CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … the Republic of Korea – Article 5 of the Criminal Act 12 , Malaysia – Section 4(1)(d) and (e) of the Penal Code 13 , the Netherlands – Section 4 of the Criminal Code 14 , the Philippines – Article 2(5) of the Revised Penal Code 15 , Portugal – Article 5(1)(a) of the Criminal Code 16 , Singapore – Section 4A of the Penal Code 17 etc.). Even some countries of the common law legal system, which are traditionally more reserved about “extraterritoriality”, extend the scope of application of their substantive criminal laws over certain offences committed by foreigners abroad in line with the principle of protection (e.g. the United States of America 18 (USA)). There is no rule of international law that would prohibit such “extraterritoriality” of substantive criminal law (distinction should, however, be made between “extraterritoriality” of substantive law and about actual exercise of jurisdiction) and, therefore, “every State remains free to adopt the principles which it regards as best and most suitable” ( The Case of the S.S. “Lotus” (France v. Turkey) , Permanent Court of International Justice, judgment of 7 September 1927 19 ). It follows from the nature of the principle of protection that some of the offences it typically covers are of political character (e.g. sedition, subversive activities, espionage etc.); such offences can be found in criminal laws of most countries 20 . Therefore, while the NSL can be rightfully criticized on many grounds, its “extraterritoriality” should not be one of them (for safeguards against abuse of “extraterritoriality”, see below). 2. Bilateral Extradition Agreements and Safeguards against Their Abuse As of August 2020, Hong Kong has twenty bilateral extradition 21 agreements in force (with Australia, Canada, the Czech Republic, Finland, Germany, India, Indonesia, Ireland, the Republic of Korea, Malaysia, the Netherlands, New Zealand, the Philippines, Portugal, Singapore, South Africa, Sri Lanka, the United Kingdom (UK) and the USA) 22 and one pending ratification (with France). Following the NSL’s adoption, some of these states announced suspension of the operation of their agreements – as of the end of August 2020 12 English translation is available online at https://www.oecd.org/site/adboecdanti-corruptioninitiative/46816472.pdf. 13 English translation is available online at http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/ EN/Penal%20Code%20%5BAct%20574%5D2.pdf. 14 English translation is available online at https://www.legislationline.org/download/id/6415/file/Netherlands_ CC_am2012_en.pdf. 15 http://www.officialgazette.gov.ph/1930/12/08/act-no-3815-s-1930/ 16 English translation is available online at https://www.unodc.org/res/cld/document/prt/criminal-code-law-no-- 59-2007-of-4-september_html/CRIMINAL_CODE_Law_59_2007.pdf. 17 https://sso.agc.gov.sg/Act/PC1871 18 See C. Doyle, Extraterritorial Application of American Criminal Law (Washington: Congressional Research Service, 2016), available online at https://fas.org/sgp/crs/misc/94-166.pdf. 19 Available online at https://www.icj-cij.org/files/permanent-court-of-international-justice/serie_A/A_10/30_ Lotus_Arret.pdf. 20 For examples, see the provisions on the principle of protection in the criminal codes referred to above. 21 None of the agreements actually use the word „extradition“. Instead, the agreements use the word “surrender”. However, the substance of “surrender” is in fact extradition. This difference in terminology is meant to emphasize that Hong Kong is not a sovereign state, based on the (incorrect) assumption that the term “extradition” is reserved for sovereign states only. 22 Full list and links to the texts of the agreements are available online at https://www.doj.gov.hk/eng/laws/table4ti. html.

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