[DOCID: f:er002.105]
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105th Congress                                              Exec. Rept.
                                 SENATE

 1st Session                                                      105-2
_______________________________________________________________________


 
                    U.S.-HONG KONG EXTRADITION TREATY

                                _______
                                

                August 19, 1997.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                    [To accompany Treaty Doc. 105-3]

    The Committee on Foreign Relations to which was referred 
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, 
having considered the same, reports favorably thereon with two 
understandings, two declarations, and one proviso, and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and the 
accompanying resolution of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary..........................................................3
 IV. Entry Into Force and Termination.................................8
  V. Committee Action.................................................8
 VI. Committee Comments...............................................8
VII. Explanation of Proposed Treaty..................................10
VIII.Resolution of Ratification......................................25

 IX. Appendix........................................................29

                               I. Purpose

    This agreement: (1) identifies the offenses for which 
extradition will be granted, (2) establishes procedures to be 
followed in presenting extradition requests, (3) enumerates 
exceptions to the duty to extradite, (4) specifies the evidence 
required to support a finding of a duty to extradite, and (5) 
sets forth administrative provisions for bearing costs and 
legal representation.

                             II. Background

    On December 20, 1996, the United States and Hong Kong 
signed the Agreement for the Surrender of Fugitive Offenders. 
That agreement will replace the existing extradition 
relationship with Hong Kong, which is governed by the United 
States-United Kingdom extradition treaty.
    Because of Hong Kong's unique status, the Agreement was 
signed by Hong Kong with the ``authorization'' of its sovereign 
nation (People's Republic of China (PRC)) following a 
negotiation conducted under the auspices of the ``Joint Liaison 
Group'' (JLG) established by the Sino-British Joint Declaration 
on the Question of Hong Kong. <SUP>1</SUP> The People's 
Republic of China approved the text of the Agreement in 
September, permitting the U.S. and Hong Kong to sign in 
December. The Government of the People's Republic of China 
transmitted a diplomatic note to the United States on March 31, 
1997, affirming that the Agreement will continue to apply to 
the Hong Kong Special Administrative Region (HKSAR) after July 
1, 1997, when Hong Kong formally reverted to the PRC.
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    \1\ Under the Joint Declaration, sovereignty over Hong Kong was 
transferred to the PRC on July 1, 1997. Hong Kong is organized as a 
Special Administrative Region (HKSAR) with a ``high degree of 
autonomy'' except in foreign and defense affairs. Among the incidents 
to this autonomy is the ability of the HKSAR to maintain its own 
executive; legislative, and independent judicial systems for a least 50 
years under a ``one country, two systems'' policy. Though the PRC 
assumed ultimate power over Hong Kong's foreign affairs, the Joint 
Declaration nonetheless envisions the HKSAR maintaining its own 
external relations in many fields through a network of international 
agreements. However, the permissible reach of this network and the role 
of the PRC are not always clear.
---------------------------------------------------------------------------
    As the U.S.-Hong Kong Agreement is an unprecedented U.S. 
treaty relationship, it is important to note the negotiation 
history that led to the agreement between the U.S. and Hong 
Kong. Under the JLG process, four members each from the U.K. 
and the PRC (with support staff and experts as needed) review 
international agreements with regard to continuing obligations 
under them. In the case of new agreements, including this 
extradition agreement, the negotiation partners played the 
following roles: (1) the JLG agreed to a model agreement; (2) 
the U.K. Government, on behalf of the Hong Kong Government, 
asked the PRC to approve a list of negotiating partners 
(including the U.S.); (3) after approval of a negotiating 
partner, the British Foreign Secretary executed a formal 
entrustment to empower the Hong Kong Government to conduct 
negotiations on its behalf with the approved partner (in this 
case the U.S.) on the basis of the model agreement; (4) after 
the Hong Kong Government and the approved partner initialed the 
text of the agreement, the text was passed by the British 
Government to the PRC Government through the JLG for its 
approval (the PRC Government was permitted to seek 
clarification if the initialed text departed significantly from 
the model agreement and further negotiations would then be 
required); and (5) the PRC approved the text of the agreement, 
permitting its signature by the Government of Hong Kong and the 
negotiating partner (the U.S. in this case).
    Unlike in the United States, Hong Kong requires additional 
implementing legislation, extradition heretofore having been 
conducted under the U.K. authority. The State Department has 
informed the Committee that the Surrender of Fugitive Offenders 
Ordinance went into force on April 25, 1997. Subordinate 
legislation under the Ordinance, the Fugitive Offenders (United 
States of America) Order, specifically permitting the Agreement 
to be implemented, has also been approved. It will become 
effective on the same day that the Agreement enters into force.
    Because of this unprecedented relationship with the PRC, a 
country with which the United States does not have an 
extradition treaty relationship, there are several key 
provisions in the treaty permitting the United States to reject 
an extradition request. Under the proposed Hong Kong Agreement 
the Secretary retains independent authority to determine 
whether a request may be denied because it is politically 
motivated (Art. 6). Specifically, the treaty gives the 
Secretary of State <SUP>2</SUP> the ability to reject an 
extradition request (even after a U.S. court recommends 
extradition) if she determines that the requesting party is 
attempting to try the individual sought on account of his or 
her race, religion, nationality, or political opinion, or that 
the individual will be prejudiced in his or her trial or 
punishment on these grounds. Under traditional U.S. extradition 
practice the Secretary of State has exercised similar authority 
(even absent express treaty provisions).
---------------------------------------------------------------------------
    \2\  The Hong Kong Agreement gives this authority to the 
``executive authority'' for the United States. U.S. statute names the 
Secretary of State as the ``executive authority.'' (18 U.S.C. 
Sec. 3184). The Agreement does not designate Hong Kong's executive 
authority. The State Department has informed the Committee that it 
understands that in that the ``competent authority'' in Hong Kong under 
this article is likely to be the judiciary.
---------------------------------------------------------------------------
    In addition, the Hong Kong Agreement contains a 
humanitarian provision (Art. 7) similar to those found in a 
number of U.S. extradition agreements. This provision permits 
the Secretary of State to refuse surrender if it ``is likely to 
entail exceptionally serious consequences related to age or 
health.''
    Finally, the treaty places limitations on the surrender of 
nationals (Art. 3). Specifically, the treaty gives the United 
States the right to refuse to surrender a U.S. citizen when it 
implicates the ``defense, foreign affairs or essential public 
interest or policy'' of the United States. Hong Kong has a 
similar right of refusal when surrender implicates the 
``defense, foreign affairs or essential public interest or 
policy'' of the PRC.

                              III. Summary

                               a. general

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. The United States is a party to approximately 100 
bilateral extradition treaties, and several multilateral 
extradition treaties.
    In recent years the Departments of State and Justice have 
led an effort to modernize U.S. bilateral extradition treaties 
to better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering. Modern extradition 
treaties (1) identify the offenses for which extradition will 
be granted, (2) establish procedures to be followed in 
presenting extradition requests, (3) enumerate exceptions to 
the duty to extradite, (4) specify the evidence required to 
support a finding of a duty to extradite, and (5) set forth 
administrative provisions for bearing costs and legal 
representation.
    The importance of extradition treaties as a tool for law 
enforcement is reflected in the increase in the number of 
extraditions of individuals under treaties. In l995, 131 
persons were extradited to the U.S. for prosecution for crimes 
committed in the U.S, and the U.S. extradited 79 individuals to 
other countries for prosecution. Since 1991, in Hong Kong 
alone, 56 persons were extradited to the U.S. for narcotics-
related crimes, 12 for white collar crimes, and 23 for violent 
and other crimes.
    In the United States, the legal procedures for extradition 
are governed by both federal statute and self-executing 
treaties. Federal statute controls the judicial process for 
making a certification to the Secretary of State that she may 
extradite an individual under an existing treaty. Courts have 
held that the following elements must exist in order for a 
court to find that the Secretary of State may extradite: (1) 
the existence of a treaty enumerating crimes with which a 
defendant is charged; (2) charges for which extradition is 
sought are actually pending against the defendant in the 
requesting nation and are extraditable under the treaty; (3) 
the defendant is the same individual sought for trial in the 
requesting nation; (4) probable cause exists to believe that 
the defendant is guilty of charges pending against him in the 
requesting nation; and (5) the acts alleged to have been 
committed by the defendant are punishable as criminal conduct 
in the requesting nation and under the criminal law of the 
United States.
    Once a court has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, she may still refrain from extraditing an 
individual on foreign policy grounds, as defined in the 
treaties themselves (or even absent express treaty provisions).

                          b. major provisions

1. Extraditable Offenses (Article 2)

    The Hong Kong Extradition Agreement identifies an 
extraditable offense as either a crime enumerated in a long 
list of covered felonies (punishable by imprisonment of more 
than one year), or any other offense that is punishable by 
imprisonment of more than one year by both the requesting and 
requested Party <SUP>3</SUP> (Art. 2(1)). Although many modern 
U.S. treaties merely apply such a ``dual criminality test,'' to 
determine whether an offense is extraditable, the hybrid 
application of dual criminality in addition to a listing of 
felonies has precedent in many modern U.S. extradition 
treaties.
---------------------------------------------------------------------------
    \3\  This concept is termed ``dual criminality.''
---------------------------------------------------------------------------
    Like other recent extradition agreements, the Hong Kong 
Agreement contains provisions to facilitate transfer where 
jurisdictional elements or defined terms differ in the 
particular elements of the criminal act under the laws of the 
respective parties, but where both Parties still regard the 
underlying conduct as punishable. In the past, differences in 
how each legal system defines a crime for the same criminal 
conduct has hampered extradition. To avoid this problem when 
both parties consider an act to be criminal, the Hong Kong 
Agreement directs a requested party to examine an extradition 
request with ``reference to the totality of the acts or 
omissions alleged'' and not with ``reference to the elements of 
the offense prescribed by the law of the requesting Party'' 
(Art. 2(3)). The Agreement further directs that extradition not 
be denied on the basis of differences in terminology or 
classification or on the basis of an element of a U.S. federal 
offense that has been included solely to establish U.S. federal 
jurisdiction. (Art. 2(4)(b)).

2. Extraterritorial Offenses (Article 1)

    With very limited exceptions, recent extradition treaties 
make express provision for extraterritorial crimes. 
<SUP>4</SUP> The Hong Kong Agreement differs from most modern 
agreements in not having any express reference to 
extraterritorial crimes. At the same time, it also differs from 
other modern U.S. agreements that do not have explicit 
extraterritoriality clauses (including the U.K., New Zealand, 
and Belgium agreements) in not expressly limiting coverage to 
offenses within the jurisdiction or territory of one of the 
parties. Instead, the Hong Kong Agreement broadly states the 
obligation to surrender in terms of persons found in the 
jurisdiction of the requested party who are wanted ``in respect 
of'' a covered offense (Art. 1). This language may appear to 
make the place the crime is committed irrelevant, but more 
limited interpretations certainly are possible. For example, it 
may be intended that extradition for extraterritorial crimes be 
guided by a dual criminality standard that would limit 
extradition for extraterritorial offenses to those that would 
still be within the criminal jurisdiction of the requested 
Party even if committed outside its territory. According to the 
technical analysis submitted by the Executive Branch (the 
analysis is included in this report), the United States is 
relying on existing precedent to require extradition of certain 
extraterritorial crimes. Specifically the technical analysis 
states that should the U.S. request extradition for an offense 
committed outside the territory of the U.S., Hong Kong will 
surrender the fugitive if Hong Kong would enjoy 
extraterritorial jurisdiction in similar circumstances.
---------------------------------------------------------------------------
    \4\  ``Extraterritorial offenses,'' under the treaties are those 
that occur outside a nation's jurisdiction, but are punishable under 
the criminal law of the requested party. Prior to 1960, the obligation 
to extradite under U.S. treaties was typically limited to offenses 
committed within a nation's territory.

---------------------------------------------------------------------------
3. Surrender of Nationals (Article 3)

    The Hong Kong Agreement provides for limited discretion to 
refuse to extradite nationals. The ``executive authority'' of 
the Government of the United States is given the right to 
refuse the surrender of its nationals if surrender implicates 
the ``defense, foreign affairs or essential public interest or 
policy'' of the United States (Art. 3(2)). The ``executive 
authority'' of the Government of Hong Kong is similarly given a 
right of refusal.
    Although this is a reciprocal right, it is important to 
note the inclusion of the PRC in this right of refusal. 
Specifically, the treaty permits Hong Kong to refuse 
extradition if the PRC (not the Government of Hong Kong) has an 
interest relating to defense, foreign affairs, or essential 
public interest or policy (Art.3 (3)(a)). Further, Hong Kong 
has the right to refuse surrender of nationals of the PRC 
located in Hong Kong, but who do not have a right of abode or 
have not settled in Hong Kong, if the PRC has jurisdiction over 
the person subject to extradition and has commenced or 
completed proceedings for the prosecution of that person (Art. 
3(3)(b)). An extradition request may also be deferred for such 
person if the PRC is investigating that person for the same 
offense. (Art. 3(4)).

