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Political Refugees and the Proposed Extradition Treaty with Indonesia, Working Paper 24 [1990] PGLawRComm 2 (1 January 1990)

POLITICAL REFUGEES AND THE PROPOSED

EXTRADITION TREATY WITH INDONESIA

H.A AMANKWAH
FACULTY OF LAW, UPNG

WORKING PAPER NO.24 1990

FOREWORD

Extradition is the delivery of a person who has committed a crime, by one country back to the country where the crime was committed. Because it is a matter between two sovereign states, domestic law only partly covers extradition matters. Extradition is usually governed by treaty or some other form of arrangement between the two states concerned.

In Papua New Guinea, extradition matters are governed by the Extradition Act Ch.49 and the Extradition (Commonwealth Countries) Regulation, and some matters are also dealt with under the Migration Act Chapter 16 (though certain changes are proposed for this Act). Papua New Guinea now desires to conclude an extradition treaty with Indonesia, a non-Commonwealth country sharing a common land border.

Because extradition involves criminal matters, the Law Reform Commission, under its general Criminal Law Reference, is interested in the terms of the proposed treaty and the possibility for improvement of domestic law on the subject of extradition. Problems arise regarding agreement on definitions of "crime" between treaty states. Common law, reinforced by statute, provides that no criminal can be extradition for a "political" offence, but it has been left to the courts of various jurisdictions to determine what constitutes a political matter, and rules differ between states.

The Commission has asked Dr. H.A. Amankwah, of the Law Faculty, University of Papua New Guinea, to report on the present extradition proposals being prepared by the Papua New Guinea Government for treaty with Indonesia. Dr. Amankwah has kindly consented to this request, and his report is here presented in full. We gratefully acknowledge Dr. Amankwah's time and efforts in his valuable treatment of the matter.

DISCUSSION POINTS

Certain questions arise from consideration of the matter of extradition and political crime, or political opinions:

- is it advisable for Papua New Guinea to attempt, through amendment to the Extradition Act, a clearer definition of what may be considered "political"?

- if so, what definitions should be included? Should they be exhaustive, or indicative only?

- is it advisable to apply the terms of the Act to the proposed treaty with Indonesia?

- what other advice can the Commission give to the Minister in relation to the law of extradition?

Regarding the suggestion of spelling out definitions of a "political" crime, the following, non-exhaustive list has been suggested:

- a crime committed where two or more political parties are in dispute, each trying to impose the government of its choice;

- a crime committed by a member of a politically dissident group;

- a crime committed in an attempt to substitute one government or

government for another;

- a crime committed in the struggle between factions of the same political party, organisation or movement;

- a crime committed as a protest against a political regime;

- crimes related to any of the above, irrespective of the country in which the crime was committed;

- crimes related to the refusal to undertake compulsory military service or conscription;

- crimes in a jurisdiction in which, in the opinion of a Papua New Guinea court, the judiciary are part of the military, or are subject to executive direction.

SECRETARY
LAW REFORM COMMISSION

INTRODUCTION

That the world is today more inter-dependent than was the case a century ago is not a happenstance. The great advances made in science especially in the areas of mobility and communication have bridged distances to the point that man can say today "the world is a small place". Yet the alien-citizen dichotomy is a function of man's recognition of the fact that people must live within territorial confines, and that division having been embraced by all nations leads further to other subdivisions. There are today several categories of aliens for several purposes: travel, sojourn in another country and for the purposes of states of belligerency.

One of the world's most pressing current problems is that concerning refugees. These are persons who are forced to flee from danger whether natural or man-made in their home countries and to seek refuge in alien territories. There are two categories of refugees viz. those seeking to avoid dangers simpliciter and those who are running away from political persecution initiated by political opponents. The difficulty in this area is how to differentiate a common criminal who is fleeing from justice from the person who is trying to avoid political persecution.

