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In contrast to Spain, France, Portugal, and Australia, it still is unlikely that the United States will enter into an extradition treaty with China because of U.S. reservations about the lack of due process provided by the criminal justice system and the generally poor human rights record in China. [FN192] Yet, as the above Section described, the United States occupies a nebulous middle ground between the treaty-based and the non-engagement approaches. It is too concerned about human rights to enter into a treaty, but it is willing to cooperate with China on an ad hoc basis so as not to be labeled a “safe haven” for fugitives. This Part evaluates the U.S. approach vis-à-vis the two extremes. [FN193] The first Section defines the interests that are important to the United States when it considers extradition with China. The following three Sections analyze whether the current U.S. approach is well-designed to realize these interests.

A. Defining Interests in U.S. Extradition Policy

States take a variety of interests into account when formulating extradition policy. While the general interest in controlling international crime is near-universal, other interests are country-specific. For example, China’s primary interest in improving extradition practices is to clamp down on corruption. [FN194] Meanwhile, the nations that have adopted the treaty-based approach seem particularly interested in cooperating on international crime suppression as a way to enhance business ties. [FN195] As Canada forms its policy for extradition with China, it is particularly interested in maintaining its position as a preeminent protector of human rights. [FN196]

A threshold question for analyzing the effectiveness of the U.S. approach, then, is: what interests are important to the United States as it forms its policy for extradition with China? The United States has made clear that its primary reason for increasing cooperation with other states in extradition is to build goodwill in order to gain international judicial assistance in prosecuting *203 the war on terror. [FN197] Indeed, extradition and other forms of judicial cooperation can be important tools for bringing terrorists to justice and maintaining social order. [FN198]

U.S. officials also purport to be very concerned with the rights of individuals facing extradition proceedings. [FN199] Indeed, the United States has long subscribed to the idea that a requested state should make a determination of whether a requesting state will protect the individual rights of a fugitive before deciding whether to extradite. [FN200] However, the United States’s overall human rights record in the context of international crime cooperation has been mixed. Alleged U.S. participation in extraordinary renditions, [FN201] for example, suggests a divide between U.S. rhetoric and practice in the protection of individual rights. Still, taking the U.S. government at its word, it is interested in protecting individual rights in extradition.

The ability of the United States (as the requested state) to consider the domestic human rights practices of a requesting state like China coupled with the ongoing debate in China about whether to abolish the death penalty for nonviolent crimes gives rise to a third U.S. interest: the interest in pressuring China to reform its human rights practices. Despite criticisms that it is meddling [FN202] or being hypocritical, [FN203] the United States has long been interested in pressuring China to reform its human rights practices and has pursued this strategy in a variety of ways. [FN204] Insofar as the experience of *204 Spain, France, Portugal, and Australia has demonstrated that extradition can influence the human rights debate in China because the Chinese are so intent on stamping out corruption, the United States will be interested in shaping its extradition policy in a way that will increase, rather than alleviate, the pressure on China to enact human rights reforms. The United States can justify including a push for broad-based human rights reform through extradition as one of its main interests, along with its interest in prosecuting terrorism and its interest in protecting the rights of the requested individual. These interests are not in tension with one another; the United States can pursue all three through one coherent strategy.

B. The U.S. Approach and Cooperation in the Pursuit of Terrorists

In the aftermath of the September 11, 2001 terrorist attacks, the U.S. government quickly sought to obtain the support and cooperation of foreign states. [FN205] While China may not be the most likely safe haven for terrorists that the United States desires, the United States saw important benefits to enlisting the full support of China in the counterterrorism effort post-September 11th. These benefits included support in United Nations Security Council deliberations; [FN206] gaining information related to terrorism from Beijing [FN207] and ensuring that the Chinese government would refrain from protesting bombings in Afghanistan; the assignment of U.S. forces to the area; and “discussions of nation-building for postwar Afghanistan.” [FN208] Such actions would typically invite significant criticism from China, [FN209] but the U.S. approach of deciding whether to extradite or deport criminal suspects requested by China on an ad hoc, case-by-case basis–backed up by a willingness to follow through with returning suspects as demonstrated by the Yu Zhendong case–proved sufficient to gain cooperation from the Chinese. The Sino-U.S. bilateral relationship improved as a result of U.S. cooperation, [FN210] and China set aside traditional security considerations and supported the United States’s call for a global campaign against terrorism. [FN211]

*205 Certainly, China’s assistance in the global war on terror is not just a quid pro quo for the United States’s cooperation in returning corrupt officials to China. For example, the Bush administration’s controversial decision to add the Muslim Uighur separatists to its official terrorist list at the urging of Beijing was also an important concession to the Chinese that may have contributed to their cooperation in the global war on terror. [FN212] However, if the U.S. government was as unwilling as the Canadians to return criminal suspects, it is unlikely that the Chinese would have lent cooperation in combating terrorism regardless of other concessions that the United States made. They would find the U.S. approach to extradition with China too inequitable. [FN213] The United States’s ad hoc approach to returning criminal suspects to China, which is relatively cooperative, proved sufficient to satisfy the important interest of gaining cooperation in bringing suspected terrorists to justice.

