
USCA1 Opinion

	




                            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"].                                                                                               -2-                                          2            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"].                                          -3-                                          3            (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.").                                         -4-                                          4                      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                                         -5-                                          5            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                                         -6-                                          6            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                                         -7-                                          7            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.                                         -8-                                          8                      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                                         -9-                                          9            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                                    _________                                         -10-                                          10            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                                         -11-                                          11          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                                         -12-                                          12          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.                                         -13-                                          13                      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).            ____________________                                         -14-                                          14          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                                         -15-                                          15          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.                                         -16-                                          16                      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                                         -17-                                          17          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                                         -18-                                          18                      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).                          ___                                         -19-                                          19          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                                         -20-                                          20          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            ____________________________                                         -21-                                          21                      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.                                         -22-                                          22          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                                         -23-                                          23          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,                                              ___ ____                                         -24-                                          24          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.                                         -25-                                          25                      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                                         -26-                                          26          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                                         -27-                                          27          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")).                                         -28-                                          28                      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.                                         -29-                                          29          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                                         -30-                                          30          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.                        ___ _____                                         -31-                                          31          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.                                         -32-                                          32