I. Background to the Law of Extradition

It is trite learning that criminal jurisdiction is territorial with limited exceptions^[1]. Thus where a criminal flees from justice in one state it is impossible to exercise any kind of jurisdiction over him unless he could be brought back within the jurisdiction of the locus of the offence. This is achieved through the process of extradition. Extradition is a matter of statutory law today. Papua New Guinea's law is the Extradition Act^[2].

The Statute regulates the internal treatment of fugitive criminals. However, the extradition of a fugitive criminal from one state to another is achieved only through reciprocal treaty arrangement; ^[3] and the need for a treaty is the result of the efficacy of the writ of habeas corpus ^[4] which is the vigilant guardian of political and civil rights of individuals in a state. ^[5]

There is provision for the application of the Act to a state with which Papua New Guinea has no treaty "where the Head of State, acting on advice is satisfied" that Papua New Guinea would receive reciprocal treatment from the requesting state. ^[6]

A person can be extradited only for an extradition offence.^[7]The Papua New Guinea definition appears to follow the English definition ie. a crime which if committed in Papua New Guinea would be one of the crimes enumerated in Schedule l of the Act which includes murder, rape, kidnapping, arson, stealing, etc. The abetment, attempting, assisting, procuring of same are covered; and accessories are also liable to be extradited.^[8]

In the case of extra-territorial offences, Papua New Guinea appears to follow the United States position - ie. the offence charged must be a crime both under Papua New Guinea law and the law of the requesting state. ^[9]

The procedure which is followed in the extradition of a fugitive criminal is virtually the same in all advanced legal systems^[10]. A request is made formally through the diplomatic channel, an order for the arrest of the criminal follows, the law enforcement officers issue a warrant for his arrest, and he is then brought before the presiding magistrate, or "commissioner" in the United States.

A hearing is in the nature of preliminary proceedings to determine if a prima facie case has been made against the criminal fugitive justifying his surrender by the asylum state to the requesting state.^[11] There is a right of appeal by writ of habeas corpus. ^[12]

II. Non-Extradition for Political Offences

Perhaps by far the greatest protection an individual has against extradition is the rule that no one shall be extradited for a political offence. Most people flee the country of their birth on account of political persecution. Such people are not common criminals and must be left to live in peace where they choose to reside. The United States position is stated in In re Gonzales^[13] thus: "Political offences are those offences which are incidental to and form a part of political disturbances". The reason for the political offences exception in extradition treaties is, it has been said, to prevent a country's legal process from being used by a foreign regime as an instrument of reprisal against its domestic political opponents.

In the United Kingdom confusion has raged and still continues to rage in the matter of the proper definition of political offence. It all began with the case Re Castioni ^[14]where a native of the Swiss Canton of Ticino committed murder during an insurrection and escaped to England. It was held that the offence was of a political nature and he was thus not surrendered. It was laid down as a rule that to constitute an offence of a political nature, there must be two or more political parties in the state, each seeking to impose the government of their own choice on the other, and the offence is committed by one side or other in pursuance of that objective.

But the fact that an accused perpetrated murder in a political disturbance does not by itself justify refusal to surrender him. Thus bomb outrages of an anarchist do not come within the ambit of the rule.^[15] Sometimes it is simply not clear what criteria the courts apply in determining whether an offence is of a political character.^[16] Professor Lauterpacht said, "A political crime is ... one committed in an attempt to substitute one government for another or one form of government for another".^[17] In Re Castioni ^[18]the court applied the formula whether the crime was "incidental to and formed part of political disturbances".

