TNAG-0975-FCO40-1194-Resettlement-of-Vietnamese-refugees-from-Hong-Kong-in-other--1980 — Page 101

EC/SCP/14 page 6

21.

#180. It was generally recognized that the article might give rise

to difficulty from the standpoint of existing extradition treaties and in particular treaties of a bilateral character. Some experts believed that this matter should be dealt with by the introduction of a special provision in the article or elsewhere in the Convention to provide for the resolution of a possible conflict of treaty obligations. Others felt that this question could be left open as the relationship between different treaties had already been regulated in very great detail in article 30 of the Vienna Convention on the Law of Treaties which, although not yet in force 1/ reflected the existing position under international customary law.

81.

When the article was examined at the second reading, a majority of experts considered that is should be deleted."

In deciding to delete draft Article 3, the experts would thus appear to have been mainly concerned with the need to give some further thought to the technical problems that might result from the adoption of such a provision. Their non-acceptance of the draft Article would not appear to be based in any way on the notion that a refugee should not be protected against extradition to a country to which, according to the principle of non-refoulement, he should not be returned. During the United Nations Conference on Territorial Asylum, held in Geneva from 10 January to 4 February 1977, an amendment was brought in by certain delegations proposing the reintroduction of the draft Article in the following wording:

22.

(a)

"A person shall not be extradited to the territory of any State if the requested State has serious reasons to presume that the request for extradition for an ordinary offence has been made for the purpose of persecuting, prosecuting or punishing that person for any of the reasons stated in Article 2, paragraph 1, or that that person's position may be prejudiced for any of these reasons". 2

Application of the principle of non-refoulement to extradition in the practice of States

The notion that the principle of non-refoulement is also applicable in regard to extradition has found increasing confirmation in recent years in the provisions of various multilateral conventions adopted on the regional and universal levels, in a number of bilateral oxtradition agreements, and. in the constitutions and ordinary legislation of a number of States in different arons of the world.

23.

(i)

Multilateral Conventions

The European Convention on Extradition adopted on 13 December 1957 contains a provision which is of special significance in regard to the non-extradition of refugees. Article 3 of the Convention provides that:

1 The Convention entered into force on 27 January 1980

2/ A/CONF.78/C.1/L.105. Owing to lack of time, however, the amendment could

not be considered by the Conference.