U.S. GOVERNMENT PRINTING OFFICE

69–118 WASHINGTON : 

" ! SENATE 106TH CONGRESS

1st Session

TREATY DOC.

1999

106–2

EXTRADITION TREATY WITH THE

REPUBLIC OF KOREA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE

UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE

REPUBLIC OF KOREA, CONCLUDED ON JUNE 9, 1998, WITH ACCOMPANYING REPORT FROM THE DEPARTMENT OF STATE ON

THE CONVENTION AND THE HAGUE PROTOCOL

MARCH 2, 1999.—Treaty was read the first time, and together with the

accompanying papers, referred to the Committee on Foreign Relations

and order to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, March 2, 1999.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Extradition Treaty Between

the Government of the United States of America and the Government of the Republic of Korea, signed at Washington on June 9,

1998 (hereinafter the ‘‘Treaty’’).

In addition, I transmit for the information of the Senate, the report of the Department of State with respect to the Treaty. The

Treaty will not require implementing legislation.

The Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of the United States and

Korea. It will provide, for the first time, a framework and basic

protections for extraditions between Korea and the United States,

thereby making a significant contribution to international law enforcement efforts.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, February 2, 1999.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the Government of the United States of

America and the Government of the Republic of Korea (hereinafter

referred to as ‘‘the Treaty’’), signed at Washington on June 9, 1998.

I recommend that the Treaty be transmitted to the Senate for its

advice and consent to ratification.

The Treaty follows generally the form and content of extradition

treaties recently concluded by the United States. It represents a

concerted effort by the Department of State and the Department of

Justice to modernize the legal tools available for the extradition of

serious offenders such as narcotics traffickers and terrorists.

The Treaty marks a significant step in bilateral cooperation with

the Republic of Korea. Upon entry into force, it will become the

first bilateral extradition treaty between the United States and the

Republic of Korea. In the absence of a treaty, under domestic law

the United States is unable to extradite to Korea, except in certain

limited statutorily-defined circumstances. Article 1 obligates each

State to extradite to the other, in accordance with the provisions

of the Treaty, any person wanted for prosecution, trial, or imposition or execution of punishment for an offense as described in Article 2.

Article 2(1) defines an extraditable offense as one punishable

under the laws in both Contracting States by deprivation of liberty

for a period of more than one year, or by a more severe penalty.

Use of such a ‘‘dual criminality’’ clause rather than a list of offenses covered by the Treaty, as was the case in older treaties, obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the law of both Contracting States.

Article 2(2) defines an extraditable offense to include also an attempt or a conspiracy to commit, or participation in the commission

of, an extraditable offense as described in 2(1), provided the requirements of paragraph 1 are fulfilled.

In keeping with most recently negotiated U.S. extradition treaties, Article 2(3) further provides that in determining whether an

offense is an offense under the law of the requested State, the conduct of the person shall be examined by taking into account the totality of the conduct alleged against the person, and will be considered an extraditable offense: whether or not the laws in the Con-
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tracting States place the offense within the same category of offenses or describe the offense by the same terminology; whether or

not the constituent elements of the offense differ under the laws in

the Contracting States, provided that the offenses under the laws

of both States are substantially analogous; and whether or not the

offense is one for which United States federal law requires the

showing of such matters as interstate transportation, or use of the

mails or of other facilities affecting interstate or foreign commerce,

such matters being merely for the purpose of establishing jurisdiction in a United States federal court.

With regard to offenses committed outside the territory of the

Requesting State, Article 2(4) provides a basis for granting extradition if the Requested State’s laws provide for punishment of an

offense committed outside of its territory in similar circumstances,

or if the offense has been committed by a national of the Requesting State, or, if the laws in the Requested State do not so provide,

the executive authority of the Requested State, in its discretion,

grants extradition, provided the requirements of the Treaty are

met.

Article 2(5) provides that if extradition is granted for an extraditable offense, it shall also be granted for any other offense specified in the request even if the other offense does not meet the minimum penalty requirement, provided that all other requirements for

extradition are met.

Article 2(6) provides that in the case of fiscal offenses, extradition may not be refused on the ground that the law of the Requested State does not contain a tax, duty, customs, or exchange

regulation of the same kind as the law of the Requesting State.

Finally, Article 2(7) provides that where the request for extradition relates to a person already sentenced for an extraditable offense by a court of the Requesting State, extradition may be denied

if a period of less than four months remains to be served.