In the United States case of Karodzole^[19] the U.S. courts had to consider the request by the Government of Yugoslavia for the extradition of a Yugoslav national who was "Minister of Interior" in a Croatian cabinet formed in 1941 when the lawful government of Yugoslavia was in exile. It was alleged that Karodzole "ordered numerous murders". It was held that at the time of the alleged murders several political factions were struggling for power in Croatia and the applicant was also engaged in that struggle. ^[20]

In the case of Kolczynski seven members of the crew of a Polish trawler put the master and some members of the crew under restraint and sought political asylum on their arrival at Whitby, England. The Polish Government requested their extradition under a Polish - United Kingdom Extradition Treaty. Their application for habeas corpus was allowed. This case represents a noticeable shift in judicial opinion in the interpretation of the expression "an offence of a political character". It is necessary, if only for reasons of humanity, to give a wider and more generous meaning to the expression an offence of a political character. ^[21] In an apparent castigation of the inadequacy of the test suggested in the Castioni case the court said:

The words "offence of a political character" must always be considered according to the circumstances existing at the time when they have to be considered. The present time is very different from 1981 when Castioni's case was decided. It was then no treason for a citizen to leave his country and start a fresh life in another.

Countries were not regarded as enemy countries when no war was in progress. Now a state of totalitarianism prevails in some parts of the world and it is a crime for a citizen in such places to take steps to leave. In this case the members of the crew of a small trawler engaged in fishing.

were under political supervision and they revolted by the only means open to them. They committed an offence of a political character, and if they were surrendered there could be no doubt that while they would be tried for the particular offence mentioned, lhey would be punished as for a political crime.^[22]

It may be added that it is a misconception to suppose that the decision in Castioni was meant to be a rule of law exhaustive for all occasions. That there should be two or more political parties each vying with the other to impose the politics of its choice on the country is a principle inapplicable to the Communist Party in the U.S.S.R. Defection, namely, going to the West without permission of the political authorities, might well be a punishable offence. Nor is the-principle applicable in the new military dictatorships of Africa.

Cheng v. Governor of Pentonville ^[23] further illuminates this discussion. Cheng appealed against his extradition to the United States where he was convicted of attempted murder of the son of Chiang Kai-Shek. Cheng claimed that the offence, if any, was political in nature. Cheng was a Taiwanese and Executive Secretary of a movement dedicated to "expose the corruption and oppressiveness of the Chiang Kai- Shek regime to the public". The House of Lords held that an act was not "an offence of a political character" unless the only purpose was to change the government of the state in which it was committed. Cheng's activities had not been directed against the United States.

It is now generally agreed that a military offence is not a political offence. In the Ghana case The State v. Schumann ^[24] the defendant, a German medical practitioner, was alleged to have killed inmates of a lunatic asylum to make room for wounded soldiers; the Court of Appeal held that the offence was a war crime and therefore an extradition offence.

Just as the deportation of a citizen of the deporting state creates additional problems so also does the extradition of a citizen. Typical of this problem is the claim by a citizen that he is not a "person" within the meaning of an extradition treaty. In Charlton v. Kelly ^[25] the United States Supreme Court affirmed a judgment dismissing a habeas corpus application where a United States citizen was to be extradited to Italy under a treaty providing for extradition of "persons" charged with a crime. The applicant argued that under the law of Italy there was no obligation on Italy to surrender Italian nationals to the The United States on request by the United States to extradite such nationals. The court held that the treaty operated between nations and not between individuals and the claim was not one open to the applicant, an individual, and that the word "persons" was wide enough to include citizens.

It was a different story in Valentine v. Neidecker ^[26] where the Franco-American Extradition Treaty of January 6, 1909, provided that "neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Convention". The Supreme Court refused the request of the French Government for the surrender of the applicant, a United States national. In a similar situation in the United Kingdom, where the extradition treaty between the United Kingdom and Switzerland excepted nationals of the contracting parties from extradition under the treaty, Lord Cockburn expressed his regret that there should be such an escape clause for the benefit of English criminals.^[27]

However, in Rex v. Ganz, ^[28] a citizen of a third state, ie. the United States was extradited to the Netherlands whose treaty with the United Kingdom provided that citizens of the contracting parties should not be subject to extradition under the treaty.

