Dr Raza Saeed, Assistant Professor Warwick Law School, comments on some of the legal aspects of the proposed extradition treaty between Hong Kong and mainland China:-
"Despite being widely branded as a matter purely pertaining to extradition agreements and consequently related to human rights and wider international law, the current Hong Kong protests have all the hallmarks of being an issue of postcolonial relations between Hong Kong and mainland China. Since the handover by the British in 1997, China promised Hong Kong significant autonomy over administrative and legislative functions for the next 50 years under the one country, two systems approach. The proposed extradition bill is being seen by political opponents and protesters as a serious encroachment on this promised autonomy.
"Under the 'one country, two systems' constitutional principle, Hong Kong (along with Macau) is in a legally unique situation where it is able to formulate its own laws and enter into certain international agreements as a legal entity, despite being dependant on People's Republic of China for its legal personality under public international law. On the basis of this, Hong Kong has extradition treaties with many other countries but does not have a similar arrangement with mainland China. The proposed bill is geared towards paving the way for the authorities in Hong Kong to be able to extradite alleged criminals to China, if they deem it necessary in any particular case.
"It is interesting to note that this raises particular difficulties for lawyers and academics working in public international law. Among other requirements, extradition requires that a few conditions are met before an alleged criminal is sent to the requesting state. Two of the more important conditions in this regard are double criminality (that the crime be legally regarded as a crime in both the host and the requesting states) and non-refoulement (where states are prohibited from sending individuals to jurisdictions where there is a danger of irreparable harm to them, outside the due considerations of law and justice). The legal systems of mainland China and Hong Kong follow different protocols in this regard and due to the nature of the unique legal situation of Hong Kong, it will not be that straightforward to lay out the public international law principles applicable on the China-Hong Kong relationship in a formulaic manner, especially with regards to non-refoulement obligations. It is precisely because of this reason that the matter of executive vs. judicial oversight on any extradition request is likely to remain the key point of disagreement between the proponents and the opponents of the extradition bill."
- Dr Raza Saeed is an Assistant Professor at Warwick Law School. He has over 14 years of experience of working with international organisations, public sector bodies and academic institutions as a project manager and researcher in the fields of international development, human rights and education.
11 June 2019
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