China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?

Abstract

Neither China nor Taiwan seeks to be a haven for the other’s fugitives. And each jurisdiction wants its own fugitives back. The two governments have resorted to flexible and innovative cross-strait agreements and proxy organisations to cooperate in repatriating nationals of the other side whom the latter wishes to subject to criminal proceedings. This practice bears many similarities to extradition. Yet despite more than two decades’ cooperation, the major problem still confronting the repatriation process — at least until the very recent increase in political tension across the Taiwan Strait — has been their failure to support the process by developing in their domestic legal systems a regulatory framework at least as satisfactory as the one each has already established to govern extradition. We identify this regulatory vacuum and critique existing criminal repatriation practice, which has been marked not only by practical difficulties but also, even more seriously, by a lack of adequate protection for the basic rights of the persons to be repatriated. We call attention to the need for some enhanced protections for human rights in this aspect and in cross-strait relations generally. This case study of criminal repatriation, originally one of the important aspects of cross-strait cooperation, suggests that, when China and Taiwan wished to form closer ties and to pursue a certain policy of law enforcement, they minimised human rights considerations in order to serve their immediate political project. It constitutes a warning against neglecting human rights in the service of extradition and smooth political relations.

Keywords: repatriation; extradition; disguised extradition; criminal prosecution; cross-strait agreements; international human rights; non-refoulement; arbitrary arrest, detention and expulsion; effective remedy; fair trial