In the Ghanaian case Republic v. Director of Prisons, Ex parte Allorey,^[29] the applicant, who was at all material times resident in the United States, obtained over two million dollars from United States purchasers for the purchase for them of cocoa beans from Camara & Company, a company registered and doing business in Equatorial Guinea, but failed to make payment for the purchases when he took delivery of the cocoa beans and bolted away to Ghana, his fatherland. The applicant argued that there was no obligation to extradite a citizen. The Court of Appeal observed that there was no principle of constitutional or international law by which citizens are excepted from an agreement to surrender "persons" where no such exception is made in the treaty itself. The court said that extradition is based on the principle aut punire aut dedere which means the offender must be punished by the state of refuge or surrendered to the state which can and will punish him. But since it was plain that the courts of Ghana had no power to invoke criminal sanctions against Ghanaians who had committed the offence of fraud by false pretences abroad, in respect of property in which the state of Ghana had no interest, there was no alternative left but to surrender the offender to the jurisdiction where the offence was committed. ^[30]

III. The Legal Status of OPM Dissidents

Papua New Guinea's present refugee situation arose from the influx of people from Irian Jaya (also called West Papua or West Irian) which is the result of the opposition of the people to Netherland's transfer of sovereignty over its former colonial possession to Indonesia in August 1962. The opposition took the form of the organisation of a movement called Organisasi Papua Merdeka (OPM) determined to secure for the people their right to self-determination. The skirmishes in February 1984 between the Indonesian forces and the forces of OPM in a bid to nip in the bud

the clamour for independence by OPM rendered life unsafe not only for persons within the range of battle but for all those opposed to Indonesian rule. These naturally found a safe haven across the border in Papua New Guinea.

The incidents of 1984 have given rise to two types of refugees: viz: those who because of cultural affinity crossed borders often, to visit relatives, the so-called "border-crossers"; and those who fled Irian Jaya because of the threat of loss of life, limb or liberty, the real refugees. The problem has been how to distinguish the two. After initial haggling over the issue of classification of refugees between the United Nations High Commission for Refugees and the Government of Papua New Guinea, the legal position now is that, on the basis of their group mass influx following the events of February 1984 and Papua New Guinea's accession in mid-1986 to the United Nations Convention on the Status of Refugees of 1951, they all qualify as refugees within the meaning of the Convention. ^[31]

In October 1984 an agreement, the Basic Agreement between Papua New Guinea and Indonesia on Border Arrangements was concluded between the parties to deal with the problem of "border-crossers". The term "border-crossers" is an euphemism for refugees and was deliberately coined to gloss-over the legal implications of the term refugees.^[32]

In July 1986 Papua New Guinea acceded to the United Nations Convention on Refugees of 1951 together with the Refugees Protocol of 1967.

The existing Constitution of Papua New Guinea (1975) provides in Sec.20(2) that the courts shall strive to develop the "underlying law" of PNG. The "underlying law" is more particularly delineated in Schedule 2. Part 2 of Schedule 2 provides for the application of the principles and rules of common law and equity and presumably principles of international law which have been assimilated into the common law. By virtue of Papua New Guinea's membership of the United Nations it has impliedly accepted obligations arising under international law. Member nations of the United Nations are also bound by the United Nations Declaration of Human Rights Article 14 of which provides that "every one has the right to enjoy in other countries asylum from prosecution".

The Government of Papua New Guinea also concluded an agreement with the UNHCR to get it involved in the handling of the refugee problem. The nation's basic law on refugees is, however, contained in the Migration Act. ^[33] The Act is currently

under review, and a Bill has already been drafted to give the law enforcement agents more power to deal with the refugees. It would seem that the police currently are wary about violating the fundamental rights of the refugees especially freedom of the person. ^[34] They would not, for example, forcibly remove them to relocations on camps.

