CYIL vol. 11 (2020)
CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … inhuman or degrading treatment) are protected under a number of multilateral conventions on human rights and, therefore, these discretionary grounds for refusal of extradition in the agreement with South Africa are similar to violation of the requested party’s obligation under other treaties (though limited only to these two rights). In the agreements with Canada (Article 6(2)(c)), India (Article 6(4)(c)), Malaysia (Article 19(1)(c)) and Singapore (Article 6(1)(c)), there is an additional discretionary ground for refusal of extradition that is closely related to the mandatory grounds for refusal. Extradition may be refused if the requested party believes that the accusation against the person sought is not made in good faith in the interest of justice and it would be unjust or oppressive to extradite the person. Examination of this ground for refusal follows the same pattern as examination of the second mandatory ground for refusal (see above). Two of the agreements 53 contain another additional discretionary ground of refusing extradition that might be of relevance in case of a request for the extradition of a political opponent or dissident – liability to be tried by an extraordinary or an ad hoc court or tribunal. There are no such discretionary grounds for refusal (relevant to the issue of extradition of political opponents or dissidents) in the agreements with the Republic of Korea and the USA. As mentioned above, the public 54 also seems to fear the “extraterritorial” application of the NSL and the possibility that even nationals of other parties to Hong Kong’s bilateral extradition agreements could be extradited to Hong Kong for offences criminalized by the NSL. Such fear is, however, unfounded. According to most of the bilateral extradition agreements, the fact that the offence for which extradition is sought was committed within the jurisdiction (of the courts) of the requested party 55 or in the territory (or “area”) of the requested party 56 is a (discretionary) ground for refusal. Two of the agreements 57 also refer to the commission of the offence within the jurisdiction (of the courts) of the requested party as a (discretionary) ground for refusal but only if the requested party will prosecute (proceed against) the person for the offence (provided, of course, that the condition of dual criminality is met). According to some of the agreements 58 , the requesting party has, if this ground for refusal is used, the right to request that the requested party’s authorities consider prosecuting the person for the offence (provided, of course, that the condition of dual criminality is met) and according to one of the agreements 59 , the requested party has an obligation to do so even without the requesting 53 The agreements with Finland (Article 7(1)(e)) and New Zealand (Article 7(1)(e)). 54 See, for example, N. X. Elegant, If you’re reading this, Beijing says its new Hong Kong security law applies to you , available online at https://fortune.com/2020/07/07/hong-kong-law-scope-extraterritorial-jurisdiction/. 55 Australia – Article 7(c), Canada – Article 6(1), the Czech Republic – Article 7(3)(c), Finland – Article 7(2), France – Article 6(1)(a), Indonesia – Article 8(a), Ireland – Article 6(1)(b), Malaysia – Article 4(1), the Netherlands – Article 5(1), New Zealand – Article 7(2), Portugal – Article 7(d), Sri Lanka – Article 7(d) and the UK – Article 5(5). 56 The agreements with Indonesia (Article 3(1)) and the Republic of Korea (Article 6(a)). The agreement with Indonesia, somewhat curiously, recognizes as (discretionary) grounds for refusal both commission of the offence within jurisdiction of the courts of the requested party (Article 8(a)) and its commission in the territory of the requested party (Article 3(1)).
57 The agreements with the Philippines (Article 6(1)(c)) and South Africa (Article 6(2)(c)). 58 The agreements with Canada, Finland, Germany, the Republic of Korea and New Zealand. 59 The agreement with Malaysia.
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