CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK CYIL 11 (2020) All these measures ensure that examination of legal grounds for refusal of extradition is completely independent and free of any political considerations or interference by the executive and that legal grounds for refusal of extradition prevail. C. Some Other International Safeguards The most important international safeguards are international protection, i.e. asylum or supplementary protection, and recourse to international courts of human rights, namely the ECtHR. This section offers only cursory overview of these topics, as both are well-known and it is unnecessary to describe their features in detail. 1. International Protection In practice, international protection is a very effective international safeguard (aside from the agreements themselves). Article 33 of the Convention Relating to the Status of Refugees (Refugee Convention) prohibits refoulement of refugees, i.e. their removal (by means of expulsion, extradition or any other means) to states where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Most of the states that signed bilateral extradition agreements with Hong Kong (with the exception of India, Indonesia, Malaysia, Singapore and Sri Lanka) are party to the Refugee Convention but non-refoulement obligation is generally considered a rule of customary international law and, therefore, can be relied upon as ground for refusal of extradition even by the five above-mentioned states. Whether this protection extends not only to recognized refugees but also asylum- seekers and the exact relationship and interaction between ongoing asylum and extradition proceedings (namely, whether it is possible to extradite an asylum-seeker before completion of the asylum proceedings) is subject of debate among practitioners 76 . The Office of the United Nations High Commissioner for Refugees (UNHCR) as well as many NGOs active in refugee matters 77 , however, clearly prefer for asylum proceedings to have priority and, if necessary, for final decision on extradition to be delayed pending final decision in asylum proceedings 78 . The same approach is applied in a number of domestic legislations, including that of the Czech Republic 79 . This issue is, nevertheless, far from clear and there are important 76 See, for example, the Council of Europe documents PC-OC Mod (2013) 06 rev.3, available online at https:// rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168048bce4, or PC-OC / INF 76, available online at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDC TMContent?documentId=0900001680089759. 77 As follows from Articles 31 and 32 of the VCLT, treaties should be interpreted by their parties, not by the UNHCR or NGOs. The Refugee Convention mentions that the UNHCR’s tasks include “supervising international conventions providing for the protection of refugees” but this does not mean that the UNHCR should interpret them. Indeed, the VCLT knows no such thing as “supervision of treaties” and the Refugee Convention itself stipulates in Article 38 that any disputes between the parties “relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.” Clearly, the Refugee Convention does not expressly envisage any active role of the UNHCR in its interpretation. 78 See KAPFERER, S., The Interface between Extradition and Asylum , (Geneva: UNHCR, Department of International Protection, 2003), p. 96-100, available online at https://www.unhcr.org/3fe84fad4.pdf, and the UNHCR’s 2008 Guidance Note on Extradition and International Refugee Protection, p. 26-27, available online at https://www.refworld.org/pdfid/481ec7d92.pdf. 79 See binding opinion of the plenary session of the Constitutional Court of 13 August 2013, ref. No. Pl.ÚS-st. 37/13.

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