C. The U.S. Approach and the Protection of Individual Rights

Generally, the United States emphasizes the importance of protecting human rights, and it is exemplary in extending rights and protections to its own citizens. The United States joins the Western world in speaking out against human rights abuses in extradition. [FN214] The U.S. interest in protecting individual rights often conflicts with its interest in combating terrorism, though, and when it does, there is a need to balance these rights. While this Note will address some areas in which the contemporary approach to extradition with China can better protect individual rights, [FN215] overall the U.S. case-by-case approach is well-designed to protect human rights.

Indeed, the most important benefit to the ad hoc, case-by-case approach in terms of the protection of individual rights is that the ad hoc approach provides the United States with flexibility. [FN216] As one commentator has acknowledged, “the party with the stronger bargaining power”– which, in the *206 case of U.S.-China negotiations, is likely the United States because of China’s desperation to clamp down on corruption–“prefers a flexible approach . . . . The weaker party, on the other hand, tends to prefer a carefully written agreement with its terms ‘cast in stone’ . . . .” [FN217] Without a treaty, the United States is bound by its own legislation only, and a state that need only follow its domestic legislation in deciding whether to extradite “has no international obligation to assist a foreign state.” [FN218] Following a case-by-case approach, then, provides the United States with the advantage of being able to refuse to return individuals more easily if the human rights situation on the ground in China worsens, or if the United States does not trust a Chinese diplomatic assurance enough to follow through on a conditional extradition. [FN219] It also enables the United States to negotiate for different human rights assurances at different times. Many human rights–including freedom from torture; freedom from the death penalty; freedom from cruel, inhuman, or degrading treatment or punishment; right to a fair trial; right to privacy; and freedom from discrimination–can obstruct extradition depending on the circumstances of the case. [FN220] By pursuing a case-by-case approach, the United States has the flexibility to seek greater protections if torture or a fair trial or another human right seems to be particularly relevant to the requested individual.

This flexibility is particularly important when one considers the well-documented historic unreliability of diplomatic assurances. Some governments routinely deny that torture or other human rights abuses are practiced when they are in fact systematic. [FN221] China is one of the states that has often violated assurances in the past. As mentioned, Chinese authorities executed Yang Fong after assuring Canada that they would not do so. [FN222] Suspects extradited to China from East Asian and Southeast Asian countries without the assistance of treaties have been sentenced to death despite diplomatic assurances that they would not be charged with the death penalty. [FN223] At this point, there is no way to know whether China will uphold its assurances. Because the United States has the ability in the case-by-case approach to refuse to extradite in the future if China violates an assurance, it creates an incentive for China to uphold its assurances.

The ability to cease extradition if China violates a human right is not readily available to Spain, France, and Portugal now that they have ratified treaties with China. When an extradition treaty is in force between two states, *207 the provisions of the treaty are followed as a matter of international law. [FN224] Moreover, even when states have included a provision in the treaty allowing one party to obstruct an extradition, the states tend to interpret extradition laws and treaties in favor of enforcement because this course is “perceived to serve the interests both of justice and of friendly international relations.” [FN225] While the existing extradition treaties between China and Western nations provide for strong protections against capital punishment, they downplay the importance of other human rights. [FN226] Therefore, the treaty-based approach is significantly inferior to the U.S. approach in its ability to protect human rights.

Admittedly, based on the nefarious history of diplomatic assurances, the U.S. approach to extradition with China takes more human rights risks than the Canadian non-engagement approach simply because the United States returns more criminal suspects to China than the Canadians do. While the United States proceeds deliberately in negotiations with China, no state can be certain that China will uphold its promises not to execute, torture, or violate other human rights of the requested individual. Yet, China is far from unusual in this regard; other countries, including developed ones, have historically violated their word. More to the point, Canada’s virtual refusal to return any desired suspects to China despite substantial concessions on the part of the Chinese is compromising Canada’s ability to pursue other important state interests, including broad-based human rights reform in China. [FN227] With its case-by-case approach, the United States is able to protect individual rights, reciprocate enough to pursue other important state interests with the Chinese, and, as the next Section will demonstrate, push for broad human rights reforms.

D. The U.S. Approach and Human Rights Reform in China