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Because the ultimate goal of the United States is to reach a point in its relations with China where it can trust the Chinese enough that it can respond favorably and unconditionally to its extradition requests, the United States should nurture and enhance its relationship with the Chinese by cooperating with them on what they really care about: eliminating corruption. After President Clinton visited China in 1997, the United States and China concluded a memorandum of understanding to establish a law enforcement liaison group to combat narcotics trafficking, alien smuggling, counterfeiting, and organized crime. [FN249] In 2006, the United States cosponsored with China a *214 major anticorruption and denial of safe haven conference to increase international understanding and cooperation on these issues. [FN250] The U.S. government should continue to expand on these efforts to cooperate with China in law enforcement matters. Finally, nongovernmental U.S. legal and financial institutions should increase their own anticorruption cooperation with their Chinese counterparts to improve knowledge of and responses to incidents of international financial fraud; the U.S. government should encourage and support such efforts.

VI. Conclusion

Human rights law is now inextricably tied to extradition law. Therefore, if China is intent on realizing bilateral extradition treaties or other extradition arrangements with Western nations, it will have to engage the West on human rights and placate Western criticisms. Many Chinese are already realizing this fact in their debates about capital punishment. But, by maintaining a case-by-case approach to responding to extradition requests from China, the United States signals that China’s human rights record to date is not acceptable. The United States does have its own interests to consider, of which cooperation on international suppression of terrorism is paramount. Moreover, if it is going to preach human rights in its rhetoric, the United States should improve its own procedures for protecting requested individuals so as to avoid charges of hypocrisy that complicate its ability to pursue reforms elsewhere. Thus, the United States, in its extradition relationship with China, faces the challenge of cooperating on one hand and of trying to protect individual rights on the other. Realizing this challenge is to find a middle ground between the treaty and the non-engagement extremes. However, in finding this middle ground, the United States should also realize that extradition now presents an avenue for curbing Chinese human rights policies that do not meet international standards. It should engage the Chinese to capitalize on this opportunity.

[FNd1]. Yale Law School, J.D. expected 2008; Yale University, B.A. 2005. I am deeply indebted to Professor Paul Gewirtz for his constant support and guidance; to Tom Kellogg of the Yale China Law Center, who provided countless suggestions for improving this Note; to Margaret Lewis of N.Y.U.’s U.S.-Asia Law Institute for her detailed feedback on an earlier draft; and to Jeff Sandberg and the Yale Journal of International Law staff for their excellent editing.

[FN1]. Ctr. for Strategic & Int’l Studies & Inst. for Int’l Econ., China: The Balance Sheet 17 (2006); Zheng Bijian, China’s “Peaceful Rise” to Great-Power Status, Foreign Aff., Sept.-Oct. 2005, at 18.

[FN2]. See Guiguo Wang, Economic Integration in Quest of Law: The Chinese Experience, J. World Trade, Apr. 1995, at 5; Hanqin Xue, China’s Open Policy and International Law, 4 Chinese J. Int’l L. 133 (2005) (describing how China began participating in international law after opening up its economy).

[FN3]. The scope of the “Western world” is admittedly subjective. For the purposes of this Note, the “West” is defined as the countries of Western Europe, the United States, Canada, Australia, and New Zealand.

[FN4]. “International criminal law enforcement in the practice of States relies on six modalities of inter-State cooperation in criminal matters. These modalities are: extradition, legal assistance, transfer of sentenced persons, transfer of penal proceedings, seizure and forfeiture of illicit proceeds of crime, and recognition of foreign penal judgments.” M. Cherif Bassiouni, Foreword to Treaty Enforcement and International Cooperation in Criminal Matters, at vii (Rodrigo Yepes-Enríquez & Lisa Tabassi eds., 2002).

[FN5]. Up until the early 1990s, China did not have extradition treaties with other states. Fu Hualing, One Country and Two Systems: Will Hong Kong and the Mainland Reach an Agreement on Rendition?, H.K. Lawyer, Jan. 1999, available at 1999-1/Default.htm.