4. Political Offense/Political Motivation Exceptions (Article 
        6)

    In general, the Hong Kong Agreement excepts political 
offenses from the obligation to surrender. Even though U.S. 
extradition practice universally has precluded extradition for 
political offenses, there has been a trend over the past 20 
years toward narrowing the scope of the political offense 
exception to exclude from its protections crimes such as 
terrorism, hijacking, and murder of political leaders. The Hong 
Kong Agreement comports with that trend.
    Under the Hong Kong Agreement, there are three instances in 
which the exception to the obligation to surrender does not 
apply: (1) the murder or other willful crime against the Head 
of State (or his or her immediate family) of the United States 
or the PRC (Art. 6(2)(a)); (2) an offense for which both 
parties (the U.S. and Hong Kong) have an obligation under a 
multilateral agreement to surrender (Art. 6(2)(b)); and (3) a 
competent authority of the requested party, which is specified 
as the executive authority in the case of the United States, 
determines that a request was either (i) politically motivated; 
(ii) made primarily to try or punish an individual on account 
of race, religion, political opinion, or nationality; or (iii) 
would deny the person sought a fair trial or would punish that 
person on account of race, religion, nationality, or political 
opinion (Art. 6(3)). The first two exceptions--relating to 
political offenses--are matters for the courts to decide. The 
third exception--relating to political motivation--is a matter 
for the Secretary of State to decide.

5. Humanitarian Exception (Article 7)

    The Hong Kong Agreement contains a separate provision that 
permits the parties to refuse to extradite for humanitarian 
considerations. Specifically, if the surrender is ``likely to 
entail exceptionally serious consequences related to age or 
health'' the competent authority (the Agreement expressly 
provides in Article 7 that it shall be the executive authority 
in the U.S.) may refuse to surrender an individual. A similar 
provision is found in a number of U.S. extradition treaties.

6. Speciality (Article 16)

    The Hong Kong Agreement prohibits the requesting party from 
prosecuting a person surrendered under the treaty for any crime 
except that which the person was surrendered or for an offense 
that is a lesser included offense <SUP>5</SUP> of that for 
which the person is surrendered, but only if the lesser 
included offense itself is an extraditable offense (Art. 
16(1)(b)) <SUP>6</SUP>. For example, if kidnaping is a lesser 
included offense of a murder, the person surrendered may also 
be prosecuted for kidnaping as it is also an extraditable 
offense. A surrendered individual also may be tried for a 
different offense than was the subject of an extradition 
request if the requested party consents to prosecution of that 
offense (Art. 16(1)(c)). A surrendered individual loses 
protection under the rule of speciality if the individual has 
not left the territory of the requesting party within 30 days 
of having an opportunity to do so or if the individual has left 
the territory and voluntarily returned. (Art. 16(3)).
---------------------------------------------------------------------------
    \5\  A lesser included offense is one which is composed of some, 
but not all elements of a greater offense and which does not have any 
element not included in greater offense so that it is impossible to 
commit the greater offense without necessarily committing the lesser 
offense.
    \6\  This provision is called the ``rule of speciality'' and is 
designed to assure that an extradited individual is not extradited for 
one offense as a subterfuge for obtaining the defendant to stand trial 
on unrelated matters. Though the rule applies under every U.S. 
bilateral extradition treaty, many exceptions commonly are included.

---------------------------------------------------------------------------
7. Third Party Transfers (Article 16)

    The Hong Kong Agreement combines the rule of speciality 
provisions with restrictions on the transfer of a surrendered 
person to jurisdictions outside that of the Parties to the 
Agreement (the Government of Hong Kong and the Government of 
the United States). Unless the requested party consents, a 
surrendered individual may not be surrendered or transferred 
beyond the jurisdiction of the requesting party for the 
purposes of trial or punishment for any offense committed prior 
to transfer to the requesting party (Art. 16(2)). As with the 
rule of speciality this restriction lapses if the individual 
has not left the territory of the requesting party within 30 
days of having an opportunity to do so or if the individual has 
left that territory and voluntarily returned. This limitation 
is increasingly common in U.S. extradition treaties, although 
some agreements contain less restrictive limits on third party 
transfers.

8. Capital Punishment (Article 4)

    The Hong Kong Agreement provides that the requested Party 
may refuse extradition whenever the extraditable offense is 
punishable by death in the jurisdiction of the requesting, but 
not the requested, Party, unless the requesting Party furnishes 
such assurances as the requested Party considers sufficient 
that the death sentence will not be imposed and executed (Art. 
4(1)). <SUP>7</SUP> The Hong Kong Agreement also has an 
additional provision barring a Party from carrying out a death 
sentence handed down by a court in a case in which the 
requesting Party had given assurances that capital punishment 
would not be imposed (Art. 4(2)).
---------------------------------------------------------------------------
    \7\  Death penalty provisions have become standard in recent U.S. 
extradition agreements. These provisions permit extradition for serious 
crimes when one Party, whose laws do not permit capital punishment, 
might otherwise deny surrender of individuals detained for such crimes.

---------------------------------------------------------------------------
9. Prior Prosecution (Article 5)

    Like other recent treaties, the Hong Kong Agreement bars 
extradition for an offense for which the person sought has been 
convicted or acquitted in the requested Party. Because the 
restriction is limited to offenses and not acts, it appears 
that extradition may be permissible where extradition is sought 
for a different offense arising from the same pattern of 
conduct that was the basis of the requested Party prosecution 
(Art. 5(1)). The Hong Kong Agreement also states that 
investigations or prosecutions that have been dropped by the 
requested Party do not preclude extradition based on the same 
facts (Art. 5(2)). Unlike some recent treaties, the Agreement 
does not permit discretionary denials of extradition in such 
cases.

10. Retroactivity and Lapse of Time

    The Agreement covers offenses committed before its date of 
entry into force if the offense is punishable under the laws of 
both Parties at the time the request is made (Art. 20(4)). 
Retroactivity is typical in U.S. bilateral extradition treaties 
and does not raise an ex post facto issue so long as the 
activity for which extradition is being sought was criminal 
when the person committed the act.
    The Hong Kong Agreement does not contain an express 
provision on the statutes of limitation. Some, but not all, 
recent U.S. bilateral extradition treaties contain provisions 
that expressly bar extradition for offenses whose prosecution 
would be barred by an applicable statute of limitations.

                  IV. Entry Into Force and Termination

                          a. entry into force

    This Treaty enters into force thirty days after the date on 
which the parties have notified each other that their 
respective requirements for the entry into force have been 
complied with. (Art. 20(1)).

                             b. termination

    This Treaty contains a standard termination clause 
providing for withdrawal six months after notice by a Party of 
an intent to terminate the Treaty. (Art 20(2)).

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, June 3, 1997. (See appendix.) 
The hearing was chaired by Senator Thomas. The Committee 
considered the proposed treaty on Wednesday, July 30, 1997, and 
ordered the proposed treaty favorably reported by voice vote, 
with two understandings, two declarations, and one proviso and 
with the recommendation that the Senate give its advice and 
consent to the ratification of the proposed treaty.

                         VI. Committee Comments

    The treaty raised several key questions for the Committee 
and the Senate to consider, not least of which is the unique 
nature of the treaty itself. The agreement is with a sub- 
sovereign entity, not a sovereign state. Such an arrangement is 
not the norm. It raises, in particular, a fundamental question 
about whether the treaty partner has the power to enter such an 
agreement. It is clear that Hong Kong does; the Agreement has 
been authorized by both the previous sovereign (the United 
Kingdom) and the current sovereign (the People's Republic of 
China).
    It bears noting, however, that the United States does not 
have an extradition treaty with the PRC (nor with any other 
communist country), in large measure because the concept of 
extraditing individuals to a system which does not afford basic 
due process rights to criminal defendants runs counter to 
American notions of justice and fundamental fairness. Because 
of that concern, and the concern that Beijing may not adhere to 
its promise to permit Hong Kong to maintain a high degree of 
autonomy, the Senate must scrutinize this Agreement with 
particular care. The judgment about whether to proceed with 
this extradition treaty rests, ultimately, not on the good 
faith of the government in Beijing, but on the following 
considerations: (1) whether the agreement is adequately drafted 
to protect extradited persons against Chinese interference with 
the Hong Kong judicial system; (2) whether U.S. law enforcement 
interests require an extradition agreement with Hong Kong; and 
(3) whether the Administration is committed to vigilant 
monitoring of the treaty and prepared to stop implementing the 
agreement, or abrogate it if PRC disregards its provisions.
    The Committee has answered these questions in the 
affirmative and recommends that the Senate give its advice and 
consent to ratification of the extradition agreement, subject 
to the conditions contained in the resolution of ratification. 
The Committee is persuaded that the agreement is adequately 
drafted to protect extradited persons against Chinese 
interference with Hong Kong's judicial system, and that the 
Administration is committed to vigilant monitoring of the 
agreement. The Committee emphasizes that U.S. law enforcement 
interests dictate concluding an extradition agreement on Hong 
Kong.
    Equally important, the conclusion and effective 
implementation of bilateral agreements with Hong Kong serves 
another important American policy interest: the enhancement of 
the Hong Kong government's ability to maintain the ``high 
degree of autonomy'' promised by the Sino-British Joint 
Declaration. In supporting ratification of the treaty, the 
Committee believes that the Senate would send a clear message 
that bilateral treaty relationships with Hong Kong serve to 
strengthen, not diminish, the autonomy of the Hong Kong 
government. Another message is provided in the resolution of 
ratification itself: the strong belief of the Committee that 
PRC must respect the independence of the judicial system in 
Hong Kong. In the Sino-British Joint Declaration, the PRC 
government made a solemn pledge to respect the autonomy of Hong 
Kong, and promised that the Hong Kong judicial power would be 
exercised ``independently'' and would be ``free from any 
interference.'' Adherence to this commitment by Beijing must be 
considered an essential element to continued U.S. participation 
in this Agreement. The Committee's resolution of ratification 
includes a strong and unequivocal statement of the Senate's 
expectations regarding the autonomy of the Hong Kong courts, 
particularly in the area of final adjudication.
    Furthermore, the Committee notes that the treaty includes a 
number of safeguards which address concerns about Beijing's 
interference with Hong Kong's judicial system. These include: 
prohibitions on the transfer of extradited persons to Beijing 
without U.S. consent, prohibition on prosecution of an 
extradited person for offenses other than those for which the 
person was surrendered, and the U.S.'s ability to decline to 
extradite anyone ``likely to be denied a fair trial or punished 
on account of his race, religion, nationality, or political 
opinions.''
    The Committee notes with concern that the Technical 
Analysis submitted by the Executive Branch indicates that the 
Hong Kong delegation informed the U.S. delegation that it is 
possible that the PRC will require requests for extradition 
involving Hong Kong to be made through Beijing. This 
possibility is plainly inconsistent with Hong Kong's authority 
to enter into this agreement. The treaty partner here is Hong 
Kong, not the government in Beijing, and as such the Committee 
expects that formal requests for extradition by the United 
States will be submitted to the government in Hong Kong.
    It is abundantly clear that U.S. law enforcement interests 
require a mechanism to extradite fugitives to and from Hong 
Kong. The extradition relationship, in the past and at present, 
is decidedly one-sided--in favor of the United States. Since 
1991, the Hong Kong has returned 64 fugitives to the U.S., and 
the U.S. has returned 7 to Hong Kong. The U.S. has returned no 
U.S. citizens to Hong Kong. Eleven U.S. citizens have been 
returned to the U.S. to face charges here. At present, there 
are 51 pending extradition requests made by the United States 
to Hong Kong. By contrast, Hong Kong has but five requests 
pending with the United States. The majority of the fugitives 
extradited to the U.S. faced narcotics trafficking charges. 
Indeed, of the 51 pending U.S. requests, 35 involve narcotics 
charges. Hong Kong is also a center for alien smuggling, 
illegal customs transhipment, counterfeiting and other crimes 
that have direct effect on the U.S. The Committee fears that 
without this treaty, there is a strong possibility that Hong 
Kong will become a ``safe haven'' for drug dealers and other 
criminals, enabling them to elude the long arm of U.S. justice.
    The Committee strongly urges the Departments of State and 
Justice to monitor the agreement with great vigilance and be 
prepared to stop extraditing people under it if the PRC fails 
to respect its terms. The Committee's hearing on the 
extradition treaty elicited commitments from the State and 
Justice Departments that the U.S. government will ``monitor 
implementation of this agreement very closely, and to ensure 
that all of its terms are complied with, both in form as well 
as in substance.''
    In any treaty relationship, there is always a risk that the 
treaty partner will turn out to be unreliable. That risk is 
particularly acute here, where the treaty partner is, 
ultimately, subject to the control of another government. That 
government, a communist government going through a dramatic 
economic transformation, and a political transition brought 
about by the death of its long-time leader, has not always 
proven to be reliable in upholding its international 
commitments. Nonetheless, the Committee believes that the 
safeguards inherent in the treaty, and the important benefits 
to U.S. law enforcement interests that will flow from the 
treaty, argue for proceeding with Senate advice and consent.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Extradition 
Treaty submitted to the Committee on Foreign Relations by the 
Departments of State and Justice prior to the Committee hearing 
to consider pending extradition treaties:
    On December 20, 1996, the United States signed an Agreement 
for the Surrender of Fugitive Offenders with the Government of 
Hong Kong (``the Agreement''). The Agreement is the result of 
three years of negotiation, and is of particular importance 
because our current extradition relationship with Hong Kong, a 
crown colony of the United Kingdom, is governed by our 
extradition treaties with the United Kingdom, <SUP>8</SUP> and 
on July 1, 1997, Hong Kong will revert to the sovereignty of 
the People's Republic of China, with which we have no 
extradition treaty.
---------------------------------------------------------------------------
    \8\  U.S.-U.K. Extradition Treaty signed June 8, 1972, entered into 
force January 21, 1977 (28 UST 227, TIAS 8468) and the Supplementary 
Treaty signed June 25, 1985, entered into force December 23, 1986 (TIAS 
12050).
---------------------------------------------------------------------------
    The Hong Kong Government was granted an entrustment by the 
British Government authorizing it to negotiate this extradition 
agreement directly with the United States and bring it into 
force. In order to insure that the Agreement will remain in 
force after 1997, a draft text of the Agreement was presented 
to the Joint Liaison Group (JLG), which is composed of 
representatives of both the British and Chinese Governments, 
and meets periodically to discuss issues related to the status 
of post-1997 Hong Kong. The JLG approved the commencement of 
negotiations, and the final text was approved by the JLG prior 
to signing. Thus, the People's Republic of China agreed, 
through the JLG, to permit Hong Kong to negotiate this 
Agreement, approved its final terms, and has indicated that it 
will remain in force after July 1, 1997. In addition, the 
People's Republic of China has provided a diplomatic note 
confirming that this Agreement will continue in force after the 
date of reversion.
    This instrument is being submitted to the Senate for advice 
and consent to ratification, and, upon ratification and entry 
into force, it will be a treaty for purposes of U.S. law. At 
the request of the Hong Kong delegation, and in keeping with 
other agreements for the surrender of fugitives Hong Kong has 
concluded with other countries, the instrument is entitled an 
``agreement'' rather than ``treaty.'' Similarly, the instrument 
is described as one for the ``surrender'' of fugitives instead 
of for ``extradition,'' at the request of Hong Kong. The United 
States accommodated the Hong Kong delegation's semantic 
preferences, but this agreement is nevertheless intended to be 
a ``treaty or convention for extradition between the United 
States and a foreign government'' for purposes of Title 18, 
United States Code, Section 3184.
    It is anticipated that the Agreement will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. Hong Kong has enacted 
its own internal extradition ordinance that will apply to 
requests under the Agreement <SUP>9</SUP>.
---------------------------------------------------------------------------
    \9\  Currently, Hong Kong carries out the extradition obligations 
contained in British extradition treaties applicable to Hong Kong via 
the British Extradition Act. The Hong Kong Government has enacted a new 
Fugitive Offenders Ordinance that will enable Hong Kong to implement 
its new extradition agreements, including this one and those with 
Australia, the Netherlands, Canada, Malaysia, the Philippines and 
Indonesia, beyond July 1, 1997.
---------------------------------------------------------------------------

