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Rule of Specialty
21.
Article
Article 18 (2) Article 16(3)
a
18 (1) is close to Article 14 of our model. is included at Australian request and reflects of our Netherlands agreement. The Australians raised various hypothetical situations which might frustrate specialty:
a person surrendered by Australia being dealt with by the Hong Kong courts and then by a CPG court in Hong Kong (for a national offence) or a court-martial (if the fugitive was deserter from the PLA). We explained that the CPG would not be able to establish its own courts in Hong Kong (unlike the Australian Commonwealth, which has courts in the states). As for the military case, we said that a PLA soldier would not be a permanent resident of Hong Kong and would be liable to deportation to China, and that China was bound not to act inconsistently with this Agreement which it had authorised. We also said that the situation was parallel to that of a deserter from the U.S. armed forces under the Status of Forces Agreement.
Resurrender
22.
be no
The Australians insisted that there had to possibility of returned fugitives being re-surrendered to China. Article 19 is similar to Article 18 of our agreement with Canada but is made more explicit by referring to "surrender or rendition to any other state or jurisdiction".
Transit
23.
(1)
Paragraph
Article 20 was proposed by the Australians. follows Article 19 of our agreement with Canada. Paragraph (2) is to meet Australian concern that a transitting fugitive should not be able to claim habeas corpus.
Entry into Force and Termination
24. model. Canada.
Article 21 (1) and (3) is close to Article 16 of our Paragraph (2) is the same as in our agreement with We agreed there was no need for a suspension clause. We noted that in the event of termination, Article 70(1)(b) of the Vienna Convention on the Law of Treaties would ensure the preservation of obligations already incurred, i.e. continued application of safeguards to persons already surrendered.
Right to Instruct
25.
We 1997 to
again explained the right which China will have after instruct the Chief Executive not to extradite or not to request extradition in cases substantially affecting their foreign affairs or defence responsibilities. The Australians did not wish to see this right reflected in the agreement.
Security Branch
17 February 1992
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