Text: S.Hrg. 115-623 — TREATIES
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[Senate Hearing 115-623]
[From the U.S. Government Publishing Office]
S. Hrg. 115-623
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
DECEMBER 13, 2017
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COMMITTEE ON FOREIGN RELATIONS
BOB CORKER, Tennessee, Chairman
JAMES E. RISCH, Idaho BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado TOM UDALL, New Mexico
TODD, YOUNG, Indiana CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio JEFF MERKLEY, Oregon
RAND PAUL, Kentucky CORY A. BOOKER, New Jersey
Todd Womack, Staff Director
Jessica Lewis, Democratic Staff Director
John Dutton, Chief Clerk
C O N T E N T S
Risch, Hon. James E., U.S. Senator from Idaho.................... 1
Shaheen, Hon. Jeanne, U.S. Senator from New Hampshire............ 2
Visek, Richard, Acting Legal Adviser, U.S. Department of State,
Washington, DC................................................. 3
Prepared statement........................................... 5
Swartz, Bruce, Deputy Assistant Attorney General, U.S. Department
of Justice, Washington, DC..................................... 10
Prepared statement........................................... 12
Additional Material Submitted for the Record
Responses to Additional Questions for the Record Submitted to
Richard Visek by Senator Tim Kaine............................. 23
Correspondence in Support of the Treaties........................ 25
WEDNESDAY, DECEMBER 13, 2017
Committee on Foreign Relations,
The committee met, pursuant to notice, at 2:32 p.m., in
Room SD-419, Dirksen Senate Office Building, Hon. James E.
Present: Senators Risch [presiding], Shaheen, and Kaine.
OPENING STATEMENT OF HON. JAMES E. RISCH,
U.S. SENATOR FROM IDAHO
Senator Risch. The committee will come to order.
And thank you so much, all of you who are attending today.
We are going to hear today from the State Department and the
Department of Justice regarding five treaties that are pending
before this committee.
First of all, we have two extradition treaties with Serbia
and Kosovo. These treaties update a century-old treaty with
what was then the Kingdom of Serbia. While this earlier treaty
continues to govern our extradition law with Serbia and Kosovo,
it does not include the modern extradition principles the
United States has relied on and included in its extradition
treaties in recent years.
For example, both treaties will be updated from so-called
list treaties, whereby an offender may only be extradited under
a specific list of crimes to dual criminality treaties. Dual
criminality allows for extradition for offenses that are crimes
in both countries.
Another important improvement is that both of these
treaties will now allow for the extradition of nationals. Since
1990, the U.S. has supported the policy of allowing the
extradition of nationals, a policy we have pursued with other
nations in our recent extradition treaties.
Both these modern principles, dual criminality and the
extradition of nationals, were included in last year's
extradition treaties with the Dominican Republic and Chile, two
treaties approved unanimously by the Senate.
As Mr. Swartz will discuss, these updated treaties will
improve the ability of our Department of Justice in fighting
terrorism and transnational crime.
Next, we have two treaties, which, if ratified, would
establish maritime boundaries between the Republic of Kiribati
and the Federated States of Micronesia and the United States.
These treaties would formalize boundaries that have been
informally adhered to by the parties. Because of improved
methods of calculation, the State Department expects the
treaties will create a small net gain of continental shelf
jurisdiction and exclusive economic zone for the United States.
Finally, we have the U.N. Convention on the Assignment of
Receivables. This treaty was negotiated with significant U.S.
assistance. As our witness Mr. Visek will note, the treaty
substantially reflects U.S. law and is strongly supported by
the U.S. business community.
In a letter to this committee, the Chamber of Commerce has
noted that the convention, if ratified, will make it easier for
Senator Shaheen. Business. [Laughter.]
Senator Risch [continuing]. Small business, which we are
the chairman and ranking member of, to access additional
For example, if ratified, the convention would provide
these businesses with more certainty. They would be able to
secure lending based on their sales of goods and services to
customers located in other countries that ratify the
Both the ranking member and I are always focused on things
that are helpful to small businesses.
The convention's rules will thus facilitate access to
asset-based financing in which their foreign receivables serve
In February, President Trump signed an executive order on
the core principles for regulating the U.S. financial system,
establishing principles that will enable American companies to
be competitive with foreign forms in domestic and foreign
markets, and advance American interests in international
financial regulatory negotiations and meetings. By agreeing to
this treaty, we will be able to accomplish both of those goals.
The Senate plays a unique constitutional role in providing
advice and consent on treaties. This hearing is part of that
constitutional responsibility, and we always undertake our
constitutional responsibilities soberly.
So with that, gentlemen, do we have a volunteer to go
first? That would be you, Mr. Visek.
I am very sorry. I yield to the ranking member.
STATEMENT OF HON. JEANNE SHAHEEN,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Shaheen. Thank you, Mr. Chairman.
And thank you to our witnesses for being here today.
I am pleased that the committee is considering these five
treaties before us. As was noted by Avril Haines at a hearing
last week, deliberations before this committee relative to
treaties have reached historic lows. And I think that most of
my colleagues on the committee, both Republican and Democrat,
are eager to reverse this trend and help enhance U.S.
leadership in the world.
The treaties we are deliberating today touch on a range of
matters, from international business to maritime boundaries and
the rule of law, as the chairman has said. They not only
further United States' interests, but they raise standards
across the globe. In this increasingly complex, interconnected
world, we need the consistency and uniformity that treaties
provide now more than ever.
If the Senate provides its advice and consent, the treaties
that we are considering today will raise living standards and
improve local economies and markets worldwide and in the United
And as Chairman Risch has said, he and I serve as chair and
ranking member of the Small Business Committee, so it is nice
to promote anything that is going to help small businesses in
the United States.
The two extradition treaties that are before us also merit
special attention because they are a testament to the
advancement of the rule of law in our transatlantic community.
And 20 years after the devastating war in the Balkans and over
a century after the first treaty between the United States and
what was then the Kingdom of Serbia, the United States, Kosovo,
and Serbia are finally establishing a reliable, modern, legal
framework to help prosecute crimes and bring criminals to
And finally, in a world where border disputes continue to
lead to bloodshed and war, the maritime border treaties with
Micronesia and Kiribati demonstrate the power of diplomacy and
Now, while I continue to worry that recent threats and
actions to withdraw the U.S. from international agreements will
cause long-term damage to U.S. credibility and posture, I am
encouraged by this committee's consideration of these important
treaties today, and I look forward to hearing from our
witnesses and participating in more treaty hearings to come.
So thank you, Mr. Chairman.
Senator Risch. Thank you, Senator Shaheen.
We will turn to our panel of witnesses. First, Mr. Richard
Visek, who is the acting legal adviser at the State Department.
STATEMENT OF RICHARD VISEK, ACTING LEGAL ADVISER,
U.S. DEPARTMENT OF STATE, WASHINGTON, DC
Mr. Visek. Thank you, Mr. Chairman. And thank you, Ranking
Mr. Chairman, members of the committee, I am pleased to
appear before you today to testify in support of five treaties
being considered by the committee. Before proceeding with brief
remarks, I would note that I did prepare a more detailed
statement, and I would ask that that be submitted.
Senator Risch. That will be included in the record, Mr.
Mr. Visek. Thank you.
Senator Risch. Thank you very much for doing that.
Mr. Visek. The five treaties before the committee are the
extradition treaties with Kosovo and Serbia, the maritime
boundary delimitation treaties with Kiribati and the Federated
States of Micronesia, and the United Nations Convention on the
Assignment of Receivables in International Trade.
The administration appreciates the committee's
prioritization of these treaties. Individually and
collectively, these treaties advance U.S. interests.
The extradition treaties will enhance our ability to combat
transborder criminal activity. The maritime boundary treaties
will improve our ability to explore, benefit from, conserve,
and manage the natural resources of our maritime areas. And the
receivables convention will help U.S. businesses gain access to
The administration supports each of these treaties and
urges the Senate to provide its advice and consent to their
Let me say a few words about each of these treaties, and
then I will be pleased to respond to the committee's questions.
