UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 97-1084
UNITED STATES OF AMERICA,
Appellant,
v.
LUI KIN-HONG, a/k/a JERRY LUI,
Appellee.
BEFORE
BEFORE
TORRUELLA, Chief Judge,
TORRUELLA, Chief Judge,
ALDRICH, Senior Circuit Judge,
ALDRICH, Senior Circuit Judge,
SELYA, BOUDIN, STAHL*, and LYNCH, Circuit Judges,
SELYA, BOUDIN, STAHL*, and LYNCH, Circuit Judges,
ORDER OF EN BANC COURT
ORDER OF EN BANC COURT
Entered: April 17, 1997
Entered:
The suggestion for the holding of a rehearing en banc having
been carefully considered by the judges of this Court in regular
active service and a majority of said judges not having voted to
order that the appeal be heard or reheard by the Court en banc,
It is ordered that the suggestion for rehearing en banc be
denied.
By the Court:
William H. Ng, Clerk
[cc: Messrs. Whiting, Good, Posner]
* Dissent follows.
STAHL, Circuit Judge, (dissenting). Because I do
STAHL, Circuit Judge, (dissenting).
not believe that the panel's opinion reaches the correct
result, and because I believe that this case raises numerous
difficult and complex questions of law that warrant the full
court's considered attention, I would grant the petition. I
therefore respectfully dissent from the court's decision to
deny rehearing en banc.
I. The Treaty Language
I. The Treaty Language
The extradition request in this case was made by
authorities of the British Crown Colony of Hong Kong pursuant
to two bilateral treaties dating from 1972 -- a primary
agreement and a supplemental treaty -- that both the United
States and the United Kingdom have signed and ratified.1 The
main treaty applies to Hong Kong by an exchange of diplomatic
notes made in October 1976, see 28 U.S.T. at 238-41, while
the supplemental treaty by its terms applies to the United
Kingdom and "the territories for whose international
relations the United Kingdom is responsible," which, as
1See Extradition Treaty Between the Government of
the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland, June 8, 1972,
28 U.S.T. 227 [hereinafter "the treaty"] and Supplemental
Treaty Between the Government of the United States of America
and the Government of the United Kingdom of Great Britain and
Northern Ireland, June 25, 1985, T.I.A.S. No. 12050
[hereinafter "the supplemental treaty"].
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listed in an annex, includes Hong Kong.2 In 1984, the United
Kingdom and the People's Republic of China issued a Joint
Declaration, which was ratified and entered into force in
1985, under which sovereignty over Hong Kong will revert to
China on July 1, 1997.3 In 1985, the United States signed
the supplemental treaty and the United States Senate ratified
it the following year. Despite being ratified after the well-
publicized Sino-British Joint Declaration regarding Hong
Kong's future status, the supplemental treaty says nothing
about fugitives sought for extradition ("relators") to Hong
Kong, like Lui Kin-Hong, who can demonstrate that their trial
will occur after Hong Kong's reversion to China.
"In construing a treaty, as in construing a
statute, we first look to its terms to determine its
meaning." United States v. Alvarez-Machain, 504 U.S. 655,
663 (1992) (citing Air France v. Saks, 470 U.S. 392, 397
2The supplemental treaty specifically applies to
Great Britain and Northern Ireland, the Channel Islands, the
Isle of Man, Anguilla, Bermuda, the British Indian Ocean
Territory, the British Virgin Islands, the Cayman Islands,
the Falkland Islands, the Falkland Island Dependencies,
Gibraltar, Hong Kong, Montserrat, Pitcairn, Henderson, Ducie
and Oeno Islands, St. Helena, the St. Helena Dependencies,
the Sovereign Base Areas of Akrotiri and Dhekelia in the
Island of Cyprus, Turks and Caicos Islands. See Art. 6 &
Annex.
3See Joint Declaration of the Government of the
United Kingdom of Great Britain and Northern Ireland and the
Government of the People's Republic of China on the Question
of Hong Kong, Dec. 19, 1984, 1984 Gr. Brit. T.S. No. 20 (Cmd.
9352) [hereinafter "the Joint Declaration"].
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(1985); Valentine v. United States ex rel. Neidecker, 299
U.S. 5, 11 (1936)). Article I of the primary US-UK bilateral
extradition treaty provides that "[e]ach Contracting Party
undertakes to extradite to the other" persons accused or
convicted of certain enumerated offenses "subject to the
conditions specified in this Treaty." Among the conditions
that the treaty specifies are those found in Article XII,
which incorporates a "specialty" provision, a common feature
of extradition treaties,4 and contains a prohibition against
a relator's re-extradition to stand trial in a third state.
Article XII in relevant part provides:
(1) A person extradited shall not be
detained or proceeded against in the
territory of the requesting Party for any
offense other than an extraditable
offense established by the facts in
respect of which his extradition has been
granted, or on account of any other
matters, nor be extradited by that Party
to a third State --
(a) until after he has returned to
the territory of the requested Party; or
(b) until the expiration of thirty
days after he has been free to return to
the territory of the requested Party.
