CONFIDENTIAL
XCX)49
Initialled Text
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The initialled text of the draft Agreement retains all the safeguards of the model agreement including the list of offences, prima facie rule, death penalty, the rule of specialty and the political exception. The Philippine delegation indicated that they favoured many of the Articles from the HK/Australia agreement, recently approved by the Chinese in the Joint Liaison Group. Accordingly many of the provisions of that Agreement have been substituted for articles in the model. The main points are summarised below.
Surrender of Nationals (Article 3)
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The provision in the Hong Kong model agreement reserving to Hong Kong the right not to surrender nationals was accepted by the Philippines on two conditions. The first was that, on the rare occasions when the right was exercised, the Philippines would have the right to request the competent Hong Kong authorities themselves to consider prosecuting. Acceptance of this condition should not cause a problem with the Chinese as it was also included in the texts initialled with Canada and Australia, both of which have now been approved by them. The second condition was that a fugitive's nationality should be determined at the time he committed the offence. The Philippine delegation explained that inclusion of this condition would prevent a fugitive acquiring a nationality of convenience in order to avoid surrender. Although this provision does not appear in other initialled texts it is a reasonable one which we believe should be acceptable to the Chinese side.
Political Offences (Article 6)
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The basic rule contained in our model agreement has been retained but, as with the Australian Agreement, we have agreed to limit its scope by providing that an offence of a political character does not include any offence in respect of which both parties have an obligation under a multilateral agreement to surrender or consider prosecution. This was acceptable to the Chinese side in the Australian text.