[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

                               --------

                    U.S. GOVERNMENT PRINTING OFFICE                    
69-118                     WASHINGTON : 1999





                         LETTER OF TRANSMITTAL

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                                    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

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                                       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.




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