Circumventing the China Extradition Conundrum: Relying on Deportation to Return Chinese Fugitives
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\\jciprod01\productn\N\NYI\50-4\NYI405.txt unknown Seq: 1 31-AUG-18 14:43 CIRCUMVENTING THE CHINA EXTRADITION CONUNDRUM: RELYING ON DEPORTATION TO RETURN CHINESE FUGITIVES SABRINA CHOO* I. INTRODUCTION .................................. 1362 R II. FEATURES AND CHARACTERISTICS OF EXTRADITION .................................... 1365 R A. Principle of Specialty .......................... 1368 R B. Dual Criminality ............................. 1370 R C. Political Offence Exception..................... 1371 R D. Non-discrimination with Respect to Race, Religion, Nationality.......................... 1373 R III. OBSTACLES TO AN EXTRADITION TREATY WITH CHINA .......................................... 1373 R A. An Unpopular Prospect ....................... 1374 R B. Possible Legal Implications .................... 1377 R C. The Way Forward? ........................... 1379 R IV. THE DEPORTATION OF FUGITIVES TO CHINA ...... 1381 R A. Reliance on National Immigration Laws ........ 1381 R B. Case Studies ................................. 1382 R 1. Singapore ................................ 1382 R a. Li Huabo ........................... 1383 R 2. United States ............................. 1387 R a. Kuang Wanfang & Seven Others .... 1389 R b. Yang Xiuzhu........................ 1390 R c. Zhao Shilan ........................ 1391 R d. Zhu ................................ 1393 R e. Zhou Ziming ....................... 1393 R 3. Canada ................................. 1394 R a. Lai Changxin ....................... 1395 R * Deputy Senior State Counsel, International Affairs Division, Singa- pore Attorney-General’s Chambers, Advocate and Solicitor (Singapore), LLM, New York University School of Law, 2018. I would like to thank the editors at the Journal of International Law & Politics for their insightful com- ments and revisions. I am especially grateful for my husband, Joshua Chew, for his encouragement and unwavering support during the writing process. The views expressed herein are the views of the author and do not necessa- rily represent the views of the Government of Singapore. All mistakes are my own. 1361 \\jciprod01\productn\N\NYI\50-4\NYI405.txt unknown Seq: 2 31-AUG-18 14:43 1362 INTERNATIONAL LAW AND POLITICS [Vol. 50:1361 C. Lessons Learnt ............................... 1396 R V. COMPARATIVE MERITS OF RELYING ON DEPORTATION MEASURES TO RETURN CHINESE FUGITIVES VERSUS EXTRADITION .................. 1397 R A. Criticisms of the Use of Deportation in Lieu of Extradition .................................. 1397 R B. Arguments In Support of the Use of Deportation to Return Fugitives.............................. 1402 R C. Lawfulness of the Approach ................... 1403 R VI. POLICY RECOMMENDATIONS TO STRENGTHEN THE CURRENT PRACTICE .............................. 1406 R A. Rescind Any Policy Decision that Expressly Offers the Deportation of Fugitives as an Alternative Method to Extradition ........................ 1407 R B. Consider Whether to Prosecute the Fugitive- Deportee for an Underlying Offence Committed in the Host State ................................ 1407 R C. Bear in Mind Relevant International Obligations .................................. 1409 R D. Obtain Diplomatic Assurances from China to Ensure that Traditional Extradition Protections are Preserved ................................. 1411 R E. Ensure that Procedural Safeguards and Due Process are Respected .......................... 1412 R F. Allow the Fugitive to Choose his Desired Deportation Destination ....................... 1413 R G. Explore whether Extradition is an Option ....... 1413 R VII. CONCLUSION .................................... 1414 R I. INTRODUCTION Corruption in China has grown over the past three de- cades in tandem with the implementation of market liberaliza- tion reforms to open up its economy.1 In recognition of the pernicious effect that wide-spread corruption has on China’s sustained economic growth, and the threat that official corrup- tion poses to the credibility and legitimacy of the Chinese 1. See Jon S.T. Quah, Hunting the Corrupt “Tigers” and “Flies” in China: An Evaluation of Xi Jinping’s Anti-Corruption Campaign (November 2012 to March 2015), MD. SERIES CONTEMP. ASIAN STUD., no. 1, 2015, at 11 (describing the exponential increase in number and size of corruption cases in the post-Mao era, and attributing them in part to Deng Xiaoping’s “open door” policy). \\jciprod01\productn\N\NYI\50-4\NYI405.txt unknown Seq: 3 31-AUG-18 14:43 2018] CIRCUMVENTING THE CHINA EXTRADITION CONUNDRUM 1363 Communist Party (CCP), the Chinese leadership has carried out multiple anti-corruption campaigns throughout the Mao and post-Mao periods in