4See Kenneth E. Levitt, Note, International
Extradition, The Principle of Specialty, and Effective Treaty
Enforcement, 76 Minn. L. Rev. 1017, 1022-24, 1027-28 (1992)
("The principle of specialty allows requesting states to try
or punish defendants only for the offenses for which they
were extradited. . . . Most United States extradition
treaties currently in force, and all negotiated within the
last one hundred years, incorporate the principle of
specialty.").
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Lui's case raises the difficult question of the
proper interpretation to be given to this Article of the
extradition treaty and the specialty provision incorporated
therein in the peculiar situation that the record reveals.
The evidence shows and the government concedes that Lui will
be tried in the court system of a sovereign other than that
of the requesting Party and different than the one he would
have been tried by but for the reversion of sovereignty over
Hong Kong to China. As the district court found in granting
habeas relief, the "uncontradicted evidence" establishes, as
the government now concedes, that "[t]he reality . . . is
that the Crown Colony of Hong Kong will not be able to try
and to punish Lui by the time of reversion." Lui Kin-Hong v.
United States, Civ. A. No. 96-104849-JLT, -- F. Supp. --,
1997 WL 37477, at *3 (D. Mass. January 7, 1997) (as corrected
January 9, 1997).
The difficult question Lui's case presents is
whether a certification of extraditability pursuant to the
US-UK bilateral extradition treaty and 18 U.S.C. 3181,
3184 can issue in these circumstances. For the reasons that
follow, I believe it cannot.
On its face, Article XII of the treaty prohibits a
requesting Party from trying and punishing the relator for
crimes other than those for which he has been extradited.
Moreover, it prohibits a requesting Party from extraditing
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the relator to a third-party sovereign. As I read Article
XII, therefore, the fairest and most reasonable inference to
be drawn from the treaty's language is that it allows only
for extradition for offenses that will be tried and punished
by the requesting sovereign.
This is not the case we have before us. Thus, in
my view, the district court correctly concluded that the most
reasonable inference from Article XII's language is that the
treaty "prohibits a person from being extradited to Hong Kong
if Hong Kong, as a Crown Colony of the United Kingdom, is
unable to try and to punish him." 1997 WL at *4. I believe
that the logical inference to be drawn from the quoted treaty
language is that Article XII requires the requesting Party to
retain exclusive jurisdiction and custody over relators
extradited to it by the requested Party. To me, the natural
meaning of the language in Articles I and XII suggests that a
"condition" to extradition under the treaty is that a relator
is to be tried and punished in the courts and prisons of the
Contracting Party requesting extradition. This requirement
is subject solely to the exceptions provided for in
subsections (1)(a) and (b), which do not apply here because
the reality in this case is that Crown Colony authorities
will neither return Lui to United States territory nor give
him 30 days' freedom to leave Hong Kong prior to surrendering
him to their Chinese successors, as those subsections would
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alternately require. On the facts revealed, therefore, I
believe the district court correctly concluded that Lui
cannot be certified for extradition because the United
Kingdom fails to "live up to the terms of its extradition
agreement with the United States." Id. at *4.
The purpose to be gleaned behind Article XII's
words also supports the position that Lui cannot be certified
for extradition in the current circumstances. This circuit
has indicated that "[t]he existence of such [an extradition]
treaty between the United States and another country
indicates that, at least in a general sense, the executive
and legislative branches consider the treaty partner's
justice system sufficiently fair to justify sending accused
persons there for trial." In re Extradition of Howard, 996
F.2d 1320, 1329 (1st Cir. 1993) (emphasis added) (citing
Glucksman v. Henkel, 221 U.S. 508, 512 (1911); Neely v.
Henkel (No. 1), 180 U.S. 109, 123 (1901)).
In this particular instance, I agree with the
district court that the US-UK bilateral treaties are
"premised on the trust running between the United States and
the United Kingdom." Lui, 1997 WL at *5. In my view, the
district court rightly noted that Article XII's language
manifests an exchange of promises between our nation and a
trusted treaty partner: "[t]he United Kingdom is promising
that it, and only it, will try and will punish [relators
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like] Lui for specified crimes, and no others. By its
adoption of the Treaty, the United States manifests its
belief in that promise of the United Kingdom." Id. Because
the Crown Colony's extradition request in this case fails to
live up to this promise by the United Kingdom, I believe that
the district court properly concluded that a certification
for Lui's extradition to Hong Kong cannot issue. As this
court has recently explained, in extradition cases "[t]he
requesting state must 'live up to whatever promises it made
in order to obtain extradition.'" United States v.
Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995) (quoting United
States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.) (per
curiam), cert. denied, 479 U.S. 1009 (1986)).5
5The panel opinion relies upon Saccoccia, a case
that involved the interpretation of an extradition treaty
between the United States and Switzerland, to argue that
federal extradition procedures do not give judicial officers
the discretion to refuse the issuance of certificates of
extraditability "on the ground that a treaty partner cannot
assure the requested country that rights under a treaty will
be enforced or protected." Slip op. at 29 (citing Saccoccia,
58 F.3d at 766-67). My research fails to find support for
the proposition for which the panel cites Saccoccia. On my
reading, Saccoccia indicates that Article XII's "specialty"
provision does not require an exact mirror-image between the
precise indictment that prompts an extradition and the
subsequent prosecution. See 58 F.3d at 766-67. Because that
is not the problem that I believe to be fatal to the
extradition request in Lui's case, and as I indicate in the
main body of my dissent, I believe that Saccoccia is properly
read, if at all, to support an interpretation of Article XII
that would preclude the issuance of a certificate of
extraditability in the unique circumstances present here.
