The Long Arm of Justice: America’s Place in China’s Anti-Corruption Campaign
Derek Turnbull, Vol. 36 Associate Editor
As President Xi Jinping’s burgeoning anti-corruption campaign takes root in China, forcing government officials at the top of diverse ministries from the energy sector to the military to sit up and take notice, China’s anticorruption officials have set their sights on a new area: the United States. Increasingly, China’s state media has critically covered the large number of government officials who have come under investigation in the People’s Republic of China (PRC) and then fled abroad, many to the United States, allegedly in possession of billions of dollars in stolen cash and assets. In February, Chinese and American government officials confirmed that they had recently met to discuss this issue, and announced that in August they will sit down together once more to talk about extradition. While the United States should naturally be at the forefront of any effort to bring corrupt criminals to justice, reasons still exist for caution as American officials move forward in negotiations with their Chinese counterparts. Rather than capitulating to the PRC’s demands for an extradition treaty, the US should settle on a more flexible alternative, such as compliance with already-existing international agreements like the United Nations Convention Against Corruption. The United States, of course, ought to respect China’s interest in prosecuting its citizens, especially in the realm of anti-corruption enforcement. The US stands to gain immensely from helping the PRC to implement its anti-corruption campaign in a serious manner. From a purely selfish perspective, the US should recognize that it gains little from offering itself up as a haven for China’s criminally corrupt element. The US can also only benefit from the more level economic playing field that would exist in a China that has succeeded in rooting out corruption and instilling a more civic mindset in its public servants. Furthermore, at a time of rising tensions between the two economic powerhouses, even small examples of cross-border cooperation could do wonders to build a more profitable relationship. However, many legitimate concerns still surround China’s legal system. Late last year, these concerns surfaced during negotiations between the PRC and New Zealand, when New Zealand’s prime minister suggested that an extradition treaty was on the table, but tied it to China satisfying “certain human rights standards.” Nations like New Zealand and many in the European Union have long been wary of condemning fugitives to face the Chinese justice system, which sometimes imposes the death penalty in corruption cases and allegedly uses torture to obtain confessions. Some Western nations may also hesitate to back what is increasingly seen as a political power-play by Chinese Communist Party (CCP) Chairman Xi. As the Chinese leader’s expanding anti-corruption campaign takes on the characteristics of a political purge, doubts may arise as to the true motivations for the PRC’s (and, by extension, the CCP’s) requests for extradition, and the chances afforded the accused for a fair trial. If the US were to sign an extradition treaty, it would certainly achieve the benefits enumerated earlier. The expressive effect of such a treaty would be enormous, helping to reinforce China’s avowed purpose of rooting out corruption and strengthening the rule of law in the PRC. Sino-American relations would likely benefit, and the United States could end up extraditing more than 150 undesirable lawbreakers currently listed by China as “economic fugitives.” However, in signing such a treaty, the United States runs the risk of binding itself in future to a system with limited flexibility. When politically-motivated extradition requests begin to come in, or when China’s security apparatus or extrajudicial investigatory arms become overzealous in their interrogations of the accused and their family members, the US may find itself with its hands tied, forced to comply with its international obligations despite the human cost. Even if the United States mirrored New Zealand’s insistence on human rights concessions, a treaty would still be imperfect. Leaving aside the hypocrisy and unlikelihood of an American administration insisting that another country drop the death penalty, PRC assurances of fair trials and transparency can only go so far in a legal system as long-corrupt and opaque as China’s. Nevertheless, the United States ought to take some action concerning corrupt Chinese citizens seeking safe haven within America’s borders. After modern international law took shape in the 20th century by wrestling with genocide, torture, and warfare, the time has come for the international framework to begin dealing with deeper, less obvious issues like minority rights and economic crimes – including corruption. As the world’s largest economy and having perhaps the most disproportionate influence on the development of international law out of all the world’s nations, the United States has a unique place in shaping international law. The US stands