[Senate Treaty Document 106-2]
[From the U.S. Government Publishing Office]
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106th Congress Treaty Doc.
1st Session SENATE 106-2
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EXTRADITION TREATY WITH THE REPUBLIC OF KOREA
__________
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 KOREA, CONCLUDED ON JUNE
9, 1998, WITH ACCOMPANYING REPORT FROM THE DEPARTMENT OF STATE ON THE
CONVENTION AND THE HAGUE PROTOCOL
March 2, 1999.--Treaty was read the first time, and together with the
accompanying papers, referred to the Committee on Foreign Relations and
order to be printed for the use of the Senate
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U.S. GOVERNMENT PRINTING OFFICE
69-118 WASHINGTON : 1999
LETTER OF TRANSMITTAL
----------
The White House, March 2, 1999.
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 Korea, signed at
Washington on June 9, 1998 (hereinafter the ``Treaty'').
In addition, I transmit for the information of the Senate,
the report of the Department of State with respect to the
Treaty. The Treaty will not require implementing legislation.
The Treaty will, upon entry into force, enhance cooperation
between the law enforcement communities of the United States
and Korea. It will provide, for the first time, a framework and
basic protections for extraditions between Korea and the United
States, thereby making 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, February 2, 1999.
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 Korea
(hereinafter referred to as ``the Treaty''), signed at
Washington on June 9, 1998. 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 a concerted effort by the Department of State and
the Department of Justice to modernize the legal tools
available for the extradition of serious offenders such as
narcotics traffickers and terrorists.
The Treaty marks a significant step in bilateral
cooperation with the Republic of Korea. Upon entry into force,
it will become the first bilateral extradition treaty between
the United States and the Republic of Korea. In the absence of
a treaty, under domestic law the United States is unable to
extradite to Korea, except in certain limited statutorily-
defined circumstances. Article 1 obligates each State to
extradite to the other, in accordance with the provisions of
the Treaty, any person wanted for prosecution, trial, or
imposition or execution of punishment for an offense as
described in Article 2.
Article 2(1) defines an extraditable offense as one
punishable under the laws in 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, as
was the case in older treaties, obviates the need to
renegotiate or supplement the Treaty as additional offenses
become punishable under the law of both Contracting States.
Article 2(2) defines an extraditable offense to include
also an attempt or a conspiracy to commit, or participation in
the commission of, an extraditable offense as described in
2(1), provided the requirements of paragraph 1 are fulfilled.
In keeping with most recently negotiated U.S. extradition
treaties, Article 2(3) further provides that in determining
whether an offense is an offense under the law of the requested
State, the conduct of the person shall be examined by taking
into account the totality of the conduct alleged against the
person, and will be considered an extraditable offense: whether
or not the laws in the Contracting States place the offense
within the same category of offenses or describe the offense by
the same terminology; whether or not the constituent elements
of the offense differ under the laws in the Contracting States,
provided that the offenses under the laws of both States are
substantially analogous; 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 offense has been committed by
a national of the Requesting State, or, if the laws in the
Requested State do not so provide, the executive authority of
the Requested State, in its discretion, grants extradition,
provided the requirements of the Treaty are met.
Article 2(5) provides that if extradition is granted for an
extraditable offense, it shall also be granted for any other
offense specified in the request even if the other offense does
not meet the minimum penalty requirement, provided that all
other requirements for extradition are met.
Article 2(6) provides that in the case of fiscal offenses,
extradition may not be refused on the ground that the law of
the Requested State does not contain a tax, duty, customs, or
exchange regulation of the same kind as the law of the
Requesting State.
Finally, Article 2(7) provides that where the request for
extradition relates to a person already sentenced for an
extraditable offense by a court of the Requesting State,
extradition may be denied if a period of less than four months
remains to be served.
Article 3 provides that while neither Contracting State
shall be bound to extradite its own nationals, the Requested
State has the power to do so. It provides further that if
extradition is refused solely on the basis of the nationality
of the person sought, the Requested State shall, at the request
of the Requesting State, submit the case of its authorities for
prosecution. Nationality is to be determined at the time of the
commission of the offense for which extradition is requested.
As is customary in extradition treaties, Article 4
incorporates a political offense exception to the obligation to
extradite. Article 4(1) states generally that extradition shall
not be granted for political offenses. Article 4(2) specifies
three categories of offenses that shall not be considered to be
political offenses: (a) murder or other willful violent crime
against the person of a Head of State of one of the Contracting
States, or of a member of the Head of State's family; (b) an
offense for which both Contracting States have the obligation
to extradite the person sought or to submit the case of their
competent authorities for decisions as to prosecution pursuant
to a multilateral international agreement, including but not
limited to such agreements relating to genocide, terrorism, or
kidnapping; and (c) a conspiracy or attempt to commit, or
participation in, any of the foregoing offenses. The Treaty's
political offense exception is substantially identical to that
contained in several other modern extradition treaties,
including treaties with the Philippines and Argentina.
Article 4(3) provides further that surrender shall not be
granted if the executive authority of the Requested State
determines either (a) that the request for surrender, though
purporting to be made on account of an offense for which
surrender may be granted, 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; or (b) that extradition has been requested for
political purposes.
Finally, Article 4(4) 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.
Under Article 5, extradition is not to be granted when the
person sought has been convicted or acquitted in the Requested
State for the offense for which extradition is requested.