[FN6]. Jonathan M. Winer, Cops Across Borders: The Evolution of Transatlantic Law Enforcement and Judicial Cooperation, in Transatlantic Homeland Security: Protecting Society in the Age of Catastrophic Terrorism 106, 106 (Anja Dalgaard-Nielsen & Daniel S. Hamilton eds., 2006). Mutual legal assistance provides for the sharing of information and evidence related to criminal investigations and prosecutions, whereas extradition is the process by which one nation requests and obtains from another nation the surrender of a suspected or convicted criminal.

[FN7]. Monte Stewart, Feds Look for Balance in Trade with China, Bus. Edge (Calgary, Alta.), Apr. 20, 2007, article.cfm/newsID/15173.cfm.

[FN8]. The fight against corruption is being carried out in the highest reaches of the central government. Feng Jianhua, Clean Sweep: Employing Tougher Measures and Seeking International Cooperation, China Aims to Leave Little Space for Corruption, Beijing Rev., Jan. 23, 2007, available at nation/txt/2007-01/23/content_53450.htm. There is still a long way to go in the battle against corruption in China. In part because of a lack of international cooperation, many fugitive corrupt officials remain out of China’s reach. Chasing Escaped Corrupt Officials Remains Arduous Task, China Daily, Nov. 4, 2003, available at en/doc/2003-11/04/content_278159.htm; Raymond Zhou, Capital Flight: Capture of Corrupt Officials a Long Drive, China Daily, Aug. 8, 2003, available at en/doc/2003-08/12/content_254169.htm.

[FN9]. David Lague, China Urges Western Nations to Enter Extradition Treaties, N.Y. Times, May 28, 2007, at A3.

[FN10]. John Dugard & Christine Van den Wyngaert, Reconciling Extradition with Human Rights, 92 Am. J. Int’l L. 187, 187 (1998).

[FN11]. In China, the death penalty can be applied to sixty-eight offenses, including economic and nonviolent crimes like smuggling, counterfeiting currency, embezzlement, and bribery. Cliff Ip, Si-si Liu & Bonny Ling, China’s Death Penalty Reforms, China Rts. F., June 30, 2007, at 26, 26. While the exact number of executions in China is a state secret, David Whedbee, Comment, The Faint Shadow of the Sixth Amendment: Substantial Imbalance in Evidence-Gathering Capacity Abroad Under the U.S.-P.R.C. Mutual Legal Assistance Agreement in Criminal Matters, 12 Pac. Rim L. & Pol’y J. 561, 589 n.214 (2003), China is widely reported to execute more individuals than the rest of the world combined. Amnesty Int’l, Executed “According to Law” ? The Death Penalty in China, pages/chn-220304-feature-eng (last visited Nov. 7, 2007). China’s frequent use of the death penalty is anathema to Western Europe, Canada, and Australia. See EU Lawmakers Hold Minute Silence for Death Penalty Victims, EUbusiness, Oct. 10, 2007, news_ live/1192029421.78/; Amnesty Int’l, The Death Penalty in Canada: Twenty Years of Abolition (2000), deathpenalty/canada.php; Australian Gov’t Dep’t of Foreign Affairs & Trade, Australia-China Human Rights Dialogue, hr/achrd/aus_proc_dialogue.html (last visited Nov. 7, 2007). The United States, while unable to morally criticize the fact that China has the death penalty, joins its Western allies in condemning the use of the death penalty for economic crimes, the procedural deficiencies in sentencing an individual to death, and the inhumane conditions reported on death row. See, e.g., David Lague, China Pressured on Death Penalty, Int’l Herald Trib., Aug. 15, 2005, articles/2005/08/14/news/china.php.

[FN12]. U.S. Dep’t of State, Country Reports on Human Rights Practices 2006: China (2007), available at g/drl/rls/hrrpt/2006/78771.htm; Harold Hongju Koh, A United States Human Rights Policy for the 21st Century, 46 St. Louis U. L.J. 293, 317-18 (2002).

[FN13]. Sun Shangwu, China Signs Extradition Deal with Spain, China Daily, May 1, 2006, available at china/2006-05/01/content_581658.htm.

