Giving effect to international obligations
The extradition treaties to which New Zealand is already a party
3.6New Zealand is party to bilateral and multilateral treaties concerning extradition. In some senses, the bilateral treaties represent the way New Zealand’s extradition obligations were framed in the past, while multilateral treaties represent the likely future.
3.7New Zealand’s multilateral treaties concerning extradition date from the 1970s onwards, and most of them focus on serious crimes such as hostage taking, genocide and drug trafficking. Most of these treaties include an “extradite or prosecute” obligation. These provisions assume that each state party already has in place an efficient and effective extradition regime that has the potential to apply to any other state party. The aim of the provisions is simply to ensure that specific offences are extradition offences under those regimes.
3.8Other multilateral treaties may prevent extradition in certain circumstances. For instance, New Zealand has agreed not to extradite any person if there are reasonable grounds to believe that person will be subjected to torture and to only extradite refugees to the countries from which they came in very limited instances. Usually, these treaties include the obligation not to extradite as an express term. In some instances, however, the obligation may exist even though there is no express reference to extradition in the relevant treaty. For example, the Second Optional Protocol to the International Covenant on Civil and Political Rights may create an obligation not to extradite a person who could be subjected to the death penalty.
3.9New Zealand’s 45 bilateral extradition treaties relate solely to extradition. All but four date from between 1870 and 1935 and were negotiated by Great Britain, on behalf of the entire British Empire. These imperial treaties were negotiated with the provisions of the Extradition Acts 1870 to 1935 (Imp) in mind and were given effect by way of Orders in Council of the British Parliament. Consequently, they all follow a similar format.
3.10The imperial treaties begin with the general principle that each party agrees to extradite accused or convicted persons to the other parties, under certain circumstances and conditions. Those circumstances and conditions are then detailed in the body of each treaty. Invariably, this includes:
(a) a list of the offences that are extraditable;
(b) a statement that surrender must or may be refused if:
- the person sought is a subject or citizen of the requested party;
- the relevant offence is of a political character;
- the person sought has already been tried or punished for the offence; or
- a statutory time limit for prosecuting the offence applies;
(c) a description of how an extradition request should be made and the documents that should be provided;
(d) a description of the types of documents that will be admitted as valid evidence at an extradition hearing;
(e) a statement that, in relation to an accused person, extradition will only take place if, according to the law of the requested party, there is sufficient evidence of the alleged offending to justify the person’s committal for trial; and
(f) a statement explaining how extradition requests will be dealt with if the person sought is being prosecuted or punished domestically for a different offence or is the subject of multiple requests from different countries.
3.11The other four bilateral extradition treaties were negotiated by New Zealand. Two of these treaties (with the United States (1970) and Fiji (1992)) follow a very similar format to the older imperial treaties. That is because these treaties were negotiated with the provisions of New Zealand’s Extradition Act 1965 in mind, which essentially mirrored the imperial extradition legislation. New Zealand negotiated a third bilateral extradition treaty under the Extradition Act 1965 (Hong Kong (1998)). That treaty foreshadowed many of the changes that were about to be introduced by the Extradition Act 1999. The fourth treaty was negotiated with the Republic of Korea (South Korea) in 2003.
The accessibility and status of the treatiesTop
3.12Since international treaties are one of the main sources of extradition law in New Zealand, it is important, for reasons of transparency and clarity, that it is easy to access them and to determine whether they are in force.
3.13The Ministry of Foreign Affairs and Trade has recently launched “New Zealand Treaties Online”, an online database that provides an official record of New Zealand’s binding legal obligations at international law. All of the bilateral and multilateral treaties concerning extradition to which New Zealand is a party are on this database. This has improved the general accessibility of the treaties.
3.14While the bilateral treaties are now readily identifiable, it remains difficult to identify the multilateral treaties that contain extradition obligations. The Extradition Act does not contain a list of the relevant treaties. We have identified these multilateral treaties in Appendix C.
3.15There is also uncertainty as to whether some of the imperial bilateral treaties are still in force and to which countries they continue to apply. That is because New Zealand may consider itself bound by these treaties, but its treaty partners may or may not share that view. The reason for this discrepancy is that, given the age of the imperial treaties, issues of termination by war and state succession arise. State succession is particularly problematic as, since the colonial era, a large number of New Zealand’s treaty partners have gained their independence, fragmented, or gone through some other constitutionally significant reform. The fact that two of New Zealand’s imperial treaties are with former colonial powers (Belgium and France) adds a further layer of complexity in relation to their former colonies.