The two extradition treaties pending before the committee
will update our existing treaty relationships with two law
enforcement partners, Kosovo and Serbia. The continuing growth
in transborder criminal activity underscores the need for
increased international law enforcement cooperation.
Extradition treaties are essential tools in that effort.
The U.S. extradition relationships with Kosovo and Serbia
are currently covered by a 1901 treaty between the United
States and the Kingdom of Serbia. The two treaties now before
the committee would establish modern extradition relationships
with both countries, allowing us to engage in closer and more
effective law enforcement cooperation.
For example, as the chairman noted, the proposed treaties
adopt a dual criminality approach contained in our other modern
treaties. This allows extradition for offenses punishable in
both states by imprisonment or deprivation of liberty for a
period of one year or more.
The treaties also contemplate the unrestricted extradition
by each treaty party of its own nationals by providing that
nationality is not a basis for denying extradition. Given that
Kosovo and Serbia permit extradition of their nationals only
pursuant to a treaty or international agreement, this will
allow for each state to extradite its nationals to the United
States. My colleague Bruce Swartz from the Department of
Justice will address these treaties in further detail.
The maritime boundary treaties with Kiribati and the
Federated States of Micronesia delimit the exclusive economic
zone, or EEZ, and continental shelf between the United States
and these countries. Delimited boundaries provide legal
certainty that enhances our ability to explore, benefit from,
conserve, and manage the natural resources of our maritime
areas, including with respect to our fisheries.
The treaties provide for the delimitation of the boundaries
on the basis of equidistance. With appropriate technical
adjustments, each treaty formalizes boundaries that have been
informally adhered to by the parties and that are very similar
to the existing limit lines of the EEZ asserted by the United
States for decades.
Because of improved calculation methodologies and minor
coastline changes, the four new maritime boundaries in these
two treaties will result in a small net gain, primarily with
respect to Kiribati boundaries, of the United States' EEZ and
continental shelf area, relative to the existing limit lines of
The form and content of the two maritime boundary treaties
are very similar to each other and to previous maritime
boundary treaties between the United States and other Pacific
island countries that have entered into force after receiving
the Senate's advice and consent. The treaties clarify the
geographic scope of our sovereign rights and jurisdiction, and
they reinforce other countries' recognition of the U.S. EEZ and
continental shelf entitlements around the U.S. islands in
The Convention on the Assignment of Receivables in
International Trade establishes uniform international rules
governing a form of financing widely used in the United States
involving the assignment of receivables. Expanded access to
receivables financing in international trade, which the
convention would promote, will provide American businesses an
additional source of capital at no cost to the U.S. taxpayer
and require no material change to existing U.S laws. This
should particularly benefit small- and medium-sized businesses
that use receivables financing.
The convention, which is largely based on U.S. law,
provides modern, uniform rules for transactions in which
businesses either sell their rights to payments from their
customers to a bank or other financial institution or use their
rights to these payments as collateral for a loan from a
lender. Such transactions enable businesses to obtain greater
access to capital and credit at lower cost.
The negotiation of the convention was supported by the U.S.
Uniform Law Commission and members of the American Law
Institute, which developed the applicable provisions of the
U.S. Uniform Commercial Code that govern receivables financing
in each State in the United States. Members of both
organizations participated in the U.S. delegation as the
convention was being negotiated.
In addition, a committee of experts, with participation by
both organizations, recommended understandings and declarations
to accompany U.S. ratification of the convention, aimed at
ensuring consistency with practice under U.S. law and
facilitating application of the convention in the United
States. The executive branch's proposed set of understandings
and declarations is consistent with these recommendations.
The convention enjoys wide support in the U.S. business
community. Leading U.S. business associations, including the
U.S. Chamber of Commerce, have urged U.S. ratification of the
Thank you for the opportunity to testify in support of
these treaties. I would be happy to respond the committee's
questions about them.
[Mr. Visek's prepared statement follows:]
Prepared Statement of Richard Visek
Mr. Chairman, members of the committee, I am pleased to appear
before you today to testify in support of five treaties being
considered by the committee:
extradition treaties with Kosovo and Serbia,
maritime boundary delimitation treaties with Kiribati and the
Federated States of Micronesia, and
the United Nations Convention on the Assignment of Receivables in
The administration appreciates the committee's prioritization of
these treaties. Individually and collectively, these treaties advance
U.S. interests. The extradition treaties will enhance our ability to
combat transborder criminal activity. The maritime boundary treaties
will improve our ability to explore, benefit from, conserve, and manage
the natural resources of our maritime areas. And the Receivables
Convention will help U.S. businesses gain access to capital. The
administration supports each of these treaties, and urges the Senate to
provide its advice and consent to their ratification. During the
remainder of my testimony, I will discuss the five treaties in
extradition treaties with kosovo and serbia
The two extradition treaties pending before the committee will
update our existing treaty relationships with two important law
enforcement partners--Kosovo and Serbia. The continuing growth in
transborder crime, including terrorism, other forms of violent crime,
drug trafficking, cybercrime, and the laundering of the proceeds of
criminal activity, underscores the need for increased international law
enforcement cooperation. Extradition treaties are essential tools in
The U.S. extradition relationships with Kosovo and Serbia are
currently governed by the Treaty Between the United States of America
and the Kingdom of Servia for the Mutual Extradition of Fugitives from
Justice, signed on October 25, 1901 (``the 1901 Treaty''). We have
found that this treaty is not as effective as the modern treaties we
have in force with other countries in ensuring that fugitives may be
brought to justice. The two treaties now before the committee would
establish modern extradition relationships with both countries, thereby
allowing us to engage in closer and more effective law enforcement
Replacing outdated extradition treaties with modern ones (as well
as negotiating extradition treaties with new partners where
appropriate) is necessary to create a seamless web of mutual
obligations to facilitate the prompt location, arrest and extradition
of international fugitives. As a result, these treaties are an
important part of the administration's efforts to ensure that those who
commit crimes against American victims will face justice in the United
Both new treaties contain several important provisions that will
substantially serve our law enforcement objectives:
First, these treaties define extraditable offenses to include
conduct that is punishable by imprisonment or deprivation of liberty
for a period of one year or more in both states. This is the so-called
``dual criminality'' approach. Our older treaties, including the 1901
Treaty, provide for extradition only for offenses appearing on a list
contained in the instrument. The problem with this approach is that, as
time passes, the lists grow increasingly out of date. The dual
criminality approach eliminates the need to renegotiate treaties to
cover new offenses in instances in which both states pass laws to
address new types of criminal activity. By way of illustration, so
called ``list Treaties'' from the beginning of the 20th century do not
cover various forms of cybercrime or money laundering. The new treaties
with Kosovo and Serbia would fix this problem.
Second, these treaties address one of the most difficult and
important issues in our extradition treaty negotiations--the
extradition of nationals. As a matter of long-standing policy, the U.S.
Government extradites United States nationals and strongly encourages
other countries to extradite their nationals. Both of the treaties
before the committee contemplate the unrestricted extradition of
nationals by providing that nationality is not a basis for denying
extradition. This provision is particularly important in the context of
Kosovo and Serbia because of certain provisions in their domestic law.
Kosovo's Supreme Court has ruled that its new constitution only permits
the extradition of Kosovo nationals where required by international
agreement. Kosovo has been clear that this provision in the treaty will
overcome that obstacle, allowing them to extradite their nationals to
the United States. Similarly, Serbia has domestic legislation that also
permits extradition of nationals only pursuant to an obligation of a
treaty to which Serbia is a party. Similarly, they have been clear that
the provision on extradition of nationals in the new treaty overcomes
Third, the treaties include a modern ``political offense''
exception that states that extradition shall not be granted if the
offense for which extradition is requested is a political offense, but
establishes a number of categories of offenses that shall not be
considered political offenses. These categories of offenses cover a
range of violent crimes, including murder, kidnapping and hostage
taking, and the use of various kinds of explosive devices. These
categories of offenses, which did not exist in earlier extradition
treaties, constitute exceptions to the political offense exception and
align with a major longstanding priority of the United States to ensure
that an overbroad definition of ``political offense'' does not impede
the extradition of terrorists.