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In arriving at my conclusion I am mindful of the
Supreme Court's seminal extradition decision in Terlinden v.
Ames, 184 U.S. 270, 289 (1902). In Terlinden, the Court
explained that a state requesting a relator's extradition
must be "competent to try and to punish him." Id. at 289.
The Terlinden Court was asked to determine whether the German
Empire could successfully request a relator's extradition on
the basis of a treaty between the United States and the
Kingdom of Prussia, where the two sovereigns, King and
Emperor, were one and the same. See id. at 284. The Court
concluded that the Kingdom of Prussia, although part of the
subsequently formed German Empire, continued to enjoy "its
identity as such," and treaties that it had entered could
still be performed "either in the name of its King or that of
the Emperor." Id. at 285. In making its determination, the
Court explained that "the question whether power remains in a
foreign State to carry out its treaty obligations is in its
nature political and not judicial, and that the courts ought
not to interfere with the conclusions of the political
department in that regard." Id. at 288.
The situation in Terlinden, however, is different
than the one raised by Lui's case. In Terlinden, the
question was whether or not the Kingdom of Prussia continued
to have an independent existence and whether its treaty
obligations could be exercised in the name of its King
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notwithstanding the fact that he had subsequently acquired
"the title of German Emperor." Id. at 284. The impending
reversion of sovereignty over Hong Kong does not raise this
question. No one doubts -- and the government does not
dispute -- that the Crown Colony of Hong Kong will cease to
exist beyond reversion to China. If some doubt existed on
this score, Terlinden counsels that the judicial department
would have to defer to the judgment of the political branches
because the action of the political branches of government
"must be regarded as of controlling importance" on the
question of "whether [a] treaty has ever been terminated."
184 U.S. at 285. Lui's case frames an entirely different
question. The extradition request from the Crown Colony of
Hong Kong does not raise the issue of whether or not the US-
UK extradition treaties have been terminated. Instead it
raises the question of whether the requesting sovereign is
"competent to try and to punish him." Id. at 289.
In my view, the Supreme Court in Terlinden makes a
distinction between a state's "power . . . to carry out its
treaty obligations" (a determination on which the judiciary
must defer to the political branches), id. at 288, and a
state's "competen[ce] to try and to punish" a relator. Id.
at 289. The first issue goes to the question of whether a
treaty partner -- and hence a treaty relationship -- still
exists. On this issue, Terlinden informs us that courts must
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defer to the determination of the political branches. See
id. at 285, 288. The second issue goes to the question of
whether a treaty partner is fulfilling the promises and
obligations it has undertaken with the United States. See
id. at 289. The Court's discussion in the paragraphs
following its reference to sovereign competency makes clear
that courts retain the authority and duty to ascertain that
the treaty-established prerequisites to extraditability have
been met in a particular case. The Court noted that no
question existed in the case before it that the treaty-
created preconditions for extradition had been met. As the
Court explained,
If it be assumed in the case before us, and
the papers presented on the motion for a stay
advise us that such is the fact, that the
commissioner, on hearing, deemed the evidence
sufficient to sustain the charges, and
certified his findings and the testimony to
the Secretary of State, and a warrant for the
surrender of Terlinden on the proper
requisition was duly issued, it cannot be
successfully contended that the courts could
properly intervene on the ground that the
treaty under which both governments had
proceeded, had terminated by reason of the
adoption of the constitution of the German
Empire, notwithstanding the judgment of both
governments to the contrary.
Id. at 289-90 (emphasis added).
Therefore, contrary to the panel opinion's
suggestion, the district court correctly concluded that Terlinden
teaches that this court has jurisdiction to examine whether the
Hong Kong extradition request fulfills the obligations undertaken
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by the United Kingdom under the treaty. See Lui, 1997 WL at *4.
Unlike Terlinden, the relator in this case does not argue that
the extradition treaty under which he has been sought has been
terminated because the requesting sovereign no longer exists.
Instead Lui argues and the record reveals that the Crown Colony
of Hong Kong, though it currently exists, will not try or punish
him before reversion and thus does not meet the conditions
imposed by Articles I and XII of the treaty and the Terlinden
requirement that an authority requesting a relator's extradition
must be "competent to try and to punish him." 184 U.S. at 289.
As I read it, Article XII indicates that the United
States and the United Kingdom undertook an agreement to extradite
relators but only for trial and punishment in the courts and
prisons of each other. Because it is conceded that the
extradition request in this case will result in Lui's being tried
and punished under the courts of another sovereign, my reading of
Articles I and XII of the treaty convince me that the British
Hong Kongese authorities fail to live up to the obligations
undertaken by the United Kingdom. If Lui may be extradited at
all pursuant to the bilateral US-UK extradition treaties, I read
the relevant treaty provisions to say that this may occur only if
the United Kingdom or authorities accountable to it retain
exclusive jurisdiction over Lui's person following Hong Kong's
reversion to China. Because the Crown Colony will surrender
custody over Lui and jurisdiction over his criminal case to the
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Chinese successor regime, I am of the opinion that the
extradition request in this peculiar set of circumstances
constitutes a violation of the relevant treaty terms. As such, I
believe that no certification of extraditability can issue from
this court pursuant to the US-UK extradition treaty and 18 U.S.C.
