[Senate Treaty Document 105-3]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
1st Session 105-3
_______________________________________________________________________
AGREEMENT WITH HONG KONG FOR THE SURRENDER OF FUGITIVE OFFENDERS
__________
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND
THE GOVERNMENT OF HONG KONG FOR THE SURRENDER OF FUGITIVE OFFENDERS
SIGNED AT HONG KONG ON DECEMBER 20, 1996
March 3, 1997.--Agreement was read the first time and, together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, March 3, 1997.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification as a treaty, I transmit herewith the
Agreement Between the Government of the United States of
America and the Government of Hong Kong for the Surrender of
Fugitive Offenders signed at Hong Kong on December 20, 1996
(hereinafter referred to as ``the Agreement''). In addition, I
transmit for the information of the Senate, the report of the
Department of State with respect to the Agreement. As a treaty,
this Agreement will not require implementing legislation.
This Agreement will, upon entry into force, enhance
cooperation between the law enforcement communities of the
United States and Hong Kong, and will provide a framework and
basic protections for extraditions after the reversion of Hong
Kong to the sovereignty of the People's Republic of China on
July 1, 1997. Given the absence of an extradition treaty with
the People's Republic of China, this Treaty would provide the
means to continue an extradition relationship with Hong Kong
after reversion and avoid a gap in law enforcement. It will
thereby make a significant contribution to international law
enforcement efforts.
The provisions of this Agreement follow generally the form
and content of extradition treaties recently concluded by the
United States. In addition, the Agreement contains several
provisions specially designed in light of the particular status
of Hong Kong. The Agreement's basic protections for fugitives
are also made expressly applicable to fugitives surrendered by
the two parties before the new treaty enters into force.
I recommend that the Senate give early and favorable
consideration to the Agreement and give its advice and consent
to its ratification as a treaty.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, February 4, 1997.
The President,
The White House.
The President: I have the honor to submit to you the
Agreement between the Government of the United States of
America and the Government of Hong Kong For the Surrender of
Fugitive Offenders, (hereinafter referred to as ``the
Agreement''), signed at Hong Kong on December 20, 1996. I
recommend that the Agreement be transferred to the Senate for
its advice and consent to ratification as a treaty as soon as
possible so that it may become effective prior to the reversion
of Hong Kong to the sovereignty of the People's Republic of
China (PRC) on July 1, 1997. Given the absence of an
extradition treaty with the PRC, this US-Hong Kong treaty would
provide the means to ensure an ongoing extradition relationship
with Hong Kong, avoiding a gap in our law enforcement
relationship.
The Agreement follows generally the form and content of
extradition treaties recently concluded by the United States.
It represents a concerted effort by the Department of State and
the Department of Justice to modernize the legal tools
available for the extradition of serious offenders such as
narcotics traffickers and terrorists and also to address the
particular issues related to the status of Hong Kong.
Although entitled an ``Agreement'' to reflect Hong Kong's
unique juridical status, for purposes of U.S. law, the
instrument will be considered to be a treaty, and therefore I
am submitting it to you for transmittal to the Senate for
advice and consent to ratification. In that regard, I note that
Hong Kong is entering into the Agreement with the authorization
of ``the sovereign government which is responsible for its
foreign affairs.'' At present, that is the United Kingdom.
However, the PRC has also approved the Agreement and authorized
its continuation in force after July 1, 1997 through approval
of the Sino-British Joint Liaison Group. For ease of reference,
the relevant sovereign is referred to in this report as the PRC
although there could be a brief period after the treaty enters
into force when the sovereign would still be the United
Kingdom.
Article 1 obligates each Party to extradite to the other,
in accordance with the provisions of theAgreement, any person
wanted for prosecution or for the imposition or enforcement of a
sentence in respect of an offense described in Article 2.
Article 2 contains an extensive list of offenses for which
the Parties agree to surrender fugitive offenders, provided
that the offense is punishable by both parties by imprisonment
or other form of detention for more than one year, or by a more
severe penalty. Significantly, the Agreement follows the modern
dual criminality model by including as the last item in the
list of offenses, ``any other offense which is punishable under
the laws of both Parties by imprisonment or other form of
detention for more than one year, or by a more severe penalty,
unless surrender for such offense is prohibited by the laws of
the requested Party.'' Inclusion of this dual criminality
clause obviates the need to renegotiate or supplement the
Agreement as offenses become punishable under the laws of both
Parties. In keeping with most recently negotiated U.S.
extradition treaties, the Article further provides that in
determining whether an offense is an offense under the law of
the requested Party, the conduct of the person shall be
examined by reference to the totality of the underlying
criminal conduct without reference to the elements of the
offense prescribed by the law of the requested Party. Article
2(5) contains the standard provision found in other extradition
treaties that an offense under military law shall not be
considered to be an offense for purposes of paragraph (1) of
this Article.