Fourth, unlike the 1901 Treaty, these new treaties contain a
provision that permits the temporary surrender of a fugitive to the
Requesting State when that person is facing prosecution for, or serving
a sentence on, charges within the Requested State. This provision can
be important to the Requesting State (and in some cases the fugitive)
so that, for example: (1) charges pending against the person can be
resolved earlier while evidence is fresh, or (2) where the person
sought is part of a criminal enterprise, he can be made available for
assistance in the investigation and prosecution of other participants
in the enterprise.
Fifth, both of these treaties incorporate a number of procedural
improvements over the 1901 Treaty, including direct transmission of
provisional arrest requests through Justice Department channels, waiver
and consent to extradition, and clear statements of the required
materials to be included in a formal extradition request.
For all these reasons, U.S. ratification of the extradition
treaties with Kosovo and Serbia will help us and our colleagues at the
Justice Department further develop two important law enforcement
relationships and advance our objective of combatting transnational
maritime boundary treaties with kiribati and
the federated states of micronesia
In an area where more than one country has maritime entitlements
under international law, maritime boundaries are needed to clarify
where each country may exercise its sovereignty, sovereign rights, and
jurisdiction as a coastal State. In this connection, it is often noted
that ``good fences make good neighbors.'' Delimited boundaries also
provide legal certainty that enhances our ability to explore, benefit
from, conserve, and manage the natural resources of our maritime areas,
including with respect to our fisheries. Resolving the outstanding
maritime boundaries of the United States around the world remains an
ongoing project, with about a dozen such boundaries yet to be fully
agreed with our neighbors.
These two treaties delimit the exclusive economic zone (or ``EEZ'')
and continental shelf between the United States and Kiribati, and
between the United States and the Federated States of Micronesia (FSM),
on the basis of equidistance. (Every point on an equidistance line is
equal in distance from the nearest point on the coastline of each
country.) This approach is wholly in line with international law and
practice, and moreover serves to formalize the longstanding status quo
regarding each side's asserted rights and jurisdiction in these
maritime areas. Accordingly, with appropriate technical adjustments,
each treaty formalizes boundaries that have been informally adhered to
by the Parties, and that are very similar to the existing limit lines
of the EEZ asserted by the United States for decades and published in
the Federal Register. Because of improved calculation methodologies and
minor coastline changes, the four new maritime boundaries in these two
treaties will result in a small net gain, primarily with respect to the
Kiribati boundaries, of United States EEZ and continental shelf area
relative to the existing limit lines of our EEZ.
The treaty with FSM establishes a single maritime boundary between
Guam and several FSM islands. The boundary is approximately 447
nautical miles with 16 turning and terminal points. The treaty with
Kiribati establishes three maritime boundaries in the Pacific with
respect to the EEZ and continental shelf generated by various Kiribati
islands and by each of the U.S. islands of Palmyra Atoll, Kingman Reef,
Jarvis Island, and Baker Island. Specifically, the treaty with Kiribati
defines three distinct boundary lines: for the boundary line between
the United States' Baker Island and the Kiribati Phoenix Islands group,
six points are connected by geodesic lines that measure 332 nautical
miles in total; for the boundary line between the United States' Jarvis
Island and the Kiribati Line Islands group, ten points are connected by
geodesic lines that measure 548 nautical miles in total; and for the
boundary line between the U.S. islands of Palmyra Atoll and Kingman
Reef and the Kiribati Line Islands group, five points are connected by
geodesic lines that measure 383 nautical miles in total.
The form and content of the two treaties are very similar to each
other, and to previous maritime boundary treaties between the United
States and other Pacific island countries that have entered into force
after receiving the Senate's advice and consent. Each of the two
treaties consists of seven articles, which set out the purpose of each
treaty; the technical parameters; the geographic location of the
boundary lines; standard language indicating the agreement of the
Parties that, on the opposite side of each maritime boundary, each
Party will not ``claim or exercise for any purpose sovereignty,
sovereign rights, or jurisdiction with respect to the waters or seabed
or subsoil''; a clause that the establishment of the boundaries will
not affect or prejudice either side's position with respect to the
rules of international law relating to the law of the sea; a provision
for dispute settlement by negotiation or other peaceful means agreed
upon by the Parties; and a provision that entry into force would follow
an exchange of notes indicating that each side has completed its
internal procedures. For the purpose of illustration only, the
boundaries are depicted on maps attached to the treaties.
The treaties do not limit how we may choose to manage, conserve,
explore, or develop the U.S. EEZ and continental shelf consistent with
international law; they merely clarify the geographic scope of our
sovereign rights and jurisdiction consistent with international law and
with longstanding unilateral U.S. practice, and they reinforce other
countries' recognition of the U.S. EEZ and continental shelf
entitlements around the U.S. islands in question.
united nations convention on the assignment of
receivables in international trade
The United Nations Convention on the Assignment of Receivables in
International Trade establishes uniform international rules governing a
form of financing widely used in the United States involving the
assignment of receivables. Expanded access to receivables financing in
international trade, which the Convention would promote, will provide
American businesses an additional source of capital at no cost to the
U.S. taxpayer and require no material change to existing U.S. laws.
This should particularly benefit small and medium-sized businesses that
use receivables financing.
The Convention, which is largely based on U.S. law, provides
modern, uniform rules for transactions in which businesses either sell
their rights to payments from their customers (known as
``receivables'') to a bank or other financial institution, or use their
rights to these payments as collateral for a loan from a lender (the
businesses selling or using their receivables as collateral are
referred to as ``assignors'' and buyers and lenders are referred to as
``assignees''). Such transactions enable businesses to obtain greater
access to credit at lower cost and thereby expand their operations.
These so-called ``assignments of receivables'' transactions are
well established in the United States as a method of obtaining low-cost
credit, and are governed by Article 9 of the Uniform Commercial Code
(UCC), which has been adopted by all U.S. States and the District of
Columbia, Puerto Rico, and the Virgin Islands. The Convention provides
economically-useful rules for cross-border transactions involving
receivables typically generated in the exchange of goods or services
for payment and from other commercial transactions.
The assignment of these types of receivables is common and
relatively easy to effect in the United States when only domestic
assignors and domestic receivables are involved. When these
transactions cross international boundaries, however, determining
whether U.S. law or the law of another country applies is fraught with
uncertainty--not only as to which country's laws apply but also the
nature of those laws. In addition, even if one can determine which
country's laws apply and what those laws say, those laws may not be
very helpful for receivables financing. As The Convention addresses
both aspects of these problems--the conflict of laws problem and
substantive legal rules problem.
1. The Key Conflict of Laws Provision
The Convention governs assignments of receivables that have an
international dimension. In particular, the Convention applies both to
assignments of receivables when the assignor and the debtor on the
receivables (``account debtor'' for U.S. law purposes) are located in
different countries and to the assignment of receivables when the
assignor and the assignee of the receivables are located in different
countries. In either case, without the benefit of the Convention, the
fact that the transaction involves more than one country creates
uncertainty as to which country's substantive law governs because the
conflict of laws rules that would determine the answer vary
significantly from one country to another. Even after determining which
country's law governs, one must determine what that law is and how it
applies to the transaction. This uncertainty adds significant risk to
these international transactions, making credit based on them harder to
obtain and more costly.
One of the most important aspects of the Convention is Article 22,
which sets forth a clear rule as to which country's substantive law
governs the priority of an assignee's interest in receivables as
against competing claimants. Competing claimants may include other
assignees of the same receivable, creditors of the assignor who have
obtained rights in the receivable, or a bankruptcy trustee of the
assignor. Article 22 provides that the law of the country in which the
assignor of the receivable is located governs the priority of the
assignment against competing claimants. This is critically important
because assignees are unlikely to enter into receivables financing
transactions on favorable credit terms if there is uncertainty as to
the priority of their claim to the receivables.