3.16In our opinion, it is desirable for New Zealand’s extradition relationships to be further clarified to ensure all countries can access our extradition system. One option could be to list all the treaties that contain extradition obligations in schedules in the new Extradition Act.
New Zealand’s obligations under the treatiesTop
3.17Any reform of New Zealand’s extradition legislation needs to achieve the dual goals of modernising the law whilst still adhering to New Zealand’s existing obligations under international law. Accordingly, those obligations need to be identified and understood.
3.18Most of New Zealand’s international obligations concerning extradition are contained in its bilateral, as opposed to multilateral, treaties. As explained above, the multilateral treaties assume that the state parties already have extradition regimes in place. Beyond that, they only create obligations regarding the definition of an extradition offence and grounds for refusing surrender. Here it is sufficient to note that bilateral extradition treaties must be interpreted as including the extradition obligations in multilateral treaties if:
- the parties to the bilateral treaty are both party to the multilateral treaty; or
- the multilateral treaty in question is so widely accepted that it falls within the special category of “international customary law”.
3.19Bearing that observation in mind, the crucial question in examining the nature of New Zealand’s existing treaty obligations is: how closely is New Zealand obliged to comply with the exact terms of its bilateral extradition treaties?
3.20The starting point in answering this question is the guiding principle that an international treaty must be interpreted in context and in light of its object and purpose. This principle requires that the terms of the treaties must be interpreted with a sufficient degree of flexibility to ensure their object is not frustrated.
3.21The object of the bilateral extradition treaties, as stated in the treaties themselves, is to facilitate extradition between the state parties by creating a duty to extradite in certain circumstances. Notably, only a violation of a provision that is essential to the accomplishment of this object will amount to a material breach of New Zealand’s obligations. This raises an important question: what amounts to a violation of an essential treaty provision?
3.22To answer this question, it is useful to consider an example. All of the imperial bilateral treaties state that extradition will only be granted in the case of an accused person if there is sufficient evidence of the alleged offending to justify their committal for trial. If New Zealand legislation gave these treaty partners the option of using the backed-warrant procedure (a process that does not involve any inquiry into the case against the person sought), would this amount to a breach of its treaty obligations?
3.23A narrow approach would hold that the object of the treaty is to facilitate extradition, but only in circumstances where all of the specified conditions have been complied with. On a broader approach, there would be no breach, because the alternative option of forgoing the inquiry would facilitate extradition from the state party’s perspective rather than frustrate it.
3.24Our proposals generally follow a broader approach. This emphasises that, fundamentally, the treaties are contracts between two state parties that aim to facilitate the extradition process. They were not designed to enable third parties to enforce literal compliance with each term.
3.25We consider that the interests of individuals who are the subject of extradition requests are best served by placing protections in domestic statute rather than relying directly or solely on the treaties. This view is supported by two of New Zealand’s more recent bilateral extradition treaties, which contain the following provision:
The determination that extradition based upon the request therefore should or should not be granted shall be made in accordance with the laws of the requested Party and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by such law.
3.26In practice, there may be provisions in existing treaties – such as those referencing “committal for trial”, which no longer exists in New Zealand law – that are clearly inapt and should not be literally enforced. Our impression is that the provisions of the existing treaties that set out the procedure for advancing extradition requests largely fall within this camp. It is inevitable that a procedure proposed in the late 19th century is not going to be the most apt one to follow now and is, in fact, likely to hinder, rather than facilitate, extradition. We consider that the new Act could justifiably set out a more appropriate procedure and that this could supplant those in the existing treaties. Doing this would, in fact, give better effect to the intent behind the treaties than the words of the treaties themselves. We propose such a procedure in Chapter 9.
3.27On the other hand, there may be other treaty provisions that arguably form part of the core existing agreements between New Zealand and its partners. An example is the grounds for refusal to extradite. There may be a view that any expansion of those grounds in a domestic statute could undermine the existing duty to extradite under the 44 treaties made before the 1999 Act. Yet, our preliminary view is that the grounds should be expanded, because the view of the world represented in the old treaties does not reflect modern values. This, then, poses a more challenging and complex question. We discuss it further in Chapter 8.
3.28Any major variation between New Zealand’s domestic regime and the terms contained in the treaties should facilitate the extradition process rather than frustrate it, but in our view, that ought to include not just a more efficient process but a standardisation of the grounds for refusal that reflects modern human rights expectations.