FOR EDUCATIONAL USE ONLY
33 Yale J. Int’l L. 177

Yale Journal of International Law
Winter 2008

Notes

*177 A COMPARATIVE ANALYSIS OF THE UNITED STATES’S RESPONSE TO EXTRADITION REQUESTS FROM CHINA

Matthew Bloom [FNd1]

Copyright (c) 2008 Yale Journal of International Law, Inc.; Matthew Bloom

I. Introduction…………………………………………. 177
II. The Intersection of Extradition Law and Human Rights Law…………………………………………………………………………………….. 182
A. History of Individual Rights in Extradition………….. 183
B. The Modern Human Rights Movement and Extradition……… 185
C. Which Human Rights?………………………………….. 187
III. Divergent Approaches to Extraditions with China…….. 188
A. Treaty-Based Approach to Extradition with China………. 190
B. Non-Engagement Approach to Extradition with China…….. 195
C. Case-by-Case Approach to Extradition with China………. 199
IV. Analyzing the U.S. Case-by-Case Approach Contra the Other Approaches………………………………………………………………………………….. 202
A. Defining Interests in U.S. Extradition Policy………… 202
B. The U.S. Approach and Cooperation in the Pursuit of Terrorists……………………………………………………………………………………. 204
C. The U.S. Approach and the Protection of Individual Rights…………………………………………………………………………………….. 205
D. The U.S. Approach and Human Rights Reform in China……. 207
V. Suggestions for the U.S. Approach to Extradition with China……………………………………………………………………………………. 208
A. Enhance Protections for Individuals Through Domestic Legislation…………………………………………………………………………………… 209
B. Increase Public Guidance To Realize Desired Human Rights Reforms…………………………………………………………………………………… 212
C. Increase Cooperation Outside of the Extradition-Human Rights Dialogue………………………………………………………………………………….. 213
VI. Conclusion………………………………………….. 214

I. Introduction

Since the late 1970s, China has undertaken a process of opening up to the world and engaging in economic reform. [FN1] This process has brought increased opportunities for Western nations to cooperate with China. [FN2] Predictably, efforts to cooperate also have given rise to new challenges, as Chinese and Western cultures [FN3] and systems often conflict.

*178 Extradition, which is an important component of transnational criminal law enforcement, [FN4] presents one area in which cooperation with the Chinese was not previously available, [FN5] but now can provide important benefits. The United States and its allies are dedicated to combating international terrorism, and they are negotiating mutual legal assistance and extradition treaties “at an increasingly vigorous pace” in order to facilitate the return of suspected terrorists for prosecution. [FN6] Further, a nation that cooperates in criminal law enforcement can gain favor in China, which can translate into enhanced business ties in the rapidly developing Chinese economy. [FN7] The Chinese are also keenly interested in cooperating on extradition matters in order to eliminate safe havens and bring to justice high-level corrupt officials who have fled with significant capital (and who have overwhelmingly sought refuge in developed Western nations). [FN8] In early 2007, China officially called upon Western nations to sign extradition treaties with it. [FN9] Based on their mutual interest in cooperation, one might expect Sino-Western extradition treaty negotiations to proceed effortlessly.

For the West, however, human rights concerns present a significant drawback to increased cooperation on extradition to China. Over the last several decades, the human rights movement has “turned its attention to extradition” to secure the rights of the individual sent to the requesting country, and “[t]reaties, executive acts and judicial decisions on extradition have all been affected.” [FN10] Extraditions to China are particularly controversial because of the country’s human rights practices. China uses the death penalty *179 frequently, including as punishment for nonviolent crimes. [FN11] It also is severely criticized for its poor record on torture; cruel, inhuman, or degrading treatment or punishment; prison sentences and conditions; harsh interrogation methods; discrimination based on ethnicity, gender, and disability; the right to a fair trial; and the right to privacy. [FN12]