[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.


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