[Senate Executive Report 104-29]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-29
_______________________________________________________________________


 
                EXTRADITION TREATY WITH THE PHILIPPINES

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                   [To accompany Treaty Doc. 104-16]

    The Committee on Foreign Relations to which was referred 
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, having 
considered the same, reports favorably thereon with one proviso 
and recommends that the Senate give its advice and consent to 
the ratification thereof as set forth in this report and the 
accompanying resolution of ratification.

                               I. Purpose

    Modern extradition treaties (1) identify the offenses for 
which extradition will be granted, (2) establish procedures to 
be followed in presenting extradition requests, (3) enumerate 
exceptions to the duty to extradite, (4) specify the evidence 
required to support a finding of a duty to extradite, and (5) 
set forth administrative provisions for bearing costs and legal 
representation.

                             II. Background

    On November 13, 1994, the President signed an extradition 
treaty with the Philippines. The Treaty was transmitted to the 
Senate for its advice and consent to ratification on September 
5, 1995. In recent years the Departments of State and Justice 
have led an effort to modernize U.S. bilateral extradition 
treaties to better combat international criminal activity, such 
as drug trafficking, terrorism and money laundering. The United 
States is a party to approximately 100 bilateral extradition 
treaties. According to the Justice Department, during 1995 131 
individuals were extradited to the United States and 79 
individuals were extradited from the United States.
    The increase in international crime also has prompted the 
U.S. government to become a party to several multilateral 
international conventions which, although not themselves 
extradition treaties, deal with international law enforcement 
and provide that the offenses which they cover shall be 
extraditable offenses in any extradition treaty between the 
parties. These include: the Convention for the Suppression of 
Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to 
Discourage Acts of Violence Against Civil Aviation (Montreal), 
art 8; the Protocol Amending the Single Convention on Narcotic 
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single 
Convention; the Convention to Prevent and Punish Acts of 
Terrorism Taking the Form of Crimes Against Persons and Related 
Extortion that are of International Significance (Organization 
of American States), art. 3; the Convention on the Prevention 
and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents, art. 8; the International 
Convention against the Taking of Hostages, art. 10; the 
Convention on the Physical Protection of Nuclear Materials, 
art. 11; and the United Nations Convention against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna). 
These multilateral international agreements are incorporated by 
reference in the Untied States' bilateral extradition treaties.

                              III. Summary

                               a. general

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. Extradition treaties can be bilateral or multilateral, 
though until recently the United States showed little interest 
in negotiating multilateral agreements dealing with 
extradition.
    The contents of recent treaties follow a standard format. 
Article 1 sets forth the obligation of contracting states to 
extradite to each other persons charged by the authorities of 
the Requesting State with, or convicted of, an extraditable 
offense. Article 2, sometimes referred to as a dual criminality 
clause, defines extraditable offenses as offenses punishable in 
both contracting states by prison terms of more than one year. 
Attempts or conspiracies to commit an extraditable offense are 
themselves extraditable. Several of the treaties provide that 
neither party shall be required to extradite its own nationals. 
The treaties carve out an exception to extraditable crimes for 
political offenses. The trend in modern extradition treaties is 
to narrow the political offense exceptions.
    The treaties include a clause allowing the Requested State 
to refuse extradition in cases where the offense is punishable 
by death in the Requesting State, unless the Requesting State 
provides assurances satisfactory to the Requested State that 
the individual sought will not be executed.
    In addition to these substantive provisions, the treaties 
also contain standard procedural provisions. These specify the 
kinds of information that must be submitted with an extradition 
request, the language in which documents are to be submitted, 
the procedures under which documents submitted are to be 
received and admitted into evidence in the Requested State, the 
procedures under which individuals shall be surrendered and 
returned to the Requesting State, and other related matters.

                          B. MAJOR PROVISIONS

1. Extraditable Offenses: The dual criminality clause

    Article 2 contains a standard definition of what 
constitutes an extraditable offense: an offense is extraditable 
if it is punishable under the laws of both parties by a prison 
term of at least one year. Attempts and conspiracies to commit 
such offenses, and participation in the commission of such 
offenses, are also extraditable. If the extradition request 
involves a fugitive, it shall be granted only if the remaining 
sentence to be served is more than six months.
    The dual criminality clause means, for example, that an 
offense is not extraditable if in the United States it 
constitutes a crime punishable by imprisonment of more than one 
year, but is not a crime in the treaty partner or is a crime 
punishable by a prison term of less than one year. In earlier 
extradition treaties the definition of extraditable offenses 
consisted of a list of specific categories of crimes. This 
categorizing of crimes has resulted in problems when a specific 
crime, for example drug dealing, is not on the list, and is 
therefore not extraditable. The result has been that as 
additional offenses become punishable under the laws of both 
treaty partners the extradition treaties between them need to 
be renegotiated or supplemented. A dual criminality clause 
obviates the need to renegotiate or supplement a treaty when it 
becomes necessary to broaden the definition of extraditable 
offenses.

