China discredits American extradition treaties just as it expands them as a tool in its anti-corruption campaign.
[A Chinese suspect is extradited from Bulgaria to Beijing in 2018]
On 1 December of last year, Meng Wanzhou, the CFO of Chinese tech giant Huawei was arrested in Canada on fraud charges at the request of the United States under a US-Canada bilateral extradition treaty. Huawei is one of China’s most prized corporate treasures and her detention drew quick condemnation from Chinese media.
Meng’s arrest hit a nerve in China, where Chinese Communist Party (CCP) officials often contend that American actions, legal or otherwise, often serve as little more than a tool to stymie China’s rise. Chinese state media reacted by kicking up a nationalist backlash and the Chinese government quickly arrested two Canadians, including a former Canadian diplomat, and promptly issued the death sentence to a third Canadian over drug charges. It is hard to imagine that these actions are not retaliatory measures.
Meng’s extradition to the US is now under deliberation by Canadian courts. As the world waits to see whether Meng will be extradited to the US, China is looking to delegitimize her arrest. In a statement, the Chinese embassy in Canada contended: “The US and Canada abused their bilateral extradition agreement and took compulsory measures against a Chinese citizen for no reason. Such actions seriously violate the legitimate rights and interests of the Chinese citizen.”
China, of course, has extradition treaties of its own. It has bilateral extradition treaties with 37 countries (see map and table) and several more that are currently awaiting ratification. Compare that to the US, which has extradition treaties with over 110 countries. Chinese officials are painfully aware of this gap.
Extradition treaties occur between two countries when enough common ground on legal questions and trust in each other's judicial system has been established. Often politics shape that determination. Therefore, the negotiation of an extradition treaty is a kind of portal through which two distinct legal, ethical, and political ideals are being reconciled. How these models are squared can have a significant impact on whether and under what terms individuals accused of a crime are extradited. That is because punishment, the criminalization of political activities, and the protection of rights vary significantly across the world.
There the PRC has a troubling track record. China has asked for the extradition of Uighurs in Malaysia (the request was denied) and compelled many to return via forced repatriation. This effort is part of a larger PRC program of cultural repression, mass internment, and Orwellian surveillance targeting ethnic and religious groups, in particular Uighurs but also other Muslim minorities such as Kazakhs in China. Many governments worry, in particular, about China’s broad use of the death penalty and often transfer of individuals will be contingent on assurances that such punishment will not come to pass.
Countries with which China has Extradition Treaties
Note: The above graphic is an updated and adapted version of earlier graphics published here and here. Sources: Ministry of Justice, National People’s Congress, and Ministry of Foreign Affairs
[Click here for a PDF version of the table with links.]
The Party Wants Treaties
Securing extradition treaties is an important step in extending the reach of President Xi Jinping’s anti-corruption campaign internationally. The initiative has ensnared millions of officials of all stripes, rejigged the highest ranks of political leadership, and become an important source of political legitimacy and power for President Xi. In a 2018 article published in a Central Commission for Discipline Inspection (CCDI)-affiliated magazine, CCDI Bureau for International Cooperation Head La Yifan, struck an urgent tone:
“We must strengthen international cooperation in anti-corruption comprehensive law enforcement and continue to tightly weave nets above and snares below to hunt down fugitives and return stolen assets. We must strengthen political leadership, tightly holding on to signed extradition treaties is key, push relevant departments to accelerate the negotiations of extradition treaties, and strive to negotiate and sign more bilateral extradition treaties.”
In early 2017, the former CCDI Bureau of International Cooperation Head Liu Jianchao (Liu and La both took on this directorship after a career in the Chinese diplomatic corps) boasted about the number of signed extradition treaties China had secured at the time (48 as of January 2017, although not all were yet in effect), and identified them as a key tool in China’s efforts to return fugitives and recover stolen assets. Extradition treaties are also seen by CCDI leadership as a deterrent—the more extradition treaties China has, the harder it would be for officials to get away with corruption, making it easier to keep Party cadres in line. When China signed an extradition treaty with France, the CCDI raved that corrupt officials had lost another “safe harbor.”
Nearly all CCDI work reports published during Xi’s tenure discuss international cooperation in anti-corruption work in some form or another. Several of these reports, including one presented in 2016 by former CCDI Secretary Wang Qishan, and another presented by current CCDI Head Zhao Leji in 2018, call out the need for the expansion of extradition treaties directly.