3181, 3184.
II. The Re-extradition Prohibition
II. The Re-extradition Prohibition
Lui's case also presents a difficult question with
respect to whether the United Kingdom's surrender of sovereignty
over Hong Kong to China in July 1997 would effect an
impermissible re-extradition with respect to Lui under the terms
of Article XII. For the reasons that follow, I believe it would.
Article XII in relevant part provides that "[a]
person extradited [to a requesting Party] shall not . . . be
extradited by that Party to a third State." Here, upon
reversion, the United Kingdom will surrender sovereignty and
responsibility for the administration of justice in Hong Kong to
China. In the event that Lui is extradited to Hong Kong prior to
reversion, the record shows beyond question that he will be
surrendered to the courts and judicial system of a third-party
sovereign state for prosecution. The difficulty lies in
determining whether reversion and Lui's surrender to the Chinese
regime that will succeed the Crown Colony amounts to another
extradition.
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The plain meaning and derivations of the words
"extradite" and "extradition" help lead me to conclude that the
surrender contemplated for Lui would constitute another
extradition. The dictionary definition of "extradite" is, "To
deliver up, as to another state or nation." Funk & Wagnalls New
Comprehensive International Dictionary of the English Language
450 (1978). "Extradition" is alternatively defined in
dictionaries as, "The surrender of an accused person by a
government to the justice of another government, or of a prisoner
by one authority to another," id., as "the surrender of an
alleged fugitive from justice or criminal by one state, nation,
or authority to another," The Random House Dictionary of the
English Language 685 (2d ed. 1987), and as, "The surrender or
delivery of an alleged criminal usu[ually] under the provisions
of a treaty or statute by one country, state, or other power to
another having jurisdiction to try the charge." Webster's Third
International Dictionary 806 (1986).6
Legal usage has followed the word's plain meaning.
Black's Law Dictionary defines "extradition" by closely
paraphrasing the formula given in Terlinden, wherein the Supreme
6The derivation of the English word is from the
French, Old French and ultimately Latin equivalents.
Specifically, the English "extradition" stems from a Latin
union of the prefix ex- [out] and traditio [a delivery or
surrender], the latter word flowing from traditus, the past
participle of tradere [to deliver], which, in turn, stems
from the conjunction of trans- [across] and dare [give]. See
Funk & Wagnalls New Comprehensive International Dictionary of
the English Language 450, 1330 (1978).
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Court defined "[e]xtradition" as "the surrender by one nation to
another of an individual accused or convicted of an offence
outside its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to
punish him, demands the surrender." 184 U.S. at 289 (emphasis
added); Black's Law Dictionary 526 (5th ed. 1979) (replacing the
word "nation" with "state or country").
International practice is consistent with this legal
usage of the term. Prohibitions on re-extradition, like that
found in Article XII, are fundamental features of "many
[extradition] treaties" that are generally interpreted to give
force to the broad principle of international law that "a person
extradited to one state may not be extradited or otherwise
surrendered to a third state for prosecution." Restatement
(Third) of Foreign Relations Law 477 cmt. d.
The operative plain meaning of the word, its legal
usage, international practice, and its etymological derivation
all indicate that the surrender which the record shows and the
government concedes is contemplated for Lui would constitute
another extradition. Upon reversion, the United Kingdom will
surrender sovereignty to China as well as surrender jurisdiction
over and custody of criminal defendants like Lui. Using the
Terlinden definition, on the peculiar circumstances in this case,
upon reversion: (1) Lui will be "surrender[ed] by one nation to
another"; (2) he will be "an individual accused . . . of an
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offence outside [the extraditing authority's] own territory,"
because authority over that territory will pass from the United
Kingdom to China; (3) the offenses for which Lui is accused "will
be within the territorial jurisdiction" of the receiving
authority, viz., China; and (4) the receiving authority, under
Sino-British international agreements, specifically the Joint
Declaration regarding reversion, will be "competent to try and to
punish him." 184 U.S. at 289.
Having canvassed the relevant sources that help to
illuminate the meaning of the word "extradition," I believe that
the revealed reality that the Crown Colony will surrender custody
over Lui and jurisdiction over his criminal case to the Chinese
successor regime contemplates another extradition in violation of
Article XII of the US-UK bilateral extradition treaty. A
decision of the Ninth Circuit, on which the panel opinion in the
instant case relies, reaches a contrary result. See Oen Yin-Choy
v. Robinson, 858 F.2d 1400, 1403-04 (9th Cir. 1988). Starting
from the premise that this case is not controlling in this court,
this circuit should decline to follow this decision because I
believe that its argument is neither thorough nor persuasive.
Moreover, the Ninth Circuit was faced by a fact pattern quite
unlike the heightened and unique circumstances present in Lui's
case and thus was not required to squarely face the issue
presented here.
