CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … sought into custody for the purposes of extradition proceedings only in those states that cannot, under any circumstances, initiate such proceedings without bilateral treaty basis. As mentioned above, this may be the case only of Singapore and the USA. 4. Conclusions The requirement of dual criminality and the grounds (mandatory and discretionary) for refusal of extradition, in effect, represent a number of exceptions from obligation to extradite under the bilateral extradition agreements with Hong Kong that the requested party may (and in case of mandatory grounds for refusal must) use if extradition of political opponents or dissidents is sought by Hong Kong. Combined with the other safeguards described above, both domestic and international, and bearing in mind that suspension of the operation or termination of these agreements in case of most states does not make extradition (or extradition proceedings) impossible, the agreements offer persons sought many layers of protection and it seems that suspension of operation or termination of the bilateral extradition agreements with Hong Kong is unnecessary and ineffective. Instead, it may lead to substantial obstacles for law enforcement and judicial process for those states that follow due process and rule of law by creating safe haven in Hong Kong for perpetrators of ordinary offences (not covered by a multilateral convention) from these states. It may also damage international fight against terrorism because the NSL, as already mentioned above, criminalizes the offence of terrorist activities and it may happen that the Hong Kong authorities will prosecute true terrorists under the NSL. States that require treaty basis for extradition and suspend the operation or terminate their bilateral extradition agreements with Hong Kong may then find themselves in situation of having in their territory true terrorists but being unable to extradite them to Hong Kong. Political (and perhaps emotional) impulse to suspend the operation or terminate the bilateral extradition agreements with Hong Kong, while understandable, especially in light of the events and developments in Hong Kong following the NSL’s entry into force, is not, in effect, an expression of distrust just in Hong Kong law enforcement and judicial authorities. What the states that suspend the operation or terminate their bilateral extradition agreements with Hong Kong really express is distrust in independence, integrity, competence and expertise of their own judicial and other authorities charged to make decisions in extradition proceedings. It would be more advisable to insist that these authorities continue to strictly and consistently apply the agreements, making full use of the grounds for refusal of extradition and other safeguards described above. Governments should, of course, closely monitor their application in practice and base further steps vis-à-vis these agreements on facts and data. Instead of abandoning all hope with regard to Hong Kong and, basically, leaving Hong Kong authorities to their own devices, it might be possible to hold Hong Kong law enforcement and judicial authorities to higher standards (at least in cases they want to successfully request extradition). Finally, governments should address possible human rights violations at the international human rights fora created for this purpose rather than disrupt their treaty relations, especially in such practical and technical area as extradition.

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