The Discussion Guide for the Conference suggested that this topic had provoked a wide range of different views in the past and that it was safe to predict that there will still be some marked disagreements on the subject. That prediction was shown to be only partially true, as while the national papers revealed some nations strongly supporting international transfers while others are strongly opposed, the oral presentations and comments were all totally or cautiously supportive. There is overall agreement, however, with the fact that every nation in the region has among its prisoners a number who are citizens of foreign countries, and the available evidence suggests that the numbers of foreign prisoners seem to be increasing.

There are a number of possible categories of foreign prisoners. Of most concern are criminals who move from one country to another with the specific purpose of committing offences. Drug couriers would fall into this class. A separate group would be genuine tourists, or temporary visitors, who happen to become involved in a criminal activity while in a foreign country, and a third category would be long-term residents of a country who were born in another country, but either have not sought or have not been granted citizenship of the country where they live and where their offences occurred. The possibility of international transfer is relevant to the first two categories, but rarely to the third, as many in this group would have few, if any, relatives or other connections with their country of birth.

A further definitional issue discussed in a number of the national papers, is the distinction between international transfer and the deportation of offenders after they have served their sentences. The two concepts are quite different as transfers are undertaken for humanitarian and rehabilitation reasons, whereas deportation is a means of expelling unwelcome foreigners from any nation. Similarly, the movement of prisoners between nations in the interests of mutual assistance (to give evidence in a legal hearing, for example) is not to be confused with international transfer.

The nation which probably has the highest proportion of foreigners in its prisons is Malaysia, for whom the national report indicates that 21 per cent of the total (6118 out of 28891) were foreigners. This is described as an “alarming increase” in recent years. Of the 6118, 55.7 per cent were from Indonesia, 22.3 per cent from the Philippines, and 8.4 per cent from Myanmar. It is noted that illegal immigrants are included in the total of foreign prisoners in Malaysia.

The Australian national paper suggests that for the six states and two territories between eight and ten per cent of prisoners are foreigners, but other information suggests that in the Northern Territory in recent months approximately 21 per cent of all prisoners are Indonesians who have been sentenced for people smuggling. It is noted that in Australia illegal immigrants are held in detention centres rather than prisons unless they have committed other offences. The Australian delegate informed the conference that there were currently 16 Australians in prisons in Thailand.

In Hong Kong (China) some nine per cent of prisoners are “other nationals” with the highest numbers coming from Vietnam, Pakistan and the Philippines. In Canada, some five per cent (or 1100) of all offenders under the jurisdiction of Correctional Services of Canada (800 in custody and 300 on conditional release in the community) are foreigners, the overwhelming majority coming from the United States. In Japan at the end of 2000, 6.5 per cent of all prisoners were foreigners, or Class F prisoners, and this proportion had increased 2.3 times in the previous decade.

Thailand has also experienced an increase in the number of foreign prisoners in recent years and at 30 August 2001 that number was 6710, or 2.7 per cent of the total, with the highest proportion coming from Myanmar and other Asian nations. In the Republic of Korea, the number of foreign prisoners has increased from 306 to 480 in the past five years with the largest numbers coming from China, East Asian countries and the Middle East. In the Peoples’ Republic of China, 685 prisoners were foreign citizens, or 0.047 per cent of the total. The report from the tiny Pacific nation of Tonga indicates that even in that remote location there are currently three foreign prisoners, one each from China, Australia and New Zealand.

The delegates from Japan, Australia, Fiji, Canada, Thailand and Hong Kong (China) all referred to the particular difficulties experienced by foreign prisoners if they came from countries with a different language, different dietary practices and different culture to that of their home nations. They also referred to the pressures this created for correctional staff who tried to treat them fairly and equitably. Other delegates referred to the stress experienced by the relatives of offenders who were imprisoned in nations other than where they lived, and reference was also made to the extra work foreign prisoners created for the consular staff of diplomatic missions in caring for the welfare of their fellow nationals in custody.

The Malaysian paper referred to overcrowding, security risks (for example gang fights), long delays before deportation, the introduction of diseases, and communication problems all associated with the holding of foreign prisoners. The paper indicated, however, that foreign prisoners in Malaysia were treated with due respect and dignity “to avoid sensitive issues…with countries in the neighbouring region.” It is apparent that the treatment of foreign prisoners is potentially a subject of relevance to broader international relations.

In Japan, all foreign prisoners are given the opportunity to attend Japanese language classes, and a centralised system endeavours to locate books for foreigners in their own languages. In two prisons, Fuchu and Osaka, international affairs sections have been established to provide services, including interpretation and translation if required, to foreign prisoners.

There are two different types of treaties or conventions which form the basis of the international transfer of prisoners. Multilateral treaties are legal agreements between a number of nations, the best known of which in relation to foreign prisoners is the Council of Europe Convention on the Transfer of Sentenced Persons. This convention has been signed by some 44 nations, including Canada. Other multilateral treaties are the Commonwealth of Nations Scheme for the Transfer of Convicted Offenders, signed by seven nations, and the Inter-American Convention on Serving Criminal Sentences Abroad, signed by six nations.

In contrast, bilateral treaties are agreements between two nations and may incorporate special conditions to meet particular needs. Hong Kong (China), Thailand and Canada have all signed bilateral treaties with a considerable number of other nations. Australia signed a bilateral treaty with Thailand earlier in 2001, but no transfers will take place until the legislation is considered further by the Commonwealth Government.

