[Senate Executive Report 105-2]
[From the U.S. Government Publishing Office]



105th Congress                                              Exec. Rept.
                                 SENATE

 1st Session                                                      105-2
_______________________________________________________________________


 
                    U.S.-HONG KONG EXTRADITION TREATY

                                _______
                                

                August 19, 1997.--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. 105-3]

    The Committee on Foreign Relations to which was referred 
the Agreement Between the Government of the United States of 
America and the Government of Hong Kong for the Surrender of 
Fugitive Offenders signed at Hong Kong on December 20, 1996, 
having considered the same, reports favorably thereon with two 
understandings, two declarations, and 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.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary..........................................................3
 IV. Entry Into Force and Termination.................................8
  V. Committee Action.................................................8
 VI. Committee Comments...............................................8
VII. Explanation of Proposed Treaty..................................10
VIII.Resolution of Ratification......................................25

 IX. Appendix........................................................29

                               I. Purpose

    This agreement: (1) identifies the offenses for which 
extradition will be granted, (2) establishes procedures to be 
followed in presenting extradition requests, (3) enumerates 
exceptions to the duty to extradite, (4) specifies the evidence 
required to support a finding of a duty to extradite, and (5) 
sets forth administrative provisions for bearing costs and 
legal representation.

                             II. Background

    On December 20, 1996, the United States and Hong Kong 
signed the Agreement for the Surrender of Fugitive Offenders. 
That agreement will replace the existing extradition 
relationship with Hong Kong, which is governed by the United 
States-United Kingdom extradition treaty.
    Because of Hong Kong's unique status, the Agreement was 
signed by Hong Kong with the ``authorization'' of its sovereign 
nation (People's Republic of China (PRC)) following a 
negotiation conducted under the auspices of the ``Joint Liaison 
Group'' (JLG) established by the Sino-British Joint Declaration 
on the Question of Hong Kong. 1 The People's 
Republic of China approved the text of the Agreement in 
September, permitting the U.S. and Hong Kong to sign in 
December. The Government of the People's Republic of China 
transmitted a diplomatic note to the United States on March 31, 
1997, affirming that the Agreement will continue to apply to 
the Hong Kong Special Administrative Region (HKSAR) after July 
1, 1997, when Hong Kong formally reverted to the PRC.
---------------------------------------------------------------------------
    \1\ Under the Joint Declaration, sovereignty over Hong Kong was 
transferred to the PRC on July 1, 1997. Hong Kong is organized as a 
Special Administrative Region (HKSAR) with a ``high degree of 
autonomy'' except in foreign and defense affairs. Among the incidents 
to this autonomy is the ability of the HKSAR to maintain its own 
executive; legislative, and independent judicial systems for a least 50 
years under a ``one country, two systems'' policy. Though the PRC 
assumed ultimate power over Hong Kong's foreign affairs, the Joint 
Declaration nonetheless envisions the HKSAR maintaining its own 
external relations in many fields through a network of international 
agreements. However, the permissible reach of this network and the role 
of the PRC are not always clear.
---------------------------------------------------------------------------
    As the U.S.-Hong Kong Agreement is an unprecedented U.S. 
treaty relationship, it is important to note the negotiation 
history that led to the agreement between the U.S. and Hong 
Kong. Under the JLG process, four members each from the U.K. 
and the PRC (with support staff and experts as needed) review 
international agreements with regard to continuing obligations 
under them. In the case of new agreements, including this 
extradition agreement, the negotiation partners played the 
following roles: (1) the JLG agreed to a model agreement; (2) 
the U.K. Government, on behalf of the Hong Kong Government, 
asked the PRC to approve a list of negotiating partners 
(including the U.S.); (3) after approval of a negotiating 
partner, the British Foreign Secretary executed a formal 
entrustment to empower the Hong Kong Government to conduct 
negotiations on its behalf with the approved partner (in this 
case the U.S.) on the basis of the model agreement; (4) after 
the Hong Kong Government and the approved partner initialed the 
text of the agreement, the text was passed by the British 
Government to the PRC Government through the JLG for its 
approval (the PRC Government was permitted to seek 
clarification if the initialed text departed significantly from 
the model agreement and further negotiations would then be 
required); and (5) the PRC approved the text of the agreement, 
permitting its signature by the Government of Hong Kong and the 
negotiating partner (the U.S. in this case).
    Unlike in the United States, Hong Kong requires additional 
implementing legislation, extradition heretofore having been 
conducted under the U.K. authority. The State Department has 
informed the Committee that the Surrender of Fugitive Offenders 
Ordinance went into force on April 25, 1997. Subordinate 
legislation under the Ordinance, the Fugitive Offenders (United 
States of America) Order, specifically permitting the Agreement 
to be implemented, has also been approved. It will become 
effective on the same day that the Agreement enters into force.
    Because of this unprecedented relationship with the PRC, a 
country with which the United States does not have an 
extradition treaty relationship, there are several key 
provisions in the treaty permitting the United States to reject 
an extradition request. Under the proposed Hong Kong Agreement 
the Secretary retains independent authority to determine 
whether a request may be denied because it is politically 
motivated (Art. 6). Specifically, the treaty gives the 
Secretary of State 2 the ability to reject an 
extradition request (even after a U.S. court recommends 
extradition) if she determines that the requesting party is 
attempting to try the individual sought on account of his or 
her race, religion, nationality, or political opinion, or that 
the individual will be prejudiced in his or her trial or 
punishment on these grounds. Under traditional U.S. extradition 
practice the Secretary of State has exercised similar authority 
(even absent express treaty provisions).
---------------------------------------------------------------------------
    \2\  The Hong Kong Agreement gives this authority to the 
``executive authority'' for the United States. U.S. statute names the 
Secretary of State as the ``executive authority.'' (18 U.S.C. 
Sec. 3184). The Agreement does not designate Hong Kong's executive 
authority. The State Department has informed the Committee that it 
understands that in that the ``competent authority'' in Hong Kong under 
this article is likely to be the judiciary.
---------------------------------------------------------------------------
    In addition, the Hong Kong Agreement contains a 
humanitarian provision (Art. 7) similar to those found in a 
number of U.S. extradition agreements. This provision permits 
the Secretary of State to refuse surrender if it ``is likely to 
entail exceptionally serious consequences related to age or 
health.''
    Finally, the treaty places limitations on the surrender of 
nationals (Art. 3). Specifically, the treaty gives the United 
States the right to refuse to surrender a U.S. citizen when it 
implicates the ``defense, foreign affairs or essential public 
interest or policy'' of the United States. Hong Kong has a 
similar right of refusal when surrender implicates the 
``defense, foreign affairs or essential public interest or 
policy'' of the PRC.

                              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. The United States is a party to approximately 100 
bilateral extradition treaties, and several multilateral 
extradition treaties.
    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. 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.
    The importance of extradition treaties as a tool for law 
enforcement is reflected in the increase in the number of 
extraditions of individuals under treaties. In l995, 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. Since 1991, in Hong Kong 
alone, 56 persons were extradited to the U.S. for narcotics-
related crimes, 12 for white collar crimes, and 23 for violent 
and other crimes.
    In the United States, the legal procedures for extradition 
are governed by both federal statute and self-executing 
treaties. Federal statute controls the judicial process for 
making a certification to the Secretary of State that she may 
extradite an individual under an existing treaty. Courts have 
held that the following elements must exist in order for a 
court to find that the Secretary of State may extradite: (1) 
the existence of a treaty enumerating crimes with which a 
defendant is charged; (2) charges for which extradition is 
sought are actually pending against the defendant in the 
requesting nation and are extraditable under the treaty; (3) 
the defendant is the same individual sought for trial in the 
requesting nation; (4) probable cause exists to believe that 
the defendant is guilty of charges pending against him in the 
requesting nation; and (5) the acts alleged to have been 
committed by the defendant are punishable as criminal conduct 
in the requesting nation and under the criminal law of the 
United States.
    Once a court has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, she may still refrain from extraditing an 
individual on foreign policy grounds, as defined in the 
treaties themselves (or even absent express treaty provisions).

                          b. major provisions

1. Extraditable Offenses (Article 2)

    The Hong Kong Extradition Agreement identifies an 
extraditable offense as either a crime enumerated in a long 
list of covered felonies (punishable by imprisonment of more 
than one year), or any other offense that is punishable by 
imprisonment of more than one year by both the requesting and 
requested Party 3 (Art. 2(1)). Although many modern 
U.S. treaties merely apply such a ``dual criminality test,'' to 
determine whether an offense is extraditable, the hybrid 
application of dual criminality in addition to a listing of 
felonies has precedent in many modern U.S. extradition 
treaties.
---------------------------------------------------------------------------
    \3\  This concept is termed ``dual criminality.''
---------------------------------------------------------------------------
    Like other recent extradition agreements, the Hong Kong 
Agreement contains provisions to facilitate transfer where 
jurisdictional elements or defined terms differ in the 
particular elements of the criminal act under the laws of the 
respective parties, but where both Parties still regard the 
underlying conduct as punishable. In the past, differences in 
how each legal system defines a crime for the same criminal 
conduct has hampered extradition. To avoid this problem when 
both parties consider an act to be criminal, the Hong Kong 
Agreement directs a requested party to examine an extradition 
request with ``reference to the totality of the acts or 
omissions alleged'' and not with ``reference to the elements of 
the offense prescribed by the law of the requesting Party'' 
(Art. 2(3)). The Agreement further directs that extradition not 
be denied on the basis of differences in terminology or 
classification or on the basis of an element of a U.S. federal 
offense that has been included solely to establish U.S. federal 
jurisdiction. (Art. 2(4)(b)).

2. Extraterritorial Offenses (Article 1)

    With very limited exceptions, recent extradition treaties 
make express provision for extraterritorial crimes. 
4 The Hong Kong Agreement differs from most modern 
agreements in not having any express reference to 
extraterritorial crimes. At the same time, it also differs from 
other modern U.S. agreements that do not have explicit 
extraterritoriality clauses (including the U.K., New Zealand, 
and Belgium agreements) in not expressly limiting coverage to 
offenses within the jurisdiction or territory of one of the 
parties. Instead, the Hong Kong Agreement broadly states the 
obligation to surrender in terms of persons found in the 
jurisdiction of the requested party who are wanted ``in respect 
of'' a covered offense (Art. 1). This language may appear to 
make the place the crime is committed irrelevant, but more 
limited interpretations certainly are possible. For example, it 
may be intended that extradition for extraterritorial crimes be 
guided by a dual criminality standard that would limit 
extradition for extraterritorial offenses to those that would 
still be within the criminal jurisdiction of the requested 
Party even if committed outside its territory. According to the 
technical analysis submitted by the Executive Branch (the 
analysis is included in this report), the United States is 
relying on existing precedent to require extradition of certain 
extraterritorial crimes. Specifically the technical analysis 
states that should the U.S. request extradition for an offense 
committed outside the territory of the U.S., Hong Kong will 
surrender the fugitive if Hong Kong would enjoy 
extraterritorial jurisdiction in similar circumstances.
---------------------------------------------------------------------------
    \4\  ``Extraterritorial offenses,'' under the treaties are those 
that occur outside a nation's jurisdiction, but are punishable under 
the criminal law of the requested party. Prior to 1960, the obligation 
to extradite under U.S. treaties was typically limited to offenses 
committed within a nation's territory.

---------------------------------------------------------------------------
3. Surrender of Nationals (Article 3)

    The Hong Kong Agreement provides for limited discretion to 
refuse to extradite nationals. The ``executive authority'' of 
the Government of the United States is given the right to 
refuse the surrender of its nationals if surrender implicates 
the ``defense, foreign affairs or essential public interest or 
policy'' of the United States (Art. 3(2)). The ``executive 
authority'' of the Government of Hong Kong is similarly given a 
right of refusal.
    Although this is a reciprocal right, it is important to 
note the inclusion of the PRC in this right of refusal. 
Specifically, the treaty permits Hong Kong to refuse 
extradition if the PRC (not the Government of Hong Kong) has an 
interest relating to defense, foreign affairs, or essential 
public interest or policy (Art.3 (3)(a)). Further, Hong Kong 
has the right to refuse surrender of nationals of the PRC 
located in Hong Kong, but who do not have a right of abode or 
have not settled in Hong Kong, if the PRC has jurisdiction over 
the person subject to extradition and has commenced or 
completed proceedings for the prosecution of that person (Art. 
3(3)(b)). An extradition request may also be deferred for such 
person if the PRC is investigating that person for the same 
offense. (Art. 3(4)).

4. Political Offense/Political Motivation Exceptions (Article 
        6)

    In general, the Hong Kong Agreement excepts political 
offenses from the obligation to surrender. Even though U.S. 
extradition practice universally has precluded extradition for 
political offenses, there has been a trend over the past 20 
years toward narrowing the scope of the political offense 
exception to exclude from its protections crimes such as 
terrorism, hijacking, and murder of political leaders. The Hong 
Kong Agreement comports with that trend.
    Under the Hong Kong Agreement, there are three instances in 
which the exception to the obligation to surrender does not 
apply: (1) the murder or other willful crime against the Head 
of State (or his or her immediate family) of the United States 
or the PRC (Art. 6(2)(a)); (2) an offense for which both 
parties (the U.S. and Hong Kong) have an obligation under a 
multilateral agreement to surrender (Art. 6(2)(b)); and (3) a 
competent authority of the requested party, which is specified 
as the executive authority in the case of the United States, 
determines that a request was either (i) politically motivated; 
(ii) made primarily to try or punish an individual on account 
of race, religion, political opinion, or nationality; or (iii) 
would deny the person sought a fair trial or would punish that 
person on account of race, religion, nationality, or political 
opinion (Art. 6(3)). The first two exceptions--relating to 
political offenses--are matters for the courts to decide. The 
third exception--relating to political motivation--is a matter 
for the Secretary of State to decide.

5. Humanitarian Exception (Article 7)

    The Hong Kong Agreement contains a separate provision that 
permits the parties to refuse to extradite for humanitarian 
considerations. Specifically, if the surrender is ``likely to 
entail exceptionally serious consequences related to age or 
health'' the competent authority (the Agreement expressly 
provides in Article 7 that it shall be the executive authority 
in the U.S.) may refuse to surrender an individual. A similar 
provision is found in a number of U.S. extradition treaties.

6. Speciality (Article 16)

    The Hong Kong Agreement prohibits the requesting party from 
prosecuting a person surrendered under the treaty for any crime 
except that which the person was surrendered or for an offense 
that is a lesser included offense 5 of that for 
which the person is surrendered, but only if the lesser 
included offense itself is an extraditable offense (Art. 
16(1)(b)) 6. For example, if kidnaping is a lesser 
included offense of a murder, the person surrendered may also 
be prosecuted for kidnaping as it is also an extraditable 
offense. A surrendered individual also may be tried for a 
different offense than was the subject of an extradition 
request if the requested party consents to prosecution of that 
offense (Art. 16(1)(c)). A surrendered individual loses 
protection under the rule of speciality if the individual has 
not left the territory of the requesting party within 30 days 
of having an opportunity to do so or if the individual has left 
the territory and voluntarily returned. (Art. 16(3)).
---------------------------------------------------------------------------
    \5\  A lesser included offense is one which is composed of some, 
but not all elements of a greater offense and which does not have any 
element not included in greater offense so that it is impossible to 
commit the greater offense without necessarily committing the lesser 
offense.
    \6\  This provision is called the ``rule of speciality'' and is 
designed to assure that an extradited individual is not extradited for 
one offense as a subterfuge for obtaining the defendant to stand trial 
on unrelated matters. Though the rule applies under every U.S. 
bilateral extradition treaty, many exceptions commonly are included.

---------------------------------------------------------------------------
7. Third Party Transfers (Article 16)

    The Hong Kong Agreement combines the rule of speciality 
provisions with restrictions on the transfer of a surrendered 
person to jurisdictions outside that of the Parties to the 
Agreement (the Government of Hong Kong and the Government of 
the United States). Unless the requested party consents, a 
surrendered individual may not be surrendered or transferred 
beyond the jurisdiction of the requesting party for the 
purposes of trial or punishment for any offense committed prior 
to transfer to the requesting party (Art. 16(2)). As with the 
rule of speciality this restriction lapses if the individual 
has not left the territory of the requesting party within 30 
days of having an opportunity to do so or if the individual has 
left that territory and voluntarily returned. This limitation 
is increasingly common in U.S. extradition treaties, although 
some agreements contain less restrictive limits on third party 
transfers.

8. Capital Punishment (Article 4)

    The Hong Kong Agreement provides that the requested Party 
may refuse extradition whenever the extraditable offense is 
punishable by death in the jurisdiction of the requesting, but 
not the requested, Party, unless the requesting Party furnishes 
such assurances as the requested Party considers sufficient 
that the death sentence will not be imposed and executed (Art. 
4(1)). 7 The Hong Kong Agreement also has an 
additional provision barring a Party from carrying out a death 
sentence handed down by a court in a case in which the 
requesting Party had given assurances that capital punishment 
would not be imposed (Art. 4(2)).
---------------------------------------------------------------------------
    \7\  Death penalty provisions have become standard in recent U.S. 
extradition agreements. These provisions permit extradition for serious 
crimes when one Party, whose laws do not permit capital punishment, 
might otherwise deny surrender of individuals detained for such crimes.

---------------------------------------------------------------------------
9. Prior Prosecution (Article 5)

    Like other recent treaties, the Hong Kong Agreement bars 
extradition for an offense for which the person sought has been 
convicted or acquitted in the requested Party. Because the 
restriction is limited to offenses and not acts, it appears 
that extradition may be permissible where extradition is sought 
for a different offense arising from the same pattern of 
conduct that was the basis of the requested Party prosecution 
(Art. 5(1)). The Hong Kong Agreement also states that 
investigations or prosecutions that have been dropped by the 
requested Party do not preclude extradition based on the same 
facts (Art. 5(2)). Unlike some recent treaties, the Agreement 
does not permit discretionary denials of extradition in such 
cases.

10. Retroactivity and Lapse of Time

    The Agreement covers offenses committed before its date of 
entry into force if the offense is punishable under the laws of 
both Parties at the time the request is made (Art. 20(4)). 
Retroactivity is typical in U.S. bilateral extradition treaties 
and does not raise an ex post facto issue so long as the 
activity for which extradition is being sought was criminal 
when the person committed the act.
    The Hong Kong Agreement does not contain an express 
provision on the statutes of limitation. Some, but not all, 
recent U.S. bilateral extradition treaties contain provisions 
that expressly bar extradition for offenses whose prosecution 
would be barred by an applicable statute of limitations.

                  IV. Entry Into Force and Termination

                          a. entry into force

    This Treaty enters into force thirty days after the date on 
which the parties have notified each other that their 
respective requirements for the entry into force have been 
complied with. (Art. 20(1)).

                             b. termination

    This Treaty contains a standard termination clause 
providing for withdrawal six months after notice by a Party of 
an intent to terminate the Treaty. (Art 20(2)).

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, June 3, 1997. (See appendix.) 
The hearing was chaired by Senator Thomas. The Committee 
considered the proposed treaty on Wednesday, July 30, 1997, and 
ordered the proposed treaty favorably reported by voice vote, 
with two understandings, two declarations, and one proviso and 
with the recommendation that the Senate give its advice and 
consent to the ratification of the proposed treaty.

                         VI. Committee Comments

    The treaty raised several key questions for the Committee 
and the Senate to consider, not least of which is the unique 
nature of the treaty itself. The agreement is with a sub- 
sovereign entity, not a sovereign state. Such an arrangement is 
not the norm. It raises, in particular, a fundamental question 
about whether the treaty partner has the power to enter such an 
agreement. It is clear that Hong Kong does; the Agreement has 
been authorized by both the previous sovereign (the United 
Kingdom) and the current sovereign (the People's Republic of 
China).
    It bears noting, however, that the United States does not 
have an extradition treaty with the PRC (nor with any other 
communist country), in large measure because the concept of 
extraditing individuals to a system which does not afford basic 
due process rights to criminal defendants runs counter to 
American notions of justice and fundamental fairness. Because 
of that concern, and the concern that Beijing may not adhere to 
its promise to permit Hong Kong to maintain a high degree of 
autonomy, the Senate must scrutinize this Agreement with 
particular care. The judgment about whether to proceed with 
this extradition treaty rests, ultimately, not on the good 
faith of the government in Beijing, but on the following 
considerations: (1) whether the agreement is adequately drafted 
to protect extradited persons against Chinese interference with 
the Hong Kong judicial system; (2) whether U.S. law enforcement 
interests require an extradition agreement with Hong Kong; and 
(3) whether the Administration is committed to vigilant 
monitoring of the treaty and prepared to stop implementing the 
agreement, or abrogate it if PRC disregards its provisions.
    The Committee has answered these questions in the 
affirmative and recommends that the Senate give its advice and 
consent to ratification of the extradition agreement, subject 
to the conditions contained in the resolution of ratification. 
The Committee is persuaded that the agreement is adequately 
drafted to protect extradited persons against Chinese 
interference with Hong Kong's judicial system, and that the 
Administration is committed to vigilant monitoring of the 
agreement. The Committee emphasizes that U.S. law enforcement 
interests dictate concluding an extradition agreement on Hong 
Kong.
    Equally important, the conclusion and effective 
implementation of bilateral agreements with Hong Kong serves 
another important American policy interest: the enhancement of 
the Hong Kong government's ability to maintain the ``high 
degree of autonomy'' promised by the Sino-British Joint 
Declaration. In supporting ratification of the treaty, the 
Committee believes that the Senate would send a clear message 
that bilateral treaty relationships with Hong Kong serve to 
strengthen, not diminish, the autonomy of the Hong Kong 
government. Another message is provided in the resolution of 
ratification itself: the strong belief of the Committee that 
PRC must respect the independence of the judicial system in 
Hong Kong. In the Sino-British Joint Declaration, the PRC 
government made a solemn pledge to respect the autonomy of Hong 
Kong, and promised that the Hong Kong judicial power would be 
exercised ``independently'' and would be ``free from any 
interference.'' Adherence to this commitment by Beijing must be 
considered an essential element to continued U.S. participation 
in this Agreement. The Committee's resolution of ratification 
includes a strong and unequivocal statement of the Senate's 
expectations regarding the autonomy of the Hong Kong courts, 
particularly in the area of final adjudication.
    Furthermore, the Committee notes that the treaty includes a 
number of safeguards which address concerns about Beijing's 
interference with Hong Kong's judicial system. These include: 
prohibitions on the transfer of extradited persons to Beijing 
without U.S. consent, prohibition on prosecution of an 
extradited person for offenses other than those for which the 
person was surrendered, and the U.S.'s ability to decline to 
extradite anyone ``likely to be denied a fair trial or punished 
on account of his race, religion, nationality, or political 
opinions.''
    The Committee notes with concern that the Technical 
Analysis submitted by the Executive Branch indicates that the 
Hong Kong delegation informed the U.S. delegation that it is 
possible that the PRC will require requests for extradition 
involving Hong Kong to be made through Beijing. This 
possibility is plainly inconsistent with Hong Kong's authority 
to enter into this agreement. The treaty partner here is Hong 
Kong, not the government in Beijing, and as such the Committee 
expects that formal requests for extradition by the United 
States will be submitted to the government in Hong Kong.
    It is abundantly clear that U.S. law enforcement interests 
require a mechanism to extradite fugitives to and from Hong 
Kong. The extradition relationship, in the past and at present, 
is decidedly one-sided--in favor of the United States. Since 
1991, the Hong Kong has returned 64 fugitives to the U.S., and 
the U.S. has returned 7 to Hong Kong. The U.S. has returned no 
U.S. citizens to Hong Kong. Eleven U.S. citizens have been 
returned to the U.S. to face charges here. At present, there 
are 51 pending extradition requests made by the United States 
to Hong Kong. By contrast, Hong Kong has but five requests 
pending with the United States. The majority of the fugitives 
extradited to the U.S. faced narcotics trafficking charges. 
Indeed, of the 51 pending U.S. requests, 35 involve narcotics 
charges. Hong Kong is also a center for alien smuggling, 
illegal customs transhipment, counterfeiting and other crimes 
that have direct effect on the U.S. The Committee fears that 
without this treaty, there is a strong possibility that Hong 
Kong will become a ``safe haven'' for drug dealers and other 
criminals, enabling them to elude the long arm of U.S. justice.
    The Committee strongly urges the Departments of State and 
Justice to monitor the agreement with great vigilance and be 
prepared to stop extraditing people under it if the PRC fails 
to respect its terms. The Committee's hearing on the 
extradition treaty elicited commitments from the State and 
Justice Departments that the U.S. government will ``monitor 
implementation of this agreement very closely, and to ensure 
that all of its terms are complied with, both in form as well 
as in substance.''
    In any treaty relationship, there is always a risk that the 
treaty partner will turn out to be unreliable. That risk is 
particularly acute here, where the treaty partner is, 
ultimately, subject to the control of another government. That 
government, a communist government going through a dramatic 
economic transformation, and a political transition brought 
about by the death of its long-time leader, has not always 
proven to be reliable in upholding its international 
commitments. Nonetheless, the Committee believes that the 
safeguards inherent in the treaty, and the important benefits 
to U.S. law enforcement interests that will flow from the 
treaty, argue for proceeding with Senate advice and consent.

