TNAG-0975-FCO40-1194-Resettlement-of-Vietnamese-refugees-from-Hong-Kong-in-other--1980 — Page 97

EC/SCP/14 page 2

6.

The question whether a person whose extradition has been requested in respect of a common law offence should be protected against extradition as a refugee thus arises (a) if the extradition request does not indicate that the person is excluded

from refugee status for having committed a serious common crime, and (b) if by reason of the principle of non-refoulement the person should not be returned to the requesting State.

7. Requests for the extradition of a refugee are most frequently addressed to the State where the refugee has his habitual residence. In a number of cases with which the Office has had to concern itself in recent years, however, extradition has been requested from a State where the refugee was present on a purely temporary basis. In these cases the rofugee had already been the subject of a similar extradition request which had been rejected in his country of habitual residence. The need in such circumstances for the refugee to undergo renewed extradition proceedings - sometimes accompanied by prolonged periods of detention - necessarily involves considerable hardship. Moreover, the danger of being exposed to such renewed extradition proceedings in another country may seriously impede the refugee's freedom of movement by obliging him to remain in his country of habitual residence.

8. In the cases referred to in the preceding paragraph, the refugee had been formally recognized as such by the authorities of his country of habitual residence, and his refugee status was duly taken into account by those authorities when rejecting the extradition request. Cases of this kind, i.c., where the refugee has been formally recognized as such by his State of habitual residence, therefore also involve the question of the extraterritorial effect of the determination of refugee status which was already considered by the Committee at its twenty-ninth session.

The protection of refugees against extradition under

the traditional principles of extradition law

9. While the institution of extradition is intended to facilitate the exercise of penal jurisdiction by States, a number of principles have been developed in the law of extradition aimed at protecting the basic interests of the individual whose extradition is requested. The extent to which these principles are adequate to meet the special situation of the refugee will now be considered.

Thus

10. Where the extradition of a refugee is requested in respect of a political offence, the refugee will be protected against extradition according to the principle of non-extradition for political offences which figures in the great majority of extradition treaties. Extradition treaties, however, only very rarely give a definition of what constitutes á political offence, and the matter is normally left to be determined by the requested State according to criteria which, as is known, are not uniform. certain States, in determining whether or not an offence can be characterized as political, have regard exclusively to its nature and immediate consequences. Other States apply a more flexible criteria and consider that an offence may, under certain conditions, be regarded as political if committed for a political motive, even though the offence itself does not have a political character. In other States again, regard is had to whether in respect of a given offence the political or the common law element predominates.