[Senate Executive Report 105-24]
[From the U.S. Government Publishing Office]



105th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      105-24
_______________________________________________________________________


 
      AGREEMENT WITH HONG KONG ON THE TRANSFER OF SENTENCED PERSONS

                                _______
                                

 October 14 (legislation day, October 2), 1998.--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. 105-7.]

    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 Transfer of 
Sentenced Persons, signed at Hong Kong on April 15, 1997, 
having considered the same, reports favorably thereon, with one 
declaration 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.......................................................1
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................4
  V. Committee Action.................................................4
 VI. Committee Comments...............................................4
VII. Explanation of Proposed Treaties.................................5
VIII.Resolution of Ratification.......................................5


                               I. Purpose

    The basic goal of U.S. bilateral prisoner transfer treaties 
is the facilitation of the exchange of administrative 
responsibility for a final penal sentence and the enabling of 
prisoners to serve their sentences in their home country, where 
family and friends may more easily visit them.

                             II. Background

    On April 15, 1997, the United States and Hong Kong signed 
the Agreement for the Transfer of Sentenced Persons. That 
agreement will replace the previous prisoner transfer 
relationship with Hong Kong, which was governed by the United 
States-United Kingdom extradition treaty. (An extradition 
agreement was approved by the Senate and entered into force in 
1997, and a mutual legal assistance agreement with Hong Kong is 
expected to be considered simultaneously with this Agreement).
    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, permitting the United 
States and Hong Kong to sign in April.
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    \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.
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    As recent Agreements between the United States and Hong 
Kong are unprecedented U.S. treaty relationships, it is 
important to note the negotiation history that led to the 
Agreements between the United States and Hong Kong. Under the 
JLG process, four members each from the United Kingdom 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 United States); (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 United States) 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 United States in this case).

                              III. Summary

                               a. general

    The domestic implementation of prisoner transfer agreements 
is covered generally by the provisions of 18 U.S.C. Sec. Sec.  
4100 et seq. A majority of U.S. states also have provisions for 
the transfer of prisoners incarcerated in state facilities. 
Among other things, the federal statutes provide for the 
procedure for transfer, particularly the verification of the 
consent of the prisoner to be transferred.

                           b. key provisions

1. Conditions for Transfer

    Basic conditions for transfer must exist. In order for a 
transfer to go forward, dual criminality must exist; the 
sentenced person must be a citizen or national of the United 
States, when the United States is the receiving party; a 
minimum of one year must remain to be served in the sentence at 
the time the request for transfer is received; the judgment 
must be final with no pending proceedings; both Parties and the 
sentenced person must agree to the transfer; and in the case of 
a conviction by a U.S. state, that state must consent to the 
transfer.
    These requirements are common to all prisoner transfer 
treaties to which the United States is a party. As noted above, 
however, the basic conditions for transfer differ from other 
agreements with respect to the requirement that where Hong Kong 
is the receiving party, the sentenced person must be a 
permanent resident of Hong Kong, but not necessarily a national 
of the PRC.

2. Procedures for Transfer

    The treaty obligates Parties to inform prisoners of their 
right to request a transfer. A sentenced person may initiate a 
transfer request by communicating a wish to transfer to either 
party, which shall than inform the other party in writing of 
the request.
    The Party receiving the request shall inform the other 
Party promptly of its decision to consent to the transfer. The 
written requests for transfer shall include information 
identifying the sentenced person, giving the location of the 
person and indicating the nationality, citizenship or residence 
status of the person.
    The transferring party shall inform the receiving Party, to 
the extent practicable, about the factual and legal information 
concerning the offense for which the sentence was imposed, the 
certificate or record of conviction, the duration of the 
sentence, the time served, and any reduction of sentence to 
which the sentenced person may be entitled due to good 
behavior, pre-trial incarceration, etc.
    Additionally, either Party shall provide the other Party, 
upon request, with any additional relevant information before 
making a request for transfer or deciding whether to consent to 
transfer.
    The exchange of the prisoner shall take place at a date and 
place within the jurisdiction of the transferring party agreed 
upon by both Parties. The Parties shall keep the sentenced 
person informed in writing of any action taken to effect the 
transfer.