2. Extraterritorial offenses

    In order to extradite individuals charged with 
extraterritorial crimes (offenses committed outside the 
territory of the Requesting State) such as international drug 
traffickers and terrorists, provision must be made in 
extradition treaties. The Philippine Treaty states that the 
Requested State shall grant extradition for an offense 
committed outside the Requesting State's territory if the 
Requested State's laws provide that an offense committed 
outside its territory is punishable in similar circumstances 
(art. 2(4)). If the Requested State's laws do not provide that 
an offense committed outside its territory is punishable in 
similar circumstances, the executive branch of the Requested 
State has discretionary authority to submit the extradition 
request to its courts for decision (art. 2(4b)).
    In the proposed treaty an obligation to extradite depends 
mostly on whether the Requested State also punishes offenses 
outside its territory ``in similar circumstances.'' This, in 
effect, appears to be a dual criminality clause applied to 
extraterritorial offenses. The phrase ``in similar 
circumstances'' is undefined in each of the treaties that have 
such a requirement and in the Letters of Submittal from the 
Department of State to the President. The phrase appears to be 
sufficiently vague to give a reluctant Requested State ``wiggle 
room'' to avoid its possible obligation to extradite 
individuals for crimes committed outside its territory.

3. Political offense exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. The political offense 
exception in the Philippine Treaty is a broader provision than 
is contained in other extradition treaties.
    The exclusion of certain violent crimes, (i.e. murder, 
kidnapping, and others) from the political offense exception 
has become standard in many U.S. extradition treaties, 
reflecting the concern of the United States government and 
certain other governments with international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in the proposed treaty. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution. For example, a Requested 
State could refuse to extradite and instead declare that it 
will itself prosecute the offender.

4. The death penalty exception

    The United States and other countries appear to have 
different views on capital punishment. Under the proposed 
treaties, the Requested State may refuse extradition for an 
offense punishable by the death penalty in the Requesting State 
if the same offense is not punishable by the death penalty in 
the Requested State, unless the Requesting State gives 
assurances satisfactory to the Requested State that the death 
penalty will not be imposed or carried out.

5. The Extradition of nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. U.S. extradition treaties take varying 
positions on the nationality issue.
    Unlike other extradition treaties, The Philippine Treaty 
unequivocally states that a party may not refuse extradition on 
the ground the person sought is one of its citizens (art. 6).

6. Retroactivity

    The proposed treaty states that it shall apply to offenses 
committed before as well as after it enters into force (art. 
19). These retroactivity provisions do not violate the 
Constitution's prohibition against the enactment of ex post 
facto laws which applies only to enactments making criminal 
acts that were innocent when committed, not to the extradition 
of a defendant for acts that were criminal when committed but 
for which no extradition agreement existed at the time.

7. The rule of speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties, including the six under consideration. The Malaysia 
Treaty (art. 13) contains exceptions to the rule of specialty 
that are designed to allow a Requesting State some latitude in 
prosecuting offenders for crimes other than those for which 
they had been specifically extradited.

8. Lapse of time

    The Philippine Treaty has no provision denying extradition 
if barred by the statute of limitations of either the 
Requesting or Requested State.

                  IV. Entry Into Force and Termination

                          a. entry into force

    This Treaty shall enter into force upon the exchange of 
instruments of ratification.

                             b. termination

    This Treaty shall terminate six months after receipt of 
notice that one Party intends to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on July 24, 1996, and ordered the proposed 
treaty favorably reported with one proviso by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years ahead, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. Certainly, 
sovereign relationships have always been important to 
prosecution of suspected criminals. The first recorded 
extradition treaty dates as far back as 1280 B.C. under Ramses 
II, Pharoah of Egypt. The United States entered into its first 
extradition treaty in 1794 with Great Britain. Like these early 
treaties, the basic premise of the treaties is to facilitate, 
under specified conditions, the transfer of persons who are 
within the jurisdiction of one nation, and who are charged with 
crimes against, or are fugitives from, the nation requesting 
extradition. Despite the long history of such bilateral 
treaties, the Committee believes that these treaties are more 
essential than ever to U.S. efforts to bring suspected 
criminals to justice.
    In 1995, 131 persons were extradited to the U.S. for 
prosecution for crimes committed in the U.S., and the U.S. 
extradited 79 individuals to other countries for prosecution. 
After the Senate ratified an extradition treaty with Jordan in 
1995, the U.S. Attorney General was able to take into custody 
an alleged participant in the bombing of the World Trade 
Center. His prosecution would not be possible without an 
extradition treaty. Crimes such as terrorism, transhipment of 
drugs by international cartels, and international banking fraud 
are but some of the international crimes that pose serious 
problems to U.S. law enforcement efforts. The Committee 
believes that modern extradition treaties provide an important 
law enforcement tool for combating such crimes and will advance 
the interests of the United States.
    The proposed resolution of ratification includes a proviso 
that reaffirms that ratification of this treaty does not 
require or authorize legislation that is prohibited by the 
Constitution of the United States. Bilateral extradition 
treaties rely on relationships between sovereign countries with 
unique legal systems. In as much as U.S. law is based on the 
Constitution, this treaty may not require legislation 
prohibited by the Constitution.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the extradition 
Treaty submitted to the Committee on Foreign Relations by the 
Departments of State and Justice prior to the Committee hearing 
to consider pending extradition treaties.

technical analysis of the extradition treaty between the united states 
                     of america and the philippines