2. Substantive Rules Governing the Assignment of Receivables
In addition to the conflict of laws rule, the Convention also
provides a set of clear substantive rules governing important aspects
of receivables financing, including practices that facilitate
receivables financing and provide for a predictable resolution of
issues that follows the general approach of UCC Article 9. Those
Convention rules would override limitations in effect in many countries
that restrict the usefulness of receivables financing (but not United
States law under UCC Article 9, because the Convention rules are
largely consistent with UCC Article 9). For example, Article 8 of the
Convention, consistent with UCC Article 9, makes effective (1) the
assignment of existing and future receivables to secure current and
future advances, (2) the bulk assignment of receivables, and (3) the
assignment of partial and undivided interests in receivables even if a
country's internal law (unlike the United States) would otherwise
restrict these transactions. It also reduces the need for excessive
formality and documentation costs by permitting the receivables that
are assigned to be described generally in the contract of assignment,
which is consistent with UCC Article 9.
For assignments within the scope of the Convention, Article 9 of
the Convention, like Article 9 of the UCC, overrides certain
contractual limitations on assignments of trade receivables. Consistent
with UCC Article 9, the treaty provides that the assignment of such a
receivable is effective notwithstanding any agreement between the
account debtor (i.e. the debtor on the receivable) and the assignor
(i.e. the account debtor's creditor) limiting the assignor's right to
assign that receivable. This provision is particularly useful in
transactions in which a business assigns a large number of its
receivables created under a number of transactions because it avoids
the otherwise hefty costs of the lender examining each contract
creating a receivable to see if the contract limits assignment of the
The Convention also sets out certain rights and obligations of the
assignor and assignee that flow from the assignment of the receivables.
For example, under Article 13, the assignee may notify the debtor and
request payment. Article 14 sets out the assignee's right as against
the assignor to proceeds of receivables (such as cash payments when the
receivable has been collected).
Because the Convention contains rules reflecting modern receivables
financing practices consistent with those in UCC Article 9, widespread
ratification of the Convention will help countries outside the United
States modernize their receivables financing laws and enable this type
of access to credit for companies engaged in cross-border trade without
causing disruption to businesses in the United States that rely on, and
have mastered, the rules in UCC Article 9.
3. Relationship to U.S. Law
There is a strong correspondence between the Convention and U.S.
law. Negotiation of the Convention was supported by the leadership of
the Uniform Law Commission (ULC) and members of the American Law
Institute (ALI) (the ULC's partner in developing the UCC). Members of
both organizations participated in the U.S. delegation to the United
Nations Commission on International Trade (UNCITRAL) as the Convention
was being negotiated. In fact, the timing of the Convention coincided
with the domestic revision of UCC Article 9, and many of the
participants in the U.S. law reform project also participated in the
preparation of the Convention.
After the Convention was adopted, a ULC Committee, along with
experts from the ALI, reviewed the Convention for the purpose of
determining its suitability for ratification by the United States. They
issued a committee report, which was approved by the ULC, proposing
formulations for declarations and understandings, aimed at assuring
consistency with practice under UCC Article 9 and facilitating
application of the Convention in the United States. As reflected in the
treaty transmittal package, the executive branch has proposed
declarations and understandings to accompany the Senate's advice and
consent to the Convention. These proposed declarations and
understandings are consistent with the recommendations of the ULC and
ALI committee of experts. They would provide additional clarity about
how the United States will implement the Convention domestically and
facilitate its application in a manner consistent with existing
practice in the United States under UCC Article 9. Proposed
understandings address the scope of the Convention (including its
inapplicability to securities and to rights other than contractual
rights to payment under intellectual property licenses), the ability of
states to provide additional rights to an assignee with respect to the
proceeds of a receivable beyond the minimum level of rights required by
the Convention, and the meanings of certain terms used in the
Convention. Proposed declarations address how the Convention will apply
in the context of certain insolvency proceedings, how it will apply to
certain contracts entered into by governmental entities or other
entities constituted for a public purpose, and rules for determining
which U.S. state laws will apply in circumstances where the Convention
requires reference to applicable U.S. law. In addition, a proposed
declaration provides that the United States will not be bound by
optional provisions of the Convention addressing choice of law rules.
These proposed understandings and declarations are discussed in detail
in the treaty transmittal package.
The treaty would be self-executing, which is consistent with the
recommendation of the ULC Committee. There is no need for federal or
state implementing legislation. Ratification of the Convention would
not change U.S. practice in this area in any material respect. The
Convention's rules are largely based on U.S. law and will produce
substantially the same results as those under the UCC Article 9.
4. Benefits of U.S. Ratification
Widespread ratification of the Convention would help businesses in
the United States gain access to capital to conduct international
trade. The importance of these benefits is underscored by the support
the Convention has received from the U.S. business community. Industry
associations that have written to the committee to express their
support for the Convention include the Financial Services Roundtable,
the U.S. Chamber of Commerce, the Bankers Association for Trade and
Finance, the Commercial Finance Association, the Equipment Leasing and
Finance Association, and the U.S. Council for International Business.
The American Bar Association and the Uniform Law Commission have also
expressed their support for the Convention.
Because the Convention is based on U.S. law, and because of the
leading role the United States has played in receivables financing,
other countries will be less likely to join the Convention if the
United States declines to ratify it. Currently, one country--Liberia--
has ratified the Convention. Five countries must ratify it in order for
it to enter into force. U.S. ratification could have a particularly
important leadership impact in this regard. There are currently a
number of regional initiatives underway focused on reforming the law of
secured transactions, including in Latin America, Africa, and the Asia-
Pacific region. Expanded ratification of the Convention in the near
term has the potential to influence these initiatives and to expand the
acceptance and use of the Convention's framework for receivables
financing in these regions. In addition, the European Union (EU) is
currently involved in an effort to develop an internal legal framework
concerning the law applicable to third party effects of the assignment
of receivables. While there is significant support in the EU for the
approach taken in the Convention (and thus under U.S. law), there is
also some support for alternative choice of law rules in some cases
that would be inconsistent with the Convention and would thus introduce
uncertainty into receivables financing governed by the alternative
rules. U.S. ratification could helpfully influence the EU process to
ensure that the framework adopted is consistent with the Convention
(and therefore U.S. law).
In summary, ratification of the Convention is an important step to
providing American businesses a significant additional source of
capital at no cost to the U.S. taxpayer and no material change to
existing U.S. laws. These benefits will be particularly important for
small and medium sized businesses that use receivables financing.
Widespread ratification of the Convention would give American
businesses an additional advantage in international transactions as the
Convention mirrors American law and practices.
The administration urges the Senate to provide advice and consent
to their ratification.
Senator Risch. Thank you very much, Mr. Visek.
We are now going to hear from Bruce Swartz, who is Deputy
Assistant Attorney General and Counselor for International
STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Swartz. Thank you. Mr. Chairman, members of the
committee, the two modern extradition treaties with Kosovo and
Serbia that are before the committee today directly advanced
the interests of the United States in fighting international
terrorism and transnational crime.
Mr. Chairman, as you noted, both these treaties update and
replace the 1901 treaty between the United States and the
Kingdom of Serbia. As was typical at the time of the 1901
treaty, these were list treaties at that period. That is, they
set out a series of offenses, a rather narrow set of offenses,
subject to extradition. Those treaties at the time also did not
require the extradition of nationals.
The modern extradition treaties before you, in contrast,
update and deal with both of these defects, and, in so doing,
protect American citizens and advance our law enforcement
The treaties accomplish this in four different respects.
First, as has been noted, it deals with the issue of
nationality as a bar to extradition, and that has practical
consequences for U.S. law enforcement. Under the new treaties,
nationality will no longer serve as an obstacle to extradition.
But under the existing treaties, we have encountered, both with
regard to Kosovo and Serbia, what happens when nationality can
be a bar.
So, for instance, with respect to Kosovo, the United States
sought but was unable to obtain the extradition of a Kosovar
national who committed murder and then fled back to Kosovo.
Similarly, with regard to Serbia, nationality served as a bar
to the extradition of a Serbian national, who while a student
in the United States committed a brutal assault on a fellow
American and then fled back to Serbia.
