On February 7th 2017, Australian Labor Member of Parliament Micheal Danby urged the Australian government to refrain from finalizing its proposed extradition treaty with China. Although the treaty was signed in 2007, the enactment process only gained traction in December 2016 when a parliamentary committee formally recommended its ratification. Proponents assert that the treaty will improve joint efforts to fight against criminal activity and money laundering, especially regarding the flow of illegal drugs from China into Australia and the flight of corrupt Chinese officials to Australia.
Efforts to ratify the treaty have been met with push back from parties such as Danby, who argue that it is deeply flawed. According to Danby, the treaty fails to “strike a balance between fighting domestic and international crime on the one hand, and protecting the human rights of those facing extradition on the other.” In a similar vein, the Law Council of Australia has warned that, in addition to a number of other flaws, the treaty provides inadequate protection of the right to a fair trial. This is evidenced by the omission of a safeguard that would allow Australia to refuse an extradition request when it would be “unjust or oppressive,” a provision generally found in Australia’s other extradition treaties. The Council also criticized the treaty’s limited evidentiary thresholds for assessing an extradition request, noting the lack of formal sanctions that can be levied against China in the event that Beijing “breaches an undertaking given to Australia not to execute an extradited suspect.” This reluctance to ratify the treaty and the push for greater legal protections likely stems in part from the experiences of Australian citizens, such as Charlotte Chou and Matthew Ng, who faced lengthy sentences in Chinese prisons.
The Australian debate mirrors the broader discourse on the ratification of extradition treaties with China by other Western states such as the United States, Canada, and New Zealand. Presently, there are a number of compelling reasons for countries such as Australia and the United States to consider implementing extradition treaties with China. For instance, these treaties could improve transnational anti-corruption efforts, improve diplomatic tensions and reduce international tensions. Some argue that instead of hesitating, these governments should be more supportive of the Xi Jinping administration’s efforts to combat corruption in China and that they should actively extradite corrupt officials and businesspeople in their respective jurisdictions. Additionally, they assert that recent reforms in the judicial system have led to gradual improvements in Chinese rule of law. Finally, they view this as an opportunity to improve relations with China. They explain that the ratification of extradition treaties can also improve Chinese perceptions of jurisdictions such as Australia, the United States, and Canada which have been “labelled as safe haven[s] for corrupt Chinese officials and businesspeople.”
On the other hand, some academics argue that given the current state of the Chinese criminal justice system, now is not the time for the negotiation of extradition treaties. Proponents of this view highlight the failure of the Chinese justice system to attain “minimum standards of international due process.” They acknowledge that perceptions of rule of law have improved since Xi Jinping became president. However, they refuse to accept these indications at face value and insist that, in practice, the Chinese criminal justice system is instead “marching in the wrong direction.” In support of these assertions, they draw attention to the negative treatment of lawyers who advocate for human rights and provide criminal defense by the Communist Party. Additionally, there are cases where these lawyers and other citizens have been kidnapped, tortured, illegally detained, arrested, prosecuted, etc. Ryan Mitchell suggests that in order to balance the benefits of an extradition treaty with the need for due process protections, treaties should be proposed that require a preliminary legal review of the accused party’s culpability, “undertaken by an independent domestic tribunal in a fair and transparent process.” Following this, individuals whose guilt has been confirmed will then “face justice.” Jerome A. Cohen contends that democratic governments cannot negotiate an extradition treaty with China in the current climate. Instead, he proposes an alternative, geared towards the United States, where the government would assess each extradition request from Beijing on a case to base basis to see whether the suspect has violated any U.S. laws. He then proposes that after this analysis, discussions should be had with the individual, defense counsel and with Chinese officials to find an individualized solution. Cohen cites the Bank of China Case, where the parties were given a choice of accepting pre-determined sentences from the Chinese government or being prosecuted in the United States, as an example of how this system could work.
If Australia decides to finalize the proposed treaty it will not be alone. In recent years countries, such as France, Bulgaria, Italy, Lithuania, Portugal, Romania, and Spain have signed and ratified extradition treaties with China. Alternatively, Australia could, like jurisdictions such as Hungary, Greece, the United Kingdom, and the United States, continue conduct informal repatriations in the absence of extradition treaties.
Morenikeji Akinade is a second year student at Columbia Law School and a staff editor for the Journal of Transnational Law. She graduated from Northwestern University where she studied Political Science and Mandarin.