    On November 13, 1994, the United States signed a treaty on 
extradition with the Republic of the Philippines (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries as part of a highly 
successful effort to modernize our law enforcement relations. 
The Treaty, which will be the first extradition treaty to enter 
into force between the United States and this important ally in 
the Western Pacific,\1\ represents a major step forward in 
United States efforts to win the cooperation of Asian countries 
in combating organized crime, transnational terrorism and 
international drug trafficking.
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    \1\ The United States and the Philippines signed an extradition 
treaty on November 27, 1981, but that treaty was not ratified.
---------------------------------------------------------------------------
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. The Philippines has 
its own internal law \2\ that will apply to United States 
requests under the Treaty.
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    \2\ See Philippines Presidential Decree No. 1069 of Jan. 13, 1977 
(``Philippine Extradition Law''). The key sections of the law that are 
germane to the interpretation and implementation of the Treaty are 
discussed in more detail in this technical analysis. The Philippine 
delegation stated that under the Philippine Constitution, treaties 
enjoy priority over municipal law. Thus, if the terms of the Treaty 
conflict with the Extradition Law, the terms of the Treaty will 
prevail.
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    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Obligation to extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
Party to extradite to the other Contracting Party persons 
charged with or convicted of an extraditable offense, subject 
to the provisions of the Treaty. The article refers to charges 
brought by authorities ``in'' the Requesting State rather than 
``of'' the Requesting State because the Philippine obligation 
to extradite to the United States involves state and local as 
well as federal cases. The negotiators also agreed that the 
term ``convicted'' includes instances in which the person has 
been found guilty but the sentence has not yet been imposed.\3\ 
The negotiators intended to make it clear that the Treaty 
applies to persons who have been adjudged guilty but have fled 
prior to sentencing.
---------------------------------------------------------------------------
    \3\ See Stanbrook and Stanbrook, ``Extradition: The Law and 
Practice'' 25-26 (1979).
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Article 2--Extraditable offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, similar 
to the recent United States extradition treaties with Jamaica, 
Italy, Ireland, Thailand, Sweden (Supplementary Convention) and 
Costa Rica, does not list the offenses for which extradition 
may be granted. Instead, paragraph 1 permit extradition for any 
offense punishable under the laws of both Contracting Parties 
by deprivation of liberty (i.e, imprisonment or other form of 
detention) for more than one year, or by a more severe penalty 
such as capital punishment. Defining extraditable offenses in 
terms of ``dual criminality'' rather than attempting to list 
each extraditable crime obviates the need to renegotiate the 
Treaty or supplement it if both Contracting Parties pass laws 
dealing with a new type of criminal activity, or if the list 
inadvertently fails to cover an important type of criminal 
activity punishable in both countries.
    During the negotiations, the United States delegation 
received assurances from the Philippine delegation that major 
United States offenses such as operating a continuing criminal 
enterprise \4\ are extraditable under the Treaty, and that 
offenses under the Racketeer Influenced and Corrupt 
Organizations (``RICO'') statutes \5\ are extraditable if the 
predicate offense is an extraditable offense. The Philippine 
delegation also stated that the extradition is possible for 
offenses such as drug trafficking, terrorism, money laundering, 
tax fraud or tax evasion, crimes against environmental law and 
antitrust violations punishable by both Contracting Parties.
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    \4\ See, e.g., 21 U.S.C. Sec. 848.
    \5\ See 18 U.S.C. Sec. Sec. 1961-68.
---------------------------------------------------------------------------
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition be granted for 
attempting or conspiring to commit, aiding or abetting, 
counseling, causing, or procuring, or otherwise being an 
accessory to an extraditable offense. As conspiracy charges are 
frequently used in United States criminal cases, particularly 
those involving complex transnational criminal activity, it is 
especially important that the Treaty be clear on this point. 
The Philippines has no general conspiracy statute similar to 
Title 18, United States Code, Section 371. Therefore, paragraph 
2 creates an exception to the dual criminality rule of 
paragraph 1 by expressly making inchoate crimes such as 
conspiracy extraditable offenses if the inchoate offense is 
punishable in the Requesting State by deprivation of liberty 
for a period of more than one year, or by a more severe 
penalty, and if the object of the inchoate offense is an 
extraditable offense pursuant to paragraph 1.
    Paragraph 3 reflects the intention of the Contracting 
Parties to have the principles of this article interpreted 
broadly. Judges in foreign countries often are confused by the 
fact that many United States federal statutes require proof of 
certain elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these judges know of no similar 
requirements in their own criminal law, they occasionally have 
denied the extradition of fugitives sought by the United States 
on federal charges on this basis. This paragraph requires that 
such elements be disregarded in applying the dual criminality 
principle. For example, it will ensure that Philippine 
authorities treat United States mail fraud charges \6\ in the 
same manner as fraud charges under state laws, and view the 
federal crime of interstate transportation of stolen property 
\7\ in the same manner as unlawful possession of stolen 
property. This paragraph also requires the Requested State to 
disregard differences in the categorization of the offense in 
determining whether dual criminality exists, and to overlook 
mere differences in the terminology used to define the offense 
under the laws of the Contracting Parties. A similar provision 
is contained in all recent United States extradition treaties.
---------------------------------------------------------------------------
    \6\ See 18 U.S.C. Sec. 1341.
    \7\ See 18 U.S.C. Sec. 2314.
---------------------------------------------------------------------------
    Paragraph 4 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes the jurisdiction of our courts to 
hear criminal cases involving offenses committed outside the 
United States if the crime was intended to, or did, have 
effects in this country, or if the legislative history of the 
statute shows clear Congressional intent to assert such 
jurisdiction.\8\ In the Philippines, however, the government's 
ability to prosecute extraterritorial offenses is much more 
limited.\9\ Paragraph 4 reflects the Philippine government's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside the United States if Philippine law 
would permit the Philippines to prosecute similar offenses 
committed abroad in corresponding circumstances. If the 
Requested State's law does not provide for such punishment, 
paragraph 4(b) permits the executive authority of the Requested 
State to decide, in its discretion, to submit the case to its 
courts for the purpose of extradition. For the United States, 
this decision is made by the Secretary of State, and for the 
Philippines, by the Minister of Justice. A similar provision 
appears in several recent United States extradition 
treaties.\10\ Paragraph 4(b) is worded in terms of the 
executive authority's decision to submit the case to the courts 
for approval because Philippine authorities need the approval 
of Philippine courts to extradite.
---------------------------------------------------------------------------
    \8\ Restatement (Third) of the Foreign Relations Law of the United 
States Sec. 402 (1987); Blakesley, ``United States Jurisdiction over 
Extraterritorial Crime,'' 73 J. Crim. L. & Criminology 1109 (1982).
    \9\ Article 2 of the Philippine Penal Code states that the Code may 
apply to crimes committed outside the Philippines only if the crime 
took place aboard a Philippine vessel; involved forgery or passing of 
forged Philippine coin, currency, or obligations; was committed by a 
Philippine public officer or employee in the exercise of official 
duties; or was a ``crime against national security and the law of 
nations, as defined in Title One Book Two of this Code,'' i.e., 
treason, espionage, inciting war, corresponding with hostile countries, 
and piracy. The Philippines does not appear to have extraterritorial 
jurisdiction to prosecute drug offenses. As the Philippines cannot 
prosecute those who violate its drug laws outside the Philippines, it 
would have difficulty extraditing to the United States drug traffickers 
who acted outside the United States. The Philippine delegation assured 
the United States that it would recommend that its government change 
Philippine law to remedy this situation.
    \10\ See Protocol Amending U.S.-Canada Extradition Treaty, Jan. 11, 
1988, art. I, T.I.A.S. No. --; Protocol Amending U.S.-Australia 
Extradition Treaty, Sept. 4, 1990, art. III, T.I.A.S. No. --.
---------------------------------------------------------------------------
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense for which all of the requirements for extradition 
are met, except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if the Philippines agrees to extradite to the United States a 
fugitive wanted for prosecution on a felony charge, the United 
States may also obtain extradition for any misdemeanor offenses 
that have been charged, as long as those misdemeanors are also 
recognized as criminal offenses in the Philippines. Thus, the 
Treaty incorporates recent United States extradition practice 
by permitting extradition for misdemeanors committed by a 
fugitive when the fugitive's extradition is granted for a more 
serious extraditable offense. This practice is generally 
desirable from the standpoint of both the fugitive and the 
Requesting State in that it permits all charges to be disposed 
of more quickly, thereby facilitating trials while evidence is 
fresh and permitting the possibility of concurrent sentences. 
Similar provisions are found in recent United States 
extradition treaties with Australia, Ireland, Italy and Costa 
Rica.
    Some recent treaties provide that persons who have been 
convicted of an extraditable offense and sentenced to 
imprisonment may be extradited only if at least a certain 
specified portion of the sentence (often six months) remains to 
be served. The Treaty contains no such requirement. Provisions 
of this kind are an attempt to limit extradition to serious 
cases because of the significant costs associated with the 
process. However, the negotiators of the Treaty felt that the 
particular sentence imposed or outstanding is not necessarily 
an adequate measure of the seriousness of the crime.\11\ The 
Contracting Parties concluded that the Treaty's goals can be 
better served by the exercise of discretion and good judgment 
in the administration of the Treaty without arbitrary limits 
imposed in its terms. This approach has been taken in some of 
our extradition treaties with other countries, including 
Australia, Canada, Jamaica, New Zealand and the United Kingdom.
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    \11\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979) 
(``Leniency in sentencing does not give rise to a bar to 
extradition''). Reliance on the amount of the sentence remaining to be 
served can also produce anomalous results. For instance, a murderer who 
escapes from custody with less than six months to serve on a sentence 
can hardly resist extradition on the basis that murder is not a serious 
offense.
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Article 3--Political and military offenses