                  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:
    On December 20, 1996, the United States signed an Agreement 
for the Surrender of Fugitive Offenders with the Government of 
Hong Kong (``the Agreement''). The Agreement is the result of 
three years of negotiation, and is of particular importance 
because our current extradition relationship with Hong Kong, a 
crown colony of the United Kingdom, is governed by our 
extradition treaties with the United Kingdom, 8 and 
on July 1, 1997, Hong Kong will revert to the sovereignty of 
the People's Republic of China, with which we have no 
extradition treaty.
---------------------------------------------------------------------------
    \8\  U.S.-U.K. Extradition Treaty signed June 8, 1972, entered into 
force January 21, 1977 (28 UST 227, TIAS 8468) and the Supplementary 
Treaty signed June 25, 1985, entered into force December 23, 1986 (TIAS 
12050).
---------------------------------------------------------------------------
    The Hong Kong Government was granted an entrustment by the 
British Government authorizing it to negotiate this extradition 
agreement directly with the United States and bring it into 
force. In order to insure that the Agreement will remain in 
force after 1997, a draft text of the Agreement was presented 
to the Joint Liaison Group (JLG), which is composed of 
representatives of both the British and Chinese Governments, 
and meets periodically to discuss issues related to the status 
of post-1997 Hong Kong. The JLG approved the commencement of 
negotiations, and the final text was approved by the JLG prior 
to signing. Thus, the People's Republic of China agreed, 
through the JLG, to permit Hong Kong to negotiate this 
Agreement, approved its final terms, and has indicated that it 
will remain in force after July 1, 1997. In addition, the 
People's Republic of China has provided a diplomatic note 
confirming that this Agreement will continue in force after the 
date of reversion.
    This instrument is being submitted to the Senate for advice 
and consent to ratification, and, upon ratification and entry 
into force, it will be a treaty for purposes of U.S. law. At 
the request of the Hong Kong delegation, and in keeping with 
other agreements for the surrender of fugitives Hong Kong has 
concluded with other countries, the instrument is entitled an 
``agreement'' rather than ``treaty.'' Similarly, the instrument 
is described as one for the ``surrender'' of fugitives instead 
of for ``extradition,'' at the request of Hong Kong. The United 
States accommodated the Hong Kong delegation's semantic 
preferences, but this agreement is nevertheless intended to be 
a ``treaty or convention for extradition between the United 
States and a foreign government'' for purposes of Title 18, 
United States Code, Section 3184.
    It is anticipated that the Agreement 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. Hong Kong has enacted 
its own internal extradition ordinance that will apply to 
requests under the Agreement 9.
---------------------------------------------------------------------------
    \9\  Currently, Hong Kong carries out the extradition obligations 
contained in British extradition treaties applicable to Hong Kong via 
the British Extradition Act. The Hong Kong Government has enacted a new 
Fugitive Offenders Ordinance that will enable Hong Kong to implement 
its new extradition agreements, including this one and those with 
Australia, the Netherlands, Canada, Malaysia, the Philippines and 
Indonesia, beyond July 1, 1997.
---------------------------------------------------------------------------

                   article 1--obligation to surrender

    The first article of the Agreement formally obligates each 
party to surrender to the other persons found within the 
jurisdiction of the requested party who are wanted by the 
requesting party for prosecution, or for the imposition or 
enforcement of a sentence, for those offenses described in 
Article 2 of the Agreement. In other words, this article 
requires the parties to surrender both fugitives who have been 
formally charged with crimes covered by Article 2, but who have 
not yet been tried and convicted, and fugitives who have been 
tried and convicted for such offenses, but who have fled prior 
to sentencing or before completion of an imposed sentence. The 
obligation to surrender is subject to the other provisions of 
the Agreement.

                   article 2--description of offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. Paragraph 1 contains a list of 
offenses for which, as long as they are punishable by both 
Parties 10 by more than a year imprisonment or some 
more severe punishment, surrender must be granted. 
11 The list is comprehensive, and includes both 
offenses of traditional importance to federal and state law 
enforcement authorities in the United States, (e.g., drug 
trafficking, crimes of violence including those terrorist 
offenses covered by the multilateral conventions, various forms 
of fraud), and crimes of more recent interest and concern 
(e.g., money laundering, child pornography, alien smuggling). 
In addition, paragraph 1 of this article follows the modern 
dual criminality model by requiring surrender for any other 
offense punishable by the laws in each Party by more than one 
year imprisonment or by a more severe penalty, so long as 
surrender is not prohibited by the laws of the requested Party. 
This ``catch all'' provision will obviate the need to 
renegotiate the Agreement or supplement it when both Parties 
pass laws dealing with new types of criminal activity. Finally, 
paragraph 1 follows the practice of recent U.S. extradition 
treaties in stating that surrender should be granted for 
attempting to commit, conspiring to commit, or otherwise 
participating in an offense covered by the Agreement.
---------------------------------------------------------------------------
    \10 \ The term ``laws of both Parties'' is intended to include 
state and local criminal laws in the United States, as well as those 
federal criminal statutes enacted by the U.S. Congress.
    \11 \ Some provisions of the Agreement, while fully consistent with 
U.S. law enforcement interests, differ from those contained in several 
recently negotiated U.S. extradition treaties. This is due largely to 
the unique nature of the current and future status of Hong Kong. The 
inclusion of a list of specific extraditable offenses (provided that 
the offense is punishable by both parties by imprisonment or other form 
of detention for more than one year) was deemed by Hong Kong to be an 
important part of the draft text approved by the JLG. The U.S. 
delegation agreed to accept the list, once Hong Kong agreed to include 
in it a ``catch-all'' double criminality provision permitting surrender 
for all other offenses punishable in both jurisdictions by more than a 
year imprisonment (provided the law of the requested party does not 
prohibit surrender).
---------------------------------------------------------------------------
    Paragraph 2 of Article 2 requires that in a request for a 
fugitive already convicted and sentenced in the requesting 
country, at least six months remain to be served on that 
sentence. This provision is sometimes included in U.S. 
extradition treaties in an attempt to limit extradition, 
because of the significant costs associated with the process, 
to serious cases. (See, for example, Article 2(2) of the U.S. 
extradition treaty with Mexico). Hong Kong is willing to 
surrender in post-conviction cases only when the fugitive has a 
significant amount of time to serve on the outstanding 
sentence, so the U.S. delegation agreed to the inclusion of 
this paragraph.
    Paragraph 3 of Article 2 provides guidance on the type of 
analysis to be conducted by the requested Party in determining 
whether an offense for which surrender is requested is covered 
by the Agreement. The paragraph makes it clear that the 
requested Party shall look to the conduct, or the totality of 
the underlying acts and omissions, alleged to have been 
committed by the fugitive in order to determine whether such 
conduct would constitute an offense under its laws. 
12 It is not necessary for the requested party to 
examine the elements of the offense prescribed by the law in 
the requesting state. For example, should the United States 
seek the extradition of an accused drug kingpin wanted for 
prosecution on Continuing Criminal Enterprise (CCE) charges, 
Hong Kong will examine the underlying conduct which led to the 
U.S. charges, and determine whether similar conduct in Hong 
Kong would constitute an offense covered by the Agreement. 
Under such an analysis, since the conduct necessary to violate 
the CCE statute would constitute violations of Hong Kong 
narcotics laws if committed in that jurisdiction, and since 
narcotics offenses are covered by the extradition agreement, 
surrender of fugitives on the CCE charges would be required. 
13
---------------------------------------------------------------------------
    \12 \ Should the United States request extradition for an offense 
committed outside the territory of the U.S., Hong Kong will surrender 
the fugitive if Hong Kong would enjoy extraterritorial jurisdiction in 
similar circumstances. See Liangsiriprasert (Somchai) v. Government of 
the United States of AMERICA, [1991] 1 A.C. 225, a decision of the 
Privy Council in London, dealing with this issue under similar language 
in the US- UK treaty currently applicable to Hong Kong.
    \13 \ See In re Lawrence Louis Levy, 1987 Hong Kong Supreme Court 
and Court of Appeals decisions, making clear the extraditability of CCE 
from Hong Kong, and describing the kind of dual criminality analysis to 
be conducted by Hong Kong extradition courts.
---------------------------------------------------------------------------
    Paragraph 4 of this article further reflects the intention 
of both parties to interpret the principles of this article 
broadly. The first subparagraph makes it clear that in 
determining whether an offense is covered by the Agreement, it 
makes no difference whether the requested and requesting 
Parties place it within the same category of offenses, or 
describe it by the same terminology. Thus the parties are to 
disregard differences in the categorization of an offense in 
determining whether it falls within the list of offenses 
contained in Article 2(1), or in determining whether double 
criminality exists under the ``catch all'' provision in Article 
2(1)(xxxvi). The second subparagraph addresses the confusion 
faced by some foreign judges 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. Foreign 
judges may know of no similar requirement in their own criminal 
law, and on occasion have denied the extradition of fugitives 
sought by the United States on federal charges on this basis. 
The subparagraph requires that such elements be disregarded in 
determining whether an offense is covered by the list, or in 
applying the double criminality principle. For example, it will 
ensure that the Hong Kong authorities treat United States mail 
fraud charges (18 U.S.C. Sec. 1341) in the same manner as fraud 
charges under state laws, and view the federal crime of 
interstate transportation of stolen property (18 U.S.C. 
Sec. 2314) in the same manner as unlawful possession of stolen 
property. Provisions similar to those in paragraph 4 of this 
article are contained in all recent United States extradition 
treaties.
    Paragraph 5 of article 2 provides that an offense under 
military law, which is not an offense under ordinary criminal 
law, is not an offense under paragraph 1 of this article. 
14
---------------------------------------------------------------------------
    \14 \ An example of such a crime is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D.Cal. 1988).
---------------------------------------------------------------------------

                   article 3--surrender of nationals

    Paragraph 1 of Article 3 states that surrender shall not be 
refused, except under certain circumstances, on the ground of 
the nationality of the person sought. The exclusion of 
nationality as a ground for refusal of extradition is 
consistent with the longstanding U.S. policy in favor of 
governments extraditing their own citizens or nationals. 
However, the Hong Kong delegation made it clear throughout the 
negotiations that it would refuse to sign any extradition 
agreement that failed to provide the requested Party with the 
right, in narrowly defined circumstances, to deny the 
extradition of nationals. According to Hong Kong, such 
discretion was essential in obtaining PRC approval of the 
extradition agreement with the United States.
    Accordingly, the third paragraph of Article 3 states that 
the executive authority in Hong Kong reserves the right to 
refuse the surrender of nationals of the State whose government 
is responsible for its foreign affairs (i.e., for Hong Kong, 
the United Kingdom prior to July 1, 1997, and the People's 
Republic of China after that date), if (a) the requested 
surrender relates to the defense, foreign affairs or essential 
public interest or policy of that State or (b) the person 
neither has the right of abode in Hong Kong nor has entered 
Hong Kong for the purpose of settlement, 15 and the 
State whose government is responsible for Hong Kong's foreign 
affairs has jurisdiction over the offense and has commenced or 
completed proceedings for the prosecution of that person. The 
Hong Kong delegation repeatedly assured the U.S. delegation 
that this discretion to deny surrender will rarely, if ever, be 
used.
---------------------------------------------------------------------------
    \15\  The Hong Kong delegation explained that the phrase ``has 
entered Hong Kong for the purpose of settlement'' is a term of art, 
referring to an immigration policy aimed at family unification.
---------------------------------------------------------------------------
    The second paragraph of Article 3, for the purposes of 
creating reciprocal rights and obligations under the Agreement, 
provides the executive authority of the United States with the 
same narrowly drawn discretion to deny the extradition of U.S. 
nationals if the requested surrender relates to the defense, 
foreign affairs or essential public interest or policy of the 
United States. The U.S. delegation expressed its expectation 
that this provision will rarely, if ever, be used; 
nevertheless, it would provide an important protection for our 
nationals if we found it necessary in a particular case.
    Under this new agreement, Hong Kong will continue to 
surrender Hong Kong residents 16 to the United 
States. Hong Kong will also surrender, subject to the 
aforementioned exceptions, nationals of both the United Kingdom 
and the People's Republic of China (who are located in Hong 
Kong) to the United States.
---------------------------------------------------------------------------
    \16\  As a sub-state entity, Hong Kong does not have its own 
``nationals.''
---------------------------------------------------------------------------
    Paragraph 4 of Article 3 provides that in a case in which 
the PRC (after July 1, 1997) has jurisdiction and is 
investigating an offense by a person who neither has the right 
of abode in Hong Kong nor has entered Hong Kong for the purpose 
of settlement, extradition may be deferred until the 
investigation has been expeditiously concluded.
    The fifth paragraph of Article 3 permits the requesting 
Party to request, in a case in which surrender is denied under 
the circumstances described in Article 3(2) or 3(3)(a), that 
the case be submitted to the competent authorities of the 
requested Party for possible prosecution. So if in an 
exceptional case involving an essential public interest or 
policy of the PRC (again, after July 1, 1997), the executive 
authority of Hong Kong were to refuse to surrender a PRC 
national to the United States, the United States could request 
that Hong Kong submit the case to its domestic authorities so 
that proceedings for the PRC national's prosecution in Hong 
Kong could be considered.

                     article 4--capital punishment

    The first paragraph of Article 4 permits the requested 
Party to refuse surrender in cases in which the offense for 
which extradition is sought is punishable by death in the 
requesting Party, but is not punishable by death in the 
requested Party, unless the requesting Party provides 
assurances that the death penalty will not be imposed, or if 
imposed, will not be carried out. Similar provisions are found 
in many recent United States extradition treaties. 
17 Hong Kong has repealed the death penalty for all 
offenses, and it is likely that Hong Kong would require 
assurances pursuant to this article should the United States 
seek the surrender of a fugitive wanted for a capital offense. 
However, the decision concerning whether to provide such 
assurances will remain with the appropriate authorities in the 
United States. In a state case, it is the practice of the U.S. 
Government to provide death penalty assurances only when, and 
to the extent that, state authorities are willing to do so.
---------------------------------------------------------------------------
    \17\  E.g., Article 7, U.S.-Netherlands Treaty; Article 6, U.S.-
Ireland Treaty.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that when the 
requesting Party gives assurances in accordance with paragraph 
1, the assurances shall be respected, and the death penalty, if 
imposed, shall not be carried

                      article 5--prior proceedings

    This article will permit surrender in situations in which 
the fugitive is charged with different offenses in both 
countries arising out of the same basic transaction.
    Article 5(1), which prohibits surrender if the offender has 
been convicted or acquitted in the requested Party for the 
offense for which extradition is requested, is similar to 
language found in many United States extradition treaties. This 
paragraph will, however, permit extradition in situations in 
which the activities of the fugitive result in his being 
charged with different offenses in each jurisdiction arising 
out of the same basic transaction.
    Article 5(2) makes it clear that neither Party can refuse 
to surrender an offender to the other on the ground that the 
requested Party's authorities declined to prosecute the 
offender, or instituted criminal proceedings against the 
offender and thereafter elected to discontinue the proceedings. 
This provision was included because the decision of the 
requested Party to forego prosecution, or to drop the charges 
already filed, may have resulted from failure to obtain 
sufficient evidence or witnesses available for trial, and the 
requesting Party may not suffer from the same impediments. This 
provision should enhance the ability to surrender to the 
jurisdiction that has the better chance of a successful 
prosecution.

                     article 6--political offenses

    Paragraph 1 of this article prohibits surrender for 
political offenses. This is a common provision in United States 
extradition treaties.
    Paragraph 2 describes several categories of offenses which 
shall not be considered to be political offenses.
    First, Article 6(2)(a) states that the political offense 
exception does not apply where there is a murder or other 
willful crime against the life of the Head of State of the 
United States, or against the life of the Head of State of the 
government responsible for the foreign affairs of Hong Kong, or 
a member of either Head of State's family.
    Second, Article 6(2)(b) states that the political offense 
exception does not apply to offenses for which both Parties 
have an international obligation pursuant to a multilateral 
international agreement to either surrender the person sought, 
or to submit the matter for domestic prosecution. The 
conventions to which this clause will apply until July 1, 1997 
include the Convention for the Suppression of Unlawful Seizures 
of Aircraft (Hijacking) 18, the Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil 
Aviation (Sabotage) 19, the Convention on the 
Prevention and Punishment of Crimes Against Internationally 
Protected Persons, Including Diplomatic Agents 20, 
and the International Convention Against the Taking of Hostages 
21. After July 1, 1997, this clause will continue to 
apply to those international conventions containing ``extradite 
or prosecute provisions'' applicable to Hong Kong. The 
presumption under the Joint Declaration and Basic Law is that 
these and other multilateral treaties currently applicable to 
Hong Kong will continue to apply, and indeed it appears that 
the PRC will extend the applicability of some multilateral 
treaties to Hong Kong that were not extended by the UK. A 
formal process has been established for confirming the 
applicability to Hong Kong of each such treaty as well as any 
relevant reservations of understandings.
---------------------------------------------------------------------------
    \18 \ Done at the Hague December 16, 1970, and entered into force 
October 14, 1971 (22 UST 1641; TIAS 7192).
    \19 \ Done at Montreal September 23, 1971, entered into force 
January 26, 1973 (24 UST 564; TIAS 7570).
    \20\  Done at New York December 14, 1973, entered into force 
February 20, 1977 (28 UST 1975; TIAS 8532).
    \21\  Done at New York December 17, 1979, entered into force June 
3, 1983 and for the United States January 6, 1985 (TIAS 11081).
---------------------------------------------------------------------------
    Third, Article 6(2)(c) states that the political offense 
exception does not apply to conspiring or attempting to commit, 
or for aiding or abetting the commission or attempted 
commission of the foregoing offenses under 6(2)(a) and (b).
    Paragraph 3 of the article describes other situations in 
which the competent authority in the requested Party, which for 
the United States shall be the executive authority, 
22 shall refuse surrender.
---------------------------------------------------------------------------
    \22\  The competent authority in Hong Kong for making decisions 
pursuant to this paragraph is likely to be the judiciary.
---------------------------------------------------------------------------
    First, Article 6(3)(a) states that surrender must be denied 
if the competent authority determines that the request was 
politically motivated. Similar provisions appear in other U.S. 
extradition treaties. 23 In the United States, the 
longstanding law and practice has been that the Secretary of 
State alone has the discretion to determine whether an 
extradition request is based on improper political motivation. 
24
---------------------------------------------------------------------------
    \23\  See Article III(3), U.S.-Jamaica Extradition Treaty, signed 
at Kingston June 14, 1983, entered into force September 24, 1984; 
Article 5(4), U.S.-Spain Extradition Treaty, signed May 29, 1970; 
Article 4, U.S.-Netherlands Extradition Treaty, signed at The Hague 
June 24, 1980, entered into force September 15, 1983 (TIAS 10733); and 
Article IV(c), U.S.-Ireland Extradition Treaty, signed at Washington 
July 13, 1983, entered into force December 15, 1984 (TIAS 10813).
    \24 \ See Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981); In re 
Lincoln, 288 F. 70, (E.D.N.Y. 1915); Koskotas v. Roche, 740 F.Supp. 904 
(D.Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991); Matter of 
Extradition of Singh, 123 F.R.D. 127 (D.N.J. 1987); Quinn v. Robinson, 
783 F.2d 776 (9th Cir. 1986); Sindona v. Grant, 461 F.Supp 199 (1978).
---------------------------------------------------------------------------
    Second, Article 6(3)(b) states that a request for surrender 
must be denied if, though purporting to be made on account of 
an offense covered by the Agreement, it was in fact made for 
the primary purpose of prosecuting or punishing the person 
sought on account of his race, religion, nationality or 
political opinion. Similar provisions appear in some recent 
U.S. extradition treaties. 25
---------------------------------------------------------------------------
    \25 \ See Article IV(c), U.S.-Ireland Extradition Treaty, signed at 
Washington July 13, 1983, entered into force December 15, 1984 (TIAS 
10813); Article III(2)(b), U.S.-Jamaica Extradition Treaty,signed at 
Kingston June 14, 1983, entered into force September 24, 1984.
---------------------------------------------------------------------------
    Third, Article 6(3)(c) states that surrender must be denied 
if the person sought is likely to be denied a fair trial or 
punished on account of his race, religion, nationality, or 
political opinions. Again, a similar provision appears in some 
other recent U.S. extradition treaties. 26
---------------------------------------------------------------------------
    \26 \ See Article III(2)(c), U.S.-Jamaica Extradition Treaty, 
signed at Kingston June 14, 1983, entered into force September 24, 
1984.
---------------------------------------------------------------------------