Neither of those results will follow under the new, modern
extradition treaties with Kosovo and Serbia.
Senator Risch. Will the new treaties allow us to reach back
Mr. Swartz. Mr. Chairman, they will. In the case of the
treaty with Serbia, we can reach back as far as 2005. That is,
with offenses from 2005 forward, nationality will not be a bar.
Prior to that time, it will be discretionary. But we believe
that will reach most of the offenses, particularly given the
passage of time under the statute of limitations.
But that also leads, Mr. Chairman, to the second respect in
which we have a significant advance in these treaties, and that
is the substitution of dual criminality, as it is referred to,
for an approach that just lists a particular set of crimes. By
taking out the perspective that only crimes listed in the
treaty are the ones subject to extradition, we now have an
approach that deals with the evolution of crime.
So, for instance, the original treaty, the 1901 treaty, did
not contemplate such crimes as cybercrime or particular forms
of terrorism. Now, however, under the approach of dual
criminality--in which an offense that is punishable by more
than 1 year of imprisonment in both countries serves as a basis
for extradition--we will be able to reach modern forms of
criminality, and we will have treaties that evolve as crime
evolves. There will be no need to change a list that exists.
The third respect in which these treaties are a significant
advance is their reach to extraterritorial offenses. Here, too,
we have seen the practical bar that can exist under the 1901
For instance, in the case of Kosovo, the United States
sought the extradition of an individual who was engaging in
material support of terrorism by using his computer in Kosovo
to facilitate the travel of foreign terrorist fighters to Iraq
and Afghanistan. Because the 1901 treaty does not reach
offenses of that nature, extraterritorial offenses, because it
only covers offenses that take place within the country seeking
extradition, extradition was denied as to that individual. But
again, under the modern treaty, extraterritorial offenses will
be covered. And that is particularly important for offenses
such as terrorism and narcotics trafficking.
And then in the fourth respect, the treaty has a number of
provisions that expand and speed extradition. Those include
provisions that make clear that, when the United States seeks
extradition from Kosovo or Serbia, it will be our statute of
limitations that controls, not those of the requested state.
Similarly, it streamlines provisional arrest, which is the
ability to arrest a fugitive before a full extradition package
is submitted. And it also allows for temporary surrender, which
means that we can seek the extradition of someone being held in
prison in Kosovo or Serbia for immediate trial in the United
States, and then return to have him or her serve out the
remainder of their sentence in those countries.
So in all four of these respects, we are overcoming not
just theoretical obstacles but practical obstacles that we have
encountered with respect to our extradition relationship with
Kosovo and Serbia. These represent significant advances, and
they are consistent with the approach we have taken in
modernizing our extradition treaties and extending the network
of extradition treaties.
We are very grateful for the support we have had from this
committee for that process. We believe that, together, we have
been able to ensure that fugitives have fewer safe havens
around the world. And we, therefore, are very happy to have
this opportunity to advance these treaties.
We would request, respectfully, favorable consideration by
committee. And I look forward to answering any questions you
Thank you, Mr. Chairman.
[Mr. Swartz's prepared statement follows:]
Prepared Statement of Bruce Swartz
Mr. Chairman and members of the committee, I am pleased to appear
before you today to present the views of the Department of Justice on
extradition treaties between the United States and the Republics of
Kosovo and Serbia. These historic treaties directly advance the
interests of the United States in fighting terrorism and transnational
At the outset, I wish to note that the decision to proceed with the
negotiation of law enforcement treaties such as these is made jointly
by the Departments of State and Justice, after careful consideration of
our international law enforcement priorities. The Departments of
Justice and State also participated together in the negotiation of each
of these treaties. Accordingly, we join the Department of State today
in urging the committee to report favorably to the Senate and recommend
its advice and consent to ratification.
The Departments of Justice and State have prepared and submitted to
the committee detailed analyses of the extradition treaties in the
Letter of Submittal. In my testimony today, I will concentrate on why
these updated extradition treaties are important instruments for United
States law enforcement agencies engaged in investigating and
prosecuting terrorism and other serious criminal offenses.
the u.s.-republic of kosovo extradition agreement
At the outset, I must note for this committee that the United
States and Kosovo currently operate under the 1901 extradition treaty
between the United States and the Kingdom of Servia. Kosovo is treated
as a successor state under that instrument. The ``list'' treaty is
antiquated and limited, and is not suitable for meeting 21st Century
law enforcement challenges. I will further elaborate on this point
later in my testimony.
Pursuant to a June 1999 United Nations Security Council resolution,
the U.N. established an international civil and security presence in
Kosovo, the U.N. Interim Administrative Mission in Kosovo (UNMIK),
which still exists today. In September 2012, international supervision
ended, and Kosovo became responsible for its own governance. While an
UNMIK team had been handling prosecutions in Kosovo, the Kosovars have
now assumed most of this responsibility.Despite being relatively new,
Kosovar prosecutors are competent, establishing fair jurisprudence, and
observing fundamental due process.
To fully empower both Kosovar and U.S. law enforcement officials
with the tools that they need to combat global crime, a new extradition
treaty is necessary. The Extradition Treaty before this committee
includes both substantive and procedural ``improvements'' from the 1901
treaty. Allow me now to highlight a few of these critical improvements.
The Extradition Treaty before this committee contains new
substantive provisions that did not exist in the 1901 extradition
treaty. Perhaps most importantly, the new Extradition Treaty
accommodates the requirements of the Kosovar constitution to permit
extradition of nationals. The Kosovo Supreme Court has ruled that
citizens of Kosovo cannot be extradited under the language of the 1901
treaty, because the treaty provides that neither country is bound to
extradite its nationals, and the Kosovo constitution prohibits the
extradition of nationals in the absence of a bilateral extradition
treaty requiring such extraditions. As a consequence, in recent years,
Kosovo denied a U.S. extradition request where the U.S. sought a
fugitive for murder. The denial was premised on the fugitive's Kosovo
citizenship. Under the new Extradition Treaty, extradition can no
longer be refused solely on the basis of the nationality of the person
Moreover, the new Extradition Treaty not only allows for the
extradition of nationals, but expands the types of crimes for which
extradition can be sought. While the existing 1901 extradition treaty
defines extraditable offenses by reference to a list of crimes
enumerated in the treaty itself, the treaty before this committee
reflects the reality that crimes have become increasingly complex over
the last century. A ``list treaty'' may present limits to extradition
for newly emerging forms of criminality that the United States has a
strong interest in pursuing, such as cybercrime and environmental
offenses. The new Extradition Treaty will replace the old list of
offenses with a modern ``dual criminality'' provision. This means that
the obligation to extradite applies to all offenses that are punishable
in both countries by a minimum term of imprisonment of more than one
year. This is a critical improvement, since extradition will be
possible in the future with respect to the broadest possible range of
serious offenses, without the need to repeatedly update treaties as new
forms of criminality are recognized.
This expansive provision is material to our extradition requests
for extraterritorial offenses. For the United States, extraterritorial
jurisdiction is important in two areas of particular concern: drug
trafficking and terrorism. Under the 1901 treaty, Kosovo recently
denied our extradition request for a fugitive wanted for prosecution on
charges of providing material support for terrorism--having facilitated
the travel of foreign fighters--although communicating from Kosovo with
other facilitators via the Internet. The Supreme Court of Kosovo held
that the language of the 1901 extradition treaty did not provide for
extradition of a person for a crime committed in the requested state.
Under the new Extradition Treaty, Kosovo will no longer be able to deny
our extradition requests on the sole basis that a criminal act occurred
in Kosovo, not in the United States.