IV. The right to self-determination as a Jurisprudential concept

Libertarians like J. Bentham, J.S. Mill and J.J. Rousseau had in their life-time given prominence to the concept of "self-development" of the individual and in the state. ^[35] In the "New World the idea found expression in the Monroe Doctrine and President Wilson applied it to the solution of European nationhood and self-sufficiency. ^[36] The founding-fathers of the United Nations, realising that the subjugation of one people by another was dangerous and created a potentially explosive situation not conducive to the international peace and security desired by a world which in one generation had witnessed two wars and was intent on removing all the causes of war from international life, gave expression to the concept in the United Nations charter. ^[37]

In the Advisory opinion of the International Court of Justice in The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), the Court said:

The subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self- determination applicable to all of them. ^[38]

In the Court's Advisory Opinion in the Spanish Sahara case, the Court said:

An advisory opinion of the court on the legal status of the territory at the time of Spanish colonization and on the nature of any ties then existing with Morocco and with the Mauritanian entity may assist the General Assembly in the future decisions which it is called upon to take, the General Assembly has referred to its intention to "continue its decision of this question" in the light of the Court's advisory opinion. The Court when considering the object of the question in accordance with the text of Resolution 3292 (XXTX) cannot fail to note that statement. As to the future action of the General Assembly various possibilities exist, for instance, with regard to consultations between the interested states, and

the procedures and guarantees required for ensuring a free and genuine expression of the will of the people. In general an opinion given by the Court in the present proceedings will furnish the General Assembly with elements of a legal character relevant to its further treatment of the decolonization of Western Sahara. ^[39] (Emphasis added).

The bulk of the law, however, is embodied in a number of United Nations resolutions. Reference has been made to Resolution 1514,^[40] which provides the basis for the process of decolonisation which has since 1960 resulted in the creation of many states which are today members of the United Nations.^[41] It is complemented by General Assembly Resolution 1541(XV).^[42] Although Resolution 1541 contemplates more than one possibility' for non-self-governing territories, viz:

(a) emergence as a sovereign independent state,

(b) free association with an independent state, and

(c) integration with an independent state,

it nonetheless recognizes the essential feature of the right of self-determination as established by 1514(XV).

Thus on free association, Principle VII states that it shall come about as the "result of a free and voluntary choice by the people of the territory concerned expressed through informed and democratic processes".^[43]

On integration, Principle IX states:

The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal suffrage. The United Nations could when it deems it necessary supervise these processes. ^[44]

General Assembly Resolution 2625 XXV^[45] (Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations) indicates other possibilities besides independence, association and integration but reiterates the fundamental and basic necessity of taking the wishes of the people concerned into account. It states:

The establishment of a sovereign and independent state, the free association or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination.^[46] (Emphasis added).

It provides further:

Every state has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples in accordance with the provisions of the Charter and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order ..... to bring a speedy end to colonialism, having regard to the freely expressed will of the people concerned.^[47]

It is necessary for our appreciation of the Irian Jaya issue to digress in this way with an exposition on the issue of self-determination which though being an event occurring within the area of exclusive jurisdiction of Indonesia has nevertheless international implications. It is not for outsiders to dictate what policy Indonesia should adopt towards OPM, but when the dissidents find themselves in other people's territories the authorities in the territories concerned have a duty at international law to consider carefully the political and legal implications of the presence of the refugees.

V. The Political Refugee and the Right of Asylum

Although international documents treat asylum as one of the fundamental human rights, ^[48]the fact that it is within the unfettered discretion of every state to determine for itself who shall be allowed into its territory and who should be excluded means that no such right of asylum exists as a matter of domestic jurisprudence. Much depends on the hospitality of the state in question and on considerations of political expedience and international comity. The British practice is summarised thus by Professor Harry Street:

When an alien's life or liberty is in danger or he has a well-founded fear of persecution of such a kind as to render life unsupportable (eg. Denying him ration or employment cards) on account of his race, religion, nationality, or political opinion, it is the practice of the British Government to allow him to stay in Britain. He may have no visa, he may not fall within the usual categories of admitted aliens, but nonetheless he may be allowed to stay. Obvious examples are the sailors from behind the Iron Curtain who from time to time desert ships in

British ports and seek refuge here. No such alien has a right of asylum, either by international law or English law. All that is meant is that the state will in practice allow such aliens to stay in Britain; other states have similar practice. The Home Office makes the decisions and will first interview the alien, who will not be allowed to retain residence here under the guise of a claim for sanctuary. ^[49]

