[Senate Treaty Document 105-30]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.

                                 SENATE
 1st Session                                                     105-30
_______________________________________________________________________


 
                     EXTRADITION TREATY WITH INDIA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
    AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF INDIA, SIGNED AT 
                      WASHINGTON ON JUNE 25, 1997





September 23, 1997.--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 23, 1997.
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 India, signed at 
Washington on June 25, 1997.
    In addition, I transmit, for the information of the Senate, 
a related exchange of letters signed the same date and the 
report of the Department of State with respect to the Treaty. 
As the report states, the Treaty will not require implementing 
legislation.
    The provisions in this Treaty follow generally the form and 
content of extradition treaties recently concluded by the 
United States.
    Upon entry into force, this Treaty would enhance 
cooperation between the law enforcement authorities of both 
countries, and thereby make a significant contribution to 
international law enforcement efforts. With respect to the 
United States and India, the Treaty would supersede the Treaty 
for the Mutual Extradition of Criminals between the United 
States of America and Great Britain, signed at London, December 
22, 1931, which was made applicable to India on March 9, 1942, 
and is currently applied by the United States and India.
    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, September 8, 1997.
    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 India (the 
``Treaty''), signed at Washington on June 25, 1997. I recommend 
that the Treaty be transmitted to the Senate for its advice and 
consent to ratification. Accompanying the Treaty is a related 
exchange of letters signed the same date. I recommend that 
these letters be transmitted for the information of the Senate.
    The Treaty follows closely the form and content of 
extradition treaties recently concluded by the United States. 
The Treaty represents part of a concerted effort by the 
Department of State and the Department of Justice to develop 
modern extradition relationships to enhance the ability of the 
United States to prosecute serious offenders, including, 
especially, narcotics traffickers and terrorists.
    The Treaty marks a significant step in bilateral 
cooperation between the United States and India. Upon entry 
into force, it would supersede (with the exception noted below) 
the Extradition Treaty between the United States and Great 
Britain signed at London on December 22, 1931, entered into 
force on June 24, 1935, and made applicable to India from March 
9, 1942. The United States and India continued to apply that 
Treaty following India's independence in 1947. That treaty has 
become outmoded, and the new treaty will provide significant 
improvements. The Treaty can be implemented without new 
legislation.
    Article 1 obligates each Party to extradite to the other, 
pursuant to the provisions of the Treaty, any person charged 
with or found guilty of an extraditable offense in the 
Requesting State, whether such offense was committed before or 
after entry into force of the Treaty.
    Article 2(1) defines an extraditable offense as one 
punishable under the laws of both Contracting States 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 
additionaloffenses become punishable under the laws of both 
Contracting States.
    Article 2(2) defines an extraditable offense to include 
also an attempt or a conspiracy to commit, aiding or abetting, 
counseling or procuring the commission of or being an accessory 
before or after the fact to, any extraditable offense as 
described in Article 2(1).
    Additional flexibility is provided by Article 2(3), which 
provides that an offense shall be considered an extraditable 
offense: (1) whether or not the laws of the Contracting States 
place the offense within the same category of offenses or 
describe the offense by the same terminology; (2) 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; or (3) whether or not it relates to 
taxation or revenue or is one of a purely fiscal character.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that an offense 
described in Article 2 shall be an extraditable offense 
regardless of where the act or acts constituting the offense 
were committed. Article 2(5) provides that if extradition has 
been granted for an extraditable offense, it shall also be 
granted for any other offense specified in the request, even if 
the other offenses are punishable by less than one year's 
deprivation of liberty, provided that all other requirements 
for extradition have been met.
    Article 3 provides that extradition shall not be refused on 
the ground that the person sought is a national of the 
Requested State. Neither party, in other words, may invoke 
nationality as a basis for denying an extradition.
    As is customary in extradition treaties, Article 4 
incorporates a political offense exception to the obligation to 
extradite. This 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. Article 4(1) states generally that 
extradition shall not be granted if the offense for which 
extradition is requested is a political offense. Article 4(2) 
specifies eight 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 or Head of 
Government of one of the Contracting States, or of a member of 
the Head ofState's family; (b) aircraft hijacking offenses; (c) 
acts of aviation sabotage; (d) crimes against internationally protected 
persons, including diplomats; (e) hostage taking; (f) offenses related 
to illegal drugs; (g) any other offense for which both Parties are 
obliged pursuant to a multilateral international agreement to extradite 
the person sought or submit the case to their competent authorities for 
decision as to prosecution; and (h) a conspiracy or attempt to commit 
any of the offenses described above, or aiding or abetting a person who 
commits or attempts to commit such offenses.
    Article 5(1) provides that the executive authority of the 
Requested State may refuse extradition for offenses under 
military law that are not offenses under ordinary criminal law 
(e.g. desertion). Article 5(2) provides that extradition shall 
not be granted if the executive authority of the Requested 
State determines that the request was politically motivated. 
Letters exchanged by the Parties at the time of the signing of 
the Treaty, and included herewith for the information of the 
Senate, set forth the understanding of the Parties that if 
either Party is considering prosecution or punishment upon 
extradition under law laws or rules of criminal procedure other 
than the Requesting State's ordinary laws or rules of criminal 
procedure, then the Requesting State must request consultations 
and make such a request for extradition only upon the agreement 
of the Requested State. This exchange of letters creates an 
important and useful limitation on the obligation to extradite 