    Paragraph 1 prohibits extradition for political offenses. 
This is standard provision in recent United States extradition 
treaties.
    Paragraph 2 describes three categories of offenses that 
shall not be considered political offenses.
    First, the political offense exception does not apply to 
murder or other willful crimes against the person of a Head of 
State of the Contracting Parties, or a member of the Head of 
State's family.
    Second, the political offense exception does not apply to 
offenses for which both Contracting Parties have an obligation 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for prosecution. The conventions to which 
this clause applies at present include the Convention on 
Offenses and Certain Other Acts Committed on Board 
Aircraft,\12\ the Convention for the Suppression of Unlawful 
Seizure of Aircraft (Hijacking),\13\ the Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil 
Aviation (Sabotage),\14\ the Convention on the Prevention and 
Punishment of Crimes Against Internationally Protected Persons, 
Including Diplomatic Agents,\15\ and the International 
Convention Against the Taking of Hostages.\16\ In addition, the 
Philippines is expected to ratify the United Nations Convention 
Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances \17\ in the near future. In the interim, both the 
United States and the Philippines are parties to the Single 
Convention on Narcotic Drugs \18\ and the Amending Protocol to 
the Single Convention; \19\ this provision applies to those 
conventions as well.
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    \12\ Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704 
U.N.T.S. 219.
    \13\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
    \14\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
    \15\ Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532, 1035 
U.N.T.S. 167.
    \16\ Dec. 17, 1979, T.I.A.S. No. 11081.
    \17\ Dec. 20, 1988, T.I.A.S. No. --.
    \18\ Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S. 
204.
    \19\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S. 
3.
---------------------------------------------------------------------------
    Paragraph 2(c) states that the political offense exception 
does not apply to conspiring or attempting to commit, or aiding 
or abetting the commission or attempted commission of, any of 
the foregoing offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request is politically motivated.\20\ United States 
law and practice have been that the Secretary of State has the 
sole discretion to determine whether an extradition request is 
based on improper political motivation.\21\ Paragraph 3 also 
permits denial of extradition if the executive authority 
determines that the request relates to a military offense that 
is not punishable under non-military penal legislation.\22\
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    \20\ There are similar provisions in many recent treaties. See 
U.S.-Jamaica Extradition Treaty, June 14, 1983, art. III(3), T.I.A.S. 
No. --; U.S.-Spain Extradition Treaty, May 29, 1970, art. 5(4), 22 
U.S.T. 737, T.I.A.S. No. 7136, 796 U.N.T.S. 245; U.S.-Netherlands 
Extradition Treaty, June 24, 1980, art. 4, T.I.A.S. No. 10733; and 
U.S.-Ireland Extradition Treaty, July 13, 1983, art. IV(c), T.I.A.S. 
No. 10813.
    \21\ See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
    \22\ An example of such a crime is desertion. See ``Matter of the 
Extradition of Suarez-Mason,'' 694 F. Supp. 676, 703 (N.D. Cal. 1988).
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Article 4--Prior prosecution