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In Oen, the United States Attorney, acting on behalf
of the United Kingdom and the Crown Colony of Hong Kong,
initiated extradition proceedings against Oen in April 1987, a
full decade before the scheduled date of reversion. Id. at 1403.
Oen was charged with false accounting and publishing a false
statement, extraditable offenses under Article III of the US-UK
extradition treaty. Id. at 1405. Oen argued that if he was
extradited and convicted then the possibility existed that he
would remain incarcerated beyond July 1, 1997, the date of
reversion. He argued that this hypothetical scenario would have
the effect of extraditing him to China in violation of Article
XII of the treaty. Id. at 1403.
The Ninth Circuit disagreed and concluded that the
Terlinden definition of "extradition" meant that "[n]either
deportation nor surrender other than in response to a demand
pursuant to Treaty constitutes extradition." Id. at 1404.
Having thus rephrased the Terlinden definition, the Ninth Circuit
panel concluded that "even if Oen becomes subject to Chinese
authority pursuant to a reversion of sovereignty upon cession and
termination of the British lease of Hong Kong, he will not have
been extradited to China." Id. (emphasis added).
I find the Oen court's conclusion unsatisfactory for
three reasons. First, as my previous discussion elaborates, it
does not follow from either the commonly settled meaning of the
word "extradition" or the term's operative legal usage, as
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manifested by the Supreme Court's definition in Terlinden.
Instead it proceeds upon a rearticulated and truncated sense of
the term that does not correspond to Terlinden and that cuts
against international practice and the meaning that the term and
its French and Latin cognates have carried since Roman antiquity.
Second, even on its own terms, the Oen court
misapplied the meaning of the word "extradition." Specifically,
even if one accepts the Oen view that a surrender must be
effectuated in response to a demand pursuant to treaty in order
for it to constitute an extradition, then a Hong Kong relator's
post-reversion surrender would qualify. In view of the treaty
architecture that surrounds the impending reversion and the
provisions in the Joint Declaration that address the juridical
and legal transfer of sovereignty, it is difficult to see how the
Crown Colony will surrender custody over Lui and jurisdiction
over his criminal case to the Chinese successor regime in the
absence of the demands on his person qua criminal defendant that
owe their legal status solely to treaty. See, e.g., Sino-British
Joint Declaration, para. 1 ("The Government of the People's
Republic of China declares . . . that it has decided to resume
the exercise of sovereignty over Hong Kong with effect from 1
July 1997.").7
7The surrender of sovereignty and Chinese demands
on Hong Kongese criminal defendants upon reversion all flow
from treaty provisions. The United Kingdom's sovereignty
over Hong Kong stems from cessions of territory made in 1842
(pursuant to the Treaty of Nanking) and 1860 (pursuant to the
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Third, the factual pattern in Oen was radically
dissimilar to the one that the court faces in this case. In Oen,
the relator raised only a distant hypothetical possibility that
he would remain incarcerated in Hong Kong prisons following
reversion some ten or nine years later. No one doubted that Oen,
upon extradition, would be tried and, if necessary, sentenced by
courts of the British Crown Colony and imprisoned in Crown Colony
gaols.
The Oen court thus did not address itself to the
situation in this case, where it is certain as a practical matter
and conceded by the government that the relator's trial would not
be under the courts of the British Crown Colony. Therefore, the
Oen decision did not fully address the issue that squarely
confronts us today, whether Lui's surrender to Chinese
authorities after reversion for trial will amount to another
Convention of Peking) and a ninety-nine year lease contained
in the Convention of Beijing, June 9, 1898. See Shawn B.
Jensen, International Agreements Between the United States
and Hong Kong Under the United States-Hong Kong Policy Act, 7
Temp. Int'l & Comp. L.J. 167, 168-69 (1993); see also 1
Treaties and Agreements with and Concerning China, 1894-1919,
130, No. 1898/11 (1921) (cited in Oen, 858 F.2d at 1403).
Moreover, the three constitutive parts of Hong Kong -- Hong
Kong proper (1842), Kowloon (1860), and the New Territories
(1898) -- are scheduled to revert to China on July 1, 1997
pursuant to the Sino-British Joint Declaration which was
signed on December 19, 1984 and entered into force on May 27,
1985. See Jensen, supra, at 170-73. That international
agreement, by addressing the Chinese successor regime's
executive, legislative, and judicial powers, provides for the
transfer of jurisdiction over persons accused of criminal
offenses and in custody in Hong Kong at the date of
reversion. See Joint Declaration, para. 3(3).
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extradition. Read closely, Oen simply refuses to conclude that a
previously convicted, already incarcerated prisoner is extradited
upon reversion. This is not the predicament with Lui. I thus
believe that Oen is unpersuasive and not on point.
III.
III.
Legislative Intent, Judicial Deference, and Separation of Powers
Legislative Intent, Judicial Deference, and Separation of Powers
Lui's case also presents a difficult question with
respect to whether certification of extradition in the
circumstances known to the court and conceded by the government
would comport with the legislature's intent in ratifying the US-
UK extradition treaties. For the reasons the follow, I do not
believe certifying Lui for extradition would accord with
legislative intent.
