• 英國引唔引渡 咁都係中國內政?|戴啟思
  • 2020-07-27    

 

Suspending Extradition Arrangements- Interference or Protecting Interests

Dominic Raab, the United Kingdom’s Foreign Secretary, announced on Monday that the Government was suspending the 1997 United Kingdom-Hong Kong Agreement for the Surrender of Fugitive Offenders, commonly called the ‘HK-UK Extradition Agreement’.

This move did not come as a surprise. It had been flagged for a couple of weeks, ever since a coalition of international parliamentarians suggested that extradition arrangements with the HKSAR should be suspended because of the promulgation of the National Security Law on 30 June. Other countries heeded the call and suspended extradition agreements before the United Kingdom acted.

Although the Foreign Secretary’s move would not have come as a surprise, the Chinese Ambassador in London reacted strongly to news of the suspension. He accused the United Kingdom Government of ‘blatant interference’ with China’s domestic affairs and of not following international legal standards.

The Chinese Ambassador to the Court of St James is a stalwart defender of his country’s interests, as he should be, but he is no lawyer.

Extradition agreements are legal instruments but are ultimately governed by political considerations.

They are made in this way. The foreign affairs office or bureau in one country will agree with its counterpart in another country to a legal process for surrendering individuals to the other state for trial or punishment committed in the requesting state’s jurisdiction.

Judges have a vital role to play in making sure that a person caught up in the extradition process will be dealt with fairly and the procedures follow the terms of the extradition agreement. However, judges do not start the extradition process. Nor do they finish it.

The executive authorities will authorise the arrest of a wanted person at the request of another country, but they are not bound absolutely to comply with such a request. At the end of court proceedings that are held to see if there is sufficient evidence to justify extradition, a judge might say that there is. Still, the Government might decide not to surrender the prisoner anyway.

There is, therefore, no obligation under international law for one country to enter into an extradition agreement with another or to agree to a particular form of agreement. Such a requirement would not be consistent with the right of all states to grant asylum to foreign individuals and resist calls to surrender them.

If there is no universal legal requirement to enter into extradition arrangements and no guarantee that you will get your man (or woman) at the end of the day, why bother with them?

The answer is self-interest. No country wants the reputation of being soft on criminals, even if they are only immigrants or visitors who have committed crimes elsewhere. And no country wants criminals to cross international borders to escape prosecution or just punishment for crimes they had committed. An extradition agreement between countries A and B that suits both is mutually beneficial because it contributes to maintaining public order in both places.

Because extradition agreements are regarded as a good thing, the international community encourages states to enter into them out of a sense of comity. Sometimes, there is near unanimity in the international community that individuals wanted for certain grave crimes must be surrendered, whatever the circumstances. Fugitives who flee from genocide or torture charges are two classes of person that will find no refuge in foreign countries.

The bottom line for countries looking to negotiate extradition arrangements is an assurance that their nationals would get a fair trial if extradited and that they would otherwise be treated in a way that complied with the terms of the agreement.

Extradition arrangements are not for all time. When country A agreed with country B in, say 2000, it was based on A’s assessment of B’s political and legal structure. Thirty years on, country B could have changed beyond recognition and, in the eyes of country A, for the worse.

The United Kingdom Government is now saying that things have changed for the worse in Hong Kong with the introduction of the National Security Law. It no longer has confidence that British nationals extradited to the HKSAR will be dealt with strictly following the 1997 extradition agreement.

The specific concern for the United Kingdom is that the new law opens the door for prosecution and trial in the Mainland for some National Security offences deemed to be complex or occurring in a serious situation under Article 55.

One of the objectives for a legal diplomat in negotiating an extradition agreement is to make sure that if you surrender a national, he or she will not be passed on to another country for trial or punishment. The criminal justice system there would not meet the minimum standards acceptable to it, whether those standards concern trial procedures or penalty or both.

One way of guarding against this happening is to include in the extradition agreement a clause that provides that the country requesting extradition cannot transfer a prisoner to another place unless the requested country agrees or until after ample time has been given to the prisoner to depart from the requesting state. (In the now-suspended UK-HK agreement a clause provided that a person who had been surrendered to Hong Kong had 40 days to leave the HKSAR before he or she might be transferred to another country.)

The United Kingdom identified the possible onward transfer of extradited persons to the Mainland under the new law as a concern in the Foreign Secretary’s statement in Parliament on 20 July.

Dominic Raab recalled then that Article 38 of the National Security Law makes it an offence everywhere for anyone to say, or do, something that is an offence under it.

A British national living in Liverpool might join a political movement and openly advocate that Taiwan should declare itself independent from the rest of China.

In the United Kingdom, such speech would be political speech and protected. The National Security Law would be ineffective there as a matter of the law of the United Kingdom.

In the HKSAR, openly pursuing Taiwan’s independence in Liverpool as a member of an organisation would appear to invite prosecution under Article 20 of the new law (“Secession”). The man or woman from Liverpool advocating Taiwanese independence there could, in theory, be extradited to the HKSAR on a theft matter but might end up in the Mainland facing National Security charges under the new law.

The United Kingdom did not contemplate that anything like this could occur when it signed up to the extradition agreement twenty-three years ago. It has therefore suspended the agreement under Article 20 of the HK-UK Extradition Agreement.

That article in the agreement allows the HKSAR and the UK to withdraw from the agreement. They do not have to give specific reasons for doing so. Because there was no obligation in the first place to enter into extradition arrangements with the HKSAR, there can be no breach of international law in doing precisely what the extradition treaty allows.

For the same reason, it cannot reasonably be regarded as unlawful interference with the internal affairs of the HKSAR. The United Kingdom is withdrawing a benefit conferred on the HKSAR that it had agreed to confer only for as long as the agreement was in force.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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