Supreme Court naive if it accepts China’s assurances
The New Zealand Supreme Court ruled last week that permanent resident Kyung Yup Kim could be extradited to China to stand trial for murder if the Government received diplomatic assurances from Beijing that he would be treated fairly.
I take no position on Kim’s guilt or innocence, but as a human rights advocate with over a decade of experience working on China, I am concerned by the precedent this could establish. Diplomatic assurances from China should not be accepted in good faith.
The court did not dispute that torture in China is widespread, or that the denial of fair trial rights is systematic, issues my organisation Safeguard Defenders has documented. But sadly, in the face of gross human rights violations, the court found that ‘‘assurances can overcome [such] concerns’’ provided they ‘‘are subject to mechanisms to ensure compliance, such as monitoring’’.
In its decision, the court outlines what assurances it expects from China. These include that during all periods of Kim’s detention, New Zealand diplomatic or consular representatives be informed of his location and be able to freely contact him.
New Zealand representatives must be able to visit him ‘‘at least once every 48 hours during the investigation phase, and no less than once every 15 days from then until the completion of the trial’’.
Those representatives are to be informed of, and able to attend, any open court hearing in China. The Supreme Court unfortunately allows for the possibility of closed hearings, which China is certain to exploit.
The Supreme Court holds that ‘‘diplomatic assurances provided in good faith amount to moral and political obligations on the state providing them’’ and that, if China failed to honour such assurances, it would have ‘‘serious diplomatic and reputation repercussions’’ for China’’.
Frankly, that China will honour such guarantees because of potential diplomatic repercussions is laughably out of touch. China has consistently violated diplomatic and consular agreements involving Swedish, British, Canadian, and Australian citizens with little to no repercussions, and that the New Zealand court might now legitimise assurances from China would only reward China for its most recent wave of breaches.
On May 27, the trial of Australian citizen Yang Hengjun opened with one conspicuous absence: Australia’s ambassador to
China, Graham Fletcher, had been denied access. This contravenes provisions within the ChinaAustralia consular agreement, which requires that Australian consular representatives be permitted to attend the legal proceedings of its nationals.
Why should New Zealand expect any different in seeking assurances of regular visitation and trial observation from China now?
The Supreme Court is right that monitoring is important to prevent abuse, and regular contact and visits are a crucial part of monitoring. But Yang’s case shows the perils of believing China’s assurances. Despite the consular agreement between Australia and China requiring consular access within five days of detention, he was first kept for six months in a secret location, where he says he was tortured.
In March this year, Canadians Michael Spavor and Michael Kovrig were tried in secret as Chinese authorities barred Canada’s charge d’affaires from attending their hearings. Under the China-Canada consular agreement, a consular representative must be permitted to attend the legal proceedings of Canadian nationals.
The two Canadians were detained in China in December 2018, a case of hostage diplomacy, and have been subjected to torture, including sleep deprivation and prolonged solitary confinement. Since their detention, China has permitted only sporadic consular access, often with large gaps between visits. Canadian officials were denied any contact with the two men from January to October of 2020. This, again, is a flagrant violation of China’s consular agreement with Canada.
While the Supreme Court may believe that diplomatic assurances provided in good faith are an acceptable compromise to concerns of abusive treatment, China has consistently demonstrated bad faith in violating diplomatic and consular agreements.
It is this trend of broken agreements that contributed in part to recent court decisions in Sweden, the Czech Republic, and Poland to reject extraditions to China precisely because such diplomatic assurances are unenforceable and cannot be trusted. New Zealand must take note.
Frankly, that China will honour such guarantees because of potential diplomatic repercussions is laughably out of touch.