[FN14]. China Ratifies Extradition Treaty with Spain, Xinhua News Agency, Apr. 29, 2006, english/2006-04/29/content_4491739_ 3.htm. See also Zhonghua renmin gongheguo he xibanya wangguo yindu tiaoyue [China-Spain Extradition Treaty], Nov. 14, 2005, P.R.C.-Spain, available at zgrdw/common/zw.jsp?label=WXZLK&id=350141&pdmc=rdgb (text of the treaty in Chinese from the National People’s Congress website) (last visited Dec. 4, 2007) [hereinafter China-Spain Extradition Treaty].

[FN15]. A requested state can place conditions on how an extradited individual will be treated after returning to the requesting state. This approach is called “conditional extradition.” It is often controversial, but it “has not proved to be an impenetrable barrier to compromise.” Thomas Rose, Note, A Delicate Balance: Extradition, Sovereignty, and Individual Rights in the United States and Canada, 27 Yale J. Int’l L. 193, 214-15 (2002).

[FN16]. France Signs Extradition Treaty with China, France24.com, Mar. 20, 2007, france24Public/en/archives/news/2007/March/europe/20070320-china-extradition.html.

[FN17]. Press Release, Philip Ruddock, Att’y Gen. of Austl., Australia-China International Crime Cooperation Strengthened (Sept. 6, 2007), agd/WWW/ministerruddockhome.nsf/Page/RWPB8B9776D4A85534ECA25734E0021CF6D. China and Australia already had in place a treaty on judicial cooperation. China Ratifies Treaty on Judicial Cooperation with Australia, People’s Daily, Nov. 1, 2006, available at 200611/01/eng20061101_317106.html.

[FN18]. Shar Adams, Australia’s Extradition Treaty with China Criticised, Epoch Times, Sept. 18, 2007, available at news/7-9-18/59899.html (criticizing the Australian treaty because the Chinese legal system is “woefully inadequate”); China and Spain Boost Trade Ties, BBC News, Nov. 14, 2005, 2/hi/europe/4432694.stm (noting criticisms of the Spanish treaty by Amnesty International Spain because “China is one of the world’s most frequent violator [sic] of human rights”); France Signs Extradition Treaty with China, supra note 16 (noting that Amnesty International France has criticized the French treaty because of “continuing reports of serious violations in China”).

[FN19]. This Note will refer to the approaches of the nations that have signed extradition treaties with China–Spain, France, Portugal, and Australia–as the “treaty-based approach.”

[FN20]. See Lague, supra note 11 (“The Chinese government is under pressure to scrap the death penalty for nonviolent crimes so that corrupt officials fleeing abroad can be more easily extradited. Chinese legal scholars have called on the government to modify the law so that foreign courts can be confident that fugitives returned to China will not face execution ….”); Liu Li, Experts Call for Review of Sentencing, China Daily, Aug. 13, 2005, available at english/doc/2005-08/13/content_ 468682.htm (“Law experts have called for the death penalty to be dropped as punishment for non-violent crimes to ease the extradition of some 4,000 suspected corrupt officials who have fled abroad.”); Zhang Zhiping, Should the Death Penalty Be Abolished for Corruption?, Beijing Rev., Dec. 18, 2006, available at forum/txt/2006-12/18/content_51253.htm; see also infra notes 136-143.

[FN21]. Treaty Between The Government of Canada and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters, Can.-P.R.C., July 29, 1994, 1995 Can. T.S. No. 29; see also Vincent C. Yang, Dir., China Program, Int’l Ctr. for Criminal Law Reform and Criminal Justice Policy, Conference Paper at the International Symposium on the Prevention and Control of Financial Fraud, Cooperation in Combating Fraud: Beyond the Treaties and Conventions (Oct. 19-22, 1998) 4-7, available at Publications/Reports/yang_pap.pdf (describing the Canada-China mutual legal assistance treaty).

[FN22]. See Geoffrey York, Five Fugitives Hiding in Canada, China Says, Globe & Mail (Toronto), Feb. 3, 2007, at A22.

[FN23]. Extradition Act, 1999 S.C. ch. 18, § 10(1) (Can.) (‘The Minister of Foreign Affairs may, with the agreement of the Minister, enter into a specific agreement with a State or entity for the purpose of giving effect to a request for extradition in a particular case.‘).