                   article 1--obligation to surrender

    The first article of the Agreement formally obligates each 
party to surrender to the other persons found within the 
jurisdiction of the requested party who are wanted by the 
requesting party for prosecution, or for the imposition or 
enforcement of a sentence, for those offenses described in 
Article 2 of the Agreement. In other words, this article 
requires the parties to surrender both fugitives who have been 
formally charged with crimes covered by Article 2, but who have 
not yet been tried and convicted, and fugitives who have been 
tried and convicted for such offenses, but who have fled prior 
to sentencing or before completion of an imposed sentence. The 
obligation to surrender is subject to the other provisions of 
the Agreement.

                   article 2--description of offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. Paragraph 1 contains a list of 
offenses for which, as long as they are punishable by both 
Parties <SUP>10</SUP> by more than a year imprisonment or some 
more severe punishment, surrender must be granted. 
<SUP>11</SUP> The list is comprehensive, and includes both 
offenses of traditional importance to federal and state law 
enforcement authorities in the United States, (e.g., drug 
trafficking, crimes of violence including those terrorist 
offenses covered by the multilateral conventions, various forms 
of fraud), and crimes of more recent interest and concern 
(e.g., money laundering, child pornography, alien smuggling). 
In addition, paragraph 1 of this article follows the modern 
dual criminality model by requiring surrender for any other 
offense punishable by the laws in each Party by more than one 
year imprisonment or by a more severe penalty, so long as 
surrender is not prohibited by the laws of the requested Party. 
This ``catch all'' provision will obviate the need to 
renegotiate the Agreement or supplement it when both Parties 
pass laws dealing with new types of criminal activity. Finally, 
paragraph 1 follows the practice of recent U.S. extradition 
treaties in stating that surrender should be granted for 
attempting to commit, conspiring to commit, or otherwise 
participating in an offense covered by the Agreement.
---------------------------------------------------------------------------
    \10 \ The term ``laws of both Parties'' is intended to include 
state and local criminal laws in the United States, as well as those 
federal criminal statutes enacted by the U.S. Congress.
    \11 \ Some provisions of the Agreement, while fully consistent with 
U.S. law enforcement interests, differ from those contained in several 
recently negotiated U.S. extradition treaties. This is due largely to 
the unique nature of the current and future status of Hong Kong. The 
inclusion of a list of specific extraditable offenses (provided that 
the offense is punishable by both parties by imprisonment or other form 
of detention for more than one year) was deemed by Hong Kong to be an 
important part of the draft text approved by the JLG. The U.S. 
delegation agreed to accept the list, once Hong Kong agreed to include 
in it a ``catch-all'' double criminality provision permitting surrender 
for all other offenses punishable in both jurisdictions by more than a 
year imprisonment (provided the law of the requested party does not 
prohibit surrender).
---------------------------------------------------------------------------
    Paragraph 2 of Article 2 requires that in a request for a 
fugitive already convicted and sentenced in the requesting 
country, at least six months remain to be served on that 
sentence. This provision is sometimes included in U.S. 
extradition treaties in an attempt to limit extradition, 
because of the significant costs associated with the process, 
to serious cases. (See, for example, Article 2(2) of the U.S. 
extradition treaty with Mexico). Hong Kong is willing to 
surrender in post-conviction cases only when the fugitive has a 
significant amount of time to serve on the outstanding 
sentence, so the U.S. delegation agreed to the inclusion of 
this paragraph.
    Paragraph 3 of Article 2 provides guidance on the type of 
analysis to be conducted by the requested Party in determining 
whether an offense for which surrender is requested is covered 
by the Agreement. The paragraph makes it clear that the 
requested Party shall look to the conduct, or the totality of 
the underlying acts and omissions, alleged to have been 
committed by the fugitive in order to determine whether such 
conduct would constitute an offense under its laws. 
<SUP>12</SUP> It is not necessary for the requested party to 
examine the elements of the offense prescribed by the law in 
the requesting state. For example, should the United States 
seek the extradition of an accused drug kingpin wanted for 
prosecution on Continuing Criminal Enterprise (CCE) charges, 
Hong Kong will examine the underlying conduct which led to the 
U.S. charges, and determine whether similar conduct in Hong 
Kong would constitute an offense covered by the Agreement. 
Under such an analysis, since the conduct necessary to violate 
the CCE statute would constitute violations of Hong Kong 
narcotics laws if committed in that jurisdiction, and since 
narcotics offenses are covered by the extradition agreement, 
surrender of fugitives on the CCE charges would be required. 
<SUP>13</SUP>
---------------------------------------------------------------------------
    \12 \ Should the United States request extradition for an offense 
committed outside the territory of the U.S., Hong Kong will surrender 
the fugitive if Hong Kong would enjoy extraterritorial jurisdiction in 
similar circumstances. See Liangsiriprasert (Somchai) v. Government of 
the United States of AMERICA, [1991] 1 A.C. 225, a decision of the 
Privy Council in London, dealing with this issue under similar language 
in the US- UK treaty currently applicable to Hong Kong.
    \13 \ See In re Lawrence Louis Levy, 1987 Hong Kong Supreme Court 
and Court of Appeals decisions, making clear the extraditability of CCE 
from Hong Kong, and describing the kind of dual criminality analysis to 
be conducted by Hong Kong extradition courts.
---------------------------------------------------------------------------
    Paragraph 4 of this article further reflects the intention 
of both parties to interpret the principles of this article 
broadly. The first subparagraph makes it clear that in 
determining whether an offense is covered by the Agreement, it 
makes no difference whether the requested and requesting 
Parties place it within the same category of offenses, or 
describe it by the same terminology. Thus the parties are to 
disregard differences in the categorization of an offense in 
determining whether it falls within the list of offenses 
contained in Article 2(1), or in determining whether double 
criminality exists under the ``catch all'' provision in Article 
2(1)(xxxvi). The second subparagraph addresses the confusion 
faced by some foreign judges by the fact that many United 
States federal statutes require proof of certain elements (such 
as use of the mails or interstate transportation) solely to 
establish jurisdiction in United States federal courts. Foreign 
judges may know of no similar requirement in their own criminal 
law, and on occasion have denied the extradition of fugitives 
sought by the United States on federal charges on this basis. 
The subparagraph requires that such elements be disregarded in 
determining whether an offense is covered by the list, or in 
applying the double criminality principle. For example, it will 
ensure that the Hong Kong authorities treat United States mail 
fraud charges (18 U.S.C. Sec. 1341) in the same manner as fraud 
charges under state laws, and view the federal crime of 
interstate transportation of stolen property (18 U.S.C. 
Sec. 2314) in the same manner as unlawful possession of stolen 
property. Provisions similar to those in paragraph 4 of this 
article are contained in all recent United States extradition 
treaties.
    Paragraph 5 of article 2 provides that an offense under 
military law, which is not an offense under ordinary criminal 
law, is not an offense under paragraph 1 of this article. 
<SUP>14</SUP>
---------------------------------------------------------------------------
    \14 \ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D.Cal. 1988).
---------------------------------------------------------------------------

                   article 3--surrender of nationals

    Paragraph 1 of Article 3 states that surrender shall not be 
refused, except under certain circumstances, on the ground of 
the nationality of the person sought. The exclusion of 
nationality as a ground for refusal of extradition is 
consistent with the longstanding U.S. policy in favor of 
governments extraditing their own citizens or nationals. 
However, the Hong Kong delegation made it clear throughout the 
negotiations that it would refuse to sign any extradition 
agreement that failed to provide the requested Party with the 
right, in narrowly defined circumstances, to deny the 
extradition of nationals. According to Hong Kong, such 
discretion was essential in obtaining PRC approval of the 
extradition agreement with the United States.
    Accordingly, the third paragraph of Article 3 states that 
the executive authority in Hong Kong reserves the right to 
refuse the surrender of nationals of the State whose government 
is responsible for its foreign affairs (i.e., for Hong Kong, 
the United Kingdom prior to July 1, 1997, and the People's 
Republic of China after that date), if (a) the requested 
surrender relates to the defense, foreign affairs or essential 
public interest or policy of that State or (b) the person 
neither has the right of abode in Hong Kong nor has entered 
Hong Kong for the purpose of settlement, <SUP>15</SUP> and the 
State whose government is responsible for Hong Kong's foreign 
affairs has jurisdiction over the offense and has commenced or 
completed proceedings for the prosecution of that person. The 
Hong Kong delegation repeatedly assured the U.S. delegation 
that this discretion to deny surrender will rarely, if ever, be 
used.
---------------------------------------------------------------------------
    \15\  The Hong Kong delegation explained that the phrase ``has 
entered Hong Kong for the purpose of settlement'' is a term of art, 
referring to an immigration policy aimed at family unification.
---------------------------------------------------------------------------
    The second paragraph of Article 3, for the purposes of 
creating reciprocal rights and obligations under the Agreement, 
provides the executive authority of the United States with the 
same narrowly drawn discretion to deny the extradition of U.S. 
nationals if the requested surrender relates to the defense, 
foreign affairs or essential public interest or policy of the 
United States. The U.S. delegation expressed its expectation 
that this provision will rarely, if ever, be used; 
nevertheless, it would provide an important protection for our 
nationals if we found it necessary in a particular case.
    Under this new agreement, Hong Kong will continue to 
surrender Hong Kong residents <SUP>16</SUP> to the United 
States. Hong Kong will also surrender, subject to the 
aforementioned exceptions, nationals of both the United Kingdom 
and the People's Republic of China (who are located in Hong 
Kong) to the United States.
---------------------------------------------------------------------------
    \16\  As a sub-state entity, Hong Kong does not have its own 
``nationals.''
---------------------------------------------------------------------------
    Paragraph 4 of Article 3 provides that in a case in which 
the PRC (after July 1, 1997) has jurisdiction and is 
investigating an offense by a person who neither has the right 
of abode in Hong Kong nor has entered Hong Kong for the purpose 
of settlement, extradition may be deferred until the 
investigation has been expeditiously concluded.
    The fifth paragraph of Article 3 permits the requesting 
Party to request, in a case in which surrender is denied under 
the circumstances described in Article 3(2) or 3(3)(a), that 
the case be submitted to the competent authorities of the 
requested Party for possible prosecution. So if in an 
exceptional case involving an essential public interest or 
policy of the PRC (again, after July 1, 1997), the executive 
authority of Hong Kong were to refuse to surrender a PRC 
national to the United States, the United States could request 
that Hong Kong submit the case to its domestic authorities so 
that proceedings for the PRC national's prosecution in Hong 
Kong could be considered.