Yet, extradition treaties have not come easily. Bertram Lang, a research fellow at Goethe University Frankfurt notes that, in general, while China has been successful in signing new extradition treaties over the past two decades, major jurisdictions where fugitives settle—namely Canada, Australia, and the United State—have eluded Chinese diplomatic efforts. However, in the absence of extradition agreements a few other arrangements can help. So-called mutual legal assistance treaties (MLATs) play an important role. These agreements mainly involve evidence exchange and other kinds of law enforcement cooperation. China has many more MLATs than extradition treaties, and cites those as part of its anti-corruption success too. Thomas Eder, Lang, and Moritz Rudolf point out in a MERICS China Monitor brief that these MLATs establish trust and often are a stepping-stone towards extradition treaties.
On 13 September 2016, without much fanfare, the Canadian government announced that it had agreed to work toward developing an extradition treaty with China. As reported by the New York Times, the move was condemned by human rights groups, and raised eyebrows as it was announced right after China allowed the return of a Canadian missionary worker. In essence, this agreement to begin negotiations was seen as a concession by the Canadian government. Treaty negotiations seem to have not progressed since.
In 2017, Australia considered ratifying an extradition treaty with China until then-Australian Prime Minister Malcolm Turnbull received major pushback. Reporting in the New York Times suggests this arose out of longstanding concerns about China’s human rights record, which were magnified by an incident involving an academic, Feng Chongyi, who was born in China but held Australian permanent residency. He was temporarily held in China for having been critical of the PRC’s crackdown on dissidents.
The US does not have an extradition treaty with China for many of the same reasons, though China wants one. The two countries do have an MLAT and in 2005 the Joint Liaison Group on Law Enforcement Cooperation (JLG) Anti-Corruption Working Group was established in order to strengthen bilateral law enforcement collaboration.
Despite these challenges, China celebrated several “firsts” in 2018. In June 2018, Sweden extradited a fugitive to China. It was the first time China successfully requested an extradition under the United Nations Convention Against Corruption without a bilateral extradition treaty. A National Security Commission (NSC) statement claimed that an extradition from Bulgaria was the first since the promulgation of the National Supervision Law as well as the first time it successfully requested a graft related extradition from a European Union member country.
The Party Wants a New Order
As China’s quest for extradition treaties moves along slowly, it is actively working to build the shared values and mutual understanding that must precede such negotiations, attempting to leverage the prestige and appeal of the anti-corruption campaign. Chinese officials are now calling for a “new international anti-corruption order (国际反腐败新秩序)” which Lang says is an attempt by Party officials to “not only participate in the international order but also [bring its] own ideas” which link corruption to “Chinese concepts of foreign policy, which includ[es] win-win cooperation between states .”
“There [are] major differences, first of all, in terms of how anti-corruption is understood,” Lang says. The CCP describes corruption in “moral” terms, in contrast to western policymakers who use “legalized definitions where corruption basically refers to illegal behavior and mostly economic crimes. That is something seen quite differently in China from the outset. [Corruption is] every act of malfeasance which is susceptible of undermining the CCP’s governance system and the CCP’s very existence.” This “new international anti-corruption order” then is part of the larger campaign’s goal to clean up China’s bureaucracy as well as to revitalize the Party’s standing.
To that end, CCP leadership entered into a give and take on international norms. Lang describes how China is spreading its anti-corruption gospel at the same time as it is showing willingness to abide by international standards. China promotes international collaboration on anti-corruption at various global forums, such as the G20 summit China hosted in Hangzhou, its Belt and Road Forum, and APEC. China ratified the UN Convention against Corruption and established an agency to enforce it.
The National Supervision Law, which gave birth to a new state body called the National Supervision Commission (NSC) in 2018, ostensibly lends greater legal definition to PRC anti-corruption work, which was up until then, mainly handled by a Party organ, the CCDI. Today the NSC and CCDI work side-by-side. The law established a powerful fourth branch of government and cast a broad mandate without clarifying important questions on criminal procedure. In Articles 50 to 52, the law lays out a broad role for the NSC in international law enforcement cooperation, which includes extraditions.
These changes, too, are in service of the CCP’s ambitions to create a “new international anti-corruption order.” A notice posted on the CCDI website includes an excerpt from a book authored by the Office for Regulations of both the newly established National Supervision Commission and the CCDI. The book outlines legal interpretations and rules for implementation of the new law. The post establishes a link between the “new international anti-corruption” order being championed under President Xi and Articles 50-52 of the new law.
