The need for a structured approach to extradition between China and New Zealand

Abstract

New Zealand will increasingly be confronted with human rights issues arising from the extradition of individuals to China due to perceived inadequacies in China’s criminal justice system and the practice of using force to extract confessions by China’s law enforcement agencies. This thesis examines the failings of New Zealand’s current ad hoc extradition system with its reliance on diplomatic assurances to guarantee fair trial rights and protection against torture for individuals extradited to China. Due to these inadequacies it is possible that the only way in which New Zealand can fulfil its obligations under the United Nations Convention against Corruption in cases involving corruption is for New Zealand to exercise its extraterritorial jurisdiction as an alternative to extradition. The Law Commission’s approach in its 2016 report recommending changes to the Extradition Act 1999 fails to comprehend the essential role bilateral treaties are likely to play in terms of New Zealand’s extradition relationships with countries such as China in the future. It is argued that a more structured approach is needed by concluding a legally binding treaty with China that provides for specific human rights guarantees and a monitoring regime. This treaty should also allow either state party to offer to try an individual sought for extradition by exercising the requested party’s extraterritorial jurisdiction as an alternative to extradition. Furthermore, consideration should be given to expanding the scope of New Zealand’s extraterritorial criminal jurisdiction in cases involving individuals requested for extradition under the treaty.