Professor Street cites the case of Dr. Cort to illustrate the limits of the practice. ^[50] Dr. Cort, an American national and a qualified medical practitioner, was employed by Birmingham University. Before his departure form the United States. He had been rejected for military service on account of his tubercular condition. In England, he was approached by the United States authorities to report for a medical examination in connection with military service. Dr. Cort was convinced that the purpose behind the request for medical examination was to lure him into the United States where he would be required or compelled to give evidence before the McCarthy Senate Committee on UnAmerican Activities. Dr. Cort was at one time a member of the United States Communist Party, and his former colleagues had been subpoenaed to give evidence before this Committee and had had their reputation disparaged by the Committee. Dr. Cort accordingly refused the American invitation. The British Government refused to renew his visa, and Dr. Cort had to leave Britain. Pressure in Parliament to grant him asylum yielded no result, the government arguing that Dr. Cort's refusal to go to the United States amounted to evasion of military service, an act which by American jurisprudence was a ground to deprive him of his citizenship. Dr. Cort eventually emigrated to Czechoslovakia.

A pre-condition for the sojourn of a political refugee in the country of refuge is that the refugee must not use the territory of the country of refuge as a spring-board for subversive activities against his home state. This is in accordance with the noninterference principle under At.2(4) of the United Nations Charter.

In In re Jacob Prai and Otto Ondowame^[51], two OPM members were denied asylum in Papua New Guinea, probably because they were not regarded as OPM chieftains.

It must be remembered that although the grant of asylum to a state's political antagonists may be regarded as an unfriendly act by the requesting state, it cannot be labelled illegal at international law. Indeed it may qualify as a "humanitarian" act.

CONCLUSION

It is perhaps clear that in entering into an extradition treaty, most states take into account the peculiar status of the political refugee and make provision for their safety. Art.5 of the proposed Papua New Guinea - Indonesia Treaty does just that. The determination of the matter however rests with the judiciary, and we have shown in the foregoing pages that there is no universally acceptable definition for the phrase "an offence of a political character", Even where the courts' pronouncement on this becomes prejudicial to the personal safety of the accused, the matter can be taken out

of the legal into the political regime by the Head of State deciding to offer asylum to the accused. This has happened quite often. ^[52]But taking or an attempted taking of life of the Head of State does not qualify as a political offence.^[53] Provisions in an extradition treaty excepting political offences from the definition of an extradition offence are rather the rule than the exception.

Art.6 of the proposed Treaty appropriately protects nationals of the requested state. The practice is based on the doctrine of "self-preservation".

This research has been deliberately limited to the proposed Treaty's "problem area" ie., the political offence designation of a delict, the assumption being that the contracting parties are comfortable with the remainder of the proposed Treaty.

^[1] Offences regarded as crimes against humanity generally for example, piracy, hijacking,
^[2] Chapter 49. See also H.A. Amankwah, "The Alien, Freedom of Movement and the Law" 14 Zambia W. (1982) p.1
^[3] As at 1984 there were twenty-one states (treaty states) with which Papua New Guinea has
extradition treaties
^[4] See generally, T.M. Franck, Comparative Constitutional Process: Cases and Materials, New York: Praeger Publishers (1968) p.176 ff.
^[5] In Papua New Guinea there are specific constitutional provisions which reinforce habeas corpus, such as s.42(5) of the Constitution: ed.
^[6] S.2, PNG Extradition Ad
^[7] S.7(l)
^[8] S.7(3).
^[9] S.7(1)(c); for the U.S.A. position see Collins v. Loisel 259 U.S. 309
^[10] For PNG, see ss.9-22.
For British practice today, see G. Ress, "Contemporary practice", 2 The Cambrian Law Review (1971), p.42. For the U.S. practice, see S.L. Gibson, "Contemporary practice of the United States relating to International Law", 63 A.J.I.L. (2969), p.799
^[11] It has been held that extradition proceedings are not criminal nor is extradition punishment for crime. U.S. exrel Oppenbeim v. Hecbt 273 U.S. 769. In re Gonzales 217 Fed. Supp. 727 it was said that whether the extradition request was made in good faith or whether the criminal charge is a cloak for political action by the requesting foreign state is not a matter on which in court proceedings a judge may properly exercise a discretion, such matters being matters within the province of the political departments of the United States Government. The court held that all that is required is the establishment of a probable case that the accused is guilty which means that the case must be proved with a degree of sufficiency necessary to justify commitment for trial under local U.S. law; and that it is not necessary to prove guilt beyond reasonable doubt, nor that the evidence will be enough to convict the accused when tried in the courts of the requesting foreign state. See also Ex Parte Keine [1852] USSC 19; 55 U.S. 103; Femandez V. Phillips [1925] USSC 145; 268 U.S. 311