fugitives where the prosecution or punishment would be based on 
extraordinary laws and procedures.
    Article 6 bars extradition when the person sought has been 
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.
    Article 7 provides that extradition shall not be granted 
when the prosecution has become barred by lapse of time 
according to the laws of the Requesting State.
    Under Article 8, when an offense for which extradition is 
requested is punishable by death under the laws in the 
Requesting State and is not so punishable under laws in the 
Requested State, the Requested State may refuse extradition 
unless the offense constitutes murder under the laws in the 
Requested State or the Requesting State provides assurances 
that the Death penalty, if imposed, will not be carried out.
    Article 9 establishes the procedures and describes the 
documents that are required to support a request for 
extradition. It requires that all requests be submitted through 
the diplomatic channel. Article 9(3) provides that a request 
for the extradition of a person sought for prosecution must be 
supported by such evidence as would justify committal for trial 
if the offense had been committed in the Requested State. This 
is a lesser evidentiary standard than that contained in the 
current extradition treaty and, therefore, should enhance the 
ability of the United States to obtain extradition of fugitives 
from India.
    Article 10 establishes the procedures under which documents 
submitted pursuant to the Treaty shall be received and admitted 
into evidence. Article 11 provides that all documents submitted 
by the Requesting State shall be in English.
    Article 12 sets forth procedures for the provisional arrest 
of a person sought pending presentation of the formal request 
for extradition. Article 12(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. Article 12(5) provides explicitly that discharge from 
custody pursuant to Article 12(4) does not prejudice subsequent 
rearrest and extradition upon later delivery of the extradition 
request and supporting documents.
    Article 13 specifies the procedures governing the surrender 
and return of persons sought. The Requested State is required 
to notify the Requesting State promptly through the diplomatic 
channel of its decision on extradition and, if the request is 
denied in whole or in part, to provide an explanation of the 
reasons for the denial of the request. If the request is 
granted, the authorities of the Contracting States shall agree 
on the time and place for the surrender of the person sought.
    Article 14 concerns temporary and deferred surrender. If a 
person whose extradition is sought is being proceeded against 
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. The Requested State may also 
postpone the extradition proceedings until its prosecution has 
been concluded and any sentence imposed has been served.
    Article 15 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 16 provides for the seizure and surrender to the 
Requesting State of all articles documents and evidence 
connected with the offense for which extradition is granted, to 
the extent permitted under the law of the Requested State. Such 
property may be surrendered 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 as soon as practicable. Article 16(3) imposes an 
obligation to respect the rights of third parties in affected 
property.
    Article 17 sets forth the rule of specialty. It provides 
that a person extradited under the Treaty may not be detained, 
tried, or punished in the Requesting State for an offense other 
than that for which extradition has been granted unless the 
offense is based on the same facts on which extradition was 
granted (provided such offense is extraditable or is a lesser 
included offense); the offense was committed after the 
extradition of the person; or a waiver of the rule of specialty 
is granted by the executive authority of the Requested State. 
Similarly, the Requesting State may not extradite the person to 
a third state for an offense committed prior to the original 
surrender unless the Requested State consents. These 
restrictions shall not prevent the detention, trial, or 
punishment of an extradited person, or that person's 
extradition to a third State, if the extradited person leaves 
the Requesting State after extradition and voluntarily returns 
to it or fails to leave the Requesting State within fifteen 
days of being free to do so.
    Article 18 permits surrender to the Requesting State 
without further proceedings if the person sought consents to 
surrender.
    Article 19 governs the transit through the territory of one 
Contracting State of a person being surrendered to the other 
State by a third State.
    Article 20 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the Requested State is 
required to represent the interests 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 20(3) clarifies that neither State 
shall make any pecuniary claim against the other State related 
to the arrest, detention,examination, custody, or surrender of 
persons sought under the Treaty.
    Article 21 states that the competent authorities of the 
United States and India may consult with each other directly or 
through the facilities of Interpol in connection with the 
processing of individual cases and in furtherance of 
maintaining and improving the procedures for the implementation 
of the Treaty.
    Article 22 provides that the Contracting States shall, to 
the extent permitted by their laws, afford each other the 
widest measure of mutual assistance in criminal matters in 
connection with an offense for which extradition has been 
requested.
    Article 23 and 24 contain final clauses dealing with the 
Treaty's ratification, entry into force and termination. 
Paragraph 1 of Article 23 states that the Treaty shall be 
subject to ratification, and the instruments of ratification 
shall be exchanged as soon as possible. Paragraph 2 states that 
the treaty shall enter into force upon the exchange of 
instruments of ratification. Paragraph 3 provides that, upon 
entry into force of this Treaty, the Treaty for the Mutual 
Extradition of Criminals between the United States of America 
and Great Britain, signed at London, December 22, 1931, shall 
cease to have any effect between the Government of the United 
States of America and the Government of the Republic of India, 
except that the prior Treaty shall apply to any extradition 
proceedings in which the extradition documents have already 
been submitted to the courts of the Requested States at the 
time this Treaty enters in force.
    Article 24 provides that either Contract State may 
terminate the Treaty at any time by giving written to the other 
Contract State, and the termination shall be effective six 
months after the date of such notice.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation and will be submitted separately to the Senate 
Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at the earliest 
possible date.
    Respectfully submitted,
                                                     Strobe Talbot.




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