Article 3 provides that while neither Contracting State shall be

bound to extradite its own nationals, the Requested State has the

power to do so. It provides further that if extradition is refused

solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit

the case of its authorities for prosecution. Nationality is to be determined at the time of the commission of the offense for which extradition is requested.

As is customary in extradition treaties, Article 4 incorporates a

political offense exception to the obligation to extradite. Article 4(1)

states generally that extradition shall not be granted for political

offenses. Article 4(2) specifies three categories of offenses that shall

not be considered to be political offenses: (a) murder or other willful violent crime against the person of a Head of State of one of

the Contracting States, or of a member of the Head of State’s family; (b) an offense for which both Contracting States have the obligation to extradite the person sought or to submit the case of their

competent authorities for decisions as to prosecution pursuant to a

multilateral international agreement, including but not limited to

such agreements relating to genocide, terrorism, or kidnapping;

and (c) a conspiracy or attempt to commit, or participation in, any

of the foregoing offenses. The Treaty’s political offense exception is
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substantially identical to that contained in several other modern

extradition treaties, including treaties with the Philippines and Argentina.

Article 4(3) provides further that surrender shall not be granted

if the executive authority of the Requested State determines either

(a) that the request for surrender, though purporting to be made

on account of an offense for which surrender may be granted, 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; or (b) that extradition has been requested for political purposes.

Finally, Article 4(4) provides that the executive authority of the

Requested State may refuse extradition for offenses under military

law that are not offenses under ordinary criminal law.

Under Article 5, extradition is not to be granted when the person

sought has been convicted or acquitted in the Requested State for

the offense for which extradition is requested.

Article 6 permits extradition to be denied when the prosecution

or the execution of punishment of the offense for which extradition

is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State. It provides further that the period during which a person fled from justice does not count towards the

running of the time period and that acts of circumstances that

would suspend the expiration of the statute of limitations of either

State shall be given effect by the Requested State. In this regard,

the Requesting State is to provide a written statement of the relevant provisions of its statute of limitations, which shall be conclusive.

Under Article 7, when an offense for which extradition is sought

is punishable by death under the laws of the Requesting State and

is not punishable by death under the laws in the Requested State,

the Requested State may refuse extradition unless the offense constitutes murder under the laws in the Requested State or the Requesting State provides such assurances as the Requested State

considers sufficient that the death penalty will not be imposed or,

if imposed, will not be carried out. It further provides that if the

Requesting State provides such an assurance, the death penalty, if

imposed by the courts of the Requesting State, shall not be carried

out. The United States has agreed to a similar formulation in other

modern extradition treaties such as that with India.

Article 8 establishes the procedures and described the documents

that are requited to support a request for extradition. It requires

that all requests be submitted in writing through the diplomatic

channel, and that they be translated into the language of the Requested State, following other modern extradition treaties. Article

8(3) provides that a request for extradition of a person sought for

prosecution must include, among other things, such information as

would provide reasonable grounds to believe that the person sought

has committed the offense for which extradition is requested. Article 8(5) provides that if the Requested State considers that the information furnished in support of the request is not sufficient to

fulfill the requirements of this Treaty, that State may request that
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additional information be furnished within such reasonable time as

it specifies.

Article 9 establishes the procedures under which documents submitted pursuant to Article 8 shall be received and admitted into

evidence in extradition proceedings in the Requested State. These

provisions are also similar to those found in other modern extradition treaties.

Article 10, in keeping with other modern extradition treaties,

provides for the provisional arrest and detention of the person

sought pending receipt of a fully documented extradition request in

conformity with Article 8. Article 10(4) provides that a person who

is provisionally arrested may be discharged from custody upon the

expiration of two months from the date of provisional arrest pursuant to the Treaty if the executive authority of the Requested State

has not received the formal request for extradition and supporting

documents required in Article 8. Article 10(5) provides explicitly

that the fact that the person sought has been discharged from custody on this ground shall not prejudice the subsequent rearrest and

extradition of that person if the extradition request and supporting

documents are delivered at a later date.

Article 11 sets forth the standard procedures to govern the surrender and return of fugitive offenders. It requires the Requested

State to provide prompt notice in writing to the Requesting State

through the diplomatic channel regarding its extradition decision.