The U.K. Extradition Act 1870, s.10, requires such evidence as would "justify the committal for trial of the prisoner if the crime" were committed by the accused in Britain. Papua New Guinea law is to the same effect.

^[12] The controversy in U.K. as to the nature and extent of the power of the court in a judicial review will not be treated here

In the U.S. it has been held consistently that the writ of ltabeas corpus may issue at the instance of the defendant to seek judicial review, but the only issues a court may legitimately concern itself with are:
(1) whether the offence charged is within a treaty,
(2) whether the court of first instance had jurisdiction, and
(3) whether there was legal evidence before the court to support the committal.
Habeas corpus it has been held does not afford a rehearing: D'Amicos Application 185 Fed. Supp.925, 286 Fed. 2nd 320, 81 Ct. 1924, 366 U.S.; Marino v. U.S. Marshall 379 U.S. 872; US. ex re1 Hartfield v. Guay 300 U.S. 678; Collier v. Vaccaro 51 Fed. 2nd 17; Femandez v. Phillips, op.cit. (note 79); and Sayne v. ShipIey 418 Fed. 2nd 679 (1969) where the view was expressed that the due process clause guarantees the accused a right to hearing prior to foreign extradition although such hearing is in the nature of preliminary hearings and the right to hearing is satisfied by full habeas coryzrs hearing. For Papua New Guinea see Art.42 of the Constitution and the Prai case note 49 irfra
^[13] 217 Fed. Supp. 727
^[14] (1891) 1 Q.B. 149
^[15] Re Meuaier (1894) 2 Q.B. 415. See also Ex Parte Arton (1896) 12 L.T.R. 132.
^[16] See Ex Parte Kolczynski (1955) 540; also Georges, "The notion of political offences and the law of extradition':, 31 B.Y.I.L. (1954), p.430; Evans, "Reflections upon political offences in International Law", 57 A.J.I.L. (1963), p.1; Amerasinghe, "Case Note: The Schtracks case: defining political offences and extradition", 28 MLR. (1965) The Schtracks case is reported in (1963) 1 Q.B. 55.
^[17] "Law of nations and punishment of war criminals", 21 B.Y.I.L. (1944), 59 at p.90
^[18] Op.cit. (note 82) supra
^[19] US. Law Weekly, June 26, 1957, p.2030, See also J.E. Fawcett, "Some recent applications of International Law by the united States", 34 B.Y.I.L. (1958), 391
^[20] See English test in Re Castioni (note 82).
^[21] Note 82 at p.551
^[22] Ibid. at p.549
^[23] Ibid. at p.549
^[24] 1969 C.C. Paragraph 102. Dr Schuman had lived in Ghana since 1958. As long as the Nkrumah regime remained in control of the country, it was impossible for the German authorities to have him extradited. However, soon after the fall of the Nkrumah Government in 1966, proceedings were expedited and Dr Schuman was extradited
^[25] [1913] USSC 212; 229 U.S. 447 (1913).
^[26] 299 U.S. 5
^[27] R. v Wilson (1877) 2 Q.B.D. 42 at p.43 where he said "this blot upon the law shall be removed, so as to prevent an Englishman who commits an offence in a foreign country from escaping with impunity".
^[28] (1882) 9 Q.B.D. 93
^[29] (1973) 2 G.L.R. 480. See also The Government of Sierra Leone v. Major Jemu (1969) C.C. 47; Ex Parte Musa (1968) C.C. 108
^[30] (1973) 2 G.L.R. 480 at p . a . Art6 of the proposed Treaty has taken care of this type of problem
^[31] The view that Papua New Guinea is not a party to the United Nations Convention on Refugees (see p.7) is erroneous. The Department of Foreign Affairs confirms this writer's position
^[32] On the West Irian refugees issue, See The Report of the Mission of the Australian Section of the International Commission of Jurists, Sydney (1986).
- C. Buidiardjo and L.G. Liong, West Papua: The Obliteration of a People, U.K.: TAPOL, 3rd ed., 1988, Chapter 7, "Refugees";
- M. Tsamenyi, "Papua New Guinea and the West lrianese Refugees" Melanesian Law Journal, Vo1.12, Nos.1 & 2 (1985), pp.24-48;
- Brian Brunton, "Human Rights in Papua New Guinea and the Prospects for International Supervision" - a paper presented at the Lawasia Conference in Sri Lanka in 1979;
- Brian Brunton, "Refugees, Human Rights and Irian Jaya: A Critique of Policy" - a paper presented at a conference on PNG and Australia: PNG Perspective, ANU, 19 September 1984.

