CYIL vol. 11 (2020)
MIROSLAV KUBÍČEK CYIL 11 (2020) these states are Australia 23 , Canada 24 , Germany 25 , New Zealand 26 , the UK 27 and the USA 28 ; France announced its decision not to ratify its agreement 29 (even though France has bilateral extradition treaty with the PRC 30 ). It is worth mentioning that the agreements with Canada (Article 20(3)), Germany (Article 23(3)), New Zealand (Article 21(3)) and the UK (Article 20(2)) give the parties the right to suspend the operation of these agreements at any time. Suspension of their operation is, therefore, fully in line with the rule of international law codified in Article 57(a) of the Vienna Convention on the Law of Treaties 31 (VCLT). The same would apply in case of suspension of the operation of the agreements with Finland (Article 22(3)), India (Article 17(2)), Indonesia (Article 23(3)), Ireland (Article 20(3)), the Netherlands (Article 18(2)), Portugal (Article 19(3)), South Africa (Article 22(3)) and Sri Lanka (Article 19(3)). The agreements with Australia and the USA contain no provision on suspension of their operation and it is not entirely clear on which legal ground suspension of the operation of these agreements was (or is to be) done. The same would apply in case of suspension of the operation of the agreements with the Czech Republic, the Republic of Korea, Malaysia, the Philippines and Singapore. However, it seems likely that it could be based on the rule of international law codified in Article 62(3) of the VCLT, as the NSL and, especially, the manner of its enforcement by Hong Kong authorities immediately following its entry into force could reasonably be considered a fundamental change of circumstances within the meaning of Article 62(1)(a) of the VCLT 32 . Nevertheless, persuasiveness of the fundamental change of circumstances argument could be questionable in those states that have bilateral extradition treaties with the PRC (e.g. the Republic of Korea, the Philippines and South Africa; Australia’s bilateral extradition treaty with the PRC was signed in 2007 but the process of its ratification by Australia was stopped in 2017 33 ). The fundamental change of circumstances argument could also be challenged in light of the fact that, as mentioned further below, nearly all the states that have bilateral extradition agreements with Hong Kong also have extradition relations with the PRC based on a number of multilateral conventions. 23 https://www.pm.gov.au/media/extradition-treaty-hong-kong. 24 https://www.canada.ca/en/global-affairs/news/2020/07/canada-takes-action-following-passage-of-national- security-legislation-for-hong-kong.html. 25 https://www.auswaertiges-amt.de/de/newsroom/maas-verschiebung-parlamentswahlen-hongkong/2372722. 26 https://www.beehive.govt.nz/release/new-zealand-suspends-extradition-treaty-hong-kong. 27 https://www.gov.uk/government/speeches/hong-kong-and-china-foreign-secretarys-statement-in-parliament. 28 See https://www.state.gov/suspension-or-termination-of-three-bilateral-agreements-with-hong-kong/. As follows from the Executive Order 13936, The President’s Executive Order on Hong Kong Normalization, available online at https://www.whitehouse.gov/presidential-actions/presidents-executive-order-hong-kong-normalization/, the USA suspended the operation of the bilateral extradition agreement and terminated the bilateral transfer of sentenced persons agreement. 29 https://www.diplomatie.gouv.fr/en/country-files/china/news/article/hong-kong-q-a-from-the-press-briefing- 03-aug-20. 30 https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000031258324&categorieLien=id. 31 The PRC acceded to the VCLT in 1997. 32 Joint statement of Australia’s Prime Minister, Minister of Foreign Affairs and Attorney-General, available online at https://www.foreignminister.gov.au/minister/marise-payne/media-release/extradition-treaty-hong-kong, expressly refers to a fundamental change of circumstances vis-à-vis the NSL and Australia’s extradition agreement with Hong Kong. 33 https://www.abc.net.au/news/2017-03-28/government-pulls-australia-china-extradition-treaty/8392730.
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