Article 3, like most modern extradition treaties concluded
by the United States, provides that surrender shall not
normally be refused on the ground that the person sought is a
national of the requested Party. However, the executive
authority of Hong Kong reserves the right to refuse surrender
of nationals of the PRC in cases in which: (1) the requested
surrender relates to the defense, foreign affairs or essential
public interest or policy of the PRC, or (2) the person sought
neither has the right of abode in Hong Kong nor has entered
Hong Kong for the purpose of settlement, and the PRC has
jurisdiction over the offense and has commenced or completed
proceedings for the prosecution of that person. The executive
authority of the United States reserves the same right to
refuse the surrender of U.S. nationals on grounds of defense,
foreign affairs or essential public interest or policy of the
United States of America. Article 3(4) provides that in a case
in which the person sought by the United States has neither the
right of abode in Hong Kong nor has entered Hong Kong for the
purpose of settlement, and the PRC has jurisdiction and is
investigating an offense by that person, action on the
extradition request by the United States may be deferred until
the investigation has been expeditiously concluded. Article
3(5) provides that in cases in which extradition is refused on
the grounds of its relationto defense, foreign affairs or
essential public interest or policy, the requesting Party may request
that the case be submitted to the competent authorities of the
requested Party who will consider whether to bring a prosecution. The
delegations expressed their shared intention that this Article would
rarely be invoked.
Under Article 4, when an offense for which surrender is
sought is punishable by death under the laws of the requesting
Party and is not so punishable under the laws of the requested
Party, the requested Party, may refuse surrender unless the
other Party provides assurances that the death penalty will not
be imposed or, if imposed, will not be carried out. The United
States has agreed to a similar formulation in other modern
extradition treaties.
Article 5, following modern practice, bars surrender when
the person sought has been convicted or acquitted in the
requested Party for the same offense, but does not bar
extradition if the competent authorities in the requested Party
have declined to prosecute or have decided to discontinue
criminal proceedings.
Article 6 incorporates a political offense exception to
extradition similar to provisions contained in U.S. extradition
treaties concluded in recent years with a number of other
countries. After prohibiting extradition for offenses of a
political character, the Article expressly excludes from the
reach of the exception an offense for which both Parties are
obliged pursuant to a multilateral international agreement to
extradite the person sought or to submit the case to their
competent authorities for decision as to prosecution (e.g.,
aircraft hijacking pursuant to The Hague Convention for the
Suppression of Unlawful Seizure of Aircraft, done at The Hague
December 16, 1970, and entered into force October 14, 1971 (22
U.S.T. 1641; TIAS No. 7192); aircraft sabotage pursuant to the
Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, done at Montreal
September 23, 1971, and entered into force January 26, 1973,
(24 U.S.T. 564; TIAS No. 7570); crimes against internationally
protected persons, including diplomats, under the Convention on
the Prevention and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents, done at New
York on December 14, 1973, and entered into force February 20,
1977 (28 U.S.T. 1975; TIAS No. 8532); and hostage taking,
pursuant to the International Convention Against the Taking of
Hostages, done at New York on December 17, 1979, and entered
into force June 3, 1983, and for the United States January 6,
1985 (TIAS No. 11081). The article likewise excludes from the
reach of the political offense exception murder or other
willful crime against the person of the head of state of the
United States or the PRC or a member of the Head of State's
immediate family. A conspiracy or attempt tocommit this offense
or the multilateral international agreement offenses described above
shall also not be considered to be an offense of a political character.
Article 6 further mandates the denial of extradition if the
competent authority of the requested Party, which is expressly
designated in the Article as the executive authority in the
United States, determines (1) that the request was politically
motivated, (2) that the request was made for the primary
purpose of prosecuting or punishing the person sought on
account of his race, religion, nationality or political
opinion, or (3) that the person sought is likely to be denied a
fair trail or punished on account of his race, religion,
nationality, or political opinions. The United States has
agreed to the inclusion of such a comprehensive provision in a
few other modern extradition treaties.
Article 7, as in the U.S.-Norway extradition treaty,
provides that the competent authority of the requested Party,
which is designated as the executive authority in the United
States, may in its discretion refuse the surrender of a
fugitive when it believes that such surrender is likely to
entail exceptionally serious consequences related to the age or
health of the fugitive. This provision has rarely been accepted
by the United States and the delegations expressed their shared
expectation that this Article would apply only in the most
unusual and extraordinary circumstances.
Article 8 describes the documents that are required to
support a request for extradition, following other modern
extradition treaties.
Article 9 establishes the procedures under which documents
submitted pursuant to Article 8 shall be received and admitted
into evidence in the requested Party. These provisions are also
similar to those found in other modern extradition treaties.
Article 10, in keeping with other modern extradition
treaties, provides for the provisional arrest and detention of
the person sought pending receipt of a fully documented
extradition, request in conformity with Article 8. Article
10(5) limits the period that the person sought may be so held
to no more than sixty days and explicitly provides that the
discharge of the person sought from custody due to lapse of
time does not prejudice subsequent rearrest and extradition
upon later receipt of the extradition request and supporting
documents.