                 article 7--humanitarian considerations

    This article provides the competent authority of the 
requested Party, which again for the United States shall be the 
executive authority, with the discretion to refuse the 
surrender of a fugitive when such surrender is likely to entail 
exceptionally serious consequences related to age or health. 
This type of provision, although normally deemed unnecessary by 
U.S. negotiators, does appear in a few other U.S. extradition 
treaties. 27
---------------------------------------------------------------------------
    \27 \ See Article 7(2)(b), U.S.-Norway Extradition Treaty, signed 
at Oslo June 9, 1977; entered into force March 7, 1980; Article V(6), 
U.S.-Sweden Extradition Treaty, signed October 24, 1961, entered into 
force December 3, 1963.
---------------------------------------------------------------------------

                     article 8--required documents

    This article sets out the documentary and evidentiary 
requirements for a request for surrender, and is generally 
similar to articles in the United States' recent extradition 
treaties.
    Article 8(1) states that requests for the surrender of a 
fugitive offender shall be made in writing by and to the 
appropriate authorities of the Parties as may be notified 
between them from time to time. It is anticipated that requests 
both from and to Hong Kong will be channeled through the U.S. 
Consulate in Hong Kong 28. Currently, U.S. requests 
for extradition from Hong Kong are presented to Hong Kong by 
the U.S. Consulate, at the direction of the U.S. Department of 
State and in consultation with the U.S. Department of Justice. 
That practice will continue. Hong Kong requests for extradition 
from the United States are currently presented to the United 
States through the British Embassy in Washington. This practice 
will change after the Agreement enters into force. It is our 
understanding that requests will be presented directly to the 
U.S. Consulate in Hong Kong for transmission by the Consulate 
to the State Department in Washington, and then on to the 
Justice Department. However, a formal extradition request 
either to or from Hong Kong may be preceded by a request for 
the provisional arrest of the fugitive pursuant to Article 10 
of the Agreement. Such requests for provisional arrest may be 
made through the same channel required for making formal 
requests, or forwarded through the International Criminal 
Police Organization (INTERPOL).
---------------------------------------------------------------------------
    \28 \ The Hong Kong delegation informed the U.S. delegation that it 
is possible that after 1997, the PRC will require requests for 
extradition involving Hong Kong to be made through Beijing. However, it 
is hoped that the speedy and efficient practice of direct requests both 
to and from Hong Kong will continue even after Hong Kong's reversion to 
PRC sovereignty.
---------------------------------------------------------------------------
    Article 8(2) outlines the information which must accompany 
every request for surrender under the Agreement. Most of the 
items will assist the requested Party in identifying and 
locating the fugitive, and in determining the exact nature of, 
and punishment for, the offense for which surrender is being 
requested.
    Article 8(3) describes the additional information needed 
when the person is sought for trial by authorities in the 
requesting Party; Article 8(4) lists the information needed, in 
addition to the requirements of Article 8(2), when the person 
sought has been tried and convicted in the requesting Party.
    Article 8(3) states that if the fugitive is a person who 
has not yet been convicted of the crime for which surrender is 
requested, the requesting Party must provide a copy of the 
arrest warrant, and ``such evidence as, according to the law of 
the requested Party, would justify his committal for trial if 
the offense had been committed within the jurisdiction of the 
requested Party.'' This is consistent with fundamental 
extradition jurisprudence in the United States, under which 
this language is interpreted to require countries seeking 
extradition from the U.S. to provide evidence establishing 
probable cause. 29 However, Hong Kong under its 
current law requires prima facie evidence of guilt in order to 
either extradite a fugitive, or to commit a case for trial in 
Hong Kong. During the negotiations, the Hong Kong delegation 
indicated that Hong Kong does not plan to change this 
evidentiary standard for either extradition, or committal for 
trial. Consequently, U.S. requests to Hong Kong for the 
surrender of fugitives will likely require prima facie evidence 
even after the Agreement enters into force, i.e., the same 
quantum of evidence we provide under the current extradition 
treaty.
---------------------------------------------------------------------------
    \29\  Courts applying 18 U.S.C. Sec. 3184 have long required 
probable cause for international extradition. Restatement (Third) of 
the Foreign Relations Law of the United States, Section 476, comment b.
---------------------------------------------------------------------------
    Article 8(4) lists the information needed to surrender a 
person already found guilty, convicted or sentenced in the 
requesting Party. Once a conviction has been obtained, no 
showing of either probable cause or prima facie evidence of 
guilt is required. In essence, the fact of conviction speaks 
for itself, a position taken in recent United States court 
decisions. 30 What is required are (a) a copy of a 
certificate or record of the finding of guilt, conviction, or 
sentence, and (b) if the person was found guilty or convicted 
but not sentenced, a statement or record to that effect and a 
copy of the arrest warrant, or (c) if the person was sentenced, 
a statement that the sentence remains enforceable and an 
indication of how much of it remains to be served.
---------------------------------------------------------------------------
    \30 \ See Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 
1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. Clark, 470 
F. Supp. 976 (D.Vt. 1979).
---------------------------------------------------------------------------
    Article 8(5) states that all documents submitted by the 
requesting Party shall be in or translated into an official 
language of the requested Party, or any other language agreed 
upon by the Parties. Currently, extradition requests both to 
and from Hong Kong are made in English. That practice will 
continue under this Agreement. However, this paragraph 
recognizes that in the years after 1997, an increasing 
percentage of judges in Hong Kong may be local Hong Kong 
Chinese. Should the official language of the courts in Hong 
Kong change from English to Chinese, U.S. requests for 
fugitives would then need to be in or translated into Chinese. 
However, even if the official language of Hong Kong becomes 
Chinese, upon agreement of the Parties, our requests may still 
be made in English.

              article 9--admissibility and authentication

    Article 9 governs the authentication procedures for 
documents intended for use in extradition proceedings.
    Article 9(a) deals with requests for surrender made by the 
United States to Hong Kong. Documents accompanying such 
requests shall be received and admitted as evidence in Hong 
Kong if they are signed or certified by a state or federal 
judge, magistrate or official 31 of the United 
States of AMERICA, and they are sealed with the official seal 
of the competent authority 32 of the United States.
---------------------------------------------------------------------------
    \31 \ For example, pursuant to Federal Rule of Criminal Procedure 
9(b), the clerk of court shall sign arrest warrants issued for persons 
charged by information or indictment.
    \32 \ The competent authority for the United States is the 
executive authority. The seals of both the Department of Justice and 
the Department of State are routinely attached to documents submitted 
in support of U.S. requests for extradition.
---------------------------------------------------------------------------
    Article 9(b) deals with surrender requests made by Hong 
Kong to the United States. Documents accompanying such requests 
shall be received and admitted as evidence in the United States 
if they are certified by the principal U.S. consular officer 
resident in Hong Kong. This provision reflects a slight 
variation of procedure described in 18 U.S.C. Sec. 3190. That 
statute ensures the admissibility in extradition proceedings of 
evidence that is certified by ``the principal diplomatic or 
consular officer of the United States resident in such foreign 
country. . . .'' However, Hong Kong is not a country. Thus, 
this paragraph will ensure that extradition documents may be 
certified and made admissible in U.S. extradition proceedings 
by the certificate of the principal U.S. consular officer at 
our consulate in Hong Kong, without having to be sent for 
certification to either London (pre-July 1 1997) or Beijing 
(post- July 1 1997).
    Article 9(c) 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 Party. This paragraph 
should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested Party, is not 
excluded at the extradition hearing because of an inadvertent 
error or omission in the authentication process.

                     article 10--provisional arrest

    This article describes the process by which a person 
located in the territory of one Party may be arrested and 
detained while the formal extradition papers are being 
prepared.
    Article 10(1) states that in urgent cases and upon request 
of the requesting Party, the requested Party may provisionally 
arrest a fugitive, in accordance with its law. An article 
governing provisional arrest of fugitives is standard in all 
modern U.S. extradition treaties.
    Paragraph 2 of Article 10 sets forth the information which 
the requesting Party must provide in support of such a request.
    Paragraph 3 of the article states that the requesting Party 
must be notified without delay of the outcome of the request 
for provisional arrest and the reasons for any refusal to 
execute it.
    Paragraph 4 of Article 10 describes the procedure for 
making a provisional arrest request. The paragraph makes it 
clear that the request shall be in writing, and made either 
through the same channels as a formal surrender request, or 
through INTERPOL.
    Article 10(5) states that if the formal surrender request 
with the necessary supporting documents has not been received 
by the requested Party within sixty days of arrest, the 
provisional arrest--and thus the custody of the fugitive--shall 
be terminated. However, the paragraph goes on to state that the 
person may be taken into custody again, and surrendered, if the 
surrender request is received subsequently.

                    article 11--concurrent requests

    This article reflects the practice of many recent United 
States extradition treaties and lists factors which the 
executive authority of the requested Party must consider in 
determining to which jurisdiction a person should be 
surrendered when reviewing competing requests from a Party to 
the Agreement and one or more other countries for the 
extradition of the same person. For the United States, the 
Secretary of State would make this decision. 33
---------------------------------------------------------------------------
    \33\  See Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 
1990), aff'd 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

                article 12--representation and expenses

    The first paragraph of Article 12 states that the requested 
Party shall, at its own expense, make the necessary 
arrangements for the requesting Party's legal representation 
and assistance in any proceedings arising out of the request 
for surrender. The United States will represent Hong Kong in 
connection with court proceedings related to requests from Hong 
Kong for persons located in the United States. Hong Kong, 
through its Attorney General's Office, will represent the 
United States in connection with court proceedings related to 
requests from the United States for persons located in Hong 
Kong. In addition, the paragraph states that if the requesting 
Party decides to arrange for additional legal representation 
and assistance (i.e., above and beyond that provided on a cost-
free basis by the requested Party, such as the hiring of 
private counsel to assist in the presentation of the 
extradition request), the requesting Party shall bear any 
additional expenses incurred.
    Paragraph 2 of Article 12 provides that the requested Party 
will bear all expenses of extradition incurred in its 
jurisdiction except those relating to the international 
transportation of the fugitive to the requesting Party, and the 
translation of documents, which expenses are to be paid by the 
requesting Party.
    Article 12(3) provides that neither Party shall make a 
pecuniary claim against the other in connection with matters 
arising out of a request for surrender, including arrest, 
detention, examination, and surrender of the fugitive. This 
includes any claim by the fugitive for damages, reimbursement, 
or legal fees, or other expenses occasioned by the execution of 
the surrender request.

                     article 13--standard of proof

    This article sets out the quantum of evidence needed for 
surrender of a fugitive. For an accused person, the evidence 
must be sufficient according to the law of the requested Party 
to justify committal for trial if the offense had been 
committed in the territory of the requested Party. As explained 
in the analysis of Article 8(3), supra, this means that under 
the current law of the Parties, requests by the U.S. for 
fugitives located in Hong Kong must be accompanied by prima 
facie evidence, and requests by Hong Kong for fugitives located 
in the United States must be supported by evidence establishing 
probable cause. For a person found guilty, convicted or 
sentenced by the courts of the requesting Party, all that this 
paragraph requires is evidence to establish that the person 
sought is actually the person found guilty, convicted or 
sentenced. Such evidence of identity is in addition to the 
information regarding such persons required by Article 8(4) of 
the Agreement.

                     article 14--terms of surrender

    This article deals with matters related to the ultimate 
surrender of fugitives at the end of the extradition process.
    Paragraph 1 of Article 14 states that when available for 
surrender, the fugitive shall be sent by the authorities of the 
requested Party to such convenient place of departure within 
that Party's jurisdiction as agreed upon by the Parties. Thus, 
for example, if Hong Kong were to seek the surrender of a 
fugitive located in Kansas City, the Parties may agree for U.S. 
authorities to escort him in custody to a city on the West 
Coast, so that he may be handed over to the Hong Kong escort 
agents at the port of exit from the United States.
    Paragraph 2 requires that the requested Party promptly 
notify the requesting Party of its decision on the request for 
surrender. If the request is denied, the requested Party must 
provide an explanation of the reasons for the denial. In 
addition and upon request, the requested Party must provide the 
requesting Party with copies of pertinent judicial decisions 
related to the request.
    Paragraph 3 of the Article states that if the requesting 
Party does not remove the fugitive on the agreed upon date, he 
may be released from custody, and the executive authority of 
the requested Party may subsequently refuse to surrender him 
for the same offense. United States law requires that such 
surrender occur within two calendar months of the finding that 
the offender is extraditable 34, or of the 
conclusion of any litigation challenging that finding 
35, whichever is later.
---------------------------------------------------------------------------
    \34\  Title 18, United States Code, Section 3188.
    \35\  Jimenez v. United States 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 
(1978).
---------------------------------------------------------------------------
    Paragraph 4 of Article 14 states that if circumstances 
beyond its control prevent a Party from surrendering or picking 
up the person to be surrendered, it shall notify the other 
Party. Then, except to the extent inconsistent with the law of 
the requested Party, the two Parties shall agree on a new date 
for surrender--and the provisions of paragraph 3 shall apply. 
Thus, if it becomes necessary for either Party to re-schedule 
the pick up or transfer of a fugitive, that will be possible. 
However, if the transfer of a fugitive from the U.S. to Hong 
Kong is delayed beyond two calendar months from the finding of 
extraditability or the conclusion of litigation challenging 
that finding, and the fugitive applies for release, it will be 
up to a U.S. judge to determine whether the circumstances which 
led to the delay constituted ``sufficient cause'' 36 
not to order the fugitive's release.
---------------------------------------------------------------------------
    \36\  Title 18, United States Code, Section 3188.
---------------------------------------------------------------------------

                    article 15--transfer of property

    This article requires the requested Party to, consistent 
with its laws and subject to conditions related to the rights 
of other claimants, furnish the requesting Party with certain 
categories of things along with the person surrendered. 
Specifically, money and other articles which may serve as proof 
of the offenses to which the request for surrender relates, and 
money or other articles which may have been acquired by the 
person sought as a result of the offense and are in his 
possession, are to be furnished. Thus, for example, physical or 
documentary evidence of the crime for which surrender is 
sought, and any proceeds of such crime found on the fugitive at 
the time of his arrest, are to be turned over.

                         article 16--speciality

    This article covers the principle known as the rule of 
speciality (or specialty), which is a standard aspect of United 
States extradition practice. The rule of speciality insures 
that a fugitive surrendered for one offense is not tried or 
punished for other crimes subject to certain specific 
exceptions. In other words, the rule prevents a request for 
extradition from being used as a subterfuge to obtain custody 
of a person for trial or service of sentence on charges which 
may not be extraditable under the Agreement, or which are not 
properly documented at the time that the request is granted. 
This paragraph contains a variety of exceptions to the rule 
that have developed over the years. It states that a person 
surrendered under the Agreement may only be proceeded against, 
sentenced, or detained with a view to the carrying out of a 
sentence for (1) the offense for which surrender was ordered, 
(2) lesser offenses revealed by the facts in respect of which 
request for surrender was ordered, provided such offenses are 
covered by the Agreement, and (3) any offenses for which the 
requested Party consents 37. The paragraph also 
makes it clear that the rule applies only to offenses committed 
prior to the surrender of a fugitive.
---------------------------------------------------------------------------
    \37\  In the United States, the Secretary of State has the 
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp. 
1195 (D.D.C. 1979). It should be noted that in cases in which consent 
is requested to try, sentence, or punish a person for an offense other 
than that for which surrender was ordered, the requested Party may 
require submission of the documents called for in Article 8, and may 
detain the fugitive in custody for up to ninety days while the request 
is being processed.
---------------------------------------------------------------------------
    Paragraph 2 of this article prohibits the requesting Party 
from re-surrendering a person, or transferring him beyond its 
jurisdiction, without the consent of the requested Party. These 
limitations on further surrender and transfer apply to offenses 
for which the person was originally surrendered, and to any 
other offenses he may have committed prior to his original 
surrender. Thus, absent U.S. consent, a person surrendered to 
Hong Kong pursuant to this Agreement may not be further 
surrendered for the same crimes, or for other offenses 
committed prior to his surrender, to any third country, or even 
to the People's Republic of China (other parts of the PRC being 
``beyond the jurisdiction'' of Hong Kong). Nor may Hong Kong 
unilaterally decide to transfer a person surrendered pursuant 
to this Agreement, (either to a third country or to the PRC), 
for the service of his Hong Kong imposed sentence. In addition, 
pursuant to Article 20(3) of the Agreement, the provisions of 
Article 16 shall also apply to fugitives extradited pursuant to 
requests pending when the Agreement enters into force, and to 
any other fugitive offenders previously surrendered between the 
parties. Consequently, persons extradited to Hong Kong under 
the terms of our existing treaty with the United Kingdom will 
not, even after 1997, be surrendered or transferred to other 
jurisdictions (including the PRC) for the offenses for which 
their extradition was granted, or for any other offenses 
committed prior to their extradition, absent the consent of the 
United States. The Agreement meets a goal of U.S. negotiators 
in ensuring that persons extradited to Hong Kong (in the past 
or in the future) will be prosecuted and punished for those 
crimes in Hong Kong.
    Finally, Paragraph 3 of the article permits the trial, 
sentencing, detention, or surrender to another jurisdiction of 
a surrendered person if (1) he has had an opportunity to leave 
the jurisdiction to which he was surrendered and has not done 
so within thirty days, or (2) he voluntarily returns to the 
jurisdiction having left it.

              article 17--temporary and deferred surrender

    Paragraph 1 of this article addresses those situations in 
which a surrender request is made for a person already serving 
a sentence for a conviction in the requested Party. The 
paragraph states that the requested Party may temporarily 
surrender such a person to the requesting Party for purpose of 
prosecution.
    Paragraph 2 deals with requests for surrender made for 
persons being proceeded against by the requested Party. The 
requested Party must proceed with the surrender proceedings 
after the prosecution against the person sought has been 
concluded and he is acquitted. 38 Implicit in this 
provision is the notion that a prosecution in the requested 
Party permits that Party to defer surrender proceedings while 
its own criminal proceedings are pending. Pursuant to this 
paragraph, if the person sought is convicted and sentenced to 
imprisonment, the requested Party may continue surrender 
proceedings and, upon committal, temporarily surrender him to 
the requesting Party for purpose of prosecution. Implicit in 
this provision is the notion that the requested Party may 
choose to wait until completion of the service of sentence 
before continuing with the surrender proceedings.
---------------------------------------------------------------------------
    \38\  Article 17(2)(a) should be read in a manner which is 
compatible with Article 5, which prohibits surrender if the person 
sought has been convicted or acquitted in the requested Party for the 
same offense.
---------------------------------------------------------------------------
    The temporary transfer provisions of paragraphs 1 and 2 
further the interests of justice. They permit trial of the 
person sought while evidence and witnesses are more likely to 
be available, thereby increasing the likelihood of successful 
prosecution. Such transfer may also be advantageous to the 
person sought in that : (1) it allows him to resolve the 
charges sooner; (2) it may make it possible for him to serve 
any sentence in the requesting Party concurrently with the 
sentence in the requested Party; and (3) it permits him to 
defend against the charges while favorable evidence is fresh 
and more likely to be available to him. Similar temporary 
surrender provisions are found in many recent extradition 
treaties.
    Paragraph 3 of the article states that when a person is 
temporarily surrendered, he shall be kept in custody by the 
requesting Party. He shall also be returned to the requested 
Party after the conclusion of the proceedings against him, in 
accordance with conditions to be determined by agreement of the 
Parties.

                    article 18--surrender by consent

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings and to expedite their 
return to the requesting State. Paragraph 1 of this article 
provides that when a fugitive consents to be surrendered to the 
requesting Party, the requested Party may surrender the person 
as expeditiously as possible without further proceedings. The 
Parties anticipate that in such cases there would be no need 
for the formal documents described in Article 8 or for further 
judicial proceedings of any kind.
    Paragraph 2 of Article 18 states that to the extent 
required under the law of the requested Party, the provisions 
of Article 16 (rule of speciality) shall apply to a person 
surrendered pursuant to this Article. Since surrender pursuant 
to this article would amount to voluntary return of the 
fugitive, and not a formal surrender pursuant to the Agreement, 
the United States does not view the rule of speciality as 
applicable to such surrenders.

                          article 19--transit

    Article 19(1) gives each Party the power to authorize 
transit through its jurisdiction of a person being surrendered 
to the other Party by a third country, and to hold such persons 
in custody during the period of transit. Transit requests shall 
be in writing. Each request for transit must contain a 
description of the person whose transit is proposed, and a 
brief statement of the facts of the case with respect to which 
he is being surrendered to the requesting Party.
    Article 19(2) makes it clear that no advance authorization 
is needed if the person is being transported by air, and no 
landing is scheduled in the jurisdiction of the Party to be 
transited. Should an unscheduled landing occur, a written 
request for transit as provided for in Paragraph 1 may be 
required at that time. However, the person must be kept in 
custody before the request for transit is received and until 
the transit is effected, so long as the request is received 
within ninety-six hours of the unscheduled landing.

       article 20--entry into force, termination and application

    Paragraph 1 of Article 20 states that the Agreement shall 
enter into force thirty days after the date on which the 
Parties have notified each other in writing that their 
respective requirements for the entry into force of this 
Agreement have been complied with.
    Paragraph 2 of the article states that either Party may 
terminate the Agreement by giving notice to the other in 
writing, however the Agreement shall only cease to have effect 
six months after the receipt of such notice.
    Paragraph 3 of the article sets out those categories of 
cases to which this Agreement applies. It shall apply to all 
requests for surrender made after its entry into force. It 
shall also apply to requests for surrender pending at the date 
of its entry into force. Finally, Articles 4 (capital 
punishment) and 16 (speciality) shall apply to fugitive 
offenders surrendered between the Parties prior to the 
Agreement's entry into force.
    Paragraph 4 of Article 20, like most of the other United 
States extradition treaties negotiated in the past two decades, 
makes the Agreement retroactive, in that it covers offenses 
committed before as well as after it enters into force.

                    VIII. Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Agreement Between the Government of the 
United States of America and the Government of Hong Kong for 
the Surrender of Fugitive Offenders signed at Hong Kong on 
December 20, 1996 (Treaty Doc. 105-3), subject to the 
understandings of subsection (a), the declarations of 
subsection (b), and the proviso of subsection (c).

