U.S. and Hong Kong

EXECUTIVE REPORTS OF COMMITTEES (Senate - September 02, 1997)

[Page: S8668]

The following executive reports of committees were submitted:

By Mr. HELMS, from the Committee on Foreign Relations: Treaty Doc. 105-3 U.S.-Hong Kong Extradition Treaty (Executive Rept. 105-2).

Text of Committee Recommended 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.