^[33] c.16
^[34] See s.42 of the Constitution of Papua New Guinea
^[35] See C.L. Wayper, Political Thought Teach Yourself Series, London (1974) 113 ff; also HA. Amankwah, "Self-determination in the Spanish Sahara" 14 Comp. of Intern. LJ. (1981) p.34
^[36] W.R. Bisschop Writing on "Sovereignty" said: 'Self-determination is based on the principle of decision by a majority of those who are directly concerned. (1921-22) 2 B.Y.I.L. 122 at 130
Writing on "Self-determination in the United Nations", Clyde Eagleton lamented the fact that instead of fighting for independence, nations are now merely appealing to the U.N. He recalled the examples of the French and American wars of independence and wondered what becomes of the "self' concept if another agency should do the "fighting" for a people, (1953) 47 A.J.I.L. 88-93. For the current U.S. view see: Michael Pomerance "The United States and Self-Determination: Perspectives on the Wilsonian Concept" (1976) 70 A.J.I.L. 1. See also S.P. Sinha "Has Self-determination Become a Principle of International Law Today?" (1973) 14 Indian J.I.L. 169.

^[37] See Articles l(2) and 55 of the United Nations Charter
^[38] 1971 I.C.J. Reports 31
^[39] 1975 LCJ. Report 12, at 36-37
^[40] 15 U.N. GQAR Supp.16, U.N. Doc. A/4684 (1960). Art.2 provides: "All peoples have the right to self-determination by virtue of that right they freely pursue their economic, social and cultural development". By Art.6 "Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations"
^[41] Decolonization: Fifteen years of the United Nations Declaration on the Granting of
Independence of Colonial Countries and people. Vol.11 No.6 December 1975 47
^[42] Op.cit note 38 supra
^[43] Idem
^[44] Id
^[45] G.A. Res. 2625 21 U.N. GOAR Supp. 16 103 U.N. DOC A/6316 (1966)
^[46] Id
^[47] Id
^[48] See Art.l4(1) of U.N. Declaration of Human Rights
^[49] Freedom, the Individual and the Law London: Penguin books (1963) p.263
^[50] Id.
^[51] (1979) PNGLR 42
^[52] See the Ghanaian case Re Kwesi Armah (1966) 2 All E.R. and the Dikko Case discussed in H.A. Amankwah, "Extradition and Asylum in International Law Revisited ..." 15 M.L.J. (1987) p.154
^[53] See Art.5(3) of the proposed Treaty