Article 6 permits extradition to be denied when the
prosecution or the execution of punishment of the offense for
which extradition is requested would have been barred because
of the statute of limitations of the Requested State had the
same offense been committed in the Requested State. It provides
further that the period during which a person fled from justice
does not count towards the running of the time period and that
acts of circumstances that would suspend the expiration of the
statute of limitations of either State shall be given effect by
the Requested State. In this regard, the Requesting State is to
provide a written statement of the relevant provisions of its
statute of limitations, which shall be conclusive.
Under Article 7, when an offense for which extradition is
sought is punishable by death under the laws of the Requesting
State and is not punishable by death under the 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 such
assurances as the Requested State considers sufficient that the
death penalty will not be imposed or, if imposed, 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.
The United States has agreed to a similar formulation in other
modern extradition treaties such as that with India.
Article 8 establishes the procedures and described the
documents that are requited to support a request for
extradition. It requires that all requests be submitted in
writing through the diplomatic channel, and that they be
translated into the language of the Requested State, following
other modern extradition treaties. Article 8(3) provides that a
request for extradition of a person sought for prosecution must
include, among other things, such information as would provide
reasonable grounds to believe that the person sought has
committed the offense for which extradition is requested.
Article 8(5) provides that if the Requested State considers
that the information furnished in support of the request is not
sufficient to fulfill the requirements of this Treaty, that
State may request that additional information be furnished
within such reasonable time as it specifies.
Article 9 establishes the procedures under which documents
submitted pursuant to Article 8 shall be received and admitted
into evidence in extradition proceedings in the Requested
State. These provisions are also similar to those found in
other modern extradition treaties.
Article 10, in keeping with other modern extradition
treaties, provides for the provisional arrest and detention of
the person sought pending receipt of a fully documented
extradition request in conformity with Article 8. Article 10(4)
provides that a person who is provisionally arrested may be
discharged from custody upon the expiration of two months from
the date of provisional arrest pursuant to the Treaty if the
executive authority of the Requested State has not received the
formal request for extradition and supporting documents
required in Article 8. Article 10(5) provides explicitly that
the fact that the person sought has been discharged from
custody on this ground shall not prejudice the subsequent
rearrest and extradition of that person if the extradition
request and supporting documents are delivered at a later date.
Article 11 sets forth the standard procedures to govern the
surrender and return of fugitive offenders. It requires the
Requested State to provide prompt notice in writing to the
Requesting State through the diplomatic channel regarding its
extradition decision. If the request is denied in whole or in
part, Article 11 also requires the Requesting State to provide
information regarding the reasons therefor and to provide
copies, upon request, of any pertinent judicial decisions. If
extradition is granted, unless the person sought is removed
from the territory of the Requested State within the time
prescribed by the law of that State, he may be discharged from
custody, and the Requested State may subsequently refuse
extradition for the same offense.
Article 12 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 for
the purpose of prosecution. A person so surrendered is to be
kept in custody in the Requesting State and returned to the
Requested State after the conclusion of proceedings against
that person, in accordance with conditions to be determined by
mutual agreement of the Contracting States. Alternatively, the
Requested State may postpone the extradition proceedings until
its prosecution has been concluded and the sentence has been
served.
Article 13 again reflects US practice in modern extradition
treaties, setting forth a non-exclusive list of factors to be
considered by the Requested State in determining to which State
to surrender a person whose extradition is sought by more than
one State.
Article 14 provides, to the extent permitted under the law
of the Requested State, for the seizure and surrender to the
Requesting State of all articles, documents and evidence
connected with the offense for which extradition is granted.
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 conditioned upon
satisfactory assurances that it will be returned and may be
deferred if it is needed as evidence in the Requested State.
Article 14(3) imposes an obligation to respect the rights of
third parties in affected property.
Article 15 sets forth the rule of speciality. It provides,
subject to specific exceptions, 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 or a differently denominated
offense based on the same facts on which extradition was
granted (provided such offense is extraditable, or is a lesser
included offense); an offense committed after the extradition
of the person; or an offense for which a waiver of the rule of
speciality 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 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 25 days of
being free to do so.
Article 16 permits surrender to the Requesting State
without further proceedings if the person sought gives his
consent, to the extent permitted under the Requested State's
law. In such cases Article 15 of the Treaty shall not apply.
Article 17 governs the transit through the territory of one
Contracting State of a person being surrendered to the other
Contracting State by a third State.
Article 18 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 ordinary expenses for the legal representation
of the Requesting State in any proceedings arising out of an
extradition request. The Requesting State is required to bear
the expenses related to the translation of documents and the
transportation of the person surrendered. Article 18(3)
specifies 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 19 contains language standard in modern extradition
treaties, permitting direct consultation between the United
States Department of Justice and the Republic of Korea Ministry
of Justice in connection with the processing of individual
cases and in furtherance of maintaining and improving
procedures for the implementation of this Treaty. Article 19(1)
adds a mandatory consultation provision, requiring the
Contracting States to consult, at the request of either,
concerning the interpretation and the application of this
Treaty. This addition was made at the request of the United
States to ensure that there will always be an avenue for
clarifying any question as to the nature of an offense for
which extradition is requested, including any offense under
Korea's National Security Law implicating what would be
important issues of freedom of speech or assembly in the United
States.
Article 20, 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.
Article 21 contains final clauses dealing with the Treaty's
ratification, entry into force and termination. Article 21
provides that the Treaty shall be subject to ratification, that
the instruments of ratification shall be exchanged as soon as
possible, and that this Treaty shall enter into force upon the
exchange of the instruments of ratification. Either Contracting
States may terminate this Treaty at any time by giving six
months written notice to the other Contracting State.
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 Department
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.
Respectfully submitted,
Strobe Talbot.