China (Hong Kong) Extradition Treaty with the United States

China (Hong Kong) International Extradition Treaty with the United States

December 20, 1996, Date-Signed

January 21, 1998, Date-In-Force

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 Of- fenders, (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 rep- resents 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 the Agreement, 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 Par- ties 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. ex- tradition 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 re- fused on the ground that the person sought is a national of the requested Party. However, the executive authority of Hong Kong re- serves 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 relation to 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 inter- national 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 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, 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; 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. 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 to commit 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 trial 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 sub- mitted 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 of- fender 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 relevant provisions 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 per- son 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 specific exceptions, 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 con- sent 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 ex- tradition 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.

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Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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