                     article 4--capital punishment

    The first paragraph of Article 4 permits the requested 
Party to refuse surrender in cases in which the offense for 
which extradition is sought is punishable by death in the 
requesting Party, but is not punishable by death in the 
requested Party, unless the requesting Party provides 
assurances that the death penalty will not be imposed, or if 
imposed, will not be carried out. Similar provisions are found 
in many recent United States extradition treaties. 
<SUP>17</SUP> Hong Kong has repealed the death penalty for all 
offenses, and it is likely that Hong Kong would require 
assurances pursuant to this article should the United States 
seek the surrender of a fugitive wanted for a capital offense. 
However, the decision concerning whether to provide such 
assurances will remain with the appropriate authorities in the 
United States. In a state case, it is the practice of the U.S. 
Government to provide death penalty assurances only when, and 
to the extent that, state authorities are willing to do so.
---------------------------------------------------------------------------
    \17\  E.g., Article 7, U.S.-Netherlands Treaty; Article 6, U.S.-
Ireland Treaty.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that when the 
requesting Party gives assurances in accordance with paragraph 
1, the assurances shall be respected, and the death penalty, if 
imposed, shall not be carried

                      article 5--prior proceedings

    This article will permit surrender in situations in which 
the fugitive is charged with different offenses in both 
countries arising out of the same basic transaction.
    Article 5(1), which prohibits surrender if the offender has 
been convicted or acquitted in the requested Party for the 
offense for which extradition is requested, is similar to 
language found in many United States extradition treaties. This 
paragraph will, however, permit extradition in situations in 
which the activities of the fugitive result in his being 
charged with different offenses in each jurisdiction arising 
out of the same basic transaction.
    Article 5(2) makes it clear that neither Party can refuse 
to surrender an offender to the other on the ground that the 
requested Party's authorities declined to prosecute the 
offender, or instituted criminal proceedings against the 
offender and thereafter elected to discontinue the proceedings. 
This provision was included because the decision of the 
requested Party to forego prosecution, or to drop the charges 
already filed, may have resulted from failure to obtain 
sufficient evidence or witnesses available for trial, and the 
requesting Party may not suffer from the same impediments. This 
provision should enhance the ability to surrender to the 
jurisdiction that has the better chance of a successful 
prosecution.

                     article 6--political offenses

    Paragraph 1 of this article prohibits surrender for 
political offenses. This is a common provision in United States 
extradition treaties.
    Paragraph 2 describes several categories of offenses which 
shall not be considered to be political offenses.
    First, Article 6(2)(a) states that the political offense 
exception does not apply where there is a murder or other 
willful crime against the life of the Head of State of the 
United States, or against the life of the Head of State of the 
government responsible for the foreign affairs of Hong Kong, or 
a member of either Head of State's family.
    Second, Article 6(2)(b) states that the political offense 
exception does not apply to offenses for which both Parties 
have an international obligation pursuant to a multilateral 
international agreement to either surrender the person sought, 
or to submit the matter for domestic prosecution. The 
conventions to which this clause will apply until July 1, 1997 
include the Convention for the Suppression of Unlawful Seizures 
of Aircraft (Hijacking) <SUP>18</SUP>, the Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil 
Aviation (Sabotage) <SUP>19</SUP>, the Convention on the 
Prevention and Punishment of Crimes Against Internationally 
Protected Persons, Including Diplomatic Agents <SUP>20</SUP>, 
and the International Convention Against the Taking of Hostages 
<SUP>21</SUP>. After July 1, 1997, this clause will continue to 
apply to those international conventions containing ``extradite 
or prosecute provisions'' applicable to Hong Kong. The 
presumption under the Joint Declaration and Basic Law is that 
these and other multilateral treaties currently applicable to 
Hong Kong will continue to apply, and indeed it appears that 
the PRC will extend the applicability of some multilateral 
treaties to Hong Kong that were not extended by the UK. A 
formal process has been established for confirming the 
applicability to Hong Kong of each such treaty as well as any 
relevant reservations of understandings.
---------------------------------------------------------------------------
    \18 \ Done at the Hague December 16, 1970, and entered into force 
October 14, 1971 (22 UST 1641; TIAS 7192).
    \19 \ Done at Montreal September 23, 1971, entered into force 
January 26, 1973 (24 UST 564; TIAS 7570).
    \20\  Done at New York December 14, 1973, entered into force 
February 20, 1977 (28 UST 1975; TIAS 8532).
    \21\  Done at New York December 17, 1979, entered into force June 
3, 1983 and for the United States January 6, 1985 (TIAS 11081).
---------------------------------------------------------------------------
    Third, Article 6(2)(c) states that the political offense 
exception does not apply to conspiring or attempting to commit, 
or for aiding or abetting the commission or attempted 
commission of the foregoing offenses under 6(2)(a) and (b).
    Paragraph 3 of the article describes other situations in 
which the competent authority in the requested Party, which for 
the United States shall be the executive authority, 
<SUP>22</SUP> shall refuse surrender.
---------------------------------------------------------------------------
    \22\  The competent authority in Hong Kong for making decisions 
pursuant to this paragraph is likely to be the judiciary.
---------------------------------------------------------------------------
    First, Article 6(3)(a) states that surrender must be denied 
if the competent authority determines that the request was 
politically motivated. Similar provisions appear in other U.S. 
extradition treaties. <SUP>23</SUP> In the United States, the 
longstanding law and practice has been that the Secretary of 
State alone has the discretion to determine whether an 
extradition request is based on improper political motivation. 
<SUP>24</SUP>
---------------------------------------------------------------------------
    \23\  See Article III(3), U.S.-Jamaica Extradition Treaty, signed 
at Kingston June 14, 1983, entered into force September 24, 1984; 
Article 5(4), U.S.-Spain Extradition Treaty, signed May 29, 1970; 
Article 4, U.S.-Netherlands Extradition Treaty, signed at The Hague 
June 24, 1980, entered into force September 15, 1983 (TIAS 10733); and 
Article IV(c), U.S.-Ireland Extradition Treaty, signed at Washington 
July 13, 1983, entered into force December 15, 1984 (TIAS 10813).
    \24 \ See Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981); In re 
Lincoln, 288 F. 70, (E.D.N.Y. 1915); Koskotas v. Roche, 740 F.Supp. 904 
(D.Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991); Matter of 
Extradition of Singh, 123 F.R.D. 127 (D.N.J. 1987); Quinn v. Robinson, 
783 F.2d 776 (9th Cir. 1986); Sindona v. Grant, 461 F.Supp 199 (1978).
---------------------------------------------------------------------------
    Second, Article 6(3)(b) states that a request for surrender 
must be denied if, though purporting to be made on account of 
an offense covered by the Agreement, it was in fact made for 
the primary purpose of prosecuting or punishing the person 
sought on account of his race, religion, nationality or 
political opinion. Similar provisions appear in some recent 
U.S. extradition treaties. <SUP>25</SUP>
---------------------------------------------------------------------------
    \25 \ See Article IV(c), U.S.-Ireland Extradition Treaty, signed at 
Washington July 13, 1983, entered into force December 15, 1984 (TIAS 
10813); Article III(2)(b), U.S.-Jamaica Extradition Treaty,signed at 
Kingston June 14, 1983, entered into force September 24, 1984.
---------------------------------------------------------------------------
    Third, Article 6(3)(c) states that surrender must be denied 
if the person sought is likely to be denied a fair trial or 
punished on account of his race, religion, nationality, or 
political opinions. Again, a similar provision appears in some 
other recent U.S. extradition treaties. <SUP>26</SUP>
---------------------------------------------------------------------------
    \26 \ See Article III(2)(c), U.S.-Jamaica Extradition Treaty, 
signed at Kingston June 14, 1983, entered into force September 24, 
1984.
---------------------------------------------------------------------------

                 article 7--humanitarian considerations

    This article provides the competent authority of the 
requested Party, which again for the United States shall be the 
executive authority, with the discretion to refuse the 
surrender of a fugitive when such surrender is likely to entail 
exceptionally serious consequences related to age or health. 
This type of provision, although normally deemed unnecessary by 
U.S. negotiators, does appear in a few other U.S. extradition 
treaties. <SUP>27</SUP>
---------------------------------------------------------------------------
    \27 \ See Article 7(2)(b), U.S.-Norway Extradition Treaty, signed 
at Oslo June 9, 1977; entered into force March 7, 1980; Article V(6), 
U.S.-Sweden Extradition Treaty, signed October 24, 1961, entered into 
force December 3, 1963.
---------------------------------------------------------------------------

                     article 8--required documents

    This article sets out the documentary and evidentiary 
requirements for a request for surrender, and is generally 
similar to articles in the United States' recent extradition 
treaties.
    Article 8(1) states that requests for the surrender of a 
fugitive offender shall be made in writing by and to the 
appropriate authorities of the Parties as may be notified 
between them from time to time. It is anticipated that requests 
both from and to Hong Kong will be channeled through the U.S. 
Consulate in Hong Kong <SUP>28</SUP>. Currently, U.S. requests 
for extradition from Hong Kong are presented to Hong Kong by 
the U.S. Consulate, at the direction of the U.S. Department of 
State and in consultation with the U.S. Department of Justice. 
That practice will continue. Hong Kong requests for extradition 
from the United States are currently presented to the United 
States through the British Embassy in Washington. This practice 
will change after the Agreement enters into force. It is our 
understanding that requests will be presented directly to the 
U.S. Consulate in Hong Kong for transmission by the Consulate 
to the State Department in Washington, and then on to the 
Justice Department. However, a formal extradition request 
either to or from Hong Kong may be preceded by a request for 
the provisional arrest of the fugitive pursuant to Article 10 
of the Agreement. Such requests for provisional arrest may be 
made through the same channel required for making formal 
requests, or forwarded through the International Criminal 
Police Organization (INTERPOL).
---------------------------------------------------------------------------
    \28 \ The Hong Kong delegation informed the U.S. delegation that it 
is possible that after 1997, the PRC will require requests for 
extradition involving Hong Kong to be made through Beijing. However, it 
is hoped that the speedy and efficient practice of direct requests both 
to and from Hong Kong will continue even after Hong Kong's reversion to 
PRC sovereignty.
---------------------------------------------------------------------------
    Article 8(2) outlines the information which must accompany 
every request for surrender under the Agreement. Most of the 
items will assist the requested Party in identifying and 
locating the fugitive, and in determining the exact nature of, 
and punishment for, the offense for which surrender is being 
requested.
    Article 8(3) describes the additional information needed 
when the person is sought for trial by authorities in the 
requesting Party; Article 8(4) lists the information needed, in 
addition to the requirements of Article 8(2), when the person 
sought has been tried and convicted in the requesting Party.
    Article 8(3) states that if the fugitive is a person who 
has not yet been convicted of the crime for which surrender is 
requested, the requesting Party must provide a copy of the 
arrest warrant, and ``such evidence as, according to the law of 
the requested Party, would justify his committal for trial if 
the offense had been committed within the jurisdiction of the 
requested Party.'' This is consistent with fundamental 
extradition jurisprudence in the United States, under which 
this language is interpreted to require countries seeking 
extradition from the U.S. to provide evidence establishing 
probable cause. <SUP>29</SUP> However, Hong Kong under its 
current law requires prima facie evidence of guilt in order to 
either extradite a fugitive, or to commit a case for trial in 
Hong Kong. During the negotiations, the Hong Kong delegation 
indicated that Hong Kong does not plan to change this 
evidentiary standard for either extradition, or committal for 
trial. Consequently, U.S. requests to Hong Kong for the 
surrender of fugitives will likely require prima facie evidence 
even after the Agreement enters into force, i.e., the same 
quantum of evidence we provide under the current extradition 
treaty.
---------------------------------------------------------------------------
    \29\  Courts applying 18 U.S.C. Sec. 3184 have long required 
probable cause for international extradition. Restatement (Third) of 
the Foreign Relations Law of the United States, Section 476, comment b.
---------------------------------------------------------------------------
    Article 8(4) lists the information needed to surrender a 
person already found guilty, convicted or sentenced in the 
requesting Party. Once a conviction has been obtained, no 
showing of either probable cause or prima facie evidence of 
guilt is required. In essence, the fact of conviction speaks 
for itself, a position taken in recent United States court 
decisions. <SUP>30</SUP> What is required are (a) a copy of a 
certificate or record of the finding of guilt, conviction, or 
sentence, and (b) if the person was found guilty or convicted 
but not sentenced, a statement or record to that effect and a 
copy of the arrest warrant, or (c) if the person was sentenced, 
a statement that the sentence remains enforceable and an 
indication of how much of it remains to be served.
---------------------------------------------------------------------------
    \30 \ See Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D.Vt. 1979).
---------------------------------------------------------------------------
    Article 8(5) states that all documents submitted by the 
requesting Party shall be in or translated into an official 
language of the requested Party, or any other language agreed 
upon by the Parties. Currently, extradition requests both to 
and from Hong Kong are made in English. That practice will 
continue under this Agreement. However, this paragraph 
recognizes that in the years after 1997, an increasing 
percentage of judges in Hong Kong may be local Hong Kong 
Chinese. Should the official language of the courts in Hong 
Kong change from English to Chinese, U.S. requests for 
fugitives would then need to be in or translated into Chinese. 
However, even if the official language of Hong Kong becomes 
Chinese, upon agreement of the Parties, our requests may still 
be made in English.