to both have the greatest effect on the formation of international norms on anti-corruption enforcement, and to benefit the most. With a robust legal system and enforcement arm of its own already in place, the United States has put its financial players at a disadvantage when they enter economies where corruption is the norm. If the US can help to steer China more firmly toward the rule of law, this can only serve to make the Chinese economy friendlier to US businesses – and the expressive effect of punishing corrupt Chinese citizens who have fled to the US would go a long way to accomplishing this goal. The risks of extradition to China notwithstanding, the United States has a number of possible options it could exercise short of an ironclad extradition treaty. One alternative consists of enforcing US immigration law, by punishing violators who failed to fully disclose their assets or legally suspect status on their visa applications. However, champions of law and order will cringe at the idea of subverting immigration law to serve what could be seen as the political interests of international relations. Alternatively, China could seek piecemeal legal remedy by suing its fugitives in US courts, seeking civil relief. This remedy probably ranks low on everyone’s preferences, though, as purely civil litigation achieves less of the expressive effect entailed in criminal prosecution, and the costs and burdens on both Chinese legal representatives and the US courts would quickly mount, with uncertain returns. The United States’ best course of action lies in relying on already-existing international obligations, in particular the United Nations Convention Against Corruption. That document contains within it all the necessary elements to fulfill the purpose of an extradition treaty without imposing overly rigid requirements. For example, Article 44 – Extradition in Chapter IV provides that the Convention can serve as the basis for extradition on corruption crimes regardless of whether two nations have an extradition treaty between themselves. The same article’s provisions also offer a buffer against a party using criminal charges and extradition to persecute political dissidents. Furthermore, Chapter V of the Convention deals with asset recovery, identifying a state’s recovery of assets stolen through corruption as “a fundamental principle.” Aggressive pursuit of the accuseds’ assets by American and Chinese authorities, even lacking extradition for criminal prosecution, would both remove much of the incentive for corrupt individuals to flee to the US in the first place, and satisfy a large portion of China’s interest in pursuing these individuals. One estimate suggests that from 2003 to 2012, as much as $1.25 trillion in ill-gotten gains left China, putting a severe dent in the country’s economy. If the US were to make good-faith efforts to help China to recover a portion of that cash, it could greatly improve the two nations’ relations and help to bring back to the Chinese people a small portion of what has been stolen from them. Moreover, more than mere token efforts could push corruption into the international law spotlight, encouraging a global effort at shaping international anti-corruption law and improving the global economy.
(Ed. note: footnote #1 contains Chinese characters.)  See, e.g., Sun Weichi (孙卫赤) and Huang Jingjing (黄晶晶), Tanguan Fu Mei Waitao Qushi Jiakuai Zhong Mei Sifa Jixu Shendu Hezuo (贪官赴美外逃趋势加快 中美司法亟需深度合作), Renmin Wang – Huanqiu Shibao (人民网-环球时报), May 12, 2014 (available online at http://world.people.com.cn/n/2014/0512/c1002-25004849.html) [hereinafter Shendu Hezuo].  See Tim Reid, Exclusive: U.S., China to Discuss Repatriation of Chinese Fugitives, Reuters (Feb. 11, 2015, 6:47AM), http://www.reuters.com/article/2015/02/11/us-usa-china-assets-idUSKBN0LE2I820150211 [hereinafter Repatriation].  Craig McCulloch, Gov’t Warned Over China Extradition, Radio Zew Zealand News (Dec. 9, 2014, 5:41AM), http://www.radionz.co.nz/news/political/261249/govt-warned-over-china-extradition.  See US and China to Discuss Extradition of Corrupt Officials Who Stole Billions, Regional Anti-Corruption Initiative (Feb. 12, 2015), http://www.rai-see.org/news/world/5439-us-and-china-to-discuss-extradition-of-corrupt-officials-who-stole-billions.html.  See Jamil Anderlini, Xi Jinping’s Anti-Corruption Drive in China Takes Autocratic Turn, Financial Times (June 23, 2014, 12:52PM), http://www.ft.com/cms/s/0/9b645f40-fac1-11e3-8959-00144feab7de.html#axzz3UWKq1vy0.  Repatriation, supra note 2. But see Shendu Hezuo, supra note 1 (Chinese state media asserting that such a list contains more than 1000 names, purporting to cite unspecified American media sources for the number).  See China Seeks More U.S. Help to Return Fugitive Corrupt Officials, Bloomberg Business (Nov. 25, 2014, 9:28PM), http://www.bloomberg.com/news/articles/2014-11-26/china-seeks-more-u-s-help-to-return-fugitive-corrupt-officials.  See id.  See United Nations Convention Against Corruption, G.A. Res. 58/4, U.N. Doc. A/RES/58/4 at Art. 44 (Oct. 31, 2003).  See id. at Art. 44.  Id. at Art. 51.  See Repatriation, supra note 2.