    (a) UNDERSTANDINGS.--The Senate's advice and consent is 
subject to the following two understandings, which shall be 
included in the instrument of ratification, and shall be 
binding on the President:

          (1) THIRD PARTY TRANSFERS.-- The United States 
        understands that Article 16(2) permits the transfer of 
        persons surrendered to Hong Kong under this Agreement 
        beyond the jurisdiction of Hong Kong when the United 
        States so consents, but that the United States will not 
        apply Article 16(2) of the Agreement to permit the 
        transfer of persons surrendered to the Government of 
        Hong Kong to any other jurisdiction in the People's 
        Republic of China, unless the person being surrendered 
        consents to the transfer.
          (2) HONG KONG COURTS' POWER OF FINAL ADJUDICATION.-- 
        The United States understands that Hong Kong's courts 
        have the power of final adjudication over all matters 
        within Hong Kong's autonomy as guaranteed in the 1984 
        Sino-British Joint Declaration on the Question of Hong 
        Kong, signed on December 19, 1984, and ratified on May 
        27, 1985. The United States expects that any exceptions 
        to the jurisdiction of the Hong Kong courts for acts of 
        state shall be construed narrowly. The United States 
        understands that the exemption for acts of state does 
        not diminish the responsibilities of the Hong Kong 
        authorities with respect to extradition or the rights 
        of an individual to a fair trial in Hong Kong courts. 
        Any attempt by the Government of Hong Kong or the 
        Government of the People's Republic of China to curtail 
        the jurisdiction and power of final adjudication of the 
        Hong Kong courts may be considered grounds for 
        withdrawal from the Agreement.

    (b) DECLARATIONS.--The Senate's advice and consent is 
subject to the following two declarations, which shall be 
binding on the President:

          (1) REPORT ON THE HONG KONG JUDICIAL SYSTEM.-- One 
        year after entry into force, the Secretary of State, in 
        coordination with the Attorney General, shall prepare 
        and submit a report to the Committee on Foreign 
        Relations that addresses the following issues during 
        the period after entry into force of the Agreement:

                  (i) an assessment of the independence of the 
                Hong Kong judicial system from the Government 
                of the People's Republic of China, including a 
                summary of any instances in which the 
                Government of the People's Republic of China 
                has infringed upon the independence of the Hong 
                Kong judiciary;
                  (ii) an assessment of the due process 
                accorded all persons under the jurisdiction of 
                the Government of Hong Kong;
                  (iii) an assessment of the due process 
                accorded persons extradited to Hong Kong by the 
                United States;
                  (iv) an accounting of the citizenship and 
                number of persons extradited to Hong Kong from 
                the United States, and the citizenship and 
                number of persons extradited to the United 
                States from Hong Kong;
                  (v) an accounting of the destination of third 
                party transfer of persons who were originally 
                extradited from the United States, and the 
                citizenship of those persons;
                  (vi) a summary of the types of crimes for 
                which persons have been extradited between the 
                United States and Hong Kong;

          (2) TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification with 
        respect to the INF Treaty.

    (c) PROVISO.-- The resolution of ratification is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

        (1) SUPREMACY OF THE CONSTITUTION.--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.



                            A P P E N D I X



                       THE AGREEMENT BETWEEN THE

               GOVERNMENT OF THE UNITED STATES OF AMERICA

                    AND THE GOVERNMENT OF HONG KONG

                FOR THE SURRENDER OF FUGITIVE OFFENDERS,

                SIGNED AT HONG KONG ON DECEMBER 20, 1996

                          (TREATY DOC. 105-3)




                            C O N T E N T S

                               __________
                                                                   Page

                              June 3, 1997

Borek, Jamison S., Deputy Legal Advisor, U.S. Department of State    38
    Prepared statement...........................................    41
Richard, Mark, Deputy Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice...........................    35
    Prepared statement...........................................    36

                                Appendix

Letter to Chairman Helms from Barbara Larkin.....................    59
Response of Jamison S. Borek to Questions Asked by:
    Senator Helms................................................    59
    Senator Biden................................................    61

                                     

  


 THE AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA 
     AND THE GOVERNMENT OF HONG KONG FOR THE SURRENDER OF FUGITIVE 
OFFENDERS, SIGNED AT HONG KONG ON DECEMBER 20, 1996 (TREATY DOC. 105-3)

                              ----------                              


                         TUESDAY, JUNE 3, 1997

                                        U.S. Senate
                             Committee on Foreign Relations
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas, 
presiding.
    Present: Senators Thomas, Ashcroft, Kerry, and Robb.
    Senator Thomas. We will begin. Thank you very much for 
being here, the witnesses, and also the rest of you. Glad to 
have you.
    Today the committee will consider the agreement for the 
surrender of fugitive offenders between the United States and 
Hong Kong, signed in December of last year, the Hong Kong 
Extradition Treaty. Criminal activities originating in Hong 
Kong and aimed at the United States or U.S. interests for a 
variety of reasons is on the rise -- software, intellectual 
property, smuggling of illegal immigrants, and drug smuggling, 
to name just a few of the problem areas. With that rise in 
crime, there will become an increasing need for the United 
States to seek extradition of individuals from Hong Kong.
    At present, these extraditions are governed by an agreement 
between the United States and the United Kingdom. This 
agreement expires, however, upon Hong Kong reversion to the 
PRC. The treaty we consider today will replace the expired 
agreement, and ensure the continuation of the important 
cooperation between the law enforcement communities of Hong 
Kong and the United States. It is especially important because 
the U.S. lacks an extradition treaty with the People's Republic 
of China, and the treaty will provide the means for 
continuation of an extradition relationship with Hong Kong 
after reversion, and avoid a gap in law enforcement.
    Most of the provisions of this treaty follow the form and 
the content of extradition treaties presently in force with the 
U.S. In addition, it contains several provisions especially 
designed in light of the peculiar status of Hong Kong as a 
special administrative region of the PRC. I support the 
movement of this treaty and will work to move it as quickly as 
possible for the advice and consent of the full Senate.
    We are especially pleased that you came to talk with us 
about it. I think it is not generally controversial, but it is 
very important. I am pleased to be joined by the Senator from 
Missouri. Would you have any comments, Senator Ashcroft?
    Senator Ashcroft. Thank you, Mr. Chairman. I want to thank 
you for this series of hearings that you have been holding on 
Hong Kong, including the broader relationship between the 
United States and China. I think these are well worth our 
inquiry, and I appreciate the fact that you have focussed the 
attention of the full committee as well as the subcommittee on 
these issues.
    Hong Kong certainly serves as a prism through which to 
evaluate the future course of United States-China relations, 
and determine which policies the United States should adopt to 
best encourage the growth of free markets and democracy in the 
People's Republic of China. To most Americans, a hearing on the 
seemingly nebulous topic of extradition treaties is not 
particularly important. But let us not be distracted by the 
complex legal jargon that accompanies such treaties. 
Extradition agreements strike at the very heart of equality 
before the law, one of the most cherished freedoms that people 
should enjoy, I believe, around the globe. It certainly is a 
cherished freedom in America.
    Our judicial system seeks to protect the due process rights 
of foreigner and native citizen alike. Our extradition treaties 
with our nations are based on the premise that any person we 
transfer to a foreign court system will receive similarly just 
treatment. The extradition treaty with Hong Kong is thus a very 
important consideration in assessing the future prospects of 
freedom for the Colony under Chinese rule. We need to consider 
the extradition treaty in light of China's overall behavior 
toward Hong Kong in recent months.
    China's actions to undermine democracy in Hong Kong cast 
doubt on the future of civil liberties in the British Colony. 
China has declared the elected Hong Kong legislature invalid, 
and appointed a handpicked provisional legislative body.
    China's appointed chief executive of Hong Kong, Chi Hua, 
recently announced additional measures to restrict civil 
liberties in the colony. Public protests will have to receive 
prior approval, and could be banned to protect national 
security. Hong Kong political organizations will be required to 
register with the government, and will be prohibited from 
seeking or receiving funds from overseas organizations. Under 
China's definition of a Hong Kong political group, 
international organizations that expose China's human rights 
abuses will also be banned from receiving critical foreign 
funding.
    In light of these troubling steps being taken by Beijing, 
not to mention China's violation of trade agreements, weapons 
proliferation commitments, and human rights standards, there 
are few doubts in my mind that China will violate this 
extradition treaty that we are considering today.
    The extradition treaty contains provisions that supposedly 
preserve due process and the ability of the U.S. to refuse 
extradition requests that are politically motivated. As with 
all international agreements, however, effective enforcement is 
essential to protect American interests. The strongest treaty 
language in the world is meaningless without Presidential 
vigilance -- a vigilance I find appallingly lacking in the 
current administration.
    This administration has failed to confront consistently 
China on human rights violations, trade barriers and weapons 
proliferation. I am concerned that the administration will 
adopt a similarly lax attitude in the enforcement of this 
treaty. The Clinton administration's defense of Hong Kong in 
other areas has been weak at best. The White House has been 
hesitant to meet with political activists from the Colony, and 
Vice President Gore failed to include Hong Kong in the 
itinerary of his recent trip to East Asia. The 6 million people 
in Hong Kong deserve better treatment from America. The fight 
to preserve liberty in Hong Kong could be the battle that 
determines the outcome of the overall campaign to cultivate 
democracy in China.
    Hong Kong serves as yet another example of liberty to over 
1 billion Chinese. The effective removal of that example would 
set back the march of freedom.
    Mr. Chairman, tomorrow, will be the 8th anniversary of the 
Tiananmen Square massacre. Several thousand heroes of liberty 
lost their lives in that bloodbath. Several hundred more were 
tortured and imprisoned without the due process protections of 
a fair court system. Let us be honest. We are not signing this 
extradition treaty with Hong Kong, but with Beijing. By doing 
so, we are placing our stamp of approval on Chinese control of 
Hong Kong's court system, a court system that will increasingly 
be an extension of the Chinese Communist Party.
    The United States has never before signed a treaty to 
extradite human beings to a totalitarian communist regime. 
China has already amended Hong Kong's Bill of Rights to strip 
the courts of the power to strike down laws which violate civil 
liberties guaranteed in the Hong Kong Constitution. As Beijing 
continues its assault on Hong Kong's court system, we could see 
more egregious violations of due process. The heroes of 
Tiananmen Square truly loved their country and were willing to 
make the personal sacrifice to take a determined stand against 
political tyranny.
    The Clinton administration could learn a lesson from these 
demonstrators, who shook the foundations of the Chinese 
Communist Party 8 years ago. In the long run, honesty is the 
best policy, and the forthright stand against the atrocities 
being committed by Beijing will do more for a stable United 
States-China relationship than repeated acts of appeasement.
    We in America need to realize what the Tiananmen Square 
protesters recognized long ago -- that the forces of justice 
and liberty are at work in the Chinese people just as they have 
been at work with such stunning effect in other nations around 
the world. When China embraces democracy, along with a just 
court system and an open press, just as South Korea, Taiwan and 
Japan have done, it will be good to say we have been at the 
side of the Chinese people all along.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Ashcroft follows:]
              Prepared Statement of Senator John Ashcroft
    I want to thank Chairman Helms for his careful consideration of the 
U.S.-Hong Kong Extradition Treaty. Hong Kong certainly serves as a 
prism through which to evaluate the future of United States-China 
relations. The policies which the United States adopts to preserve 
liberty in the former British colony should help to determine the 
policies that will help promote the growth of freedom in China itself.
    While extradition treaties can be rather nebulous documents, let us 
not be distracted by the complex legal jargon that accompanies such 
treaties. Extradition agreements strike at the very heart of equality 
before the law, one of our most cherished freedoms in America. Our 
judicial system seeks to protect the due process rights of foreigner 
and native citizen alike, and our extradition treaties with other 
nations are based on the premise that any person the United States 
transfers to a foreign court system will receive similarly just 
treatment.
    The extradition treaty with Hong Kong is thus very important in 
assessing the future prospects for freedom in Hong Kong under Chinese 
rule. China's actions to undermine democracy in Hong Kong cast doubt on 
the future of civil liberties in the British colony, and we need to 
consider this extradition treaty in that light. China has declared the 
elected Hong Kong legislature invalid and, in its stead, appointed a 
hand-picked provisional legislative body. China's appointed chief 
executive of Hong Kong, Tung Chee-hwa, recently announced additional 
measures further restricting civil liberties in the colony.
    For instance, public protests must receive prior approval and could 
be banned to protect ``national security.'' Hong Kong's political 
organizations will be required to register with the government and will 
be prohibited from seeking or receiving funds from overseas 
organizations. Under China's new definition of a Hong Kong political 
group, international organizations that expose China's human rights 
abuses also will be banned from receiving critical foreign funding.
    China has already amended Hong Kong's Bill of Rights to strip the 
courts of the power to strike down laws which violate civil liberties 
guaranteed in the Hong Kong constitution. Further assaults on Hong 
Kong's court system by Beijing could set the stage for intolerable and 
egregious violations of due process.
    In light of these troubling steps taken by Beijing, not to mention 
China's violation of trade agreements, weapons proliferation 
commitments, and human rights standards, the United States must be on 
guard against any attempts by China to violate this extradition treaty 
in the future.
    The U.S.-Hong Kong extradition treaty contains provisions that 
preserve the ability of the United States to refuse extradition 
requests that are politically motivated. Article 6 of the extradition 
treaty also gives the United States the prerogative to refuse 
extradition requests where the offender is ``likely to be denied a fair 
trial or punished on account of his race, religion, nationality, or 
political opinions.'' Finally, and perhaps most importantly, the 
extradition treaty forbids third party transfers of persons extradited 
to Hong Kong beyond the jurisdiction of Hong Kong without the consent 
of the United States.
    The resolution of ratification drafted by the Foreign Relations 
Committee strengthens these safeguards by requiring the consent of the 
fugitive offender before a third party transfer can take place. The 
resolution also requires the Secretary of State to issue a report one 
year after the treaty takes effect on the independence of Hong Kong's 
court system. Finally, the resolution states that any attempt by China 
to curtail the jurisdiction or final adjudication of the Hong Kong 
courts could be considered grounds for withdrawal from the extradition 
treaty.
    As with all international agreements, however, effective 
enforcement is essential to protect American interests. The strongest 
treaty language in the world is meaningless without presidential 
vigilance, a vigilance too often lacking in this Administration. This 
Administration has failed to confront China consistently on human 
rights violations, trade barriers, and weapons proliferation. I am 
concerned that the Administration may adopt a similar indifference in 
the enforcement of this treaty.
    The United States needs to stand by Hong Kong now more than ever, 
and I want to do just that. However, the United States has never before 
signed a treaty to extradite accused individuals to a totalitarian 
communist regime. To the extent that Hong Kong's court system becomes a 
mere extension of the Communist Party in China, the United States must 
have the resolve not to cooperate with that court system. If we will 
use them, the resolution of ratification and the extradition treaty 
contain the provisions to address future attempts by China to subvert 
judicial independence in Hong Kong.
    In light of these safeguards, I will not challenge the U.S.-Hong 
Kong extradition treaty at this time. However, should China encroach on 
the autonomy of Hong Kong's judicial system, then I will be among the 
first calling for the United States to withdraw from the treaty.
    Mr. Chairman, thank you for allowing me to speak on this important 
subject. I look forward to working with you to ensure that this 
extradition treaty is honored by China and enforced by the United 
States.

    Senator Thomas. Thank you, Senator.
    We have as witnesses this morning Mr. Mark Richard, Deputy 
Assistant Attorney General of the Criminal Division, U.S. 
Department of Justice; and Ms. Jamison S. Borek, Deputy Legal 
Advisor, U.S. Department of State.
    Mr. Richard, would you care to begin, sir.

 STATEMENT OF MARK RICHARD, DEPUTY ASSISTANT ATTORNEY GENERAL, 
         CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Richard. Thank you very much, Mr. Chairman.
    With your permission, I would submit my complete statement 
for the record and merely summarize it.
    Senator Thomas. For both of you, your complete statements 
will be part of the record.
    Mr. Richard. As you have indicated, Hong Kong is currently 
one of our most closest and reliable law enforcement partners. 
Since 1991, under the existing U.S.-U.K. treaty, Hong Kong has 
returned 64 fugitives to the United States for prosecution. The 
vast majority of these fugitives were in the field of narcotics 
trafficking. During the same period, the United States returned 
seven fugitives to Hong Kong. Most of these crimes ranged from 
fraud to violent crimes.
    There is, as reflected in these statistics, a compelling 
law enforcement need to continue our extradition relationship 
with the authorities in Hong Kong. As a stable and 
sophisticated financial center, Hong Kong has long been an 
attractive place for money-laundering activity. Significantly, 
Hong Kong has also been known as an important site for 
narcotics trafficking. Incidentally, these crimes are directed 
principally at the United States. Hong Kong's location also 
makes it an attractive center for schemes involving the 
smuggling of aliens into the United States. It is also a 
natural hub for illegal customs transshipment, counterfeiting 
and other criminal activities that have direct effects in the 
United States.
    In negotiating this new agreement, we made every effort to 
ensure that extradition will be available for the widest 
possible range of offenses. Let me, if I may, turn to some 
specific provisions of the agreement itself that hopefully will 
address at least in part some of the concerns expressed by 
Senator Ashcroft in his opening statement. I would like to just 
highlight some.
    One, we have the modern concept of dual criminality, which 
permits extradition for any crime punishable in both 
jurisdictions by imprisonment of more than 1 year. That is 
incorporated into this agreement. In practice, this agreement 
will expand the range of extraditable offenses. Customs 
offenses such as smuggling and export control violations will 
now be extraditable, as will intellectual property offenses, 
computer crimes, gambling, money laundering related to any 
extraditable offense, and weapons offenses.
    The agreement envisions that, as a general rule, 
extradition will not be denied on the basis of nationality. 
However, the agreement contains narrow exceptions that take 
into account Hong Kong's unique status.
    Under Article 3 of the agreement, the executive authorities 
of both the United States and Hong Kong have the right to 
refuse the surrender of nationals if the requested surrender 
relates to the defense, foreign affairs or essential public 
interests in the requested parties.
    Article 16 of the agreement, I think, is of critical 
importance, because it incorporates a principle of extradition 
law known as a rule of specialty. It provides the legal basis 
to ensure that fugitives surrendered by the United States to 
Hong Kong will not be prosecuted for additional offenses or 
resurrendered beyond Hong Kong's borders without the permission 
of the United States.
    Fugitives, therefore, extradited by the United States to 
Hong Kong cannot be resurrendered by the Hong Kong special 
administrative region to the mainland PRC. Moreover this 
protection, rule of specialty, is specifically extended to all 
persons who have been extradited by the United States prior to 
the time the new agreement comes into force.
    In conclusion, I would like to just point out that as in 
other extradition areas with other countries, the extradition 
process is a cumbersome one and it is a technical one, but it 
is one that must be constantly monitored for compliance with 
fundamental fairness and conformity with the agreement.
    I certainly agree with the Senator that in this, we have to 
be particularly vigilant. I think, speaking certainly for the 
Department of Justice -- and I would be presumptuous enough to 
speak for the State Department in this regard -- to say that we 
both intend to monitor implementation of this agreement very 
closely, and to ensure that all of its terms are complied with, 
both in form as well as in substance.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Richard follows:]
                 Prepared Statement of Mark M. Richard
    Mr. Chairman, I am pleased to appear before the Committee today to 
present the views of the Department of Justice on an extradition 
agreement that is of great importance to the future of United States - 
Hong Kong law enforcement relations.
    The Department of Justice participated in the negotiation of this 
agreement with Hong Kong and joins the Department of State in urging 
the Committee to report favorably to the Senate and recommend that the 
Senate give its advice and consent to ratification.
    Hong Kong is currently one of our closest and most reliable law 
enforcement partners. Overall, the United States - Hong Kong law 
enforcement relationship can be described as excellent. This is 
particularly true with respect to extradition.
    In 1991, the United States began negotiating the agreement that is 
now before you for advice and consent to ratification. Since that time, 
under the existing U.S.-U.K. treaty, Hong Kong has returned 64 
fugitives to the United States for prosecution and/or punishment. The 
vast majority of those fugitives were accused narcotics traffickers 
wanted by either state or federal prosecutors. During that same period, 
the United States has returned 7 fugitives to Hong Kong for prosecution 
and/or punishment for offenses ranging from fraud to violent crimes.
    There is a compelling law enforcement need to continue our 
extradition relationship with the authorities in Hong Kong. As a stable 
and sophisticated financial center, Hong Kong has long been an 
attractive place for money laundering activity, despite aggressive law 
enforcement efforts to combat the problem.
    Significantly, Hong Kong has also been known as an important site 
for narcotics trafficking. In addition to serving as a conduit for the 
flow of drugs, Hong Kong is often chosen as the place where illicit 
narcotics deals are consummated. In fact, many of the traffickers 
extradited to the United States by the Hong Kong Government were later 
prosecuted for conspiring in Hong Kong to import heroin into the United 
States. The Royal Hong Kong Police and the Hong Kong Customs and Excise 
Department work closely with the U.S. law enforcement community in 
sharing information and conducting joint investigations. Similar 
cooperation between the Department of Justice and the Hong Kong 
Attorney General's Chambers has resulted in many successful extradition 
cases.
    Hong Kong's location also makes it an attractive center for schemes 
involving the smuggling of aliens into the United States. Hong Kong 
immigration officials have conducted numerous joint investigations with 
our Immigration and Naturalization Service to detect and arrest alien 
smugglers and to intercept persons who attempt to enter the United 
States illegally.
    Hong Kong is also a natural hub for illegal customs transhipment, 
counterfeiting and other criminal activities that have direct effects 
in the United States. Due to limitations of scope of the existing U.S.-
U.K. extradition treaty and Hong Kong's domestic laws implementing that 
treaty, some of the aforementioned offenses, including alien smuggling 
and most customs crimes, are not presently extraditable. In negotiating 
our new extradition agreement, we made every effort to ensure that 
extradition will be available for the widest possible range of 
offenses. Our goal is to provide all U.S. law enforcement agencies, 
both those with representatives stationed in Hong Kong, including the 
FBI, DEA, Customs Service, INS, Secret Service and Diplomatic Security, 
and those federal, state and local agencies who do not have 
representatives posted in Hong Kong, with the benefits of a 
comprehensive, modern extradition treaty.
    Our current and projected law enforcement needs provide sound 
policy reasons to both maintain and strengthen our ties with Hong Kong, 
as reflected by the letter and spirit of the Hong Kong Policy Act 
passed by Congress. Our support for swift approval of this agreement is 
premised upon our recognition of the continuing need for an extradition 
relationship with Hong Kong. In implementing the new agreement, we will 
continue to monitor closely the status of the legal system of Hong 
Kong.
    Under the Sino-British Joint Declaration on the Question of Hong 
Kong, the U.N.- registered bilateral treaty between the U.K. and the 
P.R.C., Hong Kong will retain both its capitalist system and its 
British-based common law system until at least the year 2047. The 
People's Republic of China has undertaken an international legal 
obligation under the Joint Declaration to preserve the independence of 
Hong Kong's judiciary and to maintain the same system of laws and due 
process that exists in Hong Kong today.
    Two weeks ago, it was announced in Hong Kong that Andrew Li Kwok-
nang will become the first Chief Justice of the Hong Kong Special 
Administrative Region's (HKSAR) Court of Final Appeal. Provided for 
under the Basic Law and described further in a subsequent Sino-British 
Joint Liaison Group (JLG) agreement, the Court of Final Appeal will 
replace the British Privy Council as Hong Kong's highest appellate 
court.
    According to press reports, the choice of Mr. Li as future Chief 
Justice has received immediate and widespread support in London, 
Beijing, and perhaps most importantly, Hong Kong. Governor Patten, 
future Secretary of Justice Elsie Leung, along with academics, members 
of the Hong Kong Bar Association, and others have made public 
statements endorsing the appointment of Andrew Li as a strong 
indication that judicial independence and the rule of law will continue 
in Hong Kong. The Department of Justice views the appointment of Mr. Li 
as a positive sign and, along with the Department of State, will pay 
close attention to developments in Hong Kong as additional members of 
the Court of Final Appeal are nominated in the coming weeks.
    I would like to turn now to the extradition agreement itself. 
Because the Departments of Justice and State have prepared and 
submitted to the Committee a detailed technical analysis of the various 
articles of this agreement, I will simply highlight some of the 
important features of the agreement. Many of those features are found 
in other U.S. extradition treaties that have recently come into force. 
This agreement also contains certain provisions that reflect Hong 
Kong's unique situation and our concomitant interests.
    The term ``agreement'' was used instead of ``treaty'' at the 
request of the Hong Kong Government. However, this agreement will be a 
treaty for purposes of United States law.
    The modern concept of ``dual criminality,'' which permits 
extradition for any crime punishable in both jurisdictions by 
imprisonment of more than one year, is incorporated into Article 2 of 
the agreement. In this context, a dual criminality clause is used to 
supplement a comprehensive list of offenses designed to underscore the 
availability of extradition for crimes that are of particular interest 
to each party.
    In practice, this agreement will expand the range of extraditable 
offenses. For the first time, the United States will be able to 
extradite fugitives from Hong Kong directly for alien smuggling and 
visa fraud. Until now, we have had to limit our extradition requests in 
alien smuggling cases to situations in which extraditable crimes, such 
as extortion or kidnapping, have occurred.
    Likewise, customs offenses such as smuggling and export control 
violations will become extraditable. In the past, due to restrictions 
under the U.S.-U.K. treaty and Hong Kong law, extradition in this area 
has been limited to fraud cases involving clear financial loss.
    Among the other crimes that will become extraditable for the first 
time are intellectual property offenses, computer crimes, bail jumping, 
gambling, money laundering related to any extraditable crime, and 
weapons offenses.
    The agreement envisions that as a general rule, extradition will 
not be denied on the basis of nationality. This principle, found in 
Article 3, is consistent with longstanding U.S. policy favoring the 
extradition of nationals. However, the agreement contains narrow 
exceptions that take into account Hong Kong's unique status under the 
Chinese ``one country, two systems'' approach to reversion.
    Under Article 3 of the agreement, the executive authorities of both 
the United States and Hong Kong have the right to refuse the surrender 
of nationals (in the case of Hong Kong, this means Chinese nationals) 
if the requested surrender relates to the defense, foreign affairs, or 
essential public interest of the requested Party.
    Article 3 also permits the executive authority in Hong Kong to 
refuse the surrender of a Chinese national who does not have what is 
called the ``right of abode'' in Hong Kong or has not ``entered Hong 
Kong for the purpose of settlement,'' if the P.R.C. has jurisdiction 
over the offense and has commenced or completed proceedings for the 
prosecution of that person. (The term ``right of abode'' refers to 
legal residents of Hong Kong, and the language concerning entry ``for 
the purpose of settlement'' is a term of art referring to an ongoing 
family reunification policy in Hong Kong).
    Article 3 also provides that in the event that the surrender of a 
national is refused, the case may be submitted to the competent 
authorities of the requested Party for possible domestic prosecution.
    Article 16 of the agreement incorporates a principle of extradition 
law known as the ``rule of specialty.'' That principle is also 
reflected in Section 17 of Hong Kong's new Surrender of Fugitive 
Offenders (SFO) Ordinance, which will serve as Hong Kong's domestic 
implementing legislation for new extradition agreements, including this 
one. Article 16 of the extradition agreement provides the legal basis 
to ensure that fugitives surrendered by the United States to Hong Kong 
will not be prosecuted for additional offenses or re-surrendered beyond 
Hong Kong's borders without the permission of the United States. Under 
the formulation of the language used in Article 16, which prohibits 
transfer of extradited persons ``beyond the jurisdiction of the 
requesting Party,'' fugitives extradited by the United States to Hong 
Kong cannot be re-surrendered by the Hong Kong Special Administrative 
Region to the mainland People's Republic of China.
    Under Article 20 of the agreement, the protection of the rule of 
specialty is specifically extended to all persons who have been 
extradited by the United States to Hong Kong prior to time that the new 
agreement comes into force.
    There is clear justification for continuing an effective and 
vibrant bilateral law enforcement relationship with Hong Kong. Future 
cooperation with Hong Kong will be an integral part of the U.S. 
Government's strategy to combat Asian organized crime. It is also 
important that Hong Kong does not become a haven for fugitives from 
U.S. justice due to the lack of an extradition treaty.
    Since 1991, the Departments of Justice and State have been working 
to build an infrastructure for our future law enforcement relationship 
with Hong Kong. We believe that the extradition agreement now before 
you is the cornerstone, which, together with agreements in the areas of 
mutual legal assistance and prisoner transfer that are also before the 
Committee, will protect U.S. law enforcement interests and support the 
autonomy of Hong Kong.
    Thank you, Mr. Chairman.

