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A Loss of Faith in One Country, Two Systems: The Legality of Suspending the Australia-Hong Kong Extradition Agreement

25 Dec 2020
By Kiara van Hout
An anti-extradition bill protest in Hong Kong Source: Incendo

As new national security laws prompt states to reevaluate the future direction of their relationships with Hong Kong, Australia has set a precedent by suspending its extradition agreement. The move represents a sound appreciation of the international legal framework.

This is an article published earlier this year and selected by our committee of commissioning editors as one of the best of 2020.

This was Part 1 of a two-part series. “The Politics of Suspending the Australia-Hong Kong Extradition Agreement” was published August 6.

The recent passage of the Law on Safeguarding National Security in the Hong Kong Special Administrative Region (SAR) has prompted many liberal democracies to evaluate the future direction of their relationships with Hong Kong and China alike. On 9 July, 2020, the Australian government announced that it had “taken steps to suspend our Extradition Agreement.” The joint statement issued by the prime minister, the finister for foreign affairs and the attorney-general described the Australian government as “deeply concerned” by recent developments in Hong Kong, stating that “the National Security Law erodes the democratic principles that have underpinned Hong Kong’s society and the One Country, Two Systems framework.”

Chinese foreign ministry spokesperson Zhao Lijian responded, stating that the Australian government had acted “in serious violation of international law and the basic norms governing international relations.” In particular, Zhao alleged contravention of the principle of non-interference in Hong Kong and China’s domestic affairs.

The 1993 Agreement for the Surrender of Accused and Convicted Persons between the government of Australia and the government of Hong Kong (“the Extradition Agreement”) dictates that “each of the Parties may terminate this Agreement at any time by giving notice in writing to the other” (art 21(3)). Though termination of the treaty was (and remains) legally possible, the finality of such an action would render a more serious blow to Australia’s relations with China, signalling a permanent rather than momentary decline in the relationship. Termination also lacks the coercive power of a suspension, which envisages a temporary cessation of the treaty until such a time as China repeals or reforms its arrangements. That the Australian government “will continue to monitor developments in Hong Kong closely,” according to the joint statement, suggests that the suspension was designed in part to contribute to mounting international pressure on China to address these concerns.

However, there are no provisions in the treaty which deal with the suspension of its operation. The question, therefore, is whether the Australian government is entitled to suspend the Extradition Agreement under the general law of treaties

The joint statement declared that the new law “constitutes a fundamental change of circumstances in respect to our Extradition Agreement with Hong Kong.”  In so doing, Australia seeks to rely on the principle enshrined in customary international law and the 1977 Vienna Convention on the Law of Treaties (“the Vienna Convention”) (art 62) that “a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties” may be invoked as a ground for suspending a treaty, albeit only in select circumstances. Both Australia and China are state parties to the Vienna Convention, which also extends to Hong Kong through its Basic Law (art 153). In the 1997 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) case, the International Court of Justice (“the Court”) emphasised in paragraph 104 that “the negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.”

So, what circumstances existed at the agreement’s conclusion on 29 June, 1997, and have they fundamentally changed? Plainly, both Australia and Hong Kong were operating under the circumstances produced by the Sino-British Joint Declaration. Though China had resumed the exercise of sovereignty over Hong Kong on  July, 1997, it did so under the well-known proviso that “Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years” (Annex I-I), and that “rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region” (paragraph 3(5)). That China would prematurely implement laws which drastically diminish the protection of human rights and the rule of law in Hong Kong was therefore unforeseen at the conclusion of the Extradition Agreement.

It is not enough that the change is unforeseen, however. According to the Court in the Gabčíkovo-Nagymaros Project case, the changes invoked must also be “so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed” (paragraph 104). It is prima facie insufficient for the purposes of suspension that Australia did not foresee that their common values with Hong Kong would be compromised, unless these were an essential basis for Australia’s consent to the Extradition Agreement.

Yet aspects of the new laws do seem to alter the essential basis of consent on which the Extradition Agreement relies. The apparent object and purpose of the Extradition Agreement is to provide a mechanism whereby fugitive criminals may be surrendered between Hong Kong and Australia on an obligatory basis. This is intimately linked with certain assumptions about the independence of the judiciary and the basic rights and freedoms enshrined in Hong Kong’s legal framework. In particular, the Sino-British Joint Declaration guarantees that “the courts shall exercise judicial power independently and free from any interference” (Annex I-III). Among the many concerns cited viz-a-viz the Law on Safeguarding National Security, one is that it enables the Chief Executive to personally select which judges are able to hear national security cases (art 44); other cases may be heard in mainland China, provided that they are sufficiently “complex” or “serious” (art 55). Therefore it is not merely the broad terms in which the relevant new offences are framed which are concerning, but rather, fundamental alterations to the underlying independence of the judiciary. Extradition treaties are implemented in order to facilitate co-operation between states who have mutual confidence in one another’s legal systems. A change of circumstances of this kind would therefore appear to go to the object and purpose of the Extradition Agreement, radically transforming the treaty obligations incurred and altering the basis for Australia’s consent.

In short, albeit that this is an exceptional doctrine, Australia has acted within the parameters of international law. Far from being an interference with Hong Kong and China’s domestic affairs, Australia is entitled to temporarily cease the operation of the Extradition Agreement. Though whether or not the move is legally permissible is plainly only one small aspect of whether it is sensible from a foreign relations perspective, we ought not to diminish the importance of affirming the rules-based international order which nowadays so frequently permeates Australian international policy.

Kiara van Hout is a final year Law student at St John’s College, University of Cambridge. Her research interests include international human rights law and international dispute settlement.

This article is published under a Creative Commons Licence and may be republished with attribution.