Furthermore, the new Extradition Treaty ensures that the only
applicable statute of limitations is that of the country making the
extradition request. Accordingly, this provision ensures that the U.S.
prosecutors will maintain procedural control over the viability of
their cases, rather than being at the mercy of foreign statutes of
In addition to the substantive improvements, the Extradition Treaty
before this committee includes procedural enhancements, which
streamline the extradition process. For example, the Treaty contains a
``temporary surrender'' provision, which allows a person found
extraditable, but already in custody abroad for another criminal
charge, to be temporarily surrendered for purposes of trial. Absent
temporary surrender provisions, we face the problem of delaying the
fugitive's surrender, sometimes for many years, while the fugitive
serves out a sentence in another country. As a result, during this
time, the U.S. case against the fugitive becomes stale, and the victims
are delayed justice for the crimes committed against them.
Further, the Extradition Treaty also allows the fugitive to waive
extradition, or otherwise agree to immediate surrender, thereby
substantially speeding up the fugitive's return in uncontested cases.
The Treaty also streamlines the channels for seeking ``provisional
arrest''--the process by which a fugitive can be immediately detained
while documents in support of extradition are prepared, translated, and
submitted through the diplomatic channel--and the procedures for
supplementing an extradition request that already has been presented to
the requested country.
Together, the procedural and substantive improvements to the
Extradition Treaty will ensure that U.S. prosecutors and law
enforcement officials are better positioned to combat crime in an ever
globally integrated and interdependent world.
the u.s.-republic of serbia extradition agreement
The United States and Serbia also operate pursuant to the same 1901
extradition treaty between the United States and the Kingdom of Servia.
However, unlike Kosovo, as applied to Serbia, the 1901 treaty is
augmented by the extradition provisions applicable under multilateral
conventions to which Serbia and the United States are parties. As a
practical matter, this permits both countries to extradite fugitives
for a broader scope of conduct apart from the enumerated list of crimes
in the 1901 treaty. For example, both countries are party to the United
Nations Transnational Organized Crime Convention, the U.N. Convention
against Corruption, and the 1988 Vienna Drug Convention, all of which
serve to augment the provisions in existing bilateral extradition
Nevertheless, none of these multilateral treaties addresses one of
the most important aspects of modern extradition practice: allowing for
the extradition of nationals. In contrast, much like the proposed U.S.-
Kosovo Extradition Treaty, the U.S.-Serbia Extradition Treaty before
this committee, allows for the extradition of nationals.
Furthermore, unless the U.S. and Serbia become parties to an
exhaustive list of multilateral conventions that cover every possible
crime, we leave ourselves vulnerable to the possibility of gaps. The
U.S.-Serbia Extradition Treaty before this committee minimizes the
possibility of these gaps. As is found in the proposed U.S.-Kosovo
Extradition Treaty, the U.S.-Serbia Treaty under consideration includes
a ``dual criminality'' provision, which allows extradition with regards
to all offenses that are punishable in both countries by a minimum term
of imprisonment of more than one year.
In addition to the provision which allows extradition of nationals,
and the inclusion of the critical ``dual criminality'' method, the
U.S.-Serbia Extradition Treaty before this committee includes all of
the substantive and procedural improvements as contained in the
proposed U.S.- Kosovo Extradition Treaty.
In conclusion, Mr. Chairman, we appreciate the committee's support
in our efforts to strengthen the framework of treaties that assist us
in combatting international crime. For the Department of Justice,
modern extradition treaties are particularly critical law enforcement
tools. To the extent that we can update our existing agreements in a
way that enables cooperation to be more efficient and effective, we are
advancing the protection of our citizens. Accordingly, we join the
State Department in urging the prompt and favorable consideration of
these law enforcement treaties. I would be pleased to respond to any
questions the committee may have.
Senator Risch. Thank you very much. Thank you to both of
We are going to do a round of questions here. Before I do,
I am going to include two pieces of correspondence the
committee has received. One is from the Uniform Law Commission,
the National Conference of Commissioners on Uniform State Laws,
supporting these. And then also I am going to include a letter
signed by a number of primarily financial institutions, and it
is also in support of the treaties. And the U.S. Chamber of
Commerce is also a signatory to those.
[The information referred to above is located at the end of
this hearing transcript.]
Senator Risch. So with that, we are going to do some brief
questions, and then we are going to submit some questions for
the record for you.
The first one I have, I do not know which one of you wants
to take a swing at this, but can you talk a little bit about
the impact that any of these treaties would have as far as
small business is concerned, and gauge the importance of these
treaties for small businesses here in America?
Mr. Visek, you look like you want to volunteer.
Mr. Visek. That is just my nature. Thank you, Mr. Chair.
I think the benefits for small- and mid-sized businesses
will obviously be most prevalent with respect to the U.N.
Convention on the Assignment of Receivables in International
I think the challenge for small businesses and mid-sized
businesses is oftentimes obtaining sufficient cash flow and
working capital. And currently, U.S. companies can be hampered
in their ability to increase their exports because they have
difficulty obtaining working capital financing based on
receivables arising from the sale of exported goods.
These companies could obtain financing by offering the
receivables as collateral for loans from U.S. banks and other
lenders. However, these lenders often are unwilling to make
loans secured by receivables owed by customers in other
countries whose laws are inconsistent with modern commercial
finance practice. They may also be deterred by the fact that
they have to be concerned about perfecting their claims in
multiple countries because the choice of law rules may not be
Widespread ratification of the convention would go a long
way towards remedying this situation. It is hoped that, if the
United States were to ratify the convention, which in large
measure dovetails with and is based on Article 9 of the Uniform
Commercial Code, it would serve as a catalyst and prompt other
nations to follow suit.
In turn, that would create greater uniformity and reduce
the legal risks associated with cross-border transactions
involving those countries, and it would provide uniform rules
that would go a long way, if you will, toward making it easier
to obtain not only capital but also financing for export
In turn, this, hopefully, would enable small, mid-size, and
large companies to enhance the growth of their exports by U.S.
companies, because they would be able to obtain the financing.
And in turn that would presumably help U.S. companies compete
in the global marketplace and create new jobs in the United
Senator Risch. Mr. Swartz?
Mr. Swartz. And, Mr. Chairman, if I might add, extradition
treaties also, although they are not oftentimes seen in this
respect, serve as a benefit to U.S. companies both large and
small. Among other things, it makes possible the return of
fugitives who have sought to defraud U.S. companies, and that
is important for certainty that punishment will be extended to
those who acted against U.S. companies.
And it is particularly important under these modern
treaties that cybercrime is now covered as well, since we know
that through business email compromise and other types of fraud
schemes using the internet, American companies have been taken
So we fully expect these treaties will be at the interests
of not only the U.S. citizens but U.S. companies as well.
Senator Risch. Thank you very much.
Mr. Visek, you made reference to Article 9 of the UCC. When
I was in law school, I wrote a treatise regarding that, and I
am going to spare you the niceties of going into the details of
that, at the risk of putting my colleagues to sleep.
One last question. This committee has, at times over the
years, considered what we call the Law of the Sea Treaty. It is
actually the U.N. Convention on the Law of the Sea. The one
treaty we have discussed here between the Republic of Kiribati,
the Federated States of Micronesia, and the United States, does
it have any connection, any effect, have anything to do with
the Convention on the Law of the Sea Treaty?
Mr. Visek. The short answer is that the accession to the
Law of the Sea Convention is a separate issue from the
Federated States of Micronesia and Kiribati maritime boundary
treaties. The boundary treaties are treaties between the United
States and those respective nations, and they establish EEZ
limits that in many ways resemble the existing EEZ limits that
all the parties informally recognize currently. What it would
do is, in effect, codify those in the form of a treaty and, in
doing so, would provide greater support for them. But they are
independent of what is known as the U.N. Convention on the Law
of the Sea.
And with respect to the Law of the Sea Convention, I think
Secretary Tillerson, during his confirmation process, said that
he will examine the Law of the Sea Convention to determine
whether it is in the continued best interests of the United
States to become a party. And if I recall correctly, the chair
of the committee, Senator Corker, sent a letter to the State
Department asking about our treaty priorities, and we are in
the process of consulting interagency and conducting that
Senator Risch. I appreciate that.
Back to the ones in front of us, does the text of it make
any reference to or suggestion about the Law of Sea Treaty or
Mr. Visek. Senator, without having an encyclopedic memory,
it is my understanding that it does not.