    Senator Thomas. Thank you, sir. Ms. Borek.

   STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISOR, U.S. 
                      DEPARTMENT OF STATE

    Ms. Borek. Thank you, Mr. Chairman.
    I am pleased to appear before you today to testify in 
support of this extradition treaty. As you know, as was clear 
at our earlier hearing and as Mr. Richard has testified, we 
have a very important law enforcement relation with Hong Kong, 
and we wish to preserve this law enforcement relationship. 
Extradition is an essential part of the relationship. Since 
1991 alone, Hong Kong has extradited over 60 fugitives to the 
United States and we have sent seven to Hong Kong.
    In the Hong Kong Policy Act, the Congress in fact already 
authorized and approved the continuance in force of our 
extradition relationship. Section 201(b) of the Hong Kong 
Policy Act provided that we could continue, in effect, treaties 
that currently applied to Hong Kong, such as the U.S.-U.K. 
Extradition Treaty with Hong Kong, after reversion. 
Unfortunately, it was the uniform view of the United Kingdom, 
the Hong Kong Government, and the People's Republic of China 
that it was not appropriate to continue a treaty we had with 
the United Kingdom as applied to Hong Kong; and the preference 
was to negotiate a new treaty, as they have done with a number 
of other countries, such as Netherlands, Canada, Australia, 
Malaysia, and the Philippines.
    We do understand that it will be possible to continue our 
relationship with Hong Kong in very much its current form 
because of two features of the arrangements for the future of 
Hong Kong. As you know, the status of Hong Kong after reversion 
is spelled out in two important documents, the 1984 Joint 
Declaration between the People's Republic of China and the 
United Kingdom on the question of Hong Kong. This is an 
international agreement, registered with the U.N. second, the 
1990 Basic Law, which was promulgated by the People's Republic 
of China as internal law for the imitation of the Joint 
Declaration.
    These provide fundamentally for continuity in the legal 
system and autonomy for the criminal justice system in Hong 
Kong. This is the central feature of maintaining a separate and 
independent extradition law enforcement relationship with Hong 
Kong, apart from that with the People's Republic of China.
    There are numerous provisions, and I will not go into them 
all, in the Joint Declaration and Basic Law, which speak to the 
separateness of the criminal justice system. Basically, there 
is a separate executive authority, separate courts, separate 
prisons, separate prosecution. There are special guarantees and 
express guarantees of due process rights, and continuation of 
the general common law legal system, and certain features which 
are unusual, such as the trial by jury. There is an express 
guarantee of independence in the prosecution of cases.
    As it appears from these documents, and as we have been 
assured by the Secretary of Security and the Solicitor General 
and others in Hong Kong, there is simply no machinery for 
intervention by the Central People's Government in Hong Kong in 
the criminal justice system. While you cannot rule out the 
possibility of influence, the Hong Kong Government officials 
remain responsible for their own criminal justice system and 
for the fulfillment of the obligations under the extradition 
agreement.
    This is not to say, of course, that there are no risks 
associated with reversion. Consistent with the Hong Kong Policy 
Act, however, we seek to maintain those agreements and ties 
which are consistent with the autonomy which Hong Kong will 
enjoy under the Joint Declaration and Basic Law.
    We have been over these arrangements very carefully with 
the Government of Hong Kong to see that this will be an arm's 
length relationship between their criminal justice system and 
the criminal justice system of the People's Republic of China. 
There will be some changes undoubtedly. There will be some 
turnover of personnel. I think generally, however, people have 
been very pleased with some of the new appointments. The new 
Chief Justice of the Court of Final Appeals, for example, who 
was recently announced, the new Secretary of Justice, and 
others, who will be continuing in place, such as the Secretary 
of Security.
    There will be a new Court of Final Appeal to replace the 
Privy Council of the House of Lords, which obviously becomes an 
inappropriate mechanism. This will, however, be a Hong Kong 
institution, which is separate and independent.
    Most troubling perhaps, and the one clear point of contact 
is that there is a degree of ultimate authority in the Standing 
Committee of the National People's Congress to interpret the 
Basic Law. This is not a blank check. It is a procedure which 
is expected fairly rarely. It operates only after the Hong Kong 
courts have had a full and independent review of a case. It has 
certain safeguards as to the restricted scope and the 
procedures by which it can be invoked. Most fundamentally, it 
does not bear affirmatively on a criminal trial.
    It is easy to see that the People's Republic of China might 
be able to prevent, for example, a central government official 
from being tried in Hong Kong, but the same ability to 
interfere affirmatively with a trial does not exist. We have 
been assured by the Solicitor General of Hong Kong that this 
mechanism cannot negate the fundamental fair trial guarantees 
which are clearly set forth in the Basic Law. As I say, this is 
the one point of contact in an otherwise completely independent 
system.
    Moreover, as Mr. Richard has testified, to the extent there 
are risks, the extradition agreement also contains tools to 
address these risks. Before we would extradite someone, we 
would be able to assess the nature of the charge, the reasons 
for which it is brought, the possibility that there is a 
political aspect, and the overall state of due process in the 
Hong Kong legal system.
    We are not obliged to extradite for political offenses or 
where there is a political motivation for the offense. We are 
not obliged to extradite our nationals where we feel that there 
is an official public interest or policy at stake for any 
reason which we choose.
    There are other factors as well. I will not go into all of 
them, but the basic conclusion is that this agreement is 
designed to take account of the future situation in Hong Kong, 
the potential for good, and the risks for problems. We believe 
that this will provide a sound basis to continue our important 
extradition relation and to support also the institutions and 
people of Hong Kong in the future.
    Thank you, Mr. Chairman.
    [The prepared statement and information submitted by Ms. 
Borek follows:]
                 Prepared Statement of Jamison S. Borek
    Mr. Chairman and members of the Committee: I am pleased to appear 
before you today to testify in support of a new extradition treaty 
between the United States and Hong Kong. The Department of State 
greatly appreciates this opportunity to move toward ratification of 
this important treaty. Combating international crime is a major focus 
of United States foreign policy. President Clinton has repeatedly 
highlighted the threat posed to our national security and the need for 
international cooperation in fighting transborder criminal activity, 
especially violent crime, terrorism, drug trafficking, alien smuggling 
and the laundering of proceeds of organized crime.
    Hong Kong is one of our most valuable allies in this fight against 
international crime, and law enforcement is an important and vital 
element of our bilateral relationship. The ability to pursue fugitives 
who flee to Hong Kong and extradite them to the United States for trial 
is an essential part of that relationship. Since 1991 alone, Hong Kong 
has extradited over 60 fugitives to the United States and we have sent 
seven to Hong Kong under the 1972 treaty between the United States and 
the United Kingdom and the 1985 Supplementary Treaty, both made 
applicable to the Crown Colony of Hong Kong. This treaty, however, will 
cease to be effective for Hong Kong as of July 1, 1997, when Hong Kong 
reverts to the sovereignty of the People's Republic of China. Because 
of the importance of our law enforcement relationship with Hong Kong, 
we have anticipated this change and have negotiated the new treaty that 
you have before you. To complete the picture, we have also negotiated 
new treaties in the areas of mutual legal assistance and prisoner 
transfer which have recently been submitted to you as well for advice 
and consent.
    This new treaty, the Agreement Between the Government of the United 
States of America and the Government of Hong Kong for the Surrender of 
Fugitive Offenders (``the Treaty'') will, when ratified, provide the 
basis under U.S. law for extraditions from the United States and for 
requesting extraditions from Hong Kong. The Treaty is entered into with 
the sovereign assent and authorization of both the United Kingdom and 
the People's Republic of China (``PRC''). The Treaty itself expressly 
provides that Hong Kong enters into it with the authorization of ``the 
sovereign government which is responsible for its foreign affairs.'' At 
present, that is the United Kingdom. However, the PRC has also 
specifically authorized the negotiation and conclusion of the Treaty, 
as well as its continuation in force after the reversion on July 1, 
1997.
    To date Hong Kong has followed this same process to negotiate and 
sign agreements for surrender of fugitive offenders with six countries 
in addition to the United States: the Netherlands, Canada, Australia, 
Malaysia, Philippines, and Indonesia. With your permission, I would 
also provide the committee with a diplomatic note for the record from 
the Government of the United Kingdom explaining in some detail the 
process established for authorizing and approving these new agreements 
and the role of the Joint Liaison Group.
    After July 1, Hong Kong will continue to operate autonomously in 
the field of law enforcement. The status of Hong Kong after reversion 
is spelled out in two important documents. First, the 1984 Sino-British 
Joint Declaration on the Quest Lon of Hong Kong, which is an 
international agreement registered with the United Nations, provides 
for the transition of sovereignty from the United Kingdom to China. In 
so doing it embodies the concept of ``one country, two systems'' for 
Hong Kong, under which Hong Kong will retain a high degree of autonomy 
in all matters except foreign affairs and defense. In addition, the 
1990 Basic Law promulgated by the People's Republic of China provides 
the fundamental governing framework for implementing the principles of 
the Joint Declaration in the future Hong Kong Special Administrative 
Region.
    Together these instruments explicitly provide for the continuation 
of the capitalist system and way of life unchanged in the HKSAR for 50 
years; for continuity of the legal system and laws; for an independent 
judiciary and for independent prosecution. They also provide for the 
continued applicability of the International Covenant on Civil and 
Political Rights to the HKSAR and provide other specific protections 
for individual rights and basic freedoms. The Basic Law expressly 
prohibits interference by the PRC in affairs administered by the HKSAR. 
In sum, they provide that law enforcement and criminal justice, 
including police force, prosecution, trial and imprisonment will be a 
matter administered independently by the HKSAR by Hong Kong courts 
under Hong Kong law.
    The continued ability to extradite and to request extradition is an 
essential element in preserving our important law enforcement 
relationship with Hong Kong. It will avoid the possibility that Hong 
Kong could become a refuge for fugitives escaping justice from the 
United States. At the same time, it will allow us to return fugitives 
wanted in Hong Kong. Apart from law enforcement considerations, 
ratification of this Treaty would also be an important step in putting 
US-Hong Kong relations on a stable footing for the post-1997 period, 
and would support the goals of the US-Hong Kong Policy Act in 
continuing separate legal arrangements between the United States and 
Hong Kong after reversion.
    The Treaty will not require implementing legislation in the United 
States. For its part, Hong Kong enacted the Fugitive Offenders 
Ordinance on April 25, 1997, providing the general statutory basis for 
Hong Kong to implement its agreements in this area. Subsidiary 
legislation required by the Ordinance to bring the Treaty within the 
general framework is pending and we are advised that it will be brought 
into force on the day the Treaty enters into force.
    Overall, the Treaty provides significant advantages to the United 
States, particularly when compared to the absence of any agreement on 
these issues. Most of the Treaty's provisions are those found in other 
recently negotiated bilateral extradition treaties. This treaty 
incorporates the revised and modernized features contained the treaties 
presented to you last year. First, it define extraditable offenses to 
include conduct which is punishable by imprisonment or deprivation of 
liberty for a period of one year or more in both states (the so-called 
``dual criminality'' approach). Although there is an extensive list of 
specific offenses for which the parties agree to extradite fugitives, 
the last item in the list is a blanket reference to all other offenses 
that are punishable under the laws of both parties by more than one 
year imprisonment. Of particular importance in our extradition 
relationship with Hong Kong is the fact that this provision will for 
the first time make crimes such as alien smuggling, intellectual 
property violations and customs offenses extraditable. More generally, 
the dual criminality approach obviates the need to renegotiate treaties 
to cover new offenses should both states pass laws to address new types 
of criminal activity. Second, this treaty provides that attempts and 
conspiracies to commit extraditable offenses are themselves 
extraditable offenses. This ensures that certain drug-related offenses 
and offenses under our continuing criminal enterprise and racketeer 
influence and corrupt organization statutes are covered by the 
treaties.
    Third, it provides for the extradition of nationals by both 
Parties. This provision is specially adapted to the circumstances of 
Hong Kong, but also provides for the fact that the great majority of 
our extradition requests, according to past practice, will likely be 
for Chinese nationals resident in Hong Kong.
    Finally, it contains a provision which permits the temporary 
surrender of a fugitive to the Requesting Party when that person is 
facing prosecution for, or serving a sentence on, charges within the 
Requested Party.
    Certain other provisions have been included that are of particular 
value given the special circumstances of Hong Kong, including 
protections for fugitives after Hong Kong's reversion. Article 16, for 
instance, provides the customary protections referred to as the ``rule 
of specialty.'' This provides that an extradited fugitive cannot be 
tried or punished nor transferred outside the jurisdiction of the 
requesting Party for crimes committed prior to surrender unless the 
sending Party consents or the person has had an opportunity to leave 
the jurisdiction and has chosen not to do so or has left and 
voluntarily returned. In the Treaty, the specialty provision has been 
specifically adapted to take account of the precise situation of Hong 
Kong, and thus prohibits the surrender or transfer of a fugitive 
anywhere beyond the jurisdiction of the Special Administrative Region 
of Hong Kong.
    Furthermore, under Article 20, these protections are made expressly 
applicable to persons who have been surrendered between the parties 
prior to its entry into force. That is, the Treaty expressly extends 
these protections to persons who have already been extradited under the 
existing treaty. We believe that the specialty protection of the 
current treaty would continue to apply to such persons even in the 
absence of the new treaty. These provisions, however, make clear that 
anyone we extradite to Hong Kong is fully protected from being tried 
for other crimes or surrendered outside of Hong Kong to other parts of 
the PRC or anywhere else for the same or prior crimes without the 
express consent of the United States.
    Article 3 of the Treaty provides that each Party shall normally 
surrender its nationals, except in special circumstances. It grants the 
executive authority of the United States the right to refuse surrender 
of a U.S. national if the requested surrender relates to the defense, 
foreign affairs or essential public interest or policy of the United 
States. It reserves the same right to the executive authority of Hong 
Kong. In addition, the executive authority of Hong Kong may refuse 
surrender if the person neither has the right of abode in Hong Kong nor 
has entered Hong Kong for the purpose of settlement. In that event, 
however, the PRC must have jurisdiction over the offense and must have 
commenced or completed proceedings for the prosecution of the person. 
The Hong Kong Government believes that its discretion to deny 
extradition on these grounds would rarely, if ever, be used. Similarly, 
the United States does not anticipate the need to exercise this right, 
but it would provide an important protection for our nationals if we 
found it necessary in a particular case.
    Further protections, applicable to both U.S. nationals and aliens, 
include the discretion in Article 7 to refuse surrender of a fugitive 
when the surrender is likely to entail exceptionally serious 
consequences related to the fugitives age or health. In addition, 
Article 6 provides that surrender shall be refused if it is determined 
that (1) the request was politically motivated, (2) the primary purpose 
of the request was to prosecute or punish a person for reasons of race, 
religion, nationality or political opinion, or (3) the person sought is 
likely to be denied a fair trial or be punished account of his race, 
religion or national origin. Finally, if the death penalty were to be 
re-enacted under Hong Kong law, Article 4 provides for conditioning 
surrender on assurances that it will not be imposed or carried out if 
surrender is sought for an offense punishable by death under Hong Kong 
law but not under U.S. law.
    Taken together these provisions of the treaty give us a solid 
framework for maintaining the important law enforcement relationship 
with Hong Kong while also establishing the necessary protections for 
individuals whose extradition might be requested.
    Thank you, Mr. Chairman, for this opportunity to testify before you 
today. I will be happy to answer any further questions that the 
Committee may have.

                               __________

                                             Note No: 12/97

    Her Britannic Majesty's Embassy present their compliments to the 
United States Department of State and have the honour to inform the 
United States Department of State of the arrangements agreed between 
the Government of the United Kingdom of Great Britain and Northern 
Ireland and the Government of the People's Republic of China relating 
to the application to Hong Kong after 30 June 1997 of bilateral 
agreements and, in particular, to extradition arrangements between the 
United States and the Hong Kong Special Administrative Region of the 
PRC (HKSAR).

The Status of the Sino-British Joint Declaration on the Question of 
        Hong Kong

    The Sino-British Joint Declaration on the Question of Hong Kong, 
signed on 19 December 1984, is an international treaty, registered at 
the United Nations, under which the United Kingdom undertakes to 
restore sovereignty over Hong Kong to China with effect from 1 July 
1997 and the Chinese Government sets out the basic policies that it 
undertakes to implement regarding Hong Kong, including that the HKSAR 
shall have a high degree of autonomy except in the fields of foreign 
affairs and defence. The HKSAR will be vested with executive, 
legislative and independent judicial power, including that of final 
adjudication. It will retain the status of a free port and a separate 
customs territory as well as an international financial centre, and it 
will have independent finances. The HKSAR may on its own maintain and 
develop economic and cultural relations and conclude relevant 
agreements with states, regions and relevant international 
organisations. The HKSAR Government may on its own issue travel 
documents for entry into an exit from Hong Kong. Annex I to the Joint 
Declaration elaborates these basic policies. The Joint Declaration and 
its Annexes are equally binding.

The Authority of the Sino-British Joint Liaison Group

    The British and Chinese Governments agreed in the Joint Declaration 
to establish a Joint Liaison Group to discuss the effective 
implementation of the Joint Declaration as well as matters relating to 
the smooth transfer of government at midnight; on 30 June 1997. In 
accordance with Annex II to the Joint Declaration, the Joint Liaison 
Group consists of a Senior Representative of Ambassadorial rank and 
four members from each side, with support staff and experts as needed.