    This article permits extradition when the person sought is 
charged by each Contracting Party with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, is similar 
to language present in many United States extradition treaties. 
This provision applies only when the person sought has been 
convicted or acquitted in the Requested State of exactly the 
same crime that is charged in the Requesting State. It is not 
enough that the same facts were involved. Thus, if the person 
sought is accused by one Contracting Party of illegally 
smuggling narcotics into that country, and is charged by the 
other Contracting Party with unlawfully exporting the same 
shipment of drugs, an acquittal or conviction in one 
Contracting Party does not insulate that person from 
extradition because different crimes are involved.
    Paragraph 2 makes it clear that neither Contracting Party 
may refuse to extradite a person sought on the basis that the 
Requested State's authorities declined to prosecute the person 
or instituted and later discontinued proceedings against the 
person. This provision was included because a decision of the 
Requested State to forego prosecution or to drop charges 
previously filed many be the result of a failure to obtain 
sufficient evidence or witnesses for trial, whereas the 
Requesting State's prosecution may not suffer from the same 
impediments. This provision should enhance the ability of the 
Contracting Parties to extradite to the jurisdiction with the 
better chance of a successful prosecution.

Article 5--Capital punishment

    Paragraph 1 permits the Requested State to refuse 
extradition when the offense for which extradition is sought is 
punishable by death in the Requesting State but not in the 
Requested State, unless the Requesting State provides 
assurances the Requested State considers sufficient that if the 
death penalty is imposed, it will not be carried out. Similar 
provisions are found in many recent United States extradition 
treaties.\23\
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    \23\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 7, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, July 13, 
1983, art. 6, T.I.A.S. No. 10813.
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    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, the assurances shall 
be respected, and the death penalty, if imposed, shall not be 
carried out.

