A Spanish extradition case that sheds light on Canada's forthcoming Huawei decision

By Jerome A. Cohen

A very good report by Raphael Minder in today’s NY Times about a Madrid court decision rejecting the U.S. request to extradite the former Venezuelan intelligence chief, politician and alleged drug runner Hugo Carvajal. The defense claimed that the U.S. request was made for a spurious purpose, using drugs as an excuse to get its hands on the suspect for political purposes involving U.S. policy towards Venezuela.

Minder correctly points out the relevance of this international precedent to the Meng Wanzhou court battle coming up in Vancouver. Meng’s lawyers must be very happy. Of course, the United States may appeal the Madrid decision. The amount of time that a suspect subject to extradition proceedings is restrained is a disturbing aspect of the process. Carvajal was locked up for six months pending this initial decision. Fortunately, the judge has released him from prison pending appeal but subject to remaining in Spain and biweekly reporting to the government. Carvajal, who sounds like a serious drug offender from the U.S. charges, has a great Reuters family photo in the Times that would support a political campaign back home.

Although Ms. Meng has been quite free and comfortable on high bail from the start of the Vancouver legal process, she has not been free to leave Canada to pursue her business and life. She must work via the Internet and other communications facilities, which presumably are monitored. The Canadian process is moving very deliberately and the final extradition decision remains a long way off. If extradited, she faces another long criminal process in the United States unless a plea agreement is negotiated, perhaps as part of a broader Huawei settlement or an even broader US-PRC trade agreement. But don’t hold your breath!

Why people subject to the possibility of US extradition continue to take the chance of passing through countries that have extradition arrangements with the United States remains a mystery to me, even though avoiding all such countries is a significant inhibition on their travels.

What’s going on with Huawei, China, Canada and the US?

I’ve been following the intriguing story about the US effort to extradite from Canada Meng Wanzhou, Huawei’s chief financial officer and the daughter of Huawei’s founder. The case raises many Interesting questions, including why the US Government chose Canada, why it chose to initiate the action at this time, what coordination actually occurred within the USG, how did the Canadian government analyze the situation before acting and what actions will the PRC take other than those already reported.

On the coordination on China policy within the US Government, it remains unclear whether this move is part of a well-thought out, overall carrot/stick policy, a move by hardliners trying to torpedo any possible agreement with the PRC or a move by Justice, Homeland Security and State (and Treasury??) simply to pursue an independent track relating to law enforcement despite its impact on the trade negotiations.

There may well have been poor and thoughtless USG coordination in this case, but at least one report indicated that John Bolton knew this was coming (while another report has said no one who attended the Trump-Xi dinner knew before that occasion). One cannot eliminate at this point the suspicion of mischievous interference with the Sino-American effort to resolve the trade dispute.

Canada’s willingness to make the arrest is also notable and must have been the product of extensive negotiations within the Government and with the U.S. Yet whoever did the final calculations on the Canadian side may now regret that decision because of the increasingly severe damage to Ottawa’s relations with Beijing, although Canada has on a number of occasions stood up against the PRC on international law matters.

What the independent Canadian courts are likely to do with the extradition request may be another matter. Without detailed knowledge of the case presented, prediction is always hazardous but it is unlikely that the request will fail, although some able Canadian lawyers may argue that the matter is “political” rather than legal and therefore inappropriate for extradition. I felt confident that bail would be granted with restrictions on Ms. Meng’s activities since bail was granted to Mr. Lai Changxing of China after he illegally fled to Canada to avoid, at least for many years, being prosecuted in China for being allegedly the greatest smuggler in Chinese history!

What I find attractive in the Canadian Huawei case is the attention it has directed not only to the extraterritorial application of criminal law but also to extradition treaties and relevant domestic legislation, procedures and court adjudication as well as related problems of rendition, deportation, repatriation and ad hoc interstate negotiations that increasingly confront China, the U.S. and others. Hong Kong and Taiwan also struggle with these issues in relation to Beijing.

Of course, the USG might have sought Meng’s extradition from China itself, even in the absence of a US-PRC extradition treaty. It is not necessary for two countries to have a bilateral extradition treaty in order to achieve extradition or a similar result such as through deportation. Informal negotiations often accomplish extradition or the equivalent goal. The US does have an extradition treaty with Hong Kong, where Ms. Meng undoubtedly spends a lot of time, but Beijing would plainly have ordered the Hong Kong Government to deny cooperation, as it did not long ago in a less important case, for the first time in the twenty-year history of  the US-HK agreement.

It is laughable that Global Times should call this lawful, official international process “hooliganism”. The PRC is notorious for real officially-authorized “hooliganism”. And now, in its retaliation against Canadian nationals in China, the PRC is again demonstrating its zest for abusing criminal justice!