Senator Risch. Would you double-check that and confirm that
Mr. Visek. Yes, we will.
Senator Risch. Thank you.
Mr. Swartz, do you have anything to add to this?
Mr. Swartz. No, Senator, I do not.
Senator Risch. Okay, thank you very much.
Senator Shaheen. Thank you, Mr. Chairman.
Mr. Visek, currently, only one country, Liberia, has
ratified the U.N. Convention on the Assignment of Receivables,
and five countries have to ratify the treaty.
Can you tell us which countries after the United States,
should we ratify, are most likely to file a suit?
Mr. Visek. Thank you, Senator.
Unfortunately, I do not have crystal ball. I can tell you
that other states that have signed are Madagascar and
Luxemburg, in addition to the United States.
I think, though, what makes this convention particularly
ripe at this point is that there is increased interest in
receivables financing globally, as the global economy develops,
both in Asia and Latin America. And the EU itself is looking at
the issue of receivables financing.
The convention was, in large measure, based on U.S. law. I
am reminded of when I studied the Uniform Commercial Code,
which was in 1985, and I felt somewhat emboldened at that
point, only to find out that Article 9 had been amended in the
late 1990s. But it was also about that time, shortly
thereafter, that the convention was being negotiated. So it was
very much informed by UCC Article 9.
I think the way we look at this is, if the United States
has not ratified the convention that is based on its own
Uniform Commercial Code and is consistent with the laws of all
50 States, that sends a negative signal. If we do ratify, and
given the nature of our law, we obviously think we should,
given the importance of the United States to the economic
global environment, I think that would serve as a powerful
catalyst for other nations to follow suit.
It would also influence discussions and consideration in
various nations and within the EU, for example, on how to
approach the financing of receivables.
I hope that answers your question.
Senator Shaheen. That is helpful.
Senator Risch has already talked about the potential impact
on small and medium-sized businesses in the U.S., which I just
want to reiterate that I think is also very important. And as I
understand, one of the benefits of this treaty is that it would
allow business to use international trade deals that they have
already negotiated as collateral for borrowing.
Am I interpreting that correctly?
Mr. Visek. That is correct.
Senator Shaheen. Thank you. So I think it would have a real
benefit in that respect to many of our small and medium-sized
Mr. Swartz, I understand that most extradition treaties bar
extradition for political offenses, but the two extradition
treaties before us today, as I understand, limit the scope of
Can you describe how the exemption has been narrowed? And
is this a common feature among extradition treaties?
Mr. Swartz. Thank you, Senator.
Yes, we have sought to ensure that the political offense
exception is not misused to apply to offenses that we consider
to be crimes, such as murder, terrorist offenses, or other
So it has been the policy of the United States, and in the
prior treaties to which this committee and the Senate have
given advice and consent, to have a list of offenses that are
not covered by the political offense exception. So that covers
multilateral offenses, so the offenses under our various
terrorism conventions. It covers murder, kidnapping, assault,
and similar offenses.
This treaty, the treaty with Kosovo, and similarly the
treaty with Serbia, both add to the offenses, offenses
involving chemical, biological, or radiological weapons, a
further advance that we wanted to solidify in these conventions
to make clear that individuals using such weapons cannot claim
that they did so on a political basis and, therefore, should
not be subject to extradition.
It also has a number of other provisions that make clear
that conspiracy or attempt to engage in such activity is also
not a basis for refusing extradition.
Senator Shaheen. Thank you.
So how does our Department of Justice account for different
perceptions and standards of evidence among the different
nations when we are looking at extradition treaties?
Mr. Swartz. Senator, thank you for that question, because
it does touch on an important point.
When we receive an extradition request, which first is
transmitted through diplomatic channels to the State Department
and assessed at the State Department for consistency with the
treaty before it is sent to the Department of Justice, we at
the Department of Justice, at our Office of International
Affairs, consider in the first instance whether, as
prosecutors, we believe that the evidence submitted establishes
the legal standard required in the United States for
extradition, and that is probable cause. It is not a hearing or
a full trial on the merits, but it is probable cause.
And so the evidence submitted to the Department of Justice,
through the State Department from the foreign country, has to
be sufficient in our perspective to submit to the court. And
then, significantly, the court has to find that probable cause
exists on the evidence provided.
So regardless of the standards of evidence in other
countries, we consistently apply the same standard to our
extradition requests here.
Senator Shaheen. Thank you.
Thank you, Mr. Chairman.
Senator Risch. Senator Kaine?
Senator Kaine. Thank you, Mr. Chairman.
And thanks to the witnesses for you work and for being here
today. I find each of these treaties unobjectionable and look
forward to supporting them, unless I end up with an odd
question or two, in which case I will reach back out to you.
I actually wanted to ask you, as a way of sort of fleshing
out philosophy on these matters, we had a hearing recently in
this committee about sort of the role of the administration and
the Congress on treaties, on things less than treaties,
executive agreements. And one that troubled me recently was the
decision of the United States to withdraw from the Global
Compact on Migration, known as the New York Compact, that the
administration announced 2 weeks ago.
Now, I would like you to correct me if I state this wrong.
My understanding is the New York Compact was a nonbinding
agreement done in the U.N. General Assembly in September 2016
that essentially acknowledged the increasing severity of the
global migrant and refugee crisis, and asked nations to commit
to participating in a dialog about sort of new best practices
for dealing with this.
This is something that the President has spoken about,
about the problems of migrants and refugees. And I think the
President is right. I may have some different ideas from the
President about how to deal with it. We would all have
different ideas. But I do not think you can turn a blind eye to
the fact that the specter of global refugees not just driven by
war or violence but now weather emergencies and droughts and
other significant issues are turning refugees and migrants from
sort of an episodic emergency management challenge to sort of a
permanent reality, which they may well have been throughout
time. But I think the world is coming to grips with that.
The compact involved a meeting in Puerto Vallarta last
week. And shortly before the meeting, the administration
announced it was going to pull out of the compact and not
attend this meeting to discuss best practices.
As an editorial opinion, I do not see how the world deals
with this problem as effectively as the world could deal with
it without the U.S. at the table.
And the administration's asserted rationale for pulling out
was that this nonbinding compact would intrude upon U.S.
Now, in each of these instances, the four treaties before
you, there could be sovereignty issues that would be raised,
and we hashed them out. And it looks like, over time, we have
gotten to a good point. But I could not understand why a
nonbinding compact would raise sovereignty concerns.
And I wanted to ask either of you whether your offices were
involved either in the original work on the New York Compact in
September 2016 or the decision or advice around the decision
that led this administration to withdraw from the compact and
withdraw from the meeting in Mexico.
Mr. Visek. Senator Kaine, I certainly appreciate your
concerns. However, this is an issue that I am not well-versed
in. I apologize for not being more so. And what I would commit,
though, is if we could take that question back and provide you
with a written answer.
Senator Kaine. That would be fine. And I will ask a
specific one for a written answer, but can I just ask--the only
question I really asked was whether your office was involved in
either the discussions around the New York Compact in September
2016 or the decision to remove. I had not asked a substantive
question yet, just was this in the province or jurisdiction of
your office within the Department of State?
Mr. Visek. I understand that we were consulted. I do not
know the extent of those consultations. But certainly, we could
address your question in writing.
Senator Kaine. Then I will ask that specifically for the
Mr. Swartz. Thank you, Senator.
From the law enforcement perspective, my office was not
involved in this matter, but I will also go back to my
colleagues at the Department of Justice and respond more
Senator Kaine. That would be helpful, because I think this
is a law enforcement matter. I mean, migrants and refugees are
a humanitarian crisis and disaster, but one of the reasons the
President often talks about this, correctly, is that, within
migrant or refugee flows, cunning people can hide or spirit
people across borders to try to undertake acts of terrorism, to
try to involve in poaching, human trafficking. The migrant and
refugee problem can often be a mask for real law enforcement
And I think the idea, as I understood it, for the Puerto
Vallarta meeting was to talk about all of those aspects of
migrants and refugees. So I am asking a question that has a
humanitarian and a national security and a law enforcement
So we will craft particular questions for the record about
this and would look forward to your responses.
