[Senate Treaty Document 104-16]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Treaty Doc. 104-016
Session
_______________________________________________________________________
EXTRADITION TREATY WITH THE PHILIPPINES
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, SIGNED
AT MANILA ON NOVEMBER 13, 1994.
September 5, 1995.--Treaty was read the first time and, together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate.
LETTER OF TRANSMITTAL
----------
The White House, September 5, 1995.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Extradition
Treaty Between the Government of the United States of America
and the Government of the Republic of the Philippines, signed
at Manila on November 13, 1994.
In addition, I transmit for the information of the Senate,
the report of the Department of State with respect to the
Treaty. As the report explains, the Treaty will not require
implementing legislation.
Together with the Treaty Between the Government of the
United States of America and the Government of the Republic of
the Philippines on Mutual Legal Assistance in Criminal Matters,
also signed November 13, 1994, this Treaty will, upon entry
into force, enhance cooperation between the law enforcement
communities of both countries. It will thereby make a
significant contribution to international law enforcement
efforts.
The provisions in this Treaty follow generally the form and
content of extradition treaties recently concluded by the
United States.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 4, 1995.
The President,
The White House.
The President: I have the honor to submit to you the
Extradition Treaty between the Government of the United States
of America and the Government of the Republic of the
Philippines (the ``Treaty''), signed at Manila on November 13,
1994. I recommend that the Treaty be transmitted to the Senate
for its advice and consent to ratification.
The Treaty follows generally the form and content of
extradition treaties recently concluded by the United States.
It represents part of a concerted effort by the Department of
State and the Department of Justice to develop modern
extradition relationships to enhance the United States' ability
to prosecute serious offenders including, especially, narcotics
traffickers and terrorists.
The Treaty marks a significant step in bilateral
cooperation between the United States and the Philippines. Upon
entry into force, it will become the first bilateral
extradition treaty in effect between the United States and the
Philippines. (The United States signed an earlier extradition
treaty with the Philippines on November 27, 1981. However, that
treaty, which now is outmoded, was not forwarded to the Senate
for advice and consent to ratification.) The Treaty can be
implemented without legislation.
Article 1 obligates each Contracting Party to extradite to
the other, pursuant to the provisions of the Treaty, any person
charged with or convicted of an extraditable offense.
Article 2(1) defines an extraditable offense as one
punishable under the laws of both Contracting Parties by
deprivation of liberty for a period of more than one year, or
by a more severe penalty. Use of such a ``dual criminality''
clause rather than a list of offenses covered by the Treaty
obviates the need to renegotiate or supplement the Treaty as
additional offenses become punishable under the laws of both
Contracting Parties.
Article 2(2) defines an extraditable offense to include
also an attempt or a conspiracy to commit, aiding or abetting,
counselling, causing or procuring the commission of or being an
accessory before or after the fact to an extraditable offense.
For such crimes, the Treaty accommodates the differences
between U.S. and Philippine criminal law (the Philippines, for
example, has no general conspiracy statute) by creating an
exception to the general dual-criminality requirement and
permitting extradition if the crime is punishable under the
laws of the Requesting State by deprivation of liberty for a
period of more than one year, or by a more severe penalty, and
the underlying offense is an extraditable offense.
Additional flexibility is provided by Article 2(3), which
provides that an offense shall be considered an extraditable
offense: whether or not the laws in the Contracting Parties
place the offense within the same category of offenses or
describe the offense by the same terminology; and whether or
not the offense is one for which United States federal law
requires the showing of such matters as interstate
transportation or use of the mails or of other facilities
affecting interstate or foreign commerce, such matters being
merely for the purpose of establishing jurisdiction in a United
States federal court.
With regard to offenses committed outside the territory of
the Requesting State, Article 2(4) provides a basis for
granting extradition if the Requested State's laws provide for
punishment of an offense committed outside of its territory in
similar circumstances or if the executive authority of the
Requested State, in its discretion, decides to submit the case
to its courts for the purpose of extradition.
Finally, article 2(5) provides that if extradition is
granted for an extraditable offense, it shall also be granted
for other offenses specified in the request that do not meet
the minimum penalty requirement, provided that all other
extradition requirements are met.
As is customary in extradition treaties, Article 3
incorporates a political offense exception to the obligation to
extradite. Article 3(1) states generally that extradition shall
not be granted for political offenses. Article 3(2) specifies
three categories of offenses that shall not be considered to be
political offenses:
(a) a murder or other willful crime against the person of a
Head of State of one of the Contracting Parties, or of a member
of the Head of State's family;
(b) an offense for which both Contracting Parties are
obliged pursuant to a multilateral international agreement to
extradite the person sought or to submit the case to their
competent authorities for a decision as to prosecution; and
(c) a conspiracy or attempt to commit any of the offenses
described above, or aiding and abetting a person who commits or
attempts to commit such offenses.
The Treaty's political offense exception is substantially
identical to that contained in several other modern extradition
treaties, including the treaty with Jordan, which recently
received Senate advice and consent. Offenses covered by Article
3(2)(b) include:
--aircraft hijacking covered by The Hague Convention for the
Suppression of Unlawful Seizure of Aircraft, done at
The Hague December 16, 1970, and entered into force
October 14, 1971 (22 U.S.T. 1641; T.I.A.S. No. 7192);
--aircraft sabotage covered by the Montreal Convention for
the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, done at Montreal September 23, 1971,
and entered into force January 26, 1973, (24 U.S.T.
