Human Rights Protection in the Surrender of Fugitive Offenders between Mainland China, Hong Kong and Macau

Abstract

Regarding the construction of the surrender agreements between Mainland China, Hong Kong and Macau, there has been ongoing consideration and debate on the basic principles and rules. Human rights protection in the surrender of fugitive offenders between Mainland China, Hong Kong and Macau is as important as that in traditional extraditions. But the rights need to be protected in a sophisticated, interactive, and constructive way under the ‘one country, two systems’ regime. This article compares the extradition and surrender systems, concluding that Mainland China, Hong Kong and Macau should take human rights protection into serious consideration, while complying with the obligation to protect the common interest of the whole country and to promote human rights development in China. The combined obligations require that the requested region play a more responsible, involved and proactive role in surrender-related human rights issues. The European Arrest Warrant experience can offer some inspiration for this. But more tailored measures should be developed in the legal context of Mainland China, Hong Kong and Macau. The article identifies several specific human rights that should be protected in the surrender procedure. Some traditional extradition principles as well as human rights provisions have already been used to protect these rights. Human rights protections are contained in Chinese legislation, but more attention should be paid to law enforcement procedures in relation to the surrender of fugitive offenders. This article suggests that evaluation, assurance, monitoring, and reporting mechanisms should be applied, and the main role should be delegated to judicial authorities under the principle of mutual trust. This article also suggests that the procedural rights of the requested individuals in the requested region should be protected.