General principles relating to the continued application of existing 
        bilateral agreements to HKSAR

    During the Joint Declaration negotiations, Britain and China agreed 
that, in line with the high degree of autonomy to be enjoyed by the 
HKSAR in the areas described in para 3 above, the HKSAR could have its 
own network of agreements with third countries, separate from China, in 
these areas. The Joint Declaration provides that:

        ``International agreements to which the People's Republic of 
        China is not a party but which are implemented in Hong Kong may 
        remain implemented in the HKSAR.'' (sentence 138)

But Section 1(1) of the Hong Kong Act 1985 provides that:

        ``As from 1st July 1997 Her Majesty shall no longer have 
        sovereignty or jurisdiction over any part of Hong Kong.''

    One consequence of the provision for the transfer of sovereignty 
was uncertainty as to the continued application to Hong Kong after the 
handover of existing bilateral agreements between the UK and third 
countries at present extended to Hong Kong.
    Accordingly, the British and Chinese Governments had to consider 
how to ensure that Hong Kong has in place before 1 July 1997 a network 
of Hong Kong/third country bilateral agreements, replacing the UK/third 
country agreements extended to Hong Kong, capable of remaining in 
effect as provided for by JD 138.
    The process the two governments agreed in the Joint Liaison Group 
enables the Hong Kong Government to negotiate the agreements it needs 
and allows these agreements to continue in effect after the handover 
without any further action or checking by China, since the entire 
process will have been scrutinised and agreed by the Chinese Government 
through the Joint Liaison Group.
    The basic steps in the process carried out through exchanges in the 
Joint Liaison Group are:

  --a Model Agreement, eg a model Surrender of Fugitive Offenders 
        Agreement, is negotiated and agreed;
  --on behalf of the Hong Kong Government, the British Government asks 
        the Chinese Government to approve a list of negotiating 
        partners;
  --once the Chinese Government approves the proposed partners, the 
        British Foreign Secretary signs a formal entrustment 
        authorising the Hong Kong Government to negotiate on its own 
        behalf with those partners on the basis of the Model Agreement;
  --once the Hong Kong Government and an approved partner reach 
        agreement, they initial the text. The British Government pass 
        the initialled text to the Chinese Government through the Joint 
        Liaison Group for approval.

        The Chinese Government may seek clarification if the initialled 
        text departs significantly from the Model Agreement. Further 
        negotiations between the Hong Kong Government and the approved 
        partner may be necessary. Once the Chinese Government has 
        approved the initialled text, the Hong Kong Government and the 
        approved partner can sign the agreement.

    An agreement so concluded and brought into force before the 
handover will remain in effect after the handover, notwithstanding that 
China may itself separately have concluded a bilateral agreement in the 
same area with the same approved partner.
    The process described above is already well underway to ensure that 
existing UK/third country bilateral agreements which have been extended 
to Hong Kong are, where appropriate, replaced before 1 July 1997 by a 
Hong Kong/third country bilateral agreement capable of continuing in 
effect in the HKSAR.

The HK/US Agreement for the Surrender of Fugitive Offenders

    In line with the process described above, the Joint Liaison Group 
has agreed a Model Surrender of Fugitive Offenders Agreement and the 
Chinese Government has approved a number of negotiating partners, 
including the United States, with which the Hong Kong Government has, 
under entrustment by the British Foreign Secretary, concluded new 
agreements for the surrender of fugitive offenders to replace the 
existing agreements extended to Hong Kong by the United Kingdom, and to 
continue in force after the handover.
    In the case of the HK/US Surrender of Fugitive Offenders agreement, 
the Chinese Government approved the text of the agreement during the 
thirty-seventh plenary meeting of the Joint Liaison Group, held in 
Peking from 17 to 19 September 1996.
    A copy of the Joint Communique issued after that meeting is at 
Annex A. A copy of the press statement released by the British Senior 
Representative to the Joint Liaison Group in conjunction with the Joint 
Communique, recording at paragraph 7 the approval of the Chinese 
Government to the initialled agreement, is at Annex B. The HK/US 
Agreement for the Surrender of Fugitive Offenders was duly signed in 
Hong Kong on 20 December 1996 the United States Consul-General in Hong 
Kong and the Hong Kong Secretary for Security. The British Senior 
Representative to the Joint Liaison Group and a Chinese Representative 
to the Joint Liaison Group were present at the signing ceremony.
    Her Britannic Majesty's Embassy wishes to draw to the attention of 
the United States Department of State a statement issued by the Chinese 
Ministry of Foreign Affairs spokesman on 21 January, at Annex C. The 
British Government endorses the Chinese Government's statement that the 
Hong Kong-US Surrender of Fugitive Offenders Agreement shall remain 
valid after 30 June 1997.
    For Hong Kong's part, it will be necessary to enact legislation to 
enable this Agreement, and others like it, to be implemented in Hong 
Kong. Accordingly, a Fugitive Offenders Bill, which has been agreed by 
the Chinese Government through the Joint Liaison Group, has already 
been introduced into the Hong Kong Legislative Council. We are 
confident that this legislation will be enacted before 30 June.
    Her Britannic Majesty's Embassy avail themselves of this 
opportunity to renew to the United States Department of State the 
assurances of their highest considerations.
                                   British Embassy,
                                            Washington, DC,
                                                   24 January 1997.

                               __________

                                                    Annex A
 Joint Communique issued after the 17-18 September 1996 meeting of the 
                          Joint Liaison Group
    1. The Joint Liaison Group held its thirty-seventh meeting in 
Peking from 17 to 19 September 1996.
    2. The Group had a discussion about the Transfer of Government, 
including the transitional Budget and related matters, transfer of 
Archives, Government assets, the Handover Ceremony etc; matters 
relating to Hong Kong's international rights and obligations; Hong 
Kong's Air Services Agreements; Civil Service matters; the Defence of 
Hong Kong and Public Order; franchises and contacts extending beyond 
1997 and related matters (including the Railway Development strategy 
and Container Terminals); Investment Promotion and Protection 
Agreements between Hong Kong and relevant countries; Surrender of 
Fugitive Offenders Agreements between Hong Kong and certain countries; 
the Reciprocal Recognition and Enforcement of Judgements in civil and 
commercial matters between Hong Kong and foreign countries; 
Localisation of Laws, Adaptation of Laws; the Court of Final Appeal; 
the implementation of the provisions of the Joint Declaration relating 
to the Right of Abode in Hong Kong after 1997; Visa Abolition 
Agreements; and Vietnamese Migrants in Hong Kong (boat people and 
refugees).
    3. The next meeting of the Joint Liaison Group will take place in 
Hong Kong at a time to be decided.

                               __________
                                                    Annex B
 Press statement released by the British Senior Representative to the 
Joint Liaison Group after the 17-19 September 1996 meeting of the Joint 
                             Liaison Group
    1. I hope that you have all received copies of the press 
communique, which lists the subjects we discussed at this week's 
meeting. Before taking your questions, I would like to expand a bit on 
what is in the communique and give you a few personal impressions of 
how the meeting went.
    2. There are now less than 300 days to go before the handover, and 
both sides are acutely aware of the need to accelerate the pace of our 
work if we are to complete our agenda by 30 June 1997. This will be a 
key theme of Mr. Rifkind's meeting with Vice Premier Qlan in New York. 
Since JLG XXXVI, we have held a record number of expert meetings--22 in 
all--and a further three expert meetings have taken place in the 
margins of this Plenary. Those meetings have produced good results, and 
we have thus been able to gather a very respectable harvest of 
agreements this week.
    3. First, and perhaps most important, we have reached agreement on 
CT9. Ambassador Zhao and I signed an Agreed Minute earlier today, which 
makes it possible for the project to proceed without further delay. The 
HKG will now be submitting the matter to their Land Commission for 
approval of the Land Grant. This is excellent news for Hong Kong, not 
only because of the economic benefits that will flow from this 
agreement, but also because of the positive signal it sends to the 
international investment community. The HKG's objectives to enlarge the 
capacity of the container port and to introduce more competition among 
operators have been achieved. Everyone regrets the long delay in 
achieving the result, but the important point is that the deal is now 
agreed.
    4. We also signed an Agreed Minute on the Galaxy Satellite TV 
Licence--another franchise straddling 1997. That was very welcome, as 
it means there are now no long-outstanding contracts or franchises on 
the JLG agenda: (you will recall that the PCS issue licenses for the 
next generation of mobile phones) was successfully resolved last July.
    5. The second area where we made good progress was air services. We 
reached agreement on 2 ASAs--with Thiland and Burma (Myanmar). We also 
reached agreement on Hong Kong negotiating its own overflight 
agreements with various countries. Those are of vital importance to 
Hong Kong's civil aviation interest and we expect negotiations to begin 
in the near future. We still have a substantial backlog of work on air 
services, and little time in which to complete it.
    6. Further progress was made on the localisation of laws programme. 
Agreement was reached on the introduction in Hong Kong of Bills first 
relating to the Surrender of Fugitive Offenders and second relating to 
Civil Aviation, Carriage by air, replacing UK legislation on 
compensation for people who sustain injury or loss while using 
international air services.
    7. We also approved for signature an important new agreement with 
the USA on the Surrender of Fugitive Offenders. Arrangements can (copy 
unreadable) for the Hong Kong Government to sign the agreement with 
(copy unreadable).
    8. It was also agreed that Hong Kong could continue to participate 
in the International Civil Aviation Organisation. Our agreement ensures 
that Hong Kong will continue to be able to play a full role in the 
business of ICAO and derive the full benefits if ICAO membership.
    9. We also confirmed agreement at this meeting on the continued 
application to Hong Kong of a large number of multilateral agreements--
58 in all: a record number. These include 46 International Labour 
Conventions and 12 Conventions relating to amongst other things, the 
rights of women, and the elimination of racial discrimination. We also 
continued to make progress on the mechanism for the continued 
application of international rights and obligations to the Hong Kong 
SAR.
    10. We also made important progress on travel documents such as 
Documents of Identity, Hong Kong Re-entry Permits, and Seamens' 
Identity Books. The Chinese side confirmed that such travel documents 
in use before 1 July 1997 would continue to be issued until such time 
as new SAR documents were available. We have welcomed this sensible and 
pragmatic solution. Details will be worked out later between experts.
    11. In sum, this was a good JLG. We are not making serious 
progress. But we remain very conscious of the need to resolve many 
important issues including those relating to continuity of law in Hong 
Kong. Progress on adaptation of laws is not as fast as I would like, 
although experts agreed to meet again in early October. And the Chinese 
side have yet to live up to their undertaking, given at JLG XXXVI, to 
discuss with us the Garrison Law. Further discussions will also be 
needed on important immigration issues including Right or Abode and 
Visa Abolition Agreements, although good progress was made on those 
subjects at export level this week.
    12. During this JLG we also had a vigorous series of exchanges on 
the Provisional legislature. I made the British side's view very plain. 
We believe firmly that it is unjustified, unnecessary, and a serious 
disruption at a time when the great majority of people in Hong Kong 
want continuity and a smooth transition. I cannot claim that there was 
any meeting of minds on this matter. Finally, Ambassador Ahao and I 
have continued our discussions about the Handover Ceremony, but there 
is still more work to be done. We intend to press on hard with our 
exchanges in order to deliver a result in time for the Foreign 
Ministers' meeting in New York next week.

                               __________
                                                    Annex C
  CHINESE SPOKESMAN SAYS INDEPENDENCE OF JUDICIAL SYSTEM NOT AN ISSUE
                  Text of Report by Xinhua News Agency
    Beijing, 21st January: It is groundless to question the independent 
nature of the judicial system of the future Hong Kong Special 
Administrative Region (HKSAR), Chinese Foreign Ministry spokesman Shen 
Guofang stated at a regular press conference in Beijing today [21st 
January].
    Some correspondents asked: Recently, when a US district court was 
trying a case involving the extradition to Hong Kong of a Hong Kong 
resident named Jerry Lui Hin-kong, the independent nature of the 
judicial system of the future Hong Kong Special Administrative Region 
was called in question by some people. How would you comment on this?
    Shen answered: The Chinese government will resume the exercise of 
sovereignty over Hong Kong and establish the Hong Kong Special 
Administrative Region [HKSAR] on 1st July 1997. The Sino-British Joint 
Declaration and the Basic Law of the HKSAR stipulate that the laws 
currently in force in Hong Kong will remain basically unchanged; the 
laws previously enforced in Hong Kong, that is, the common law, rules 
of equity, ordinances, subordinate legislation and customary law shall 
be maintained, except for any that contravene the Basic Law, and 
subject to any amendment by the legislature of the HKSAR. The HKSAR 
shall be vested with independent judicial power, including that of 
final adjudication, and the courts of the HKSAR shall independently 
adjudicate cases in accordance with the laws applicable in the region, 
free from any interference.
    He continued: The agreement between Hong Kong and the United States 
on the surrender of fugitive offenders which had been approved through 
discussions by the Sino-British Joint Liaison Group and was recently 
signed shall remain valid after 1st July 1997.
    He said: In view of the foregoing, it is groundless to question the 
independent nature of the judicial system of the future Hong Kong 
Special Administrative Region.