Article 11 again reflects U.S. practice in modern
extradition treaties, providing that if the executive authority
of the requested Party has received requests for the
extradition of a fugitive offender from more than one country
with which either Party has arrangements for the surrender of
fugitive offenders, it shall make its decision having regard to
all the circumstances, including the relevantprovisions of such
agreements or arrangements, the place of commission of the offenses,
their relative seriousness, the respective dates of the requests, the
nationality of the fugitive offender, the nationality of the victim,
and the possibility of subsequent surrender to another jurisdiction.
Article 12 contains provisions on representation and
expenses that are similar to those found in other modern
extradition treaties. Specifically, the requested Party bears
ordinary expenses for the legal representation of the
requesting Party in any proceedings arising out of a request
for surrender of a fugitive offender. In the event that the
requesting Party arranges its own additional legal
representation and assistance, it bears any additional expenses
incurred. Article 12(3) clarifies that neither Party shall make
any pecuniary claim against the other Party arising out of the
arrest, detention, examination, or surrender of persons sought
under the Agreement.
Pursuant to Article 13, a fugitive offender shall be
surrendered only if the evidence is found sufficient according
to the law of the requested Party either to justify the
committal for trial of the person sought if the offense of
which he had been accused had been committed in the territory
of the requested Party or to establish that he is the person
found guilty, convicted or sentenced by the courts of the
requesting Party. These requirements are found in many modern
U.S. extradition treaties and preserve the ``probable cause''
standard in cases of requests to the United States.
Article 14 sets forth the standard procedures to govern the
surrender and return of fugitive offenders, including the
release from custody of a fugitive offender if the requesting
Party does not take custody of the person claimed on the date
agreed to by the Parties. Like other recent extradition
treaties, it provides that, if a request is denied in whole or
in part, the requested Party, to the extent permitted under its
law, is to provide an explanation of the reasons for the denial
and, at the request of the requesting Party, copies of
pertinent judicial decisions.
Article 15 follows other modern extradition treaties in
providing that when a person is surrendered, the requested
Party shall, so far as its law allows and subject to conditions
it may impose to protect the rights of other claimants, furnish
the requesting Party with all sums of money and other articles
which may serve as evidence in the requesting Party's
prosecution or which may have been acquired by the person
sought as a result of the offense and are in his or her
possession.
Article 16 expressly incorporates into the Agreement a
typical formulation of the rule of speciality. It provides,
subject to specificexceptions, that a person extradited under
the Agreement may not be proceeded against, sentenced or detained with
a view to the carrying out of a sentence for any offense committed
prior to his surrender other than that for which extradition has been
granted unless the requested Party consents. Furthermore, the
requesting Party may not surrender or transfer such person beyond its
jurisdiction for the offense for which his surrender was granted or for
an offense committed prior to his original surrender without the
consent of the requested Party. In the case of Hong Kong, this consent
requirement would apply to any proposed surrender or transfer outside
of Hong Kong. The limitations imposed under Article 16 do not apply if
the person has had an opportunity to leave the jurisdiction of the
Party to which he has been surrendered and has not done so within
thirty days or leaves and voluntarily returns.
Article 17, which resembles provisions in most recent
United States extradition treaties, provides for the temporary
or deferred surrender of persons who are serving a sentence or
are being prosecuted in the territory of the requested Party.
Article 18 permits surrender without further proceedings if
the person sought gives his consent, as is the case in most
modern treaties. It further provides that, to the extent
required under the law of the requested Party, the rule of
speciality in Article 16 shall apply to such transfers.
Although U.S. law does not impose speciality limitations in
such cases, the Hong Kong negotiators informed the United
States delegation that such speciality limitations apply under
Hong Kong law.
Article 19 governs the transit through the territory of one
Party of a person being surrendered to the other Party by a
third state. As with similar provisions in other recent
extradition treaties, it provides that either Party may
authorize such transit through its jurisdiction and that the
person in transit may be detained in custody during the period
of transit.
Article 20 contains final clauses dealing with the
Agreement's entry into force, termination and application. Of
particular importance, Paragraph 3 makes the Agreement's
restrictions on capital punishment and on prosecutions and
transfers for offenses other than those for which extradition
was granted, set forth in Articles 4 and 16, expressly
applicable to fugitive offenders who have been surrendered
between the parties prior to the Agreement's entry into force.
It also specifies that the Agreement would apply to requests
for surrender pending at the date of its entry into force.
Paragraph 1 provides for entry into force thirty days after the
date on which the Parties have notified each other in writing
that their respective requirements for entry into force have
been complied with. Such mutual notification will therefore
need to take place no later than May 30 in order to avoid a law
enforcement gap upon reversion on July 1. Paragraph 2 provides
for termination six months after receipt of written notice by
either Party. Paragraph 4, like the parallel provision in
almost all recent United States extradition treaties,
stipulates that the Agreement is retroactive, in the sense that
it applies to offenses committed both before and after its
entry into force, provided that the offense was an offense
under the laws of both parties at the time the request is made.
A Technical Analysis explaining in detail the provisions of
the Agreement is being prepared by the United States
negotiating delegation and will be submitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at an early
date.
Respectfully submitted,
Madeleine Albright.