              article 9--admissibility and authentication

    Article 9 governs the authentication procedures for 
documents intended for use in extradition proceedings.
    Article 9(a) deals with requests for surrender made by the 
United States to Hong Kong. Documents accompanying such 
requests shall be received and admitted as evidence in Hong 
Kong if they are signed or certified by a state or federal 
judge, magistrate or official <SUP>31</SUP> of the United 
States of AMERICA, and they are sealed with the official seal 
of the competent authority <SUP>32</SUP> of the United States.
---------------------------------------------------------------------------
    \31 \ For example, pursuant to Federal Rule of Criminal Procedure 
9(b), the clerk of court shall sign arrest warrants issued for persons 
charged by information or indictment.
    \32 \ The competent authority for the United States is the 
executive authority. The seals of both the Department of Justice and 
the Department of State are routinely attached to documents submitted 
in support of U.S. requests for extradition.
---------------------------------------------------------------------------
    Article 9(b) deals with surrender requests made by Hong 
Kong to the United States. Documents accompanying such requests 
shall be received and admitted as evidence in the United States 
if they are certified by the principal U.S. consular officer 
resident in Hong Kong. This provision reflects a slight 
variation of procedure described in 18 U.S.C. Sec. 3190. That 
statute ensures the admissibility in extradition proceedings of 
evidence that is certified by ``the principal diplomatic or 
consular officer of the United States resident in such foreign 
country. . . .'' However, Hong Kong is not a country. Thus, 
this paragraph will ensure that extradition documents may be 
certified and made admissible in U.S. extradition proceedings 
by the certificate of the principal U.S. consular officer at 
our consulate in Hong Kong, without having to be sent for 
certification to either London (pre-July 1 1997) or Beijing 
(post- July 1 1997).
    Article 9(c) provides a second method for authenticating 
evidence in an extradition proceeding, by permitting such 
evidence to be admitted if it is authenticated in any manner 
accepted by the laws of the requested Party. This paragraph 
should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested Party, is not 
excluded at the extradition hearing because of an inadvertent 
error or omission in the authentication process.

                     article 10--provisional arrest

    This article describes the process by which a person 
located in the territory of one Party may be arrested and 
detained while the formal extradition papers are being 
prepared.
    Article 10(1) states that in urgent cases and upon request 
of the requesting Party, the requested Party may provisionally 
arrest a fugitive, in accordance with its law. An article 
governing provisional arrest of fugitives is standard in all 
modern U.S. extradition treaties.
    Paragraph 2 of Article 10 sets forth the information which 
the requesting Party must provide in support of such a request.
    Paragraph 3 of the article states that the requesting Party 
must be notified without delay of the outcome of the request 
for provisional arrest and the reasons for any refusal to 
execute it.
    Paragraph 4 of Article 10 describes the procedure for 
making a provisional arrest request. The paragraph makes it 
clear that the request shall be in writing, and made either 
through the same channels as a formal surrender request, or 
through INTERPOL.
    Article 10(5) states that if the formal surrender request 
with the necessary supporting documents has not been received 
by the requested Party within sixty days of arrest, the 
provisional arrest--and thus the custody of the fugitive--shall 
be terminated. However, the paragraph goes on to state that the 
person may be taken into custody again, and surrendered, if the 
surrender request is received subsequently.

                    article 11--concurrent requests

    This article reflects the practice of many recent United 
States extradition treaties and lists factors which the 
executive authority of the requested Party must consider in 
determining to which jurisdiction a person should be 
surrendered when reviewing competing requests from a Party to 
the Agreement and one or more other countries for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision. <SUP>33</SUP>
---------------------------------------------------------------------------
    \33\  See Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 
1990), aff'd 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

                article 12--representation and expenses

    The first paragraph of Article 12 states that the requested 
Party shall, at its own expense, make the necessary 
arrangements for the requesting Party's legal representation 
and assistance in any proceedings arising out of the request 
for surrender. The United States will represent Hong Kong in 
connection with court proceedings related to requests from Hong 
Kong for persons located in the United States. Hong Kong, 
through its Attorney General's Office, will represent the 
United States in connection with court proceedings related to 
requests from the United States for persons located in Hong 
Kong. In addition, the paragraph states that if the requesting 
Party decides to arrange for additional legal representation 
and assistance (i.e., above and beyond that provided on a cost-
free basis by the requested Party, such as the hiring of 
private counsel to assist in the presentation of the 
extradition request), the requesting Party shall bear any 
additional expenses incurred.
    Paragraph 2 of Article 12 provides that the requested Party 
will bear all expenses of extradition incurred in its 
jurisdiction except those relating to the international 
transportation of the fugitive to the requesting Party, and the 
translation of documents, which expenses are to be paid by the 
requesting Party.
    Article 12(3) provides that neither Party shall make a 
pecuniary claim against the other in connection with matters 
arising out of a request for surrender, including arrest, 
detention, examination, and surrender of the fugitive. This 
includes any claim by the fugitive for damages, reimbursement, 
or legal fees, or other expenses occasioned by the execution of 
the surrender request.

                     article 13--standard of proof

    This article sets out the quantum of evidence needed for 
surrender of a fugitive. For an accused person, the evidence 
must be sufficient according to the law of the requested Party 
to justify committal for trial if the offense had been 
committed in the territory of the requested Party. As explained 
in the analysis of Article 8(3), supra, this means that under 
the current law of the Parties, requests by the U.S. for 
fugitives located in Hong Kong must be accompanied by prima 
facie evidence, and requests by Hong Kong for fugitives located 
in the United States must be supported by evidence establishing 
probable cause. For a person found guilty, convicted or 
sentenced by the courts of the requesting Party, all that this 
paragraph requires is evidence to establish that the person 
sought is actually the person found guilty, convicted or 
sentenced. Such evidence of identity is in addition to the 
information regarding such persons required by Article 8(4) of 
the Agreement.

                     article 14--terms of surrender

    This article deals with matters related to the ultimate 
surrender of fugitives at the end of the extradition process.
    Paragraph 1 of Article 14 states that when available for 
surrender, the fugitive shall be sent by the authorities of the 
requested Party to such convenient place of departure within 
that Party's jurisdiction as agreed upon by the Parties. Thus, 
for example, if Hong Kong were to seek the surrender of a 
fugitive located in Kansas City, the Parties may agree for U.S. 
authorities to escort him in custody to a city on the West 
Coast, so that he may be handed over to the Hong Kong escort 
agents at the port of exit from the United States.
    Paragraph 2 requires that the requested Party promptly 
notify the requesting Party of its decision on the request for 
surrender. If the request is denied, the requested Party must 
provide an explanation of the reasons for the denial. In 
addition and upon request, the requested Party must provide the 
requesting Party with copies of pertinent judicial decisions 
related to the request.
    Paragraph 3 of the Article states that if the requesting 
Party does not remove the fugitive on the agreed upon date, he 
may be released from custody, and the executive authority of 
the requested Party may subsequently refuse to surrender him 
for the same offense. United States law requires that such 
surrender occur within two calendar months of the finding that 
the offender is extraditable <SUP>34</SUP>, or of the 
conclusion of any litigation challenging that finding 
<SUP>35</SUP>, whichever is later.
---------------------------------------------------------------------------
    \34\  Title 18, United States Code, Section 3188.
    \35\  Jimenez v. United States District Court, 84 S. Ct. 14, 11 
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also 
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 
(1978).
---------------------------------------------------------------------------
    Paragraph 4 of Article 14 states that if circumstances 
beyond its control prevent a Party from surrendering or picking 
up the person to be surrendered, it shall notify the other 
Party. Then, except to the extent inconsistent with the law of 
the requested Party, the two Parties shall agree on a new date 
for surrender--and the provisions of paragraph 3 shall apply. 
Thus, if it becomes necessary for either Party to re-schedule 
the pick up or transfer of a fugitive, that will be possible. 
However, if the transfer of a fugitive from the U.S. to Hong 
Kong is delayed beyond two calendar months from the finding of 
extraditability or the conclusion of litigation challenging 
that finding, and the fugitive applies for release, it will be 
up to a U.S. judge to determine whether the circumstances which 
led to the delay constituted ``sufficient cause'' <SUP>36</SUP> 
not to order the fugitive's release.
---------------------------------------------------------------------------
    \36\  Title 18, United States Code, Section 3188.
---------------------------------------------------------------------------

                    article 15--transfer of property

    This article requires the requested Party to, consistent 
with its laws and subject to conditions related to the rights 
of other claimants, furnish the requesting Party with certain 
categories of things along with the person surrendered. 
Specifically, money and other articles which may serve as proof 
of the offenses to which the request for surrender relates, and 
money or other articles which may have been acquired by the 
person sought as a result of the offense and are in his 
possession, are to be furnished. Thus, for example, physical or 
documentary evidence of the crime for which surrender is 
sought, and any proceeds of such crime found on the fugitive at 
the time of his arrest, are to be turned over.