Source: Xinhua news agency, Beijing, in English 1007 GMT 21 Jan 97

    Senator Thomas. Thank you very much.
    The concern will likely be the involvement of the PRC. What 
is the difference between this treaty, Mr. Richard, and the one 
that was in place, basically, with Great Britain?
    Mr. Richard. Well, of course, this treaty provides a 
broader scope of offenses that are covered by the agreement. 
Significantly, it has greater discretion with respect to the 
ultimate decision to extradite. It contains express provisions 
regarding political motivation and political offenses. It has 
limitations on extradition. It provides a humanitarian basis 
for denying extradition, which is not contained, to my 
recollection, in the U.K. treaty.
    The agreement with the U.K. does not provide assurances 
against transfers beyond the jurisdiction. The rule of 
specialty, I do not believe, is as well articulated in the 
existing agreement as it is in the current proposed extradition 
treaty. Finally, the political offense exception contained in 
this agreement is far more narrow than the U.K. treaty 
provides. The U.K. treaty provides that a political offense 
exception should not, in effect, be available involving any 
crime of violence.
    This agreement with Hong Kong is much more narrow in its 
scope, and just provides a political offense exception to 
extradition will only be available, if you will, for 
multilateral conventions that we are both parties to, as well 
as attacks on the head of state and close family members.
    So there is a lot of differences in form between the 
existing treaty and the new agreement. Many of them are 
designed to ensure that we have maximum flexibility in the 
administration of the agreement and a broader scope of coverage 
than exists in the current agreement.
    Senator Thomas. Who negotiated the agreement?
    Mr. Richard. The current agreement? A joint team between 
the State Department and the Department of Justice, along 
with----
    Senator Thomas. With whom? With whom did you negotiate?
    Mr. Richard. With the Hong Kong authorities, after 
receiving the appropriate endorsement for the beginning, or 
commencement, of extradition arrangements with the coordinating 
committee of the British, and the PRC.
    Senator Thomas. So this is unique, then? This is not a 
sovereign that you are dealing with, so there is approval, 
then, from the PRC for this treaty?
    Mr. Richard. That is correct.
    Senator Thomas. And is that why it is different from the 
previous one?
    Mr. Richard. Well, certainly that is a major difference. 
This is a unique situation. I am not familiar that we have any 
similar or analogous arrangement with any other subgovernmental 
component. I may be mistaken on that point. But it is unique 
and fashioned to accommodate the uniqueness of the situation. I 
think, as I indicated, it satisfies both our law enforcement 
needs and our need to ensure that we have maximum flexibility 
in its administration.
    Senator Thomas. Would you anticipate, Ms. Borek, any change 
or that there be any difference after the changeover? Do you 
think that there will be -- I presume that is one reason we are 
seeking to do it now, before the changeover, is that correct?
    Ms. Borek. Well, primarily, we would like to have it in 
force, to continue our extradition relationship. There is a 30-
day entry into force provision. So there is already going to be 
a bit of a gap. That interrupts the extradition relationship. 
That was the primary reason for trying to do it before the 
changeover. I do not think there should be any significant 
change as of July 1.
    As I say, there are some personnel changes, but they do not 
seem to be -- by and large, they seem to be encouraging. As Mr. 
Richard said, we do have the specific approval of the final 
agreement, specific authorization for its continuation in force 
by the PRC, as well as the U.K. so that is, I think, clearly 
established on all sides.
    Senator Thomas. I think you indicated in your statement 
that it prohibits interference under the Basic Law. Or on the 
other hand, is it not true that the PRC does retain control 
over foreign affairs, and that interpretation will be theirs as 
to whether or not the foreign affairs are the issue? Is that 
not true?
    Ms. Borek. Well, there is this one point of contact only I 
think in the criminal justice system. There is no mechanism or 
means by which they can interfere directly in the prosecution 
of cases and the actual actions of the executive branch simply 
by saying it is a foreign affairs matter. They have retained a 
certain ability in the extradition agreement, and this was 
something we negotiated and it was a fairly narrow exception, 
to refuse to extradite someone who was a Chinese national for 
foreign affairs reasons.
    They have also retained some flexibility -- basically a 
priority -- for Chinese nationals who are not Hong Kong 
residents, where there is a Chinese interest in prosecution. 
But the points of contact, I think, are specific. It is not 
like a wholesale ability to go in and just say, well, today I 
am going to do this because it is a foreign affairs thing.
    While they have authority over foreign affairs, there are 
particular mechanisms by which they are to exercise that 
authority. In the case of prosecution, there is no mechanism. 
In the case of the courts, there is this reserved authority for 
the National People's Congress Standing Committee, which I 
mentioned before.
    Senator Thomas. This is not a matter of prosecution; it is 
a matter of extradition, is it not?
    Ms. Borek. But I guess what I am thinking is what we are 
concerned about is that when we do extradite someone, that it 
be a fair prosecution and a fair trial.
    Senator Thomas. I see. You indicated, I think also in your 
statement, that the majority of our extradition requests have 
been for Chinese nationals who are residents in Hong Kong.
    Ms. Borek. Yes.
    Senator Thomas. Would you not expect there to be some sort 
of resistance to that sort of extradition, maybe based on 
foreign policy or foreign affairs?
    Ms. Borek. Not as a general principle. The agreement 
establishes the presumption that there would be extradition of 
nationals. This is something that was clearly articulated and 
understood by everyone in the negotiation process. Also I might 
say that, in the areas which we are talking about -- for 
example, drugs -- the People's Republic of China does have an 
interest also in seeing that people are prosecuted. At the 
higher levels, they have a very aggressive policy against drugs 
independently, even though we do not have a very much 
cooperative effort in that regard.
    Senator Thomas. What if you, Mr. Richard, did not have 
cooperation on the extradition, and let us say it is claimed 
foreign involvement, what would you do about it? What is the 
relief valve for the United States?
    Mr. Richard. Well, that would be a very significant event 
if we did not have an extradition relationship, given the 
significant role that Hong Kong currently plays.
    Senator Thomas. Excuse me a second. Can you hear in the 
back of the room?
    Mr. Richard. I am sorry.
    Senator Thomas. Pull that up a little closer, if you will, 
sir, please.
    Mr. Richard. Given the nature of the law enforcement 
problem that we have been confronting in Hong Kong for quite a 
while, with respect to money laundering and other related 
offenses, the failure to have a viable extradition relationship 
would be a very significant blow to our law enforcement 
interests. It would, in effect, establish Hong Kong as a major 
safe haven, if you will, for criminal activity.
    Senator Thomas. I understand that. I think my question is, 
if you ask for extradition, but for some reason or other, you 
think it should be done under the treaty, but the PRC steps in 
and refuses it, what do you do about it? We just had a hearing 
last week, for instance, on I think prison work or something. 
In 4 years, we were never given the chance to do anything about 
it. So I guess a lot of people will be a little concerned that 
we are going into a treaty, but is it enforceable? What do you 
do?
    Mr. Richard. Well, the treaty uniquely provides that a 
denial should be accompanied by an explanation of why it was 
denied. If we see that the agreement is of course being 
perverted, if you will, in its application, we would then have 
to assess it.
    We would determine or attempt to determine where that is 
coming from, and whether it is unique to the nature of the 
persons we are seeking or the nature of the crimes we are 
looking at and then, hopefully, in conjunction with our State 
Department colleagues, devise an effective response. This, 
though, is no different than other extradition relationship we 
have around the world.
    Senator Thomas. It is different in that you are not dealing 
with a sovereign here, is it not?
    Mr. Richard. Well, it is in the sense that, yes, our 
initial contact points are with the Hong Kong authorities. But 
in the sense that we have a treaty partner who is not 
implementing the agreement in good faith, it presents us with 
the same types of challenges -- how do we bring the appropriate 
pressure and in what arena and in what multiple arenas? And 
that is not going to be unique to this particular situation.
    Senator Thomas. I see.
    We have been joined by two other Senators.
    Senator Robb, do you have a comment, sir, and questions?
    Senator Robb. Thank you, Mr. Chairman. I apologize. I had 
two other meetings and I was unable to be here for the opening 
testimony, but I have been visited over the last couple of 
years by individuals who were concerned about the prospects 
that are addressed in this particular hearing. One in 
particular, I just might ask you, because of his prior 
relationship to the State Department and what have you, Judge 
Abe Sofaer, had expressed real concern about the extradition 
treaty as it appeared to be developing at that time.
    Now, I do not know whether you covered this in your opening 
statements, and if you have, you need not go into any great 
detail, but I would be interested in terms of the objections 
that he raised generally.
    First of all, have either of you had an opportunity to 
discuss those concerns that he raised with him, particularly 
with respect to extradition, where there might be political 
motivation involved or extra territorial allegations of extra 
territorial conduct that might or might not fall under the 
treaty?
    Ms. Borek. He has not raised with the State Department, at 
least to my knowledge, specific concerns about the extradition 
treaty. I do not know at what stage he would have been talking 
about it. At present, there is a protection against having to 
extradite when there is a politically motivated prosecution. 
That is one of the somewhat unusual features.
    Senator Robb. But who makes the determination? I guess that 
is the question.
    Ms. Borek. The Secretary of State.
    Senator Robb. And that is not subject to interpretation or 
review?
    Ms. Borek. No, it is in the category of considerations to 
which the Secretary usually looks at.
    Also on the extra territoriality, I do not think we expect 
that to be a problem. That is something which we would be 
having a relationship in those areas in which Hong Kong and the 
United States both approach the question in the same way as far 
as extra territorial crimes. Obviously, when you are dealing 
with international organized crime and money laundering and 
drugs, you do have activities which take place in those two 
countries.
    Senator Robb. Specifically, and I apologize, it has been 
some period of time since I discussed this and I have just been 
involved in other matters this morning, but have either of you 
or your respective Departments of State or Justice had occasion 
to deal with the concerns that were raised at the time?
    I state it in this manner only because it seemed to me that 
this was the kind of thing that there ought to have been some 
consultation, if indeed there were legitimate concerns that 
might have been addressed in that way. My question has to do 
with whether or not there has been consultation between the 
Department of State and/or the Department of Justice with him, 
or if you have had any communications one way or another?
    Mr. Richard. I cannot answer that question at the moment. I 
assume there was plenty of opportunities, if you will, between 
the prosecutors that handled the case and the defense counsel 
for this issue to come up. But I do not know specifically if 
that did. I would be glad to find out and let you know.
    Senator Robb. I would not normally state it in terms of a 
specific individual, but I remember there were concerns that, 
at least as they were presented, seemed to me were worthy of 
consideration. I did not know whether those had been resolved.
    One last question, if I may. What kind of signal would this 
send to both the Hong Kong and the PRC and other nations if the 
Senate did not ratify in this particular instance?
    Mr. Richard. Well, I mean, from a law enforcement point of 
view, it would be a very significant step. It would certainly 
undercut our ability to try to maintain, if not improve upon, 
our current law enforcement arrangements. It would certainly 
weaken our ability to respond to international organized crime 
and narcotics, and it would be a very significant blow, not 
just to our relationship with Hong Kong or the PRC, but also to 
our attempt to mobilize the international community, as a 
community, to address these problems.
    It requires a matrix of agreements and arrangements around 
the world. For us not to have a viable relationship with the 
Hong Kong authorities would be a very significant message and a 
significant blow to our effectiveness.
    Ms. Borek. Let me add that I think I can say that, with 
regard to the specific case that Mr. Sofaer was concerned 
about, this treaty speaks very directly to helping that case. 
Because the particular concern there was that someone might be 
resurrendered to the PRC. This treaty contains express, 
specific safeguards that no one who is extradited either under 
it or prior, even now, would be resurrendered for other crimes 
as this individual was concerned about. We think that is, in 
any case, the rule. But the treaty would be of assistance in 
that it makes that rule very clear.
    The reaction in Hong Kong demonstrates that they are very 
much concerned to have an extradition relationship and very 
much distressed, I think, across the board -- people of all 
different political opinions -- to think that we would take the 
position now that they have no autonomy, that there is no point 
in even pursuing the agreement because they are just puppets of 
the PRC. I think that is a very negative and distressing signal 
from the point of view of even in Hong Kong.
    Senator Robb. A final question. Did either one of you 
during the course of your testimony -- and I will rely on the 
testimony that you have submitted and the record of this 
hearing for any additional information, and if there are other 
questions, I will submit them in writing -- but were there any 
reservations that either of you expressed about the treaty at 
this point, or are both Departments solidly behind 
ratification?
    Mr. Richard. I think, speaking for the Department, we are 
very pleased with the agreement. But it would be foolish for 
any of us not to be sensitive toward these concerns. I think we 
all have concerns. But they are not unique in the sense that we 
have concerns under other extradition treaties that require a 
certain level of vigilance to ensure that the systems are in 
fact affording extraditees due process and the like.
    The system as currently established, and which has worked 
very effectively over these years, is to provide the Secretary 
of State the final judgment of whether or not to issue the 
surrender warrant after a judicial finding of extraditability. 
That has always been a safeguard, if you will, to address 
problems across the board, regardless of the provisions in the 
treaty. This treaty, though, goes further, because it 
articulates in greater detail all of the variety of 
considerations that can be taken into account in making a 
decision of extraditability, and a decision to in fact issue 
the surrender warrant.
    So it is not a question of reservations, it is a question 
of ensuring that we monitor the situation as we go along, in 
consultation with the Congress, and evaluate if there are 
emerging trends that give us concerns.
    Senator Robb. Thank you.
    Ms. Borek, would you like to add anything to that?
    Ms. Borek. No, I think that is exactly right. This is a 
good treaty for the situation. We will have to, obviously, pay 
attention to the administration of the treaty.
    Senator Robb. Thank you.
    Thank you, Mr. Chairman.
    Senator Thomas. Senator Kerry, glad to have you, sir.
    Senator Kerry. Thank you, Mr. Chairman.
    Thank you for proceeding forward in a timely manner on this 
treaty, which is obviously important in the context of events 
coming up at the end of the month.
    Since 1991, I think 64 people have been extradited from 
Hong Kong to the United States, 56 of whom were extradited for 
drug-related offenses -- drug crimes, drug-related offenses -- 
whereas, in that same span of time, only seven people have been 
extradited from the United States to Hong Kong. So there is 
clearly a compelling need for the United States to continue to 
have this relationship in place. Obviously, I guess there were 
13 white collar crimes and 24 violent crimes, including murder 
and rapes. So, on all levels, it has proven to be very 
important to us.
    The principal concern I guess most of us have is the sort 
of escape hatches and their definitions, the Article 16 
prohibition -- are you confident, both of you -- and this is 
the principal concern I think I have -- that the insurance 
represented in Article 16 is adequate?
    Mr. Richard. Well, I think even without the provision, 
under existing arrangements and domestic law, the Secretary of 
State would always retain the option to deny extradition in 
circumstances where she feels uncomfortable for whatever 
reason. I think this goes a step further, because it 
incorporates that concept in the context of the agreement 
itself.
    Senator Kerry. Well, it goes a little further than that, 
does it not, Mark, in the sense that it -- you are not allowed 
to transfer somebody from Hong Kong to Beijing without our 
agreement?
    Mr. Richard. Our consent, that is correct.
    Senator Kerry. But that is after we have already agreed to 
transfer him. We could transfer them to Hong Kong, and they 
could subsequently make a decision to send them to Beijing?
    Mr. Richard. Well, they would have to seek our concurrence.
    Senator Kerry. Correct. I am asking you whether we are 
feeling safe enough about the context of the treaty that that 
request is going to be forthcoming, or that we have adequate 
recourse in the event it were not?
    Mr. Richard. I would have to say, under the circumstances, 
this probably goes as far as one could imagine going to ensure 
that we have maximum control and authority here. The difficulty 
may be, and I cannot address it, is our ability to monitor, for 
example, subsequent incarceration and location.
    I would hope, and I cannot speak from special knowledge, 
that there would be a sufficient continued nexus between our 
consular in Hong Kong and these individuals, so that we are 
monitoring them where they are incarcerated, and if there are 
any other proceedings instituted against them. Obviously, if 
there is any indication that we have a problem with that, we 
would have to respond to it in a forceful, diplomatic fashion.
    Senator Kerry. I would think it would have to be a 
requisite that there be that kind of accountability or 
tracking.
    Mr. Richard. Sure.
    Senator Kerry. It would be critical, obviously.
    When you say respond to it, what would the treaty, per se, 
allow us to do in response to it? I assume we would hold up on 
any further extraditions.
    Mr. Richard. Well, I would hope -- I mean it is not 
explicitly contained there -- but I would hope that we would 
have the ability to interview the individuals directly, to 
gather information as to his or her treatment and to take 
whatever action we think is appropriate in response to what we 
perceive to be a violation. I assume that the primary response 
would be in the diplomatic arena, to bring pressure for 
compliance.
    This is an agreement that, based on prior statistics, is 
somewhat lopsided, in that we are getting more people back than 
we are given. The fact that we are expanding the number of 
offenses suggests that this disparity in usage will expand with 
the years under this agreement, because we now have more 
offenses that we are particularly interested in. So, if 
anything, this disparity will continue and expand.
    But with respect to these individuals that are extradited 
from the U.S. there, we will have to establish regimes to 
position ourselves so as to effectively monitor it. But I am 
not sure, again, given the 90 or so extradition arrangements we 
already have with countries, that we do not have the same 
obligation, if you will, with respect to those individuals. We 
should be always monitoring what happens. All of the treaties 
we have preclude prosecution for offenses not covered by the 
extradition request.
    We have to ensure that wherever the treaty is, that that is 
adhered to. It is a fundamental principle of extradition. 
Especially in this circumstance, we would have to monitor it 
even more closely, to ensure that we have full compliance.
    Ms. Borek. May I add to that?
    I think we do not really have to wait until there is a 
problem. Right now, under Hong Kong law, in fact it is not 
possible to transfer someone to the PRC. But they will be 
expecting to develop arrangements. The arrangements they now 
have make it clear, as a matter of domestic law, that they 
cannot transfer someone to another jurisdiction without the 
consent of the United States. So even leaving aside the treaty 
obligation, even under Hong Kong law at present, there is no 
way that they could violate that obligation.
    We will, of course, be watching any developments in this 
area that are relevant. If there seem to be a potential even 
for something to occur which was not consistent with the 
treaty, then I think we could intervene at that stage. Hong 
Kong is not a big place, and I think we should be able to have 
a very detailed idea of what is going on.
    Mr. Richard. Let me, if I may, just add one thought. We had 
specifically included in our statements the fact that this 
extradition arrangement is analogous to other countries 
arrangements with the PRC and Hong Kong. There are, at least at 
this present time, I think five or six additional countries 
that have similar agreements, and I suspect -- I mean these are 
all of our allies -- I suspect that we will be in consultation 
with them, to the extent that we detect problems emerging in 
their extradition relationships.
    We have a variety of additional options of working, even in 
a concerted way, to ensure that there is full compliance. So, 
it is a situation that is going to have take careful monitoring 
in the years ahead. But I think the risks, while apparent, are 
nevertheless, appropriate to be taken under the circumstances.
    Senator Kerry. I assume, in your opening testimony, which I 
apologize also for not being able to be here for, that you 
commented on the general sort of importance of this. But could 
you just underscore, in the context of the interests we have in 
the region and of our crime fighting, how critical it is in 
your judgment to have this or not have this and what it might 
mean? Just underscore that.
    Mr. Richard. Well, Hong Kong is unique in so many different 
ways. It is a financial center, and is one that has 
historically been a hub of money laundering. We enjoy an 
extremely good relationship with the Hong Kong authorities 
addressing this problem. We now have, under this agreement, an 
expansion of the coverage in money laundering. So it is not 
just money laundering predicated on narcotics offenses, but it 
is money laundering predicated on any other extraditable 
offense. So money laundering is a major problem in Hong Kong, 
and one that this agreement is critical for. Otherwise, we are 
creating a safe haven for offenders. But it is not just limited 
to narcotics trafficking.
    Because of its location, it has been a major source of 
customs violations. It is a major source of white collar crime, 
of actual narcotics trafficking, a whole litany of offenses, 
including intellectual property offenses, all of which are 
frequently centered out of Hong Kong because of the financial 
nature of the Colony, the transportation ease and the location, 
and the fact that it plays a critical part in regional law 
enforcement events.
    Our whole Asian organized crime strategy, in part, is 
predicated on the availability of a good and viable law 
enforcement relationship with Hong Kong authorities. Remove 
that relationship, and I think we have significant impediments 
to devising effective responses. So I see dire consequences to 
U.S. interests, both law enforcement and interests across the 
board, if we do not maintain a viable relationship with this 
entity.
    Senator Kerry. Thank you, sir. I appreciate your comments. 
I just wanted the record to reflect that.
    Thank you, Mr. Chairman.
    Senator Thomas. Thank you very much.
    This agreement gives the sovereign the right to refuse 
extradition where the surrender would implicate defense, 
foreign affairs, essential public interests of policy, or other 
sovereignty. How do you interpret this provision, Ms. Borek?
    Ms. Borek. Well, this is up to each party to interpret for 
themselves. We are assured -- we were assured, in the course of 
negotiations by the Hong Kong Government and also after 
consultations with the PRC, that this would not be an everyday 
exception, that this would be something they expected to 
invoke, if at all, very, very rarely. I think the same is true 
for us.
    In our case, I think if we had a concern about -- if for 
some reason we did have a concern that there was a request for 
extradition that just presented sort of an insurmountable 
temptation for someone to do something untoward, that might -- 
I would consider that an essential public interest on our part.
    On the part of China, I expect that this would operate if 
we sought the extradition of someone who was in fact an 
official or for something which the central government had done 
which it did not wish to be subjected to jurisdiction for. I 
think that is the most likely thing in that case.
    There are many countries with whom we do not have any 
provision for the extradition of nationals as a matter of 
obligation. But we thought it was very important in this case 
because we do seek a lot of Hong Kong residents.
    Senator Thomas. Sure. I think the concern, and I think a 
legitimate one, is that you talk about other countries, and 
certainly there are, but this is a unique agreement. This is an 
agreement with a party that is not a sovereign.
    Now, you say, and it is true apparently, there is agreement 
with the PRC. Nevertheless, I think it is fair to say that one 
of the difficulties has been the enforcement of treaties with 
the PRC. I cited one a few moments ago, about the prison labor 
and some others. So there is an inquiry, at least on the part 
of Members of Congress, as to what you are going to do about 
it. What we usually hear from the State Department or Justice 
is, well, we will talk to them at the highest levels.
    Well, that is not a very satisfactory answer. That is kind 
of what we hear all the time. So I think that is where you will 
find some concern in this particular agreement, which is 
unique.
    On Article 16 and the idea of a transfer, but no transfer 
without consent, so it does not prohibit such transfers, what 
would be your view if the Senate changed that to prohibit 
transfers?
    Mr. Richard. Well, one, it would be problematic whether the 
other side would agree to such a change. It would probably 
incur a very significant hiatus in any agreement and, in 
effect, terminate for an unspecified period of time an 
extradition relationship. Frankly, I think to the extent we 
already are required to give our approval before it is done, I 
am not sure that we do not have sufficient assurances.
    Let me give you an example. Let us assume that an 
individual extradited there wishes to be transferred for the 
fact that his or her family is located in the PRC and would 
like to be situated in such a location where he or she has more 
frequent contact with them and that the prisoner wants to move 
and we are convinced that this is done in sincerity, would we 
agree or not agree? I do not know. But that provision would 
preclude us even considering it for humanitarian reasons.
    I would suggest that it just might not be necessary to 
accomplish that purpose. If they are going to ignore the 
agreement, they will ignore that provision, just like any other 
provision, if they choose to do that. The key, I would suggest, 
is oversight and monitoring, rather than worrying about 
specific provisions.
    Your opening remark, I think was right on the money when 
you said the best agreement is worthless if it is not 
implemented in good faith and effectively. I think we have a 
good agreement. Whether it will be implemented in good faith is 
of course the question and one that we will have to monitor and 
work with you to ensure that we have compliance in the spirit 
of the agreement.
    Senator Thomas. The agreement explicitly recognizes the 
executive authority as the competent authority in the United 
States. It is silent about the issue for Hong Kong. What entity 
is the competent authority for Hong Kong?
    Mr. Richard. My understanding is, and I may be mistaken, is 
that it is anticipated that it will probably, at least in part, 
be their judicial authorities.
    Senator Thomas. Why do we be explicit about it for the 
United States and not for Hong Kong?
    Mr. Richard. Because we have historically tried to avoid 
taking what we consider to be essentially political issues and 
making them subject to judicial review. We think it is a 
separation of powers issue on our part. These are essentially 
judgments to be made by the Secretary of State, rather than our 
courts.
    Senator Thomas. But we could accomplish that without having 
it in the agreement, if they do not have it in their agreement.
    Mr. Richard. Well, without it in the agreement, we are 
laying ourselves open to an assertion as to who makes those 
calls. You have a litigable issue immediately presenting itself 
to our courts. By articulating who has the authority, which is 
a reflection of existing authority----
    Senator Thomas. We do not normally articulate how we are 
going to behave in the United States in treaties with others, 
do we?
    Mr. Richard. No, but we are trying to avoid unnecessary 
litigation in the United States on this point.
    Senator Thomas. So we do it through a treaty with another 
country?
    Mr. Richard. No, no. We do it through articulating what is 
in fact the common practice.
    Senator Thomas. It just seems a little odd that we would 
articulate our behavior but not expect them to articulate 
theirs in a treaty.
    Mr. Richard. Well, I am not sure that, for our purposes, it 
matters that much as to who is making the decision. Now, it is 
the same thing in many other treaties, where decisions that are 
traditionally made by our executive branch in the U.S. are, in 
other countries, traditionally made by the courts.
    Senator Thomas. Well, we are not communicating. I am 
saying, if it is our decision, we make that decision without 
putting it in a treaty with another country.
    Mr. Richard. Sure. Sure.
    Senator Thomas. Well, I think we have covered -- Article 16 
seems to be the most contentious among the articles, as you 
have pointed out.
    Do you have any further comment? Yes, ma'am?
    Ms. Borek. Could I speak a little bit to the question of 
compliance? Because this is something that we started out with 
as well.
    The original thought was very much more focussed on how to 
ensure the compliance by the People's Republic of China in this 
agreement, given that they were not a direct party. But the 
more we went into the actual arrangements for Hong Kong, the 
more it became clear that the Hong Kong Government actually has 
the power itself, and we were assured of this -- it is not only 
our reading, but we were also assured of this by everyone we 
met with in the Hong Kong Government -- to comply or not comply 
with the agreement.
    So what we are really talking about here, fundamentally, is 
will the Hong Kong Government comply with this agreement? If 
the People's Republic of China is going to interfere with the 
agreement, it is going to be in some very dramatic, wholly 
flagrant fashion, like just grabbing somebody completely off 
the street. But under the agreement, the Hong Kong Government 
really does have the power itself to decide whether to comply 
with the agreement or not.
    In that area, I think the risks are more subtle and long 
term, and that if we were looking at a deteriorating situation, 
it would be something not overnight, but something where we 
would have an opportunity to see that things were deteriorating 
and to take steps before there was a problem, rather than 
afterwards. I think that is the most comforting feature of this 
treaty, is that we are not really looking to the People's 
Republic of China to comply with it, we are looking to the Hong 
Kong Government.
    Senator Thomas. Sure. Well, and of course, that is the 
concern everyone has, in terms of the turnover, is, will Hong 
Kong have the ability to do that? We hope so. Expect so. But if 
they do not, then it will be another question.
    In addition to U.S. ratification, Hong Kong needs to 
approve legislation to bring this into force. Do you know the 
status of that?
    Ms. Borek. They have general legislation in force, and the 
special legislation that will add us to it is basically laid on 
the table so that they can bring it into force as soon as we 
are ready to bring it into force.
    Senator Thomas. Then this will be done by the original 
Legco?
    Ms. Borek. Well, it is an executive order. No, the way it 
works is it is an executive order that adds us to the general 
legislation, which has already been passed. So it designates us 
under it.
    Senator Thomas. Thanks to both of you, I appreciate your 
being here. Thank you very much for your response. You may get 
some more questions in writing as the record stays open.
    Mr. Richard. Thank you.
    Senator Thomas. The committee will be adjourned.
    [Whereupon, at 11:05 a.m., the hearing was adjourned, 
subject to the call of the Chair.]



                            A P P E N D I X

                              ----------                              

                 United States Department of State,
                                      Washington, DC 20520,
                                                     July 11, 1997.
The Hon. Jesse Helms,
Chairman,
Committee on Foreign Relations,
U.S. Senate.

    Dear Mr. Chairman: Following the June 3, 1997 hearing at which the 
Honorable Jamison S. Borek testified, additional questions were 
submitted for the record. Please find enclosed the responses to those 
questions.
    If we can be of further assistance to you, please do nothesitate to 
contact us.
        Sincerely,
                                    Barbara Larkin,
                                       Assistant Secretary,
                                               Legislative Affairs.
   Responses of Jamison S. Borek to Questions Asked by Senator Helms
    Question 1. The Hong Kong Agreement is unprecedented in that the 
U.S. has negotiated a treaty with a party that is not a sovereign, has 
been signed by the party not the sovereign, yet the authority to sign 
the treaty is granted by the sovereign (but in this case both the 
United Kingdom and the People's Republic of China have given that 
authority through the process established by the Joint Liaison Group, 
established to facilitate the transfer of Hong Kong rule).

   Is the precedent of this Agreement limited to the Hong Kong 
        situation?
   Will this Agreement provide the State Department with a 
        precedent for other unusual treaty relationships?
   What are the potential pitfalls of treaty enforcement as a 
        result of this unusual treaty relationship?
   Are you confident that the PRC will respect this Agreement 
        and involve itself only where its authority is explicitly 
        recognized?