Senator Risch. Thank you, Senator Kaine.
With that, we want to thank you both.
Senator Shaheen. I have more questions.
Senator Risch. Another round, Senator?
Senator Shaheen. Yes, please.
Senator Risch. All right. Senator Shaheen has a little bit
more for you.
Senator Shaheen. I guess this is for you, Mr. Swartz. I
know that we have a lot of extradition requests with countries.
Are all our extradition treaties with the United States more or
less the same? Are there exceptions?
Mr. Swartz. Senator, thank you for that question as well.
It does go to the heart of the program we have underway to
modernize our treaties. And the answer is no, they are not all
the same because they extend back into the 19th century, in
some cases, and as you know from this hearing, to 1901, with
regard to these two countries before the committee today.
So we have sought in recent times to ensure consistency and
uniformity in the new extradition treaties we negotiate. There
are some differences, depending on particular countries.
But by and large, we have sought, as, Mr. Chairman, you
noted, from the 1990s forward to ensure the extradition of
nationals, to eliminate the list treaty approach and go forward
with dual criminality. So we seek, in that respect, to try and
have a modern approach across all of our treaties.
And if I might ask, Mr. Chairman, if my testimony, which
also touches on this question, if my written testimony could be
submitted for the record as well, I would be grateful.
Senator Risch. We would be happy to have that.
Senator Shaheen. And just to go back to my other question
about the standards of evidence, are there other countries
where we have extradition treaties that actually have higher
standards of evidence than the United States? Do you know the
answer to that?
Mr. Swartz. Largely, extradition treaties do have similar
standards for both sides. Sometimes, there are issues about
exactly how each country interprets the approach. But in
virtually all of our experience, the approach is one that looks
to see whether or not some form of probable cause or
reasonableness exists for the extradition.
Some countries require a fuller production of evidence than
would be required in the United States and vice versa. But
again, largely across the broad range of our treaties, the
approach is similar.
Senator Shaheen. Thank you. And this final question is
really for both of you.
How do we handle terrorists or armed insurgents under
extradition treaties? Do we have any guidance that is different
from other potential people that we are trying to extradite?
Mr. Swartz. Senator, one of the key aspects of updating our
treaty is to reach terrorist offenses, in particular. We have a
strong commitment to pursuing terrorists worldwide, to ensure
that they do not have safe havens. So we have brought a number
of cases from countries around the world where we have
extradition treaties, seeking terrorists or others who have
committed terrorist acts. And we have brought a number of those
individuals back and successfully prosecuted them here in the
Senator Shaheen. And do we have any countries who have not
been willing to give up terrorists, or people who we would
determine to be terrorists and who they have refused to
extradite to the United Sates?
Mr. Swartz. Senator, it is an unfortunate fact that we do
not win all our extradition cases. Of course, that is always
With our key and trusted partners, we have had a large
degree of success with this. If we have denials of extradition,
it is usually not based on the individual being a terrorist or
otherwise. There is oftentimes consideration such as whether
the individual has been prosecuted previously or other factors
that may lead a country to deny extradition.
Senator Shaheen. Thank you.
Thank you, Mr. Chairman.
Senator Risch. Thank you very much, Senator Shaheen. That
is an excellent question.
And we have also had the unfortunate circumstance that some
countries do this informally by simply hiding the individual.
That does not happen often, but we all wish that it was a
perfect world, but it is not, and particularly with
So with that, again, thank you to both of you for
We are going to keep the record open until the close of
business on Friday, and there will be some questions for the
record that will be submitted.
Gentlemen, if you would get your answers back as promptly
as possible, we will be able to complete this matter.
Senator Risch. And so with that, the hearing will be
[Whereupon, at 3:14 p.m., the hearing was adjourned.]
Additional Material Submitted for the Record
Responses to Additional Questions for the Record Submitted to
Richard Visek by Senator Tim Kaine
Question 1. Was the Legal (L) bureau at the State Department or the
DOJ involved in negotiating the New York Declaration on Refugees and
Migration in 2016? Did you play a role or were you consulted on our
Answer. The Office of the Legal Adviser at the Department of State
was consulted and provided input throughout the process of negotiating
the New York Declaration on Refugees and Migrants in 2016, as were
relevant agencies. I am not in a position to speak specifically to the
role of DOJ.
Relevant agencies including the Department of State were also
consulted before the decision was made to end U.S. participation in the
UN process to develop a global compact on migration. The Office of the
Legal Adviser provided advice to Department of State officials as part
of that process.
Question 2. Did legal experts in the State Department or DOJ
determine the New York Declaration was inconsistent with U.S. domestic
law? In what areas? By negotiating as part of this process, could the
standards have been elevated to be consistent with U.S. law as in other
negotiations on multilateral agreements?
Answer. In all multilateral negotiations in which the United States
participates, U.S. negotiators endeavor to ensure that any obligations
or commitments that the United States would assume through the
instrument are consistent with U.S. domestic law and existing
international obligations. The Office of the Legal Adviser supports the
Department in this process. To the extent these efforts do not fully
succeed, the Department may recommend, for example, reservations or
understandings to multilateral treaties or agreements, or explanations
of position with regard to instruments that are not legally binding.
The Department may also recommend that the United States not become a
party to or sign or support a particular instrument. Due to
professional obligations of attorneys providing advice to clients, I am
not in a position to disclose the legal advice the Office of the Legal
Adviser provided to the Department, nor am I in a position to speak to
Question 3. Do you see any utility in the U.S. withdrawing from
this process prior to a final agreement? Could the legal professionals
in your offices have helped shaped a compact on migration to be
consistent with U.S. law as in the United Nations Convention on the
Assignment of Receivables in International Trade?
Answer. As noted above, the State Department and other relevant
agencies were consulted before the decision was made to end U.S.
participation in the UN process to develop a global compact on
migration. Where a policy decision is made to participate in
multilateral negotiations, U.S. negotiators, with support from the
Office of the Legal Adviser, endeavor to ensure that any obligations or
commitments that the United States would assume through the instrument
are consistent with U.S. domestic law and existing international
obligations. Ultimately the question whether to participate in a
multilateral negotiation is a policy judgment, informed by legal
advice. Due to professional obligations of attorneys providing advice
to clients, I am not in a position to comment on the advice the Office
of the Legal Adviser provided on this issue.
Question 4. In negotiations of treaties, international agreements
other than treaties, and instruments containing non-legally binding
political commitments, in which the Department of State participates,
Department negotiators endeavor to ensure that any obligations or
commitments that the United States would assume through the instrument
are consistent with U.S. domestic law and existing international
obligations. The Office of the Legal Adviser supports the Department in
Can you detail how your offices generally ensure that any
international agreement, accord or treaty comply with U.S. law?
Answer. When the Department of State is considering whether the
United States (or an agency thereof) should become party to a treaty or
an international agreement other than a treaty, or should sign or
support adoption of an international instrument containing non-legally
binding political commitments, the Department, including the Office of
the Legal Adviser, reviews the instrument to ensure that it is
consistent with U.S. law and existing international legal obligations
of the United States. As appropriate, other agencies of the U.S.
Government are consulted as a part of this review. For some
instruments, we also consult with any domestic stakeholders who may be
affected. As a result of the review, the Department may recommend, for
example, reservations or understandings to multilateral treaties or
agreements, or explanations of position with regard to instruments that
are not legally binding, to ensure that the United States does not take
on obligations or commitments that would be inconsistent with U.S. law
or existing international obligations.
Question 5. Do you believe non-binding compacts that include
voluntary commitments impinge on U.S. sovereignty?
Answer. The Office of the Legal Adviser is responsible for advising
on legal issues associated with treaties, international agreements
other than treaties, and international instruments that are not legally
binding when they are being considered by the Department of State.
Whether particular instruments are consistent with U.S. interests is a
question that is typically considered by relevant policy officials; the
Office of the Legal Adviser provides legal advice and legal policy
views as appropriate.
Correspondence in Support of the Treaties
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