                         article 16--speciality

    This article covers the principle known as the rule of 
speciality (or specialty), which is a standard aspect of United 
States extradition practice. The rule of speciality insures 
that a fugitive surrendered for one offense is not tried or 
punished for other crimes subject to certain specific 
exceptions. In other words, the rule prevents a request for 
extradition from being used as a subterfuge to obtain custody 
of a person for trial or service of sentence on charges which 
may not be extraditable under the Agreement, or which are not 
properly documented at the time that the request is granted. 
This paragraph contains a variety of exceptions to the rule 
that have developed over the years. It states that a person 
surrendered under the Agreement may only be proceeded against, 
sentenced, or detained with a view to the carrying out of a 
sentence for (1) the offense for which surrender was ordered, 
(2) lesser offenses revealed by the facts in respect of which 
request for surrender was ordered, provided such offenses are 
covered by the Agreement, and (3) any offenses for which the 
requested Party consents <SUP>37</SUP>. The paragraph also 
makes it clear that the rule applies only to offenses committed 
prior to the surrender of a fugitive.
---------------------------------------------------------------------------
    \37\  In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195 (D.D.C. 1979). It should be noted that in cases in which consent 
is requested to try, sentence, or punish a person for an offense other 
than that for which surrender was ordered, the requested Party may 
require submission of the documents called for in Article 8, and may 
detain the fugitive in custody for up to ninety days while the request 
is being processed.
---------------------------------------------------------------------------
    Paragraph 2 of this article prohibits the requesting Party 
from re-surrendering a person, or transferring him beyond its 
jurisdiction, without the consent of the requested Party. These 
limitations on further surrender and transfer apply to offenses 
for which the person was originally surrendered, and to any 
other offenses he may have committed prior to his original 
surrender. Thus, absent U.S. consent, a person surrendered to 
Hong Kong pursuant to this Agreement may not be further 
surrendered for the same crimes, or for other offenses 
committed prior to his surrender, to any third country, or even 
to the People's Republic of China (other parts of the PRC being 
``beyond the jurisdiction'' of Hong Kong). Nor may Hong Kong 
unilaterally decide to transfer a person surrendered pursuant 
to this Agreement, (either to a third country or to the PRC), 
for the service of his Hong Kong imposed sentence. In addition, 
pursuant to Article 20(3) of the Agreement, the provisions of 
Article 16 shall also apply to fugitives extradited pursuant to 
requests pending when the Agreement enters into force, and to 
any other fugitive offenders previously surrendered between the 
parties. Consequently, persons extradited to Hong Kong under 
the terms of our existing treaty with the United Kingdom will 
not, even after 1997, be surrendered or transferred to other 
jurisdictions (including the PRC) for the offenses for which 
their extradition was granted, or for any other offenses 
committed prior to their extradition, absent the consent of the 
United States. The Agreement meets a goal of U.S. negotiators 
in ensuring that persons extradited to Hong Kong (in the past 
or in the future) will be prosecuted and punished for those 
crimes in Hong Kong.
    Finally, Paragraph 3 of the article permits the trial, 
sentencing, detention, or surrender to another jurisdiction of 
a surrendered person if (1) he has had an opportunity to leave 
the jurisdiction to which he was surrendered and has not done 
so within thirty days, or (2) he voluntarily returns to the 
jurisdiction having left it.

              article 17--temporary and deferred surrender

    Paragraph 1 of this article addresses those situations in 
which a surrender request is made for a person already serving 
a sentence for a conviction in the requested Party. The 
paragraph states that the requested Party may temporarily 
surrender such a person to the requesting Party for purpose of 
prosecution.
    Paragraph 2 deals with requests for surrender made for 
persons being proceeded against by the requested Party. The 
requested Party must proceed with the surrender proceedings 
after the prosecution against the person sought has been 
concluded and he is acquitted. <SUP>38</SUP> Implicit in this 
provision is the notion that a prosecution in the requested 
Party permits that Party to defer surrender proceedings while 
its own criminal proceedings are pending. Pursuant to this 
paragraph, if the person sought is convicted and sentenced to 
imprisonment, the requested Party may continue surrender 
proceedings and, upon committal, temporarily surrender him to 
the requesting Party for purpose of prosecution. Implicit in 
this provision is the notion that the requested Party may 
choose to wait until completion of the service of sentence 
before continuing with the surrender proceedings.
---------------------------------------------------------------------------
    \38\  Article 17(2)(a) should be read in a manner which is 
compatible with Article 5, which prohibits surrender if the person 
sought has been convicted or acquitted in the requested Party for the 
same offense.
---------------------------------------------------------------------------
    The temporary transfer provisions of paragraphs 1 and 2 
further the interests of justice. They permit trial of the 
person sought while evidence and witnesses are more likely to 
be available, thereby increasing the likelihood of successful 
prosecution. Such transfer may also be advantageous to the 
person sought in that : (1) it allows him to resolve the 
charges sooner; (2) it may make it possible for him to serve 
any sentence in the requesting Party concurrently with the 
sentence in the requested Party; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar temporary 
surrender provisions are found in many recent extradition 
treaties.
    Paragraph 3 of the article states that when a person is 
temporarily surrendered, he shall be kept in custody by the 
requesting Party. He shall also be returned to the requested 
Party after the conclusion of the proceedings against him, in 
accordance with conditions to be determined by agreement of the 
Parties.

                    article 18--surrender by consent

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings and to expedite their 
return to the requesting State. Paragraph 1 of this article 
provides that when a fugitive consents to be surrendered to the 
requesting Party, the requested Party may surrender the person 
as expeditiously as possible without further proceedings. The 
Parties anticipate that in such cases there would be no need 
for the formal documents described in Article 8 or for further 
judicial proceedings of any kind.
    Paragraph 2 of Article 18 states that to the extent 
required under the law of the requested Party, the provisions 
of Article 16 (rule of speciality) shall apply to a person 
surrendered pursuant to this Article. Since surrender pursuant 
to this article would amount to voluntary return of the 
fugitive, and not a formal surrender pursuant to the Agreement, 
the United States does not view the rule of speciality as 
applicable to such surrenders.

                          article 19--transit

    Article 19(1) gives each Party the power to authorize 
transit through its jurisdiction of a person being surrendered 
to the other Party by a third country, and to hold such persons 
in custody during the period of transit. Transit requests shall 
be in writing. Each request for transit must contain a 
description of the person whose transit is proposed, and a 
brief statement of the facts of the case with respect to which 
he is being surrendered to the requesting Party.
    Article 19(2) makes it clear that no advance authorization 
is needed if the person is being transported by air, and no 
landing is scheduled in the jurisdiction of the Party to be 
transited. Should an unscheduled landing occur, a written 
request for transit as provided for in Paragraph 1 may be 
required at that time. However, the person must be kept in 
custody before the request for transit is received and until 
the transit is effected, so long as the request is received 
within ninety-six hours of the unscheduled landing.

       article 20--entry into force, termination and application

    Paragraph 1 of Article 20 states that the Agreement shall 
enter into force thirty days after the date on which the 
Parties have notified each other in writing that their 
respective requirements for the entry into force of this 
Agreement have been complied with.
    Paragraph 2 of the article states that either Party may 
terminate the Agreement by giving notice to the other in 
writing, however the Agreement shall only cease to have effect 
six months after the receipt of such notice.
    Paragraph 3 of the article sets out those categories of 
cases to which this Agreement applies. It shall apply to all 
requests for surrender made after its entry into force. It 
shall also apply to requests for surrender pending at the date 
of its entry into force. Finally, Articles 4 (capital 
punishment) and 16 (speciality) shall apply to fugitive 
offenders surrendered between the Parties prior to the 
Agreement's entry into force.
    Paragraph 4 of Article 20, like most of the other United 
States extradition treaties negotiated in the past two decades, 
makes the Agreement retroactive, in that it covers offenses 
committed before as well as after it enters into force.

                    VIII. Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of 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 (Treaty Doc. 105-3), subject to the 
understandings of subsection (a), the declarations of 
subsection (b), and the proviso of subsection (c).

    (a) UNDERSTANDINGS.--The Senate's advice and consent is 
subject to the following two understandings, which shall be 
included in the instrument of ratification, and shall be 
binding on the President:

          (1) THIRD PARTY TRANSFERS.-- The United States 
        understands that Article 16(2) permits the transfer of 
        persons surrendered to Hong Kong under this Agreement 
        beyond the jurisdiction of Hong Kong when the United 
        States so consents, but that the United States will not 
        apply Article 16(2) of the Agreement to permit the 
        transfer of persons surrendered to the Government of 
        Hong Kong to any other jurisdiction in the People's 
        Republic of China, unless the person being surrendered 
        consents to the transfer.
          (2) HONG KONG COURTS' POWER OF FINAL ADJUDICATION.-- 
        The United States understands that Hong Kong's courts 
        have the power of final adjudication over all matters 
        within Hong Kong's autonomy as guaranteed in the 1984 
        Sino-British Joint Declaration on the Question of Hong 
        Kong, signed on December 19, 1984, and ratified on May 
        27, 1985. The United States expects that any exceptions 
        to the jurisdiction of the Hong Kong courts for acts of 
        state shall be construed narrowly. The United States 
        understands that the exemption for acts of state does 
        not diminish the responsibilities of the Hong Kong 
        authorities with respect to extradition or the rights 
        of an individual to a fair trial in Hong Kong courts. 
        Any attempt by the Government of Hong Kong or the 
        Government of the People's Republic of China to curtail 
        the jurisdiction and power of final adjudication of the 
        Hong Kong courts may be considered grounds for 
        withdrawal from the Agreement.

    (b) DECLARATIONS.--The Senate's advice and consent is 
subject to the following two declarations, which shall be 
binding on the President:

          (1) REPORT ON THE HONG KONG JUDICIAL SYSTEM.-- One 
        year after entry into force, the Secretary of State, in 
        coordination with the Attorney General, shall prepare 
        and submit a report to the Committee on Foreign 
        Relations that addresses the following issues during 
        the period after entry into force of the Agreement:

                  (i) an assessment of the independence of the 
                Hong Kong judicial system from the Government 
                of the People's Republic of China, including a 
                summary of any instances in which the 
                Government of the People's Republic of China 
                has infringed upon the independence of the Hong 
                Kong judiciary;
                  (ii) an assessment of the due process 
                accorded all persons under the jurisdiction of 
                the Government of Hong Kong;
                  (iii) an assessment of the due process 
                accorded persons extradited to Hong Kong by the 
                United States;
                  (iv) an accounting of the citizenship and 
                number of persons extradited to Hong Kong from 
                the United States, and the citizenship and 
                number of persons extradited to the United 
                States from Hong Kong;
                  (v) an accounting of the destination of third 
                party transfer of persons who were originally 
                extradited from the United States, and the 
                citizenship of those persons;
                  (vi) a summary of the types of crimes for 
                which persons have been extradited between the 
                United States and Hong Kong;

          (2) TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification with 
        respect to the INF Treaty.

    (c) PROVISO.-- The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

        (1) SUPREMACY OF THE CONSTITUTION.--Nothing in the 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.



                            A P P E N D I X



                       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

                          (TREATY DOC. 105-3)




                            C O N T E N T S

                               __________
                                                                   Page

                              June 3, 1997

Borek, Jamison S., Deputy Legal Advisor, U.S. Department of State    38
    Prepared statement...........................................    41
Richard, Mark, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice...........................    35
    Prepared statement...........................................    36

                                Appendix

Letter to Chairman Helms from Barbara Larkin.....................    59
Response of Jamison S. Borek to Questions Asked by:
    Senator Helms................................................    59
    Senator Biden................................................    61

                                     

  


 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 (TREATY DOC. 105-3)