Article 6--Extradition of nationals

    Some countries refuse to extradite their own nationals for 
trial and/or punishment. The United States does not deny 
extradition on the basis of the offenders' citizenship \24\ and 
neither does the Philippines. Accordingly, this article 
provides that each Contracting Party may not refuse extradition 
on the basis that the person sought is a citizen of the 
Requested State.
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    \24\ See generally Shearer, ``Extradition in International Law'' 
110-14 (1970); 6 Whiteman, ``Digest of International Law'' 871-76 
(1968). Our policy of drawing no distinction between United States 
nationals and others in extradition matters is underscored by Title 18, 
United States Code, Section 3196, which authorizes the Secretary of 
State to extradite United States citizens pursuant to a treaty that 
permits but does not expressly require surrender of citizens as long as 
the other requirements of the treaty have been met. 18 U.S.C. 
Sec. 3196.
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Article 7--Extradition procedures and required documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States extradition treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for the 
provisional arrest of the person sought pursuant to article 9. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided that the requirements of article 9 
are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial in the Requesting State. Paragraph 4 describes 
the information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``a statement of the provisions of law describing the 
essential elements of the offense for which extradition is 
requested,'' which enables the Requested State to determine 
easily whether a lack of dual criminality is an appropriate 
basis for denying extradition. Some of the items listed in 
paragraph 2, however, are required strictly for information 
purposes. Thus, paragraph 2(e) calls for ``a statement of the 
provisions of the law describing any time limit on prosecution 
or the execution of the punishment for the offense,'' even 
though the Treaty does not permit denial of extradition based 
on a lapse of time. The United States and Philippine 
delegations agreed that paragraph 2(e) should require this 
information so that the Requested State is fully informed about 
the charges brought in the Requesting State.
    Paragraph 3 requires that if the fugitive has not yet been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide such evidence as would provide 
probable cause for the arrest and committal for trial of the 
person if the offense had been committed in the Requested 
State. This is consistent with extradition law in the United 
States 25 and the Philippines,26 and is similar to 
language in other United States extradition treaties.27
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    \25\ Courts applying Title 18, United States Code, Section 3184 
long have required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec. 476 comment b (1987).
    \26\ The Philippine Extradition Law does not specify the standard 
of proof in international extradition matters; Philippine practice is 
to specify this in the treaty itself.
    The Philippine Extradition Law provides: ``Upon conclusion of the 
[extradition] hearing, the court shall render a decision granting 
extradition, and giving his reasons therefor upon showing the existence 
of a prima facie case. Otherwise, it shall dismiss the petition.'' 
Philippine Extradition Law Sec. 10. However, the Philippine delegation 
noted that the term ``prima facie case'' merely means that all 
requirements of the Treaty appear to have been met, and the Treaty 
itself must be consulted for the quantum of evidence needed for 
surrender.
    \27\ See, e.g., U.S.-Bahamas Extradition Treaty, Mar. 9, 1990, art. 
8(3)(b), T.I.A.S. No. --.
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    During the negotiations, the United States delegation told 
the Philippine delegation its concern about the fact that 
serious criminal charges may be filed in the Philippines by a 
complainant without the permission or support of a prosecutor. 
United States military personnel have reported that in the 
past, criminal charges or the threat of criminal charges seem 
to have been used against United States servicemen stationed in 
the Philippines for improper purposes such as extortion, 
harassment, or to gain improper advantage in civil litigation 
for debt collection. The United States delegation noted that 
United States courts generally do not attempt to evaluate the 
credibility of affiants in extradition proceedings, but that 
the Department of Justice does carefully consider and weigh 
credibility in assessing extradition requests, while the 
Department of State takes credibility into account in deciding 
whether to issue the surrender warrant necessary to effect an 
extradition. If it appears that complainants or key witnesses 
involved in a Philippine extradition request brought the 
charges solely for improper motives, their tainted credibility 
could vitiate probable cause, thereby compelling the United 
States to deny extradition under paragraph 3. The Philippine 
delegation acknowledged this possibility.
    Paragraph 4 lists the information needed to extradite a 
person who has been convicted of an offense in the Requesting 
State. This paragraph makes it clear that once a conviction has 
been obtained, no showing of probable cause is required. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions even absent a 
specific treaty provision.\28\ Subsection (d) states that if 
the person sought was found guilty in absentia, the 
documentation required for extradition includes both proof of 
conviction and the same documentation required in cases in 
which no conviction has been obtained. This is consistent with 
the longstanding United States policy of requiring such 
documentation in the extradition of persons convicted in 
absentia.
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    \28\ See Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2d Cir. 1991); Clark, 470 F. Supp. 976
---------------------------------------------------------------------------
    Paragraph 5 governs the authentication procedures for 
documents intended for use in extradition proceedings. 
Paragraph 5(a) deals with evidence intended for use in 
extradition proceedings in United States and Philippine courts; 
current United States and Philippine authentication 
requirements are virtually identical.\29\ Paragraph 5(b) 
provides a second method for authenticating evidence in an 
extradition proceeding--by permitting such evidence to be 
admitted if it is authenticated in any manner accepted by the 
laws of the Requested State. This paragraph should ensure that 
relevant evidence that usually satisfies the evidentiary rules 
of the Requested State is not excluded at the extradition 
hearing because of an inadvertent error or omission in the 
authentication process.
---------------------------------------------------------------------------
    \29\ Compare Philippine Extradition Law Sec. 9(2) with 18 U.S.C. 
Sec. 3190.
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Article 8--Language

    The Philippines has two official languages, English and 
Pilipino (which is based on Tagalog). Several other languages 
such as Cebuano, Bicol, Ilocano and Pampango are widely used. 
This article requires that all extradition documents be 
translated into English.