The legislative history surrounding the United States
Senate's ratification of the supplementary treaty, which the
district court ably canvassed, indicates that the Senate was
concerned about the extent and degree to which it could trust the
United Kingdom and its judicial system to be fair and just,
ultimately concluding that the United Kingdom's courts were
worthy of confidence. See 99th Cong., 2d Sess., 132 Cong. Rec.
9119-71 (daily ed. July 16, 1986) (reprinting the Senate floor
debate on ratification) (cited in Lui, 1997 WL at *6). In my
view, to interpret the bilateral treaties between the United
Kingdom and the United States so as to allow the benefits of such
specially placed trust to be assumed by a non-signatory sovereign
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would fail to adhere to the Senate's intent. As the district
court explained, "[i]t is clear beyond rational dispute that the
Senate would not have ratified had there been any suggestion that
the Treaty provisions could be extended, even by circumstance, to
China." Lui, 1997 WL at *6.
I reach this conclusion understanding full well that
the United States signed an agreement on December 20, 1996 with
the government of the fledgling Hong Kong Special Administrative
Region ("HKSAR"), the British Crown Colony's successor, which
provides for reciprocal post-reversion extradition. See
Agreement Between the Government of the United States of America
and the Government of Hong Kong for the Surrender of Fugitive
Offenders, Dec. 20, 1996. However, the new treaty constitutes a
different bargain than the one voted upon by the Senate when it
ratified the US-UK bilateral treaties. Moreover, the new
agreement will not enter into force, if it indeed does so, until
such time as the Senate, to which the new treaty was submitted on
March 3, 1997, gives its advice and consent by a constitutionally
required two-thirds vote. See U.S. Const. art. II, 2; 143
Cong. Rec. S1846 (daily ed. Mar. 3, 1997).8
8In reaching this conclusion, I am mindful of the
United States-Hong Kong Policy Act of 1992 (commonly known as
the McConnell Act), codified at 22 U.S.C. 5701-5732. As
commentators have explained, this congressional enactment
"allows the United States to treat Hong Kong, where
appropriate, as a separate entity from the PRC for purposes
of U.S. domestic law." Christopher K. Costa, Comment, One
Country-Two Foreign Policies: United States Relations With
Hong Kong After July 1, 1997, 38 Vill. L. Rev. 825, 855
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In my view, therefore, the recently signed US-HKSAR
extradition treaty is itself highly probative of the proper
interpretation that must be given to the existing bilateral
extradition treaties between the United States and the United
Kingdom under which Lui's extradition to Hong Kong is being
sought. Put simply, these treaties do not survive the surrender
of sovereignty to China and do not contemplate the surrender of
relators to stand trial in courts under the sovereign aegis of
China. See Janice M. Brabyn, Extradition and the Hong Kong
Special Administrative Region, 20 Case W. Res. J. Int'l L. 169,
173 (1988) ("Hong Kong's extradition relationships with other
states ha[ve] always been exclusively vested in the British
Crown. . . . Hong Kong's present extradition powers and relations
are [thus] a direct consequence of, and are dependent upon, its
colonial status. If nothing is done between now and 1997, both
powers and relations will end when that colonial status ends.").
In ratifying the US-UK bilateral extradition
treaties, I believe the political branches have judged the
(1993). Under the McConnell Act's provisions, "the areas in
which separate treatment is appropriate are determined by the
terms of the [Sino-British] Joint Declaration . . . . [which]
grants Hong Kong a 'high degree of autonomy' in nine areas:
economic policy, trade, finance, monetary policy, shipping,
communications, tourism, culture and sport." Id. The
McConnell Act would not appear to have any direct bearing on
this case, which involves foreign affairs and international
law enforcement, because "[t]he Act does not establish a U.S.
policy toward Hong Kong in the two areas reserved to PRC
control by the Joint Declaration--defense and foreign
affairs." Id. at 856; see also Jensen, supra note 7, at 180-
81.
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justice system of the United Kingdom and of the British Crown
Colony of Hong Kong to be sufficiently fair to send accused
persons there for trial. Until such time as the Senate ratifies
the US-HKSAR extradition treaty no such similar expression of
faith or trust has been made by the political branches with
respect to China or to the Chinese successor to the British Crown
Colony, which, if he is extradited, will try and punish Lui. The
United States currently has no extradition treaty with China,
which enjoys extradition relations with but one other country,
Russia. Separation of powers principles and judicial self-
restraint counsel that this court is not at liberty to interpret
Article XII of the US-UK extradition treaty in such a way so as
to yield a result for which the Senate did not bargain in
ratifying the US-UK extradition treaty and which it is currently
debating in the form of the recently submitted US-HKSAR
agreement. See 143 Cong. Rec. S1846 (daily ed. Mar. 3, 1997).
Of special import is the fact that the supplemental
US-UK treaty was ratified by the Senate in 1986 at a time when it
was fully aware of the widely publicized Sino-British Declaration
regarding Hong Kong's reversion in 1997. The supplemental treaty
nonetheless does not limit or otherwise circumscribe the terms of
Article XII of the main treaty. As the panel's opinion explains,
the supplemental treaty, as ratified by the Senate in 1986, "is
entirely silent on the question of reversion." Slip op. at 11.
