer of juveniles under these treaties and 18 United States Code section 4100 et seq.
Second-level treatment is a term used by Mexican officials to describe placement of juveniles at “La Granja,” a state operated honor camp in Mexicali. First-level treatment involves probation at home.
18 United States Code section 4102 empowers only the United States Attorney General and his or her designees to receive and transfer offenders on behalf of the United States.
We premise our discussion of the compact clause on the assumption that a prohibition of state action in the international arena applies with even greater force to local action.
See discussion of Tier One and Tier Two procedures beginning at page 77, ante.
At oral argument the deputy attorney general acknowledged that although the juvenile court in San Diego County issues the order which assigns the ward to the Border Youth Project, the Tijuana juvenile authorities have full discretion to modify that order. Documents furnished by the Mexican Consul and the presiding judge of the juvenile court confirm the deputy attorney general’s understanding.
I agree with counsel for Manuel that the lack of specificity creates an analytical paradox. Due process requires that the arrangement with Mexico specify the nature of treatment the juvenile is to receive upon transfer. However, such specificity would provide clear proof of violation of the constitutional prohibition against entering into treaties with foreign countries.
Comity of nations is defined as the “recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws.” (Black’s Law Diet. (5th ed. 1979) p. 242, col. 2.)