CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … be possible and it would not even be possible to institute extradition proceedings. However,

such assumption is, at least in case of most states, incorrect. A. Extradition Based on Multilateral Conventions

First of all, suspension of the operation or termination of the bilateral extradition agreements with Hong Kong would not create situation in which there would be no treaty basis between the states that do so and Hong Kong. All of the states that signed bilateral extradition treaties with Hong Kong are parties to a number of multilateral conventions that stipulate, inter alia, obligation to extradite perpetrators of offences criminalized under these conventions. Examples of such conventions include the United Nations Convention against Illicit traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention), the United Nations Convention againstTransnational Organized Crime (UNTOC) or the United Nations Convention against Corruption (UNCAC). All of the states that signed bilateral extradition agreements with Hong Kong are parties to at least these three conventions. As follows from the PRC’s notifications deposited with the United Nations Secretary General 85 , these three conventions apply also to Hong Kong. These conventions define acts that their parties have obligation to criminalize under their domestic laws (Article 3 of the 1988 Vienna Convention, Articles 3, 5, 6 and 8 of the UNTOC, Articles 3 and 15 through 27 on the UNCAC) and stipulate that the parties have obligation to extradite (to the other parties) persons for the purposes of criminal proceedings for these offences (Article 6 of the 1988 Vienna Convention, Article 16 of the UNTOC, Article 44 of the UNCAC), either on the basis of their bilateral extradition treaties (offences criminalized under these multilateral conventions are deemed to be covered by any bilateral extradition treaty between the parties to these conventions – Article 6(2) of the 1988 Vienna Convention, Article 16(3) of the UNTOC, Article 44(4) of the UNCAC) or without treaty basis (Article 6(4) of the 1988 Vienna Convention, Article 16(6) of the UNTOC, Article 44(7) of the UNCAC). Parties that make extradition conditional on the existence of a treaty may consider these conventions to be the legal basis for extradition in respect of offences criminalized under them (Article 6(3) of the 1988 Vienna Convention, Article 16(4) of the UNTOC, Article 44(5) of the UNCAC). Some parties to these conventions that make extradition conditional on the existence of a treaty, however, notified the depositary that they would not consider these conventions to be the legal basis for extradition. Of the states that signed bilateral extradition agreements with Hong Kong, such declarations were made in case of the 1988 Vienna Convention by Singapore and the USA, in case of the UNTOC by Australia (however, meaning of Australia’s notification is unclear), Malaysia, Singapore and the USA and in case of the UNCAC by the Philippines, Singapore and the USA. These notifications made by the USA may help explain the USA’s decision to suspend the operation of its bilateral extradition agreement with Hong Kong. Multilateral conventions usually contain none or only limited provisions on (discretionary) grounds for refusal of extradition and, instead, refer to grounds for refusal of extradition provided for by domestic laws of the parties and by their extradition treaties (Article 6(5) of the 1988 Vienna Convention, Article 16(7) of the UNTOC, Article 44(8) of the UNCAC). 85 https://treaties.un.org/Pages/ViewDetails.aspx?chapter=6&clang=_en&mtdsg_no=VI-19&src=IND, https:// treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&clang=_en and https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-14&chapter=18&clang=_en.

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