[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.
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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.
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\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.
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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.
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\6\ See 18 U.S.C. Sec. 1341.
\7\ See 18 U.S.C. Sec. 2314.
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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.
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\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. --.
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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.
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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.
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\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.
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\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.
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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\
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\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\
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\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.