564; T.I.A.S. No. 7570);
--crimes against internationally protected persons, including
diplomats, covered by the Convention on the Prevention
and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents, done at
New York December 14, 1973, and entered into force
February 20, 1977 (28 U.S.T. 1975; T.I.A.S. No. 8532);
--hostage-taking covered by the International Convention
against the Taking of Hostages, done at New York
December 17, 1979; entered into force June 3, 1983, and
for the United States January 6, 1985 (T.I.A.S. No.
11081); and
--maritime terrorism covered by the Convention for the
Suppression of Unlawful Acts against the Safety of
Maritime Navigation, done at Rome March 10, 1988;
entered into force March 1, 1992, and for the United
States March 6, 1995.
Article 3(3) provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request was politically motivated or that the offense
is a military offense that is not punishable under non-military
penal legislation (for example, desertion).
Article 4 bars extradition when the person sought has been
tried and convicted or acquitted in the Requested State for the
same offense, but does not bar extradition if the competent
authorities in the Requested State have declined to prosecute
or have decided to discontinue criminal proceedings against the
person sought.
Under Article 5, when an offense for which surrender is
sought is punishable by death under the laws of the Requesting
State and the laws in the Requested State do not permit such
punishment for that offense, the Requested State may refuse
extradition unless the Requesting State provides such
assurances as the Requested State considers sufficient that if
the death is imposed, it will not be carried out. It further
provides that if the Requesting State provides such an
assurance, the death penalty, if imposed by the courts of the
Requesting State, shall not be carried out.
Article 6 provides that extradition shall not be refused on
the ground that the person sought is a citizen of the Requested
State.
Article 7 establishes the procedures and describes the
documents that are required to support an extradition request.
The Article requires that all requests be submitted through the
diplomatic channel.
Article 7(5) establishes the procedures under which
documents submitted pursuant to this Article shall be received
and admitted into evidence.
Article 8 provides that all documents submitted by either
Contracting Party shall be in English, or shall be translated
into English by the Requesting State.
Article 9 sets forth procedures for the provisional arrest
and detention of a person sought pending presentation of the
formal request for extradition. Article 9(4) provides that if
the Requested State's executive authority has not received the
request for extradition and supporting documentation within
sixty days after the provisional arrest, the person may be
discharged from custody. However, Article 9(5) provides
explicitly that discharge from custody pursuant to Article 9(4)
does not prejudice subsequent rearrest and extradition upon
later delivery of the extradition request and supporting
documents.
Article 10 specifies the procedures governing surrender and
return of persons sought. It requires the Requested State to
provide prompt notice to the Requesting State through the
diplomatic channel regarding its extradition decision. If the
request is denied in whole or in part, Article 10 also requires
the Requesting State to provide information regarding the
reasons therefor. If extradition is granted, the person sought
must be removed from the territory of the Requested State
within the time prescribed by the law of the Requested State.
Article 11 concerns temporary and deferred surrender. If a
person whose extradition is sought is being prosecuted or is
serving a sentence in the Requested State, that State may
temporarily surrender the person to the Requesting State solely
for the purpose of prosecution. Alternatively, the Requested
State may postpone the extradition proceedings until its
prosecution has been concluded and the sentence has been
served.
Article 12 sets forth a non-exclusive list of factors to be
considered by the Requested State in determining to which State
to surrender a person sought by more than one State.
Article 13 sets forth the rule of speciality for this
Treaty. It provides, subject to specific exceptions, that a
person extradited under the Treaty may not be detained, tried,
or punished for an offense other than that for which
extradition has been granted, unless a waiver of the rule is
granted by the executive authority of the Requested State.
Similarly the Requesting State may not extradite such person to
a third state for an offense committed prior to the original
surrender unless the Requested State consents. These
restrictions do not apply if the extradited person leaves the
Requesting State after extradition and voluntarily returns to
it or fails to leave the Requesting State within ten days of
being free to do so.
Article 14 permits surrender to the Requesting State
without further proceedings if the person sought provides
written consent thereto.
Article 15 provides, to the extent permitted under the law
of the Requested State, for the seizure and surrender to the
Requesting State of property connected with the offense for
which extradition is granted. Such property may be surrender
even when extradition cannot be effected due to the death,
disappearance, or escape of the person sought. Surrender of
property may be deferred if it is needed as evidence in the
Requested State and may be conditioned upon satisfactory
assurances that it will be returned. Article 15 imposes an
obligation to respect the rights of third parties in affected
property.
Article 16 governs the transit through the territory of one
Contracting Party of a person being surrendered to the other
State by a third State.
Article 17 contains provisions on representation and
expenses that are similar to those found in other modern
extradition treaties. Specifically, the Requested State is
required to bear expenses for the legal representation of the
Requesting State in any proceedings arising out of a request
for extradition. The Requesting State is required to bear the
expenses related to the translation of documents and the
transportation of the person surrendered. Article 17(3)
clarifies that neither State shall make any pecuniary claim
against the other State arising out of the arrest, detention,
examination, or surrender of persons sought under the Treaty.
Article 18 states that the United States and Philippine
Departments of Justice may consult with each other directly in
connection with the procession of individual cases and in
furtherance of maintaining and improving Treaty implementation
procedures.
Article 19, like the parallel provision in almost all
recent United States extradition treaties, states that the
Treaty shall apply to offenses committed before as well as
after the date the Treaty enters into force.
Ratification and entry into force are addressed in Article
20. That Article provides that the Treaty shall be subject to
ratification and that the instruments of ratification shall be
exchanged as soon as possible, whereupon the Treaty shall enter
into force.
Under Article 21, either Contracting Party may terminate
the Treaty at any time upon written notice to the other party,
with termination effective six months after the date of receipt
of such notice.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of Justice and State, and will be submitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at an early
date.
Respectifully submitted,
Peter Tarnoff.