3. Enforcement of Sentences

    The transferring party retains the exclusive jurisdiction 
for the review of convictions and sentences of its courts. This 
is typical of such agreements. Although the laws of the 
receiving party govern the administration of a sentence, the 
transferring party still retains the sole right of actual 
review and of reversing a conviction or pardoning the offender.
    Prisoner transfer treaties require that the laws and 
procedures of the receiving Party regulate the continued 
enforcement of the sentence with respect to the conditions for 
imprisonment and any reduction of sentence, conditional 
release, or parole.
    However, although the receiving Party is obligated to 
enforce the sentence as if it had been imposed in the receiving 
party, if the sentence is incompatible by its duration or 
nature with the laws of the receiving Party, that Party may 
adapt the actual sentence in accordance with the sentence 
prescribed under its own laws for a similar offense.

4. Third Party Transit

    The Treaty requires that where either party is transferring 
a sentenced person from another country or jurisdiction, the 
other party shall cooperate in the transit of the sentenced 
person through its territory. Advance notice is required in the 
case of a third country transfer.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Agreement enters into force thirty days after the date 
on which the Parties have exchanged instruments of 
ratification.

                             b. termination

    Either Party may withdraw from the Treaty by means of 
written notice to the other Party. Termination would take place 
three months after the date of receipt of notification.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed Agreement on September 15, 1998. The Committee 
considered the proposed Agreement on October 14, 1998, and 
ordered the proposed Convention favorably reported, with the 
recommendation that the Senate give its advice and consent to 
the ratification of each of the proposed Treaties subject to 
one declaration, and one proviso.

                         VI. Committee Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Agreement. On balance, the Committee believes that the 
proposed Agreement is in the interest of the United States and 
urges the Senate to act promptly to give its advice and consent 
to ratification. Several issues did arise in the course of the 
Committee's consideration of the Treaties, and the Committee 
believes that the following comments may be useful to the 
Senate in its consideration of the proposed Agreement and to 
the State Department.
    During the consideration of the proposed Agreement, a 
question was raised as to the applicability of the implementing 
statute. It appears that the federal statute must be amended or 
clarified to fully implement the treaty.
    The U.S.-Hong Kong prisoner transfer agreement parallels 
other bilateral prisoner transfer agreements to which the 
United States is a party. Therefore, with perhaps one 
exception, the federal statutes providing for the 
implementation of prisoner transfer agreements need not be 
amended. Under 18 U.S.C. Sec.  4100(b), an offender may be 
transferred from the United States only to a country of which 
the offender is a citizen or a national. Under the Council of 
Europe Convention which previously governed prisoner transfers 
between Hong Kong and the United States, parties could define 
``national'' broadly. The UK defined ``national'' with respect 
to dependent territories as ``a person who is a British Citizen 
or a British Dependent Territories Citizen by virtue of a 
connection with that Territory, or any other person whose 
transfer to the Territory appears to the officer for the time 
being administering the Government of that Territory to be 
appropriate having regard to any close ties which that person 
has with that Territory.''
    Article 4 of the proposed bilateral Agreement between Hong 
Kong and the United States provides that a sentenced person may 
only be transferred to Hong Kong where the sentenced person is 
a ``permanent resident'' of Hong Kong. Article 1 defines 
``permanent resident'' as ``a permanent resident of Hong 
Kong.'' As mentioned above, the group defined as ``permanent 
residents of Hong Kong'' may include persons who are not 
nationals of the PRC. Since the bilateral agreement with Hong 
Kong does not include or permit by its terms a broad definition 
of ``national'' similar to that declared by the United Kingdom 
under the Council of Europe Convention, the terms of the 
agreement do not track those of the U.S. federal statutes 
governing prisoner transfer.
    Therefore, the Committee believes that the federal statute 
should be amended or clarified to explicitly apply to and 
perhaps to define ``permanent residents of Hong Kong,'' unless 
the United States only intends to apply the agreement to those 
permanent residents of Hong Kong who are nationals of the PRC. 
The Committee expects that the United States will be able to 
transfer prisoners only to the extent permitted by current U.S. 
law.

                 VII. Explanations of Proposed Treaties

    For a detailed analysis of the Agreement, see pages V-VII 
of the Letter  of Submittal by the Secretary of State in Treaty 
Doc. 105-7.

                    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 Transfer of Sentenced Persons, signed at Hong Kong on April 
15, 1997 (Treaty Doc. 105-7), subject to the declaration of 
subsection (a), and the proviso of subsection (b).
    (a) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
      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 of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (b) 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:
      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.

                                
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