Article 9--Provisional arrest

    This article describes the process by which a person in one 
Contracting Party may be arrested and detained while the formal 
extradition papers are being prepared.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Philippine Department of Justice.\30\ Experience has shown 
that the ability to use direct channels in emergency situations 
can be crucial when a fugitive is poised to flee a 
jurisdiction.
---------------------------------------------------------------------------
    \30\ Many recent United States extradition treaties provide for 
transmission of provisional arrest requests via the International 
Criminal Police Organization (INTERPOL), as well as through diplomatic 
channels or directly between the Justice Departments of the two 
Contracting Parties. At the request of the Philippine delegation, the 
Treaty does not provide a role for INTERPOL in the provisional arrest 
process.
---------------------------------------------------------------------------
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised without delay of the outcome of the request and the 
reasons for its denial, if any.
    Paragraph 4 provides that a person who has been 
provisionally arrested may be released from detention if the 
Requesting State does not submit a fully documented request for 
extradition to the executive authority of the Requested State 
within 60 days of the provisional arrest.\31\ When the United 
States is the Requested State, the executive authority includes 
the Secretary of State and the United States Embassy in 
Manila.\32\
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    \31\ Under Section 20 of the Philippine Extradition Law, 
provisional arrest requests are transmitted through the National Bureau 
of Investigation, and the fugitive must be released from custody if the 
supporting documentation is not received within 20 days of provisional 
arrest. Philippine Extradition Law Sec. 20. Article 9(4) of the Treaty 
is intended to take precedence over this provision.
    \32\ ``Clark,'' 470 F. Supp. 976.
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    Paragraph 4 establishes that the person provisionally 
arrested may be released from custody if the formal extradition 
request, including supporting documentation, is not received 
within the 60-day period. However, the proceedings against the 
person need not be dismissed; paragraph 5 makes it clear that 
the person may be taken into custody and the extradition 
proceedings may be commenced again if the formal request is 
presented at a later date.

Article 10--Decision and surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied 
in whole or in part, the Requested State must provide the 
reasons for the denial. If extradition is granted, this article 
requires that authorities of the Contracting Parties agree on a 
time and place for surrender of the person sought. The 
Requesting State must remove the person within the time 
prescribed by the law of the Requested State or the person may 
be discharged from custody, and the Requested State may 
subsequently refuse to extradite the person for the same 
offense. United States law requires that surrender occur within 
two calendar months of a finding that the person is 
extraditable,\33\ or of the conclusion of any litigation 
challenging that finding,\34\ whichever is later. According to 
the Philippine delegation, the law in the Philippines does not 
specify the time in which the surrender must take place.
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    \33\ 18 U.S.C. Sec. 3188.
    \34\ See Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L. Ed. 2d 
30 (1963) (decided by Goldberg, J., in chambers); see also Liberto v. 
Emery, 724 F.2d 23 (2d Cir. 1983); in re United States, 713 F.2d 105 
(5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 
1978).
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Article 11--Temporary and deferred surrender

    Occasionally, a person sought for extradition may be 
already facing prosecution or serving a sentence on other 
charges in the Requested State. This article provides a means 
for the Requested State to defer extradition in such 
circumstances until the conclusion of the proceedings against 
the person and the full execution of any punishment imposed. 
Similar provisions appear in our recent extradition treaties 
with countries such as the Bahamas and Australia.
    Paragraph 1 provides for the temporary surrender of a 
person wanted for prosecution in the Requesting State who is 
being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
will be returned to the Requested State at the conclusion of 
the proceedings in the Requesting State. Such temporary 
surrender furthers the interests of justice in that it permits 
trial of the person sought while evidence and witnesses are 
more likely to be available, thereby increasing the likelihood 
of a successful prosecution. Such transfer may also be 
advantageous to the person sought in that: (1) it permits 
resolution of the charges sooner; (2) it makes it possible for 
any sentence to be served in the Requesting State concurrently 
with the sentence in the Requested State; and (3) it permits 
defense against the charges while favorable evidence is fresh 
and more likely to be available. Similar provisions are found 
in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of any punishment that has been 
imposed.\35\ The provision allows the Requested State to 
postpone the surrender of a person facing prosecution or 
serving a sentence, as well as the initiation of extradition 
proceedings.
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    \35\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
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Article 12--Requests for extradition made by more than one State

    This article reflects the practice of many recent United 
States extradition treaties in listing some of the factors that 
the executive authority of the Requested State must consider 
when reviewing requests from two or more countries for the 
extradition of the same person. For the United States, the 
Secretary of State decides to which country the person should 
be surrendered; \36\ for the Philippines, the decision is made 
by the Secretary of Foreign Affairs in consultation with the 
Secretary of Justice.\37\
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    \36\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \37\ Philippine Extradition Law Sec. 15.
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Article 13--Rule of specialty

    This article covers the rule of specialty, a standard 
principle of United States extradition law and practice. 
Designed to ensure that a fugitive surrendered for one offense 
is not tried for other crimes, the rule of specialty prevents a 
request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or execution of a sentence 
on different charges that are not extraditable or properly 
documented in the request.
    Exceptions to the rule have developed over the years. This 
article codifies the current formulation of the rule by 
providing that a person extradited under the Treaty may only be 
detained, tried, or punished in the Requesting State for: (1) 
the offense for which extradition was granted or a differently 
denominated offense based on the same facts, provided the 
offense is extraditable or is a lesser included offense; (2) an 
offense committed after the extradition; or (3) an offense for 
which the executive authority of the Requested State 
consents.\38\ Paragraph 1(c)(ii) permits the Contracting Party 
that is seeking consent to pursue new charges to detain the 
person extradited for 90 days or for such longer period as the 
Requested State may authorize while the Requested State makes 
it determination on the application.
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    \38\ In the United States, the Secretary of State has the authority 
to consent to a waiver of the rule of specialty. See Berenguer v. 
Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
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    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state without the consent of 
the Requested State.
    Paragraph 3 permits the detention, trial or punishment of 
an extradited person for additional offenses or extradition to 
a third state if: (1) the extradited person leaves the 
Requesting State after extradition and voluntarily returns to 
it; or (2) the extradited person does not leave the Requesting 
State within ten days of being free to do so.