The Party Finds a Way
When no extradition treaty is in place, there are a number of legal, non-legal, and possibly illegal methods the Chinese government employs. Extradition is really only one of many ways of transferring an accused from one jurisdiction to another (i.e. repatriating someone) or of bringing an individual to justice generally. In a 2017 posting, the CCDI identified four main methods: extradition, “repatriation due to illegal immigration” (i.e.: deportation), prosecution in another jurisdiction, and “persuasion.” “Persuasion” is described in a Global Times article as “educating and persuading the fugitives, help them turn themselves in back to China” and portrayed as “highly effective,” especially in the absence of extradition treaties. The government also published a tally of transferred fugitives for 2018. Last year, 17 were extradited, 66 were “repatriated” (likely refers to deportation here), one was prosecuted abroad, 500 were “persuaded,” and hundreds more were held abroad or transferred via other means.
Repatriation can occur in a number of ways. David Sadoff, the executive director of the Center for Ethics and the Rule of Law at University of Pennsylvania Law School, wrote the textbook Bringing International Fugitives to Justice: Extradition and Its Alternatives in which he elucidates the myriad ways individuals can be transferred from one jurisdiction to another, with or without extradition. One method in particular is noteworthy. Countries sometimes perform so-called “disguised extraditions,” which Sadoff describes as the “purposeful circumvention of extradition law or an applicable treaty by the host state to deliver a fugitive directly or indirectly to a state with a law enforcement interest in him, most often via the exercise of immigration laws.” In other words, states can find a reason to deport the individual and essentially achieve extradition through those means. Canada, for example, has deported Chinese citizens wanted for crimes, despite concerns about their treatment upon return to China.
What the Chinese government means exactly by “persuasion” is unclear. However, there have been worrisome reports of the PRC employing a number of coercive and fly-by-night methods to compel fugitives to return, including so-called “exit bans.” Last year, the New York Times reported that family members of a state-owned bank executive wanted for fraud were being prevented from leaving China (notably they were all US citizens) in order to pressure the executive to surrender himself. There have also been reports of Chinese agents entering Canada under tourist visas to connect with fugitives and compel them to return. A similar case in the US prompted the Obama administration to issue a warning.
Lang points out that “persuasion” at times continues to be used with fugitives in countries with which China already has extradition treaties, as was the case with the return of Zheng Ning in 2017. By then, the Sino-French extradition treaty had been in effect for two years. This suggests Chinese authorities reason that in many cases it is more expedient to take unilateral action on individuals directly rather than apply legal frameworks that require the cooperation of a foreign country.
In some cases, the Chinese government simply crafts narratives that blend international tools with unilateral action to give the impression that they were handled with the help of international actors. The same Global Times article noted that most fugitives put on so-called “red notices” returned via “persuasion.” Red notices are essentially requests for arrests coordinated by Interpol. They do not mean extradition or any other form of transfer will occur and indeed, if the bulk of red notices get resolved via “persuasion,” then formal avenues are likely the exception rather than the rule. The goal, it seems, is to give the impression that China can harness international cooperation (in this case Interpol) while achieving its desired ends - an important component of its “new international anti-corruption order.”
However, as Lang and others have pointed out, the image of China as a responsible international stakeholder has been severely tarnished in the wake of the Meng Hongwei saga. Meng, a Chinese official who was Interpol’s President, vanished on a trip to China in September 2018. Shortly thereafter the CCDI posted that he had been detained and was under investigation. Some suggested that CCP trust in Meng dwindled after he had failed to uphold an Interpol red notice on a Uighur activist China was desperate to capture. As Bethany Allen-Ebrahimian writes: “... party disciplinary authorities were treating Meng first and foremost as a party member who had strayed from the straight and narrow, rather than as the internationally recognized top official of a major multilateral organization who deserves due process.” The point here is that Party discipline trumps Chinese respect for the independence of international institutions.
Writing about the European Union, MERICS Research Associate Thomas Eder points out the Chinese quest for fugitives, extradition treaties, and international norm making will require the world to be alert to its assertive international law enforcement ambitions. Universal values, individual human rights and legal sovereignty depend on it.
Michael Laha is a program officer at the Asia Society Center on U.S.-China Relations in New York, which he joined as a U.S.-China Dialogue Fellow. He manages the Center’s public programming and helped manage a project with ChinaFile tracking Xi Jinping’s anti-corruption campaign. He holds a M.A. in East Asian Cultures and Languages from Columbia University and B.S. in Chemistry from Tufts University. Before completing his Master’s degree, he spent a year at Nanchang University in Jiangxi Province teaching English. He is proficient in Chinese.
The author would like to thank Jerome Cohen, Yu-Jie Chen, Noah Lipkowitz, David Sadoff and Bertram Lang for invaluable advice, explanations, and pointing him to source materials.