    Answer. Hong Kong presents a unique situation. The United States 
has a long history of direct involvement with Hong Kong as a crown 
colony of Great Britain, including an active law enforcement 
relationship. Given the importance of our law enforcement interest and 
the autonomy of the Hong Kong criminal justice system after reversion, 
as set forth in the Joint Declaration and Basic Law, we have every 
reason to continue that relationship. we do not know of or currently 
anticipate another situation that would be addressed in the same way.
    We believe that the treaty can be successfully implemented because 
it is the Hong Kong government and not the PRC which has the power and 
authority to fulfill its obligations under the treaty.
    We expect that the PRC will respect this Agreement; indeed, it has 
provided us with a diplomatic note expressly confirming its support of 
the treaty. Furthermore, the relationship between the PRC and Hong Kong 
in this area is spelled out in the Joint Declaration and Basic Law, and 
we expect the PRC to honor its commitments under both.
    Question 2. The treaty gives the Secretary of State the ability to 
refuse extradition where there is a concern that the request for 
extradition is politically motivated. What investigation will be 
undertaken prior to extradition to ensure a request is not politically 
motivated? Are you confident that this provision will give the U.S. 
adequate basis for refusal of extradition if the U.S. loses confidence 
in the Hong Kong judicial system?
    Answer. This provision exists in most modern treaties. For Hong 
Kong, as with other countries, the Department will review any requests 
that might be politically motivated and determine in each case how best 
to proceed, including how best to obtain further information. The 
fugitive will also be likely to raise the issue if he or she believes 
that such a finding should be made and has the right to present written 
materials to the Secretary of State for her consideration in making the 
determination.
    This and other provisions of the treaty provide the United States 
with ample grounds for refusing extradition of a fugitive if 
circumstances warranted that result. If the United States were to lose 
confidence in the Hong Kong judicial system altogether, however, it 
would be able to terminate the treaty.
    Question 3. What recourse does the U.S. have when the Hong Kong 
Government refuses to extradite in contradiction to a treaty provision?
    Answer. As with any other treaty partner, the United States would 
assess the circumstances giving rise to the refusal to extradite and 
take whatever steps it felt were appropriate with the government of 
Hong Kong to reach a satisfactory resolution. Successful implementation 
of extradition treaties depends on the continued willingness to 
extradite on both sides. Ultimately, the treaty is terminable by either 
party with six months notice.
    Question 4. Article 16 of the treaty regarding the transfer of 
persons to third parties does not completely prohibit such transfers. 
Instead, Article 16 provides that persons may be transferred with the 
express consent of the Requested country. Is there any instance in 
which the United States would consent to a transfer to the PRC? If so, 
please explain. If not, why did negotiators not agree to a prohibition 
against transfers to other jurisdictions?
    Answer. Under current circumstances, the United States would not 
anticipate consenting to the transfer of a person by Hong Kong to other 
parts of the PRC except as an exceptional matter. While any 
circumstances in which we might consent are at this point hypothetical, 
one could imagine, a situation in which the prisoner wished to be 
transferred to the PRC, for instance to be reunited with family.
    Retransfer with the consent of the Requested party is a standard 
provision in modern extradition treaties. While it would give the 
Secretary of State the discretion to consent to transfer to other parts 
of the PRC, its reach is much broader. If a fugitive were extradited by 
one Party to the other on fraud or other charges, for instance, this 
language provides a means for either Hong Kong or the United States to 
agree to retransfer to another treaty partner, such as the United 
Kingdom, for trial for murder or terrorist offenses.
    Question 5. Would you support the addition of such a prohibition by 
the Senate in its resolution of ratification?
    Answer. We would not support the addition of such a prohibition, 
which would delete a valuable authority in the treaty. The ability of 
one treaty partner to agree to a request from the other for the 
retransfer of a fugitive is a recognized principle of international law 
and a valuable tool in fighting international crime. As noted above, 
the retransfer provision is not limited to transfers from Hong Kong to 
other parts of the PRC but provides a mechanism for transfers by either 
Party to a third state. Without the ability of the requested Party to 
consent to retransfer, a fugitive extradited to either Hong Kong or the 
United States could effectively find refuge from being sent to a third 
State that sought him for other, possibly more serious, offenses.
    Even assuming that a limitation concerned only United States 
consent to transfers to other parts of the PRC, such a prohibition is 
unnecessary and could even be harmful in some cases, for instance where 
the goal is reuniting a family and the prisoner consents. Furthermore, 
such a prohibition would be a permanent restriction on what would 
otherwise give the Secretary of State the ability to respond to 
changing circumstances. Extradition treaties have been in force with 
some of our treaty partners for over a hundred years, a period of time 
in which the PRC could evolve in such a manner that decisions on 
transfer would be viewed in a different light.
    Question 6. The Agreement does not explicitly apply to 
extraterritorial offenses, although the State Department's Legal 
Adviser's Office has said that the parties will determine its 
application on a negotiated case-by-case basis. Does the failure to 
explicitly provide for extraterritorial offenses make the treaty 
sufficiently vague to give a reluctant Requested State ``wiggle room'' 
to avoid its possible obligation to extradite individuals for crimes 
committed outside its territory?
    Answer. The understanding between the parties is that Hong Kong 
would extradite for extraterritorial offenses if it would have 
extraterritorial jurisdiction over an offense committed outside its 
territory in similar circumstances. This is the agreement embodied more 
often than not in modern U.S. extradition treaties. We do not 
anticipate that either Hong Kong or the United States will use the 
absence of such language as a basis for refusing extradition.
    Question 7. The Agreement gives the sovereign the right to refuse 
extradition when surrender would implicate the ``defense, foreign 
affairs or essential public interest or policy'' of either sovereign. 
How does the State Department Legal Adviser's Office interpret this 
provision? Can you cite an example of a case in which this would be 
applied?
    Answer. This provision was included at the request of Hong Kong, 
primarily in recognition of the role of the PRC as the sovereign 
responsible for Hong Kong's foreign affairs and defense. We anticipate 
that this provision would, for instance, be relied upon if we were to 
request extradition of a PRC government official for offenses that the 
PRC regarded as official acts. While both sides indicated that they did 
not anticipate exercising this authority except in rare instances, for 
the United States, the reference to ``essential public interest or 
policy'' could conceivably be a relevant protection in an individual 
case, especially if conditions were to change significantly in Hong 
Kong.
    Question 8. The Agreement explicitly recognizes the executive 
authority as the competent authority for the United States but is 
silent on the issue for Hong Kong. What entity is the competent 
authority for Hong Kong? What role will the PRC play in the designated 
competent authority?
    Answer. We understand that for Hong Kong the ``competent 
authority'' in Articles 6(3) and 7 is likely to be the judiciary. In 
Article 8 (3) , concerning the issuance of arrest warrants, the 
``competent authority'' for both the United States and Hong Kong would 
be a member of the judiciary empowered to issue such warrants. In other 
articles (e.g., Articles 3 and 11), as indicated in the treaty, the 
competent authority for Hong Kong is the executive. In each case these 
will be authorities of the Hong Kong Special Administrative Region, not 
of the central government of the PRC.
    Question 9. What were some of the principal disagreements between 
the Parties during the negotiations?
    Answer. The negotiation of this treaty began with the rather 
unusual situation of each Party presenting a model text, thus giving 
rise to a number of issues to be addressed. These included, for 
instance, Hong Kong's preference for a list of all extraditable 
offenses in Article 2 as opposed to our strong preference for ``dual 
criminality'' language, which avoids the need to amend a treaty as 
changes are made to one or both Parties, criminal laws. In the end, the 
two approaches were combined so that, although the list remains, the 
last item in the list captures the dual criminality approach. 
Similarly, the two Parties had different approaches to the extradition 
of nationals. Hong Kong wanted rather broad exceptions to the 
obligation to extradite nationals while the United States preferred 
narrower grounds for denial of a request to extradite. The result in 
Article 3 provides a balanced compromise, with potentially useful 
protections for both Parties.
    Question 10. Unlike the U.S., in addition to ratification of the 
Agreement, Hong Kong must approve legislation to bring this Agreement 
into force. What is the status of that legislation?
    Answer. Hong Kong had no requirement for ratification but did have 
to enact a Surrender of Fugitive Offenders ordinance to provide a 
legislative basis for implementing the treaty. That Ordinance went into 
operation April 25, 1997. Subordinate legislation under the Ordinance, 
the Fugitive Offenders (United States of America) Order, specifically 
permitting the U.S.-Hong Kong agreement to be implemented, has also 
been made. It will be brought into operation on the same day that the 
Treaty enters into force.

                               __________

   Responses of Jamison S. Borek to Questions Asked by Senator Biden
    Question 1. Does the term ``any lesser offence'' in Article 
16(1)(b) mean a lesser included offense as that term is understood in 
U.S. law?
    Answer. Yes, this language would cover a lesser included offense. 
It is possible in a given case, depending on the facts, that other 
related offenses of a less serious nature could be covered, even if 
they were not technically ``lesser included offenses,'' so long as they 
were themselves extraditable offenses.
    Question 2. What is the ``competent authority'' for Hong Kong?
    Answer. Articles 6(3) and 7 prohibit surrender in situations where 
``the competent authority of the requested Party, which for the United 
States shall be the executive authority,'' finds that the request was 
politically motivated, would result in discriminatory treatment or 
would entail exceptionally serious consequences related to age or 
health. We understand that for Hong Kong the ``competent authority'' in 
these two situations is likely to be the judiciary. In Article 8(3), 
concerning the issuance of an arrest warrant, the ``competent 
authority'' for Hong Kong refers to a member of the judiciary empowered 
to issue such warrants. In other articles (e.g., Articles 3 and 11), as 
indicated, the competent authority for Hong Kong is the executive.
    Question 3. In Article 6(3) and Article 7, the treaty states that 
the ``competent authority of the requested party, which for the United 
States shall be the executive authority . . . .''

   Who is the ``competent authority'' for the United States 
        under Article 8(3) and Article 9(a)(ii)?
    Answer. In Article 8(3), for the United States the ``competent 
authority'' would always be a judge or magistrate judge.
    In Article 9(a)(ii), the United States will use the official seal 
of the Attorney General, which is in turn authenticated by the 
Secretary of State.
    Question 4. What does the offense ``criminal damage'' set forth in 
Article 2(1)(xviii) encompass?
    Answer. ``Criminal damage'' covers the broad category of vandalism, 
including property damage. As with any other offense, to be 
extraditable, it would have to be punishable by imprisonment for more 
than one year or by a more severe penalty.
    Question 5. Does the term ``kidnapping'' as used in Article 2(1)(v) 
include parental abduction, such as the offense of international 
parental abduction set forth in 18 U.S.C. 1204?
    Answer. Yes, in the view of the United States the term 
``kidnapping'' includes parental child abduction, so long as that 
offense is punishable by imprisonment or other form of detention for 
more than one year, or by a more severe penalty. International parental 
abduction (18 U.S. C. 1204) meets that test. Whether or not Hong Kong 
views ``kidnapping'' as extending to this offense, the offense is 
covered by Article 2(1)(xxxvi), which covers any dual criminality 
offense so long as it is punishable by more than one year, or by a more 
severe penalty, and so long as surrender is not prohibited by the laws 
of the requested Party.
    Question 6. The Sino-British Joint Declaration states that the 
basic policies of the People's Republic of China regarding Hong Kong 
will ``remain unchanged for 50 years.'' (para. 3(12))

   Is there any understanding between the parties that the 
        Agreement will be formally reviewed prior to the end of this 
        period?
    Answer. The United States will, of course, be monitoring the 
situation in Hong Kong at all times. Although there is no understanding 
that the Agreement will be formally reviewed prior to the end of the 50 
years stated in the Joint Declaration, the United States can request 
review whenever it believes such review is warranted. Furthermore, 
under Article 20(2), the United States can terminate the Agreement with 
six months notice at any time.
    Question 7. Please provide a list of the ``multilateral 
international agreement[s]'' which are encompassed by the terms of 
Article 6(2)(b).
    Answer. The Sino-British Joint Liaison Group has announced that 
many multilateral conventions are agreed to be applicable to Hong Kong 
after its reversion to the sovereignty of the People's Republic of 
China. Included in those conventions are the following encompassed by 
the terms of Article 6(2)(b):

   The Convention for the Suppression of Unlawful Seizure of 
        Aircraft (``the Hague Convention''), done at The Hague, 
        December 16, 1970, entered into force October 14,1971 (22 
        U.S.T. 1641; TIAS No. 7192).
   The Convention for the Suppression of Unlawful Acts Against 
        the Safety of Civil Aviation (``the Montreal Convention''), 
        done at Montreal September 23, 1971, entered into force January 
        26, 1973 (24 U.S.T. 564; TIAS No. 7570).
   Protocol for the Suppression of Unlawful Acts of Violence at 
        Airports Serving International Civil Aviation, Supplementary to 
        the Convention for the Suppression of Unlawful Acts Against the 
        Safety of Civil Aviation done at Montreal on 23 September 1971, 
        done at Montreal February 24, 1988, entered into force August 
        6, 1989, and for the United States November 18, 1994.
   Convention on the Prevention and Punishment of Crimes 
        Against Internationally Protected Persons, Including Diplomatic 
        Agents, done at New York, December 14, 1973, entered into force 
        February 20, 1977 (28 U.S.T. 1975; TIAS No. 8532).
   International Convention Against the Taking of Hostages, 
        done at New York, December 17, 1979, entered into force June 3, 
        1983, and for the United States January 6, 1985 (TIAS No. 
        11081).
   United Nations Convention against Torture and other Cruel, 
        Inhuman or Degrading Treatment or Punishment, done at New York 
        December 10, 1984, entered into force June 26, 1987 and for the 
        United States November 20, 1994.
   United Nationals Convention Against Illicit Traffic in 
        Narcotic Drugs and Psychotropic Substances, done at Vienna 
        December 20, 1988, entered into force November 11, 1990.

    The Convention on the Prevention and Punishment of the Crime of 
Genocide (done at Paris December 9, 1948, entered into force January 
12, 1951 and for the United States February 23, 1989),which provides 
that genocide and other enumerated acts are not to be considered as 
political crimes for the purpose of extradition, will also apply to the 
HKSAR.
    Question 8. What does the term ``upon his committal'' in Article 
17(2)(b) refer to? That is, does it refer to his committal to prison 
for the offense in the requested Party, or does it refer to committal 
to the requesting Party pursuant to this Agreement?
    Answer. The reference to committal in Article 17(2)(b) is to the 
committal for extradition to the requesting Party pursuant to this 
Agreement.
    Question 9. The Technical Analysis submitted by the Administration 
states that ``implicit [in Article 17(2)(b)] is the notion that the 
requested Party may choose to wait until completion of the service of 
sentence before continuing with the surrender proceedings.''

   What purpose would be served by delaying the surrender 
        proceedings until completion of service of sentence in the 
        requested Party?
   Under what circumstances would such delay be undertaken by 
        the United States?
    Answer. Article 17(2)(b) provides a firm treaty basis for 
accommodating requests for extradition for a person who is being 
proceeded against by the requested Party. Either Party might prefer to 
wait until the completion of the service of sentence in a particular 
case before extraditing a fugitive. The United States might choose to 
do so, for instance, in a case where deferral would not jeopardize Hong 
Kong's case, particularly if there was only a short period of 
imprisonment at issue.
    Question 10. The Technical Analysis states that ``the United States 
does not view the rule of speciality as applicable'' to cases where a 
person consents to surrender under Article 18.

   Does the Hong Kong government view the rule of speciality to 
        apply to such a situation?
    Answer. In Hong Kong, the Fugitive Offenders Ordinance requires 
that fugitives who consent to surrender shall not be surrendered by 
order of the Governor unless they will be entitled to specialty 
protection.
    Question 11. What is the ``requirement for entry into force,'' set 
forth in Article 20(1) under Hong Kong law?
    Answer. Hong Kong had to enact its Surrender of Fugitive Offenders 
Ordinance to provide a legislative basis for implementing the treaty. 
That Ordinance went into operation April 25, 1997. Subordinate 
legislation under the Ordinance, the Fugitive Offenders (United States 
of America) Order, specifically permitting the U.S. - Hong Kong 
agreement to be implemented, has also been made. It will be brought 
into operation on the same day that the Treaty enters into force.
    Question 12. If this Agreement does not enter into force by July 1, 
1997, will any extradition arrangement be in effect between the United 
States and Hong Kong?
   If not, what are the consequences for U.S. interests?
    Answer. Hong Kong is currently one of our closest and most reliable 
law enforcement partners. We enjoy an excellent relationship, 
particularly with respect to extradition. As of July 1, 1997, there 
will be no extradition arrangement in effect between the United States 
and Hong Kong. The treaty, on its terms, comes into force 30 days after 
the two govenunents notify each other in writing that their respective 
requirements for the entry into force of the treaty have been complied 
with. Hong Kong has already passed legislation to fulfill its domestic 
requirements but we will not be able to notify Hong Kong until such 
time as the Senate gives advice and consent and the President ratifies 
the treaty. Thus, we know there will be a gap on July 1, 1997, when the 
US-UK extradition treaty currently applicable to Hong Kong ceases to 
apply.
    The lack of an extradition treaty will mean that under U.S. law we 
will have no ability to surrender persons to Hong Kong (unless a case 
fits a narrow statutory exception for non-Americans committing violent 
crimes against Americans abroad). On this basis, we have recently 
agreed to the release on bail of a fugitive being sought by Hong Kong.
    The majority of the 64 fugitives Hong Kong has returned to the 
United States since 1991 were accused narcotics traffickers wanted by 
either state or federal prosecutors. In addition, Hong Kong is an 
attractive site for money laundering, alien smuggling, illegal customs 
transshipment and counterfeiting. Hong Kong has indicated to us 
informally that cases commenced under the current treaty will continue 
even in the absence of a new treaty and last week arrested a U.S. 
fugitive who is an alleged narcotics trafficker. For requests made in 
the interim between reversion on July 1, 1997, and the entry into force 
of the new extradition agreement, however, the United States probably 
will be unable to secure the extradition, or even arrest pending 
extradition, from Hong Kong of fugitives charged with these serious 
crimes.
    As a result, if the gap is of very short duration, we expect only 
minimal disruption of pending cases. If the gap is prolonged, the 
consequences would be much more serious, due to our inability to 
continue to extradite persons either to or (in the case of new 
requests) from Hong Kong.
    Question 13. How many extradition requests made by the United 
States to Hong Kong are currently pending?

   Please provide a list containing (1) the name of the person 
        sought for surrender (if release of such name is permissible 
        under the Privacy Act); (2) the offenses for which surrender of 
        that person is sought; and (3) the jurisdiction in which such 
        person faces indictment or has already been convicted.
    Answer. Attached is a list of 51 currently pending requests by the 
United States for the extradition or provisional arrest pending 
extradition of fugitives from Hong Kong. These include cases in which 
the provisional arrest request was submitted to Hong Kong because of a 
likelihood that the person would travel to Hong Kong although such 
travel may not yet have occurred. Each number represents a different 
individual. We have omitted the names of these fugitives, most of whom 
have not yet been arrested, because release of the names publicly would 
risk jeopardizing ongoing law enforcement investigations.

    There are 51 pending extradition requests to Hong Kong from the 
United States. The offenses and jurisdictions are provided below.

                Pending Case--U.S. Requests to Hong Kong                
                              June 10, 1997                             
OFFENSE CATEGORY                         JURISDICTION                   
                                                                        
1. Narcotics                             Eastern District of Virginia   
2. Narcotics                             Eastern District of New York   
3. White Collar (mail fraud, money       Districts of New Jersey and    
 laundering, firearms offenses)           Maryland                      
4. Narcotics                             Eastern District of New York   
5. Persons (conspiracy to commit         Southern District of New York  
 murder, assault, robbery, murder)                                      
6. Narcotics                             Northern District of Florida   
7. Narcotics                             Eastern District of New York   
8. Persons (ransom, kidnapping, hostage  Southern District of New York  
 taking, extortion, conspiracy)                                         
9. Persons (ransom, kidnapping,          Southern District of New York  
 extortion, hostage taking, conspiracy)                                 
10. Persons (extortion, obstruct         District of New Jersey         
 justice, kidnapping, hostage taking)                                   
11. Narcotics                            Eastern District of New York   
12. White Collar, Property               Northern District of California
 (racketeering, extortion, arson)                                       
13. Narcotics                            Northern District of California
14. White Collar (mail fraud, forgery)   Northern District of California
15. Narcotics                            Eastern District of New York   
16. Persons (murder, assault w/intent    State of Massachusetts (Suffolk
 to commit murder, conspiracy)            County)                       
17. Narcotics                            Eastern District of New York   
18. Narcotics, Persons (murder, firearm  Eastern District of New York   
 offenses, interstate commerce)                                         
19. Narcotics                            Northern District of Florida   
20. Narcotics                            District of Northern Mariana   
                                          Islands                       
21. Narcotics                            Eastern District of New York   
22. Persons, Misc (racketeering;         Southern District of New York  
 firearms, alien smuggling, hostage                                     
 taking)                                                                
23. Narcotics                            Southern District of New York  
24. Narcotics                            Eastern District of New York   
25. Persons (hostage taking, aiding/     Southern District of New York  
 abetting)                                                              
26. Narcotics, White Collar (money       Central District of California 
 laundering, conspiracy)                                                
27. Narcotics, White Collar (money       Central District of California 
 laundering, conspiracy)                                                
28. Persons (murder, assault w/intent    State of Massachusetts (Suffolk
 to murder, conspiracy)                   County)                       
29. Persons, White Collar (hostage       Southern District of New York  
 taking, money laundering)                                              
30. Narcotics                            Eastern District of New York   
31. Narcotics                            Eastern District of New York   
32. Persons (murder, assault w/intent    State of Massachusetts (Suffolk
 to murder, conspiracy)                   County)                       
33. Narcotics                            Eastern District of New York   
34. Narcotics, White Collar (money       Eastern District of New York   
 laundering)                                                            
35. Narcotics                            Eastern District of New York   
36. Narcotics                            District of Nevada             
37. Narcotics                            District of New Jersey         
38. Narcotics                            Eastern District of New York   
39. Narcotics                            Eastern District of New York   
40. Narcotics                            Eastern District of New York   
41. Persons, Misc (hostage taking,       Southern District of New York  
 alien smuggling, racketeering;                                         
 firearms)                                                              
42. Narcotics                            Eastern District of New York   
43. Narcotics                            Eastern District of New York   
44. Narcotics                            Southern District of New York  
45. White Collar, Misc (extortion,       Central District of California 
 firearm offenses)                                                      
46. Narcotics                            Southern District of New York  
47. White Collar (conspiracy to defraud  Middle District of Florida     
 U.S., mail fraud, false claims)                                        
48. Narcotics                            Southern District of New York  
49. Narcotics                            Eastern District of New York   
50. Narcotics                            Eastern District of New York   
51. Narcotics                            Central District of California 
                                                                        

    Question 14. How many extradition requests made by Hong Kong to the 
United States are currently pending?
    Answer. Five requests from Hong Kong are pending with the United 
States.
    Question 15. Article 16(2) permits the surrender or transfer beyond 
the jurisdiction of the requesting Party of the requested Party 
consents.

   Does the term ``jurisdiction of the requesting Party,'' as 
        it applies to Hong Kong, refer to the territory of the Hong 
        Kong Special Administrative Region?
   With regard to requests by Hong Kong to transfer a person 
        surrendered under this Agreement to the People's Republic of 
        China, will the United States have a presumption against such 
        transfers? Under what circumstances will the United States 
        consent to such transfers?
    Answer. Yes, the ``jurisdiction of the requesting Party'' for Hong 
Kong is the Hong Kong Special Administrative Region. Thus, Article 16 
covers transfer even to other parts of the People's Republic of China.
    Under current circumstances, the United States would not anticipate 
consenting to the transfer of a person by Hong Kong to other parts of 
the PRC except as an exceptional matter. While any circumstances in 
which we might consent are at this point hypothetical, one could 
imagine a situation in which the prisoner wished to be transferred to 
the PRC, for instance to be reunited with family.
    Question 16. The Technical Analysis submitted to the Committee 
states on page 17, footnote 21, that the Hong Kong delegation informed 
the U.S. delegation that ``it is possible that after 1997, the PRC will 
require requests for extradition involving Hong Kong to be made through 
Beijing.''

   What would be the purpose for the PRC requiring requests to 
        be transmitted through Beijing?
   Has the United States conducted any diplomatic discussions, 
        formal orinformal, in writing or orally, with the People's 
        Republic of China regarding this matter? If so, please describe 
        the substance of those discussions.
    Answer. A request from the PRC that all extradition requests be 
transmitted through Beijing would have the effect of keeping the 
requests in formal diplomatic channels between the two sovereigns. This 
would also give the PRC the ability to track requests so that it would 
know when its nationals are involved, although the PRC could also 
accomplish this by requiring advance notice from the Hong Kong 
government of any requests. We have had no discussion on this issue 
with the PRC.
    Question 17. Compare the standard of the prima facie case required 
under Hong Kong law (pursuant to Articles 8(3) and 13) to the standard 
of probable cause under U.S. law.
    Answer. Under Hong Kong law, a prima facie case is a case supported 
by evidence which, if unexplained or uncontradicted, is sufficient to 
carry the case to the jury (or trier of fact) and to sustain a verdict 
(or finding) in favor of the side of the issue which it supports, but 
which may be contradicted by other evidence.
    Under United States law, probable cause requires a lesser quantum 
of evidence, i.e., sufficient to establish a reasonable basis to 
believe the crime was committed and that the person before the court is 
the person accused of the crime.

                               
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