Because Article XII, on my reading, allows only for extradition
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for offenses that can be tried and punished by the requesting
sovereign, and because the supplemental treaty does not create
any exception for reversion-affected relators like Lui, the
treaty, as I read it and as the district court found, indicates
that no right to demand extradition and no corresponding duty to
surrender Lui exists where it is conceded that Lui will not be
tried under courts of the United Kingdom or its dependent
territories.
This silence in the face of Article XII's apparent
requirement that relators are only to be tried by the judicial
authorities of the two Contracting Parties is telling because the
presumption in American and international law is against
extraditability in the absence of any treaty-created right or
obligation. Applicable Supreme Court precedent and "[t]he
principles of international law recognize no right to extradition
apart from treaty. While a government may, if agreeable to its
own constitution and laws, voluntarily exercise the power to
surrender a fugitive from justice to the country from which he
has fled . . . the legal right to demand his extradition and the
correlative duty to surrender him to the demanding country exist
only when created by treaty." Factor v. Laubenheimer, 290 U.S.
276, 287 (1933) (emphasis added); see also 18 U.S.C. 3181,
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3184; Restatement (Third) of Foreign Relations Law 475 & cmt.
a.9
Despite the foregoing, the panel opinion construes
the US-UK treaties as requiring Lui's extradition to Hong Kong by
invoking, inter alia, the principles that extradition treaties
are to be construed liberally in favor of enforcement, see slip
op. at 15 (citing Laubenheimer, 290 U.S. at 298), and with great
deference to executive branch interpretation. See id. at 14-15
(citing Laubenheimer, 290 U.S. at 295; Howard, 996 F.2d at 1330-
31 & n.6).
9The United States recognizes only one statutory
exception to this principle. Specifically, 18 U.S.C.
3181(b) permits "the surrender of persons, other than
citizens, nationals, or permanent residents of the United
States, who have committed crimes of violence against
nationals of the United States in foreign countries without
regard to the existence of any treaty of extradition" upon
the fulfillment of certain criteria. The instant case
involves allegations of economic crimes and thus does not
implicate this recently and narrowly drawn exception to the
generally operative principle of American and public
international law.
As the quotation from Laubenheimer indicates, it
should be understood that this opinion draws a distinction
between voluntary extradition and extraditability as of right
or obligation. "[I]t is now clear that apart from a treaty a
state has no duty to deliver up a person who has sought
asylum within its boundaries. If the state wishes, it can
afford him a refuge and protection . . . . Of course, a state
is under no duty to afford asylum to a fugitive; it may expel
him from its territories if it choose, and without complaint
from the individual who is expelled." United States ex rel.
Donnelly v. Mulligan, 74 F.2d 220, 222 (2d Cir. 1934). This
distinction may appear academic in light of the government's
expressed desire to extradite Lui in this case, but it is a
distinction that is not without significance.
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These arguments, while worthy of consideration,
ultimately fail to justify a result that does not correspond to
the relevant treaty provisions in Articles I and XII or to the
congressional intent reflected therein, viz., that the United
States agrees to extradite fugitives sought by authorities in the
United Kingdom and its dependent territories to be prosecuted in
the courts and under the law of those jurisdictions. I agree
with the district court that a refusal to certify Lui for
extradition requires no untoward judicial interference with
prerogatives constitutionally entrusted in the executive branch
of government. On the contrary, separation of powers principles
and the prevention of undue encroachment upon the Senate's
constitutional prerogatives counsel against certifying Lui for
extradition under the peculiar circumstances present in his case.
Specifically, I do not agree that refusing
certification in Lui's case along the lines that the district
court established implies any judicial arrogation of the
executive's power over our affairs with foreign nations. Under
the analysis ably laid out by the district court, the refusal to
certify Lui's extraditability does not stem from any assessment
or judgment about the fairness or trustworthiness of the Chinese
judicial or penal systems, a determination that the third branch
of government is not generally empowered or as qualified as the
political branches to make. The district court correctly
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concluded that the certification question is an entirely legal
one and that
it would not matter if China's legal system
were more efficient and humane than either
the United States' or the United Kingdom's.
The bottom line is that the terms of the
Treaty do not allow extradition when the
requesting sovereign is unable to try and to
punish the relator. [And t]he Crown Colony
of Hong Kong will be unable to try and to
punish Lui prior to reversion.
Lui, 1997 WL at *6.
I therefore cannot agree with an interpretation of
the US-UK bilateral treaties that would permit circumstances to
conspire so as to allow a relator to be extradited to Hong Kong
where the practical reality is that China, a sovereign state with
which the United States has no extradition treaty, will try and
punish Lui. Neither can I agree with the panel opinion's
conclusion that, because Lui's extradition is sought by the
current Hong Kong regime, the right to demand extradition and the
correlative duty to surrender him in fact do exist, regardless of
what is conceded will transpire upon his arrival in Hong Kong.
The opinion correctly notes that "governments of our
treaty partners often change, sometimes by ballot, sometimes by
revolution or other means, and the possibility or even certainty
of such change does not itself excuse compliance with the terms
of the agreement embodied in the treaties between the countries."