The international treaties which make the transfer of prisoners possible all require that the prisoner seeking transfer makes a request or application. Prisoners are not to be moved between nations against their will under any of these treaties. Two other requirements are also specified. These are the agreement of the governments of both the sending and receiving nations. (In federated nations such as Australia, where the administration of prisons is the responsibility of the states and territories, the agreement of the relevant state or territory government is also required. Similarly in Canada, for offenders sentenced to less than two years, the approval of the relevant provincial or territorial government is also required.)

It is also a general requirement of eligibility that a prisoner will only be considered for transfer after all appeals have been settled and he or she has no further legal matters pending. Furthermore, the prisoner must have at least six months of the sentence to serve after the transfer has been completed.

Some nations also impose a further condition on eligibility by requiring that a specified proportion of the sentence must be served in the nation where the offence occurred before a prisoner may be transferred to his or her home nation. For example, Thailand requires that the proportion of the sentence to be served in Thailand depends on the length of the sentence imposed.

Those nations which support the international transfer of prisoners are largely motivated by humanitarian concerns. For example, the Canadian national paper refers to the “undue hardships” suffered by offenders serving sentences abroad, but points out that parents, siblings, spouses and children of the offenders may also suffer in these circumstances. The Canadian paper also points out that it is often the relatives of the offender who offer the only hope of successful rehabilitation. Therefore the international transfer of prisoners is seen as contributing to the reduction of reoffending as well as reducing the personal hardships of foreign prisoners and their families.

It could also be argued that some of the problems listed above, such as the challenges posed by foreign prisoners to correctional officers and to diplomatic staff, may also be relieved to some extent by these programs, but these considerations are generally seen as of less importance than the humanitarian and crime-reducing aspects of international transfers.

The national paper prepared by New Zealand argued that it opposed the international transfer of prisoners as, in its case, there was little humanitarian pressure as the majority of New Zealanders imprisoned abroad were in Australia where there were no significant language or cultural differences. Furthermore, New Zealand argued that transfer schemes might seriously compromise the deterrent effect of sentencing, particularly in the case of drug offenders. The latter argument was also made by the delegations from Malaysia and Singapore. The national paper of the Peoples’ Republic of China stated that, as a matter of principle, every person is equal before the law and therefore foreign prisoners have the same rights and bear the same liabilities as Chinese prisoners. (The Chinese paper, however, concluded with a statement that it wanted to learn from the experience of other nations at the conference on this subject.)

The national report from Japan stated that Japan had not been enthusiastic about international transfers because of the “considerable differences in criminal legislation among nations”, but because of the increasing numbers of foreign prisoners and the severity of the difficulties they face with regard to rehabilitation, Japan has now started preparations for the ratification of the international transfer convention of 1999. Similarly, even though reluctant in the past, Korea is currently developing a system of international transfers which is described as in its infancy. A similar position, which was described as “cautious support”, was also stated by Fiji.

The evidence presented to the conference suggests that the actual number of transfers that have taken place to date is relatively small. The most detailed information on actual numbers was offered by Canada. This showed that over the 24 year period 1978 to 2001 a total of 871 prisoners had been transferred to Canada from 26 different nations, while over the same period a total of 116 prisoners had been transferred from Canada to six different nations. From these figures it can be calculated that on average Canada gained approximately 36 prisoners each year and lost approximately five. The net additional burden was thus only approximately 31 extra prisoners per year.

The Canadian data also show that the nations returning most prisoners to Canada were the United States (686), Mexico (49), Peru (26), United Kingdom (21) and Thailand (15), while the nations receiving most prisoners from Canada were the United States (105), the Netherlands (6) and United Kingdom (2).

The second most active nation in the region in the international transfer of foreign prisoners is Thailand, and data given in the Thai national paper indicate that between 1984 and late 2001 a total of 239 foreign prisoners had been transferred to their home nations. The largest numbers went to Hong Kong (China) (66), United States (65), Spain (29), France (20), Great Britain and Canada (18 each), and Sweden (15). Over this period a total of only four Thai citizens imprisoned in foreign countries were transferred back to Thailand.

The Canadian paper states that transferring countries are responsible for costs incurred on their respective territories, but receiving nations can recuperate some of the costs from the transferees (the prisoners being transferred) if this is permitted by the relevant legislation. The delegation from Thailand explained that the matter of costs was one of the issues that was negotiated before bilateral treaties were signed, but the usual practice was for the receiving country to send escorting officers at their expense to take their fellow nationals home.

The overall picture to emerge from the consideration of this agenda item is that there is general agreement that many foreign prisoners experience considerable difficulties in coping in prison, but there are still strong differences of opinion on the question of international transfers. There seems, however, to be a noticeable increase in the number of nations in the region who are considering the establishment of international schemes, and in at least two cases the national papers indicated that the discussions at this conference would help them make a decision in the future about whether to support international transfers or not.

At the conclusion of the discussion of this agenda item, Mr Siwa Sangmanee suggested from the Chair that the most direct way to reduce the number of foreign prisoners was to do everything possible to encourage foreign visitors not to break the law. He also suggested that we should all encourage our governments to support international transfers, and that, at least within the 21 nations or territories represented at the conference agreement on this issue would go a long way to reducing the problem.