If the request is denied in whole or in part, Article 11 also requires

the Requesting State to provide information regarding the reasons

therefor and to provide copies, upon request, of any pertinent judicial decisions. If extradition is granted, unless the person sought is

removed from the territory of the Requested State within the time

prescribed by the law of that State, he may be discharged from custody, and the Requested State may subsequently refuse extradition

for the same offense.

Article 12 concerns temporary and deferred surrender. If a person whose extradition is sought is being proceeded against or is

serving a sentence in the Requested State, that State may temporarily surrender the person to the Requesting State for the purpose

of prosecution. A person so surrendered is to be kept in custody in

the Requesting State and returned to the Requested State after the

conclusion of proceedings against that person, in accordance with

conditions to be determined by mutual agreement of the Contracting States. Alternatively, the Requested State may postpone the extradition proceedings until its prosecution has been concluded and

the sentence has been served.

Article 13 again reflects US practice in modern extradition treaties, setting forth a non-exclusive list of factors to be considered by

the Requested State in determining to which State to surrender a

person whose extradition is sought by more than one State.

Article 14 provides, to the extent permitted under the law of the

Requested State, for the seizure and surrender to the Requesting

State of all articles, documents and evidence connected with the offense for which extradition is granted. Such property may be surrendered even when extradition cannot be effected due to the

death, disappearance or escape of the person sought. Surrender of

property may be conditioned upon satisfactory assurances that it
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will be returned and may be deferred if it is needed as evidence

in the Requested State. Article 14(3) imposes an obligation to respect the rights of third parties in affected property.

Article 15 sets forth the rule of speciality. It provides, subject to

specific exceptions, that a person extradited under the Treaty may

not be detained, tried or punished in the Requesting State for an

offense other than that for which extradition has been granted or

a differently denominated offense based on the same facts on which

extradition was granted (provided such offense is extraditable, or

is a lesser included offense); an offense committed after the extradition of the person; or an offense for which a waiver of the rule

of speciality is granted by the executive authority of the Requested

State. Similarly, the Requesting State may not extradite such person to a third state for an offense committed prior to the original

surrender unless the Requested State consents. These restrictions

do not prevent the detention, trial or punishment of an extradited

person or that person’s extradition to a third State, if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to leave the Requesting State within

25 days of being free to do so.

Article 16 permits surrender to the Requesting State without further proceedings if the person sought gives his consent, to the extent permitted under the Requested State’s law. In such cases Article 15 of the Treaty shall not apply.

Article 17 governs the transit through the territory of one Contracting State of a person being surrendered to the other Contracting State by a third State.

Article 18 contains provisions on representation and expenses

that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to bear ordinary

expenses for the legal representation of the Requesting State in

any proceedings arising out of an extradition request. The Requesting State is required to bear the expenses related to the translation

of documents and the transportation of the person surrendered. Article 18(3) specifies that neither State shall make any pecuniary

claim against the other State arising out of the arrest, detention,

examination, or surrender of persons sought under the Treaty.

Article 19 contains language standard in modern extradition

treaties, permitting direct consultation between the United States

Department of Justice and the Republic of Korea Ministry of Justice in connection with the processing of individual cases and in

furtherance of maintaining and improving procedures for the implementation of this Treaty. Article 19(1) adds a mandatory consultation provision, requiring the Contracting States to consult, at

the request of either, concerning the interpretation and the application of this Treaty. This addition was made at the request of the

United States to ensure that there will always be an avenue for

clarifying any question as to the nature of an offense for which extradition is requested, including any offense under Korea’s National Security Law implicating what would be important issues of

freedom of speech or assembly in the United States.

Article 20, like the parallel provision in almost all recent United

States extradition treaties, states that the Treaty shall apply to of-
X

fenses committed before as well as after the date the Treaty enters

into force.

Article 21 contains final clauses dealing with the Treaty’s ratification, entry into force and termination. Article 21 provides that

the Treaty shall be subject to ratification, that the instruments of

ratification shall be exchanged as soon as possible, and that this

Treaty shall enter into force upon the exchange of the instruments

of ratification. Either Contracting States may terminate this Treaty

at any time by giving six months written notice to the other Contracting State.

A Technical Analysis explaining in detail the provisions of the

Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Department of Justice

and State, and will be submitted separately to the Senate Committee on Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at an early date.

Respectfully submitted,

STROBE TALBOT.
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