                              ----------                              


                         TUESDAY, JUNE 3, 1997

                                        U.S. Senate
                             Committee on Foreign Relations
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas, 
presiding.
    Present: Senators Thomas, Ashcroft, Kerry, and Robb.
    Senator Thomas. We will begin. Thank you very much for 
being here, the witnesses, and also the rest of you. Glad to 
have you.
    Today the committee will consider the agreement for the 
surrender of fugitive offenders between the United States and 
Hong Kong, signed in December of last year, the Hong Kong 
Extradition Treaty. Criminal activities originating in Hong 
Kong and aimed at the United States or U.S. interests for a 
variety of reasons is on the rise -- software, intellectual 
property, smuggling of illegal immigrants, and drug smuggling, 
to name just a few of the problem areas. With that rise in 
crime, there will become an increasing need for the United 
States to seek extradition of individuals from Hong Kong.
    At present, these extraditions are governed by an agreement 
between the United States and the United Kingdom. This 
agreement expires, however, upon Hong Kong reversion to the 
PRC. The treaty we consider today will replace the expired 
agreement, and ensure the continuation of the important 
cooperation between the law enforcement communities of Hong 
Kong and the United States. It is especially important because 
the U.S. lacks an extradition treaty with the People's Republic 
of China, and the treaty will provide the means for 
continuation of an extradition relationship with Hong Kong 
after reversion, and avoid a gap in law enforcement.
    Most of the provisions of this treaty follow the form and 
the content of extradition treaties presently in force with the 
U.S. In addition, it contains several provisions especially 
designed in light of the peculiar status of Hong Kong as a 
special administrative region of the PRC. I support the 
movement of this treaty and will work to move it as quickly as 
possible for the advice and consent of the full Senate.
    We are especially pleased that you came to talk with us 
about it. I think it is not generally controversial, but it is 
very important. I am pleased to be joined by the Senator from 
Missouri. Would you have any comments, Senator Ashcroft?
    Senator Ashcroft. Thank you, Mr. Chairman. I want to thank 
you for this series of hearings that you have been holding on 
Hong Kong, including the broader relationship between the 
United States and China. I think these are well worth our 
inquiry, and I appreciate the fact that you have focussed the 
attention of the full committee as well as the subcommittee on 
these issues.
    Hong Kong certainly serves as a prism through which to 
evaluate the future course of United States-China relations, 
and determine which policies the United States should adopt to 
best encourage the growth of free markets and democracy in the 
People's Republic of China. To most Americans, a hearing on the 
seemingly nebulous topic of extradition treaties is not 
particularly important. But let us not be distracted by the 
complex legal jargon that accompanies such treaties. 
Extradition agreements strike at the very heart of equality 
before the law, one of the most cherished freedoms that people 
should enjoy, I believe, around the globe. It certainly is a 
cherished freedom in America.
    Our judicial system seeks to protect the due process rights 
of foreigner and native citizen alike. Our extradition treaties 
with our nations are based on the premise that any person we 
transfer to a foreign court system will receive similarly just 
treatment. The extradition treaty with Hong Kong is thus a very 
important consideration in assessing the future prospects of 
freedom for the Colony under Chinese rule. We need to consider 
the extradition treaty in light of China's overall behavior 
toward Hong Kong in recent months.
    China's actions to undermine democracy in Hong Kong cast 
doubt on the future of civil liberties in the British Colony. 
China has declared the elected Hong Kong legislature invalid, 
and appointed a handpicked provisional legislative body.
    China's appointed chief executive of Hong Kong, Chi Hua, 
recently announced additional measures to restrict civil 
liberties in the colony. Public protests will have to receive 
prior approval, and could be banned to protect national 
security. Hong Kong political organizations will be required to 
register with the government, and will be prohibited from 
seeking or receiving funds from overseas organizations. Under 
China's definition of a Hong Kong political group, 
international organizations that expose China's human rights 
abuses will also be banned from receiving critical foreign 
funding.
    In light of these troubling steps being taken by Beijing, 
not to mention China's violation of trade agreements, weapons 
proliferation commitments, and human rights standards, there 
are few doubts in my mind that China will violate this 
extradition treaty that we are considering today.
    The extradition treaty contains provisions that supposedly 
preserve due process and the ability of the U.S. to refuse 
extradition requests that are politically motivated. As with 
all international agreements, however, effective enforcement is 
essential to protect American interests. The strongest treaty 
language in the world is meaningless without Presidential 
vigilance -- a vigilance I find appallingly lacking in the 
current administration.
    This administration has failed to confront consistently 
China on human rights violations, trade barriers and weapons 
proliferation. I am concerned that the administration will 
adopt a similarly lax attitude in the enforcement of this 
treaty. The Clinton administration's defense of Hong Kong in 
other areas has been weak at best. The White House has been 
hesitant to meet with political activists from the Colony, and 
Vice President Gore failed to include Hong Kong in the 
itinerary of his recent trip to East Asia. The 6 million people 
in Hong Kong deserve better treatment from America. The fight 
to preserve liberty in Hong Kong could be the battle that 
determines the outcome of the overall campaign to cultivate 
democracy in China.
    Hong Kong serves as yet another example of liberty to over 
1 billion Chinese. The effective removal of that example would 
set back the march of freedom.
    Mr. Chairman, tomorrow, will be the 8th anniversary of the 
Tiananmen Square massacre. Several thousand heroes of liberty 
lost their lives in that bloodbath. Several hundred more were 
tortured and imprisoned without the due process protections of 
a fair court system. Let us be honest. We are not signing this 
extradition treaty with Hong Kong, but with Beijing. By doing 
so, we are placing our stamp of approval on Chinese control of 
Hong Kong's court system, a court system that will increasingly 
be an extension of the Chinese Communist Party.
    The United States has never before signed a treaty to 
extradite human beings to a totalitarian communist regime. 
China has already amended Hong Kong's Bill of Rights to strip 
the courts of the power to strike down laws which violate civil 
liberties guaranteed in the Hong Kong Constitution. As Beijing 
continues its assault on Hong Kong's court system, we could see 
more egregious violations of due process. The heroes of 
Tiananmen Square truly loved their country and were willing to 
make the personal sacrifice to take a determined stand against 
political tyranny.
    The Clinton administration could learn a lesson from these 
demonstrators, who shook the foundations of the Chinese 
Communist Party 8 years ago. In the long run, honesty is the 
best policy, and the forthright stand against the atrocities 
being committed by Beijing will do more for a stable United 
States-China relationship than repeated acts of appeasement.
    We in America need to realize what the Tiananmen Square 
protesters recognized long ago -- that the forces of justice 
and liberty are at work in the Chinese people just as they have 
been at work with such stunning effect in other nations around 
the world. When China embraces democracy, along with a just 
court system and an open press, just as South Korea, Taiwan and 
Japan have done, it will be good to say we have been at the 
side of the Chinese people all along.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Ashcroft follows:]
              Prepared Statement of Senator John Ashcroft
    I want to thank Chairman Helms for his careful consideration of the 
U.S.-Hong Kong Extradition Treaty. Hong Kong certainly serves as a 
prism through which to evaluate the future of United States-China 
relations. The policies which the United States adopts to preserve 
liberty in the former British colony should help to determine the 
policies that will help promote the growth of freedom in China itself.
    While extradition treaties can be rather nebulous documents, let us 
not be distracted by the complex legal jargon that accompanies such 
treaties. Extradition agreements strike at the very heart of equality 
before the law, one of our most cherished freedoms in America. Our 
judicial system seeks to protect the due process rights of foreigner 
and native citizen alike, and our extradition treaties with other 
nations are based on the premise that any person the United States 
transfers to a foreign court system will receive similarly just 
treatment.
    The extradition treaty with Hong Kong is thus very important in 
assessing the future prospects for freedom in Hong Kong under Chinese 
rule. China's actions to undermine democracy in Hong Kong cast doubt on 
the future of civil liberties in the British colony, and we need to 
consider this extradition treaty in that light. China has declared the 
elected Hong Kong legislature invalid and, in its stead, appointed a 
hand-picked provisional legislative body. China's appointed chief 
executive of Hong Kong, Tung Chee-hwa, recently announced additional 
measures further restricting civil liberties in the colony.
    For instance, public protests must receive prior approval and could 
be banned to protect ``national security.'' Hong Kong's political 
organizations will be required to register with the government and will 
be prohibited from seeking or receiving funds from overseas 
organizations. Under China's new definition of a Hong Kong political 
group, international organizations that expose China's human rights 
abuses also will be banned from receiving critical foreign funding.
    China has already amended Hong Kong's Bill of Rights to strip the 
courts of the power to strike down laws which violate civil liberties 
guaranteed in the Hong Kong constitution. Further assaults on Hong 
Kong's court system by Beijing could set the stage for intolerable and 
egregious violations of due process.
    In light of these troubling steps taken by Beijing, not to mention 
China's violation of trade agreements, weapons proliferation 
commitments, and human rights standards, the United States must be on 
guard against any attempts by China to violate this extradition treaty 
in the future.
    The U.S.-Hong Kong extradition treaty contains provisions that 
preserve the ability of the United States to refuse extradition 
requests that are politically motivated. Article 6 of the extradition 
treaty also gives the United States the prerogative to refuse 
extradition requests where the offender is ``likely to be denied a fair 
trial or punished on account of his race, religion, nationality, or 
political opinions.'' Finally, and perhaps most importantly, the 
extradition treaty forbids third party transfers of persons extradited 
to Hong Kong beyond the jurisdiction of Hong Kong without the consent 
of the United States.
    The resolution of ratification drafted by the Foreign Relations 
Committee strengthens these safeguards by requiring the consent of the 
fugitive offender before a third party transfer can take place. The 
resolution also requires the Secretary of State to issue a report one 
year after the treaty takes effect on the independence of Hong Kong's 
court system. Finally, the resolution states that any attempt by China 
to curtail the jurisdiction or final adjudication of the Hong Kong 
courts could be considered grounds for withdrawal from the extradition 
treaty.
    As with all international agreements, however, effective 
enforcement is essential to protect American interests. The strongest 
treaty language in the world is meaningless without presidential 
vigilance, a vigilance too often lacking in this Administration. This 
Administration has failed to confront China consistently on human 
rights violations, trade barriers, and weapons proliferation. I am 
concerned that the Administration may adopt a similar indifference in 
the enforcement of this treaty.
    The United States needs to stand by Hong Kong now more than ever, 
and I want to do just that. However, the United States has never before 
signed a treaty to extradite accused individuals to a totalitarian 
communist regime. To the extent that Hong Kong's court system becomes a 
mere extension of the Communist Party in China, the United States must 
have the resolve not to cooperate with that court system. If we will 
use them, the resolution of ratification and the extradition treaty 
contain the provisions to address future attempts by China to subvert 
judicial independence in Hong Kong.
    In light of these safeguards, I will not challenge the U.S.-Hong 
Kong extradition treaty at this time. However, should China encroach on 
the autonomy of Hong Kong's judicial system, then I will be among the 
first calling for the United States to withdraw from the treaty.
    Mr. Chairman, thank you for allowing me to speak on this important 
subject. I look forward to working with you to ensure that this 
extradition treaty is honored by China and enforced by the United 
States.

    Senator Thomas. Thank you, Senator.
    We have as witnesses this morning Mr. Mark Richard, Deputy 
Assistant Attorney General of the Criminal Division, U.S. 
Department of Justice; and Ms. Jamison S. Borek, Deputy Legal 
Advisor, U.S. Department of State.
    Mr. Richard, would you care to begin, sir.