Slip op. at 3. But the instant case does not raise the question
presented by a mere change in government, whether peacefully or
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violently accomplished. Instead it represents a situation in
which sovereignty over a particular territory, Hong Kong, will
revert from one sovereign, the United Kingdom, with whom the
United States has signed and ratified an extradition treaty, to
another sovereign, the People's Republic of China, with which the
United States currently has no such treaty relationship.
In my view, this court cannot fail to differentiate
between a change in government, which ordinarily does not affect
treaty-based obligations, and a change in sovereignty brought
about when territory of one sovereign state is ceded and becomes
part of the territory of another preexisting state, which
generally terminates the effect of treaties of the predecessor
state with respect to the territory in question. See Vienna
Convention on Succession of States in Respect of Treaties, art.
15, U.N. Doc. A/CONF. 80/31 (1978), 72 Am. J. Int'l L. 971
(1978).10
10Although the Convention on Succession presently
lacks the requisite signatories for it to enter into force, and
although the United States is not a signatory, the Convention is
nonetheless viewed as an authoritative statement of the rule
governing the succession of states under public international
law. See Jensen, supra note 7, at 180-81 (citing Michael
Akehurst, A Modern Introduction to International Law 159 (1987)
(noting that while the Convention on Succession "is not yet in
force . . . many of its provisions codify the customary
international law on the subject")).
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Whatever difficulties may arise in sorting out
succession questions in other contexts,11 in this case it is
clear -- and the executive branch does not question -- that Hong
Kong will not succeed to the rights and obligations contained in
the US-UK extradition treaties, as might have been the case had
Hong Kong become an independent state in its own right rather
than reverting to Chinese sovereignty. See, e.g., Brabyn, supra
at 174 ("For treaty-based relations, ex-colonies can often rely
upon the general principles of treaty succession [to secure
continuity in international legal relations]. . . . Hong Kong
[however] is not moving from colonial status to independence. It
is being restored to the sovereignty, or resuming its place as
part, of the PRC. . . . [After reversion, existing international
treaties involving Hong Kong] must be read as subject to
incompatibility with the sovereignty of the PRC.").
Accordingly, I believe that this court must recognize
that the Crown Colony's present ability to fulfill the
requirements imposed by the US-UK extradition treaties can only
be assessed in light of the concession that the Crown Colony will
not in fact try or punish him and with an eye to the fact that
the Chinese successor regime in Hong Kong will not succeed to the
Crown Colony's extradition rights and obligations. See id.
11See generally D.P. O'Connell, State Succession in
Municipal Law and International Law (2 vols. 1967); D.P.
O'Connell, The Law of State Succession (1956); Louis Henkin et
al., International Law 286 (3d ed. 1993); Restatement (Third) of
Foreign Relations Law 208, Reporters' Note 1.
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Because of these facts, this court cannot certify Lui for
extradition because the Crown Colony's extradition request fails
to live up to the United Kingdom's promise, as I believe
memorialized in the terms of the extradition treaties, to try all
relators extradited from the United States in courts under its
jurisdiction.
Finally, I am unpersuaded by the panel's argument
that refusing to certify Lui for extradition would be improper
because it might mean that "any relator extradited from the
United States to Hong Kong at any point since the signing of the
Joint Declaration, was, if he faced a term of imprisonment upon
conviction that could conceivably extend past the date of
reversion, sent to Hong Kong in violation of the Treaty." Slip
op. at 30.
In the first place, as I explained earlier in
discussing Oen, Lui's case raises a peculiar set of
circumstances. The record indicates and the government concedes
that Lui will be both tried and, if convicted, punished under a
judicial and penal system not under the jurisdiction of the
United Kingdom. Second, I am not persuaded by the panel's
argument that refusing to certify Lui might cast aspersions on
the rectitude of other near-reversion extraditions and thus "make
extradition to Hong Kong . . . the exception rather than the
rule." Slip op. at 29 (quoting Oen, 858 F.2d at 1404). The
implication would appear to be that this cannot be what the
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Senate intended. In view of the legislative considerations and
determinations that I have outlined above, I do not believe that
this court can speculate that the unavailability of extradition
to Hong Kong in the circumstances of this case fails to uphold
the Senate's expressed concerns and legislated intent. The US-UK
extradition treaties do not just implicate Hong Kong; they are
comprehensive agreements that encompass the United Kingdom and
all the territories dependent upon it.12 I cannot agree with the
panel's implication that the district court's interpretation
would have been a deal-breaker and the Senate would have refused
to ratify the treaties if it had been told that their terms would
be interpreted to prevent Lui's extradition in these
circumstances. On the contrary, I believe that the district
court was much nearer the mark when it concluded that "[i]t is
clear beyond rational dispute that the Senate would not have
ratified had there been any suggestion that the Treat[ies']
provisions could be extended, even by circumstance, to China."
Lui, 1997 WL at *6.
To conclude, this court faces a situation that my
research indicates has no truly analogous counterpart in the
annals of modern international law. Because I do not believe
that the panel's opinion reaches the correct result, and because
I believe that the full court should hear and consider the
12See supra note 2.
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numerous difficult legal questions that this case raises, I would
grant the petition for en banc review.
For the foregoing reasons, I respectfully dissent
from the denial of the petition.
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