efforts to stamp out rampant corrup- tion.2 However the anti-corruption campaign launched by President Xi Jinping when he became General Secretary of the CCP and Chairman of the Central Military Commission in 2012 is unparalleled in its intensity,3 durability, and scope.4 At the Nineteenth National Congress of the CCP on October 18, 2017, Xi pledged to continue his anti-corruption campaign5, exhorting party cadres to “remain as firm as a rock”6 and warn- ing that “[w]e must . rid ourselves of any virus that erodes the Party’s health.”7 By prominently featuring his anti-corrup- tion campaign in his keynote speech, Xi inextricably linked his political brand with anti-corruption. Moving ahead, there will be increasing pressure on the Chinese authorities to demon- strate tangible results. Despite the high-profile nature of the campaign, the Chi- nese authorities continue to face obstacles tracking down and prosecuting corrupt Chinese officials who have fled to all cor- ners of the globe. Even as China actively seeks extradition treaties with Western countries such as the United States, Ca- nada, Australia, and the United Kingdom—jurisdictions where Chinese fugitives have fled—it has found its efforts rebuffed 2. See Ye Feng, The Chinese Procuratorate and the Anti-Corruption Campaigns in the People’s Republic of China, in IMPLEMENTATION OF LAW IN THE PEOPLE’S REPUBLIC OF CHINA 113, 113–117 (Jianfu Chen et al. eds., 2002) (providing an historical overview of Chinese campaigns against corruption). 3. See Shai Oster, President Xi’s Anti-Corruption Campaign Biggest Since Mao, BLOOMBERG (Mar. 4, 2014, 5:41 AM), https://www.bloomberg.com/ news/articles/2014-03-03/china-s-xi-broadens-graft-crackdown-to-boost-influ ence (describing Xi’s anti-corruption campaign as the most sustained drive against high-level corruption following the economic reforms of the early 1980s). 4. See Quah, supra note 1, at 41 (“Xi Jinping’s anti-corruption campaign R is wider in scope since it targets both senior and junior officials . .”). 5. Xi Jinping, Remarks to the 19th National Congress of the Communist Party of China: Secure a Decisive Victory in Building a Moderately Prosper- ous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era 7 (Oct. 18, 2017), http://www. xinhuanet.com/english/download/Xi_Jinping’s_report_at_19th_CPC_Na tional_Congress.pdf (noting the anti-corruption campaign was being consol- idated and developed). 6. Id. at 61. 7. Id. at 14. \\jciprod01\productn\N\NYI\50-4\NYI405.txt unknown Seq: 4 31-AUG-18 14:43 1364 INTERNATIONAL LAW AND POLITICS [Vol. 50:1361 due to concerns about the lack of human rights safeguards in China for the treatment of such fugitives upon their return. To address this, the Chinese authorities are employing other means for procuring the return of fugitives. These include publishing lists of the names and addresses of “most wanted fugitives,”8 issuing Interpol Red Notices,9 sending law enforce- ment agents to persuade fugitives to voluntarily return to China,10 and urging countries with whom it lacks an extradi- tion treaty to repatriate Chinese fugitives to China through the use of that country’s national immigration laws. This Note turns a critical eye to this last practice—namely, how in the absence of an extradition treaty, some countries are employing national immigration laws as an alternative 8. Christian Shepherd, No Hiding Place: China Releases Street Names of Fugitives Holed Up Abroad, REUTERS, Apr. 27, 2017, https://www.reuters.com/ article/us-china-corruption/no-hiding-place-china-releases-street-names-of- fugitives-holed-up-abroad-idUSKBN17T1VO (citing examples of images, sus- pected crimes, addresses and locations for twenty-two fugitives released by the Chinese authorities in a publicly available list); see also Ian Young, China Reveals Foreign Addresses of Corruption Suspects Living in Canada, US and Beyond, S. CHINA MORNING POST, http://www.scmp.com/news/world/united-states- canada/article/2091356/china-reveals-foreign-addresses-corruption-suspects (last updated May 3, 2017, 10:14 AM) (giving examples of five graft suspects that were revealed to be living in Canada as a result of publication of a list of the suspects’ foreign addresses). 9. See Mimi Lau, China Involved in 3,000 Interpol Investigations, State Media Says, S. CHINA MORNING POST, http://www.scmp.com/news/china/policies- politics/article/2112773/china-involved-3000-interpol-investigations-state- media (last updated Sept. 25, 2017, 10:38 PM) (connecting the investiga- tions with Xi Jinping’s campaign to repatriate Chinese citizens suspected of corruption and terrorism offenses). 10. See Mark Mazzetti & Dan Levin, Obama Administration Warns Beijing About Covert Agents Operating in U.S., N.Y. TIMES (Aug. 16, 2015), https:// www.nytimes.com/2015/08/17/us/politics/obama-administration-warns-