Article 14--Voluntary return

    Persons sought for extradition frequently elect to waiver 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a fugitive consents to surrender to the Requesting 
State, the person may be returned to the Requesting State as 
expeditiously as possible without further proceedings. The 
negotiators anticipated that in such cases, there will be no 
need for the formal documentation described in article 7, or 
further judicial or administrative proceedings of any kind.
    If the United States is the Requested State and the person 
sought elects to return voluntarily to the Philippines before 
the United States Secretary of State signs a surrender warrant, 
the process is not deemed an ``extradition.'' Longstanding 
United States policy has been that the rule of specialty as 
described in article 13 does not apply to such cases.\39\
---------------------------------------------------------------------------
    \39\ Cf. U.S.-Netherlands Extradition Treaty, June 24, 1980, art. 
16, T.I.A.S. No. 10733.
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Article 15--Seizure and surrender of property

    This article permits the seizure by the Requested State of 
all property--articles, documents and other evidence--connected 
with the offense to the extent permitted by the Requested 
State's internal law.\40\ Article 15 also provides that these 
objects may be surrendered to the Requesting State upon the 
granting of the extradition or even if extradition cannot be 
effected due to the death, disappearance or escape of the 
person sought. Paragraph 2 states that the Requested State may 
condition its surrender of property upon satisfactory 
assurances that the property will be returned to the Requested 
States as soon as practicable. Paragraph 2 also permits the 
surrender of property to be deferred if it is needed as 
evidence in the Requested State. Surrender of property under 
this provision is expressly made subject to due respect for the 
rights of third parties in such property.
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    \40\ See Philippine Extradition Law Sec. 18.
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Article 16--Transit

    Paragraph 1 gives each Contracting Party the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting Party by a third state. A 
person in transit may be detained in custody during the transit 
period. Requests for transit are to contain a description of 
the person whose transit is proposed and a brief statement of 
the facts of the case with respect to which transit is sought. 
The transit request may be submitted through diplomatic 
channels or directly between the United States and Philippine 
Departments of Justice. The negotiators agreed that diplomatic 
channels will be employed as frequently as possible for 
requests of this nature.
    Paragraph 2 describes the procedure each Contracting Party 
should follow when seeking to transport a person in custody 
through the territory of the other. Under this provision, no 
advance authorization is needed if the person in custody is in 
transit to one of the Contracting Parties and is travelling by 
aircraft and no landing is scheduled in the territory of the 
other. Should an unscheduled landing occur, a request for 
transit may be required at that time, and the Requested State 
may grant the request if, in its discretion, it is deemed 
appropriate to do so. The Treaty ensures that the person will 
be kept in custody for up to 96 hours until a request for 
transit is received and thereafter until it is executed.

Article 17--Representation and expenses

    Paragraph 1 provides that the United States represents the 
Philippines in connection with requests from the Philippines 
for extradition before the courts in this country, and the 
Philippines Secretary of Justice arranges for the 
representation of the United States in connection with United 
States extradition requests to the Philippines.
    Paragraph 2 requires that the Requested State bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of the person surrendered to the 
Requesting State and the translation of documents, which are to 
be paid by the Requesting State. Cases may arise in which the 
Requesting State may wish to retain private counsel to assist 
in the presentation of the extradition request. It is 
anticipated that in such cases the fees of private counsel 
retained by the Requesting State must be paid by the Requesting 
State.
    Paragraph 3 provides that neither Contracting Party shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination and surrender of the person sought. This includes 
any claim by the person sought for damages or reimbursement of 
legal fees or other expenses occasioned by the execution of the 
extradition request.

Article 18--Consultation

    This article provides that the United States and Philippine 
Departments of Justice may consult with each other with regard 
to an individual extradition case or extradition procedures in 
general. A similar provision is found in other recent United 
States extradition treaties.\41\
---------------------------------------------------------------------------
    \41\ See, e.g., U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art. 
19, T.I.A.S. No. --; U.S.-Switzerland Extradition Treaty, Nov. 11, 
1990, art. 24, T.I.A.S. No. --; U.S.-Hungary Extradition Treaty, Dec. 
1, 1994, art. 21, T.I.A.S. No. --.
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Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive and covers offenses that occurred before as well as 
after the Treaty enters into force.

Article 20--Ratification and entry into force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Manila. The 
Treaty is to enter into force immediately upon the exchange.

Article 21--Termination

    This article contains standard treaty language describing 
the procedure for termination of the Treaty by either 
Contracting Party. Termination shall become effective six 
months after notice of termination is received.

              VIII. Text of the Resolution of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of 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. The Senate's advice and consent is subject to the 
following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.