 STATEMENT OF MARK RICHARD, DEPUTY ASSISTANT ATTORNEY GENERAL, 
         CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Richard. Thank you very much, Mr. Chairman.
    With your permission, I would submit my complete statement 
for the record and merely summarize it.
    Senator Thomas. For both of you, your complete statements 
will be part of the record.
    Mr. Richard. As you have indicated, Hong Kong is currently 
one of our most closest and reliable law enforcement partners. 
Since 1991, under the existing U.S.-U.K. treaty, Hong Kong has 
returned 64 fugitives to the United States for prosecution. The 
vast majority of these fugitives were in the field of narcotics 
trafficking. During the same period, the United States returned 
seven fugitives to Hong Kong. Most of these crimes ranged from 
fraud to violent crimes.
    There is, as reflected in these statistics, a compelling 
law enforcement need to continue our extradition relationship 
with the authorities in Hong Kong. As a stable and 
sophisticated financial center, Hong Kong has long been an 
attractive place for money-laundering activity. Significantly, 
Hong Kong has also been known as an important site for 
narcotics trafficking. Incidentally, these crimes are directed 
principally at the United States. Hong Kong's location also 
makes it an attractive center for schemes involving the 
smuggling of aliens into the United States. It is also a 
natural hub for illegal customs transshipment, counterfeiting 
and other criminal activities that have direct effects in the 
United States.
    In negotiating this new agreement, we made every effort to 
ensure that extradition will be available for the widest 
possible range of offenses. Let me, if I may, turn to some 
specific provisions of the agreement itself that hopefully will 
address at least in part some of the concerns expressed by 
Senator Ashcroft in his opening statement. I would like to just 
highlight some.
    One, we have the modern concept of dual criminality, which 
permits extradition for any crime punishable in both 
jurisdictions by imprisonment of more than 1 year. That is 
incorporated into this agreement. In practice, this agreement 
will expand the range of extraditable offenses. Customs 
offenses such as smuggling and export control violations will 
now be extraditable, as will intellectual property offenses, 
computer crimes, gambling, money laundering related to any 
extraditable offense, and weapons offenses.
    The agreement envisions that, as a general rule, 
extradition will not be denied on the basis of nationality. 
However, the agreement contains narrow exceptions that take 
into account Hong Kong's unique status.
    Under Article 3 of the agreement, the executive authorities 
of both the United States and Hong Kong have the right to 
refuse the surrender of nationals if the requested surrender 
relates to the defense, foreign affairs or essential public 
interests in the requested parties.
    Article 16 of the agreement, I think, is of critical 
importance, because it incorporates a principle of extradition 
law known as a rule of specialty. It provides the legal basis 
to ensure that fugitives surrendered by the United States to 
Hong Kong will not be prosecuted for additional offenses or 
resurrendered beyond Hong Kong's borders without the permission 
of the United States.
    Fugitives, therefore, extradited by the United States to 
Hong Kong cannot be resurrendered by the Hong Kong special 
administrative region to the mainland PRC. Moreover this 
protection, rule of specialty, is specifically extended to all 
persons who have been extradited by the United States prior to 
the time the new agreement comes into force.
    In conclusion, I would like to just point out that as in 
other extradition areas with other countries, the extradition 
process is a cumbersome one and it is a technical one, but it 
is one that must be constantly monitored for compliance with 
fundamental fairness and conformity with the agreement.
    I certainly agree with the Senator that in this, we have to 
be particularly vigilant. I think, speaking certainly for the 
Department of Justice -- and I would be presumptuous enough to 
speak for the State Department in this regard -- to say that we 
both intend to monitor implementation of this agreement very 
closely, and to ensure that all of its terms are complied with, 
both in form as well as in substance.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Richard follows:]
                 Prepared Statement of Mark M. Richard
    Mr. Chairman, I am pleased to appear before the Committee today to 
present the views of the Department of Justice on an extradition 
agreement that is of great importance to the future of United States - 
Hong Kong law enforcement relations.
    The Department of Justice participated in the negotiation of this 
agreement with Hong Kong and joins the Department of State in urging 
the Committee to report favorably to the Senate and recommend that the 
Senate give its advice and consent to ratification.
    Hong Kong is currently one of our closest and most reliable law 
enforcement partners. Overall, the United States - Hong Kong law 
enforcement relationship can be described as excellent. This is 
particularly true with respect to extradition.
    In 1991, the United States began negotiating the agreement that is 
now before you for advice and consent to ratification. Since that time, 
under the existing U.S.-U.K. treaty, Hong Kong has returned 64 
fugitives to the United States for prosecution and/or punishment. The 
vast majority of those fugitives were accused narcotics traffickers 
wanted by either state or federal prosecutors. During that same period, 
the United States has returned 7 fugitives to Hong Kong for prosecution 
and/or punishment for offenses ranging from fraud to violent crimes.
    There is a compelling law enforcement need to continue our 
extradition relationship with the authorities in Hong Kong. As a stable 
and sophisticated financial center, Hong Kong has long been an 
attractive place for money laundering activity, despite aggressive law 
enforcement efforts to combat the problem.
    Significantly, Hong Kong has also been known as an important site 
for narcotics trafficking. In addition to serving as a conduit for the 
flow of drugs, Hong Kong is often chosen as the place where illicit 
narcotics deals are consummated. In fact, many of the traffickers 
extradited to the United States by the Hong Kong Government were later 
prosecuted for conspiring in Hong Kong to import heroin into the United 
States. The Royal Hong Kong Police and the Hong Kong Customs and Excise 
Department work closely with the U.S. law enforcement community in 
sharing information and conducting joint investigations. Similar 
cooperation between the Department of Justice and the Hong Kong 
Attorney General's Chambers has resulted in many successful extradition 
cases.
    Hong Kong's location also makes it an attractive center for schemes 
involving the smuggling of aliens into the United States. Hong Kong 
immigration officials have conducted numerous joint investigations with 
our Immigration and Naturalization Service to detect and arrest alien 
smugglers and to intercept persons who attempt to enter the United 
States illegally.
    Hong Kong is also a natural hub for illegal customs transhipment, 
counterfeiting and other criminal activities that have direct effects 
in the United States. Due to limitations of scope of the existing U.S.-
U.K. extradition treaty and Hong Kong's domestic laws implementing that 
treaty, some of the aforementioned offenses, including alien smuggling 
and most customs crimes, are not presently extraditable. In negotiating 
our new extradition agreement, we made every effort to ensure that 
extradition will be available for the widest possible range of 
offenses. Our goal is to provide all U.S. law enforcement agencies, 
both those with representatives stationed in Hong Kong, including the 
FBI, DEA, Customs Service, INS, Secret Service and Diplomatic Security, 
and those federal, state and local agencies who do not have 
representatives posted in Hong Kong, with the benefits of a 
comprehensive, modern extradition treaty.
    Our current and projected law enforcement needs provide sound 
policy reasons to both maintain and strengthen our ties with Hong Kong, 
as reflected by the letter and spirit of the Hong Kong Policy Act 
passed by Congress. Our support for swift approval of this agreement is 
premised upon our recognition of the continuing need for an extradition 
relationship with Hong Kong. In implementing the new agreement, we will 
continue to monitor closely the status of the legal system of Hong 
Kong.
    Under the Sino-British Joint Declaration on the Question of Hong 
Kong, the U.N.- registered bilateral treaty between the U.K. and the 
P.R.C., Hong Kong will retain both its capitalist system and its 
British-based common law system until at least the year 2047. The 
People's Republic of China has undertaken an international legal 
obligation under the Joint Declaration to preserve the independence of 
Hong Kong's judiciary and to maintain the same system of laws and due 
process that exists in Hong Kong today.
    Two weeks ago, it was announced in Hong Kong that Andrew Li Kwok-
nang will become the first Chief Justice of the Hong Kong Special 
Administrative Region's (HKSAR) Court of Final Appeal. Provided for 
under the Basic Law and described further in a subsequent Sino-British 
Joint Liaison Group (JLG) agreement, the Court of Final Appeal will 
replace the British Privy Council as Hong Kong's highest appellate 
court.
    According to press reports, the choice of Mr. Li as future Chief 
Justice has received immediate and widespread support in London, 
Beijing, and perhaps most importantly, Hong Kong. Governor Patten, 
future Secretary of Justice Elsie Leung, along with academics, members 
of the Hong Kong Bar Association, and others have made public 
statements endorsing the appointment of Andrew Li as a strong 
indication that judicial independence and the rule of law will continue 
in Hong Kong. The Department of Justice views the appointment of Mr. Li 
as a positive sign and, along with the Department of State, will pay 
close attention to developments in Hong Kong as additional members of 
the Court of Final Appeal are nominated in the coming weeks.
    I would like to turn now to the extradition agreement itself. 
Because the Departments of Justice and State have prepared and 
submitted to the Committee a detailed technical analysis of the various 
articles of this agreement, I will simply highlight some of the 
important features of the agreement. Many of those features are found 
in other U.S. extradition treaties that have recently come into force. 
This agreement also contains certain provisions that reflect Hong 
Kong's unique situation and our concomitant interests.
    The term ``agreement'' was used instead of ``treaty'' at the 
request of the Hong Kong Government. However, this agreement will be a 
treaty for purposes of United States law.
    The modern concept of ``dual criminality,'' which permits 
extradition for any crime punishable in both jurisdictions by 
imprisonment of more than one year, is incorporated into Article 2 of 
the agreement. In this context, a dual criminality clause is used to 
supplement a comprehensive list of offenses designed to underscore the 
availability of extradition for crimes that are of particular interest 
to each party.
    In practice, this agreement will expand the range of extraditable 
offenses. For the first time, the United States will be able to 
extradite fugitives from Hong Kong directly for alien smuggling and 
visa fraud. Until now, we have had to limit our extradition requests in 
alien smuggling cases to situations in which extraditable crimes, such 
as extortion or kidnapping, have occurred.
    Likewise, customs offenses such as smuggling and export control 
violations will become extraditable. In the past, due to restrictions 
under the U.S.-U.K. treaty and Hong Kong law, extradition in this area 
has been limited to fraud cases involving clear financial loss.
    Among the other crimes that will become extraditable for the first 
time are intellectual property offenses, computer crimes, bail jumping, 
gambling, money laundering related to any extraditable crime, and 
weapons offenses.
    The agreement envisions that as a general rule, extradition will 
not be denied on the basis of nationality. This principle, found in 
Article 3, is consistent with longstanding U.S. policy favoring the 
extradition of nationals. However, the agreement contains narrow 
exceptions that take into account Hong Kong's unique status under the 
Chinese ``one country, two systems'' approach to reversion.
    Under Article 3 of the agreement, the executive authorities of both 
the United States and Hong Kong have the right to refuse the surrender 
of nationals (in the case of Hong Kong, this means Chinese nationals) 
if the requested surrender relates to the defense, foreign affairs, or 
essential public interest of the requested Party.
    Article 3 also permits the executive authority in Hong Kong to 
refuse the surrender of a Chinese national who does not have what is 
called the ``right of abode'' in Hong Kong or has not ``entered Hong 
Kong for the purpose of settlement,'' if the P.R.C. has jurisdiction 
over the offense and has commenced or completed proceedings for the 
prosecution of that person. (The term ``right of abode'' refers to 
legal residents of Hong Kong, and the language concerning entry ``for 
the purpose of settlement'' is a term of art referring to an ongoing 
family reunification policy in Hong Kong).
    Article 3 also provides that in the event that the surrender of a 
national is refused, the case may be submitted to the competent 
authorities of the requested Party for possible domestic prosecution.
    Article 16 of the agreement incorporates a principle of extradition 
law known as the ``rule of specialty.'' That principle is also 
reflected in Section 17 of Hong Kong's new Surrender of Fugitive 
Offenders (SFO) Ordinance, which will serve as Hong Kong's domestic 
implementing legislation for new extradition agreements, including this 
one. Article 16 of the extradition agreement provides the legal basis 
to ensure that fugitives surrendered by the United States to Hong Kong 
will not be prosecuted for additional offenses or re-surrendered beyond 
Hong Kong's borders without the permission of the United States. Under 
the formulation of the language used in Article 16, which prohibits 
transfer of extradited persons ``beyond the jurisdiction of the 
requesting Party,'' fugitives extradited by the United States to Hong 
Kong cannot be re-surrendered by the Hong Kong Special Administrative 
Region to the mainland People's Republic of China.
    Under Article 20 of the agreement, the protection of the rule of 
specialty is specifically extended to all persons who have been 
extradited by the United States to Hong Kong prior to time that the new 
agreement comes into force.
    There is clear justification for continuing an effective and 
vibrant bilateral law enforcement relationship with Hong Kong. Future 
cooperation with Hong Kong will be an integral part of the U.S. 
Government's strategy to combat Asian organized crime. It is also 
important that Hong Kong does not become a haven for fugitives from 
U.S. justice due to the lack of an extradition treaty.
    Since 1991, the Departments of Justice and State have been working 
to build an infrastructure for our future law enforcement relationship 
with Hong Kong. We believe that the extradition agreement now before 
you is the cornerstone, which, together with agreements in the areas of 
mutual legal assistance and prisoner transfer that are also before the 
Committee, will protect U.S. law enforcement interests and support the 
autonomy of Hong Kong.
    Thank you, Mr. Chairman.

    Senator Thomas. Thank you, sir. Ms. Borek.

   STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISOR, U.S. 
                      DEPARTMENT OF STATE

    Ms. Borek. Thank you, Mr. Chairman.
    I am pleased to appear before you today to testify in 
support of this extradition treaty. As you know, as was clear 
at our earlier hearing and as Mr. Richard has testified, we 
have a very important law enforcement relation with Hong Kong, 
and we wish to preserve this law enforcement relationship. 
Extradition is an essential part of the relationship. Since 
1991 alone, Hong Kong has extradited over 60 fugitives to the 
United States and we have sent seven to Hong Kong.
    In the Hong Kong Policy Act, the Congress in fact already 
authorized and approved the continuance in force of our 
extradition relationship. Section 201(b) of the Hong Kong 
Policy Act provided that we could continue, in effect, treaties 
that currently applied to Hong Kong, such as the U.S.-U.K. 
Extradition Treaty with Hong Kong, after reversion. 
Unfortunately, it was the uniform view of the United Kingdom, 
the Hong Kong Government, and the People's Republic of China 
that it was not appropriate to continue a treaty we had with 
the United Kingdom as applied to Hong Kong; and the preference 
was to negotiate a new treaty, as they have done with a number 
of other countries, such as Netherlands, Canada, Australia, 
Malaysia, and the Philippines.
    We do understand that it will be possible to continue our 
relationship with Hong Kong in very much its current form 
because of two features of the arrangements for the future of 
Hong Kong. As you know, the status of Hong Kong after reversion 
is spelled out in two important documents, the 1984 Joint 
Declaration between the People's Republic of China and the 
United Kingdom on the question of Hong Kong. This is an 
international agreement, registered with the U.N. second, the 
1990 Basic Law, which was promulgated by the People's Republic 
of China as internal law for the imitation of the Joint 
Declaration.
    These provide fundamentally for continuity in the legal 
system and autonomy for the criminal justice system in Hong 
Kong. This is the central feature of maintaining a separate and 
independent extradition law enforcement relationship with Hong 
Kong, apart from that with the People's Republic of China.
    There are numerous provisions, and I will not go into them 
all, in the Joint Declaration and Basic Law, which speak to the 
separateness of the criminal justice system. Basically, there 
is a separate executive authority, separate courts, separate 
prisons, separate prosecution. There are special guarantees and 
express guarantees of due process rights, and continuation of 
the general common law legal system, and certain features which 
are unusual, such as the trial by jury. There is an express 
guarantee of independence in the prosecution of cases.
    As it appears from these documents, and as we have been 
assured by the Secretary of Security and the Solicitor General 
and others in Hong Kong, there is simply no machinery for 
intervention by the Central People's Government in Hong Kong in 
the criminal justice system. While you cannot rule out the 
possibility of influence, the Hong Kong Government officials 
remain responsible for their own criminal justice system and 
for the fulfillment of the obligations under the extradition 
agreement.
    This is not to say, of course, that there are no risks 
associated with reversion. Consistent with the Hong Kong Policy 
Act, however, we seek to maintain those agreements and ties 
which are consistent with the autonomy which Hong Kong